Attorney General v. Riley

332 N.W.2d 353, 417 Mich. 119

• Court: Michigan Supreme Court
• Decided: February 15, 1983
• Docket: 70876, (Calendar No. 1)
• Status: Published

Opinions

Williams, C.J.

This is a case of first impression. It concerns the interpretation of art 6, § 23 of the 1963 Michigan Constitution, as amended. It also requires consideration of art 6, § 2. The issue is whether a Governor can appoint to fill a Supreme Court justice vacancy not only for a part of the term in which the vacancy occurs, but also for a part of the next succeeding term. Specifically, the issue is whether "the remainder of the unexpired term” as designated in § 23 refers to the term in which the "vacancy occurs” or the term in which the "election” takes place, when the "vacancy” and "election” occur in different terms. The pertinent language of art 6, § 23 is the second sentence which reads as follows:

"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, at which election a successor shall be elected for the remainder of the unexpired term.”

We find that, while there may be a slight tilt in the language favoring the interpretation that the appointment is restricted to the term in which the vacancy occurs, the language may arguably be interpreted either to limit the appointed term to the eight years in which the vacancy occurs, or to extend the appointed term into the next eight-year term. However, we are convinced that the injustice that can arise from the extended appointment term, combined with the historical preference for an elected judiciary and non-holdover Supreme Court terms, indicates that the more limited appointment was the intent of the people. We would therefore in the instant case find that the appointed term should have been until noon January 1, 1983. Additionally, since the remainder of the purported appointment is void, the present Governor is authorized to make an appointment as of noon January 1, 1983.

I. Facts

On November 2, 1982, the Honorable Blair Moody, Jr., an incumbent Associate Justice of the Michigan Supreme Court, was re-elected to a new eight-year term of office on this Court. His then current term of office was due to expire 12 noon on January 1, 1983. Prior to the taking of the constitutionally required oath of office for the new term, Blair Moody, Jr., died on November 26, 1982.

On December 9, 1982, the Governor appointed defendant Court of Appeals Judge Dorothy Com-stock Riley to fill the vacancy. The appointment read:

"To the Secretary of State: Let a commission bearing date December 9, 1982 issue to Dorothy Comstock Riley * * * as Justice of the Michigan Supreme Court, to serve until 12:00 noon of the first day of January, 1985 (to fill the vacancy created by the death of the Honorable Blair Moody, Jr.)”.

Defendant filed the oath of office on the same day and assumed office.

On January 3, 1983, the Attorney General filed this action for quo warranto in the Court of Appeals. Bypass was granted after the issue was argued before this Court on January 8, 1983, pursuant to GCR 1963, 852.

II. Constitutional and Statutory Provisions

Several constitutional and statutory provisions are involved in the analysis of this situation. The term of office for a Supreme Court justice is established in Const 1963, art 6, § 2, which provides:

"The supreme court shall consist of seven justices elected at non-partisan elections as provided by law. The term of office shall be eight years and not more than two terms of office shall expire at the same time.” (Emphasis added.)

The prior Constitution, ratified in 1908, required the Legislature to set the term of office. Pursuant to this authority, the Legislature in 1954 provided:

"The term of office of justice of the supreme court shall be 8 years, beginning on the first day of January next following the election and shall continue until a successor is elected and qualiñed.” (Emphasis added.) MCL 168.399; MSA 6.1399 (1954 PA 116).

The 1963 Constitution before amendment in 1968 also included a mechanism to be used to fill vacancies which may arise for a variety of reasons, for example death or removal. As ratified in 1963, the Constitution provided in art 6, § 23:

"A vacancy in the elective office of a judge of any court of record shall be filled at a general or special election as provided by law. The supreme court may authorize persons who have served as judges and who have retired, to perform judicial duties for the limited period of time from the occurrence of the vacancy until the successor is elected and qualified. Such persons shall be ineligible for election to fill the vacancy.”

This was a marked change from the previous Constitution which granted the Governor the power to make vacancy appointments. The convention comment explained:

"The change is made in order to maintain consistency in the idea that this state should have an elected judiciary. The present system of appointment by the governor to fill vacancies, bestowing on the appointee the incumbency designation, has had an overwhelming tendency to insure the election of the appointee. This has created in effect an appointive judiciary.”

However, in 1968, § 23 was amended to reinstate the Governor’s power to fill vacancies. Article 6, § 23, now reads:

"A vacancy shall occur in the office of judge of any court of record or in the district court by death, removal, resignation or vacating of the office, and such vacancy shall be filled by appointment by the governor. 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, at which election a successor shall be elected for the remainder of the unexpired term. Whenever a new office of judge in a court of record, or the district court, is created by law, it shall be filled by election as provided by law. The supreme court may authorize persons who have been elected and served as judges to perform judicial duties for limited periods or specific assignments.”

The 1968 amendment was also reflected in the legislative provision which implemented the Constitution. The 1970 act reads:

"Whenever a vacancy shall occur in the office of justice of the supreme court, the governor shall appoint a successor to fill the vacancy. The person appointed by the governor shall be considered an incumbent for purposes of this act and shall hold office until 12 noon of January 1 following the next general election at which a successor is elected and qualified. At the next general November election held at least 90 days after such vacancy shall occur, a person, nominated under section 392, shall be elected to fill such office, and the person so elected shall hold such office for the remainder of the unexpired term. A candidate receiving the highest number of votes for said office and who has subscribed to the oath as provided in section 1 of article 11 of the state constitution shall be deemed to be elected and qualified, even though a vacancy occurs prior to the time he shall have entered upon the duties of his office.” MCL 168.404; MSA 6.1404.

