Appeals judge sues to bypass term limit based on age

Jennifer Chambers
The Detroit News

A 68-year-old Michigan Court of Appeals judge who is ineligible to run for re-election when his seat expires in 2019 because of his age is suing state elections officials so he can instead be placed on a ballot for an open seat this year.

State Appeals Judge Peter O’Connell will be 70 when his six-year term is up, making him ineligible to run for re-election in the state appeals court’s 4th District in the northern half of the Lower Peninsula. Under the Michigan Constitution, judges cannot seek re-election once they turn 70. The restriction was added in 1955.

Instead of being aged out, O’Connell wants to give up his nonpartisan seat — three years ahead of schedule — and run in August for an open seat in his district that currently belongs to Judge Michael Gadola, who was appointed to the seat in 2015.

After he was rejected as an incumbent candidate last month, O’Connell filed a lawsuit in the Michigan Court of Claims against the state’s director of elections, the Bureau of Elections and the Michigan Department of State to force them to put his name on the August primary ballot.

Attorneys for the state allege O’Connell is trying to get around the age restriction by running for a seat that is not his and, if allowed to do so, would create a new vacancy on the bench should he win in the November election. They filed a response on March 3, rejecting his argument that he should be named an incumbent in the race.

A hearing on the issue will be held Tuesday in Detroit.

Reached by phone on Monday, O’Connell said over the years he has watched some of the best judges in the appellate system age out: Marilyn Kelly (24 years on the appeals court and Michigan Supreme Court), Michael Cavanagh (39 years on the appeals and supreme courts) and E. Thomas Fitzgerald (24 years on the appeals court). O’Connell has served as an appeals court judge since 1994.

“Nobody is willing to stand up and say this is wrong. My main goal in this litigation is to bring attention to the fact that the (Michigan) Constitution has a blatant age discrimination clause,” O’Connell said. “The reality of it is people are living longer. There is no reason to get rid of a senior judge if they are still capable of doing the job.”

In its response to the lawsuit, the Michigan’s Attorney General’s Office said O’Connell has no clear legal right to be listed as the incumbent judge for a seat that he doesn’t currently occupy.

“To support his argument, plaintiff relies on a prior version of Michigan’s Constitution, outdated case law, mistaken assumptions and characterizations that the state defendants are compelled to correct,” attorneys for the state said in their legal response to the complaint.

O’Connell’s attorney, Allan Falk, said state officials told O’Connell he could appear on the ballot, but he’d have to collect the necessary signatures and wouldn’t appear as an incumbent, according to a January letter from the state director of elections, Christopher Thomas.

The lawsuit specifically alleges that Thomas had no authority to interpret the state’s constitution in a way that prohibits both O’Connell and Gadola from appearing on the ballot as incumbents at the same time.

“They are making their interpretations up,” Falk said.

The Attorney General’s Office again disagreed.

“Finding that (director of elections and the bureau of elections) have a clear legal duty to recognize multiple incumbents for a single office would violate the plain language of Michigan’s Constitution and election, and also offend the reasonable common sense interpretation,” attorneys for the AG said.

Gadola, meanwhile, filed paperwork on Feb. 16 to run for his seat. He did not return a call seeking comment.

O’Connell’s efforts to raise awareness of the issue are getting the attention of state lawmakers in Lansing.

The House Elections Committee heard testimony Wednesday on House legislation that would raise the judicial age limit from 70 to 75.

No vote was taken, but it was the first time the committee took up the measure introduced last year.

A Senate measure, meanwhile, would abolish the age limit for judges.

It was approved by the Senate Judiciary Committee last summer and is pending before the full Senate.

Both legislative proposals would require voter approval to amend the state constitution.

O’Connell said he supports both measures.

“Age discrimination is legally and morally and ethically wrong,” O’Connell said.

In the lawsuit, Falk asked the Michigan Court of Claims to order the elections office to accept O’Connell’s filing.

Judge Cynthia Diane Stephens denied a request on Feb. 29 to require the Attorney General to answer in less than 21 days, but ordered both sides to a status conference at 11 a.m. on Tuesday.

There are about 590 judges in Michigan, according to the Michigan Supreme Court office. Thirty-two judges were ineligible to run in 2014 because of the age limit.