Calif. Judge Salaries Become Bone of Political Contention

     (CNS) – A minuscule pay raise for California’s judges has revived a longstanding conflict over judicial pay, and a statute designed to take politics out of judges’ salaries that is doing just the opposite.
     The Judicial Council, the rule-making body for the courts in California, sent shockwaves throughout the judiciary when it sent a memo to all the judges, telling them they would be receiving a mere 1.36 percent increase.
     While the memo conceded that the number seemed quite small, it explained that the low percentage was due to the fact that before July 1 only four of the state’s 21 collective bargaining units had finalized their work agreements.
     Judicial salaries are determined by Government Code §68203 which ties their pay to the average of what state employees earn. The judges’ raise was thus calculated based on an across-the-board average of all 21 state bargaining units as of July 1.
     But most of the bargaining units had not negotiated a final agreement by then. They were nevertheless each counted in the overall average as a net zero increase, bringing the average pay hike down to 1.36%.
     The meager raise brought to the surface a long-simmering dispute over how that code should be interpreted.
     “You’re seeing in that number an expression of hostility toward the judicial branch and judicial salaries,” said Judge Steve White of Sacramento. White heads the Alliance of California Judges which has advocated for spending reforms and judicial independence since it was formed in 2009.
     The more longstanding California Judges Association, established in 1929, also criticized the small size of the pay hike.
     Presiding Judge Todd Bottke of Tehama just took over the CJA presidency at the end of September and he is already facing a tough fight with Governor Jerry Brown over a contentious issue.
     In answer to written questions, Bottke said, “While any initial number may be characterized as `small,’ CJA believes and expects that a fair reading of the statute will allow for a larger increase.”
     Brown’s personnel department says it plans to review increases next year, and if any of the 17 remaining bargaining units ratify agreements by July 1, 2017, judges will see a raise effective on that date, according to a memo sent by the Judicial Council, which operates under the aegis of Chief Justice Tani Cantil-Sakauye.
     The dispute centers on two principal points: The average raise for state wide employees was calculated by the California Human Relations Department based on an average that was skewed low because of the small number of bargaining units that had finalized their contracts. And the raise will not be retractively adjusted when the remaining 17 bargaining units sign their agreements.
     “CJA believes retroactivity is what should be afforded to the judicial officers based on a plain and fair reading of the statute, and if there is going to be retroactivity for the bargaining units there should certainly be retroactivity for the judges,” said Bottke in an interview.
     Brown spokesman H.D. Palmer said the raise has been calculated the way it always has with regard to retroactivity.
     “The way the Government Code reads, the calculation is done as of July 1st of each year based on whatever agreements have been ratified by the Legislature at that point in time. If more are agreed to in August, for example, they are used in the calculation the next July 1. This is how the code section has historically worked.”
     He added, “It’s always been the case that it’s all that are done by July 1st.”
     Judge White in Sacramento, however, said this isn’t accurate.
     “Sometimes they’ve done it retroactively, sometimes they have included all raises as opposed to certain bargaining groups. Instead of just following 68203, a practice developed in which there would be, it appears to me, an amount of pay increase which was a priori.”
     In other words, the executive branch would decide in advance how much it wanted the judges to get, and would simply interpret the code to get the desired result.
     “So sometimes, depending on when they would do the computation, and depending on if they included bargaining groups only, they could get any number they wanted,” White said. “I think the implementation of 68203 has not been done in good faith.”
     Ever since his first two terms in office from 1975-1982, Brown has made it clear that he wants to rein in judicial salaries.
     In Jerry Brown: The Philosopher Prince, by Robert Pack, Brown is quoted at a press conference in 1975, telling reporters, “I’m troubled by the fact that judges have an automated cost of living [increase] and relatively handsome salaries.”
     Pack describes a failed legislative effort during his first term to limit judges’ salaries as “a pet project of Brown.” An historic plan to restructure the court system failed to pass the Legislature, but Pack notes that Brown would only lend his support to the effort it if included a lid on judicial salaries. That court-reorganization bill ultimately failed to pass.
     Brown finally succeeded when the Legislature voted to freeze judges’ pay from January 1, 1977 to July 1, 1978. Pack says that when Brown signed the bill in 1976, he said the bill was “a major step I’ve been working on. This was the fourth attempt, and I’m very happy to see that it was passed finally so that people who work for the people [do] not . . . keep getting more and more.”