In Schwartz v Secretary of State, 393 Mich 42, 47; 222 NW2d 517 (1974), this Court made the following observation on the amendment:

"[T]he people intended to rectify the mistake of the 1963 Constitution in its original form of having removed the historic constitutional authority of the Governor to appoint persons to fill judicial vacancies. This Court would blink the facts of life if it did not take judicial notice of the fact that this omission embarrassed the operation of government by leaving important judicial offices without their own regular incumbent for long periods of time.”

Defendant also points out that MCL 168.399; MSA 6.1399 reads:

"The term of office of a justice of the supreme court shall be 8 years, beginning on the first day of January next following the election and shall continue until a successor is elected and qualified.”

III. Prior Case Law

As a threshold matter, this is a case of first impression. When closely examined, prior Michigan case law fails to address the present situation.

At first blush, People ex rel Andrews v Lord, 9 Mich 227 (1861), would seem to resolve the case before us. In that case the incumbent probate judge was re-elected but died before the commencement of the new term. The Governor made one appointment for the unexpired term; a second appointment was made in January, when the new probate judge term would have commenced.

The 1850 Constitution provided, first, that a probate judge’s term of office continued for a period of "four years, and until his successor is elected and quáliñed” (emphasis added), Const 1850, art 6, § 13, and, secondly, that a vacancy in the office of probate judge "shall be filled by appointment of the governor, which shall continue until a successor is elected and qualified”. Const 1850, art 6, § 14.

Relying on these provisions, the Court unanimously invalidated the January 1 appointment, writing:

"These provisions are so free from ambiguity that there is no room left for construction. A person appointed to fill a vacancy can only be superseded by one who is duly elected, and holds in the same manner as if originally the incumbent until thus superseded. His term of oifice did not expire on the first day of January, 1861, unless some one elected and qualified was then ready to take office.” Lord, supra, p 230.

This analysis is typical when the Constitution provides, as the 1850 Constitution did, that the appointee’s term includes a holdover provision. See Anno: 164 ALR 1248. The result will also be achieved if the vacancy-filling provision does not specify a duration for the appointee’s term, but the incumbent’s term of office includes a holdover provision. The holdover language ensures that a vacancy will not occur merely by expiration of the term of office; an officer holds office until his elected successor replaces him. In the Lord case, holdover language appeared in both sections of the Constitution; in the present case it appears in neither.

The other cases of this Court cited by defendant are also distinguished on these grounds. In Lawrence v Hanley, 84 Mich 399, 400; 47 NW 753 (1891), the statute established the regular term for the office of county auditors at three years and until their successors shall be elected and qualified. In Baxter v Latimer, 116 Mich 356, 362; 74 NW 726 (1898), the term of office for field and line officers was established at "three years from the date of their election, and until their successors are commissioned”. In both cases, this Court relied on the holdover provision to find that no vacancy occurred at the expiration of the incumbent officers’ terms.

Therefore, while each of these cases would be useful in analyzing an appointment to an office or term containing a holdover provision, this is not the factual posture we are asked to address.

IV. Rules of Constitutional Construction

Both parties recognize that the rule of "common understanding” set forth in Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), is the correct one to apply when construing a constitution. We agree. We stated in the Traverse City School Dist case:

"The primary rule is the rule of 'common understanding’ described by Justice Cooley:

" 'A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. "For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.” (Cooley’s Const Lim 81)’

"A second rule is that to clarify meaning, the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered. On this point this Court said the following:

" 'In construing constitutional provisions where the meaning may be questioned, the court should have regard to the circumstances leading to their adoption and the purpose sought to be accomplished.’ Kearney v Board of State Auditors (1915), 189 Mich 666, 673.’ ” (Emphasis added.)

In the final analysis, the issue of this case is what was the common understanding and intent of the people in approving §§ 2 and 23, as amended, of the Judicial Article.

As pertinent, §§ 2 and 23 read as follows:

Section 2

"The term of office shall be eight years * *

Section 23

"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, at which election a successor shall be elected for the remainder of the unexpired term.”

V. Analysis

Both plaintiff and defendant claim that the meaning of art 6, § 23 is clear, but they disagree as to what the meaning is.

Plaintiff argues:

"Had the people desired to resurrect the gubernatorial authority to make an appointment until a successor was elected and qualified they could easily have done so, but they did not. Instead they provided for an interim appointment until the first possible general election at which a successor would be elected for 'for the remainder of the unexpired term.’ The use of the phrase 'for the remainder of the unexpired term’ in the second sentence of Const 1963, art 6, § 23, indicates that the sentence is only applicable when an election can be held within the unexpired term. In other situations the plain language of Const 1963, art 6, § 2, means that an appointee cannot hold office beyond the expiration of the term.”

Defendant, on the other hand, argues:

"The meaning of § 23 is clear on its face. It says .simply and directly:

" '* * * 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 * * *.’

"* * * There is no ambiguity; no interpretation is necessary * *

It will be noticed that defendant consistently fails to recognize the second half of the sentence on which she relies. The whole sentence, giving emphasis to the words she leaves out, reads as follows:

"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, at which election a successor shall be elected for the remainder of the unexpired term.” (Emphasis added.)

It is the phrase "remainder of the unexpired term” in this second half of the sentence on which plaintiff relies for his construction.

While defendant and amicus never argue beyond the statement in the first part of the sentence, it is rudimentary law that all parts of a document should, if possible, be construed together. Obviously this would apply with particular force to the different parts of the same sentence. Our first concern therefore must be to read the whole sentence together and determine whether the second part of the sentence impacts in any way upon the first part of the sentence quoted by defendant. If it does, and justifies differing interpretations by plaintiff and defendant, as seems apparent, then we must determine which interpretation is the proper one.

