Frank Marullo arrived in the world with two minutes to spare before the door closed on the 1930s. Those two minutes could end up costing the longest-serving judge in Louisiana a chance to take the bench for another six years in Orleans Parish Criminal District Court.
But that’s a question for another day.
Civil District Court Judge Kern Reese issued a five-page opinion Friday saying that Marullo, a judge for 40 years, can run again, but Reese refused to decide whether the judge can take office should he win. He left that debate for later, after voters in New Orleans and statewide have their say on a constitutional amendment.
Reese issued his ruling less than four hours after a hearing Friday morning on a legal challenge filed by three supporters of 35-year-old Graham Bosworth, one of four lawyers who have qualified for the Section D seat that Marullo is seeking to retain after four decades.
Reese, who at 61 just won a new term unopposed, agreed with Marullo that the 70-year age cap under the current state constitution doesn’t apply to Marullo. Instead, Reese said, Marullo falls under the higher, 75-year-old age limit set by the 1921 constitution that was in effect when Gov. Edwin Edwards first appointed him to the Criminal District Court bench in 1974.
But Reese also said Marullo gets the benefit of an amendment to the current constitution that allows judges to serve out their terms if they reach the maximum age while in office.
What remains in doubt is whether Marullo would be able to take the bench in January if he wins, given that he turns 75 on Dec. 31.
The wild card: State voters will be asked Nov. 4 — on the same ballot as the election for Marullo’s seat — whether they want to abolish the judicial age limit altogether. Whether that change, if it passes, would apply to Marullo is unclear, although Reese suggested he thinks it would free Marullo to retake his seat.
“The passage of this amendment would seemingly render all issues in this matter moot,” Reese said.
Lance McCardle, an attorney who argued the case to remove Marullo’s name from the ballot on behalf of three supporters of 35-year-old challenger Graham Bosworth, said he filed a motion to appeal the ruling shortly after Reese issued it, and he expects to raise the issue with the Fourth Circuit Court of Appeal within days.
“We’ll see what happens next. Obviously we respect Judge Reese’s decision, but we’re disappointed,” McCardle said.
“It’s pretty clear (Marullo’s) not entitled to serve the next term. It doesn’t make any sense to let somebody qualify if they can’t serve the next term.”
Jim Boren, an attorney for Marullo, argued during the hourlong hearing that Marullo would be left high and dry if he is forced to the sidelines before the election and the amendment then passes. Boren drew a parallel between Marullo’s legal pickle and civil rights struggles.
“We have evolving standards of decency. Decisions we once thought were clear were changed, and the people voted on it,” Boren said. “Women were given the right to vote. Black people were freed from slavery. I think that’s what’s (at issue) here today: What are Judge Marullo’s rights, and second, (what are) the rights of the electorate?”
Boren also argued that Reese couldn’t keep Marullo off the ballot because he meets the basic constitutional conditions for qualifying — having enough years as a lawyer and living in New Orleans. The age limit falls under a separate constitutional provision that deals with retirement, Boren argued. If Marullo wins re-election and the constitutional amendment fails, he argued, it would be up to the state Supreme Court to yank Marullo from the bench on Jan. 1.
“Judge Marullo’s been a judge for 40 years. He’s 74 years old. He’s running for office,” Boren said. “I don’t think you can tell someone they’re too old and can’t run. We’re going to protect the electorate.”
Reese agreed, siding with Marullo on virtually every point his lawyers raised.
The challenge was filed Monday by voters Marian Cunningham, Lisa Amoss and Robert Amoss.
McCardle argued at the hearing that Marullo’s attorneys — Boren, Rachel Conner and John Adcock — were trying to wrap the issue in a cloak of sympathy when the law falls clearly against Marullo.
“It would be a gross waste of public and judicial resources to allow a candidate to run for an office which he cannot hold,” McCardle said.
He added that even if state voters remove the age limit, the change would not be retroactive and couldn’t help Marullo.
McCardle argued that earlier court rulings allowing judges to fall under the higher age limits of the old constitution were targeted at preserving their retirement benefits and other “judicial service rights.” Marullo is fully vested in his retirement, and he loses nothing but his robe under the current constiution, McCardle argued.
He also disputed that the issue falls into any legally gray area, which under prior court decisions would favor letting Marullo run.
“I don’t think there’s any close call here,” McCardle argued. “There’s no tie-goes-to-the-runner necessary here. It’s a set thing. ... We’re here today to follow the law as it is today.”
The potential that Marullo will be shut out of the race has drawn a big field for his seat. Along with Bosworth, the challengers are former Orleans Parish prosecutor Brigid Collins, former Magistrate Commissioner Rudy Gorrell and attorney Marie Williams.
At the hearing, Reese acknowledged that Marullo still faces a legal obstacle.
“Two minutes. That’s really cutting it close,” the judge said. “If his mother could have held out for three more minutes, we could be having a different argument.”
Marullo said he was pleased with Reese’s ruling.
“He narrowed it to the qualifications. I think the qualifications are the case. If I’m allowed to qualify, that’s it,” he said. Still, Marullo acknowledged wishing he’d been born a few minutes later.
“I wouldn’t have had this problem,” Marullo said. “Mom did what she had to do. It happens that some years later, it becomes an issue.”
In what could be a preview of a new legal battle in the fall, Conner argued that even the legal date for the start of a judicial term is vague, leaving open the possibility that Marullo could choose an earlier start to a new term, before his 75th birthday.
Marullo was absent from the hearing. He was on the bench at Tulane and Broad, with a docket of 26 criminal defendants in front of him.
Follow John Simerman on Twitter, @johnsimerman.