Cunningham v. Marullo, 2014–CA–0931.

• Decision Date: 03 September 2014
• Docket Number: No. 2014–CA–0931.,2014–CA–0931.
• Citation: 150 So.3d 21
• Court: Court of Appeal of Louisiana — District of US
• Parties: Marian CUNNINGHAM, Lisa Amoss, and Robert Amoss, et al. v. Frank MARULLO and Arthur Morrell, In his Official Capacity as Clerk of the Criminal Court for the City of New Orleans.

150 So.3d 21

Marian CUNNINGHAM, Lisa Amoss, and Robert Amoss, et al.

v.Frank MARULLO and Arthur Morrell, In his Official Capacity as Clerk of the Criminal Court for the City of New Orleans.

No. 2014–CA–0931.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 3, 2014.

Lance C. McCardle, Jason W. Burge, Alysson L. Mills, Fishman Haygood Phelps, Walmsley Willis & Swanson, L.L.P., Vincent J. Booth, Booth & Booth, APLC, New Orleans, LA, for Plaintiff/Appellant.

James E. Boren, Baton Rouge, Rachel I. Conner, John Adcock, Leonard L. Levenson, Weigand & Levenson, New Orleans, LA, for Defendant/Appellee.

(Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS ).

Opinion

DANIEL L. DYSART, Judge.

On August 25, 2014, Marian Cunningham, Lisa Amoss and Robert Amoss, three New Orleans residents and registered voters (“Appellants”), filed a Petition Objecting to Candidacy (“Petition”), challenging the qualifications of Frank Marullo to seek reelection to the office of judge of the Orleans Parish Criminal District Court.¹ Appellants challenged Judge Marullo's qualifications on two bases. First, Appellants alleged that Judge Marullo, having reached the age of 74, is no longer eligible to hold the office of judge pursuant to Article V, 23(B) of the 1974 Louisiana Constitution.² Second, and alternatively, Appellants maintained that, to the extent Judge Marullo is subject to the provisions of the 1921 Louisiana Constitution, he must retire under Article VII, § 8(B) given that he will reach the age of 75 prior to the commencement of the term of the office for which he seeks reelection. Article VII, § 8(b) provided for the retirement of all judges when they attained the age of 75, with the exception of then-sitting judges, who were permitted to serve until the age of 80, unless they had served for 20 years, in which case, they were required to retire.³

After a hearing on August 29, 2014, the district court denied the Petition and found Judge Marullo qualified to seek reelection. In its Reasons for Judgment, the district court found that “because Judge Marullo's rights under the 1921 Constitution—were vested with the 1974 Constitution he is eligible to run again because he has not yet reached the age of seventy-five.” The district court's findings are largely based on the Louisiana Supreme Court decision of Giepert v. Wingerter, 531 So.2d 754 (La.1988).

Appellants have timely appealed the district court's ruling.⁴ We affirm the district court's ruling and set forth the following reasons.

BACKGROUND

The pertinent facts are not in dispute and were stipulated by the parties:

• Judge Marullo was born on December 31, 1939, is currently 74 years old, and will turn 75 years old on December 31, 2014.

• Judge Marullo was appointed to the Orleans Parish Criminal District Court on September 16, 1974, by then Governor Edwin W. Edwards and has served continuously in that position through this date, having last been elected in 2008;⁵

• Judge Marullo's current term will expire on December 31, 2014;

• Judge Marullo most recently qualified for reelection on August 20, 2014 for the election to take place on November 4, 2014 (and if required, a runoff on December 6, 2014).

DISCUSSION

The issue in this appeal is whether Judge Marullo is properly qualified as a candidate for judge of the Orleans Parish Criminal District Court for the November 2014 election. We agree with Judge Marullo that the issue is resolved not by looking to the terms of a judge's retirement, but by considering the qualifications for the office sought. We first note that, under the Louisiana Election Code, “[a] person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in the election. Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office.” La. R.S. 18:451 (emphasis added).

We next note that the limited qualifications to be a candidate for the office of a district court judge are set forth in Article V, § 24 of the 1974 Louisiana Constitution, which provides:

(A) A judge of the ... district court ... shall have been domiciled in the respective district, circuit, or parish for one year preceding election and shall have been admitted to the practice of law in the state for at least the number of years specified as follows:

* * *

(2) For a district court ...—eight years.

