First come, first served. Article V, § 6 of the 1974 Louisiana Constitution lays down very clearly who is the next chief justice to be: to wit the “oldest in point of service.” (Also see the article Who is the Chief-Justice-to-be on the Louisiana Supreme Court? of June 14, 2012)
Former Louisiana Supreme Court Chief Justice Pascal F. Calogero assigned Court of Appeal (4th Circuit) Judge Bernette Joshua Johnson justice ad hoc to the state’s supreme court on October 28, 1994, when Honorable Revius O. Ortique Jr. retired on his 70th birthday. Justice Johnson took office on October 31, 1994, has since been a justice on that same court, and was later elected in 2000.
Two months after Johnson’s appointment, Justice Jeffrey P. Victory had been elected to the high court and took office as well (on January 1, 1995). The difference between those two supreme court justices is that Johnson initially was appointed and Victory was elected.
There are elected and appointed ad hoc justices on state supreme courts. (In the federal system, all judges are appointed.) The latter usually bridge the time needed to fill the vacancy by an elected official or to cover for his/ her recused colleague. The future chief justice has to be selected by “seniority.” The question now basically is: Are appointed judges second class judges, or is the service by both judges credited equally?
Justice Jeannette Theriot Knoll (the prosecutor in Louisiana v. Vincent Simmons) is an interested party and, therefore, has been recused from judgment like the two associate justices “oldest in point of service.” The court explains that “if Justice Victory’s seniority were found to be superior to that of Justice Johnson under the legal theory that service by election directly on this court trumps service by appointment, Justice Knoll would be next in line to succeed to the chief justice position before Justice Johnson.”
The judges in charge have decided that the constitution does not “limit the experience that matters to only elected experience.”
The court concludes, “Neither Article V, § 6 nor any other relevant provision makes any distinction between elected service and appointed service. Thus, upon Chief Justice Kimball’s retirement in early 2013, Justice Johnson, through an unbroken chain of both appointed and elected service on this court, has the most seniority to become the next chief justice.”
Requests for a rehearing may be filed with the Louisiana Supreme Court until Sunday, October 21, 2012. Read the court’s full opinion here.