In Re: Judge Johnell M. Matthews Baton Rouge City Court East Baton Rouge Parish State Of Louisiana Judiciary Commission's Recommendation Rej Ected. No

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 28th day of January, 2022 are as follows:
BY Griffin, J.:
2021-O-01078 IN RE: JUDGE JOHNELL M. MATTHEWS
BATON ROUGE CITY COURT
EAST BATON ROUGE PARISH
STATE OF LOUISIANA
JUDICIARY COMMISSION'S RECOMMENDATION REJ ECTED. NO
DISCIPLINE IMPOSED. SEE OPINION.
Weimer, C.J., dissents and assigns reasons.
Crain, J., dissents and assigns reasons.
McCallum, J., dissents and assigns reasons.

SUPREME COURT OF LOUISIANA
No. 2021-O-01078
IN RE: JUDGE JOHNELL M. MATTHEWS
BATON ROUGE CITY COURT
EAST BATON ROUGE PARISH
STATE OF LOUISIANA
Judiciary Commission of Louisiana
GRIFFIN, J.
This matter arises from the recommendation of the Judiciary Commission of
Louisiana (“the Commission”) that Judge Johnell M. Matthews of Baton Rouge City
Court be removed from office because she is constitutionally barred from remaining
in judicial office having reached the mandatory retirement age of seventy prior to
the commencement of her term .1 After considering the facts, circumstances, and
applicable law, we reject the recommendation of the Commission and impose no
discipline.
FACTS AND PROCEDURAL HISTORY
On January 8, 2020, Judge Matthews qualified for the special election to fill
the vacancy of Division “C” of the Baton Rouge City Court. The primary election
was scheduled for April 4, 2020 with a runoff election on May 9, 2020, if necessary.
Due to the unprecedented COVID-19 global pandemic and the rising cases within
the State of Louisiana, the governor declared a State of Emergency and issued two
proclamations that postponed the special election twice.2 The initial proclamation
1 Although Johnell M. Matthews did not become a judge until September 9, 2020, at all times
herein, she is referred to as “Judge Matthews.”
2 On May 11, 2020, Governor John Bel Edwards issued Proclamation Number 25 JBE 2020 –
PUBLIC HEALTH EMERGENCY – COVID-19, declaring a State of Emergency. On March 13,
2020, the Secretary of State certified that a state of emergency existed, a nd requested that the
Governor issue an executive order postponing the elections. On March 13, 2020, the Governor
issued Proclamation Number 28 JBE 2020 – ELECTIONS RESCHEDULED DUE TO
STATEWIDE STATE OF EMERGENCY CAUSED BY COVID -19, rescheduling the April 4,
2020 special/primary election to June 20, 2020, and rescheduling the May 9, 2020 runoff/general
election to July 25, 2020. On April 2, 2020, Governor Edwards extended the State of Emergency.
01/28/22

2

set the primary election on June 20, 2020 with the general election on July 25, 2020.
The subsequent proclamation reset the primary and general election s to July 11,
2020 and August 15, 2020, respectively.
On June 7, 2020, Judge Matthews turned seventy years old. In the primary
election, Whitney Higgenbotham Greene received 32% of the vote and Judge
Matthews received 29% of the vote. Prior to the runoff election , a suit was filed
against the Louisiana Secretary of State, the Louisiana Attorney General, and Judge
Matthews, requesting that Judge Matthews’ name be removed from the ballot
because she had attained the age of seventy before the primary election. The district
court dismissed this suit on procedural grounds. The court of appeal and this Court
denied writs. Luther v. Ardoin, 20-0726 (La.App. 1 Cir. 8/13/20) (unpublished), writ
denied, 20-1007 (La. 8/14/20), 300 So.3d 877.
Judge Matthews won the runoff election, having received 63% of the vote.
Her opponent filed suit challenging the results of the election due to Judge
Matthews’ age. The district court dismissed the suit. During the pendency of the
appeal, Judge Matthews received her commission from the governor and took her
oath of office. The court of appeal affirmed. Greene v. Ardoine, 20-0810 (La.App.
1 Cir. 9/11/20), 313 So.3d 298. This Court declined to consider Ms. Greene’s writ
application on timeliness grounds. Greene v. Ardoin , 20-1110 (La. 9/23/20), 301
So. 3d 1184.

