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Wednesday, December 22,2010

Clarke a judge at last ' but for how long?

by Kyle Melinn

At long last, Lansing attorney Hugh Clarke Jr. is a judge. Gov. Jennifer Granholm appointed him Monday to take over for Lansing District Judge Amy Krause, whom the governor put on the Court of Appeals.


Clarke, 56, was sworn in Tuesday afternoon and was set to show up to Lansing District 54A court at 8:30 this morning. He wants to begin doing the people’s business immediately.


But how long will Clarke be able to serve? Granholm intended for Clarke to serve until at least the end of 2012, when he could seek election. But Lansing attorneys are debating among themselves whether Clarke is legally able to serve past Dec. 31.


And Gov.-Elect Rick Snyder or, possibly, the Michigan Supreme Court may have the last say.


Here’s the situation: Krause’s current term is set to expire Jan. 1. She was elected in November to a new term, which begins at noon Jan. 1. Granholm appointed her to the Court of Appeals after she won reelection to the District Court, which created a vacancy.


There’s no debate that Granholm can appoint Clarke to fill out the rest of Krause’s present term. But what happens on Jan. 1? Granholm is no longer the governor as of noon Jan. 1. Can she appoint someone to begin Krause’s new term?


Bob LaBrant, political affairs VP of the Michigan Chamber of Commerce, says no. He’s not alone. I’ve talked to two other attorneys who say it’s Snyder’s job to appoint someone to serve Krause’s second term, meaning that Clarke can only serve until Jan. 1.


LaBrant said there is precedent. In 1982, Michigan Supreme Court Justice Blair Moody Jr. was re-elected to an eight-year term. Before he began that new term, how ever, he died. Gov. Bill Milliken appointed Dorothy Comstock Riley to take his place for a term that continued into 1983.


The Michigan Supreme Court ruled in early ’83 that Riley could not serve past Dec. 31, 1982, and kicked her off the bench. New Gov. Jim Blanchard then appointed Patricia Boyle to take her place.


I’m told Snyder’s legal team is on the case right now, but the Snyder transition team has yet to make a public statement on which way they want to go.


"I would have never taken the appointment," one attorney told me. "There’s too much uncertainty about what’s going to happen there."


Clarke said there is no controversy. He said the Michigan Constitution and state law treat the appointments of Supreme Court justices differently than other judicial positions.


Reading from the ’83 Riley case, Clarke said Supreme Court justice appointments do not have a "holdover provision." Lower court appointments do. He points to Section 168.467(i) of Michigan law, which reads "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."


In this case, Krause was elected to start Jan. 1, but since she is now an appellate judge, she is not qualified to serve. Section 168.467(m) allows a judicial appointment to be treated as an election, meaning he can serve until a successor is "elected and qualified." That would be in the 2012 election cycle. He cited a 1860s case that used similar legal language to prove his point.


"Those who argue I can’t serve past Dec. 31 have not read the Riley decision or do not understand how this process works," said Clarke, who resigned from his position on the Lansing School Board and shuttered his private law practice to take the judicial post.


There is little question Clarke was eager to start serving. Clarke has run unsuccessfully for the District Court and Circuit Court twice each.


Now that he’s here, he doesn’t want to become a political football. Granholm is a Democrat and Snyder is a Republican, but District Court is a non-partisan position. It has no precedent-setting authority. He will oversee misdemeanors and traffic tickets.


Those I’ve talked to like Clarke personally and believe he will do a fine job.


But can Snyder let this go? Arguably, Granholm is snatching an appointment away from him. Is he afraid he’ll look weak if he doesn’t stand up for a perceived principle?


Or does Snyder just let it go? Of all the issues facing Michigan, is a Lansing District Court appointment a political fight worth picking?


If so, the state Supreme Court is stacked in his favor with four Republican nominated justices sitting on the seven-justice bench starting Jan. 1.


Clarke is willing to take the gamble and hopes his dreams of being a judge aren’t prematurely cut short.


(Kyle Melinn is the editor of the Clarke MIRS Newsletter. He’s at melinn@lansingcitypulse.com.)

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