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

JENNIFER M. GRANHOLM, ATTORNEY GENERAL

CONSTITUTIONAL LAW:

COLLEGES AND UNIVERSITIES:

EDUCATION:

LEGISLATURE:

SCHOOLS AND SCHOOL DISTRICTS:

Scheduling elections for State Board of Education and governing boards of three constitutional universities

The Legislature may not, by statute, require that elections for membership on the State Board of Education and the controlling boards of the University of Michigan, Michigan State University, and Wayne State University be held at the same time as K-12 school board elections.

Changes in the timing of elections for the State Board of Education and the governing boards of Michigan's three constitutional universities may be accomplished by amending Michigan's Constitution.


Opinion No. 7026

July 14, 1999


Honorable John J. H. Schwarz, M.D.
State Senator
The Capitol
Lansing, Michigan


You have asked if the Legislature may, by statute, require that elections for membership on the State Board of Education and the controlling boards of the University of Michigan, Michigan State University, and Wayne State University be held at the same time as K-12 school board elections.

The Revised School Code (Code), 1976 PA 451, MCL 380.1 et seq; MSA 15.4001 et seq, inter alia, provides for school elections and prescribes powers and duties related to such elections. The Code provides that a school district has the option of holding its regular election in April, in June, or at the same time as the November general election. Section 1031. You ask if the Legislature may dictate that elections for the State Board of Education and for the governing boards of Michigan's three constitutional universities be held at the same time as a school district's regular election, instead of at the November general election.

Const 1963, art 2, � 5, which makes explicit reference to and fixes the time of elections for state offices, provides as follows:

Except for special elections to fill vacancies, or as otherwise provided in this constitution, all elections for national, state, county and township offices shall be held on the first Tuesday after the first Monday in November in each even-numbered year or on such other date as members of the congress of the United States are regularly elected.

(Emphasis added.)

Art 2, � 5, is new to the 1963 constitution. This section abolished the spring elections that began under the 1850 constitution, with provisions for the April election of circuit judges1 and township officers.2 The 1908 constitution continued the tradition of spring elections for supreme court and circuit court judges.3 In clear language, Michigan's 1963 constitution mandates that all elections for state offices be held at the time of the November general election.

Membership on the State Board of Education constitutes a state office. OAG, 1967-1968, No 4620, p 278, 280 (August 7, 1968), concluded that:

The people have created the office of member of the State Board of Education as a constitutional office through Article VIII, Section 3 of the Michigan Constitution of 1963. Thus there is no question that such an office is a state office.

The offices of regent of the University of Michigan, trustee of Michigan State University, and governor of Wayne State University are likewise state offices. Attorney General ex rel Cook v Burhans, 304 Mich 108; 7 NW2d 370 (1942); OAG, 1983-1984, No 6211, p 246 (March 21, 1984).

Const 1963, art 2, � 4, which gives the Legislature general supervisory power over the electoral process, provides:

The legislature shall enact laws to regulate the time, place and manner of all nominations and elections, except as otherwise provided in this constitution or in the constitution and laws of the United States.

(Emphasis added.)

The Legislature's authority to regulate the time of elections is expressly made subject to the provisions of Michigan's constitution.

Const 1963, art 8, � 3, regarding elections for the State Board of Education, provides that:

The state board of education shall consist of eight members who shall be nominated by party conventions and elected at large for terms of eight years as prescribed by law.

(Emphasis added.)

Additionally, Const 1963, art 8, � 5, regarding elections for governing boards of the University of Michigan, Michigan State University, and Wayne State University, provides that:

The board of each institution shall consist of eight members who shall hold office for terms of eight years and who shall be elected as provided by law.

(Emphasis added.)

The Legislature's authority to "prescribe[ ] by law" and to "provide[ ] by law" for the conduct of elections to the State Board of Education and the controlling boards of Michigan's three constitutional universities is limited by Const 1963, art 2, � 5, which clearly specifies November as the time for these elections.

In a 1969 opinion, the Attorney General concluded that:

Members of the state board of education and the governing boards of the major institutions are state officers. Presently, those officers are required to be elected at the general November election in the even-numbered years. Section 5, Article II, Michigan Constitution. Accordingly any change therein could only result from an amendment to the Constitution adopted or ratified as provided in Article XII.

Letter Opinion to Mr. Leroy Augenstein, State Board of Education, dated October 9, 1969 (emphasis added).

Const 1963, art 2, � 5, also mandates that county office elections be held at the November general election. Where the Legislature has attempted to change the times for county elections, prior opinions of this office have concluded that the elections can only be held at the November general election. See, OAG, 1963-1964, No 4201, p 206, 210 (October 17, 1963) (where Const 1963, art 2, � 5, required that the first election of county officers be held at the 1964 general election, proposed legislation to hold such election at the 1966 general election violated the Michigan Constitution); OAG, 1971-1972, No 4725, p 7, 13 (March 10, 1971) (vacancies in office of circuit judge must be filled at even year general election, not at odd year general election); OAG, 1969-1970, No 4693, p 117 (March 3, 1970) (amendments to the state constitution with respect to the date of election of state judges would be required in order to authorize the adoption of legislation to provide for their election in November of the odd-numbered years).

It is my opinion, therefore, that the Legislature may not, by statute, require that elections for membership on the State Board of Education and the controlling boards of the University of Michigan, Michigan State University, and Wayne State University be held at the same time as K-12 school board elections. Changes in the timing of elections for the State Board of Education and the governing boards of Michigan's three constitutional universities may be accomplished by amending Michigan's Constitution.




JENNIFER M. GRANHOLM
Attorney General


1 Const 1850, art 6, � 20.

2 Const 1850, art 11, � 1.

3 Const 1908, art 7, �� 2 and 9.