On April 13, 2020, the Secretary of State certified to the G overnor that a state of emergency
continued to exist that would affect the electoral process, pursuant to La. Rev. Stat. 18:401.1. On
April 14, 2020, Governor Edwards issued Proclamation Number 46 JBE 2020 - ELECTIONS
RESCHEDULED DUE TO STATEWIDE STATE OF EMERGENCY CAUSED BY COVID-19,
rescheduling the April 4, 2020 primary election from June 20, 2020 to July 11, 2020, and
rescheduling the May 9, 2020 general election from July 25, 2020 to August 15, 2020. Qualifying
for the special election was never reopened (Section 2 of Governor’s Proclamations) and none of
the candidates were required to re-qualify for the delayed election dates.

3

On February 5, 2021, the Commission filed a Notice of Hearing against Judge
Matthews, alleging that she violated Canon s 13 and 2A 4 of the Code of Judicial
Conduct and La. Const. art. V, § 23(B)5 by continuing to serve as a judge despite
being constitutionally barred from remaining in office . The Hearing Officer found
that Judge Matthews did not violate Canon 1, Canon 2A, or La. Const. art. V, §
23(B). The Commission disagreed and submitted its own conclusions of law finding
that Judge Matthews is violating the Code of Judicial Conduct and the Louisiana
Constitution by continuing to serve as a judge and recommend ed she be removed
from judicial office. This Court docketed the matter for oral argu ment pursuant to
Louisiana Supreme Court Rule XXIII, § 14.
DISCUSSION
The sole issue before us is whether this Court should accept the
recommendation of the Commission and remove Judge Matthews from office.
Article V, § 25(C) of the Louisiana Constitution vests this court with exclusive and

3 Code of Judicial Conduct Canon 1 provides:

An independent and honorable judiciary is indispensable to justice in our society.
A judge should participate in establishing, maintaining, and enforcing, and shall
personally observe, high standards of conduct so that the integrity and
independence of the judiciary may be preserved. The provisions of this Code are to
be construed and applied to further that objective. As a necessary corollary, the
judge must be protected in the exercise of judicial independence.

4 Code of Judicial Conduct Canon 2A provides:

A judge shall respect and comply with the law and shall act at all times in a manner
that promotes public confidence in the integrity and impartiality of the judiciary.

As used in this Code, “impartiality” or “impartial” denotes absence of bias or
prejudice in favor of, or against, particul ar parties or classes of parties, as well as
maintaining an open mind in considering issues that may come before the judge.

5 La. Const. art. V, §23 (B) provides:

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.

4

original jurisdiction in judicial disciplinary proceedings and provides the substantive
grounds for disciplinary actions against a judge.6
The Commission argues that Judge Matthews is constitutionally barred from
remaining in office pursuant to the plain and unambiguous language of La. Const.
art. V, § 25(B), having reached the mandatory retirement age of seventy prior to the
commencement of her term. Her continued retention of judicial office is therefore
in violation of Canons 1 and 2A of the Code of Judicial Conduct. See Small v. Guste, 383 So. 2d 1011, 1014 (La. 1980) (a judge who remains in office past the mandatory
retirement age is guilty of misconduct). However, the Commission suggests a
judicially created exception to La. Const. art. V, § 23(B) may be appropriate given
the unique circumstances present and that this issue has arisen due to the executive
branch’s action in delaying a judicial election.
Judge Matthews counters that she was under the age of seventy at the time of
her qualification for candidacy. See La. Const. art. V, § 24 (not specifying an age
limit on qualification) ; La. R.S. 18:451 ( “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”). She further argues the Commission’s interpretation of La.
Const. art. V, § 23(B) leads to the absurd consequence wherein shou ld a duly

6 La. Const. art. V, §25 (C) provides:

On recommendation of the judiciary commission, the supreme court m ay censure,
suspend with or without salary, remove from office, or retire involuntarily a judge
for willful misconduct relating to his official duty, willful and persistent failure to
perform his duty, persistent and public conduct prejudicial to the administration of
justice that brings the judicial office into disrepute, conduct while in office which
would constitute a felony, or conviction of a felony. On recommendation of the
judiciary commission, the supreme court may disqualify a judge from exercising
any judicial function, without loss of salary, during pendency of proceedings in the
supreme court. On recommendation of the judiciary commission, the supreme court
may retire involuntarily a judge for disability that seriously interferes with the
performance of his duties and that is or is likely to become permanent. The supreme
court shall make rules implementing this Section and providing for confidentiality
and privilege of commission proceedings.

