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:
person seeking the writ has a clear, legal right to the duty sought
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.
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:
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.”
Labels: Court of Appeals, court of claims, Judge Peter O'Connell, United States Constitution