Kelley v. Riley

• Decision Date: 11 February 1983
• Docket Number: Docket No. 70876
• Citation: 332 N.W.2d 353,417 Mich. 119
• Parties: Frank J. KELLEY, Attorney General of the State of Michigan, Plaintiff, v. Dorothy Comstock RILEY, Defendant. 417 Mich. 119, 332 N.W.2d 353
• Court: Michigan Supreme Court

Page 353

332 N.W.2d 353

Frank J. KELLEY, Attorney General of the State of Michigan Plaintiff, v. Dorothy Comstock RILEY, Defendant.

Docket No. 70876.

417 Mich. 119, 332 N.W.2d 353

Supreme Court of Michigan.

Feb. 11, 1983.

Order Vacating Dismissal and Directing

Ouster Feb. 15, 1983.

Opinion of Justice Levin Feb. 16, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Thomas L. Casey, Michael J. Moquin, Donald E. Erickson, Asst. Attys. Gen., Lansing, for plaintiff.

Buesser, Buesser, Snyder & Blank by Frederick G. Buesser, III, Bloomfield Hills, for defendant.

James J. White, Ann Arbor, for William G. Milliken.

WILLIAMS, Chief Justice.

This is a case of first impression. It concerns the interpretation of art. 6, Sec. 23 of the 1963 Michigan Constitution, as amended. It also requires consideration of art. 6, Sec. 2. The issue is whether a Governor can appoint to fill a Supreme Court justice vacancy not only for a part of the term in which the vacancy occurs, but also for a part of the next succeeding term. Specifically, the issue is whether "the remainder of the unexpired term" as designated in Sec. 23 refers to the term in which the "vacancy occurs" or the term in which the "election" takes place, when the "vacancy" and "election" occur in different terms. The pertinent language of art. 6, Sec. 23 is the second sentence which reads as follows:

"The person appointed by the governor shall hold office until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs, at which election a successor shall We find that, while there may be a slight tilt in the language favoring the interpretation that the appointment is restricted to the term in which the vacancy occurs, the language may arguably be interpreted either to limit the appointed term to the eight years in which the vacancy occurs, or to extend the appointed term into the next eight-year term. However, we are convinced that the injustice that can arise from the extended appointment term, combined with the historical preference for an elected judiciary and non-holdover Supreme Court terms, indicates that the more limited appointment was the intent of the people. We would therefore in the instant case find that the appointed term should have been until noon January 1, 1983. Additionally, since the remainder of the purported appointment is void, the present Governor is authorized to make an appointment as of noon January 1, 1983.

be elected for the remainder of the unexpired term."

I. FACTS

On November 2, 1982, the Honorable Blair Moody, Jr., an incumbent Associate Justice of the Michigan Supreme Court, was re-elected to a new eight-year term of office on this Court. His then current term of office was due to expire 12 noon on January 1, 1983. Prior to the taking of the constitutionally required oath of office for the new term, Blair Moody, Jr. died on November 26, 1982.

On December 9, 1982, the Governor appointed defendant Court of Appeals Judge Dorothy Comstock Riley to fill the vacancy. The appointment read:

"To the Secretary of State: Let a commission bearing date December 9, 1982 issue to Dorothy Comstock Riley * * * as Justice of the Michigan Supreme Court, to serve until 12:00 noon of the first day of January, 1985 (to fill the vacancy created by the death of the Honorable Blair Moody, Jr.)".

Defendant filed the oath of office on the same day and assumed office.

On January 3, 1983, the Attorney General filed this action for quo warranto in the Court of Appeals. Bypass was granted after the issue was argued before this Court on January 8, 1983, pursuant to GCR 1963, 852.

II. CONSTITUTIONAL AND STATUTORY PROVISIONS

Several constitutional and statutory provisions are involved in the analysis of this situation. The term of office for a Supreme Court justice is established in Const.1963, art. 6, Sec. 2, which provides:

"The supreme court shall consist of seven justices elected at non-partisan elections as provided by law. The term of office shall be eight years and not more than two terms of office shall expire at the same time." (Emphasis added.)

The prior Constitution, ratified in 1908, required the Legislature to set the term of office. Pursuant to this authority, the Legislature in 1954 provided:

"The term of office of justice of the supreme court shall be 8 years, beginning on the first day of January next following the election and shall continue until a successor is elected and qualified." (Emphasis added.) M.C.L. Sec. 168.399; M.S.A. Sec. 6.1399 (1954 P.A. 116).