5

qualified attorney that legitimately runs for judge for t he first time wins, they must
then be removed upon taking office.7
We need not create a judicial exception or force a strained interpretation of
the Louisiana Constitution. Although the plain language of La. Const. art. V, § 23(B)
provides that “a judge shall not remain in office beyond his seventieth birthday,” the
plain language of La. Const. art. V, § 25(C) provides that this Court may remove a
judge from office based on the reco mmendation of the Commission . The word
“may” is permissive and not mandatory. See La. R.S. 1:3; La. C.C.P. art. 5053. The
Court therefore is not bound to accept the Commission’s recommendation as the
language of La. Const. art. V, § 25(C) is discretionary. See Lee Hargrave, The
Judiciary Article of the Louisiana Constitution of 1974 , 37 LA. L. R EV. 765, 828
(1976).
This Court has supervisory and plenary authority over all other courts and
original jurisdiction in all disciplinary matters related to the bench and bar. See La.
Const. art. V, § 5 . “This constitutional grant of supervisory authority has always
been held to be plenary, unfettered by jurisdictional requirements, and exercisable
at the complete discretion of the court.” See Albert Tate, Jr., Supervisory Powers of
the La. Courts of Appeal, 38 TUL. L. REV. 429, 430 (1964); see also In re Best, 15-
2096, p. 14 (La. 6/29/16), 195 So.3d 460, 468 (“the primary purpose of the Code of
Judicial Conduct is the protection of the public rather than to simply discipline
judges”) (citing In re Marullo, 96-2222, p.6 (La. 4/8/97), 629 So.2d 1019, 1023).

7 In Greene v. Ardoin, Judge Holdridge acknowledged “there may be a constitutional flaw which
would allow [Judge] Matthews to run and be elected judge of the Baton Rouge City Court, but
would prohibit her from being able to sit and serve as judge of that court.” 20-0810, 313 So. 3d at
306 (Holdridge, J. concurring). Nonetheless, he further noted that Judge Matthews’ interpretation
of La. Const. art. V, §23(B) “would allow a lawyer of any age to be elected and serve a term as a
judge” and also “allow a sitting judge over the age of seventy to resign, qualify as a candidate for
judicial office, and if successful, to serve another term.” Id.

6

Exercising this discretion, we find that judicial discipline is not warranted in
this matter . The facts in this case are driven by the pandemic and subsequent
proclamations issued by the governor which delayed the elections. But for these
delays, Judge Matthews would have taken office prior to attaining the age of seventy.
DECREE
For the foregoing reasons, the Commission’s recommendation is rejected and
no discipline is imposed. We emphasize that this decision is limited to th e
individualized circumstances surrounding this case and election.

RECOMMENDATION REJECTED; NO DISCIPLINE IMPOSED

SUPREME COURT OF LOUISIANA
No. 2021-O-01078
IN RE: JUDGE JOHNELL M. MATTHEWS
BATON ROUGE CITY COURT
EAST BATON ROUGE PARISH
STATE OF LOUISIANA
Judiciary Commission of Louisiana
WEIMER, C.J., dissenting.
This matter presents a challenging issue brought on by a worldwide pandemic
that caused a judicial election date to be delayed. If the election had been held when
originally scheduled, Johnell Matthews would likely have been elected to serve as a
judge, and this matter would not be before the court. However, the election had to
be postponed for public health reasons related to the ongoing pandemic.
By clear and unambiguous language, the Louisiana Constitution prohibits
anyone over the age of 70 to serve as a judge unless that individual began serving a
term of office as a judge prior to turning 70. La. Const. art. V, § 23(B). 1 The
Louisiana Constitution is the supreme law of the state. Louisiana Fed’n of Teachers
v. State, 13-0120, p. 22 (La. 5/7/13), 118 So.3d 1033, 1048. When the language of
the constitution is clear and unambiguous, it must be applied as written. This court
is not free to create an ambiguity where none exists, or to revise or rewrite the
language of the constitutional provision under the guise of interpretation. City of
New Orleans v. Louisiana Assessors’ Ret. and Relief Fund , 05-2548, p. 30 (La.
10/1/07), 986 So.2d 1, 22. Thus, the constitution cannot be altered or amended by
judicial fiat.
1 On November 4, 2014, a proposed amendment to La. Const. art. V, § 23 to eliminate the
mandatory age-based retirement requirement was placed on the ballot. The citizens of Louisiana
rejected the amendment.
01/28/22

