The longest-serving judge in Louisiana was pulled from the Orleans Parish Criminal District Court bench on Friday while a challenge plays out over whether he’s too old to serve.
The Louisiana Supreme Court issued an “interim” disqualification of Criminal District Court Judge Frank Marullo, effective immediately, at the recommendation of the state Judiciary Commission, which left no doubt that it thinks Marullo is breaking the law by clinging to his seat at age 75.
Marullo’s “apparent disregard of the law, while he sits in a position to administer it, gives the public the impression that he is above the law,” the commission found.
Marullo, who has served on the court for 40 years, could not be reached late Friday, and his attorney, James Boren, did not respond to email and phone messages.
In its order, the Supreme Court said Marullo “is hereby disqualified from exercising any judicial function during the pendency of further proceedings in this matter.”
The ruling means Marullo will be paid while the court weighs arguments over whether he has passed the mandatory retirement age under the Louisiana Constitution.
Marullo survived a challenge to his candidacy last year when the 4th Circuit Court of Appeal ruled that he met the basic legal qualifications to run again for his seat: residency in Orleans Parish and eight years as a lawyer.
But the appeals court, in an 11-1 ruling that a narrow state Supreme Court majority refused to take up, refused to opine on whether Marullo could actually serve if he won.
The state constitution sets a mandatory retirement age of 70 for judges but allows them to serve out the remainder of their terms if they reach that age while in office. State voters upheld that age cap in November. On the same ballot, Marullo was re-elected in Orleans Parish with a bare majority over two rival candidates.
Marullo has argued that he falls under an older, 1921 version of the constitution, which was in effect when Gov. Edwin Edwards first appointed him to the Section D bench in 1974. At the time, the constitution set a mandatory retirement age of 75 for state judges, with no provision for serving out a term.
Marullo has claimed he is entitled to the best of both constitutions: the 75-year age limit from the earlier one and the current allowance for judges to serve out their terms when they reach the cap.
His challengers argue that Marullo can’t serve under either constitution, noting that he turned 75 on Dec. 31, the same day that state law says his last term expired.
The Judiciary Commission didn’t buy Marullo’s argument, either.
In a Feb. 5 recommendation to the Supreme Court that was unsealed Friday, it found “substantial, credible evidence establishing probable cause that Judge Marullo is continuing to serve as a judge despite reaching the mandatory retirement age of seventy-five years,” adding that “such continued service ... may pose a substantial threat of serious harm to the public or the administration of justice.”
In its 11-page finding, the commission added that it found probable cause that Marullo “is willfully occupying his seat in violation of state law.”
Marullo took the bench in early January, and he presided over a full docket on Friday. The order for his disqualification came in about 5 p.m., said Rob Kazik, the local court’s judicial administrator.
In November, Marullo beat out local attorney Marie Williams and former Orleans Parish prosecutor Graham Bosworth in his first contested race since 1996, winning a majority by a scant 500 votes to avoid a runoff.
At the same time, 58 percent of Louisiana voters rejected a measure to do away with the judicial age limit, setting up the dispute now unfolding before the Supreme Court, the only body that can remove a sitting judge in Louisiana.
Marullo was sworn in Dec. 19 in his chambers, with fellow Criminal Court Judge Franz Zibilich doing the honors. His attorneys suggested during last year’s court hearings that state law is vague on when a judicial term actually starts, though it states clearly that a term ends on Dec. 31.
In a four-page response filed on Mardi Gras, Marullo’s attorneys, Boren and Rachel Conner, argued that while the law says Marullo’s last term ended Dec. 31, it doesn’t say at what time. They note that Marullo was born two minutes before New Year’s Day.
The commission found Marullo’s argument about the timing of his new term “without merit.”
Marullo’s main argument, however, revolved around voters’ rights.
“To now say, after allowing New Orleans to choose their judge, that he should not be permitted to serve, disenfranchises 50,952 predominantly African American voters who, with full knowledge of his age, elected him to serve as their judge,” they argued.
They also noted that several retired judges over age 75 now serve as ad hoc judges, assigned by the Supreme Court to state courts across Louisiana, with no limit on their age.
“To allow some ‘old judges’ to serve, and others not, has no rational basis,” they argued. “It is to tell the voters of New Orleans: ‘We know better than you voters who should be your judge. And if we want to, we will remove him and then put him back on the bench ad hoc if we want to.’ ”
The Supreme Court appointed Dennis Waldron, a retired Orleans Parish judge, to take Marullo’s place while the legal drama plays out. Waldron is 67.
Follow John Simerman on Twitter, @johnsimerman.