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Judge tries bizarre tactic to circumvent Michigan's ageist election law

Aug 17, 2016

I’ve been covering politics for a long time, and inevitably, in every election year, amid the high drama and low insults, something happens that is just plain silly.

This year, as you may have noticed, has not been a typical presidential election in any way, shape or form. But what you might call the "Trumpville Follies" is not the only contender for what you might call the "Eugene Ionesco Prize for Best Real Example of the Theater of the Absurd."

I would give the local prize this year to Michigan Court of Appeals Justice Peter O’Connell.

He has been on the court for 22 years. His seat isn’t up for election this year, but O’Connell is running very hard anyway -- though not exactly for a different job. The Michigan Court of Appeals judge is running for a seat on the Michigan Court of Appeals.

Yes, you heard that right.

O’Connell is trying to knock off one of his colleagues, fellow Michigan Court of Appeals Judge Paul Gadola.

You might well ask, "why?"

Under current state law, a judge cannot run for reelection once he or she turns 70.

The answer seems to be a case of equal parts pure selfishness and Michigan’s ageist rules regarding how long a judge can serve.

Under current state law, a judge cannot run for reelection once he or she turns 70. But if they were elected prior to that date, they can finish out their terms, which in the case of the court of appeals, are six years.

So a judge who gets elected at age 69 doesn’t have to leave the bench until they are 75.

Judge O’Connell turns 68 this year, and his term doesn’t end until 2018, but he will hit the magic threescore and ten that year before the election, which would mean his career is over.

But if he were elected to a term this year, why, he’d still be on the court until he was 74, so he had the chutzpah to figure he would try to knock off his fellow justice and hang on for four more years.

Speaking of chutzpah, this all became public because O’Connell also wanted to appear on the ballot designated as an incumbent, in his quest to knock off his fellow incumbent.

This had to be resolved by yet another state court of appeals judge, Cynthia Stephens, who ruled against him. She ruled that even though O’Connell is already on the court and an incumbent, he can’t be designated as the incumbent when running against his fellow incumbent.

If you had a hard time following that, it probably means you are normal.

O’Connell plans to appeal this, naturally, so how this will all be resolved is still unknown. But I do know this: 17 years ago another Michigan judge I knew, David Breck, thought it wasn’t fair that he couldn’t run for reelection after age 70, and sued in federal court.

But he lost.

The federal judge who had the case ruled that the state law passed muster under the United States Constitution.

However, John Feikens, the judge who made that ruling, was over 80 at the time of his decision, and stayed on the bench till he died in office when he was almost 94. That’s because there are no age rules for federal judges.

I hope you weren’t expecting life to be fair.

Jack Lessenberry is Michigan Radio's political analyst. Views expressed in his essays are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.