The majority opinion does not disagree that Judge Matthews is constitutionally
barred from remaining in judicial office under Article V, § 23(B), having reached the
mandatory retirement age of 70 prior to the commencement of the term of office in
question. However, the majority opinion nonetheless allows Judge Matthews to
sidestep this prohibition by simply choosing not to apply the constitutional mandate.
Louisiana Const. art. V, § 25(C) provides this court with discretion to discipline a
judge (“On recommendation of the judiciary commission, the supreme court may
censure, suspend with or without salary, remove from office, or retire involuntarily
a judge for willful misconduct relating to his official duty, willful and persistent
failure to perform his duty, persistent and public conduct prejudicial to the
administration of justice that brings the judicial office into disrepute ....”) (emphasis
added); however, that discretion does not authorize this court to ignore constitutional
mandates, particularly when this court has consistently removed judges for the very
reason the Judiciary Commission brought charges in this case–lack of compliance
with the constitutional age restriction. Notwithstanding Judge Matthews’ good faith
belief that she had the right to remain in office, or her capable service as a judge, this
court has held that “a judge’s willful retention of office beyond [the] mandatory
retirement age is grounds for removal by this court.” In re Wingerter, 621 So.2d
1098, 1101 (La. 1993). Both in Wingerter and In re Levy, 427 So.2d 844 (La.
1983), this court removed/involuntarily retired judges for continuing to occupy
judicial office after reaching the mandatory retirement ages applicable to them.
Moreover, in Small v. Guste, 383 So.2d 1011 (La. 1980), this court explained that
if a judge willfully refuses to perform his constitutional and ethical duty to retire upon
reaching mandatory retirement age and such action is publicized, it is possible the
judge will be found guilty of “persistent and public conduct prejudicial to the
2

administration of justice that brings the judicial office into disrepute.” Id. at 1014
(citing La. Const. art. V, § 25).
The word “may” in Article V, § 25(C) affords the court the necessary discretion
to not impose discipline for any number of reasons, such as a failure to meet the
burden of proof of charges or finding no legal grounds for the charges. If the
constitution used the word “shall” instead of “may” in Article V, § 25(C), it would
have compelled this court to discipline every judge against whom the Judiciary
Commission brings charges–an absurd result. Furthermore, it is wholly inappropriate
to expand the word “may” in this context to justify ignoring the plain language of
Article V, § 23(B). Section 23(B) clearly provides, in mandatory language, that a
person beyond 70 years of age shall not serve as a judge unless elected to a term
commencing prior to the age of 70. See Rathborne Lumber & Supply Co. v.
Falgout, 218 La. 629, 635, 50 So.2d 295, 297 (La. 1950) (“It is well recognized,
however, that although words of a statute are permissive, ... sometimes they may
require an interpretation giving them mandatory effect, this occurring where the
context or subject matter compels such construction or where it is necessary to carry
out the clear policy and intention of the Legislature.”). Accordingly, Judge Matthews
is legally prohibited, in mandatory language, from remaining in office based on the
Louisiana Constitution, and her refusal to resign from judicial office must, therefore,
be deemed to constitute grounds for discipline. By declining to impose discipline in
the form of removal/involuntarily retirement, the majority opinion is enabling Judge
Matthews to retain her seat on the Baton Rouge City Court in violation of La. Const.
art. V, § 23(B). Although this matter arises from an unprecedented set of
circumstances, other citizens of this state cannot be expected to respect the law as it
is written if a judge does not.
3

