A lawsuit filed by a woman soundly defeated in this month's runoff election claims Baton Rouge City Court Judge-elect Johnell Matthews is "constitutionally barred" from taking office because she was elected after passing Louisiana's mandatory retirement age for judges.

Whitney Higginbotham Greene, who lost to Johnell Matthews by a nearly 2-1 margin, wants the 19th Judicial District Court to void the Aug. 15 election results and declare her the winner.

"She is obviously the sorest loser in history. She's still fighting a losing battle," said Mary Olive Pierson, a lawyer for Matthews.

Matthews won 63% of the vote Aug. 15; Greene had 37%.

Greene, the only Republican in the race, led after the primary election, with 32% of the vote. Four Democrats split the remaining 68%, with Matthews taking 29%.

Greene contends that, by process of elimination, she should be declared the winner if the courts decide that Matthews cannot serve. Pierson said Matthews is the rightful winner, but that if the results were to be voided another election would be held.

The election had initially been set for the spring, when Matthews was 69, just below the state's mandatory retirement age of 70. The contest was reset for July because of the coronavirus, and Matthews turned 70 before the new election day.

Pierson wants Greene's lawsuit assigned to the same 19th JDC judge, William Morvant, who dismissed an age-related petition filed against Matthews and others by a local resident and taxpayer two weeks before the runoff. That petition challenged Matthews' candidacy. Greene's lawsuit challenges Matthews' ability to serve under the state constitution.

Greene's petition names Matthews and Secretary of State Kyle Ardoin as defendants. Greene says the state constitution is clear on the age issue.

"It is unlawful for Johnell Matthews to hold the office of judge and it was an error or an irregularity for her to have been on the August 15, 2020, ballot if she was not a viable candidate to serve as judge," Greene argues in the petition.

Morvant's ruling Aug. 11 to allow Matthews, 70, to remain on the runoff ballot was upheld by two higher courts, including the Louisiana Supreme Court.

Matthews was 69 when she qualified in January to run in what was to have been an April 4 primary election with a possible May runoff, but the coronavirus pandemic twice pushed that date back.

Matthews, a Democrat, turned 70 a month before the July 11 primary. Greene is 49.

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.

Matthews, the wife of former East Baton Rouge Parish Metro Councilman Johnnie Matthews, insists that she should not be penalized for a pandemic pushing the election date beyond her 70th birthday.

Greene, who took a leave of absence as an assistant state attorney general during the campaign, argued during the campaign that Matthews wouldn't be able to serve, because of restrictions based on her age, if Matthews won.

"While the timing of the elections herein did change, it remains that the Louisiana Constitution and the laws of this State do not provide exceptions," Greene states in her petition.

Morvant, in throwing out the prior challenge to Matthews' candidacy, agreed with Matthews and cited a recent coronavirus-related state Supreme Court ruling involving one of Morvant's 19th JDC colleagues, Judge Richard "Chip" Moore.

Moore has been hospitalized with the virus since early July and was unable to personally sign his qualifying papers by the July 24 deadline, but the Supreme Court ruled that the extraordinary pandemic should not knock Moore out of his reelection bid.

The high court allowed Moore's campaign chairman to sign the judge's papers so Moore could appear on the Nov. 3 ballot. The justices said Moore only had to sign them by Nov. 2, which he already has done. Moore has since been reelected after his two challengers dropped out.

The term for the City Court seat that Matthews won expires at the end of 2024.

Greene, 49, is the daughter of state 1st Circuit Court of Appeal Judge Toni Higginbotham and retired Judge Leo Higginbotham, and sister of 19th Judicial District Court Judge Beau Higginbotham.

The state Supreme Court last month upheld Louisiana's mandatory retirement age for judges, a decision that caused Toni Higginbotham to withdraw her candidacy for another 1st Circuit term because she is 74.

The high court's ruling came in the consolidated cases of 19th JDC Judge Janice Clark, 73, and New Orleans Magistrate Judge Harry Cantrell, 72, who were hoping to run again despite their ages. The justices said they couldn't seek another term.

Greene argues in the petition she filed that to allow Matthews to serve would cause the Supreme Court decision in the Clark case "to be moot at best or would lead to absurd consequences."

The Aug. 15 runoff election drew 11,000 fewer voters to the polls than the contest July 11. Greene had nearly 3,000 fewer votes in the runoff, while Matthews picked up more than 3,500 additional votes.


Email Joe Gyan Jr. at jgyan@theadvocate.com.