MSC will hear AG’s district court judge challenge

The Michigan Supreme Court has agreed to bypass the Michigan Court of Appeals and hear Attorney General Bill Schuette’s quo warranto action, in which Schuette claims Lansing 54-A District Court Judge Hugh Clarke Jr. is illegally occupying his judicial office.

The MSC’s order states that it will assume jurisdiction over the case. The matter has been placed on the Court’s May 2011 session calendar.

Clarke was appointed to the court in December to fill a vacancy created when District Court Judge Amy Krause was appointed to the Michigan Court of Appeals.

Schuette says it was technically proper for Clarke to fill the last days of Krause’s unexpired district-court term. But, Schuette said last Jan. 7, “any attempt to remain in office past noon on January 1, 2011 is illegal because he cannot fulfill the new term Krause had been elected to on November 2, 2010, but had not started before she left the district court.”

Clarke is being represented by former Michigan Supreme Court Justice Thomas Brennan and attorney Lawrence Nolan.

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Lansing district judge sends heavyweights to fight AG’s ouster attempt

Over the weekend, The Lansing State Journal reported that former Michigan Supreme Court Justice Thomas Brennan and attorney Lawrence Nolan are going up against Michigan Attorney General Bill Schuette, who is seeking to oust Lansing District Court Judge Hugh Clarke Jr.

Schuette, you’ll recall, says Clarke is illegally occupying his judicial office: “Schuette seeks to unseat Lansing district judge.”

Former Gov. Jennifer Granholm appointed Clarke in December to fill a vacancy created by Lansing District Court Judge Amy Krause’s appointment to the Michigan Court of Appeals.

According to Schuette, Clarke’s appointment could only last until the end of Krause’s term of office, which ended at noon, Jan. 1.

Krause had been re-elected to the district court in November. Schuette’s position is that Clarke can’t serve the term to which Krause had been re-elected but had not begun serving when she was appointed to the COA.

Brennan and Nolan want the Michigan Supreme Court to bypass the COA, which has original jurisdiction of Schuette’s quo warranto motion to unseat Clarke.

From The LSJ:

Schuette, a Republican who took office Jan. 1, says Clarke’s appointment should have ended on Jan. 1. He further argues that Gov. Rick Snyder has the legal authority to fill the seat once held by Krause.

In their response, Clarke’s attorneys say that state law has an appointee to the District Court bench fill the seat until the “next general November election, at which time a successor is elected and qualified.”

Brennan also argues that the Michigan Supreme Court does not have the power to remove a judge without a recommendation from the Judicial Tenure Commission. Further, such removals can occur only in a specific set of circumstances, none of which apply to the dispute over Clarke.

“We stand by our position. It’s a matter of principle and precedent based on a previous case involving a Supreme Court justice,” said John Sellek, a spokesman for Schuette. Sellek added that due to the lateness of the filings Friday, the Attorney General’s Office had not had a chance to look them over.

In the meantime, Clarke continues to preside over his court.

“I have a parking place. I’m going to work every day, working for the people of Michigan,” Clarke told The LSJ.

Schuette seeks to unseat Lansing district judge

Michigan Attorney General Bill Schuette says Lansing District Court Judge Hugh Clarke is now unlawfully on the bench and has filled a quo warranto motion with the Michigan Court of Appeals to remove him from office.

A press release from Schuette’s office explains:

Clarke was appointed by the previous administration to the 54-A District Court (Lansing) on December 20, 2010.

Schuette says it was technically proper for Clarke to fill the last days of the unexpired term of former District Court Judge Amy Krause. However, any attempt to remain in office past noon on January 1, 2011 is illegal because he cannot fulfill the new term Krause had been elected to on November 2, 2010, but had not started before she left the district court. …

Under state law, the Attorney General may seek, via a quo warranto motion, to remove a person who “unlawfully holds or exercises a state office.”

In the complaint, the Attorney General’s office charges that Clarke is not lawfully permitted to serve in office at this time because the state constitution says that vacancies filled by the governor expire at “12 noon of the first day of January next succeeding the first general election held after the vacancy occurs”

Furthermore, Schuette cites Kelley v. Riley as precedent that an appointee may not serve the next term of the person they replace. In Kelley, a majority of the Michigan Supreme Court granted quo warranto against then-Michigan Supreme Court Justice Dorothy Comstock Riley, a Republican.

In that 1982 case, the Court ruled that Justice Riley could not serve the new term of the judge she succeeded by appointment by then-Governor Milliken. Justice Riley was removed from office and the next governor, Democrat James Blanchard, was entitled to appoint a new individual to serve the new term.

Krause appointed to COA

Gov. Jennifer Granholm has appointed 54-A District Court Judge Amy Krause to the Michigan Court of Appeals.

Krause fills the open seat created when COA Judge Alton T. Davis was appointed to the Michigan Supreme Court following former MSC Justice Elizabeth Weaver’s resignation.

Krause’s appointment ends speculation that Granholm might reappoint Davis to the COA. Davis lost his re-election bid to the MSC earlier this month.

Krause is an adjunct faculty member at Thomas M. Cooley Law School and a former assistant attorney general. She is a recipient of the State Bar of Michigan Champion of Justice Award and is chairperson of the Michigan Domestic Violence Prevention & Treatment Board.

She’s a Notre Dame law grad with a bachelor’s degree from the University of Michigan.

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