There is no question plaintiff believes the second part of the sentence impacts upon the first. Plaintiff contends that the phrase "for the remainder of the unexpired term” "indicates that [the first half of the] sentence is only applicable when an election can be held within the unexpired term”. While defendant nowhere discusses whether there is any impact of the second part of the sentence, she must argue that it does not require "an election be held within the unexpired term” in which the vacancy occurs, for that would negate her contended right to continue in office.

We are therefore left with a very real argument as to whether "the first general election held after the vacancy occurs” has to be within "the unexpired term” in which the vacancy occurs or whether it may be within the subsequent unexpired term. The fact of the matter is that the sentence can be read either way, depending upon whether "the remainder of the unexpired term” refers to the term in which the "vacancy occurs” or the term in which "the first general election [is] held”. If the former, the plaintiff prevails. If the latter, defendant prevails.

Analysis of the parties’ contentions, therefore, reveals that however clear the first part of the second sentence of § 23 is, when read together with the second part, there is an ambiguity that must be resolved by interpretation.

This ambiguity does not appear where the vacancy arises sufficiently before "the first general election held after the vacancy occurs” so that both the election and the vacancy occur in the same term. Then, of course, the "election” reference and the "vacancy” reference are to the same term. For example, in the case of former Chief Justice Coleman resigning in the second year of her eight-year term, the appointee, Justice Brickley, serves "until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs”, or until the end of the fourth year of Chief Justice Coleman’s term. In this case, both the "vacancy” and the "election” occurred in Chief Justice Coleman’s eight-year term, so the "vacancy” and the "election” references were to the same eight-year term. There is no revealed ambiguity under these circumstances.

The ambiguity arises when the "vacancy” and the "election” occur in different eight-year terms. For example, in the instant case the "vacancy” occurred in Justice Moody’s term ending noon January 1, 1983 and the "election” will occur in the succeeding term of eight years. Does the "remainder of the unexpired term” refer to the remainder of the "unexpired term” in which the "vacancy” occurred or the "remainder of the unexpired term” of the "term” in which the successor will be "elected?” The alternative chosen, of course, produces quite different results. If the "remainder of the unexpired term” refers to the term in which the "vacancy” occurred, then, of course, there would be no time to be served in the new term. If it referred to the term in which the election occurred, then there would be six years to be served. This difference indicates beyond peradventure that an ambiguity exists.

The question before us is how to interpret § 23 to achieve the result the people intended. We believe the people intended the reference point to be the term in which the "vacancy” occurs.

We will proceed to show (A) that § 2 clearly excludes the concept of Supreme Court justice holdover and that except for a few years this has been historically so; (B) that § 23 does not unambiguously provide for holdover and (C) balancing the alternatives of interpreting § 23 as not authorising a holdover and as authorizing a holdover, it appears to us convincingly that the intent of the people, if they had considered this matter, as they apparently did not, would not have been to provide for a holdover from one eight-year term to the next.

A. § 2 Excludes Holdover

No intention on the part of the people to authorize holdover in office can be found in § 2 of the 1963 Constitution. Quite the contrary. There are a number of factors indicating an intention against holdover: (1) § 2 does not include holdover language; (2) lack of holdover language in § 2 for the Supreme Court justices contrasts sharply with holdover language for judges of other courts; (3) historically the general rule has been non-holdover Supreme Court justice terms; (4) there is case authority that language similar to § 2 is not authority for a holdover term; (5) holdover legislation cannot contravene the Constitution.

(1) No Holdover in § 2 Language

Section 2 does not include holdover language. It states: "The term of office shall be eight years and not more than two terms shall expire at the same time.” This language is abundantly straightforward. It contains none of the traditional holdover language such as "and until their successors are elected and qualified”. It provides for eight years, no less and no more.

(2) §2 No Holdover Language Contrasts With Holdover Language Elsewhere

The finite eight-year term for Supreme Court justices in the Constitution is in stark contrast to the holdover terms prescribed for the Court of Appeals (art 6, § 9), the circuit court (art 6, § 12) and the probate court (art 6, § 16). These terms are established for "a term of six years and until their successors are elected and qualiñed” (emphasis added). The inclusion of the traditional holdover language in the judicial provisions of §§ 9, 12, and 16 must dictate that the significant absence of this language in § 2 was intended. The people did not intend to annex a holdover term to the office of Supreme Court justice.

(3) No Holdover General Rule Historically

The Constitution has never used holdover language to designate the term of office for a Supreme Court justice. The 1835 and 1850 Constitutions established the term as a finite number of years. See Const 1835, art 6, § 2; Const 1850, art 6, § 2. The 1908 Constitution, art 7, § 2, provided: "The term of office shall be prescribed by law”. The Legislature, pursuant to this authority, established finite terms on various occasions. See 1915 CL 12007; 1929 CL 3001, 13528; 1948 CL 601.2.

In 1954, the Legislature set the term of office as follows: "The term of office of justice shall be 8 years * * * and shall continue until a successor is elected and qualiñed” (emphasis added). 1954 PA 116, effective June 1, 1955; MCL 168.399; MSA 6.1399. In art 6, § 2 of the 1963 Constitution, the people definitively stated that the "term of office shall be eight years”, thus deleting the holdover period in the term of office as created by the Legislature. The difference between the term of office of a justice before and after the adoption of the 1963 Constitution is made obvious by the emphasized language. Before the 1963 Constitution, the term of office included a holdover provision. If a candidate won an election and then died before his elected term began, the incumbent justice would hold over "until a successor was elected and qualified”. After the deletion of this provision in the 1963 Constitution, the incumbent would not hold over, and the office would remain vacant. The term was for eight years, and that was that.

So of the approximately 148 years from 1835 to date, the Constitution provided for a holdover term in setting the term of a justice of the Supreme Court in only eight years. Whether the 1968 amendment in providing for filling of a vacancy in § 23 changes this, we will subsequently consider.

