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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