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A Better Partnership
May 18, 2011

MSC Opinion: District Court judge appointed by Governor Granholm after the November 2010 elections can fill that post until January 1, 2013

In Attorney General v. Clarke, the Michigan Supreme Court considered how long a district court judge may serve in office after appointment by the Governor. In this case, Judge Clarke was appointed by Governor Granholm on December 20, 2010 to fill a vacancy created by the incumbent's resignation on December 13, 2010 to accept appointment to the Court of Appeals. The Attorney General brought a quo warranto action alleging that Judge Clarke was not entitled to serve beyond January 1, 2011. The Michigan Supreme Court assumed jurisdiction over the matter and dismissed the Attorney General's complaint. The Court held that the Michigan Constitution's plain language held that an appointed judge shall hold office until January 1st of the year after the next general election after the vacancy. Here the vacancy was created in December 2010, and the next general election is set for November 2012, meaning that Judge Clarke is entitled to hold office until January 1, 2013.

In this per curiam opinion on behalf of Justices Young, Markman, Hathaway, Kelly and Zahra, the Court held that the potential of absurd results in different circumstances was an abstract issue that the Court need not consider. In rejecting the Attorney General's position, the Court also repudiated the plurality decision of Attorney General v Riley, 417 Mich 119 (1983), finding that it to be inconsistent with the Michigan Constitution. The majority, however, did reject Defendant's argument that the Court's issuance of a writ of quo warranto would be inconsistent with the Michigan Constitution. Justices Cavanaugh and Kelly concurred in the result, finding that MCL 168.467m(1) also authorized holdovers and does not conflict with the Michigan Constitution.

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