(4) Constitutional Silence No Authority for Holdover

A holdover provision is not to be read into the silence of the Constitution. As this Court stated in Toy ex rel Elliott v Voelker, 273 Mich 205, 215-217; 262 NW 881 (1935):

" 'Until his successor is elected and qualified’ is not esoteric language. The phrase is common in this State and elsewhere. The words are plain and have an accepted meaning in the law.

"The term [of office of superintendent of public instruction] consists of a 'fixed tenure and a contingent term.’ * * * The hold over provision is purely conditional, on failure of an elected successor or his qualification. Thereby, the right of incumbent to hold over term does not end until his successor has been elected and has accepted the office by qualifying. So, barring contingencies, the office is held by an elected official. This is further than the Constitution goes in securing an elected officer in such other State offices, of at least equal importance and rank, as the lieutenant governor, secretary of State, State treasurer, auditor general and attorney general, whose terms are ñxed at two years without right of hold over. Constitution 1908, art 6, § 1. Even the governor does not hold over in case of the death of his elected successor before the commencement of the term.” (Citation omitted; emphasis added.)

Section 1 of article 6 of the 1908 Constitution provided "There shall be elected at each general biennial election a governor * * * for the term of two years”. The 1908 constitutional provision is consequently effectively similar to § 2.

(5) Legislation Cannot Override Constitution

Nonetheless, defendant and amicus argue that MCL 168.399; MSA 6.1399 creates a holdover term for Supreme Court justices. This statute, enacted in 1955, before the 1963 Constitution, states:

"The term of office of justice of the supreme court shall be 8 years, * * * and shall continue until a successor is elected and qualified.”

This argument flies in the face of settled constitutional principle. Where the Constitution has spoken, neither the Legislature (nor the Supreme Court for that matter) may amend the Constitution. Pillon v Attorney General, 345 Mich 536; 77 NW2d 257 (1956).

Section 2 of art 6 of the 1963 Constitution definitely fixed the term of office for Supreme Court justices at eight years. Therefore, it is not within the power of the Legislature or this Court to amend the Constitution by annexing a holdover term. Section 2 sets forth a definite term of years, and so it must remain until altered by the people through constitutional amendment.

B. Problems Interpreting § 23 as Holdover

Having established that § 2 unequivocally establishes a fixed term of eight years with no holdover, and having established that being in pari materia, §§ 2 and 23 should be construed together, if possible, we turn to examine whether § 23 indicates a clear and unambiguous intent of the people to change the 1963 Constitution and the normal rule of no Supreme Court justice holdover.

There are two reasons why § 23 does not clearly and unambiguously require a holdover or its equivalent interpretation: (1) if § 23 is interpreted as requiring holdover, it allows for an unjust result; and (2) a holdover interpretation of § 23 would permit an appointed justice to hold over but deny that same right to an elected justice.

(1) Holdover Interpretation of § 23 Can Have Unjust Result

Section 23, as amended, states: "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, at which election a successor shall be elected for the remainder of the unexpired term.” Under a holdover reading of this language, if defendant had been elected to succeed Justice Moody and had Justice Moody died prior to January 1, the Governor’s appointee would have displaced the defendant from an office to which she had been duly elected. Obviously, this result— which permits divesting a duly elected officer of his or her office — is repugnant to the common understanding of the people who ratified the Constitution.

Additionally, this absurd result would not materialize if § 23 contained traditional holdover language. Under a holdover analysis, an appointee’s term ends when an elected officer steps forward to claim the office. Under traditional holdover language, it is irrelevant whether the election which grants the successor his right to office occurs before or after the vacancy occurs.

However, the inflexible language of § 23 dictates that the election must occur after the vacancy, thus giving rise to the absurd situation. As noted above, however, this repugnancy disappears if § 23 is read in conjunction with § 2; if § 2 confines the operation of § 23 to the term in which the vacancy arose, then appointments will terminate either by the replacement of the appointee by an official elected after the vacancy, or by the termination of the eight-year term in which the vacancy arose.

We find further support for our interpretation of § 23 in the legislation enacted to implement this section of the Constitution. Although the first portion of MCL 168.404; MSA 6.1404 generally tracks the Constitution, the last sentence is enlightening. Here the Legislature has provided that one who is elected to an office is not divested of his right to hold office because a vacancy occurs prior to the commencement of his term. Thus the Legislature has recognized the people’s clearly expressed preference for elected justices, and has done so in a way consistent with our interpretation that the defendant’s term ends with the eight-year limitation rather than the January 1 noon after the next election.

(2) Holdover Interpretation of §23 Prefers Appointed Justices Over Elected Justices

Section 2 makes it clear beyond peradventure that elected justices have eight-year terms with no right to hold over. If interpretation gives § 23 the effect of a holdover term that would mean that an appointed justice would have the right to hold over but an elected justice would not.

The whole history of judicial selection in Michigan evinces a strong insistence on election of judges and a limited grant of power of appointment. Of course, the people could provide for holdover appointments, but in the case of Supreme Court justices because of a strong contrary history it should not be presumed unless in clear and unambiguous language.

C. Problems Interpreting § 23 as not Holdover

Two technical objections have been raised against interpreting § 23 as not a holdover provision. We are unpersuaded that either should override our interpretation.

(1) It has been pointed out that when a vacancy occurs after the last election in an eight-year term, the appointee cannot "hold office until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs”, if the election must fall within the eight-year term as required by tying the "term” in "remainder of the unexpired term” to the "term” in which "the vacancy occurs”. There is no question that the "until * * * the first general election” language in that situation becomes inoperative. But that is not an unjust result such as divesting a newly elected justice of his term of office. In fact, it would prevent that injustice.

