New Orleans voters gave the longest-serving judge in Louisiana the boost he needed late Tuesday, lifting Criminal District Court Judge Frank Marullo to a slim, 500-vote majority over a pair of challengers.
But statewide voters might have trumped that decision by handily rejecting a proposed constitutional amendment to erase a mandatory retirement age for state judges.
The 58 percent statewide vote leaves Marullo, 74, girding for another legal donnybrook after successfully fending off a challenge to his candidacy just two months ago.
This time he’ll be fighting for his right to add another six years to his four decades wearing a black robe. Any decision ultimately will be up to the Louisiana Supreme Court, the only body that can remove a judge from the bench.
In the wake of his victory, Marullo struck a confident tone over his ability to take office come the new year.
“I’m not going to telegraph my strategy,” he said. “We’re going to have another fight, but I think I’m going to be victorious.”
The legal tangle traverses two state constitutions.
The current version sets a 70-year mandatory retirement age for judges that voters upheld Tuesday, although judges who reach that age in the middle of a term can serve out the rest of the term.
Marullo argues that he benefits from a 75-year-old age cap under the 1921 constitution, which was in effect when then-Gov. Edwin Edwards first appointed him to the bench in 1974.
In beating back a legal challenge to his eligibility to run, Marullo argued that the law gives him the best of both worlds: the 75-year age limit from the old constitution, and the ability from the 1974 constitution to serve out his term past that age.
In a twist that figures to weigh prominently on his chances, Marullo turns 75 on Dec. 31, the same day state law says his current term runs out.
The 4th Circuit Court of Appeal sidestepped the issue of Marullo’s ability to take office when it ruled in September that he was free to remain on the ballot, noting that judicial candidates need only hold the required legal experience and live in the parish where they run.
Marullo met both requirements, and the Louisiana Supreme Court declined to hear the case, punting on the question of whether a victorious Marullo could take his seat on the bench.
Lance McCardle, an attorney for three voters who launched the failed challenge to Marullo’s candidacy, said it doesn’t appear that voters can similarly attack his right to take office. Instead, the state Judiciary Commission would need to weigh in with a recommendation to the state Supreme Court, McCardle said.
But it’s clear, he said, that Marullo exceeds the age limit under either constitution.
“There’s no rule that says you can start a term at age 75,” McCardle said.
Marullo, however, insists that the voters’ decision to uphold the age limit for judges doesn’t kill his chances.
“I wasn’t depending on that, because that’s an amendment to the ’74 constitution. I’m depending on the ’21 constitution,” he said.
The fact he turns 75 on New Year’s Eve also may not be fatal, according to an argument his lawyers made this fall. They noted that Marullo and other re-elected judges often have been sworn in prior to Jan. 1, arguing that state law is vague on when a new judicial term can begin.
In any case, Marullo also suggested a possible challenge to the constitutionality of the age limit, noting that neither federal judges nor any other elected state officials face similar mandatory retirement ages.
“There’s also another thing called America. The Constitution of the United States. We fought the Civil War over it. The 14th Amendment,” he said, referring to the amendment’s equal protection clause.
“Every American is an American. They don’t have a color, a gender or an age,” he added. “What does age have to do with your qualifications, if you can function? People might dislike the way I function, but I function pretty good. In America, age should not play a part in any of this.”
Marullo said he’s not certain how a legal dispute might play out.
“I’m not creating the problem. I’m going to let the problem come,” he said.
Attorney Vincent Booth, who also represented supporters of challenger Graham Bosworth in their attack on Marullo’s candidacy, said an argument that voters have spoken by electing Marullo to another term would be a hard one for the judge to make, given what happened statewide Tuesday.
“The voters have definitely spoken now as to the intent of the (state) constitution,” Booth said.
Booth dismissed the idea that Marullo can start his new term before Jan. 1. Oddly, state law says the term ends on Dec. 31. It doesn’t explicitly say when a new term begins.
“There’s nothing in the law that provides for an early swearing-in, somebody unilaterally deciding to end one term and start another before anybody else,” Booth said.
“My impression is that Judge Marullo and his advisers were always banking on the amendment.”
Follow John Simerman on Twitter, @johnsimerman.