Plan to nix judge age limit unlikely for November ballot

By Lee Dryden

The Daily Record Newswire

DETROIT - Despite the efforts of a Michigan Court of Appeals judge to draw attention to what he calls age discrimination against judges, it appears to be a longshot for the issue to get on the November ballot.

Measures in both the House and Senate to remove the age limits for judges have languished for a year.

Meanwhile, Judge Peter D. O'Connell is continuing his legal battle to get on the ballot this year even though he isn't up for re-election. His effort is aimed at raising awareness of what he calls an unfair, outdated rule that judges cannot seek re-election once they turn 70.

The longtime jurist - who turns 68 this year - is barred from running in 2018 by the age limit. His current term expires Jan. 1, 2019.

The state's top elections official has told O'Connell he can be on the ballot this year if he gathers signatures, but he won't be listed as an incumbent. The judge challenged that ruling via a lawsuit.

The Court of Claims dismissed the case in March, saying it didn't have jurisdiction. But the appeals court reversed that decision in an opinion released June 24. O'Connell has been told he can run but that he needs to collect signatures and can't be listed as the incumbent.

O'Connell has stressed the age discrimination issue is more important than an election. He is hoping his efforts will spur action by lawmakers.

"I absolutely thought they would pass one of them so people could vote on it this November," he said.

"I'm hoping my lawsuit will change their attitudes."

Why no action?

Senate Joint Resolution J would abolish the age limit for judges. It was approved by the Senate Judiciary Committee last summer and is pending before the full Senate. House Joint Resolution S would raise the age limit from 70 to 75, but the bill sponsor said it has been amended to abolish the limit like the Senate version. It is pending in the House Committee on Elections.

In October 2015, the State Bar of Michigan Representative Assembly voted 71 to 37 with two abstentions to support the Senate resolution and 57 to 49 with three abstentions to support the House resolution.

Both are constitutional amendments that would require voter approval after clearing the Legislature. Sept. 9 is the deadline to place the measures on the November ballot. Lawmakers are on summer recess until early September, other than single dates in July and August where little action is expected.

Sen. Steve Bieda, D-Warren, is the sponsor of Senate Joint Resolution J. He said it is unlikely there will be action in time to place it on the ballot this year.

"I've haven't had a commitment from leadership," he said. "I've asked a number of times and I think we have support for it, but it is a leadership call and they'll do it when they want to do it.

"It is something that I've been proposing for a number of years."

It doesn't appear as if the issue is on the radar of the Republican leader who sets the agenda in the state Senate.

Amber McCann, spokesperson for Senate Majority Leader Arlan Meekhof, R-West Olive, said, "Right now, there's no plans to take up the resolution and it really hasn't been a topic in the caucus in terms of a discussion for quite some time, probably because we've just been preoccupied by other issues like the budget and Detroit schools and so forth.

"It's not slated for any action at this time but we also haven't determined a fall agenda yet."

Staff for House Speaker Kevin Cotter, R-Mount Pleasant, did not return a call seeking comment.

House Joint Resolution S is sponsored by Rep. Hank Vaupel, R-Fowlerville. He said there is still hope to get it before voters in November, but acknowledged the tight timeframe.

"We will try to get that moving as soon as we can," he said.

Vaupel said the measure was amended to completely remove the age limit after hearing concerns from lawmakers at a March hearing.

"There was some question on the part of the elections committee on whether they want to take it up," he said.

The representative doesn't believe widespread opposition is the reason for the inaction.

"I think other priorities were the main thing," he said.

Vaupel became aware of the age issue after speaking with a local judge who will be barred by the age limit from seeking re-election.

Voters should be able to decide whether they want to re-elect a judge who is more than 70 years old and in good health, Vaupel said.

"When the statute was originally written, people had a much shorter lifespan," he said.

The age limit was added to the 1908 state constitution via a 1955 amendment.

While the age limit is in the constitution, that doesn't mean it isn't age discrimination, said O'Connell, who added that he has spoken with lawmakers who agree.

"It's not controversial, but no one is willing to take it up," he said. "It's a negotiation process in the Legislature. It's really difficult when only one person is asking the Legislature to make a change."

O'Connell said he would be satisfied with approval of either resolution. He said the state is risking future lawsuits without action.

"Eventually, someone in the future is going to file a lawsuit and claim it's age discrimination," he said.

O'Connell's case

O'Connell's lawsuit asserts that he is entitled to be on this year's ballot as an incumbent for a six-year term expiring January 1, 2023.

In an email to state elections director Christopher M. Thomas, O'Connell cited the state constitution. "The pertinent constitutional provision is art 6, § 24 which reads: 'There shall be printed upon the ballot under the name of each incumbent justice or judge who is a candidate for nomination or election to the same office the designation of that office,'" he wrote.

Thomas' letter to O'Connell states that if the judge intends to run this year - before the expiration of his term to which he was elected in 2012 - he must "file nominating petitions and appear on the ballot without the incumbency designation."

"The phrases 'to the same office' and 'for the office' must be understood to refer to the term of office provided for in MI Const Art, §9, which reads, 'Judges of the court of appeals shall hold office for a term of six years and until their successors are elected and qualified,'" he wrote.

O'Connell declined to gather signatures to get on the ballot.

Ballots have been completed for the August primary. Judge Michael F. Gadola is the only candidate in the Court of Appeals Fourth District so no primary will be held.

It is still possible for O'Connell to be included on the November ballot, but Sept. 7 is the deadline, Thomas said.

O'Connell's mandamus action in the Michigan Court of Claims was dismissed in March for lack of subject matter jurisdiction.

Court of Claims Judge Cynthia Diane Stephens raised the jurisdictional issue sua sponte in O'Connell v. Director of Elections, et al. (MiLW No. 14-91190, 9 pages).

Stephens ruled that the "Michigan Constitution specifically confers upon the circuit court the power to issue, hear and determine prerogative and remedial writs," which include writs of mandamus.

O'Connell's appeal remains in the Court of Appeals, after the Michigan Supreme Court denied an application for leave to appeal.

Published: Mon, Jul 04, 2016

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