SAN FRANCISCO (CN) - A third round before a judge proved fruitful for a group of retired judges suing California’s Judicial Council on age discrimination claims over limits on how long they can continue working after retirement.
The judges, all over the age of 70, sued after Chief Justice Tani Cantil-Sakauye, who chairs the Judicial Council, made some changes to the Assigned Judges Program that sends retired judges to fill temporary vacancies at courts throughout the state.
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. The judges claim the retroactive changes directly affect their ability to continue participating in the program, unless they can get a rare exception from the chief justice.
San Francisco Superior Court Judge Ethan 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.
He dismissed it a second time this year, finding the amended complaint short on facts. “The central flaw in the SAC is that 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 claimed they were denied assignments or exceptions to the 1,320-day cap.
But a new judge has allowed the case to move forward this week. San Francisco Superior Court Judge Richard Ulmer found that in amending their complaint for the third time, the judges had adequately alleged that the drop in their assignments could be tied to the council's promulgation and enforcement of the 1,320-day service limit.
The council contended that “unless and until an exception request is denied,” the judges were not affected by the limit at all.
“Not so,” Ulmer wrote. “Plaintiffs allege that the service-limit policy requires presiding judges to first assign retired judges who had not reached the 1,320-day limit and only thereafter reach exceptions. This, plaintiffs allege, results in significantly fewer assignments for judges who have reached the 1,320-day limit even before the exception process comes into play.”
Ulmer also nixed the council’s argument that the judges could not show that they, or even all retired judges older than 70, had been disproportionately affected by the new rule.
This puts the cart before the horse,” Ulmer wrote, siding with an argument the judges’ attorneys had made all along. “We are at the pleading stage of this case; the time for establishing and proving follows discovery.”
Judicial Council attorney Nat Garrett declined to comment saying "we don’t intend to comment on pending litigation."
A call to the judges' attorney was not immediately returned on Friday.
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