(2) We are also aware that by interpreting §23 as not a holdover provision, a Governor is authorized, in some circumstances, to make two appointments rather than one. Arguably, this result contravenes the constitutionally expressed preference for elected officials.

However, this criticism is without merit. Although two appointments may be allowed, this in no way decreases the number of elected justices that serve,¹ impedes the process for supplying the office with an elected official, nor favors an appointed over an elected official.

Additionally, for reasons more fully stated in Part VI, infra, the interpretation which allows two appointments actually ensures that the people’s vote is given the greatest possible efficacy.

D. Conclusion

While attempting to reinstate the gubernatorial appointment power which had been deleted from the 1963 Constitution, the drafters of § 23 created a latent ambiguity as to whether a holdover provision for the appointee was intended. Plaintiff argues that the Governor’s appointment continues only for the unexpired time remaining of the eight-year term in which the vacancy arose. Defendant, of course, believes that the appointee’s term extends until her elected successor takes office in whichever eight-year term that happens to fall. The language of § 23 alone does not lead ineluctably to either result.

However, the practical problems associated with the application of a holdover interpretation of § 23 and the policy advantages inherent in the adoption of a non-holdover interpretation convince us that a non-holdover interpretation is what the people would have intended had this issue confronted them.

The injustice which may arise from application of a holdover interpretation of § 23 weighs heavily against adopting such an interpretation. Also, an interpretation which grants appointed justices rights that are denied elected justices is inappropriate.

We therefore hold that § 23 is not a holdover provision. Rather, it authorizes the Governor to appoint only until the end of an eight-year term. The effort to appoint for the succeeding eight-year term is therefore null and void and defendant has no title to her office after noon on the first day of January 1983.

VI. Policy Considerations

Much has been argued of the policy predilections underlying § 23. We find it clear beyond peradventure that the fundamental philosophy of the people in judicial selection is, and has been, the intent to reserve to themselves the right to choose their justices by popular election. This intent is expressed in various provisions of article 6.

First, the people have singlemindedly and tenaciously rejected the adoption of an appointed judiciary system. A well-meaning and powerful minority over at least the last 30 or 40 years has consistently endeavored to persuade the people that judicial selection should be exclusively by gubernatorial appointment. But those campaigns have never succeeded, even to the extent of gaining sufficient signatures to permit a referendum ballot. It is manifest that the people of Michigan have remained steadfast and convinced that the best method of judicial selection is through the popular ballot.

Second, in the 1963 Constitution the people not only expressed their intent that the people should elect their Supreme Court justices, they even divested the Governor of the right to fill vacancies as provided in previous Constitutions. This power was reluctantly restored by the 1968 amendment.

Third, the people declined to permit incumbent justices without renewed popular mandate to hold over. As discussed above, the right to hold over had been granted by a 1954 statute (MCL 168.399; MSA 6.1399) enacted pursuant to art 7, § 2 of the 1908 Constitution. However, in art 6, § 2 of the 1963 Constitution, the people definitively stated that the "term of office shall be eight years”, thus deleting the holdovér period in the term of office as created by the Legislature. After the deletion of the legislatively created holdover provision by the 1963 Constitution, an incumbent would no longer hold over if an elected successor was not ready to succeed him at the end of his eight-year term. Instead, the office would become vacant. The term was for eight years, and that was that.

Any fair appraisal of the Judicial Article of the 1963 Constitution prior to the 1968 amendment cannot fail to recognize that the people had with clarion voice made two points abundantly clear. First, the people were determined to use the elective process to select their justices. Second, the people did not want their justices to serve beyond an eight-year term without renewing their popular mandate.

In the light of this clear expression of the popular will to choose their justices by election to eight-year non-holdover terms, we examine the instant issue. Supreme Court Justice Blair Moody had just won an overwhelming mandate for a new term of office by about 300,000 votes over his nearest competitor when he unfortunately died before he qualified for his new term. The issue before us is whether the people intended that a Governor whose popular mandate had all but expired have the power to fill Justice Moody’s new term beginning after the Governor had left office as well as the power to fill the vacancy for the few weeks remaining in Justice Moody’s then current term and also the Governor’s final term?

Given the people’s clearly stated intention to elect their justices for eight-year terms without holdover, it is hardly credible that they would grant a Governor, especially an outgoing Governor, the power to fill a vacancy with a holdover period. This is particularly true when such an interpretation would mean giving an outgoing Governor the right to appoint to a term that did not even begin until the outgoing Governor’s own popular mandate had expired.² The effect of this would be to deny the people expression of their most recent mandate in favor of a mandate already superseded. This would be a complete, 180-degree turnabout from the people’s constitutional reliance on the electoral philosophy and process.

But that is what the defendant and amicus argue. They contend that the people have in their constitution clearly and unambiguously given an outgoing Governor in his last few months the power to appoint a person to a Supreme Court term that would include a term that would not commence until that Governor’s term of office and power had expired. We believe that the people have not indicated such a clear denial of their basic philosophy.

Nonetheless, both defendant and amicus have advanced two public policy considerations on behalf of their position, arguing that if plaintiffs theories prevail: (1) the independence of the judiciary will be undermined, and (2) the orderly management of government and the continued smooth operation of its branches during times of transition when no elected official is available to take the incumbent’s place will be disrupted. Although we agree that these are necessary considerations in light of the nature of the case before us, we do not agree with the defendant’s and amicus’ dire predictions of the consequences of our decision.

As we have noted, the people have clearly expressed their desire for an independent judiciary, chosen by them at a special or general election. Despite this directive from the people, we are still faced with the fact that, regardless of whether plaintiff or defendant prevails in this case, we will have an appointed justice on this Court until the next general election in November 1984. The fact that defendant was a participant in the last election and garnered a significant number of votes does not affect her status as an appointed justice.

