Michigan Attorney General contests District Judge's term dates

April 27, 2011

Lansing, Michigan: Judge Hugh Clarke, Jr.'s term on Michigan's 54A Judicial District Court will be contested in the Michigan Supreme Court on May 3, 2011. Attorney General Bill Schuette has filed suit against the district judge, claiming that his term in office should have ended on January 1, 2011.

Schuette's main argument involves the 1983 case Attorney General v Riley, 417 Mich 119. In this instance, the Supreme Court ousted Justice Dorothy Comstock Riley after deciding that the outgoing Governor did not have the authority to appoint Riley to a term that held over into the new Governor's term. Riley had been appointed by Gov. Milliken to replace Justice Blair Moody who died shortly after his election in November of 1982. The Supreme Court concluded that (due to Article 6, section 23 of the state Constitution) the governor did not have the authority to appoint Riley to fill Moody's term, which would have begun on January 1, 1983, when the new Governor took office. Schuette is arguing that the same circumstances hold true regarding Judge Clarke, who was appointed by outgoing Governor Jennifer Granholm to replace Judge Amy Krause after she was promoted to the Court of Appeals. Clarke was appointed to a term beginning on December 22, 2010. Schuette explains that Granholm did not have the authority to appoint Clarke to Krause's new term and that Clarke's term should have ended on January 1, 2011 when Gov. Rick Snyder took office.

Clarke holds that his term ends on January 1, 2013, after his successor is elected and qualified in the next general election in 2012 (according to Article 6, section 23). His rebuttal points to the fact that the Attorney General v Riley case was only signed by three justices and is not binding precedent. He also argues that the opinion applied only to Supreme Court justices, since it was based on Article 6, section 2 of the Constitution. He points to MCL 168.467i, which provides that “Except as otherwise provided by law, the term of office for judge of the district court shall be 6 years, commencing at 12 noon on January 1 next following the judge’s election and shall continue until a successor is elected and qualified.” He says that this section permits the holding over of terms until a successor is elected and qualified. In addition, he claims that Article 6, Section 4 of the Constitution disallows the Supreme Court to remove a sitting judge from office.

The Supreme Court will hear oral arguments regarding this case on May 3rd.