Judge files lawsuit over ‘discriminatory’ age restrictions

LANSING - Three years into what would be his final term, a Court of Appeals judge has filed a lawsuit challenging the state's ban on judges over age 70 seeking re-election.

Judge Peter O'Connell, 67, will be ineligible to seek re-election when his term expires in January 2019, as his 70th birthday would be less than three months before the deadline. So he filed paperwork last year to have his name appear as an incumbent on this year's ballot. The problem, according to the Secretary of State, is Judge Michael Gadola is the incumbent judge up for re-election for the Court of Appeals' 4th District, which includes Ingham, Eaton and Clinton counties.

O'Connell could appear on the ballot, but he'd have to collect the necessary signatures and wouldn't appear as an incumbent, according to a January letter from the state director of elections, Christopher Thomas, to the judge.

The letter is one of the exhibits attached to O'Connell's lawsuit filed Friday in the Court of Claims, which handles lawsuits against the State of Michigan and its various agencies and employees.

"This case is about age discrimination," he said. "Age discrimination is morally, ethically and legally wrong. This case is my attempt to get attention to the state of Michigan's discriminatory policy against senior judges and justices."

The lawsuit specifically alleges the director of elections overstepped his authority by interpreting the state's Constitution in a way that prohibits both O'Connell and Gadola from appearing on the ballot as incumbents at the same time, and that the "office" O'Connell holds isn't up for re-election.

But the broader issue is the reason O'Connell is looking to be re-elected in 2016 instead of 2018.

The age restriction for judges was added in 1955. At the time, life expectancy was 69.6 years, according to National Center for Health Statistics, and it's now 78.8 years.

In the 2014 election, 24 Michigan judges were unable to seek re-election due to the age restriction, according to information from the state Supreme Court. Those judges made up 4 percent of the state's sitting judges. Information for judges unable to seek re-election in 2016 wasn't available.

"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," Allan Falk, O'Connell's attorney, wrote in the lawsuit.

The lawsuit isn't an attack on Gadola, Falk told the State Journal this week, O'Connell is bothered by the fact the state Constitution discriminates against people of his age.

Age rule increasingly controversial

In 2015, Michigan Supreme Court Chief Justice Robert Young Jr. told the Associated Press he’s not in favor of eliminating the age restriction, but believes it probably could be raised to account for longevity and advances in medicine. Young and Milton Mack, the state court administrator, declined to comment for this report through a spokesman because O’Connell’s lawsuit could make its way to the state Supreme Court.

A spokeswoman for the Secretary of State's office declined to comment, citing the pending litigation.

Two joint resolutions were introduced last year in the state Legislature — one in the House and one in the Senate — that would allow voters to either raise the age restriction to 75 or remove it completely.

The State Bar of Michigan supports both joint resolutions. The Michigan Judges Association supports the resolution to remove the restriction.

In 2012, now-retired Judge Thomas Eveland was among the judges unable to seek re-election. If he could, he said he likely would have sought another term as an Eaton County Circuit Court judge, but never entertained the idea due to the age restriction.

"As you progress over the years you gain a lot in experience and you're functioning, I think, better on some levels, in the sense that you have a lot of experience, which I this is really paramount in the law," he said. "On the other hand, you lose a certain amount of energy being on the job (for that long)."

Eveland said he would be in favor of the age restriction for judges being removed. His physical and mental health are still good, he said, and judges are the only state employees with an age restriction.

Several state elected offices have term limits. The governor can two, four-year terms. Members of the state's House of Representative can serve three, two-year terms, and state Senators can serve two, four-year terms.

O'Connell lives in Mt. Pleasant. He was elected to the Court of Appeals in 1994 after serving as a District Court judge in Isabella County for 16 years. He also spent time in the Isabella County Prosecuting Attorney's Office.

In a letter to state Sen. Rick Jones, R-Grand Ledge, in January 2013 about a Senate joint resolution removing the restriction, then State Court Administrator Chad Schmucker said longevity of adults is longer now than when the restriction was added, so a case could be made for reconsideration.

However, Schmucker wrote that it's difficult for someone to predict if they can still handle the job in five or seven years, so he suggested the age restriction might be raised, but not eliminated.

A bill analysis by the Senate Fiscal Agency for the newest joint resolution, which lists arguments for and against a bill, said removing the age restriction would undermine statewide efforts to reduce judgeships based on case loads because the reductions happen when sitting judges retire, usually once they hit the age restriction.

The analysis also states that since incumbency designation and the cost of a political campaign against a sitting judge are "powerful disincentives" against challengers, it's unlikely judges will be removed from the bench through elections if the restriction is removed.

Contact Matt Mencarini at (517) 267-1347 or mmencarini@lsj.com. Follow him on Twitter@MattMencarini.