The state constitution says that once judges turn 70 years old, they must retire when their terms end.
But you can be twice that old and run for the job, no problem at all, so long as you’ve practiced law for several years and live in the parish where you seek office.
So said a state appeals court in ruling Wednesday that 74-year-old Orleans Parish Criminal District Court Judge Frank Marullo can run again to keep the seat he’s held for 40 years, even though he may be denied the right to serve if he wins.
To three voters who are fighting to keep Marullo off the ballot, the 11-1 decision by the 4th Circuit Court of Appeal is an absurdity that leads to some oddball consequences. On Friday, they asked the Louisiana Supreme Court to step in, highlighting what the appeals court itself admitted was “the inherent quagmire presented by this matter.”
The Supreme Court did not say Friday whether it will consider the appeal, but it is expected to decide the matter quickly with the Nov. 4 election looming.
Supporters of Graham Bosworth, a 35-year-old former prosecutor who is among four candidates hoping to replace Marullo, lodged the challenge to his right to run shortly after the candidate qualifying period ended Aug. 22. So far they’ve tasted only defeat. Both Civil District Judge Kern Reese and the 4th Circuit backed Marullo, saying he’s free to run — and whether he then can serve or not is a legal conundrum for another day.
That’s been a tough pill for Marullo’s opponents to swallow.
“The purpose of an election is to elect an individual who may actually serve in the elected office,” the attorneys said in their appeal Friday. “An election of an individual who is ineligible to serve is pointless at best and a waste of public resources at worst.”
The two sides differ on that point.
Marullo’s backers say re-electing the longest-serving judge in Louisiana would in fact save the state money, seeing that he has been fully vested in the state’s retirement plan for years. They also argue that Marullo would be able to serve if he wins, claiming he falls under the 1921 constitution that placed the retirement age for judges at 75 and that was in effect when he first took the bench in 1974.
They also point to a constitutional amendment on the Nov. 4 ballot that would eliminate the age cap on judges. If it passes, they say, it would erase any questions about whether Marullo can take office for another six years. The appeals court, however, found that argument to be irrelevant for now.
But on one thing, Marullo’s attorneys and his challengers agree: The appeals court’s ruling made for some potentially odd outcomes.
The 4th Circuit found that running for judge is an “altogether separate issue” from taking the bench and that only two qualifications apply: the residency rule and admission to the practice of law for a minimum period — eight years in the case of a district judge.
Yet all candidates for office in the state must file sworn papers that list a litany of disqualifiers approved by the Legislature — qualifiers that so far this year have knocked out three candidates in Orleans Parish alone, none of them judges.
They must swear that they’ve paid all of their state and federal taxes, don’t owe outstanding ethics fines and have filed all of the required campaign disclosures, for instance.
Jim Boren, an attorney for Marullo, said Wednesday’s ruling casts doubt on the validity of those conditions, at least for judicial races.
Another section of the state constitution bars inmates and convicted felons who have exhausted their appeals from running for office. Still another section says people appointed by the Supreme Court to fill vacant judicial seats can’t later run for election to those seats.
Former Jefferson Parish prosecutor Doug Hammel briefly ran for a seat on the 4th Circuit Court before dropping out two weeks ago, citing a Supreme Court rule that bars attorneys who accept fill-in judicial assignments from seeking an elected judgeship in any court within a year.
The appeals court ruling seems to suggest that those conditions also don’t count when it comes to judges, said Vincent Booth, an attorney for the three voters challenging Marullo’s candidacy.
“This has never been an issue before,” Booth said.
He said Reese and the appeals court both “seized upon this bizarre statement” by then-state Supreme Court Justice James Dennis in a 1990 case. In a concurring opinion, Dennis called it improper to apply the mandatory retirement age to the qualifications for a judicial candidate. If the Legislature had wanted to set an age limit for candidates, Dennis said, state lawmakers would have done it themselves.
Lance McCardle, another attorney for the challengers — Marian Cunningham, Bob Amoss and Lisa Amoss — called the appeals court’s ruling “the only one I’m aware of in the history of Louisiana that has said there are only two bases to challenge someone’s candidacy.”
In response, Marullo’s attorneys said the appeals court got the decision right and the Supreme Court should dismiss the appeal.
Marullo’s attorneys also hinted that he might challenge the constitutionality of the mandatory retirement age.
As it stands, Marullo faces four opponents in his bid for another six-year term, which would potentially end on Dec. 31, 2020, his 81st birthday.
Follow John Simerman on Twitter, @johnsimerman.