An argument has been raised that this court’s action in Comm. To Re-Elect
Judge Moore o/b/o Moore v. Ardoin, 20-0941 (La. 7/24/20), 300 So.3d 403, as
authority for this court to allow Judge Matthews to remain in office by taking into
account the unique circumstances surrounding Judge Matthews’ case. I find this case
distinguishable and irrelevant to the issue before the court. In Moore, this court
issued a per curiam allowing Judge Moore’s campaign committee chairman (rather
than the candidate, Judge Moore) to sign the certificate of candidacy required by La.
R.S. 18:463(A)(2)(a). This court’s order required the candidate to sign the certificate
no later than 11/2/20, and once signed, the order provided that the document would
be attached to and relate back to the date of the original certificate. This lack of
formal compliance with the election law statute was allowed because the candidate
was hospitalized with Covid-19 on the date the certificate was due. Notably, Moore
arose in the context of statutory law, not in the context of evaluating a constitutional
provision. Thus, Moore did not involve a very specific constitutional provision
which limits who can serve as a judge to those who are less than 70 years old when
elected. The election law at issue in Moore essentially involved a ministerial
requirement: the candidate’s signature on a document. The statements attested to in
the document were not at issue. Moreover, this court actually required the candidate
to comply with the mandates of that statute within a specific time. Thus, this court
did not completely eliminate the statute’s requirements.2 By contrast, this case
involves a substantive, specific constitutional provision. Judge Matthews’ age cannot
be altered. And the age requirement is a substantive element that cannot be
2 Statutorily, La. C.C. art. 9 allows an exception when the strict application of the statute leads to an
absurd result. In Moore, the candidate was temporarily handicapped. Any number of handicaps
could have prevented him from physically signing a qualification paper. Regardless, he still
potentially faced the electorate after qualifying.
4

subsequently and/or retroactively remedied. The court’s action in Moore does not
give the court leave to ignore or refuse to apply the specific constitutional provision
related to judicial retirement.
There is no dispute regarding the relevant facts. The primary purpose of the
Code of Judicial Conduct is to protect the public, rather than to discipline a judge.
In re Marullo, 96-2222, p. 6 (La. 4/8/97), 692 So.2d 1019, 1023. Although this
matter arises in a disciplinary setting, I do not view this as a lapse in Judge Matthews’
character or an issue of misdeeds; rather, this is an instance in which the constitution
dictates Judge Matthews shall not serve. Louisiana’s laws have always drawn lines
related to age, which in certain circumstances may seem arbitrary. However, once a
line is drawn, particularly in the constitution, that line must be acknowledged and
enforced. During her service, Judge Matthews has undoubtedly encountered
situations wherein she felt a law was inequitable, but she applied the law because that
is the obligation of a judge. I am compelled by the law to do so in this matter.
By all accounts, Judge Matthews has served well and is a respected jurist. The
Judiciary Commission indicated in brief to this court, and I agree, that her character
and her right to initially qualify to seek judicial office are not in question. The facts
of this case dictate an unfortunate result. I have devoted significant time and effort
to evaluating the law to determine if there was a legal path to enable Judge Matthews
to continue to serve.3 This nation prides itself on being a nation of laws, and not of
men or women.4 The constitution emanates from the people. The people expect
3 In my opinion, this matter should have been resolved earlier this year because the salient facts are
not at issue and the law is clear. See In re: Confidential Party, 20-1492 (La. 1/14/21), 309 So.3d
727 (Weimer, C.J., dissenting, noting all of the relevant facts are undisputed, the issue is purely one
of law, and the matter should have been expeditiously resolved).
4 John Adams said, “We are a nation of laws, not of men.” This means the laws apply to everyone
equally and that no one is above the law. Dura lex, sed lex.
5

judges to apply the law as written. Although I dislike the result in this case,
ultimately I am constrained to apply the law as it is written, despite the equities in
Judge Matthews’ favor. Therefore, I am compelled to very respectfully dissent.
6

1
SUPREME COURT OF LOUISIANA
No
. 2021-O-01078
I
N RE: JUDGE JOHNELL M. MATTHEWS
BATON ROUGE CITY COURT
EAST BATON ROUGE PARISH
STATE OF LOUISIANA
Ju
diciary Commission of Louisiana
C
rain, J., dissenting.
I j
oin Chief Justice Weimer’ s well-written dissent entirely, and write
separately only for emphasis. La. Const. art. V, § 23(B) provides:
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.
This constitutional mandate is clear: “a judge shall not remain in office beyond
his seventieth birthday.” The directive is subject to one --and only one--exception:
“A judge who attains seventy years of age while serving a term of office shall be
allowed to complete that term of office.” The section does not allow for exceptions
found in other parts of the constitution. Judge Matthews was seventy years-old when
she took office. The Louisiana Constitution clearly provides she “shall not remain
in office” unless she “attain[ed] seventy years of age while serving a term of office.”
Judge Matthews did not turn seventy while serving her term; she turned seventy
before her term began.1
Section 23(B) does not contain an exception for a pandemic or for an
executive proclamation that delays an election. It is the only constitutional provision
that sets the age after which a judge cannot serve. The Commission erroneously
1 While Judge Matthew’s election was rescheduled twice, qualifying for the election was never
reopened and none of the candidates were required to re -qualify for the delayed election dates.
Thus, she met all qualifications to serve at the time of qualifying. It was not until later that she
became constitutionally barred from serving as judge . Compare Clark v. State , 20-00914 (La.
7/21/20), ___ So. 3d ___ (2020WL4251388 p. 1) (“We hold that a person constitutionally barred
from serving as judge cannot be a candidate for judicial office.”).
01/28/22

