Politics, Pensions & Judges|All Bound Up in Bill

     (CN) – In the next few days, Governor Jerry Brown is expected to sign a new law on judges’ pay, an issue that pits the law against politics.
     The amended statute will effectively quash a judgment won by a class of 3,400 active and retired judges and justices in Mallano v. Chiang, where 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 at ten percent interest.
     In the case, now-retired Justice Robert Mallano said 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 when state employees were given raises of between 0.10 and 0.97 percent since then. Likewise for retired judges, whose pensions are tied to judicial salaries.
     The state has appealed the ruling.
     Not liking the idea of a ten percent judgment payout, Brown decided to repeal Government Code Section 68203, which ties judicial pay to the average of what state employees earn. The California Judges Association met with the representatives for the governor’s finance department over the last few weeks to mitigate that proposal, arguing that it would force judges to politicize their salaries by having to beg the legislature and governor for raises in the future.
     What resulted was a compromise trailer bill clarifying some of the language in the code section to say that judges’ pay will be offset by state employee furloughs. It also adds a section that effects the Mallano judgment by changing the interest calculation to the Pooled Money Investment Account rate, which currently floats somewhere between 2 percent and 0.2 percent; much less than the 10 percent rate that the judgment ordered.
     “The proposed amendment seeks to all but wipe out the legal interest we are entitled to under the law,” Mallano wrote in an email statement. “If the state employees sue for their raises and win, they get 10% pre-judgment interest; if judges sue and win, .05% at today’s rates. Pure and simple anti-judge discrimination. The prejudgment interest is approximately $5,000 per judge.”
     He said, “This legislation is garbage: spiteful retaliation by the Department of Finance,” and urged judges to oppose it.
     But the trailer bill passed both houses in the Legislature along with the budget, and is now on Brown’s desk.
     Mallano was unreachable through his attorney Raoul Kennedy with Skadden Arps in Palo Alto, who did not reply to email and phone requests for comment.
     Brown spokesman H.D. Palmer said he expects Brown will sign the trailer bill into law sometime next week. “The Administration supports the change because it ensures that any furloughs of state workers are taken into account when calculating raises for judges,” he said.
     Palmer also noted that the PMIA rate “reflects the state’s interest earnings and is the same way we calculate interest owed in many other state matters.”
     But judges across the state felt betrayed, as they learned after the fact that the CJA was involved in negotiating the deal with Brown.
     “What developed here was done in secret. It was at the behest of the the Governor’s office and the Department of Finance,” said Judge Steve White of Sacramento Superior Court, head of the judges group The Alliance of California Judges.
     “There was a concerted effort to ensure that the bargain which was reached- an agreement designed to bargain away thousands of dollars of interest payments which the court ruled are owed to virtually ever California judge was made without consulting with the plaintiffs in Mallano and without with giving any notice to the plaintiffs.”
     Agreeing that the repeal of Sec. 68203 would have been a disaster, White argued strongly that the judges of the state should have been informed of Brown’s plan, which would have forced judges to go hat in hand annually to the Legislature to ask for pay raises.
     “If you have the executive branch threatening to repeal a statute, the express purpose of which is to take the salary setting of judges out of the political process, you don’t just lay down and agree to whatever terms are presented to you. You share that information with the judges you represent,” White said.
     “If you’re going to do something that dramatically implicates the interest of judges,” White concluded, “you’ve got to put the judges in the room.”
     In a video message put out by the CJA, lobbyist Mike Belote said that while he knew the compromise would be controversial, Brown’s plan was a real threat Sec. 68203, which has worked to de-politicize judicial salaries for 37 years.
     “Some judges said ‘the legal rate is what a prevailing plaintiff is entitled to, and we’re entitled to it.’ And that’s absolutely true. But it’s also true that the executive and legislative branches can work together to amend the statute or repeal it. It can be done in the budget, it can be done quickly, and if that happens, the public policy ramifications and the ramifications for judges would be enormous because of this issue of politicizing judicial salaries,” Belote said.
     Los Angeles Superior Court Judge Stephen Czuleger, a former member of the CJA board, said he had spent the last week fielding angry calls from judges. He can understand their anger, he said, but ultimately he believes that under extreme duress and a short timetable from Brown, the CJA made the right call.
     “As judges we’re taught to think within the confines of the law but this is about politics. Those I think that are upset say, ‘Hey we filed a lawsuit, we won the lawsuit, and the appeal should play it out.’ Then there’s politics.”
     “They sat down and came up with a compromise and for the most part it saved 68203. It does impact the interest on the judgment, but that gets it back to the dichotomy of law versus politics.”
     “It doesn’t let people feel good to find out after the fact,” he added. “And it’s a matter of confidence.”
     For some judges, such as those in the Alliance, the mistrust stems from a past gambit by the Administrative Office of the Courts, now called the Judicial Council staff, which involved slipping an amendment into an under-the-radar trailer bill during the Legislature’s 2008-2009 session that would have seized authority from local courts over the selection of their presiding judges and court clerks.
     Czuleger said this situation is different, and that he’d spoken with those who thought Belote did a good job.
     “Given that hand, and you know the Legislature is going to put this whole thing together by June 15, you have a limited time to work in. He took them from compete repeal to saving most of the bill. Was it a backroom deal? Well how are most bills negotiated in Sacramento? A lot is done behind closed doors. You’re just thankful they’re talking to you. They could have just done this as a trailer bill without giving notice to anybody.”

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