O'Connell v. Dir. of Elections

• Decision Date: 25 August 2016
• Docket Number: Docket No. 334365.
• Citation: 317 Mich.App. 82,894 N.W.2d 113
• Parties: O'CONNELL v. DIRECTOR OF ELECTIONS.
• Court: Court of Appeal of Michigan — District of US

317 Mich.App. 82

894 N.W.2d 113

O'CONNELL

v.DIRECTOR OF ELECTIONS.

Docket No. 334365.

Court of Appeals of Michigan.

Submitted Aug. 24, 2016, at Lansing.

Decided Aug. 25, 2016, at 9:20 a.m.

Allan Falk, PC, Okemos (by Allan Falk ), for plaintiff.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Denise C. Barton, Erik A. Grill, Joseph Ho, and Adam Fracassi, Assistant Attorneys General, for defendants.

Before: GLEICHER, P.J., and METER and MURRAY, JJ.

PER CURIAM.

This action tests whether Judge PETER D. O'CONNELL , a judge of the Michigan Court of Appeals whose six-year term of office expires on January 1, 2019, may run as an incumbent for a Court of Appeals position with a term commencing on January 1, 2017. Judge MICHAEL F. GADOLA 's name will appear on the November 2016 ballot as the incumbent running for this seat. Judge O'CONNELL posits that he, too, is "an incumbent judge of the Court of Appeals." He asserts that this status entitles him to enjoy two privileges of incumbency: access to the ballot by filing an affidavit of candidacy, rather than petition signatures, and the ballot designation of "Judge of the Court of Appeals."

The controlling constitutional provision permits a judge of the Court of Appeals to run for "the office of which he is the incumbent" by filing an affidavit of candidacy. Const. 1963, art. 6, § 22 (emphasis added). We interpret the Michigan Constitution in the light of the common understanding of its terms, which we locate in the plain meaning of the text at the time of ratification. UAW v. Green, 498 Mich. 282, 286–287, 870 N.W.2d 867 (2015). The definite article "the" has consistently denoted a specific, particular thing. In this case, "the" makes all the difference.

Our Constitution links the term "incumbent" to a definite and specific office. The office for which Judge O'CONNELL seeks to run as an incumbent is now held by Judge GADOLA. Judge O'CONNELL is not "the incumbent" for "the office" held by Judge GADOLA. We affirm the Court of Claims, which reached the same conclusion.

I

In November 2012, the people of the Fourth District of the Court of Appeals reelected Judge PETER D. O'CONNELL to serve a six-year term of office. Judge O'CONNELL was first elected to the Court of Appeals in 1994 for a six-year term of office. He successfully ran for reelection as an incumbent in 2000, 2006, and 2012. His current term is set to expire on January 1, 2019. Judge O'CONNELL is prohibited from running for reelection in the November 2018 general election, as he then will have attained the age of 70 years. Const. 1963, art. 6, § 19 (3).

Governor Rick Snyder appointed MICHAEL GADOLA to the Court of Appeals in January 2015 to fill the vacancy created when Judge WILLIAM C. WHITBECK retired. Judge WHITBECK 's six-year term of office would have expired on January 1, 2017. 308 Mich.App vii. Judge O'CONNELL concedes that Judge GADOLA may run as an incumbent for that 2017–2023 term of office. Judge O'CONNELL seeks to run as an incumbent for the very same term of office, thereby avoiding the age-bar applicable to the term of office to which he was repeatedly elected.

In February 2016, Judge O'CONNELL submitted an affidavit of candidacy for reelection as an incumbent judge of the Court of Appeals, Fourth District. He did not attempt to gather the petition signatures, as is required of nonincumbents running for Court of Appeals positions. MCL 168.409b(1). Judge GADOLA filed an affidavit of candidacy for reelection as an incumbent judge for the same position. The defendant Director of Elections promptly rejected Judge O'CONNELL 's affidavit.¹ Judge O'CONNELL then sought an order of mandamus in the Court of Claims, averring that the director had a clear legal duty to place his name on the ballot as an incumbent.

Court of Claims Judge CYNTHIA D. STEPHENS denied Judge O'CONNELL 's complaint for mandamus in a written opinion issued on August 16, 2016. Drawing on the language of Const. 1963, art. 6, §§ 9, 22, 23 and 24, Judge STEPHENS concluded that Judge O'CONNELL failed to establish that he was an "incumbent."² Without having filed nominating petitions, Judge STEPHENS ruled, Judge O'CONNELL was not entitled to placement on the regular election ballot. Judge STEPHENS elaborated:

The starting point for the Court's analysis is the Constitution's employment of the term "incumbent" and the common meaning of that term. As Plaintiff admits, the term "incumbent" "is linked to" to [sic] an office under the pertinent constitutional provisions. But it is not linked to any office. In discussing incumbency, both art. 6, § 22 and art. 6, § 24 link the term to a particular office. See art. 6, § 22 (referring to "the office"); and art. 6, § 24 (referring to "the same office."). Indeed, it is well established that "the" is a definite article that is generally recognized as having a "specifying or particularizing effect, as opposed to the indefinite or generalized force of the definite article a or an[.]" Robinson v. City of Lansing, 486 Mich. 1, 14, 782 N.W.2d 171 (2010) (citations and quotation marks omitted). Because the Constitution refers to "the office" and "the same office," the Court "must determine to which specific or particular" office the Constitution refers. See id.

