Judicial candidates lose incumbency designation challenge

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

Const 1963, art 6, § 24 and MCL 168.467c(2) are unqualified mandates. They do not impose a time period in which an incumbent candidate must act in order to qualify for the incumbent designation.

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.

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Poll could be sign of trouble for Taylor’s MSC re-election bid

A Marketing Resource Group-Inside Michigan Politics poll shows that if the Michigan Supreme Court election were held right now, it would be a tight race between Wayne County Circuit Court Judge Diane Hathaway, the Democratic candidate, and incumbent Chief Justice Clifford Taylor, the Republicans’ choice.

The MRG-IMP poll shows 15 percent of those surveyed would either vote for, or are leaning toward, Hathaway. Taylor polled 14 percent. The poll’s margin of error is +/- 4.1 percent. There’s a big chunk of undecided voters, 68 percent.

So, is it a meaningless pre-election poll?

Far from it, says MRG’s Director of Research Services Paul King and IMP’s Bill Ballenger.

King said he was not surprised by the large percentage of undecided voters at this stage of the game. What did surprise him is that Taylor didn’t get a bigger pop from the poll. King explained that the question asked those responding to choose between “Incumbent Justice Cliff Taylor” and “Diane Hathaway.” The incumbency designation should have translated into a better percentage for Taylor.

How come it didn’t?

Here’s the scene where maybe I should be eating a slice of humble pie. In past posts, here, here, here and here, I’ve been less than supportive of Michigan Democratic Party Chair Mark Brewer’s handling of the MSC campaign.

But King speculated that Brewer’s shots at Taylor may be responsible for Taylor’s poorer-than-expected showing in the poll.

Ballenger echoed King’s speculation about Brewer’s campaign efforts. He added that Justice Elizabeth Weaver’s constant sniping at Taylor and the rest of the “majority of four” (Justices Maura Corrigan, Robert Young and Stephen Markman), has prompted “internecine squabbling,” which has “given the court a black eye.” This also presumably works to Taylor’s disadvantage, said Ballenger.

When Ballenger made his comments, he mentioned he was en route to Washington, D.C.

What’s going on in Washington, Bill?

“The secretary of the treasury has asked for my help.”

Ever the jokester, that Bill Ballenger.

Okay, so what’s Taylor’s next move?

“He’s got over a million in campaign funds. I suggest he start spending like a drunken sailor.”

Not so sure he was joking that time.