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Judge sues to shed light on official age discrimination

Courtesy photo

A Michigan Court of Appeals judge has filed a lawsuit to draw attention to age discrimination mandated by the state constitution. The constitution bars a judge from running for election or re-election after age 70.

Judge Peter O'Connell has sued the Bureau of Elections to let him run as an incumbent two years early in 2016, instead of waiting until 2018.

If he waits to run for re-election when his six-year term expires in January 2019, the 67-year-old judge will be above the age limit and ineligible to run.

Director of Elections Christopher Thomas wrote O'Connell in January that if he wants to run in 2016 before his term expires, he would be required to file nominating petitions, instead of a less burdensome affidavit, and his name would not appear on the ballot with the advantageous incumbency designation. Thomas said that's because O'Connell would be running for a seat currently held by another judge, Michael Gadola, not for his O'Connell's own seat. O'Connell said since it's the same district, he ought to be able to call himself an incumbent even if the seat is held by another incumbent.

O'Connell filed his suit on February 12 in the Court of Claims.

O'Connell said the case is really about age discrimination.

"Age discrimination – any type of discrimination – is morally wrong, and it should be eliminated," O'Connell said.

"I love my job. I'm very good, in my opinion, at my job," said O'Connell. "And I'm not ready to be put out to pasture." 

O'Connell said the age restriction was incorporated into the Michigan Constitution more than 100 years ago when life expectancy was 48 years old, and it is no longer appropriate. 

"Seventy is the new 50," said O'Connell.

According to O'Connell, the Judicial Tenure Commission is the official watchdog over judges and is better suited to weeding out incompetence and disability in the judiciary, which could occur at any age, than a bright line age cut-off. 

A Michigan Supreme Court official said that in 2014, 24 Michigan judges were unable to seek re-election because of the age restriction. That's about 4% of the state's sitting 600 judges.

A 2012 Michigan Judicial Selection Task Force recommended the removal, by constitutional amendment, of the 70-year age limit on the election or appointment of judges.

O'Connell said he hopes his lawsuit will provide impetus for the Legislature to pass pending legislation introduced in 2015 that would allow voters to amend the state constitution to eliminate the age restriction or raise it to 75.

An analysis of the legislation by the Senate Fiscal Agency summarizes arguments on each side of the question.