However, defendant and amicus argue that if plaintiff prevails, the judiciary will become subject to the whim and control of the Governor because, at the end of the term, the appointed justice may be removed or replaced if his or her performance is unsatisfactory to the Governor.

In the first place, under our interpretation of the Constitution, the appointed justice is no longer entitled to fill the appointed office at the end of the term. It is not a matter of removing the justice from office; the expiration of the term automatically ends the justice’s appointed status and right to hold the office, and the former justice again becomes merely a potential appointee. The Governor then has the power to appoint to fill the resulting vacancy, caused by the beginning of a new term of office which is not filled by an elected official.

In the second place, a potential appointee is always chosen for office at the pleasure of the Governor. Thus, it is true that the appointed justice will only be reappointed to the new term if the Governor is satisfied with his or her performance in office in the prior term. However, this is no different in effect on the independence of the judiciary than a judge from the Court of Appeals seeking to be appointed to a vacancy on our Court. That judge will only be appointed if his or her performance has been satisfactory to the Governor. Therefore, the possibility always exists that a judicial officer, in the hopes of securing an appointment, will feel the need to tailor his or her performance in office to the known desires of the Governor. Our holding today does not serve to lessen the independence of the judiciary any more than it was lessened when the Governor’s power to appoint persons to fill judicial vacancies was restored.

Defendant and amicus also argue that the smooth operation of government will be disrupted by our holding, which creates a vacancy at the end of the term even when there is a qualified individual already in office, ready and willing to continue in office until the next general election. They argue that the policy behind holdover provisions is to ensure continuity in governmental operations during times of transition when there is no elected successor to take office and that the existence of such a vacancy could unnecessarily disrupt such continuity.

We recognize that the result of our holding is that, near the end of one term and the beginning of a new term, there may be two different appointed justices to the same office within a relatively short period of time. However, we believe that any disruption this may cause will be minimal and short-term. A far greater disruption would occur if the Governor failed to replace a justice whose term had expired. However, this possibility exists any time there is a vacancy on this Court, should the Governor fail to exercise his or her power of appointment, and our holding does not make this possibility any more or less probable. We do not agree with defendant, and amicus that the proper way to avoid this potential problem is to find that no vacancy exists at the beginning of the new term.

We wish to point out that our holding is not intended to announce a policy against holdover provisions for public office. There is much merit to defendant’s and amicus’ argument with respect to the benefits of holdover provisions; however, we think such provisions should be established by the people and not by judicial fiat.

VII. Right to Appoint in New Term

There remains consideration of whether the Governor in office at the time the justice’s newly elected term commences can appoint to office. This depends upon two factors. First, does a vacancy exist that permits a Governor to appoint? Const 1963, art 6, § 23. Second, does the opportunity to appoint exist within the limited operation of § 23, i.e., that it applies only to the term in which the vacancy arose?

It is obvious that there is no impediment to appoint with respect to the second factor. The vacancy, if one exists, dates from the first day of the eight-year term so that the formula of the second sentence of §23 works perfectly with respect to § 23 and § 2. The critical question, then, becomes whether a vacancy allowing appointment exists.

The first sentence of §23 as amended reads pertinently as follows:

"A vacancy shall occur in the office of judge of any court of record or in a district court by death, removal, resignation, or vacating of the office * * *.”

In the instant case, Justice Moody died during the prior term to the one to which he was re-elected. There is no question that his death created a vacancy in the current term he was serving. It is argued that death in a prior term does not create a vacancy in the succeeding term to which the decedent was elected, and there is some reason so to interpret § 23.

However, we are called upon to construe the intent of the people in the language they employed to address a problem that may arise from a variety of situations. The problem which § 23 attempted to rectify was the difficulty created by vacancies in judicial offices between elections. The solution was to establish limited gubernatorial appointments. To prohibit gubernatorial appointment where the vacancy was created subsequent to a general election but prior to the succeeding eight-year term would in part defeat the general purpose of MCL 168.404; MSA 6.1404 (1970 PA 10).

The intention and even the literal text of § 23 can be reasonably and properly construed to accomplish its purpose. There is no question that in the new term a vacancy exists because of the death in the prior term. 'Therefore, there is a "death” which under § 23 allows the Governor to make an appointment. This would surely be the common understanding of § 23.

Additionally, it is difficult to reject the argument that there was a "vacating of the office” in the new term. It is impossible to vacate the office in the new term by failing to qualify or failing to take the office in the prior term. Whatever is done in the prior term has no eifect on whether the office is vacated in the new term. The only way the new term of office can be vacated is by the office holder failing to qualify, take office, etc., during the new term.

Consequently, if a newly elected official goes to and stays in another jurisdiction and does not show up to qualify and take his new office after a reasonable time, it certainly can be said that the office was vacated during the term to which he was elected.

This presents us with the question whether the failure of a deceased person to qualify and take office is in principle any different from a living person failing to do so. It would appear to us that there certainly is no logical difference. As such there was a vacating of the office during the new term. What is more, in our mind that would be the common understanding of the public generally.

We therefore hold that the incoming Governor can appoint to fill former Justice Blair Moody, Jr.’s new term to which he was elected in the 1982 election.

VIII. Conclusion

Before restating our conclusions, it is incumbent upon us to express appreciation for the helpful and even commendable briefs and oral arguments, especially on such short notice.³

We hold that Const 1963, art 6, § 23 may operate only within the Supreme Court justice term in which the vacancy arose. Therefore, § 23 authorizes the Governor to appoint only until the end of an eight-year term.

In this case, Justice Moody died five weeks before the expiration of the term he was serving. Under § 23, the Governor was empowered to make an appointment only until 12 noon, January 1, 1983. The Governor’s attempt to extend the appointment beyond January 1, 1983 is therefore null and void.

