No Block on Cap to Temp Work by Retired California Judges

SAN FRANCISCO (CN) – A state judge said he won’t block a lifetime limit on how long judges can continue to work after retirement, finding the cap does not disproportionally impact older judges.

San Francisco Superior Court Judge Ethan Schulman found the eight retired judges who moved to stop the cap from being applied retroactively "have failed to show that the lifetime cap limit has any adverse impact on retired judges because of their age, such that it would support a finding of likelihood of success on their claim of discrimination.”

The judges sued after California Supreme Court Chief Justice Tani Cantil-Sakauye, who chairs the state’s Judicial Council, instituted changes to the Assigned Judges Program. The program sends retired judges to fill temporary vacancies at courts throughout the state.

Many of those retired judges end up returning to their former courts, or serve at courts in nearby counties where they are familiar with the court culture and staff. Cantil-Sakauye must approve a retired judge’s participation in the program before they are called to serve by the local presiding judge.

Judicial Council staff said Cantil-Sakauye made the changes in response to complaints that it was being overused by courts who had plenty of sitting judges to fill their vacancies, and that some retired judges were “double-dipping” by working nearly full-time while still receiving their pensions.

In addition to a 1,320-day lifetime service limit, the changes also limited the number of days a retired judge can work each fiscal year to 120, and required newly retired judges to wait 90 days before their first temporary assignment. The eight retired judges claimed in their lawsuit that the changes are arbitrary and discriminate against older judges.

But Schulman disagreed, saying a younger retired judge could hit his or her 1,320-day lifetime service limit before an older one.

He noted 65 of the 349 judges in the program have already reached the cap.

“However, that population does not necessarily correlate with age: some participants who have reached the cap are younger than others who have not,” Schulman wrote.

Schulman said the retired judges' concerns about the changes were “well-founded” and that litigants, lawyers and sitting judges throughout California owe retired assigned judges “a debt of gratitude.” He added even Cantil-Sakauye has some reservations about her decision, and there may be a better way of managing the program without depriving the judges of their ability to continue serving the public.

But, Schulman said, this doesn’t mean a preliminary injunction to allow the eight judges to return to work pending trial is in order.

“Absent a showing of some likelihood of success on the merits of their statutory and constitutional claims, however, plaintiffs are not entitled to injunctive relief constraining the chief justice’s and Judicial Council’s discretion to implement the policy choices that have made administering that program,” he wrote.

Attorney Quentin Kopp, himself a former trial judge and state senator who represents the eight retired judges, disputed Schulman’s finding that Cantil-Sakauye and the Judicial Council are immune from their discrimination claims because they were acting in a legislative capacity. He said the order was "contrary to the concept of legislative immunity,” as a matter of law.

"This isn’t the state Senate, in which I served for 12 years, or the state Assembly, or a City Council or board of supervisors. This is a public official acting in an administrative capacity,” Kopp said by phone Thursday.

He also disagreed with Schulman’s finding of no disparate impact.

"This isn’t a class action,” he said. “We have eight financially injured plaintiffs. I think it is unjustified.”

Kopp said they will not appeal the order.

"We don’t have the money to appeal the denial. Our clients are not corporation billionaires or executives,” he said.

In an email, the chief justice’s counsel, Robert Naeve with Jones Day, said, “The Judicial Council and chief justice do not comment on pending litigation. However, I can note that I am pleased with Judge Schulman’s ruling, which is notable for its detailed legal analysis, and which is spot on.”

Follow @MariaDinzeo

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