Accordingly, there are only two specific requirements for seeking the office of district court judge; namely, a judge must have one year of domicile in the parish in which he serves, and he must have been admitted to the practice of law for eight years.⁶ There is no dispute that Judge Marullo meets both of these requirements, and Appellants make no issue of these facts. In fact, any person qualified under Article V, § 24 may run for judge of a district court regardless of his or her age; whether an elected judge must retire at a certain age is an altogether separate issue. If Judge Marullo had not been a sitting judge but simply a lawyer admitted to the practice of law for at least eight years, he clearly would have qualified as a candidate for the November 2014 election.

We disagree with Appellants' contention that “the trial court erred as a matter of law when it ruled that Louisiana law does not impose an age requirement in order for candidates to be eligible to run for the office of judge.” Appellants cite no statutory authority for this position but rely on an “entire body of jurisprudence that interprets judicial eligibility requirements as to age in the context of deciding whether candidates are eligible to run for judicial office.”

There can be no dispute that there is no statutorily or constitutionally mandated minimum or maximum age limitation for a candidate to run for the office of district court judge. Indeed, as Justice Dennis' concurrence in Williams v. Ragland, 567 So.2d 63, 67 (La.1990) (Dennis, J., concurring) recognizes, “the Louisiana Constitution clearly does not require that a person comply with either a minimum or maximum age limit in order to run for a judicial office.” Accordingly, Judge Marullo's having attained the age of 74 does not disqualify him from running for judge.

However, the inquiry does not end there. This suit seeks to disqualify Judge Marullo as a judicial candidate on the grounds that, prospectively, he does not possess the qualifications to hold that office. Appellants argue that because Judge Marullo will reach the mandatory retirement age (under either the 1921 or the 1974 versions of the Louisiana Constitution) prior to the time he would take office, if reelected, he “is prohibited by law from serving as a judge as of the commencement of the upcoming term. Accordingly, he should not be a candidate for that office.”

A historical review of the mandatory retirement age for judges was summarized by the Geipert Court:

In the 1921 Constitution, Article VII, § 8 initially provided for a judicial retirement age of 75. In a 1936 amendment, the mandatory retirement age for judges was raised to 80. Finally, in 1960, a constitutional amendment lowered the age to 75. The 1960 amendment did not except judges then in office from its scope, but it did permit sitting judges to continue to serve until age 80 or until they had achieved 20 years of service, whichever came first. See La. Const., Article VII, § 8 (1921) (as amended in 1960). No further changes were made in judicial retirement age prior to the adoption of the 1974 Constitution.

Giepert, 531 So.2d at 756. Thus, while the 1921 Constitution provided a mandatory retirement age of 75, the 1974 Constitution amended that age to 70. Appellants cannot seriously dispute that the provisions of the 1921 Constitution apply to Judge Marullo, nor that the applicable mandatory retirement age for Judge Marullo is 75.⁷ This issue was resolved by the Louisiana Supreme Court in Giepert, which held that a judge sitting at the time of the adoption of the 1974 Constitution had certain rights provided by the 1921 Constitution, including “the right to serve until age 75, or until age 80 if he needed additional years to achieve 20 years vested retirement service.” Id.

Having concluded that the mandatory retirement age for Judge Marullo is 75, we now turn to the issue of whether Judge Marullo's reaching the age of 75 prior to the commencement of the judicial term disqualifies him at this time from running for reelection. Appellants suggest that under La. R.S. 18:942, Judge Marullo is “prohibited by law from becoming a candidate for one or more of the offices for which he is qualified.”⁸ Appellants reason that, because Judge Marullo “will be prohibited” from serving as a judge (because he will have then reached the mandatory retirement age and be subject to immediate removal on the date he takes office), this Court should find him ineligible to run in the first place.

Appellants' contention is misplaced. While the applicable mandatory retirement age is 75, there is no specific statutory procedure for the manner in which a sitting judge who attains the mandatory retirement age must retire. That is, when a judge reaches the age for mandatory retirement, he is not automatically considered to have retired; he must either formally retire or be forced to retire by the Louisiana Supreme Court. This is clearly illustrated by the Louisiana Supreme Court case of In re Wingerter, 621 So.2d 1098 (La.1993), following the 1988 Giepert decision. In accordance with Giepert, Judge Wingerter was allowed to continue to serve as a city court judge until he reached the age of 75, or until he had 20 years of service. Although it is...