Sunday, January 30, 2022

Pandemic Exception And Judicial Fiat

The Louisiana Supreme Court declined to impose judicial discipline and to remove  a judge who was sworn in after age 70 due to pandemic-related delays, despite an impediment in the state Constitution

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 original jurisdiction in judicial disciplinary proceedings and provides the substantive grounds for disciplinary actions against a judge.

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 had qualified to run for the office prior to reaching 70

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.

For the foregoing reasons, the Commission’s recommendation is rejected and no discipline is imposed. We emphasize that this decision is limited to the individualized circumstances surrounding this case and election.

Chief Justice Weimer dissented

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.

...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.

With regrets

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. This nation prides itself on being a nation of laws, and not of men or women.   The constitution emanates from the people. The people expect 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.

Justice Crain also dissented and finds no basis for a pandemic exception

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.

Justice McCallum agreed

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.

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