Judge STEPHENS emphasized that the constitutional text makes "clear that each judicial office has its own particular term and that such a term is to be understood as being separate and distinct from the terms of other judicial offices in a given district." This means that the Fourth District of the Court of Appeals consists of "seven separate judicial offices in the Fourth District, one of which is occupied by" Judge O'CONNELL. Judge STEPHENS buttressed her conclusion by citing Const. 1963, art. 6, § 9, which provides:

Judges of the court of appeals shall hold office for a term of six years and until their successors are elected and qualified. The terms of office for the judges in each district shall be arranged by law to provide that not all terms will expire at the same time.

Harmonizing this language with the other pertinent constitutional provisions, Judge STEPHENS reasoned that each office of a judge of the Court of Appeals is confined to a six-year term. Thus, a judge's incumbency status is tethered to a " 'particular or specific' " office with an expressed temporal limit. The arrangement of the terms of office to avoid their fully concurrent expiration further persuaded Judge STEPHENS that the drafters of the Michigan Constitution intended "that the terms of each office are to be separate and distinct from one another." Article 6, § 9 thereby directs "that each judge serves a term with defined temporal limits and which is separate and distinct from the terms served by his or her colleagues" and having "its own temporal parameters."

Judge STEPHENS then turned to the common meaning of the word "incumbent" as used in our Constitution, finding it linked to an office subject to a specific term:

"The office" or "the same office" of which Plaintiff is an incumbent is inescapably tied to the particular term he is serving. Indeed, the Framers' choice of the word "office" instead of "court" in the pertinent constitutional provisions indicates the intent of the Framers to tie incumbency status to a particular, individualized term, rather than the general role as "judge." The juxtaposition of the definite article "the" with "office" and "same office" associates the judge's incumbency status with reelection to his or her own office, distinguished from other judges' offices not having the same beginning and end dates. Accordingly, the word "incumbent" as it is used in the pertinent constitutional provisions refers to a judge running for reelection to a term consecutive to his or her own term—i.e., the term of office the judge is presently serving—and not to a judge vying for an office occupied by another judge.

Judge STEPHENS soundly rejected Judge O'CONNELL 's argument that as a generically "incumbent" judge he is also "the" incumbent for the seat currently occupied by Judge GADOLA. The term of office applicable to Judge GADOLA 's seat, Judge STEPHENS explained, is different and distinct from that of the office to which Judge O'CONNELL was elected. Judge O'CONNELL is not " the incumbent" as to the former. Judge STEPHENS summed up:

Here, the office Plaintiff occupies gives him legal authority to exercise the powers of a Court of Appeals judge for a specified period. When he was elected to serve in this office, he was not elected to serve as a judge on the Court of Appeals for any timeframe he chose. Rather, the voters in the Fourth District elected Plaintiff to a term expiring in 2019. Hence, the office Plaintiff holds is that of a Court of Appeals judge in the Fourth District for a specified period of time, i.e., the term to which he was originally elected. Accordingly, the only office for which Plaintiff is the incumbent is a judge on the Michigan Court of Appeals, Fourth District, with a term expiring in 2019.

Because Judge O'CONNELL failed to establish the requirements for mandamus, the Court of Claims denied the writ.

II

We review for an abuse of discretion a trial court's decision to deny a writ of mandamus. Coalition for a Safer Detroit v. Detroit City Clerk, 295 Mich.App. 362, 367, 820 N.W.2d 208 (2012). However, the first two elements required for issuance of a writ of mandamus—that defendants have a clear legal duty to perform and the plaintiffs have a clear legal right to performance of the requested act—are subject to de novo consideration as questions of law. Id. Likewise, this Court reviews constitutional questions de novo. In re AMAC, 269 Mich.App. 533, 536, 711 N.W.2d 426 (2006).

"Mandamus is an extraordinary remedy...." Univ Med. Affiliates, PC v. Wayne Co. Executive, 142 Mich.App. 135, 142, 369 N.W.2d 277 (1985). Thus, issuance of this writ is proper only if (1) the party seeking the writ "has a...