Additionally, we hold that a vacancy arose on January 1, 1983 which authorizes the current Governor to make an appointment to the office of Supreme Court justice. This appointment will continue until 12 noon of January 1 following the next general election._

Finally, we concur with our brother Kavanagh.

Judgment against defendant will enter but without costs.

Kavanagh, J.

The Attorney General of Michigan brings this action in quo warranto, GCR 1963, 715.2(1), against Dorothy Comstock Riley, defendant, to decide whether she presently possesses the right to hold the office of justice of the Michigan Supreme Court. Having granted plaintiffs application for leave to appeal prior to decision by the Court of Appeals, this Court has original jurisdiction. GCR 1963, 852, 816.2. By leave of Court, Governor William G. Milliken has intervened as amicus curiae.

We hold that a vacancy in the office of justice of the Supreme Court can arise only in a term of that office and that an appointee to fill such vacancy may not serve beyond the end of that term, and accordingly judgment of ouster may enter.

At the general election held November 2, 1982, Justice Blair Moody, Jr., was re-elected to an eight-year term of office on the Supreme Court, commencing at noon January 1, 1983. After reelection, but before his first term was to expire at noon January 1, 1983, and before qualifying for the new term, Justice Moody died November 26, 1982, thereby creating a vacancy in the term of office he was then serving.

Pursuant to the command of the constitution that a "vacancy shall be filled by appointment by the governor”, Const 1963, art 6, § 23, Governor Milliken appointed the defendant on December 9, 1982, to fill the vacancy left by the death of Justice Moody. According to the terms of the commission issued to defendant, her tenure as an appointed justice was due to expire January 1, 1985.

Governor Milliken’s term as Governor expired contemporaneously with that of Justice Moody’s first term at noon January 1, 1983. Governor James J. Blanchard, elected at the November, 1982, general election, began his term of office at noon January 1, 1983. Governor Blanchard has not attempted to appoint a person to the Court. The presént action in quo warranto was commenced January 3, 1983.

We are asked to decide whether a person appointed to fill a vacancy on the Supreme Court arising in the last two months of a term of office may continue to hold office after the expiration of the term in which the vacancy arose, within the meaning of Const 1963, art 6, § 23.

The Attorney General argues that the term of office for justice of the Supreme Court is fixed at eight years without right of holdover. Consequently, Const 1963, art 6, § 23, means that one appointed to fill a vacancy arising within an eight-year term serves until January 1 following the first general election held after the vacancy arises or until the end of the term in which, the vacancy arises, whichever event first occurs. Such an application of § 23 alone, argues the Attorney General, is consistent with the omission of holdover language in Const 1963, art 6, § 2.

The defendant, on the other hand, contends that a plain reading of Const 1963, art 6, § 23 yields the conclusion that one appointed to fill a vacancy serves until January 1 following the first general election at which a successor is elected and qualified, regardless of the duration of the term in which the vacancy arises. The constitution vests in the appointee an interim term, unrelated to the term in which the vacating justice served. In addition, a justice has a right to hold over by reason of prior constitutions and MCL 168.399; MSA 6.1399.

Amicus curiae makes essentially the same argument as defendant.

The constitution provides the method for filling vacancies on courts of record. As originally adopted, Const 1963, art 6, § 23, called for special or general elections to fill vacancies, replacing for the first time the gubernatorial power of appointment. In 1968, § 23 was amended to reinvest the Governor with the power to fill vacancies by appointment. See Schwartz v Secretary of State, 393 Mich 42; 222 NW2d 517 (1974). Section 23 generally commands the Governor to fill vacancies which occur by death, removal, resignation or vacating of office. The second sentence of § 23 limits the Governor’s power of appointment by defining the duration of the appointee’s right to hold office. What the second sentence of §23 means as applied to the present facts is the question to be answered.

Section 23, in pertinent part, reads:

"A vacancy shall occur in the office of judge of any court of record or in the district court by death, removal, resignation or vacating of the office, and such vacancy shall be filled by appointment by the governor. 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, at which election a successor shall be elected for the remainder of the unexpired term.”

In determining the meaning of § 23, we are mindful that constitutions, made for the people and by the people, are given the interpretation that reasonable minds, the great mass of the people themselves, would give them. Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). We must ascertain the common understanding, that meaning which a particular provision would naturally convey to the popular mind. Carman v Secretary of State, 384 Mich 443, 451; 185 NW2d 1 (1971).

The "plain meaning” of § 23 urged upon us by defendant and amicus is that an appointee to the Supreme Court serves until January 1 following the first general election at which a successor is elected and qualified, regardless of the point at which the vacancy arises in the term. Section 23, they argue, creates an unrelated, separate, interim term for an appointee. In the present case, this is but a holdover by the appointee of the preceding justice’s term of office.

An appointee’s tenure cannot be unrelated to the scheme of eight-year terms of office established by Const 1963, art 6, § 2. Because a person’s right to hold office can only have meaning in the context of terms, whether for years or life or determinable upon the happening of some contingency, the established terms of office set out in § 2 are relevant to the meaning of § 23. We find that § 23 contemplates this and rather than carve out a term unrelated to the constitutional schedule of terms provides that a successor holds office for the remainder of the unexpired § 2 term.

In our view, the critical language of § 23 which puts into context the tenure of the appointee is the election of a successor "for the remainder of the unexpired term”. The unexpired term referred to is the one in which the vacancy occurs, not the one in which the election is held. The expression presupposes that an election can yet be held within the term in which the vacancy occurs to fill out the unexpired term. This satisfies the mandate of § 2 that justices be elected. An appointment is authorized only until the first general election can be held.