2

suggests a judicially created exception to Section 23(B) “may be appropriate” under
these unique circumstances, and the majority purports to resist that suggestion. But,
there are no circumstances under our three-branch constitutional form of government
where the judiciary is at liberty to create an exception to a n express constitutional
provision. The constitution is the supreme law of this state. Se e La. Civil Code
art.1; M.J. Farms, Ltd. V. Exxon Mobil Corp. , 07-2371 (La. 7/1/08), 998 So.2d 16,
31-32. Unequivocal constitutional provisions are not subject to judicial construction
and should be applied by giving words their generally understood meaning. Ocean
Energy, Inc. v. Plaquemines Parish Government¸04-0066 (La. 7/6/04), 880 So.2d 1,
7. “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...’).” Clark, 2020WL4251388 p. 1.
The constitutional validity of Section 23(B) is not in doubt. See Clark v. State,
20-00914 (La. 7/21/20), ___ So. 3d ___ (2020WL4251388 p. 1); Giepert v.
Wingerter, 531 So. 2d 754, 755 (La. 1988); see also Gregory v. Ashcroft, 501 U.S.
452, 471, 111 S. Ct. 2395, 2407, 115 L. Ed. 2d 410 ( 1991). Forced application of
this mandate is not a pleasant exercise. As recognized in Clark , inequities are
inevitable when the law “draws a line at a certain age” to compel a judge to retire.
Clark, 2020WL4251388 p. 1. There, we noted that “depending on when a judge’s
birthday falls in his term, this provision permits some judges to serve yea rs longer
than a colleague who may only be weeks or days older.” Id. We are again
confronted with difficult inequities caused by the application of Section 23(B). A
person duly-elected to serve as judge is now constitutionally barred from serving.
However, “despite these inequities, the provision has a rational basis in a legitimate
state interest,” has been repeatedly upheld by this court, and must be applied as
mandated by the electorate. See Clark, 2020WL4251388 p. 2.

3

I am sympathetic to Judge Matthews’ situation. Through no fault of her own,
the election for this judicial seat was postponed due to Covid- 19 until after Judge
Matthews turned seventy. She did nothing wrong to create the predicament that now
disqualifies her from serving. Sympathy, however, is not a basis for disregarding or
amending the constitution.
Judge Matthews will now serve because the majority has embraced as
“discretion” the choice not to enfor ce an express provision of the Louisiana
Constitution. They justify this by relying on the word “may ” to suggest this court
has unfettered discretion to reje ct a recommendation of the Commission. Chief
Justice Weimer’s dissent clearly articulates why the word “may” does not always
permit discretion. I agree with his conclusion– our action here is mandatory .
Equitable considerations cannot prevail when in conflict with the positive written
law. See La. Civ. Code art. 4; Luther v. IOM Co. LLC¸13-0353 (La. 10/15/13), 130
So.3d 817, 826.
Until now, this court has always enforced the age requirements for judges.
See In re Wingerter, 621 So.2d 1098, 1101 (La. 1993); In re Levy , 427 So.2d 844,
847 (La. 1983); Small v. Guste, 383 So.2d 1011, 1014 (La. 1980) (“A judge’s willful
retention of office beyond his mandatory retirement age is grounds for removal by
this Court.”). There is no legal authority for ignoring the clear and unequivocal law
that constitutionally bars Judge Matthews from serving. I wish that was not so. But,
for these reasons and those articulated by Chief Justice Weimer , I believe Judge
Matthews must be removed from office.