     The ghost of that effort appears to be stirring.
     “Judges have been reluctant to call for the enforcement of 68203; partly because they might think it unseemly, and for a long time judges have assumed that the Judicial Council and others who purported to speak for judges like the CJA were actually advancing their interests,” said White. “Every now and then they’d get some kind of a raise that might have brought them closer to cost of living and they just assumed that’s in compliance with 68203.”
     He added, “I do think that a series of events have lit up the fact that the executive branch was not complying with §68203. One is the frustration of seeing that prosecutors and defense attorneys, not to mention civil lawyers, are making substantially more than the judges are making.”
     In Los Angeles Superior Court, the largest court in the state, a judge earns a yearly salary of about $230,000, with varying but modest health and retirement benefits that generally fall in the $20,000 to $30,000 range.
     In smaller courts like those in El Dorado, Alpine and Trinity counties, judges make anywhere from $181,000 to $190,000 per year with similarly modest benefits.
     Those levels of pay and benefits are substantially lower than those for elected officials within the justice system, and also lower than salaries for administrators within the California courts. In particular, the judges’ health and retirement benefits often come to less than half the amount of those perquisites for administrators.
     For example, the elected district attorney in Los Angeles is paid about $375,000 plus $113,000 in benefits, slightly more than the county’s public defender.
     Far surpassing the judges are the top bureaucrats within the group of civil servants that formed the Administrative Office of the Courts but who now call themselves “the staff” of the Judicial Council.
     The director, for example, earns $246,000 plus $78,000 in benefits, while the chief of staff is paid $221,000 with $67,000 in retirement and healthcare benefits, and the chief operating officer is paid $219,000 plus $38,000 in benefits.
     Head clerks in California’s major metropolitan courts are also paid handsomely. With salaries and benefits combined, the clerks in San Francisco, Los Angeles, Orange County and San Diego are paid respectively $298,000, $407,000, $377,000 and $366,000 per year.
     Brown himself earns a total of $262,000 in salary and benefits combined.
     The salary and benefit figures for all state employees are published by California’s state controller.
     Bottke in Tehama said the CJA will continue to fight for fair pay and a reasonable interpretation of the pay statute.
     “Fair and accurate calculations with regard to the salary issue are a shared and common goal of all judicial officers in California, and CJA would hope that all judicial officers, advocates and justice partners will work toward that common goal in a timely manner to achieve the best result possible,” he said.
     He said the California Judges Association is not a bargaining entity, however, and does not engage in binding pay negotiations.
     So far, the Alliance of California Judges has not been included in talks regarding §68203.
     When asked about this apparent snub, Bottke said, “Like any other organization that advocates on behalf of judicial officers and the best interests of the judicial branch, CJA would expect that any decision-making entity, governmental or otherwise, would try and take into account the sometimes differing views of all concerned advocates, justice partners and judicial officers.”
     “However,” he added, “CJA of course does not control what specific entity or representatives of a group are present to discuss any specific issue with the parties involved.”
     Back in June, Brown threatened to repeal §68203 altogether, after a class of 3,400 active and retired judges won a major judgment in Mallano v. Chiang, a case claiming that judges and justices had taken pay cuts at the height of the state’s fiscal crisis in 2008, but never received the raises to which they were entitled, while state employees were later given raises of between 0.10 and 0.97 percent.
     A Los Angeles court ruled that judges should have been given pay raises between 2008-2013 and are entitled to recover what they are owed plus ten percent interest.
     The CJA stepped in to save §68203, but in the process conceded the bulk of the interest in that judgment. At the time, it said the compromise saved judges’ salaries from becoming politicized, and prevented judges from having to beg the Legislature and governor for future raises.
     The CJA board referred to that fight in its recent letter to members, saying, “If we had lost Government Code §68203, we would not even be debating this issue at all. Instead, we would simply not receive a pay increase for this year, and arguably for several years to come.”
     But White said perhaps the time has come to do away with the statute.
     “If §68203 can be interpreted by the executive branch in any way it likes and if that branch is determined to shortchange the judiciary then §68203 isn’t an asset, it’s a burden. It’s not at all accomplishing its intended purpose.”
     “And if that is going to the state of affairs,” he concluded, “my view is we’d be much better off without §68203.”

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