A state appeals court ruled Wednesday that Orleans Parish Criminal District Court Judge Frank Marullo can run again for his seat at age 74, despite a constitutional age cap on judges that means he may not be able to take office if he wins.
In an 11-1 decision, with only Judge Dennis Bagneris dissenting, the 4th Circuit Court of Appeal found that no age limit applies to qualification for judicial office, since the state constitution says only that candidates for district judge must live where they intend to run and must have practiced law for eight years.
The court majority, upholding a ruling last week by Civil District Court Judge Kern Reese, found that “whether an elected judge must retire at a certain age is an altogether separate issue.”
Barring a successful appeal to the state Supreme Court, the ruling sets up a possible scenario where Marullo could win election but then not be able to take office.
Three voters filed the challenge to Marullo’s candidacy. One of their attorneys, Vincent Booth, said the appeals court wrongly relied on a concurring opinion by then-Louisiana Supreme Court Justice James Dennis in a 1990 case involving a judicial candidate in northeast Louisiana.
Dennis found that it was up to the Legislature to include the judicial age limit in its requirements for qualifying or office, but that lawmakers had chosen not to do so.
Booth said he plans to appeal Wednesday’s decision to the Louisiana Supreme Court within 48 hours.
Marullo, the longest-serving judge in Lousiana, turns 75 on Dec. 31, complicating the question of his eligibility to serve.
He argues that he falls under the 75-year-old mandatory retirement age for judges that was in effect when then-Gov. Edwin Edwards appointed him to the Section D criminal court seat 40 years ago this month.
Four months later, the existing constitution came into effect, setting a 70-year-old age limit on judges. A 2003 amendment allows judges who turn 70 while in office to serve out their terms.
According to Marullo, he gets the best of both worlds: the 75-year-old retirement age from the old constitution and the ability to serve out his term once he reaches that age under the new constitution.
The voters who filed the legal challenge to Marullo’s candidacy argue, however, that under either constitution Marullo can’t take office at the beginning of the next term Jan. 1 since by then he will have reached 75.
Marullo’s attorney, Jim Boren, argued at a hearing Tuesday that the new term can begin — and has begun, in certain instances — prior to Jan. 1. That could mean Marullo would sneak in under the 75-year-old retirement age under the old constitution.
Alternatively, Marullo could get a reprieve if statewide voters pass an amendment Nov. 4 that would remove the age restriction on all judges.
In that case, a different legal fight over Marullo’s eligibility to serve may develop.
The appeals court Wednesday rejected Marullo’s argument that the court needed to consider the possibility that the amendment will pass.
But for now, he can run, casting the race for his seat into uncertainty.
http://www.theneworleansadvocate.com/home/10068065-123/end-of-qualifying-re-elects-some">Four challengers qualified to run for his seat: former prosecutor Graham Bosworth, whose supporters filed the challenge to Marullo’s candidacy; former prosecutor Brigid Collins; former Magistrate Commissioner Rudy Gorrell; and private attorney Marie Williams.
Whether any of them will drop out with Marullo planted on the ballot is uncertain.
The decision comes on the heels of a surprise endorsement for Marullo. Orleans Parish District Attorney Leon Cannizzaro, who often has sparred with Marullo in the courtroom, this week signed an affidavit in support of Marullo.
In his dissent, Bagneris balked at the potential for candidates to run for offices they can’t take.
“The purpose of eligibility requirements to run for office is to determine those with the requisite qualifications to serve in office,” he wrote. “Because Judge Marullo is unable to serve under present law, he is not eligible to run for re-election.”
Follow John Simerman on Twitter, @johnsimerman.