[ Previous Page] [ Home Page ]
The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6432 April 17, 1987 RETIREMENT AND RETIREMENT SYSTEMS: Judges--service credit for judicial assistant service A member of the Judges' Retirement System who previously was an elected state official may receive service credit upon payment of appropriate contributions for service as a Judicial Assistant to the Common Pleas Court of the City of Detroit and the Thirty-Sixth District Court. Mr. Richard L. Beers Executive Secretary Judges' Retirement System Department of Management and Budget Third Floor General Office Building Lansing, Michigan 48909 You have requested my opinion on the following question: "Whether a person who previously was an elected state official and is presently a member of the Judges' Retirement System may claim service credit as a Judicial Assistant to the Common Pleas Court of Detroit and subsequently as a Judicial Assistant to the Thirty-Sixth District Court, where part of the service rendered was performed pursuant to a contract for personal services entered into with the presiding judge of the respective court?" The letter of request has furnished the following background information: "A judge, prior to membership in the retirement system, served as Judicial Assistant of the Common Pleas Court and the 36th District Court by appointment of the Governor for the period July, 1973 to May, 1983. Beginning December 1, 1975 his service performed as Judicial Assistant of the Common Pleas Court (later 36th District Court) was by contractual agreement with the Court. Pursuant to 1980 PA 438 employees of the Common Pleas Court were transferred to the 36th District Court effective September 1, 1981. Act 438 allowed for the assumption of existing contracts by the State Judicial Council as of that date. This person was serving as Judicial Assistant under an existing contract and continued to do so until he was appointed circuit court judge on May 1, 1983." The judges' retirement act, MCL 38.801 et seq; MSA 27.125(1) et seq, provides a retirement system for certain judges. MCL 38.802(f); MSA 27.125(2)(f), provides: " 'Service' means service performed as a judge. 'Service' also includes service performed in the position of constitutional court administrator, governor, lieutenant governor, secretary of state, attorney general, or legislative auditor general, or as a formed elected state official who had been paid an annual state salary. In the case of the constitutional court administrator, governor, lieutenant governor, secretary of state, attorney general, or legislative auditor general, or former elected state official, it includes service rendered in any other position in state government." (Emphasis added.) Credit for such service is subject to payment by the member into the annuity savings fund of the Judges' Retirement System of the contributions required by MCL 38.810; MSA 27.125(10). It is noted that the Common Pleas Court of the City of Detroit was created as a court of record by the Legislature by restructuring the existing courts of the City of Detroit. MCL 728.1 et seq; MSA 27.3651 et seq. Although the Common Pleas Court was established in a city having over 250,000 inhabitants, it was created not to deal solely with municipal concerns, but as an instrumentality for the exercise of sovereign power and of interest to the whole state. Kates v Reading, 254 Mich 158, 166; 235 NW 881 (1931). Judicial assistants are authorized to be appointed by the Governor upon recommendation of the judges of certain state courts of record which have ten or more judges for a term co-extensive with the term of the recommending judges. The judicial assistant shall subscribe to a constitutional oath of office. MCL 600.1481(1) and (5); MSA 27A.1481(1) and (5). The duties of a judicial assistant are set forth in subsection (2) of MCL 600.1481; MSA 27A.1481: "The judicial assistant, acting under the direction of the judges, shall confer with the judges upon pending matters of procedure and substantive law; conduct legal research, analyze briefs submitted and referred to the judicial assistant for comment and recommendation; study pending legislation and current decisions for their possible impact on court problems, and keep the judges and court officers advised thereon; recommend remedial legislation and draft same, and draft legislation suggested or requested by judges or court officials; act as official legal advisor to all departments of the court; represent the court, the judges or court officers in court matters arising out of their official duties in situations wherein the prosecuting attorney or attorney general has conflicting interest or responsibilities, or is otherwise disqualified; including court matters of original, as well as appellate jurisdiction affecting the court; and act as amicus curiae in appellate matters of interest to the court." Most importantly, MCL 600.1481(5); MSA 27A.1481(5), in pertinent part, provides: "The [judicial] assistant shall be a public officer." The Common Pleas Court of the City of Detroit was abolished effective September 1, 1981, and each elected incumbent judge of that court became a judge of the Thirty-Sixth District Court. MCL 600.9941; MSA 27A.9941, as added by 1980 PA 438. This Act also made the judicial assistant of the abolished court the judicial assistant of the Thirty-Sixth District Court. In MCL 600.9944(2); MSA 27A.9944(2), the Legislature provided: "On September 1, 1981, the benefits to and the obligations of the common pleas court of the city of Detroit under existing contracts with the person who is serving as judicial assistant of that court on August 31, 1981, shall be assumed by the state judicial council. The costs incurred under contracts with the person who is serving as the judicial assistant of the common please court of the city of Detroit shall be the responsibility of the state." It is noted that until it was abolished, the Common Pleas Court of the City of Detroit was a part of the one state court of justice established by the people in Const 1963, art 6, Sec. 1. Thus, there is no question but that it was a state court. The office of judicial assistant of a state court of record is a state public office. See, Kent County Register of Deeds v Kent County Pension Bd, 342 Mich 548; 70 NW2d 765 (1955). While not every "public position" is a public office, a public office is a public position. State v Hahn, 69 SD 275, 279; 9 NW2d 502 (1943); MacDonald v Newark, 55 NJL 267; 26 A 82 (1893), aff'd, 56 NJL 715; 31 A 771 (1894). Although MCL 600.1481; MSA 27A.1481, empowered the compensation of a judicial assistant to be fixed by the recommending judges, MCL 600.9944(2); MSA 27A.9944(2), acknowledged the authority of the recommending judges of the Common Pleas Court to fix the benefits of its judicial assistant by contract by providing that the contract was to be assumed by the State Judicial Council at the time the judicial assistant became part of the Thirty-Sixth District Court. It follows that the public office of Judicial Assistant for the former Common Pleas Court of the City of Detroit and for the present Thirty-Sixth District Court is a state position. Payment of compensation of the Judicial Assistant by contract is authorized by law. Service rendered as a judicial assistant for the respective courts is, therefore, creditable service for purposes of the Judges' Retirement System as authorized by MCL 38.802(f) and 38.810; MSA 27.125(2)(f) and 27.125(10). It is my opinion, therefore, that a member of the Judges' Retirement System who previously was an elected state official may receive service credit upon payment of appropriate contributions for service as a Judicial Assistant to the Common Pleas Court and the Thirty-Sixth District Court. Frank J. Kelley Attorney General
[ Previous Page] [ Home Page ]