STATE OF MICHIGAN

A member of a board of an intermediate school district who was elected by a body composed of one member of the board of each constituent school district pursuant to section 614 of the Revised School Code, MCL 380.614, is subject to recall pursuant to section 1105 of the Code, MCL 380.1105.

In order to recall an intermediate school district board member, the petitions for recall must be signed by registered and qualified electors equal to not less than 25% of the number of votes cast for candidates for the office of governor at the last preceding general election in the constituent school districts that comprise the intermediate school district.

If a member of the board of an intermediate school district who has been elected by school board members of the constituent districts is recalled, the vacancy is filled by the remaining members of the intermediate school board. If the vacancy is not filled within 30 days after it occurs, the vacancy shall be filled by the State Board of Education.

Opinion No. 7153

March 30, 2004

Honorable Mike Bishop
State Senator
The Capitol
Lansing, MI 48909-7536

You have asked several questions relating to the election of intermediate school district board members. Your first question asks whether a member of a board of an intermediate school district who has been elected by a body composed of one member of the board of each constituent school district pursuant to section 614 of the Revised School Code is subject to recall.¹

Section 601 of the Revised School Code (Code), MCL 380.601, provides:

An intermediate school district shall be governed by this part [Part 7] and by those provisions of articles 2, 3, and 4 which relate specifically to intermediate school districts, intermediate school boards, and intermediate superintendents.

Pursuant to the Code, an individual can be elected to an intermediate school board in one of two ways. First, under section 614, MCL 380.614, intermediate school board members may be elected by a body composed of one member of the school board of each constituent district. A candidate for election to the intermediate school board under section 614 must either be nominated by petitions that are signed by a specified number of school electors of the combined constituent school districts or pay a nonrefundable filing fee. MCL 380.614(4) and (6). Second, if the electors of the constituent districts comprising the intermediate school district choose by popular election to do so, intermediate school board members may be elected by the electors of the constituent districts that make up the intermediate school district. MCL 380.615-MCL 380.617.

The recall of school board members, including intermediate school board members, is addressed in section 1105 of the Code, MCL 380.1105, a provision of article 2:

Each member of a board of a school district, a local act school district, or an intermediate school district is subject to recall by the school electors of the respective district in the manner prescribed in sections 951 to 976 of Act No. 116 of the Public Acts of 1954, as amended, being sections 168.951 to 168.976 of the Michigan Compiled Laws.

Thus, although the Legislature has created two different mechanisms for electing intermediate school board members in MCL 380.614-MCL 380.617, the Legislature has made no such distinction when providing for their recall.

Turning to your question, it is a well established rule of statutory construction that the words of a statute are to be applied as plainly expressed. As recently noted by the Michigan Supreme Court, "'[o]ur most fundamental principle of statutory construction [is] that there is no room for judicial interpretation when the Legislature's intent can be ascertained from the statute's plain and unambiguous language.'" Jones v Dep't of Corrections, 468 Mich 646, 657; 664 NW2d 717 (2003), citing People v Hawkins, 468 Mich 488; 668 NW2d 602 (2003). When construing a statute, provisions cannot be added that the Legislature did not include. Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 421; 565 NW2d 844 (1997).

Section 1105 plainly and unambiguously provides that "[e]ach member of a board of . . . an intermediate school district is subject to recall by the school electors of the respective district" without reference to how the board member was elected. The term "school elector" is defined in the Code as a person who is a resident of the intermediate school district on or before the 30^th day before the next ensuing annual or special school election and qualifies as an elector under the Michigan Election Law. See MCL 380.6(2).

Consideration of your question would not be complete without examination of section 951 of the Michigan Election Law, MCL 168.951, which provides in part that "[e]very elective officer in the state, except a judicial officer, is subject to recall." This section follows the command of Const 1963, art 2, � 8, which states in part: "Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record . . . ." It is acknowledged that the methods for selecting intermediate school district board members set forth in MCL 380.614 to MCL 380.617 are either by direct popular election or election by representatives of the constituent school districts and that the courts have characterized the method of election by school district representatives as more "appointive" in nature than "elective." See Sailors v Kent Bd of Ed, 387 US 105, 109; 87 S Ct 1549; 18 L Ed 2d 650 (1967); Bd of Ed v DeVries, 34 Mich App 542, 544; 192 NW2d 58(1971).² However, MCL 380.1105 makes clear that "each" member of an intermediate school district board is subject to recall "in the manner" prescribed in the Michigan Election Law. The Legislature's choice of these words is significant. The common and approved usage of the word "each"³ conveys a meaning of "every one of two or more considered separately" and the words "in the manner" convey the intent that only "the manner" of election shall be as described in the Michigan Election Law, and not more substantive matters such as the officers who are subject to recall. See Viculin v Dep't of Civil Service, 386 Mich 375, 397; 192 NW2d 449 (1971). Thus, the Legislature's reference to the Michigan Election Law in MCL 380.1105 provides additional support for the conclusion reached in this opinion.

