A sitting district court judge is eligible to run for a district court judgeship in a different division of the same court provided that he or she satisfies the residency and other requirements for election to that office.

A sitting district court judge, in order to become a candidate for a judgeship in another division of the same district court, must file the appropriate nominating petitions under section 467b of the Michigan Election Law.

Opinion No. 7091

October 16, 2001

Honorable Bill Bullard, Jr.

State Senator

The Capitol

Lansing, MI 

You have asked two questions concerning the eligibility of a district court judge to run for another district judgeship seat and the filing requirements that would govern such a candidacy. 

Your first question asks whether a sitting district court judge, before the expiration of the judge's term and while maintaining office, may run for a district judgeship in a different division of the same court. 

Information supplied by your office indicates that a sitting judge in the 52 District Court, Division 1, who is a resident of White Lake Township in Oakland County, wishes to run in the November 2002 election for a district judgeship on the 52 District Court, Division 2.  Because the judge was elected in November 1998 for a six-year term that commenced on January 1, 1999, his current term does not expire until noon on January 1, 2005.  The term of office for the open seat on the 52 District Court, Division 2, to be elected in November 2002, will be from January 1, 2003, until January 1, 2009.  See MCL 168.467i. 

Public Acts 447-449 of 2000 reorganized the 52 District Court.  Effective January 1, 2003, White Lake Township will be transferred from the first election division of the 52 District Court to the second election division.  2000 PA 448, section 8123(10), MCL 600.8123(10).  As part of the court reorganization, Act 448 authorizes the Oakland County Board of Commissioners to approve an additional judgeship for the first election division.  Section 8123(10)(a).  Following such an approval by the Oakland County Board of Commissioners, the Legislature has provided that a judgeship from the first election division be transferred to the second election division of the 52 District Court, effective January 1, 2003.  The judgeship to be transferred is that "filled by the district judge of the first division whose term expires January 1, 2005."  Id.  Thus, assuming such a transfer occurs, the judicial seat in the first election division with a term expiring on January 1, 2005, will be transferred to the second election division of the 52 District Court.

Public elections are governed by the Michigan Election Law, 1954 PA 116, MCL 168.1 et seq.  Section 467 sets forth the eligibility requirements for district court judges, and provides in pertinent part:  “[a] person shall not be eligible for the office of judge of the district court unless the person is a registered and qualified elector of the judicial district and election division in which election is sought by the filing deadline or the date the person files the affidavit of candidacy, is licensed to practice law in this state, and, at the time of election or appointment, is less than 70 years of age.”  Thus, the Election Law imposes a residency requirement, a licensing requirement, and an age requirement.  Your first question asks whether a district court judge sitting on the 52 District Court, Division 1, who is a resident of White Lake Township, is eligible to run for a seat on the 52 District Court, Division 2, in November 2002.

Concerning the residency requirement set forth in section 467 of the Election Law, 2000 PA 448 provides the answer.  Subsection 10(b) of that act states that, beginning January 1, 2003, White Lake Township will be a part of the 52 District, Division 2.  Section 1 of Act 448 further clarifies that “[t]he changes in the composition of first and second election divisions of the fifty-second district court as provided in this amendatory act shall be effective for election purposes on March 2, 2002, and for judicial purposes on January 1, 2003.”  (Emphasis added.)  Additionally, Act 448 states that in 2002 White Lake Township electors will no longer be eligible to vote, be candidates, or sign nominating petitions for the 52 District Court, Division 1, judicial elections.  The Legislature has clearly stated that the effective date for election purposes for the reorganization of the 52 District Court is March 2, 2002.  Thus, if the sitting 52-1 District Court Judge is still a resident of White Lake Township on March 2, 2002, he will then be a resident of the 52-2 Judicial District.  If he maintains his residency, the judge would meet the residency requirements to run for a seat on the 52 District Court, Division 2, in the November 2002 election. 

The second eligibility requirement for a district court judgeship, as set forth in section 467 of the Election Law, is the licensing requirement.  For purposes of your question, it is assumed that the sitting judge will continue to possess a license to practice law in Michigan and, therefore, satisfy this licensing requirement. 

The third eligibility requirement for a district court judgeship, as set forth in section 467 of the Election Law, is the requirement that the candidate be less than 70 years of age at the time of election or appointment to the district court.  This statutory requirement parallels the constitutional requirement regarding the age of judicial officers, which states in pertinent part, “[n]o person shall be elected or appointed to judicial office after reaching the age of 70 years.”  Const 1963, art 6, § 19.  While your letter states that the sitting judge would be barred by his age from seeking reelection at the end of his current term on the 52 District Court, Division 1, you have not indicated how old he will be on election day in November 2002.  If the judge is then less than 70 years of age, he will satisfy the statutory and constitutional age provisions governing judicial officers.  

Finally, implicit in your first inquiry is the question whether a sitting judge must vacate a current judicial office in order to run for another judicial seat.  Your office has advised that if the sitting judge decides to run for the open seat on the 52 District Court, Division 2, it is his intention to retain his current judgeship while seeking election to the 52-2 District Court. 

