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Judges given final chance to allege discrimination in age bias lawsuit against California’s Judicial Council

A San Francisco judge found an age discrimination lawsuit over rules limiting how long judges can continue working after retirement short on facts, but he granted the judges one last chance to amend.

SAN FRANCISCO (CN) — A state judge gave a group of retired judges a final chance to show that they were adversely affected by new limits on how long judges can continue working after retirement.

San Francisco Superior Court Judge Ethan Schulman dismissed the case for the second time on Wednesday after finding no harm arising from rules that cap participation in a program that gives retired judges temporary assignments at 1,320 days. Known as the temporary assigned judges program, the limits put in place by Chief Justice Tani Cantil-Sakauye in 2018 drew a lawsuit from eight judges claiming that the changes are arbitrary and discriminate against older judges who have been retired longer.

In addition to a 1,320-day lifetime service limit, the changes also limit the number of days a retired judge can work each fiscal year to 120, and require newly retired judges to wait 90 days before their first temporary assignment. Since the changes are retroactive, they directly affect the judges’ ability to continue participating in the program, unless they can get an exception from the chief justice.

Schulman first dismissed the case in 2019, finding the chief justice and council are immune from the judges’ discrimination claims because they were acting in a legislative capacity.

In sending the case back to Schulman in 2021, a California appeals court said it agreed with the Judicial Council that the judges' allegations were “conclusory and particularly bereft when it comes to causation,” but gave the judges the opportunity to amend their lawsuit to show that jurists over 70 are disproportionately harmed by the rules.

But Schulman found their amended complaint still lacking in essential facts.

“The central flaw in the SAC is that it contains literally no factual allegations regarding defendants’ enforcement of the challenged provisions of the TAJP [temporary assigned judges program] through individual judicial assignments to the eight plaintiffs, or to similarly situated retired judges, that would be sufficient to show a disparate impact that results in such judges being systematically excluded from receiving assignments,” he wrote, adding that the judges haven’t alleged that they were denied assignments or exceptions to the 1,320-day cap.

“Indeed, as defendants point out, plaintiffs do not allege a single instance in which defendants refused a TAJP assignment because a particular judge had reached or exceeded the 1,320-day limit.”

At a hearing last week on the Judicial Council’s demurrer, the judges’ attorney Daniel Mason assured Schulman that the judges would be able to demonstrate age discrimination to his satisfaction if given another shot.

“If that is what the court is focusing on, we can amend that and make that allegation,” Mason said.

Schulman assented, writing, “While the court shares defendants’ frustration that plaintiffs have disregarded the Court of Appeal’s explicit guidance regarding what is required to plead a prima facie case of age discrimination on a disparate impact theory, it will grant them one final opportunity to amend to attempt to plead a cognizable claim.”

Judicial Council attorney Robert Naeve declined to comment late Wednesday, saying “we can't comment on pending litigation involving the courts.”

Attorney Quentin Kopp, a former trial judge and state senator who represents the eight retired judges, said the ruling left him disappointed in the judicial system. "I’m a bit surprised by the nature of the decision because in Harvard law school and later as a lawyer and superior court judge I was told not to plead evidence in a complaint," he said by phone, adding that the evidence Schulman requires is currently in the possession of the Judicial Council.

"We will file a third amended complaint within the time required. It appears the rules of pleading have changed since I left the Superior Court," Kopp said. "If he wants evidence we’ll give him evidence, but I’m not proud of the judicial system. Maybe it’s because of the pandemic but this is more wasted time. Let’s just get to a trial."

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