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Hello,
I am researching the elected position of Prosecuting Attorney at the
county level in Michigan. I'd like to know what the legal
requirements are for this position, for the purpose of contributing to
an article examining the benefit of electing versus appointing this
person.
My most specific is, are candidates for this position required to be
members of the Michigan Bar? I cannot find a reference to this. I
have found a list of duties of the office
(http://www.michiganprosecutor.org/PA-Duty.htm) which include tasks
that I think require the person to be a member of the Bar. (For
example, "represent the County in criminal matters before the
District & Circuit Courts") However, I would like to address the
question as to whether a person holding the office of Prosecuting
Attorney could perform those kinds of duties through the direction of
his Assistant Prosecutors. That is, even if a candidate is not
required to be a member of the Bar to seek election to the office, can
he legally perform his duties that he takes on when he is sworn in, if
he is not a member of the Bar?
I have consulted the Michigan Constitution, but the only reference I
have found is Article VII Sec. 4, which states "There shall be
elected for four-year terms in each organized county a sheriff, a
county clerk, a county treasurer, a register of deeds and a prosecuting
attorney, whose duties and powers shall be provided by law."
(http://www.legislature.mi.gov/printDocument.aspx?objName=mcl-article-vii-4&version=txt)
I have also asked the office of the Michigan Attorney General, who
referred me to the MI Constitution, and the office of the local
prosecutor, who has not returned my call.
Can any of you point me in the right direction for finding this
information? I am assuming that it is available in public documents
somewhere, but I don't know where to look. Do we need to hire an
attorney (or someone who is trained in the law) for an opinion on this
subject, or is there a simple list of requirements somewhere? Is this
addressed at the county level or at the state level? I have found many
specific requirements for Assistant Prosecutors through job posting
sites, but I cannot find anything for the elected position.
Thank you for your help,
Christine
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In article <7fc9a1hgefjsh56m92f7lerg7piei0ko9f@4ax.com>,
<christinebarry@gmail.com> wrote:
Hello,
I am researching the elected position of Prosecuting Attorney at the
county level in Michigan. I'd like to know what the legal
requirements are for this position, for the purpose of contributing to
an article examining the benefit of electing versus appointing this
person.
My most specific is, are candidates for this position required to be
members of the Michigan Bar?
The prosecuting attorney is nominally a part of the 'executive' branch of
government. I question whether the judicail branch _can_ impose eligibility
requirements.
There is a *real* 'can-of-worms' there, in regard to the equality/independancy
of the various branches of gov't.
I cannot find a reference to this. I
have found a list of duties of the office
(http://www.michiganprosecutor.org/PA-Duty.htm) which include tasks
that I think require the person to be a member of the Bar. (For
example, "represent the County in criminal matters before the
District & Circuit Courts") However, I would like to address the
question as to whether a person holding the office of Prosecuting
Attorney could perform those kinds of duties through the direction of
his Assistant Prosecutors. That is, even if a candidate is not
required to be a member of the Bar to seek election to the office, can
he legally perform his duties that he takes on when he is sworn in, if
he is not a member of the Bar?
I have consulted the Michigan Constitution, but the only reference I
have found is Article VII Sec. 4, which states "There shall be
elected for four-year terms in each organized county a sheriff, a
county clerk, a county treasurer, a register of deeds and a prosecuting
attorney, whose duties and powers shall be provided by law."
(http://www.legislature.mi.gov/printDocument.aspx?objName=mcl-article-vii-4&version=txt)
I have also asked the office of the Michigan Attorney General, who
referred me to the MI Constitution, and the office of the local
prosecutor, who has not returned my call.
Can any of you point me in the right direction for finding this
information? I am assuming that it is available in public documents
somewhere, but I don't know where to look.
All the Michigan statutes are available on-line at:
<http://www.legislature.mi.gov/mileg.asp?page=Home>
Chapter 49 is all about prosecuting attornies
Chapter 168 is election law.
