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20.8.14

Judicial overreach to cause fall LA electoral chaos


While it might seem like the safe thing to do, it was the wrong thing to refuse to enforce a recently-passed Louisiana law that might throw some fall elections into chaos.



Yesterday, 19th District Judge Tim Kelley placed an injunction on the new law that prohibited anyone who would be older than 70 years of age at beginning a term of office in early 2015 from serving as a justice of the peace or constable. The former rule on minor matters and may perform minor civil duties such as weddings, while the latter are officers of that court and, if certified, may carry firearms in the performance of their duties. Previously, the law had exempted anybody from this age requirement, first imposed eight years ago, if they had been in that office prior to Aug. 15, 2006.



Some controversy ensued after the law passed only one vote short of unanimity earlier this year where the professional association, seemingly unconcerned about it during the session, opposed it afterwards, while the author state Sen. Elbert Guillory claimed a shadowy figure alleged to be part of the group asked for it and he complied. The group filed suit, and Guillory submitted a sworn affidavit essentially saying he thought the group had asked for it and, in face of opposition, planned to seek repeal of it.

Kelley drew the suit and slapped an injunction on it, in order that those affected could file for the offices, that period beginning today and lasting through Friday, and will hear the case in full on Aug. 29. That action does not lack a reason, in that if the law were to be overturned either individuals who could qualify would have been denied a chance to run or, to avoid that, the process would have to be restarted.



But the problem is that it’s not a good reason as there should be no chance at all that the law would get overturned. There is no dispute that the law was passed correctly according to the rules of the Legislature, the law, and Constitution. Further, the state Constitution does not prohibit instances of laws treating people of different ages differently when the law does not “arbitrarily, capriciously, or unreasonably discriminate” on that basis (and if the law did somehow violate this, that would mean over the past eight years it has unconstitutionally restricted some people from vying for these posts). And federal jurisprudence long ago affirmed in Malmed v. Thornburgh states’ ability to set age limits on judicial positions does have a rational basis for a number of reasons. That case specifically mentioned justices of the peace, and in its explanation also pointed to laws that set mandatory retirement ages for law enforcement officers that would apply to constables.



In short, there’s no ambiguity here: the law is valid, there is zero justification to think it isn’t, and therefore no chance it would be invalidated and thus should have continued to be enforced. There’s nothing rational about a court intervening to stop this law on the books duly and correctly enacted, regardless of whether its author says it’s a mistake and that (if it comes to that, likely successfully) it faces repeal. Yet it’s not yet repealed, so it’s anyone’s guess why Kelley would do this. He has delivered head-scratchers before, but also relevant is that in some areas justices of the peace and constables are politically powerful and can serve as brokers of support for other local elected officials, such as state district court judges.



As a result, chaos now is guaranteed. Unless the Louisiana judiciary goes off on flights of fancy activism, the law will be upheld. If so prior to these elections, suddenly a number of names will be thrown off ballots, sowing confusion among the electorate especially if after the printing date for ballots. If after elections, any who qualified because of the injunction who win will be removed from office, with the consequent disruption, and some of these thus may wind up vacant. Worst of all, some people who would have run without these incumbents qualified may forgo candidacies, for naught.



This judicial activism is entirely unhelpful and serves no good purpose. Let’s hope the damage done by it is minimal.

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