A major loophole in the Age Discrimination in Employment Act of 1967 (ADEA) is highlighted in the case of a Louisiana judge who last week beat two opponents in a fierce election campaign but now is technically too old to serve his term of office.
The ADEA contains an exemption for state court judges, among others, and many states have passed laws that require state judges to retire at the age of 70. Orleans Parish Criminal Court Judge Frank Marullo, 74, the longest-serving judge in Louisiana, is the latest victim of a mandatory retirement law for state judges. By contrast, federal judges have lifetime appointments during good behavior.
The voters elected Marullo to his fourth term of office. There is no evidence that Marullo is incompetent to serve on the bench or has committed wrong-doing that would bar him from serving. There is no evidence that any worker suddenly loses capacity at age 70 or 75, let alone Marullo, who appears healthy and vigorous and says he feels fine. Yet, Louisiana’s 1974 constitution requires state judges to retire by age 70 and voters last week rejected an amendment that would have overturned that mandatory retirement provision.
Marullo has argued the constitutional requirement doesn’t apply to him because he was first elected to the bench in 1974, when a prior constitutional amendment set a mandatory retirement age for judges of 75. However, Marullo will turn 75 on Dec. 31, the day before his new term of office begins. So this argument doesn’t seem to help him either.
It is now up to the Louisiana Supreme Court to determine whether Marullo will be forced to retire.