By By JOHN EBY / Niles Daily Star
CASSOPOLIS -- An attorney for Cass County Prosecutor Victor Fitz notified Clerk-Register Ann Simmons to "respectfully demand" that prosecutor candidate Mark Herman's name be removed from the Aug. 3 primary election ballot.
A June 14 letter from Grand Rapids attorney Frank Stanley concludes, "If this demand is not complied with within 10 calendar days of this letter, please be advised that I will be filing a complaint in the Circuit Court of Cass County demanding that your office perform its legally required duties."
Simmons consulted state Elections Director Chris Thomas for advice and said Monday afternoon she was still awaiting his reply.
Herman's name was placed on the Aug. 3 ballot on the basis of a petition he filed with the clerk's office May 7.
Stanley wrote, "Victor Fitz desires that the citizens of Cass County be insured a constitutionally valid election. It is our expectation that Mark Herman would also desire a constitutionally valid election result for the citizens of Cass County. It is essential that all citizens of this state, particularly those who seek public office, abide by the safeguards and requirements of our state constitution.
Stanley said it is their position that Herman is unqualified to be a candidate because he served as a Cass County Family Court referee from January 2003 through May 10. He cited the Michigan Constitution, Article 6, Section 21, as amended in 2003, to state, "Any justice or a judge of a court of record shall be ineligible to be nominated for or elected to an elective office other than a judicial office during the period of his service and one year after."
Michigan Court Rule 9.201(B)(2) as promulgated by the state Supreme Court includes a magistrate or referee within the word "Judge."
Specifically, "A judge is defined to include … a magistrate or referee."
Since Family Court is a court of record and the office of prosecutor is not a judicial office, and because Herman served as a judicial officer until May 10, he is not eligible to run for county prosecutor until May 2005.
Stanley cites Michigan's Code of Judicial Ethics Canon 7, Section 3, which states that "(a) judge should resign from judicial office before becoming a candidate either in a party primary or a general election for non-judicial office."
Stanley also cites Judicial Tenure Commission Advisory Opinion 111 of April 22, 1988:
Inquiry: Whether a juvenile court referee is a "judge" for purposes or MCJC 7A(3) and must resign referee office before seeking election to a non-judicial office.
Opinion: MCR 9.201(2) interprets MCJC 7A(3) to consider a magistrate or referee of a court to be a "judge." This is supported by the Compliance Section of the American Bar Association's expressed policy, for purposes of the code, that the title "judge" includes any officer of a judicial system performing judicial functions. Thus, compliance with MCJC7A(3) requires the resignation of a referee prior to becoming a candidate for a non-judicial office.
Fitz told the Daily News this morning, "Both candidates have an obligation to uphold our constitution and the law. My job is to make sure the law is upheld," no matter the personalities involved, or the impact, such as if it's a popular decision.
Mindful of the potential for an electoral backlash, Fitz said he decided to be upfront and not to "cloak" the move by involving a third party, as others counseled.
Herman described himself as "a little surprised," but maintains that "I'm not a judge. I don't think it applies to me." He said there are other provisions which can be interpreted differently. Herman said he did not enjoy the powers or financial benefits of a judge. He did not issue orders, but recommendations which had to be countersigned by a judge. If he was truly a judge, Herman said, he could not have been fired by Judge Susan Dobrich.