As further support for their view of the plain meaning of § 23, defendant and amicus argue that an appointee is given a right of holdover. This right of holdover, they say, is not unique to the 1963 Constitution, but was also present in Const 1850, art 6, § 14, and Const 1908, art 7, § 20. The present § 23 differs from the preceding two constitutions only by specifying the date (the next general election) at which a successor is elected and qualified.

The concept of a vacancy in an office entails the notion of the absence of a qualified person to exercise the powers of that office. The powers of an office can be exercised only during a term of that office so the period of a "vacancy” could not extend beyond the end of a term. If no appointment had been made to fill the vacancy in the term Justice Moody was serving at the time of his death, the vacancy would have continued only until the term ended. That an appointee "to fill a vacancy” could serve in an office beyond the end of the term of that office is self-contradictory. We know of no case where the appointed justice was authorized to hold over where the vacating justice would not have been. The first appointee to the probate court in the case of People ex rel Andrews v Lord, 9 Mich 227 (1861), was held authorized to serve until a successor was elected and qualified. The Court cited provisions both for the term of office and for the tenure of the appointee, each of which included holdover language. Essential to the appointee’s right to hold over was the concurrent right of the elected judge to hold over.

Const 1963, art 6, § 2 states a fixed and definite term of office of eight years. The elected holder of that term possesses no contingent right to sit beyond eight years. The constitution anticipates new terms occurring in each of the seven offices at eight-year intervals. So far as § 2 is concerned, at least, no event disturbs the commencement of these terms, which are ordinarily filled by election. So far as Michigan voters are concerned, a new eight-year term commenced at noon on January 1, 1983, which they filled at the last general election. It cannot be the plain meaning of § 23 that the death of Justice Moody one month prior to the expiration of his term gave his appointed successor the right to extend that term for two years when Justice Moody could not have done so. The appointee could not fill a vacancy and be clothed with greater rights than those held by the predecessor. We do not believe that § 23 may be read to alter the scheme of § 2.

As a separate argument, defendant and amicus contend that an elected justice does possess a right to hold over. Under this argument, Justice Moody’s failure to qualify after his election to succeed himself meant that no vacancy arose on January 1, 1983. The appointee stepped into Justice Moody’s first term of office to serve until a successor is elected and qualified at the next general election. The right of an elected justice to hold over, it is said, comes from MCL 168.399; MSA 6.1399, which reads:

"The term of office of justice of the supreme court shall be 8 years, beginning on the first day of January next following the election and shall continue until a successor is elected and qualified.”

This statute, however, was last amended in 1954, prior to adoption of the 1963 Constitution, and since constitutional provisions prevail, only statutes predating the 1963 Constitution which are not repugnant to it have any force. Const 1963, art 3, § 7. The Legislature may not increase or diminish a constitutional term of office. See Attorney General ex rel Cook v O'Neill, 280 Mich 649, 663; 274 NW 445 (1937) (Potter, J., concurring). That part of § 399 which attempts to add to the term of office of a Supreme Court justice contravenes Const 1963, art 6, § 2, and is therefore void.

We are further convinced that the constitution did not intend to authorize a Supreme Court justice to hold over because of the presence of express holdover language in other parts of Article 6. Court of Appeals judges, Const 1963, art 6, § 9, circuit judges, Const 1963, art 6, § 12, and probate judges, Const 1963, art 6, § 16, are all authorized to hold office for six years "and until their successors are elected and qualified”.

Such language is conspicuously absent from § 2 stating the term of office for Supreme Court justices. Expressio unius est exclusio alterius. The contingent right of holdover is not an inherent incident of a term of office, Toy ex rel Elliott v Voelker, 273 Mich 205; 262 NW 881 (1935). We conclude that a Supreme Court justice’s term of office is eight years without right of holdover. For this reason, Andrews, supra, Lawrence v Hanley, 84 Mich 399; 47 NW 753 (1891), and Baxter v Latimer, 116 Mich 356; 74 NW 726 (1898), cited by defendant and amicus, are inapposite.

The appointment to fill a vacancy in the final months of a term of office must end with the term. The appointee cannot succeed to rights greater than those held by the vacating justice.

Under the majority rule, which we here adopt, a public officer may validly make a prospective appointment to fill a vacancy certain to occur in a public office only where the appointing officer would be empowered to fill the vacancy when it actually occurs. Anno: 75 ALR2d 1277. Thus, Governor Milliken’s appointment of defendant could not have any legal effect to fill the vacancy occurring January 1, 1983, because such vacancy arose after the expiration of his term of office. Although the vacancy was certain to occur on January 1, 1983, by reason of the death of Justice Moody, it could not arise prior to January 1, 1983. A vacancy in an office is a vacancy arising during a term of office. In the present case, there was no vacancy to be filled in the new term of office until that term commenced.

The Governor in office at the beginning of the term to which Justice Moody had been elected has the power to fill the vacancy arising in that term by Justice Moody’s inability to enter upon the duties of the office when the term began.

Judgment may enter. No costs, a public question.

1 Defendant has also argued that our interpretation will create a critical shortage of appointees. Defendant feels it is absurd to suggest that anyone would surrender a respectable position to accept an appointment for a period of only a few weeks or months.

We are unpersuaded by this supposed difficulty. In 1933, a similar situation arose and was resolved without the dilemma defendant predicts. On August 31, 1933, Justice Clark resigned four months before his term expired. Governor Comstock appointed Thomas Weadock, a distinguished private practitioner, on September 1. This appointment continued only until December 31, 1933; on January 1, 1934, the winner of the April election stepped into office. Therefore, although the appointment lasted only four months, an appointee was found to fill the office.

2 The majority rule prohibits such an appointment. Anno: 75 ALR2d 1277.

3 The disinterested public purpose of the admonitions by defendant and amicus concerning the media reports of judicial political bias would have been more impressive if uttered in a non-adversarial context.