SUPREME COURT OF LOUISIANA
No. 2021-O-01078
IN RE: JUDGE JOHNELL M. MATTHEWS
BATON ROUGE CITY COURT
EAST BATON ROUGE PARISH
STATE OF LOUISIANA
Judiciary Commission of Louisiana
McCALLUM, J., dissents with reasons.
I respectfully dissent. This case presents yet another example of an
unfortunate consequence of the pandemic and the government’s reaction to it;
namely, the decision to change the date of the election. Through no fault of her own,
Judge Matthews became a casualty of this decision. Although empathetic to Judge
Matthews’ situation, I do not find any circumstance by which this Court may ignore
the express and unambiguous terms of the Louisiana Constitution and, in my view,
her age at the time of the election prevents her from remaining on the bench.
The facts are not in dispute. Judge Matthews was 69 years old and not a judge
when she qualified to run for a judicial vacancy on the Baton Rouge City Court. Had
the Governor not rescheduled the original special primary and general election dates
in April and May 2020 because of the unprecedented COVID -19 pandemic, Judge
Matthews could have assumed judicial office before her seventieth birthday on June
7, 2020, without any issue. However, this is not the case.
Louisiana Const. art. V, § 23(B), relative to mandatory retirement of judges,
provides, “[e]xcept 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.” The
language of Article V, § 23(B) is clear and unambiguous . Unless a judge turns
seventy while serving a term of office, the judge shall not remain in office beyond
01/28/22

2

his or her seventieth birthday. Judge Matthew s assumed judicial office on
September 9, 2020, after she turned seventy years old. Accordingly, she is presently
a “judge,” is “remain[ing] in office,” and is “beyond [her] seventieth birthday.”
Furthermore, because Judge Matthews turned seventy prior to her term in office, the
second sentence of La. Const. art. V, § 23(B) does not apply , or allow Judge
Matthews to complete her term of office. Thus, every day that Judge Matthews sits
in office, she is “remaining” in office beyond her seventieth birthday in violation of
La. Const. art. V, § 23(B).
To arrive at the conclusion that a person over seventy and not previously a
judge can serve one and only one term in office, Judge Matthews is interpreting the
verb “remain” to mean “stay in office after the expiration of a term in office” (or
something similar thereto). However, that interpretation not only contorts the
generally understood meaning of “remain,” 1 it makes the second sentence of La.
Const. art. V, § 23(B) superfluous. If the first sentence of La. Const. art. V, § 23(B)
only prohibited a judge from assuming another term in office after reaching seventy
years of age, then a judge could clearly complete his or her term in office and there
would have been no need to amend Section 23(B) in 2003 to permit a judge “who
attains seventy years of age while serving a term of office [to] be allowed to complete
that term of office.”
Alternatively, Judge Mat thews may be asserting that the verb “remain”
somehow simultaneously holds two different meanings depending upon whether the
judge in question was newly elected or had previously served a term of office.
Again, that is not what the plain language of La. Const. art. V, § 23(B) provides.
Section 23(B) uses the term “a judge” and does not distinguish between judges who
have and have not previously served a term in office.

1 The generally understood meaning of “remain” is “to stay in the same place” or “to continue
unchanged.” See MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/remain
(last visited July, 2021).

3

Judge Matthews’ interpretation impermissibly lends itself to absurd
consequences that cannot be the intent of the law. See La. C.C. art. 9. As Judge
Holdridge stated in his concurring opinion, concurring in the result in Green v.
Ardoin, 20-0810 (La. App. 1 Cir. 9/11/20), 313 So. 3d 298 (Holdridge, J.,
concurring), Judge Matthews’ interpretation “would allow a lawyer of any age to be
elected and serve a term as a judge,” and “[i]t is hard to imagine that the voters of
this state thought they were voting to allow eighty and ninety year old lawyers to be
judges but prohibiting current judges who are seventy to remain in office.” Id., 20-
0810, p. 2 , n.4, 313 So. 3d at 306. Such an interpretation would also , incredibly,
“allow a sitting judge over the age of seventy to resign, then qualify as a candidate
for judicial office, and if successful, to serve another term.” Id. It would also “allow
any lawyer with the requisite years of experience to run for judge at any age while a
sitting judge could not run if he or she was over seventy at the time of qualifying.”
Id. Such illogical scenarios and absurd results cannot b e the desired result of a
constitutional provision that imposes mandatory retirement upon judges at the age
of seventy. 2
The Court has twice removed/involuntarily retired judges for continuing to
occupy judicial office after reaching the mandatory retirement ages applicable to
them. See In re: Wingerter, 621 So. 2d 1098, 1101 (La. 1993); In re: Levy, 427 So.
2d 844 (La. 1983). Because the Judiciary Commission found that Judge Matthews
is constitutionally barred from remaining in office, having reached the mandatory
retirement age of seventy prior to the commencement of her term, it recommended
that she be removed/involuntarily retired from office.

