Judge Peter D. O’Connell likes being a judge of the Fourth District of the Michigan Court of Appeals, a position to which he was elected in 1994 and reelected as an incumbent every six years to this day. Unfortunately for Judge O’Connell, because he will reach his 70th birthday before his current term expires in November, under Michigan law he can’t run for re-election. Judge O’Connell’s solution to this conundrum was not to turn back the hands of time but to run as an incumbent for a Court of Appeals position beginning in Jan. 2017 currently held by Judge Michael Gadola.
In February 2016, Judge O’Connell submitted an affidavit of candidacy for reelection as an incumbent judge of the Court of Appeals, Fourth District. Judge Gadola filed his affidavit of candidacy for reelection as an incumbent judge for the same position. The Director of Elections promptly rejected Judge O’Connell’s affidavit. Judge O’Connell then sought an order of mandamus in the Court of Claims (COC), arguing that the director had a clear legal duty to place his name on the ballot as an incumbent.
The Court of Claims first rejected Judge O’Connell’s request stating it didn’t have subject-matter jurisdiction. Judge O’Connell appealed that decision. The Court of Appeals reversed the COC, sending the matter back for further proceedings. See our blog post of Sunday, August 7, 2016.
The COC Judge Cynthia Diane Stephens denied Judge O’Connell’s complaint for mandamus. Under case law, the issuance of a writ of mandamus is only proper where:
1. The person seeking the writ has a clear, legal right to the duty sought
2. The Director of Elections has a clear, legal duty to perform
3. The act is ministerial, and
4. There is no other remedy that might achieve the same results.
Whether Judge O’Connell has a “clear, legal right” to the performance of the duty sought and whether defendants have a corresponding “clear legal duty” to perform depend on whether Judge O’Connell is entitled to appear on the ballot as an “incumbent” in his bid for election to the office currently held by Judge Gadola. Judge Stephens rightly concluded the Judge had failed to establish he was an “incumbent” to that position and, because he had not filed nominating petitions as required for non-incumbents, he wasn’t entitled to be placed on the regular election ballot.
The Court of Appeals (COA) affirmed the COC in a published opinion COC No. 334365.
Judge O’Connell’s argument is this: every judge on the Fourth District of the Michigan Court of Appeals is an incumbent of “the same office.” And, as such, he can run as incumbent for a different position than the one to which he was elected. The COA rejected his argument as follows:
1. Const. 1963, Article 6, §22 contemplates that only certain judges are entitled to run as incumbents. It states that “Any judge of the court of appeals . . . may become a candidate in the primary election for the office of which he is the incumbent by filing an affidavit of candidacy. . . .”
2. Article 6, § 24 requires that judges seeking reelection to “the same office” they currently hold be designated as “Judge of the Court of Appeals” on the ballot.
The COC concluded: Art 6, § 22, “By referring to “the office of which he is the incumbent,” could not be plainer. With respect to the election scheduled for November 1, 2016, one judge is the incumbent for that judge’s office. Judge Gadola enjoys that status as to the term of office following the expiration of the term to which he was appointed; Judge O’Connell does not.”