COURTS, DISTRICT:
ELECTIONS:
JUDGES:
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Eligibility of sitting district court judge to run for
different district court judgeship
Necessity of filing nominating petitions to register
candidacy for district court judgeship
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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