SAN FRANCISCO (CN) — An age discrimination lawsuit challenging new limits on how long judges can continue working after retirement may be too sparse on details to survive, a San Francisco judge said Wednesday.
The state constitutional challenge turns on whether a group of retired judges can show that the rules have a “disparate impact” on older judges. The eight judges sued after Chief Justice Tani Cantil-Sakauye, who chairs the state’s Judicial Council, made some changes to the Assigned Judges Program, which 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 eight retired judges claim in their lawsuit that the changes are arbitrary and discriminate against judges who have been retired longer. Since the changes are retroactive, they directly affect the judges’ ability to continue participating in the program, unless they go through the “onerous” process of asking the chief justice to grant an exception.
San Francisco Superior Court Judge Ethan Schulman 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.
The latest iteration says the judges did not receive assignments that were of the “same nature and substance they had received in their prior service in the AJP,” and were instead assigned to family law department calendars or to far-flung counties that required considerable travel and expense.
“The plaintiffs have not been able to get the same sort of assignments they've had, and in many cases have not had any assignments,” their attorney Daniel Mason said.
This was not enough for Schulman, once again tasked with whether to allow the case to move forward. He told Mason that the allegations still lack facts or statistical evidence.
"You haven't given me any allegations in the [second amended complaint], that would illustrate how it's been enforced, whether as to these individual plaintiffs or more generally as to judges retired judges over the age of 70,” Schulman said. “I just don't see anything to that effect.”
Mason said the Judicial Council has withheld critical documents that would support the judges’ claims. “That is contained in documents they have and they haven't given us,” he said. “They ought not to be able to complain about the lack of statistical precision when the documents we need to show that, we don't have.”
"The question is whether you have a good faith basis for alleging a disparate impact on retired judges over the age of 70 if you don't have any evidence to that effect. You're just assuming that, it sounds like,” Schulman said.
Mason replied, “This is not a situation where we have to come forth with all our facts," noting the evidentiary bar to overcoming a motion to dismiss is much lower than when arguing the merits before a jury.
Representing the Judicial Council, attorney Robert Naeve said the judges would have to show a demonstrable loss; for example, that they received no assignments at all because of their age.
“A transfer to someplace else with the same benefits, same pay, and same job is not sufficiently significant to qualify as a employment loss that's actionable,” he said.
“This is a disparate impact case and you have to have some allegation that there's so many of these that it happens all the time and the hammer hits the folks over the age of 70. The plaintiffs have the ability to allege what happened to them. They didn’t do it.”
Taking the arguments under submission, Schulman said he expects to rule within a week.
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