Retired California Judges Fight to Lift Cap on Temp Work

Attorneys Quentin Kopp and Thomas Jackson in the press room of San Francisco City Hall. The pair announced a lawsuit against the Judicial Council of California over what they say is unfair treatment of older judges participating in the Assigned Judges Program. (Maria Dinzeo / CNS)

SAN FRANCISCO (CN) – Three retired judges sued California Supreme Court Justice Tani Cantil-Sakauye, claiming she and the Judicial Council are putting unfair and illegal limits on the number of years they can continue working after retirement.

All three currently participate in the Assigned Judges Program, which helps shorthanded California courts by filling their benches when judges get sick, take vacation, or are summoned away on judicial business.

Judges Glenn Mahler, Judge James Poole and Judge Julie Conger are represented in the action by Quentin Kopp, a retired state court judge, former state senator and ex-San Francisco supervisor.

“It’s regrettable that we have to sue,” Kopp said at a press conference at San Francisco City Hall on Thursday. “We expect there will be other retired judges in the program who will want to join in the lawsuit as it proceeds.”

Kopp sent a letter to Cantil-Sakauye in February asking that a new rule capping judges’ participation in the program to 1,320 days not be applied retroactively, so that it wouldn’t affect those who have already exceeded the limit. 

“The letter was ignored,” Kopp said. “I sent a second letter three weeks later, again saying we wanted to resolve the differences of opinion as to the prospectiveness and legal validity of such a rule.”

That second letter was sent on Feb. 25. Ten days later, he said he received a letter dated Feb. 28 from Bob Lowney, a director on the Judicial Council staff.

“That letter reiterated the adoption of the rule and emphasized that exceptions could be and would be granted,” Kopp said.

The changes were announced in May 2018 via an email sent statewide from Martin Hoshino, administrative director of the Judicial Council staff. The Judicial Council is the rule-making body for California courts.

“Membership in the program will be limited to no more 1,320 days, cumulatively – the equivalent of a single term of a full-time, elected superior court judge,” Hoshino wrote. “This change is intended to ensure that, cumulatively, retired judges serve no longer than active, full-time judges elected or retained by the state’s voters, while underscoring the temporary nature of the judicial assistance provided through the AJP. The change also will create opportunities for more recently retired judges to serve in the program.”

Roughly 400 retired judges participate in the program, Kopp said, and 72 retired judges are adversely affected. 

The changes also cap the number 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.

Hoshino’s memo added courts could still request retired judges who have exceed the 120-day limit, but they would need to give a “compelling reason,” like a judge’s expertise in a particular area of the law or an extended trial.  “Absent a compelling reason for requesting a particular judge, courts should generally expect assignment of another retired judge. Judges under the 120-day limit will be prioritized for assignment,” he wrote.

What was not revealed at the time was that the California State Auditor had initiated an investigation of the program after receiving a complaint that retired judges were being assigned to help courts that really didn’t need them.

“In fact, the AJP spent nearly $7 million of its $27 million budget in 2016 to provide judges to the five counties that had the highest number of surplus judges,” auditor Elaine Howle wrote in her audit, released last month.

“During interviews with Judicial Council staff, we learned that, in violation of Judicial Council policy, the AJP lacked any processes or procedures to verify that courts requesting from it the use of retired judges had first attempted to fill their needs either internally or reciprocally with other superior courts.”

Howle said Cantil-Sakauye approved retired judges’ assignments without sufficient documentation showing it was the best use of the program’s resources. 

But her audit noted that during her investigation she learned that the chief justice had already begun reviewing the program and said that she was satisfied with the changes. 

“By modifying the process to establish metrics for judicial participation and changing how it allocates service days and funds in the AJP, the Judicial Council has taken steps to administer the AJP in a more efficient manner,” Howle wrote.

Attorney Thomas Jackson with Furth, Salem Mason & Li in Santa Rosa, who is representing the judges along with Kopp, said many rationales have been given for the changes.

“The audit said something about the five counties who had the most judges were the ones using it the most. It would have been better to solve the problems in these counties.”

He added, “Everybody assumed it was a budgetary issue. That’s not borne out by an examination of the budget.”

The annual budget for the Assigned Judges Program was $28 million in 2018.

Kopp, who participated in the program from 2004 to 2009, said changes to the program – like requiring courts try to fill their vacancies with retired judges who have not exceeded the cap – will actually cost taxpayers more in travel expenses and per diems for traveling judges.

“It costs money to be assigned out of the county where you live,” he said, adding, “The exception is an inefficient process that is costing taxpayers extra money.”

Some limited exceptions apply to the 1,320-day cap, and Kopp said some of the plaintiffs received them though Conger had not. Conger was elected as a municipal court judge in Berkeley-Albany in 1982 and was elevated to superior court in 1998. She retired in 2008, and started serving as an assigned judge that year. She has since served more than 1,500 days as an assigned judge.

Mahler was appointed to an Orange County municipal court judgeship in 1986 and elevated to superior court in 1998. He also retired in 2008, and began working nearly full time as an assigned judge on Dec. 1, 2008 – racking up over 2,000 days in the program.

Poole was appointed to the Orange County municipal court in 1989 and elevated to superior court in 1992. He retired in 2009 and has accumulated 1,800 days of assigned judge service.

Kopp said the new rules make the program vulnerable to favoritism as the chief justice must approve the exceptions.

“You’re at the whim of the assigning officer, i.e. the chief justice. Of course you can play favorites,” he said. “When you put on robes you can’t divest yourself of human qualities.”

Conger, Poole and Mahler seek back pay, front pay, and damages. A spokesman for the Judicial Council declined to comment on pending litigation, but pointed to the auditor’s favorable reception of the changes.

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