Court of Appeals judge fighting 'age discrimination'

By Lee Dryden
The Daily Record Newswire

While he isn't up for re-election this year, Michigan Court of Appeals Judge Peter D. O'Connell wants to be on the ballot anyway.

He is taking a stand to highlight age discrimination against judges.

The longtime jurist - who turns 68 this year - is barred from running in 2018 by the state's rule that judges cannot seek re-election once they turn 70. 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.

O'Connell is challenging that ruling via a lawsuit in the Court of Claims. Aside from the difference of opinion on what the state constitution allows for listing incumbency, O'Connell's goal in addressing the issue is to draw attention to the age restriction.

"This case is about age discrimination," he said. "Age discrimination is morally, ethically and legally wrong."

Two proposals are pending before the state Legislature to ask voters to either raise or eliminate the age limit for judges by amending the state constitution. O'Connell has expressed support for both, as has the State Bar of Michigan.

There are no age limits for other elected positions in Michigan.

A challenge to the age limit

O'Connell, who was elected in 1994, points out the world has changed significantly since the judicial age limit was put in place in the 1908 Michigan Constitution.

"Basically, people only lived until age 46," he said.

The rule was left in place when the state constitution was updated in 1963.

"Judge O'Connell is merely one of many elected judges serving the people of Michigan with distinction, but facing forced discriminatory retirement in the prime of his judicial service," O'Connell's attorney Allan Falk wrote in a brief to the court. "Too many excellent jurists have been lost to public service by the current discriminatory policy.

"Judge O'Connell believes the time has come for someone to take a stand against a foolish practice of age discrimination against judges, and, always ready to rise up and be counted in defense of his cherished principles, he steps into the breach himself, rather than hold back and hope others will pick up the gauntlet."

Falk wrote that the "pernicious practice of age discrimination has, except for judges, been extirpated from the American work environment."

"For more than 40 years and counting, federal and state laws generally prohibit forcible retirements at a defined age limit, e.g., 29 USC §§621-634; MCL 37.2202(1)(a), expressing a broad societal consensus that age and ability are not so inextricably related that a person - other than one serving in the judicial branch, no such restriction existing for legislative or executive officers - who reaches a certain age must submit to being put out to pasture as having exceeded his or her useful life," he wrote.

O'Connell appointed out that, until the recent death of Justice Antonin Scalia, five of the nine U.S. Supreme Court justices were older than him.

"My goal is to publicize the fact the state is discriminating against its senior judges," he said. "I know what age discrimination feels like and it's wrong - I hope everyone will understand age discrimination is wrong."

Thirty-two Michigan judges were forced to leave the bench in 2014 because of their age, according to the State Court Administrative Office.

Retired Michigan Supreme Court Justice Michael F. Cavanagh left office at the end of 2014 after 32 years. He said he would have sought another term but was barred from doing so as he was 74 years old at the time.

"I didn't feel like I was ready for the full retirement," he said. "I think it's kind of arbitrary. We lose an awful lot of good people through that provision."

Cavanagh said there already is a mechanism for ousting incompetent judges, adding that judges of any age can be found to be incompetent.

The former justice may have left the bench but he hasn't retired. He is of counsel to Alane & Chartier PLC in Lansing, and will start hearing mediations soon after going through training.

"I feel I still have enough of my marbles that I can do a good job," he said.

No relief has come from the Legislature as two proposals on judges' ages have stalled.

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. It is pending in the House Committee on Elections.

Incumbency dispute

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 Jan. 1, 2023.

In an email to state elections director Christopher M. Thomas, O'Connell cited the Michigan 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.

O'Connell said, "The legal issue is very simple - what office do I hold."

Thomas reached a much different conclusion.

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

Thomas also made reference to the state constitution.

"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.

Thomas said his office views it as a term of office.

"They hold a particular seat that is elected at a particular time," he said. "He can run but not as an incumbent."

O'Connell praised Thomas as a fine elections director, but said the elections office's conclusion reads something into the constitution that isn't there. Falk's brief states that "term" is not linked to "office" in this case.

"'Term' is a modifier only where it appears and not where it does not appear -perhaps the most unremarkable proposition in the history of constitutional law," Falk wrote. "Even common citizens can mean what they say, and say what they mean."

O'Connell said he has no plans to take the alternate route to get on the ballot.

"I will not get signatures," he said. "I can get signatures - I'm not going to do it."

If O'Connell does get on the ballot, he will be competing for a Fourth District seat with Judge Michael F. Gadola. If Gadola seeks election as expected, he will have the incumbency designation, Thomas said.

Gadola was appointed to the court, effective Jan. 5, 2015. The constitution was changed to allow appointed judges to be identified as incumbents, Thomas said.

"It's hard to explain to voters why you've got one seat and two incumbents," Thomas said.

O'Connell said there have always been two or three incumbents on the ballot.

Falk added that Michigan Supreme Court justices run against each other, as do Congress members after redistricting.

O'Connell called Gadola an "excellent judge" and said, if he defeats Gadola, he will recommend that he be appointed to the seat vacated by O'Connell expiring Jan. 1, 2019.

The Fourth District will have six judges, rather than seven, at the end of the year as part of the effort to reduce the number of judges statewide by attrition. Judge Donald S. Owens is barred by the age limit from seeking re-election this year.

The judge stressed that he remains focused on his core issue.

"This is about age discrimination - not who wins an election," he said.

Published: Mon, Feb 29, 2016