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Judge who can’t run as incumbent for seat appeals

Jennifer Chambers
The Detroit News

A Michigan judge on Friday appealed a recent state Court of Appeals’ ruling that says he cannot run as an incumbent in a race for another jurist’s seat to avoid the state’s age limit on jurists.

Court of Appeals Judge Peter O’Connell, who serves in the 4th District in the northern half of the Lower Peninsula, wants to run for an open seat in his district that belongs to Judge Michael Gadola, appointed by Gov. Rick Snyder in 2015, to fill a vacancy. That term expires Jan. 1, 2017.

O’Connell will be 70 when his six-year term ends in 2019, making him ineligible to run for re-election. Under the Michigan Constitution, judges cannot seek re-election once they turn 70.

The longtime jurist had hoped to relinquish his nonpartisan seat ahead of schedule to run for Gadola’s seat.

But on Thursday, the Court of Appeals issued an opinion affirming a previous Court of Claims ruling that says O’Connell is not the incumbent for the position held by Gadola.

“Our Constitution links the term ‘incumbent’ to a definite and specific office. The office for which Judge O’Connell seeks to run as an incumbent is now held by Judge Gadola. Judge O’Connell is not ‘the incumbent’ for ‘the office’ held by Judge Gadola,” a three-judge appeals panel wrote in a seven-page opinion.

On Friday, O’Connell said he filed an appeal with the Michigan Supreme Court and his main goal to draw attention to age discrimination has been successful.

“The opinion conflates the words ‘office’ with the words ‘term of office’ and concludes that only one judge can be ‘the incumbent’ for a term of office. This is manifest error, as we all know, sometimes two or three judges occupy the same term of office,” O’Connell said. “Each election there is more than one Court of Appeals judge running for the same term.”

Attorneys for the state have alleged O’Connell is trying to bypass 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. State officials told the judge he could appear on the ballot, but had to collect the necessary signatures and wouldn’t appear as an incumbent.

After state election officials in February rejected letting him on the ballot as an incumbent candidate, O’Connell filed a lawsuit in the Michigan Court of Claims against the state’s director of elections, the Bureau of Elections as well as the Michigan Department of State to force them to put his name on the ballot.

Gadola’s name will appear on the November ballot as the incumbent running for the seat, but O’Connell claimed he also is “an incumbent judge of the Court of Appeals” and didn’t need petition signatures, a three-judge panel wrote Thursday.

O’Connell’s name does not appear on any ballot in Michigan this year.

In an opinion issued Aug. 16, Court of Claims Judge Cynthia Diane Stephens denied O’Connell’s complaint seeking to have his name placed on the ballot as an incumbent, saying he failed to prove he is one.

Stephens’ writing also stressed the state Constitution shows “that each judicial office has its own particular term and that such a term is to be understood as being separate and distinct from the terms of other judicial offices in a given district.”

JChambers@detroitnews.com