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In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160825_C334365_29_334365.OPN.PDF">O’Connell v. Director of Elections</a>, No. 334365, the Michigan Court of Appeals held that Court of Appeals Judge Peter D. O’Connell is not the incumbent for the office currently held by Judge Michael Gadola.  The Court found that the incumbency status is reserved for the judge running for reelection to a term consecutive to his or her own term, and that sole incumbent in this case is Judge Gadola. 
  
Judge Peter D. O’Connell is a judge of the Michigan Court of Appeals whose term of office expires on January 1, 2019.  Judge O’Connell is prohibited from running for reelection because he will be 70 years of age by the time of the next general election.  Judge O’Connell sought to run as an incumbent for the judicial office held by Judge Gadola, who was appointed to the Court of Appeals by Governor Rick Snyder in 2015.  Judge Gadola’s term of office expires on January 1, 2017.  In February 2016, Judge O’Connell submitted his affidavit of candidacy for reelection under the term of office held by Judge Gadola.  He did not obtain petition signatures as required of nonincumbents.  Judge Gadola also filed an affidavit of candidacy for reelection.  The Director of Elections rejected Judge O’Connell’s affidavit.  Judge O’Connell then sought an order of mandamus from the Court of Claims.  The Court of Claims denied the order of mandamus holding that Judge O’Connell failed to establish that he was an incumbent under the language of the Michigan Constitution.  Judge O’Connell appealed. 
  
Under the Michigan Constitution, a judge of the Court of Appeals is permitted to run for “the office of which he is the incumbent” by filing an affidavit of candidacy.  The Court of Appeals held that the language of the Michigan Constitution connects the term “incumbent” to a definite and specific office by using the definite article “the” in the language of the controlling provision.  Here, the office for which Judge O’Connell sought to run as an incumbent is currently held by Judge Gadola.  Therefore, the Court held Judge O’Connell is not the incumbent for the office held by Judge Gadola.  Accordingly, because Judge O’Connell failed to establish the requirements for mandamus, the Court affirmed the Court of Claims.

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Senior Counsel

Conor B. Dugan

Labor and Employment

COA holds that Judge Peter D. O’Connell is not the incumbent for the office held by Judge Michael Gadola

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COA holds that Judge Peter D. O’Connell is not the incumbent for the office held by Judge Michael Gadola

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