                                                                            Michigan Supreme Court
                                                                                  Lansing, Michigan
                                                      Chief Justice:          Justices:



Opinion                                               Robert P. Young, Jr. Michael F. Cavanagh
                                                                           Marilyn Kelly
                                                                           Stephen J. Markman
                                                                           Diane M. Hathaway
                                                                           Mary Beth Kelly
                                                                           Brian K. Zahra

                                                                       FILED MAY 17, 2011

                             STATE OF MICHIGAN

                                   SUPREME COURT


 ATTORNEY GENERAL,

               Plaintiff,

 v                                                             No. 142550

 HUGH CLARKE,

               Defendant.


 BEFORE THE ENTIRE BENCH

 PER CURIAM.


       Defendant, Judge Hugh Clarke, was appointed to the 54-A District Court by

 former Governor Jennifer Granholm. The Attorney General claims that defendant is not

 entitled to hold office beyond January 1, 2011, and brought this quo warranto action to

 oust defendant. See MCL 600.4505(1); MCL 600.4515. Having assumed jurisdiction

 over this action and having heard oral argument, we hereby dismiss plaintiff’s complaint.

       In November 2004, Judge AMY KRAUSE of the 54-A District Court was elected to

 a six-year term of office beginning on January 1, 2005. In November 2010, Judge
KRAUSE was reelected to another six-year term that was to begin on January 1, 2011.

However, on November 23, 2010, Governor Granholm appointed Judge KRAUSE to fill a

vacancy on the Court of Appeals. Judge KRAUSE resigned from the 54-A District Court

effective December 13, 2010, and Governor Granholm appointed defendant to the

position on December 20, 2010, effective December 22, 2010. Governor Granholm’s

term of office as governor ended on January 1, 2011.

       The Attorney General brought a quo warranto action in the Court of Appeals,

claiming that defendant is not entitled to remain in office beyond the term of office to

which he was appointed—that is, beyond January 1, 2011—and that the Governor is not

entitled to fill a judicial vacancy for a term that does not begin until after the Governor

leaves office. We granted defendant’s application to bypass consideration of the matter

by the Court of Appeals and assumed jurisdiction over the action. 488 Mich 1052

(2011); see MCR 7.302(C)(1).

       We conclude the following:

       (1) A judicial vacancy “shall be filled by appointment by the governor.” Const

1963, art 6, § 23.

       (2) The resignation of Judge KRAUSE created a vacancy on the 54-A District

Court. Id. (“A vacancy shall occur . . . in the district court by . . . resignation . . . .”).

       (3) “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 . . . .” Id.

       (4)    Michigan law defines “general election” as “the election held on the

November regular election date in an even numbered year,” MCL 168.2(h), and sets the


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November regular election date as “the first Tuesday after the first Monday in

November,” MCL 168.641(1)(d). Accordingly, in this case, the “first general election

held after the vacancy occurs” falls on Tuesday, November 6, 2012.

       (5) Therefore, defendant “shall hold office until 12 noon” on January 1, 2013.

Const 1963, art 6, § 23.

       (6) The argument of plaintiff that an absurd result could conceivably arise under

this Court’s interpretation of Const 1963, art 6, § 23 in circumstances not presented in

this case raises an abstract issue that is not properly before this Court.

       (7) Although we rule in favor of defendant, his argument that it is inconsistent

with Const 1963, art 6, § 4 for this Court to issue a writ of quo warranto to oust a judge

from office does not represent the law of this state, see In re Servaas, 484 Mich 634; 774

NW2d 46 (2009), and this argument confuses judicial removal for reasons of misconduct

with a determination that a person is not lawfully entitled to hold judicial office.

       The plain language of article 6, § 23 operates to allow an appointee to hold office

for two separate terms when the second term begins before “12 noon of the first day of

January next succeeding the first general election held after the vacancy occurs.” Thus,

contrary to plaintiff’s position and the conclusion of a plurality of justices in Attorney

General v Riley, 417 Mich 119; 332 NW2d 353 (1983), article 6, § 23 is a “holdover”

provision. While we understand why plaintiff relied on Riley in support of his position

that Judge Clarke should be treated in the same manner as Justice RILEY and not be

permitted to remain on the bench beyond the end of the term during which he was

originally appointed, Riley does not control the outcome of today’s case because it is a




                                               3
plurality decision,1 and the several rationales articulated in support of the plurality result

are inconsistent with article 6, § 23. Accordingly, we hereby repudiate the Riley plurality

opinion on the ground that it is inconsistent with the constitution of this state.

       Because defendant is entitled under article 6, § 23 to hold the office of 54-A

District Judge until January 1, 2013, we hereby dismiss plaintiff’s action for quo

warranto. Pursuant to MCR 7.317(C)(3), we direct the Clerk of the Court to issue the

judgment order forthwith.


                                                          Robert P. Young, Jr.
                                                          Stephen J. Markman
                                                          Diane M. Hathaway
                                                          Mary Beth Kelly
                                                          Brian K. Zahra




1
  “[D]ecisions in which no majority of the justices participating agree with regard to the
reasoning are not an authoritative interpretation under the doctrine of state decisis.”
Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 206 n 7; 731 NW2d 41 (2007),
citing Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976).



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                            STATE OF MICHIGAN

                                   SUPREME COURT


ATTORNEY GENERAL,

              Plaintiff,

v                                                            No. 142550

HUGH CLARKE,

              Defendant.


CAVANAGH, J. (concurring).

       I concur in the majority result dismissing the complaint for quo warranto, but only

because I believe that there is no conflict between the statutes authorizing “holdovers” for

district court judges and the Michigan Constitution. Specifically, MCL 168.467m(1)

provides that “[i]f a vacancy occurs in the office of district judge, the governor shall

appoint a successor to fill the vacancy” who “shall hold office until 12 noon of January 1

following the next general November election at which a successor is elected and

qualified.” Additionally, MCL 168.467i provides that the term of office for a district

judge “shall be 6 years” and “shall continue until a successor is elected and qualified.”

These statutes clearly authorize holdovers for district judges and do not conflict with

Const 1963, art 6, § 23. Therefore, defendant is entitled to hold office until noon on

January 1, 2013.


                                                        Michael F. Cavanagh
                                                        Marilyn Kelly
