February 16, 2023
The Honorable Dana Nessel
State of Michigan
PO Box 30217
Lansing, MI 48909
Re: Unconstitutionality of Kyra Harris Bolden’s Appointment
Dear Attorney General Nessel,
I am concerned with the constitutional validity of the appointment of Kyra Harris Bolden to the Michigan Supreme Court. My position is that Mrs. Bolden’s appointment was in violation of the Michigan Constitution. Before exploring the legal issues, I will first outline the relevant factual background supporting my position.
On Tuesday, November 22, 2022, Governor Whitmer announced that she was appointing Kyra Bolden to fill a vacancy on the Michigan Supreme Court. At the time of the announcement, Mrs. Bolden was serving as a State Representative for Michigan’s 35th House District – a term which began at noon on January 1, 2021 and ended at noon on January 1, 2023. Mrs. Bolden’s legislative duties included serving as the Assistant Democratic Leader of the Democratic caucus, which is an important and powerful position within the Michigan House of Representatives. Moreover, at the time of the announcement of Mrs. Bolden’s appointment, the Legislature was actively meeting and considering important legislative matters. On January 1, 2023, Kyra Bolden officially took a public oath of office on the Capitol stage to become a Michigan Supreme Court Justice.
Considering these facts, the question at issue regarding the announcement of Mrs. Bolden’s appointment on November 22, 2022, is whether this appointment violated Article 4, Section 9, of the Michigan Constitution. As explained below, I believe the answer to that question is yes. Article 4, Section 9, of the Michigan Constitution provides that:
“No person elected to the legislature shall receive any civil appointment within this state from the governor, except notaries public, from the legislature, or from any other state authority, during the term for which he is elected.”
In interpreting the Michigan Constitution, the Michigan Supreme Court has stated that, “[i]t is a fundamental principle of constitutional construction that we determine the intent of the framers of the Constitution and of the people adopting it.” Holland v. Heavlin, 299 Mich. 465, 470 (1941).
In the case of Mrs. Bolden’s appointment, it must be discerned what the framers intended when they adopted a constitutional provision disqualifying a legislator from receiving “any civil appointment within this state from the governor… during the term for which he is elected.”
In Young v. Edwards, 389 Mich. 333 (1973), the Court discussed the intent of the framers and the basic purposes for why legislators are ineligible for civil appointments from the governor during their elected terms. The court stated that among the basic purposes for why this constitutional provision exists is to “prevent vote trading or log rolling in the Legislature to gain an appointment.” Young, 389 Mich at 344. The drafters of the constitution were clearly concerned with protecting the separation of powers that represents the very foundation of our Republic. To that end, Article 4, Section 9, was included as a check against a governor who might seek to wield influence over the legislative process by promising civil appointments to legislators.
In the case of Mrs. Bolden’s appointment, if this constitutional bar on a legislator receiving a civil appointment during the term for which they are elected is to have any substantive meaning, then Governor Whitmer’s announcement of Mrs. Bolden’s appointment on November 22, 2022, was unconstitutional and violated both the letter and spirit of Article 4, Section 9. Although I do not make any claims that Mrs. Bolden engaged in “vote trading” or “log rolling” in the Legislature to gain an appointment to the Michigan Supreme Court, it seems abundantly obvious that this is exactly the type of situation that Article 4, Section 9, was enacted to protect against. Mrs. Bolden, as the Assistant Democratic Leader in the Michigan House, was an important and influential legislative leader. While still serving in this capacity, the governor announced her appointment during her elected term and while the Michigan House was still actively holding legislative sessions and considering legislation.
It will likely be argued that Mrs. Bolden did not “receive” her appointment until January 1, 2023, when she was officially sworn in. However, as discussed above, if this argument is to be taken seriously, then Article 4, Section 9, lacks any substantive meaning. For example, anybody who follows the workings of the Michigan Legislature understands that the most significant legislation often comes during the final month or so of the legislative schedule, a period often referred to as “lame-duck.” A governor, seeking to sway the legislative process during the final months, could easily influence the legislative process through the announced appointment of certain legislators.
Moreover, Mrs. Bolden officially became a Supreme Court Justice on the morning of January 1, prior to 10am, thus “during her term” as a member of the Michigan Legislature. She assumed duties and publicly held herself out as a Justice of the Supreme Court, even swearing-in Governor Whitmer on stage prior to noon, which was still during her term as a state Representative as her legislative term didn’t end until noon. Article XI, Section 2, and MCL 168.173 specifically states that “the terms of office of elective state officers, members of the legislature and justices and judges of courts of record shall begin at twelve o’clock noon on the first day of January next succeeding their election”. This judicial term of office also wasn’t a new term that had a set beginning on January 1, but rather it’s a continuation of Justice McCormack’s term that began on January 1, 2021.
Ultimately, whether Mrs. Bolden unlawfully holds the office of Michigan Supreme Court Justice under Article 4, Section 9, is a question for the Courts of Michigan to decide. However, the proper action, known as an action for ‘quo warranto’, can only be brought by the Michigan Attorney General or upon application to the Attorney General under Michigan Court Rule 3.306.
I therefore respectfully request that you immediately file an action in the Michigan Court of Appeals.
36th House District
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