Kerby v. Judges' Retirement Bd. of Michigan

• Decision Date: 14 March 1988
• Docket Number: No. 101641,101641
• Citation: 166 Mich.App. 302,420 N.W.2d 195
• Parties: Yale Leland KERBY, Plaintiff-Appellant, v. JUDGES' RETIREMENT BOARD OF MICHIGAN, Defendant-Appellee. 166 Mich.App. 302, 420 N.W.2d 195
• Court: Court of Appeal of Michigan — District of US

Page 195

420 N.W.2d 195

Yale Leland KERBY, Plaintiff-Appellant, v. JUDGES' RETIREMENT BOARD OF MICHIGAN, Defendant-Appellee.

No. 101641.

166 Mich.App. 302, 420 N.W.2d 195

Court of Appeals of Michigan.

Submitted Jan. 5, 1988.

Decided Feb. 2, 1988.

Released for Publication March 14, 1988.

[166 MICHAPP 302] Yale Leland Kerby, in pro. per.

Before KELLY, P.J., and BEASLEY and HOLBROOK, JJ.

PER CURIAM.

Plaintiff has filed an application for leave to appeal from the denial of his motion for summary disposition by the Ingham Circuit Court. Because we are of the opinion that summary disposition was appropriate, given the lack of factual dispute--albeit summary disposition should have been granted for defendant, MCR 2.116(I)(2)--and because we believe that the issue presented is of some importance to the proper administration of the judges' retirement system, we have elected to resolve this matter through issuance of this per curiam opinion. Manuel v. Dep't of Corrections, 140 Mich.App. 356, 364 N.W.2d 334 (1985), lv. den. 422 Mich. 948 (1985); People v. Nicolaides, 148 Mich.App. 100, 383 N.W.2d 620 (1985); Gerber Products Co. v. Anderson, Clayton & Co., 76 Mich.App. 410, 256 N.W.2d 754 (1977).

Plaintiff served as an elected district judge for ten years. His judicial career generated less than twelve full years of "credited service" for judicial retirement system purposes.

Plaintiff applied to defendant board, seeking to purchase credit for two years of honorable, active service in the United States armed services. The board refused, pointing to plaintiff's lack of the statutory prerequisite of twelve years of credited service. This action for mandamus ensued.

The issue presented is well analyzed and discussed in OAG, 1985-1986, No 6304, pp 111-114 (July 2, 1985), which we hereby incorporate and adjust as our own analysis:

You have requested my opinion whether a district court judge who is a member of the Judges' Retirement System must accumulate twelve years of service credit in order to purchase military service credit.

The Judges' Retirement Act, M.C.L. Sec. 38.801 et seq.; M.S.A. Sec. 27.125(1) et seq., provides for a retirement system for elected or appointed members of the Supreme Court, the Court of Appeals, circuit courts, district courts, the Recorder's Court for the City of Detroit, the Common Pleas Court of the City of Detroit, probate courts for judges elected or [166 MICHAPP 303] appointed and beginning service after December 31, 1982, the State Court Administrator, and certain elected or appointed state officers.

M.C.L. Sec. 38.813b; M.S.A. Sec. 17.125(13.2), as last amended by 1978 P.A. 453, in pertinent part, provides:

"(1) Notwithstanding any provision to the contrary of Act No. 135 of the Public Acts of 1945, as amended, being sections 38.601 to 38.668b of the Michigan Compiled Laws, a member may elect to have credited service include service rendered previously as a municipal judge, as a justice of the peace in a governmental unit, as a judge for the police court of the city of Grand Rapids or recorder's court for the city of Cadillac, as a probate judge, as a referee of the traffic division of the recorder's court of the city of Detroit. A member shall not include in credited service more than 3 years of service rendered as a referee of the traffic division of the recorder's court of the city of Detroit, or more than 2 years of time served honorably, on active duty, as a member of the armed services of the United States.

"(2) A judge who elects to use service credit pursuant to subsection (1) may use the service credits earned as a municipal judge, as a justice of the peace, a judge for the police court of the city of Grand Rapids or recorder's court for the city of Cadillac, as a probate judge, or time served honorably, on active duty, as a member of the armed services of the United States, for the purposes of determining retirement or death benefits under this system to the same extent that the service would have been credited had it been rendered in a position covered under this act under the following conditions:

"(a) If the member who is a district judge pays into the employees savings fund an amount computed by all of the following steps:

"(i) Multiplying the contribution rate by 2/3 of the base salary of a circuit judge for each year and month of service credited before 1969.

