Schwartz v. Secretary of State

• Decision Date: 30 October 1974
• Docket Number: O,No. 19,19
• Parties: Ralph C. SCHWARTZ, Plaintiff, v. SECRETARY OF STATE of the State of Michigan, and Oakland County Clerk, Defendants, and Municipal Court Judges, Intervening Defendants. ct. Term 1974. 393 Mich. 42, 222 N.W.2d 517
• Court: Michigan Supreme Court

Page 517

222 N.W.2d 517

Ralph C. SCHWARTZ, Plaintiff, v. SECRETARY OF STATE of the State of Michigan, and Oakland County Clerk, Defendants and Municipal Court Judges, Intervening Defendants.

No. 19, Oct. Term 1974.

393 Mich. 42, 222 N.W.2d 517

Supreme Court of Michigan.

Oct. 30, 1974.

Ralph C. Schwartz, in pro per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Varda N. Fink, Asst. Atty. Gen., State Affairs, Div., Lansing, for defendant Richard H. Austin.

Campbell, Lee, Kurzman & Leitman by Bruce T. Leitman, Bloomfield Hills, for intervening defendants.

Before the Entire Bench.

WILLIAMS, Justice.

This case involves a petition for a discretionary writ of mandamus. It presents a double challenge of awesome proportion. First, it is a case of first impression requiring construction of the constitution without significant precedential guidance. Second, a legislative deadline requires a final definitive judicial decision in this Court not less than 90 days from the original filing of the case in the Court of Appeals and within a few days of oral arguments in this Court. ¹

I. FACTS

On June 7 of this year by 1974 P.A. 145; M.C.L.A. § 600.9934; M.S.A. § 27A.9934, the Legislature transformed 5 Oakland County, Municipal Courts with 5 judges into 2 district courts with 3 judges. On July 24, 1974 an interested resident and elector of Berkley, one of the municipalities affected by the transformation, sought an original writ of mandamus to compel the Secretary of State and the County Clerk to hold an election for the judgeship in one of the new districts, 45a, the district which is wholly contained in Berkley, at the November general election instead of carrying over the current Berkley municipal judge. ² Plaintiff based his complaint on Const. 1963, art. 6, § 23, as amended, which pertinently reads:

'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.'

It was August 27 before the County Clerk, the Secretary of State and the intervening three judges filed responsive pleadings. Although the Supreme Court promptly took jurisdiction pursuant to GCR 1963, 816.2(2)(a) on September 9, it was too late for the August 6 primary election (with respect to which the plaintiff says nothing) and barely time for the November 5 election, although oral argument was set for the next, or October term.

Two major questions are raised by this case concerning the June 7, 1974 enactment of M.C.L.A. § 600.9934(2); M.S.A. § 27A9934(2) because that section of 1974 P.A. 145 provides for the carrying over of the elected municipal judge of Berkley to sit in the 45a district court which has been transformed from the former Berkley municipal court.

1. May the elected Berkley municipal judge be carried over to serve as the district court judge for the 45a district which geographically encompasses the same area as the Berkley municipal court as 1974 P.A. 145; M.C.L.A. § 600.9934, M.S.A. § 27A.9934 provides, or is this prohibited by Const.1963, art. 6, § 23, as amended, which pertinently reads:

'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.'

2. If the carry over provision of 1974 P.A. 145 is unconstitutional, does this Court possess the authority to order a special election or does the absence of specific legislation establishing special elections preclude the special election and necessitate waiting until the 1976 elections to give these courts their own judges.

If the first question is answered affirmatively then, of course, it is unnecessary to answer the second question.

II. 1974 P.A. 145 NOT UNCONSTITUTIONAL.

Plaintiff asserts that the carrying over of a municipal judge to fill the newly created judgeship in District 45a is contrary to the expressed intent of Const.1963, art. 6, § 23, as amended, which provides:

'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.' (emphasis added)

This is the first occasion we have been called upon to construe Const.1963, art. 6, § 23, as amended. To assist us in our task we apply the rules of constitutional interpretation set out in Traverse City School Dist. v. Attorney General, 384 Mich. 390, 405, 406, 185 N.W.2d 9 (1971). Two of those rules require us to 1) ascertain the 'common understanding' of the public who adopted the measure and 2) consider 'the circumstances surrounding the adoption' and the 'purpose sought to be accomplished.'

An examination of the 'common understanding' as well as the 'circumstances' and 'purposes' attendant upon the passage of Const.1963, art. 6, § 23, as amended, demonstrate the Legislature has not exceeded its authority.

The language of the section makes two things abundantly clear. First, the 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. The first sentence of § 23, as amended, rectifies this error by restoring gubernatorial authority to appoint to fill judicial vacancies caused by the incumbent leaving office for one reason or another.

Second, the People on the other hand intended to reserve to themselves the power to fill newly created judgeships by election 'as provided by law.' First, § 23, as amended, specifies such newly created judgeship 'shall be filled by election.' Second, examination of the language describing the type of vacancy to which the Governor may appoint makes it clear that newly created judgeships are precluded. Included are vacancies 'by death, removal, resignation or vacating of the office.' In other words there must have been a judge who, for one of the enumerated reasons, is no longer present. Again the reason for this can hardly escape judicial notice, namely the prevention of collusion between the Governor and the Legislature to create a new judgeship for a favored appointee.

It is also worth noting that the Legislature on a previous occasion authorized the continuation of municipal judges when the municipal courts were changed to district courts. 1968 P.A. 154; M.C.L.A. § 600.9923; M.S.A. § 27A.9923. ³ Interestingly enough this act became effective June 17 of an election year just as 1974 P.A. 145 became effective June 7 of an election year. Of further note and interest is that the provisions of § 23 were approved by the People about 2 months after the passage of 1968 P.A. 154 in August of 1968.

So it appears from the 'common understanding' as well as the accompanying 'circumstances' and 'purposes' behind the passage of § 23, as amended, that the Governor would have the power to replace a judge who for some reason left office, but that the Legislature should provide by law for election to fill new created judgeships.

In this case the critical fine question of interpretation is the degree of discretion the Legislature has in establishing the manner in which the new judgeships shall be filled by election. That some degree of discretion was contemplated by the People is clear from the fact that the People said 'shall be filled by election As provided by law' rather than 'shall be filled by election at the next election,' which would have been no more words and more precise and limited.

The reason for giving the Legislature some discretion is illustrated by the instant case. The date of enactment was June 7, 1974, the primary election was August 6, 1974, hardly time enough for potential candidates to become acquainted with the fact of the new judgeship, the area it served, etc., and certainly not sufficient time to take the necessary steps to qualify and stand for election.

Plaintiff by not filing his suit until July 24, 1974, made it impossible to conduct a primary election and general election for the judicial posts in question on the dates set aside for the primary (August 6) and the general election (November 5). In fact, the plaintiff recognized the time squeeze and did not even include a request for a primary election in his prayer for relief. As it is impossible to conduct the primary and general election for this judgeship on the prescribed dates, the interesting question is raised whether this Court without any legislative authorization would have power to set up a special primary and special election on its own power. However, in this case it is unnecessary to answer this question.

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