AG's office won't opine on whether Macomb Co. judge can run for U.S. House

Melissa Nann Burke
The Detroit News

The Michigan Attorney General Dana Nessel's Office said Thursday it won't weigh in on whether a Macomb County judge is eligible to run for the U.S. House after he steps down from the bench.

Macomb County Circuit Court Judge Carl Marlinga had sought a legal opinion from Nessel's office about his eligibility to run for Congress this year, given a provision in the state constitution that requires judges to observe a one-year cooling-off period before seeking another office.

Marlinga argued the state law wouldn't apply to his situation because he thinks it conflicts with a 1995 ruling by the U.S. Supreme Court that found the U.S. Constitution prohibits states from imposing congressional qualifications in addition to those spelled out in the Constitution itself.


Marlinga, 75, of Sterling Heights has said he's "strongly" considering a run for Congress in the Democratic primary for the competitive new 10th District that covers parts of Macomb and Oakland counties. He aims to make a decision in the next week or so, and submitted his resignation to the court this week, effective 5 p.m. Friday. 

The Attorney General's Office wrote Thursday to Democratic state Sen. Paul Wojno, D-Warren, who had requested a legal opinion on Marlinga's behalf. The office declined to issue an opinion, saying it prioritizes requests affecting state government operations. Nessel is also a Democrat.

"Where an opinion request seeks advice on behalf of, or involving, a private person or entity, the Attorney General must usually decline the request," Chief Legal Counsel John VanDeventer wrote to Wojno. 

In the meantime, the Michigan Republican Party filed an ethics complaint against Marlinga on Wednesday with the state Judicial Tenure Commission, calling for an investigation.

The GOP argued that, given his position as a sitting judge, Marlinga’s political campaign activity violates Michigan judicial ethics rules, and that his potential campaign violates the state constitution.

“We have confidence in the judicial ethics commission, but if we fail to get what we’re looking for there, all options would be on the table for the party,” Michigan GOP spokesman Gustavo Portela said Thursday.

“It boils down to law and order and following the law. It’s become very clear that Democrats don’t have any other candidates who poll well, so it’s become clear that the fix in to get Marlinga as a candidate at all costs.”

Marlinga said he's done nothing wrong, and that he wanted the AG opinion because there's no Michigan law "on point." He said Thursday that attorney general's declining to weigh in is "good news." 

"I was just doing my due diligence, making sure that I didn't have the attorney general with a different opinion than I had," Marlinga said.

He noted that situation has arisen before, involving a Republican. Oakland County Circuit Court Judge Alice Gilbert resigned from the bench in May 1992 to run in the August 1992 Republican primary for U.S. House in the 11th District. She lost to Joe Knollenberg. 

"I don’t feel the need to go into court because the U.S. Supreme Court case says it all," he added. "If the Republicans want to challenge it in court, they're welcome to do so. But it's really of no concern at all because, as we learn in the seventh grade, the United States Constitution is the supreme law of the land."

Marlinga doubted that the GOP would bother because it would give him more publicity, and because the High Court's ruling from 1995, U.S. Term Limits, Inc. v. Thornton, is such a "strong" case, even though it arose under different facts involving a term limits amendment to the Arkansas Constitution. 

"Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers' vision of a uniform National Legislature representing the people of the United States," Justice John Paul Stevens wrote for the court in 1995. "If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended."

Marlinga said he might next seek an opinion letter from an expert in constitutional law to bolster his arguments.

Richard Primus, a constitutional law scholar at the University of Michigan, referred to the U.S. Term Limits v. Thornton case as the authority on questions about states adding to eligibility requirements for federal elected office. 

"Michigan law can impose a waiting period before someone runs for a state office," Primus said. "But it can’t impose a waiting period before a run for federal office."

Staff writer Craig Mauger contributed.