Do we need to hire an
attorney (or someone who is trained in the law) for an opinion on this
subject, or is there a simple list of requirements somewhere?
There *has* to be a simple list, somewhere. it may be a *very* short list.
Is this
addressed at the county level or at the state level? I have found many
specific requirements for Assistant Prosecutors through job posting
sites, but I cannot find anything for the elected position.
Those 'requirements' are 'what kind of person the county will consider hiring',
Does not necessarily mean that those characteristics are required by law.
As I read MCL 168.191, the *only* eligibiilty requirements are:
1) residency in the county.
2) no conviction for violation of MCL 38.412a within the prior 20 years.
168.195 and 168.199 seem to impose an additional requirement -- that the
candidate be *alive*. <grin>
the MI Legislature web-site says:
"Please call the Michigan Law Library at (517) 373-0630
for legal reference questions."
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I am researching the elected position of Prosecuting Attorney at the
county level in Michigan. I'd like to know what the legal
requirements are for this position, for the purpose of contributing to
an article examining the benefit of electing versus appointing this
person.
My most specific is, are candidates for this position required to be
members of the Michigan Bar?
As you are aware, a person must be licensed as an attorney to represent
another person in a Michigan court. Therefore, one cannot "appear" in
court for another unless so licensed. Thus, the answer to your
question lies in the following Michigan statute:
"49.153 Prosecuting attorney; duties.
Sec. 53.
The prosecuting attorneys shall, in their respective counties, appear
for the state or county, and prosecute or defend in all the courts of
the county, all prosecutions, suits, applications and motions whether
civil or criminal, in which the state or county may be a party or
interested."
Since the statute requires the prosecuting attorney to "appear", s/he
must be licensed to practice law in order to fulfil prosecutorial
duties.
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In article <7v1ea1piupc2r427m60j9vh9ahoc5v91i1@4ax.com>,
A Michigan Attorney <miattorney@gmail.com> wrote:
My most specific is, are candidates for this position required to be
members of the Michigan Bar?
As you are aware, a person must be licensed as an attorney to represent
another person in a Michigan court. Therefore, one cannot "appear" in
court for another unless so licensed. Thus, the answer to your
question lies in the following Michigan statute:
"49.153 Prosecuting attorney; duties.
Sec. 53.
The prosecuting attorneys shall, in their respective counties, appear
for the state or county, and prosecute or defend in all the courts of
the county, all prosecutions, suits, applications and motions whether
civil or criminal, in which the state or county may be a party or
interested."
Is the state or county a "person"?
If so, does the statute requiring the prosecuting attorney to appear
override the UPL statute?
Seth
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Seth Breidbart wrote:
As you are aware, a person must be licensed as an attorney to represent
another person in a Michigan court. Therefore, one cannot "appear" in
court for another unless so licensed. Thus, the answer to your
question lies in the following Michigan statute:
"49.153 Prosecuting attorney; duties.
The prosecuting attorneys shall, in their respective counties, appear
for the state or county, and prosecute or defend in all the courts of
the county, all prosecutions, suits, applications and motions whether
civil or criminal, in which the state or county may be a party or
interested."
Is the state or county a "person"?
Not strictly speaking. But criminal actions here are captioned "The
People of the State of Michigan vs. ____________". So in even a
technical sense, the prosecutor is appearing on behalf of other
"persons". Seen another way, the prosecutor is not bringing the action
in pro per, so he must be representing another.
If so, does the statute requiring the prosecuting attorney to appear
override the UPL statute?
Not that I can imagine. The statutes are not in conflict on their
faces because the prosecutor's statute is silent regarding licensing,
and the UPL statute is silent regarding prosecuting attorneys. What
constitutes the practice of law is left to the courts to decide on a
case-by-case basis, and I don't think the issue has ever been raised
regarding a non-licensed prosecutor, so it's really an open question.
But I cannot imagine the appellate courts ruling that a prosecuting
attorney need not be admitted to the bar.
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