Judge Harry Cantrell v. State Of Louisiana

Supreme Court of Louisiana
July 21, 2020
Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
JUDGE HARRY CANTRELL
VS.
STATE OF LOUISIANA
No.2020-CD-00915
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I
N RE: State of Louisiana - Applicant Defendant; Applying For Supervisory Writ,
Parish of Orleans Civil, Civil District Court Number(s) 2020-03155;
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July 21, 2020
Writ application granted. See per curiam.
Johnson, C.J., dissents.
Crichton, J., would deny and assigns reasons.
JLW
JDH
JTG
WJC
JHB
07/21/2020 "See News Release 027 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
NO. 2020-CD-0914
JUDGE JANICE CLARK, LOUISIANA VOTERS FOR AN EXPERIENCED
JUDICIARY, AND ALL OTHER JUDGES SIMILARLY SITUATED
VERSUS
STATE OF LOUISIANA
ON SUPERVISORY WRIT TO THE NINETEENTH JUDICIAL DISTRICT
COURT, PARISH OF EAST BATON ROUGE
Consolidated With
NO. 2020-CD-0915
JUDGE HARRY CANTRELL
VERSUS
STATE OF LOUISIANA
ON SUPERVISORY WRIT TO THE CIVIL DISTRICT COURT,
PARISH OF ORLEANS
PER CURIAM*
Writ granted. The supervisory authority of this court is plenary, unfettered by
jurisdictional requirements, and exercisable at the complete discretion of the court.
Marionneaux v. Hines , 05 -1191, p. 4 (La. 5/12/05), 902 So.2d 373, 376;
Progressive Security Insurance Company v. Foster , 97 -2985, p. 2 n.3 (La.
4/23/98), 711 So.2d 675, 678 n.3. This court can intervene under its own plenary
supervisory powers, whether or not an intermediate court has properly acted on the
matter. Marionneaux, 05-1191 at p. 4, 902 So.2d at 376.
The salient facts here are not in dispute. The plaintiff judges in these
consolidated cases are over age seventy, their terms expire on December 31, 2020,
and they intend to qualify and run for re -election despite the mandatory retirement
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age imposed by La. Const. Art. V, § 23(B), which states: “Except as otherwise
provided in this Section, a judge shall not remain in office beyond his seventieth
birthday. A judge who attains seventy years of age while serving a term of office
shall be allowed to complete that term of office.” (Emphasis added.)
Judge Clark contends Art. V, §23(B) is in conflict with three other provisions
of the Louisiana Constitution: Art. I, §3 (“No person shall be denied the equal
protection of the laws...”); Art. I, §7 (“No law shall curtail or restrain the freedom of
speech...”); and Art. II, §2 (“Except as otherwise provided by this constitution, no
one of these branches, nor any person holding office in one of them, shall exercise
power belonging to either of the others.”). Judge Cantrell makes an equal protection
argument and, in addition, claims the 2018 enactment of La. Const. Art. I, §10.1,
prohibiting certain convicted felons from seeking or holding public office, tacitly
repeals Art. V, §23(B), or otherwise renders it inactive. We find no merit in these
assertions.
As we held in Giepert v. Wingerter, 531 So.2d 754, 755-56 (La. 1988), the
validity of a constitutional mandatory retirement age for judges is not in doubt.
Other state and f ederal courts considering this question have likewise upheld the
validity of such provisions. See Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395,
115 L.Ed.2d 410 (1991); Zielasko v. State of Ohio, 873 F.2d 957 (6th Cir. 1989);
Hatten v. Rains, 854 F.2d 687 (5th Cir. 1988); Diamond v. Cuomo, 130 A.D.2d
292, 519 N.Y.S.2d 691, affirmed, 70 N.Y.2d 338, 514 N.E.2d 1356 (1987); Saetre
v. State, 398 N.W.2d 538 (Minn. 1986); Grinnell v. State, 121 N.H. 823, 435 A.2d
523 (1981). Those who wish to change the mandatory retirement age provisions in
Art. V, §23(B) are provided an avenue for doing so by La. Const. Art. XIII, § 1 (“An
amendment to this constitution may be proposed by joint resolution at any regular
session of the legislature…”).
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Art. V, §23(B), like other mandatory judicial-retirement provisions, “draws a
line at a certain age which attempts to uphold the high competency for judicial posts
and which fulfills a societal demand for the highest caliber of judges in the system.”
Gregory v. Ashcroft, 501 U.S. 452, 471, 111 S. Ct. 2395, 2407, 115 L. Ed. 2d 410
(1991) (quoting O’Neil v. Baine, 568 S.W.2d 761, 766 (Mo. 1978)). Founded on a
generalization about age and performance that is not true for many if not most
judges, Art. V, §23(B) nevertheless ensures increase d opportunities for qualified
persons to share in the judiciary through orderly retirements. See Gregory, 501 U.S.
