Judges want judge to enforce judge pay ruling

Declaring that, “The state of California refuses to comply with the law,” attorneys for a class of 3,400 active and retired California bench officers have demanded a trial judge enforce an order that the state pay $36 million plus interest stemming from non-payments during the height of the fiscal crisis.

Lawyers lead by Raoul D. Kennedy of Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates fired off papers to Los Angeles County Superior Court Judge Elihu M. Berle on Monday, asking him to enforce a judgment he made in December 2015 which was affirmed by a 2nd District Court of Appeal panel April. Mallano et. al v. Chiang et. al, BC533770 (L.A. County Super. Ct., filed Jan. 22, 2014).

Since that appellate decision, according to Kennedy’s motion, the state controller and attorney general joined forces to collectively sit on their hands.

“Following defendants’ election not to seek reconsideration of the opinion or review of the opinion by the California Supreme Court, plaintiffs’ counsel contacted defendant’s attorneys to learn when the past-due amounts would be paid and when salaries and benefits would be adjusted so that future payments would comply with the judgment,” Kennedy wrote. “Defendant’s indicated their belief that defendants believe there are prerequisites to complying with the judgment, and have not indicated an intent to comply with any portion of the judgment.”

In an interview, Kennedy asserted that the payments were legally due the moment the state didn’t appeal the 2nd District decision.

“I’ve never experienced anything like this before,” Kennedy said. “I’m very surprised and disappointed. A declaratory relief judgment is not an RSVP.”

Questions left with the state Justice Department — Deputy Attorney General Jonathan E. Rich has argued the government’s position — were referred to the state controller’s office, which did not return a call Wednesday.

Filed by retired appellate Justice Robert M. Mallano, the lawsuit emanates from a budget measure taken during the recession that suspended statutorily provided mandatory raises for judges each fiscal year.

The Legislature and governor’s office began the freeze in the 2008-09 fiscal year and ended the practice in 2013-14. In subsequent budgets, the state did not address compensating judges for lost pay, and the budget actions amounted to a breach of contract and violation of the state constitution, Berle had ruled following a bench trial.

In an unpublished decision, the 2nd District panel wholly affirmed Berle, with Justice Victoria M. Chavez authoring the decision. The panel remanded the enforcement of their decision to Berle, and he has scheduled a hearing in July on the matter.