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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)



Opinion No. 6492

January 29, 1988


Election of circuit judge from election district within judicial circuit


Const 1963, art 6, Secs. 11 and 12--election of circuit judges from election districts within judicial circuit

The Legislature is precluded by Const 1963, art 6, Secs. 11 and 12 from dividing a judicial circuit comprised of two or more counties into election districts to permit a circuit judge to be elected from an election district comprised of territory less than the entire judicial circuit.

Honorable Frank M. Fitzgerald

State Representative

The Capitol

Lansing, Michigan 48913

Honorable Robert Bender

State Representative

The Capitol

Lansing, Michigan 48913

You have requested my opinion on the following questions:

1. May the Legislature authorize the election of a circuit judge from an election district such as a county where the judicial circuit is comprised of more than one county?

2. If a circuit judge were to be elected from an election district comprised of one county, may the judge serve in the other county or counties of the judicial circuit?

Your questions relate to a judicial circuit which is comprised of two counties and presently has two circuit judges elected and sitting in both counties. Your letter indicates that one of the counties has a need for a full-time circuit judge and the other has a need for two full-time circuit judges. The county boards of commissioners are considering reformation of the judicial circuit to have one circuit judge elected in one county and two circuit judges elected in the other county. The three circuit judges would serve as judges of the same judicial circuit.

Const 1963, art 6, Sec. 11, provides:

'The state shall be divided into judicial circuits along county lines in each of which there shall be elected one or more circuit judges as provided by law. Sessions of the circuit court shall be held at least four times in each year in every county organized for judicial purposes. Each circuit judge shall hold court in the county or counties within the circuit in which he is elected, and in other circuits as may be provided by rules of the supreme court. The number of judge may be changed and circuits may be created, altered and discontinued by law and the number of judges shall be changed and circuits shall be created, altered and discontinued on recommendation of the supreme court to reflect changes in judicial activity. No change in the number of judges or alteration or discontinuance of a circuit shall have the effect of removing a judge from office during his term.' (Emphasis added.)

In Const 1963, art 6, Sec. 12, the people have provided:

'Circuit judges shall be nominated and elected at non-partisan elections in the circuit in which they reside, and shall hold office for a term of six years and until their successors are elected and qualified. In circuits having more than one circuit judge their terms of office shall be arranged by law to provide that not all terms will expire at the same time.' (Emphasis added.)

The division of the state into judicial circuits along county lines is expressly authorized by Const 1963, art 6, Sec. 11. The Legislature has repeatedly exercised this authority by dividing existing multi-county judicial circuits through the removal of one or more counties and creating new circuits for the removed counties. For examples of newly created judicial circuits, see MCL 600.545-600.549g; MSA 27A.545-27A.549(7). In this manner, the number of circuits has increased from 41 when the Revised Judicature Act of 1961 (RJA), MCL 600.101 et seq; MSA 17A.101 et seq, was enacted, MCL 600.501-600.542; MSA 27A.501-27A.542, to the present 55 judicial circuits. The creation of the 55th Judicial Circuit was made subject to approval by the County Boards of Commissioners of Clare County and Gladwin County forming the judicial circuit, and subject to approval of the reformation by the County Board of Commissioners of Isabella County. MCL 600.549g; MSA 27A.549(7), as added by 1981 PA 182, Enacting Sec. 2.

It is noted that the Legislature enacted 1980 PA 129 which, inter alia, added a new section to the RJA, MCL 600.550a; MSA 27A.550(1), providing that new circuit judgeships may be established only if a resolution approving the creation of the new judgeship is passed by the board of commissioners of each county in the judicial circuit.

While the Legislature may create a new judicial circuit for one of the two counties forming the particular judicial circuit, the question of whether the Legislature may accomplish this by providing for two election districts within the judicial circuit in light of Const 1963, art 6, Secs. 11 and 12, remains to be addressed.

The primary rule of constitutional construction is the rule of common understanding described by Justice Cooley in Cooley, Constitutional Limitations, p 81, and quoted with approval by the Michigan Supreme Court in Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), and in Council No 11, AFSCME v Civil Service Comm, 408 Mich 385, 405; 292 NW2d 442 (1980):

"A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. 'For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.' (Cooley's Const Lim 81)." (Emphasis added in Traverse City School Dist.)

The language of Const 1963, art 6, Secs. 11 and 12, like the language of the predecessor provisions, Const 1908, art 7, Sec. 6, and Const 1850, art 6, Sec. 6, is plain and commonly understood by the people. The people have mandated that circuit judges be elected from the circuit.

When there is an increase in the judicial activity in a two-county judicial circuit, but an additional judgeship is required in one county only, the existing judicial circuit may be modified by the Legislature to remove the latter county from the judicial circuit and create a new judicial circuit for that county. In such event, the common understanding of the people mandates that the county be removed and be designated as a judicial circuit so that the electors of that judicial circuit may elect the circuit judge for that judicial circuit. Const 1963, art 6, Secs. 11 and 12.

In light of these constitutional provisions, the Legislature does not have the same authority concerning the election of circuit judges that it has with respect to the judges of the district court, a court of limited jurisdiction created by the Legislature. Const 1963, art 6, Sec. 26. The fact that two counties are election divisions of a district court does not serve as a constitutional basis for the establishment of those counties as election divisions for the election of circuit judges for a judicial circuit. A county is to be a judicial circuit or an integral part of a multi-county judicial circuit, and not an election district of a multi-county judicial circuit. A circuit judge must be elected from the territory of the entire judicial circuit, whether it is comprised of one county or two or more counties.

It is my opinion, in answer to your first question, that the Legislature is precluded by Const 1963, art 6, Secs. 11 and 12, from dividing a judicial circuit into election divisions comprised of territory less than the entire judicial circuit.

In light of the answer to your first question, there is no need to answer your second question.

Frank J. Kelley

Attorney General

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