Judge Unlikely to Block Cap on Temp Work by Retired California Judges

SAN FRANCISCO (CN) – A San Francisco judge said Tuesday he will rule “relatively soon” on whether to block limits on how long California judges can continue to work after retirement.

The seal of the Judicial Council of California, the policymaking body of the California courts. (Photo the Judicial Council of California via YouTube)

San Francisco Superior Court Judge Ethan Schulman issued a tentative ruling ahead of Tuesday’s hearing in an age discrimination case brought by eight retired judges who claim a 1,320-day service limit disproportionately impacts older judges.

Schulman said he was inclined to deny a block of the retroactive, lifetime cap, primarily because the lead defendant in the case, California Supreme Court Chief Justice Tani Cantil-Sakauye, is shielded from suit by the doctrine of legislative immunity.

Daniel Mason, a partner with Furth Salem Mason & Li who is representing the judges, argued legislative immunity has its limits.

“You can’t enact a policy that is discrimination,” Mason said. “Let’s say the chief justice enacted a policy that said only white males could be assigned judges or some other pernicious discrimination. Under the view of the court, that would be OK because you can’t challenge it.”

The judges’ lawsuit stems from sweeping changes Cantil-Sakauye made in 2018 to a longstanding program that assigns participating retired judges to courts left temporarily short-handed by illness, death, vacations and any other type of vacancy.

As chair of the Judicial Council, the chief justice has the authority to approve appointments to the program. In addition to the 1,320-day cap, the changes also limit the number of days a retired judge can work each fiscal year at 120, and requires newly retired judges to wait 90 days before their first temporary assignment.

Judicial Council chief operating officer Robert Oyung said in a declaration that some courts were abusing the program when they had a “surplus of judges” already on staff.

Oyung cited other concerns like “retired judges serving nearly full-time and earning $80,000, $100,000, or more per year – sometimes totaling millions of dollars over a period of years – while at the same time collecting full pensions” and judges enrolling in the program immediately after retirement, “sometimes retiring on a Friday and returning the following Monday on assignment.”

Mason disputed that assertion, saying whether a retired judge gets called by a court is up to the presiding judge and that the chief justice must approve the appointment. But the Judicial Council’s attorney, Jones Day partner Robert Naeve, echoed Oyung’s claims in court Tuesday.

“There were a lot of folks receiving full pensions and working a lot of time on the bench,” Naeve said. “The plaintiffs are folks who have been working in the system and they think their judicial careers are at an end, but this program was never meant to be a job.”

Schulman spent a good part of the hearing questioning the lawyers on the discriminatory impact of the changes, posing a hypothetical to Mason where an older judge never reaches the 1,320-day cap.

“Contrast that with a retired judge who retires at age 62 and for whatever reason decides to go at this hammer and tong and achieves the limit relatively quickly. Doesn’t that tell you that this policy doesn’t reflect discrimination due to age?”

Mason said a statistical analysis found that a significant percentage of older judges are affected by the limit.

Regardless, he said, barring the retroactive cap from being applied to the eight retired judges does “zero harm” to the Judicial Council while the parties prepare for trial.

“Our clients simply want to work more and want to be put on the list,” Mason said.

Schulman took the arguments under submission. “I hope to have written ruling relatively soon,” he said.

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