at 471, 111 S. Ct. at 2407. Because this explanation is a rational basis for the
disparate treatment of judges by age, Art. V, §23(B) survives scrutiny under the
Equal Protection Clause of the U.S. Constitution. See Gregory, 501 U.S. at 471-72,
111 S. Ct. at 2407.
As the plaintiffs point out, Art. V, §23(B) permits a judge “who attains seventy
years of age while serving a term of office . . . to complete that term of office.” This
admittedly undermines the premise that a judge over age seventy should no longer
serve. Furthermore, depending on when a judge’s birthday falls in his term, this
provision permits some judges to serve years longer than a colleague who may only
be weeks or days older. However, despite these inequities, the provision has a
rational basis in a legitimate state interest: avoidance of the substantial e xpense of
special elections and pro tempore judicial appointments that would otherwise be
necessary every time a judge reaches age seventy. Supported by that rational basis,
Art. V, §23(B)’s concession allowing limited judicial service beyond age seventy
does not violate the Equal Protection Clause of the U.S. Constitution.1
1 We also reject the argument that this court’s appointment of ad hoc or pro tempore judges
over age seventy demonstrates the underpinnings of Art. V, §23(B) are false. Judges appointed ad
hoc serve on a specific case or cases, and judges appointed pro tempore serve for specified and
generally limited periods of time, unlike their elected counterparts, who serve multiyear
terms. Appointed judges do not “remain in office” as do elected judges, but rather are appointed
to specified cases or for a specified time.

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When a judge nears the completion of his or her term, an election is scheduled
to fill that position. It is essential, therefore, that who ever seeks judicial office be
able to serve. The purpose of an election is to select someone who will serve in the
office. If a person cannot serve, he or she cannot be a candidate for office. Pursuant
to Art. V, §23(B), a judge who attains age seventy during their term of office cannot
be a candidate for judicial office because that judge cannot serve another term.
The plaintiffs seek to avoid th e straightforward effect of Art. V, §23(B) by
pitting other state constitutional provisions against it. For example, they contend the
provisions in La. Const. art. I, § 3 securing equal protection must defeat Art. V, §
23(B). Therefore, this is not a case where a statute enacted by the legislature or some
action by a governmental agency bar s these judges from serving anot her term of
office. Instead, the plaintiffs argue that some of the provisions of the constitution
must topple other provisions.2
Longstanding principles defeat that line of argument. As this court has
recognized, “constitutional provisions should be construed, where possible, to allow
each provision to stand and be given effect.” Fruge v. Board of Trustees of
Louisiana State Employees’ Retirement Sys., 08-1270, p. 8 (La. 12/2/08), 6 So.3d
124, 130 (citing Perschall v. State, 96-0322, pp. 21-22 (La. 7/1/97), 697 So.2d 240,
255). “If one constitutional provision addresses a subject in general terms, and
another with the same subject in a more detailed way, the two should be harmonized
if possible, but if there is any conflict, the latter will prevail.” Perschall, 96-0322 at
22, 697 So.2d at 255. The provision addressing eligibility for retaining judicial
office, Art. V, § 23(B), speaks directly to judicial retirement. Although this
2 In addition to an aged -based equal protection claim, Judge Clark argues the judicial
retirement provision conflicts with Article I, § 7 (freedom of expression) and Article II, § 2
(separation of powers). Judge Cantrell argues that by the enactment of Article I, § 10.1 (prohibiting
convicted felons from seeking or holding public office), the electorate no longer intends to enforce
judicial retirement. Plaintiffs essentially invite this court to hold that the electorate is incapable of
crafting a constitution that is not internally contradictory. We decline to so hold.
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provision has been amended, judicial retirement was contemplated at the inception
of our state constitution, just as was equal protection. Indeed, judicial retirement was
a feature of the prior constitution and as previously noted, when the occasion allowed
consideration of the interplay between the prior and current constitutions, this court
observed: “The validity of some constitutional mandatory retirement age for judges
is not in doubt.” Giepert, 531 So.2d at 755.
The p laintiffs fail to demonstrate why judicial retirement cannot be given
effect as the electorate intended, 3 without running afoul of the equal protection
provision or other provisions in the same constitution. In so concluding, we draw
from the observations by judicial colleagues from another state, whose constitution
similarly contained both an Article I declaration of rights with equal protection and
another Article with a judicial retirement age. “[E]ven if the [challengers] are correct
in their assertion that implicit in the various provisions of Article I there is a
prohibition against classifications p redicated upon age, such a prohibition would
only restrain governmental classifications, but would not prevent the people from
using such classifications in structuring the government itself.” Gondelman v.
Commonwealth, 554 A.2d 896, 905 (Pa. 1989).
We hold that a person constitutionally barred from serving as a judge cannot
be a candidate for judicial office. Art. V, § 23(B) mandates that “a judge shall not
remain in office beyond his seventieth birthday .” The reason to seek office is to
“remain in office.” While Art. V, § 23(B) allows a 70-year-old judge to serve out
his or her term, it does not allow him or her, as the plaintiffs contend, to seek re -
election for another term. To the extent it held otherwise, we overrule Cunningham
v. Marullo, 14-0931 (La. App. 4 Cir. 9/3/14), 150 So. 3d 21, writ denied, 14-1876
(La. 9/10/14), 148 So. 3d 570.
3 The argument that judicial retirement does not express the will of the electorate was
objectively rejected by the voters’ recent defeat of 2014 La. Acts 875 (proposing to remove section
23(B) from Article V of the state constitution).
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DECREE
For the stated reasons, judgment is hereby rendered in favor of the State of
Louisiana, and the matter is remanded to the respect ive district courts with
instructions to dismiss the actions of the plaintiffs, with prejudice.
JUDGMENT RENDERED; REMANDED WITH INSTRUCTIONS.
07/21/20