2 Judge Matthews argues that to accept the Judiciary Commission’s interpretation would
potentially “expose the Baton Rouge City Court to the reversal of every matter that has come
before” her since she was elected to judicial office. T he Commission rejected this concern as
misplaced in light of the de facto officer doctrine, which “̒confers validity upon acts performed by
a person acting under the color of official title even though it is later discovered that the legality
of that person’s appointment or election to office is deficient.’” State v. O’Reilly, 00-2864, p. 12
(La. 5/15/01), 785 So. 2d 768, 777 (quoting Ryder v. United States, 515 U.S. 177, 180 (1995)).

4

While I greatly empathize with Judge Matthews and her most unfortunate
circumstances, I have no authority, even as an elected justice to the state’s highest
court, to ignore the Louisiana Constitution. As to the function and power of the
Supreme Court, the Court, in Twenty-First Jud. Dist. Ct. v. State, 548 So. 2d 1208,
1209 (La. 1989), explained:
Our state constitution divides governmental power into separate
legislative, executive and judicial bran ches and provides that no one
branch shall exercise powers belonging to the others. La. Const. Art. II,
§§ 1, 2 (1974). This trichotomous branching of authority furnishes the
basis for the existence of an inherent judicial power which the
legislative and executive branches cannot abridge. Singer, Hutner,
Levine, etc. v. LSBA, 378 So.2d 423 (La.1979); Saucier v. Hayes Dairy
Products, 373 So.2d 102, 109, 114 n.3 (La.1979) (Calogero, J., On
Rehearing) (Dennis, J., dissenting from the opinion on original
hearing); Hargrave, The Judiciary Article of the Louisiana Constitution
of 1974, 37 La.L.Rev. 765, 786 (1977). As the Supreme Court is the
head of the judicial system, it is the final arbiter of the exercise of those
inherent judicial powers. La. Const.1974, Art. V, §§ 1 , 5(A), 6;
see Imbornone v. Early, 401 So.2d 953, 957, 961 (La.1981) (Per
Curiam On Rehearing) (Dennis, J., dissenting from the opinion on
original hearing). Although the Supreme Court ’s inherent judicial
powers are not explicitly defined, they include pow ers of
administration, the power of judicial review, power over officers of
court, and the contempt power. Hargrave, supra at 787. Moreover, La.
Const. Art. V., § 5(A) grants the Supreme Court “general supervisory
jurisdiction over all other courts,” providing another basis for the
court’s administrative control over lower courts, see Hargrave, supra at
787, and provides that the Supreme Court “may establish procedural
and administrative rules not in conflict with law. . . .” The scope of the
Supreme Court’s power to make administrative and procedural rules is
not limited, except that they cannot conflict with law. Id. These
constitutional provisions explicitly and implicitly establish in the
Supreme Court a centralized authority to supervise the judicial system,
not only in legal interpretation and adjudication, but also in the manner
the lower courts conduct their affairs procedurally and administratively.
Id.

If I were to agree with the majority of this Court to exercise its inherent judicial
power to allow Judge Matthews to retain her seat on the Baton Rouge City Court, I
would be ruling in direct conflict with La. Const. art. V, §23(B) . Explicit
constitutional provisions are not subject to judicial construction . See Cajun Elec.
Power Co-op., Inc. v. Louisiana Pub. Serv. Comm’n, 544 So. 2d 362, 363 (La. 1989).

5

I believe this Court, when interpreting the constitution, should give effect to
language that is plain and unambiguous. See id.
The removal of a judge elected to office by the citizens of this state is a grave
responsibility, and one I take seriously and prefer not to exercise, particularly in a
case such as this one. Given that the record demonstrates that the OSC presented
clear and convincing evidence3 that Judge Matthews is constitutionally barred by La.
Const. art. V, § 23(B) from remaining in office , having reached the mandatory
retirement age of seventy prior to the commencement of her term, I must dissent
from the majority opinion, and would uphold the Louisiana Constitution by adopting
the Judiciary Commission’s recommendation.

3 The charges against a judge must be proved by clear and convincing evidence before this Court
can impose discipline. In re Hughes, 2003-3408, p. 12 (La. 4/22/04), 874 So. 2d 746, 760.