Hastily Appointed Judge Barnes, Rivals Jacobs, Janer Head to Court

Bay County Ballots Delayed as Lawsuit Heads to Court in Saginaw May 25

May 14, 2010
By: Dave Rogers

Here come the judge! And the judicial hopefuls! And their lawyers!

Gov. Jennifer Granholm's intent in appointing Jennifer Cass Barnes to the district court bench in Bay County before the sitting judge had retired will become an issue in a lawsuit heading to court in Saginaw.

Two of the four candidates in the race for Bay County 74th District Judge have hired attorney Kim A. Higgs to file a suit to prevent Ms. Barnes from using the incumbency designation on the ballot in August.

Candidates Stevens J. Jacobs and Mark Janer are the plaintiffs in the suit while other candidates Eric Zimostrad and Abel Torres have stayed out of the fray.

District Judge Scott Newcombe is not slated to retire officially until May 31. His retirement announcement started a scramble among attorneys for the post and involved the governor making a hasty appointment, apparently so Ms. Barnes could attempt to receive the incumbency designation on the ballot.

Inside politics are involved, critics charge, noting that Ms. Barnes was formerly in various posts in Lansing and has been serving as an aide to State Senator James A. Barcia.

The suit charges: "On April 22, 2010, Michigan Governor Jennifer Granholm, contrary to the past practice of appointing judges only after a vacancy in a judicial office has occurred, appointed Jennifer Cass Barnes to fill the balance of 74th District Court Judge Scott Newcombe's unexpired term."

Because voters often pay little attention to judicial candidates, the incumbency designation is considered crucial, and often a deciding factor, in the election.

Critics of the local situation have charged privately that Gov. Granholm has favored women candidates in making appointments, another issue that no doubt will be raised in the hearing set May 25.

Timing is everything since there is a mid-June deadline to have the absentee ballots printed and ready for distribution.

Because of the legal flap, County Clerk Cynthia A. Luczak has had to hold up the entire ballot until a decision is reached on the wording that will be allowed, or not allowed, under Barnes' name.

The 23-page suit was filed Thursday in Bay County Circuit Court and assigned to Judge Kenneth W. Schmidt, who disqualified himself. The state court system then assigned Circuit Judge Fred J. Borchard of Saginaw to hear the matter.

Judge Borchard has set a May 21 for briefs and a hearing set for 8:30 a.m. Tuesday, May 25 in Saginaw Circuit Court.

Also included as defendants in the suit are Terri Lynn Land, Michigan Secretary of State, the state bureau of elections and County Clerk Luczak.

The lawsuit asserts that Ms. Barnes "did not file an affidavit of candidacy in lieu of nominating petitions because she had not entered into the duties of the office."

The suit adds: "Plaintiff asserts that injunctive relief is necessary in the instant action because there exists a real and imminent danger of irreparable injury to the public and their right of access to the election process."

The suit contends that the petitions that Ms. Barnes circulated and filed identified the position she sought as a non-incumbent position.

Ms. Barnes was graduated from the University of Michigan in 1994 with bachelor's degrees in Sociology and German and from the U-M Law School in 1997. She has been licensed to practice law in Michigan for nine years. ###