Just how important is the constitutionally and statutorily required incumbency designation on Michigan judicial ballots?
Consider this: Bill Ballenger, Lansing political pundit extraordinaire, and editor and publisher of Inside Michigan Politics, has told me on several occasions that in Michigan, 95 percent of all incumbent judges in the last 20 years have been re-elected.
That gives incumbent judges almost a virtual lock in terms of job security (notable exception: former Michigan Supreme Court Chief Justice Clifford Taylor’s loss to Diane Hathaway in the 2008 election).
Mark Janer and Steven J. Jacobs, two candidates for the 74th District Court, know the incumbency designation is a powerful election tool. That’s why they went to court recently to argue that 74th District Court Judge Jennifer Cass Barnes, a very recent (June 1) Granholm appointee, shouldn’t be listed as such on the August primary ballot.
Former 74th District Court Judge Scott Newcombe decided to resign earlier this year, effective May 31. Janer, Jacobs and Barnes all filed timely petitions in April to be electoral candidates for the open seat, which was designated as a non-incumbent position.
On April 23, Governor Jennifer Granholm appointed Barnes to fill the remainder of Newcombe’s term – which expired at the end of the year. Barnes took office June 1.
Janer and Barnes sued to prevent Barnes from receiving the incumbency designation. The argument presented to Bay County Circuit Court Judge Frederick L. Borchard, as recounted by the Michigan Court of Appeals in Janer, et al. v. Barnes, et al.:
[B]ecause Barnes filed nominating petitions to access the ballot as a non-incumbent, and because her appointment occurred after the deadline for incumbent judges to access the ballot, she is not entitled to the incumbent designation on the ballot.
Borchard dismissed the complaint, which sought a declaratory judgment, mandamus, and injunctive relief.
They fared no better in the COA. A per curiam panel consisting of judges Peter D. O’Connell, Donald S. Owens and Stephen L. Borrello ruled that
Because the language is clear and unambiguous, judicial interpretation is not permitted, and the provisions must be enforced as written. …
The only requirement for the incumbency designation on the ballot is the incumbent status of the judge, which it is undisputed that Barnes now has attained. Accordingly, she is entitled to the incumbency designation.
And an almost certain win in August.