Voters have the chance next month to end mandatory retirement for judges, and there are many reasons to do so.
Any senior judge will be happy to list them for you, or, at least, the ones he can remember.
Just kidding, your honors. Nobody could seriously suggest our judges turn goofy when they reach 70. How would we tell the difference?
Take, for instance, the appeals court in New Orleans that, with just one dissent, has cleared Frank Marullo to run for re-election to a judgeship for which he is constitutionally disqualified. If that’s the kind of ruling you get from jurists in their prime, we have nothing to lose by stuffing the bench with ga-ga geezers.
The appeals court, in upholding a district judge’s ruling, employed an over-literal reading of the law to throw common sense out the window. Thus, unless the state Supreme Court reverses, Marullo will run for another term, beginning the day after the constitution says his advanced age will make him ineligible to serve it.
Marullo, who first saw the light of day on New Year’s Eve 1939, will be up for re-election on the same ballot as a constitutional amendment that would allow judges to remain on the bench until they drop, or incapacity impels the Supreme Court to remove them.
Thus, if he wins, and the amendment passes, Marullo probably will get to keep his job. But, under the law as it stands, allowing his name to appear on the ballot is clearly nuts. If he wins and the amendment fails, the seat on the Orleans Parish criminal court, which he has held for 40 years, must become vacant Jan. 1.
The constitution currently says judges can stay on the job until they are 75 in order to complete terms to which they were elected before turning 70.
Marullo clearly retains all his faculties, and District Attorney Leon Cannizzaro, with whom he has by no means always seen eye to eye, has endorsed him. But, so long as mandatory retirement is the law, judges might reasonably be expected to abide by it.
The courts have rejected a challenge to Marullo’s candidacy because all that the law requires of judicial candidates is that they have lived in the district for one year and practiced law for eight. Thus, though you may be too old for a judgeship, you’re never too old to run for one, although the constitution currently says it is a waste of time to do so.
There must be a good chance that voters will ditch mandatory retirement on the theory that it is a waste of experience and the wisdom that may come with age. Proponents of the constitutional amendment point out that no epidemic of senile dementia has been reported in the federal system, where judges are appointed for life. They also say it is illogical to force judges out of office when no age limit has been imposed for any other state officials. Besides, taxpayers would appreciate the savings if superannuated judges delayed drawing their pensions.
Those other state officials may, however, be subject to term limits, whereas judges, as Marullo has demonstrated, are practically impossible to dislodge once they become established, in large measure because loyal attorneys rush in with campaign contributions while laymen pay little heed.
The trial and appeals courts, in ruling for Marullo, have noted they have no authority to remove a sitting judge. Only the state Supreme Court can do that.
But the judges weren’t asked to kick Marullo off the bench, and there was no need to do so. The law makes it quite clear that he is not entitled to remain for a term that doesn’t begin until after he has been presented with a cake and invited to blow out 75 candles.
But the constitutional amendment appears on the ballot at the perfect time for Marullo. If he wins the election, and the amendment passes, that will be that. The state Supreme Court is not about to mess with the will of the people, even if it took some tortured logic to let him run in the first place.
That might be the most favorable outcome so far as the public is concerned. If the amendment fails, what to do with Marullo’s seat is a question to test the wisdom of the ages.
James Gill’s email address is firstname.lastname@example.org.