The 1963 Constitution before amendment in 1968 also included a mechanism to be used to fill vacancies which may arise for a variety of reasons, for example death or removal. As ratified in 1963, the Constitution provided in art. 6, Sec. 23:

"A vacancy in the elective office of a judge of any court of record shall be filled at a general or special election as provided by law. The supreme court may authorize persons who have served as judges and who have retired, to perform judicial duties for the limited period of time from the occurrence of the vacancy until the successor is elected and qualified. Such persons shall be ineligible for election to fill the vacancy."

This was a marked change from the previous Constitution which granted the Governor the power to make vacancy appointments.

The convention comment explained:

"The change is made in order to maintain consistency in the idea that this state should have an elected judiciary. The present system of appointment by the governor to fill vacancies, bestowing on the appointee the incumbency designation, has had an overwhelming tendency to insure the election of the appointee. This has created in effect an appointive judiciary."

However, in 1968, Sec. 23 was amended to reinstate the Governor's power to fill vacancies. Article 6, Sec. 23, now reads:

"A vacancy shall occur in the office of judge of any court of record or in the district court by death, removal, resignation or vacating of the office, and such vacancy shall be filled by appointment by the governor. The person appointed by the governor shall hold office until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs, at which election a successor shall be elected for the remainder of the unexpired term. Whenever a new office of judge in a court of record, or the district court, is created by law, it shall be filled by election as provided by law. The supreme court may authorize persons who have been elected and served as judges to perform judicial duties for limited periods or specific assignments."

The 1968 amendment was also reflected in the legislative provision which implemented the Constitution. The 1970 act reads:

"Whenever a vacancy shall occur in the office of justice of the supreme court, the governor shall appoint a successor to fill the vacancy. The person appointed by the governor shall be considered an incumbent for purposes of this act and shall hold office until 12 noon of January 1 following the next general election at which a successor is elected and qualified. At the next general November election held at least 90 days after such vacancy shall occur, a person, nominated under section 392, shall be elected to fill such office, and the person so elected shall hold such office for the remainder of the unexpired term. A candidate receiving the highest number of votes for said office and who has subscribed to the oath as provided in section 1 of article 11 of the state constitution shall be deemed to be elected and qualified, even though a vacancy occurs prior to the time he shall have entered upon the duties of his office." M.C.L. Sec. 168.404; M.S.A. Sec. 6.1404.

In Schwartz v. Secretary of State, 393 Mich. 42, 47, 222 N.W.2d 517 (1974), this Court made the following observation on the amendment:

"[T]he people intended to rectify the mistake of the 1963 Constitution in its original form of having removed the historic constitutional authority of the Governor to appoint persons to fill judicial vacancies. This Court would blink the facts of life if it did not take judicial notice of the fact that this omission embarrassed the operation of government by leaving important judicial offices without their own regular incumbent for long periods of time."

Defendant also points out that M.C.L. Sec. 168.399; M.S.A. Sec. 6.1399 reads:

"The term of office of a justice of the supreme Court shall be 8 years, beginning on the first day of January next following the election and shall continue until a successor is elected and qualified."

III. PRIOR CASE LAW

As a threshold matter, this is a case of first impression. When closely examined, prior Michigan case law fails to address the present situation.

At first blush, People ex rel. Andrews v. Lord, 9 Mich. 227 (1861), would seem to resolve the case before us. In that case the incumbent probate judge was re-elected but died before the commencement of the new term. The Governor made one appointment for the unexpired term; a second appointment was made in January, when The 1850 Constitution provided, first, that a probate judge's term of office continued for a period of "four years, and until his successor is elected and qualified " (emphasis added), Const.1850, art. 6, Sec. 13, and, secondly, that a vacancy in the office of probate judge "shall be filled by appointment of the governor, which shall continue until a successor is elected and qualified". Const.1850, art. 6, Sec. 14.

the new probate judge term would have commenced.

Relying on these provisions, the Court unanimously invalidated the January 1 appointment, writing:

"These provisions are so free from ambiguity that there is no room left for construction. A person appointed to fill a vacancy can only be superseded by one who is duly elected, and holds in the same manner as if originally the incumbent until thus superseded. ...