Const 1963, art 6, § 21, provides that “[a]ny justice or judge of a court of record shall be ineligible to be nominated for or elected to an elective office other than a judicial office during the period of his service and for one year thereafter.”  The purpose of this provision is to “divorc[e] the judiciary from the political arena.”  Convention Comment, Const 1963, art 6, § 21.  But by its express terms, this provision does not prohibit a judge from running for or being elected to another judicial office during his or her existing term.  Similarly, Code of Judicial Conduct, Canon 7, specifically requires a judge to “resign the judicial office before becoming a candidate either in a party primary or in a general election for non-judicial office.”  Canon 7(A)(3).  (Emphasis added.)  Here again, there is no requirement imposed on a judge to resign a current judgeship while running for another judicial office.  There are no statutory or constitutional provisions that would require a sitting judge to vacate a currently held judgeship in order to run for another judicial seat or that would otherwise prohibit such a candidacy. 

It is my opinion, therefore, in answer to your first question, that a sitting district court judge is eligible to run for a district court judgeship in a different division of the same court provided that he or she satisfies the residency and other requirements for election to that office.

Your second question asks whether the sitting judge, in order to become a candidate for a judgeship in another division of the same district court, must file nominating petitions for that seat. 

The Election Law provides that in order to become a candidate for district court judge, a person must file nominating petitions containing, inter alia, a minimum number of signatures of qualified and registered electors residing in the judicial district or election division of the office sought.  Section 467b(1).  This section also provides, however, that an elected "incumbent district court judge may also become a candidate by the filing of an affidavit in lieu of petitions according to section 467c.”  Id.  In relevant part, section 467c states:

(1)  An incumbent district court judge may become a candidate in the primary election for the office of which he or she is an incumbent by filing with the secretary of state an affidavit of candidacy in lieu of nominating petitions not less than 134 days prior to the date of the primary election. . . .  The affidavit of candidacy shall contain statements that the affiant is an incumbent district court judge for the district or election division in which election is sought, that he or she is domiciled within the district or election division, and that he or she will not attain the age of 70 by the date of election, and a declaration that the affiant is a candidate for election to the office of district court judge.  [MCL 168.467c(1); emphasis added.]

In order to file as an incumbent and, thus, avoid the requirement for filing nominating petitions, a judicial candidate must meet the requirements set forth in section 467c.  Under section 467c, in order to file as an incumbent candidate, the judge must be an incumbent of the specific judicial office to which he or she seeks election.  By its inclusion of “election division” in its declaration requirement, section 467c makes clear that it is not just the judicial district that controls the question whether a judge is an incumbent of the judicial office sought.  Rather, when a district is subdivided into election divisions, the language of section 467c referencing “election divisions” indicates that it is the particular election division that designates a judicial office and grants incumbency status to the holder of that office.

The 52 District Court is divided into two election divisions:  Division 1 and Division 2.  Therefore, the judicial offices on the 52 District Court, Division 1, and 52 District Court, Division 2, are not the same.  Because the subject of your inquiry is a sitting judge of the 52 District Court, Division 1, he is unable to declare by affidavit, as required by section 467c of the Election Law, that he is an incumbent district court judge of the 52 District Court, Division 2. 

The above will remain true even if the Oakland County Board of Commissioners creates an additional judgeship on 52 District Court, Division 1, thereby causing the transfer of the judgeship expiring on January 1, 2005, to the 52 District Court, Division 2 (i.e., the judgeship held by the judge on whose behalf this inquiry was made).  Section 8123(10)(a).  In that event, this statute makes clear that the transfer of the judgeship would be effective January 1, 2003.  Id.  Thus, at the time he files for the open seat on the 52 District Court, Division 2, in 2002, the judge in question would not have held, or be an incumbent of, that judicial seat.

Under the Election Law, each seat held by an individual judge is a separate and distinct judicial office.  Section 467b(2), which governs the filing of nominating petitions for district court judges, requires that candidates designate the office for which they seek election, and provides:

(2)  Nominating petitions filed under this section are valid only if they clearly indicate for which of the following offices the candidate is filing . . .:

         (a)  An unspecified existing judgeship for which the incumbent judge is seeking election.

         (b)  An unspecified existing judgeship for which the incumbent judge is not seeking election.

         (c)  A new judgeship. 

It is significant that the Legislature differentiates between the offices of the court.  Candidates do not run as a group against all the open seats.  Instead, each candidate must designate and compete for a particular seat.  Thus, the Legislature has evidenced its intent that each judicial seat on a district court be treated as legally distinct from the other judicial seats on that same court.

Moreover, despite the requirement that district court candidates identify the specific seat sought when filing nominating petitions, the Legislature did not require such specificity of incumbent judges filing affidavits of candidacy.  On the contrary, section 467c(1) of the Election Law specifically limits the ability to file a candidacy as an incumbent where a judge is seeking election to “the office of which he or she is an incumbent.”  If the Legislature had intended district court incumbent judges to be eligible to file as incumbents for any seat of the court, section 467c would also require the judge to designate, as required in section 467b, exactly what office he or she sought to be elected to.  In the absence of such a requirement to specify the judicial office sought, it is reasonable to conclude that an incumbent judge must file nominating petitions when seeking election to any judicial office other than the office he or she presently holds.

It is my opinion, therefore, in answer to your second question, that a sitting district court judge, in order to become a candidate for a judgeship in another division of the same district court, must file the appropriate nominating petitions under section 467b of the Michigan Election Law.

JENNIFER M.GRANHOLM
Attorney General