It is my opinion, therefore, in answer to your first question, that a member of a board of an intermediate school district who was elected by a body composed of one member of the board of each constituent school district pursuant to section 614 of the Revised School Code, MCL 380.614, is subject to recall pursuant to section 1105 of the Code, MCL 380.1105.

Your second question asks about the number of signatures that must be submitted in order to trigger a recall in compliance with section 955 of the Michigan Election Law, MCL 168.955.

Section 1105 of the Revised School Code provides for the recall of intermediate school district board members in the manner prescribed in sections 951 to 976 of 1954 PA 116, as amended, MCL 168.951-MCL 168.976. These sections are included in the chapter of the Michigan Election Law, MCL 168.1 et seq, related to recall.

The initial step in the process to recall a board member involves circulating petitions that describe the reasons for the recall. MCL 168.952. Section 955 of the Michigan Election Law prescribes the number of signatures that must be collected. Circulators must accumulate signatures from "registered and qualified electors equal to not less than 25% of the number of votes cast for candidates for the office of governor at the last preceding general election in the electoral district of the officer sought to be recalled." MCL 168.955. In the case of an intermediate school district board member, the "electoral district of the officer sought to be recalled" is the territory made up of the constituent districts that comprise the intermediate school district. MCL 380.615. The language of section 955 is clear and unambiguous and must, therefore, be interpreted according to its plain meaning. Jones, supra, 468 Mich at 657.

It is my opinion, therefore, in answer to your second question, that in order to recall an intermediate school district board member, the petitions for recall must be signed by registered and qualified electors equal to not less than 25% of the number of votes cast for candidates for the office of governor at the last preceding general election in the constituent school districts that comprise the intermediate school district.

In your third question you ask what mechanism is used to fill a vacancy on an intermediate school district board created in the event of a successful recall of an intermediate school district board member.

The Revised School Code directly addresses your question. Section 614 of the Code describes the mechanism for filling a vacancy on the intermediate school district board when the board has been elected by school board members of the intermediate school district's constituent school districts:

A vacancy shall be filled by the remaining members of the intermediate school board until the next biennial election at which time the vacancy shall be filled for the balance of the unexpired term. Notice of the vacancy shall be filed with the state board within 5 days after the vacancy occurs. If the vacancy is not filled within 30 days after it occurs, the vacancy shall be filled by the state board. [MCL 380.614(3).]

It is my opinion, therefore, in answer to your third question, that if a member of the board of an intermediate school district who has been elected by school board members of the constituent districts is recalled, the vacancy is filled by the remaining members of the intermediate school board. If the vacancy is not filled within 30 days after it occurs, the vacancy shall be filled by the State Board of Education.

MIKE COX
Attorney General

¹Recent amendments to the Revised School Code, MCL 380.1 et seq, and the Michigan Election Law, MCL 168.1 et seq, substantially revise the laws applicable to school elections. 2003 PA 299, effective January 1, 2005, repeals the portion of the Revised School Code concerning elections, MCL 380.1001-MCL 380.1106, including the specific provision discussed in this opinion concerning the recall of intermediate school district board members, MCL 380.1105. 2003 PA 302, effective March 30, 2004 (and September 1, 2004, regarding the dates on which certain elections are to be held), adds a chapter XIV to the Michigan Election Law in which, in section 4(b), "[s]chool board member" is defined in a way that would also impact the analysis and conclusion of this opinion. Thus, the conclusions reached in this opinion apply only to the Revised School Code in force before the effective dates of 2003 PA 299 and 2003 PA 302.

²Cases interpreting Const 1963, art 2, � 8, and the "one person one vote" principle of election law based on equal protection guarantees are not applicable to your question. Your question is one of straightforward statutory construction. In that exercise, I am guided by the clear direction of the Michigan Supreme Court to avoid "'an invitation to . . . lawmaking'" and instead focus "on what the Legislature said through the text of the statute," and not on what some might argue "the Legislature must really have meant despite the language it used." People v McIntire, 461 Mich 147, 156, n 2, 157; 599 NW2d 102 (1999). (Emphasis in original.)

³MCL 8.3a states the rule that words used in a statute shall be construed and understood according to the "common and approved usage of the language." For a dictionary definition of the word "each," see Webster's New World Dictionary, Third College Edition (1988).