A candidate for an open judge’s seat in Oakland County Probate Court is suing her opponent, accusing him of improperly giving an impression he’s an incumbent for the position he’s now seeking and trying to “circumvent” state rules that make judges unable to run again for office after they turn 70.

Oakland County Probate Judge Daniel O’Brien has been on the bench for 16 years but is running for a different seat on the same court, one that is open to non-incumbents, in November. He was elected in 2020 for a six-year term, but cannot run again for his current seat in 2026 because he will be 70, the age at which state law limits anyone from running to seek a judgeship.

Attorney Traci Richards, his opponent for the seat he’s now seeking, accuses O’Brien of trying to circumvent state rules by leaving his elected position before the term is up.

“I think the voters need to know,” said Richards. “I don’t think a lot of people know he’s doing this.”

O’Brien — who didn’t respond to requests for comment — wrote in filings that he is speaking truthfully about his experience on the bench and wants to maximize his time as a judge in seeking a seat that will be open with the retirement of another probate judge.

If he wins, O’Brien will have to leave his current seat on the Probate Court, which would leave a vacancy. The governor would appoint his replacement.Richards alleges in her lawsuit, filed earlier this month in Oakland County Circuit Court, that O’Brien is violating election laws by giving a false impression that he is an incumbent for that specific seat in his advertising and yard signs. She said O’Brien is trying to “trick voters into believing that Daniel A. O’Brien is running as an incumbent.”

Richards requested an Oakland County judge issue an injunction that orders O’Brien not to use misleading advertisements, to remove the ones already up or to award Richards removal costs if O’Brien does not do it himself.

But Judge Cynthia Lane in St. Clair County’s 31st Circuit Court, who was assigned as a visiting judge in the case after Oakland County judges recused themselves, denied the request Thursday.

“I’m very disappointed in her ruling,” Richards told The Detroit News. “It’s obvious it was misleading. He certainly was not trying to clarify he’s not an incumbent.”

Richards said in her lawsuit O’Brien instead is trying to “circumvent the Michigan Constitution, leave his current elected judicial seat and assume the vacancy created by Judge Linda S. Hallmark’s retirement.”

In his campaign, according to Richards’ lawsuit, O’Brien has used phrases like “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.” and “The best probate judge candidate is the one whose name has been on the door for 16 years.”

O’Brien said in a response to Richards’ lawsuit that she seeks to “upend the status quo to procure a political advantage by prohibiting her opponent from speaking truthfully about his experience.”

“The statute is intended to prevent candidates who do not hold the position of judge from deceiving voters by pretending as if they are already a judge,” O’Brien said in the response. “It is not intended to prohibit a sitting probate court judge from telling voters that he is in fact a sitting probate court judge.”

O’Brien said many of the issues Richards raises in her lawsuit are dealt with by the Michigan Judicial Tenure Commission and the Michigan Supreme Court. Oakland County Circuit Court cannot handle cases of judicial ethics.

“It is difficult to fathom how Judge O’Brien’s truthful campaign speech regarding his relevant experience can be characterized as a public nuisance,” O’Brien said.

Richards also said in her lawsuit that O’Brien completed a public information candidate questionnaire where he did not answer questions that incumbents did not have to answer, even though he is not running as an incumbent.

“Defendant Daniel A. O’Brien intended the questionnaire to harm the electoral prospects of Plaintiff in an election and the distribution is reasonably calculated to cause this result,” Richards said in her suit.