Candidate for judge wanted opponent’s campaign ads and signs yanked: What happened

In politics, there’s a big advantage to saying “reelect me.” And also to saying, “I’m an incumbent — so vote for me because I already know the job.”

It’s such a big advantage that Michigan forbids saying “reelect me” and saying you’re an incumbent if you’re not. But just where should fair-election umpires draw the line in this strange situation? A veteran judge is running for the same job he already has. And yet, it's not the one in his own courtroom; it’s the open seat just down the hall, where another judge is retiring. Winning that other seat is the oddball quest of Oakland County Probate Judge Daniel A. O’Brien, as he seeks to skirt the state’s age limit for judges and add extra years to his career.

Everyone agrees that O’Brien can’t call himself a judge on November's ballots, which incumbent judges do when running for reelection. But can he call himself “judge” on campaign signs? He does. And can he say he's a judge in his online ads? He does that, too. Can he remind voters that, even though he's running for an open seat as a non-incumbent, he’s already a probate judge with 16 years of experience?

Those were among the questions raised Thursday in Oakland Circuit Court by O’Brien’s challenger, Franklin attorney Traci Richards, who wanted O’Brien’s signs and ads yanked. In her motion for a temporary restraining order — a rare request that courts rarely grant — Richards claimed that O'Brien's wording in several cases violated state rules and laws governing campaign wording. One of Richards' serious snits was with O'Brien's Facebook advertisement. It says, "I've served as an Oakland County probate judge for 16 years. This November, I respectfully ask for your support as I seek another term on the bench." The same ad says: "The best probate judge candidate is the one whose name has been on the door for 16 years." Richards, acting as her own counsel in the hearing, said that wording was unfair.

"It's obvious to me, this is a plan to make this person look like an incumbent," she said. O'Brien had two lawyers defending him. They argued that the ads were simply factual — that O'Brien had, indeed, been a probate judge for 16 years, and that informing voters of that should be allowed.

Earlier, the judge decided to take yard signs out of the debate. Although Richards objected to the wording of signs that say, "Elect Judge O'Brien, Probate Judge," saying they imply that O'Brien is an incumbent, she was forced to accept the judge's view: that the wording of political signs falls under the state's Code of Judicial Conduct, outside the jurisdiction of a circuit court.

Richards also objected to the way that O'Brien filled out his questionnaire from the League of Women Voters, leaving blanks for questions directed at non-incumbents. But did such a questionnaire constitute "campaign literature" under Michigan law? The answer to that, and the ultimate decision on the case, was rendered by a visiting judge from St. Clair County, after all Oakland County circuit judges recused themselves from being involved in a dispute involving their colleague, O'Brien.

After a hearing of nearly two hours, the visiting judge left the courtroom to write her opinion. As the court’s audience milled about during the break, a woman who told a reporter she was “just a court watcher” entered into a testy conversation with O’Brien as he sat 10 feet away at the defendant’s table. The woman’s voice rose, apparently in protest of the way O’Brien had handled her family’s case. That led to the court clerk issuing a warning against anyone “disrupting decorum in the court.” He then summoned deputies to the courtroom. Upon hearing him do that, the woman loudly announced that she and her female companion were leaving the courtroom and would wait in the hall for a decision.

An hour later, the visiting judge — St. Clair County Circuit Judge Cynthia A. Lane — took the bench again, this time to read her opinion. Lane ruled against granting the TRO, or temporary restraining order, saying O’Brien’s campaign wording appeared to be within the bounds of accepted campaign discourse as well as protected by his First Amendment right to free speech.

"Statements that could be misleading to some people are not prohibited speech," Lane said. Richards failed to show that any of O'Brien's campaign wording was made "with reckless disregard for the truth," the standard for showing an intent to deceive voters. After all, he is a probate judge and so he can say he's a probate judge, she ruled. Crucial, however, was Lane's bottom line: She denied the TRO because it failed to meet the legal standards for issuing a TRO. And one of those standards is whether the judge feels that the plaintiff, ultimately, will prevail on the merits of the case.

With that, Richards lost Round One to O'Brien in their skirmish of words, about words. Richards' overall complaint remains pending in Oakland County Circuit Court, assigned to Lane. It's not likely to be resolved before Election Day when the tally of votes decides which of the two wins the election. O'Brien said he was relieved by the decision.

"If I'd lost, I would have had to go around and pull out all of my signs," he said after the hearing. Now, the signs will stay put and O'Brien must await another judgment — that of the voters.

On Election Day, if O'Brien loses the race, he'd still retain his current judgeship, while Richards would become another probate judge, sitting just down the hall in the Oakland County courthouse. If O’Brien wins, the governor would fill the vacancy created in his current seat by making an appointment.

It's impossible to predict whom the governor would choose, but — either way — that new judge might turn out to be Richards.

Contact Bill Laytner:  [email protected].

This article originally appeared on Detroit Free Press: Ruling OKs campaign ads of veteran Oakland County judge — for now