"(ii) Multiplying the contribution rate by the base salary of a district judge for each year and [166 MICHAPP 304] month of service from January 1, 1969 and thereafter.

"(iii) Adding the regular interest the members' contributions would have earned had they been on deposit during each year and month of service claimed as a credit.

"(b) If the member who is a supreme court justice, an appeals court judge, a circuit judge, recorder's court judge, or a common pleas court judge pays into the annuity savings fund an amount equal to the amount the contributions would have been had the member been a member serving as a circuit judge and adding the regular interest the contributions would have earned had they been on deposit during each year and month of service claimed. A member claiming service for time served honorably, on active duty as a member of the armed services of the United States may use the service credit for purposes of determining retirement or death benefits under this system to the same extent that the service would have been credited had it been rendered in a position covered under this act if the member pays into the employees savings fund an amount equal to 5% of the member's salary paid by the state for the year in which payment is made multiplied by the years and months of service that the member elects to purchase up to the maximum of 2 years. Armed service shall not be credited until the member has accumulated 12 years of credited service." (Emphasis added.)

The underscored language was added by 1978 P.A. 453.

A cursory reading of M.C.L. Sec. 38.813b; M.S.A. Sec. 27.175(13.2), would suggest that a district court judge member is not subject to the 12 years of credited service limitation contained in the last sentence of subsection (2)(b) in light of the fact that district court judge members are not listed in the enumeration of judge members contained in the first sentence of subsection (2)(b). Because the reference is simply to "the member," and because [166 MICHAPP 305] there is no listing of judge members in the last sentence of this subsection, however, it is not entirely clear whether the Legislature intended the limitation to apply to all judge members except district court judge members or to all judge members of the retirement system.

Because the statute is susceptible to different interpretations, it is open to construction. City of Lansing v Township of Lansing, 356 Mich 641, 649; 97 NW2d 804 (1959). The legislative intent may be determined through resort to the legislative history of amendatory 1978 P.A. 453 and to the proceedings attendant to its passage by the Legislature as disclosed by the legislative journals. Liquor Control Commission v Fraternal Order of Eagles, Aerie No 629, 286 Mich 32, 43; 281 NW 427 (1938).

Introduced as HB 4793, it purported to amend, in part, M.C.L. Sec. 38.813b; M.S.A. Sec. 27.125(13.2), to permit district judge members only to receive service credit for up to five years of military service without limitation as to number of minimum years of credited service accumulated in order to qualify for the military service credit.

The House Committee on Senior Citizens and Retirement reported HB 4793 favorably with recommendation that an amendment to the bill be adopted limiting the military service credit to be received to two years. 1 HJ 419 (1978). The amendment proposed by the Committee on Senior Citizens and Retirement was not adopted. 1 HJ 715 (1978). HB 4793 passed the House without further pertinent change. 1 HJ 730 (1978).

On second reading, the Senate adopted two amendments to HB 4793:

"1. Amend page 4, line 11, after 'THAN' by striking out '5' and insert '2.'

"2. Amend page 5, line 14, after 'claimed' by inserting 'ARMED SERVICE SHALL NOT BE CREDITED UNTIL THE MEMBER HAS ACCUMULATED 12 YEARS OF CREDITED SERVICE.' " 2 SJ 2107-2108 (1978).

While Amendment No. 2 was placed in subsection (2)(b) rather than in subsection (2)(a) of M.C.L. Sec. 38.813b; M.S.A. Sec. 27.125(13.2), nevertheless, there can [166 MICHAPP 306] be no doubt that the requirement of twelve years of credited service in order to secure military service was intended to apply to district court judge members of the system.

As thus approved by the Senate on second reading, district court judge members could secure not more than two years of military service credit, but such service credit could not be obtained by a district court judge member until twelve years of credited service were previously accumulated by the district court judge member. It should be emphasized that at this juncture of its legislative history, HB 4793 provided military service credits only for district court judge members and for no other member of the Judges' Retirement System.

HB 4793 was further amended in pertinent part by the Senate on third reading. The following amendment was adopted:

"(4) Amend page 5, line 14, after 'claimed' by inserting 'A MEMBER CLAIMING SERVICE FOR TIME SERVED HONORABLY, ON ACTIVE DUTY, AS A MEMBER OF THE ARMED SERVICES OF THE UNITED STATES MAY USE THE SERVICE CREDIT FOR PURPOSES OF DETERMINING...