Active and retired judges must get $40M, state is told

LOS ANGELES — California owes 3,400 active and retired judges about $40 million and must pay now, a judge ordered Thursday, but the state might not comply.

In an explosive hearing, Los Angeles County Superior Court Judge Elihu M. Berle granted plaintiffs’ motion to enforce an order Berle made and an appellate panel affirmed that judicial payment cuts during the 2008-2010 recession violated the state’s constitution. Mallano et. al v. Chiang et. al, BC533770 (L.A. County Super. Ct., filed Jan. 22, 2014).

Berle voiced outrage at the position of the state attorney general’s office, which argued with the judge that his original order did not specify retroactive pay.

“What message does the attorney general wish to send about the compliance with judgments?” Berle said, his normally soft-spoken voice loud and clear. “Would the attorney general expect that such judgments be ignored in the future?”

Berle continued. “Does the attorney expect that separate actions must be enforced to have a consent decree? The court’s order was clear. It was detailed and proper. Defendant’s distinction between past wrongs and prospective relief is of no moment.”

Berle’s lambasting came after Raoul D. Kennedy, of counsel at Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates and lawyer for the class of judges, compared the state justice department to a dictatorship.

“This is the United States, not Venezuela,” Kennedy said.

Represented by Jonathan E. Rich, a deputy attorney general, the state fired back that Kennedy is a “sophisticated” lawyer with a “sophisticated” client base, and used legal sleight of hand so as to ensure favorable judgments.

The justice department declined comment outside the courtroom, stating it will not discuss pending litigation.

Berle scheduled a status conference for the first week of October, and demanded from the state “periodic reports” to demonstrate its compliance.

The lawsuit was filed by Robert M. Mallano, a retired appellate justice, who argued that in enacting recessionary budget cuts the state yanked judges’ vested rights to certain salary and benefits.

The class includes every living current and retired state court judge, including Berle, who took the case under California’s doctrine of necessity, which asserts if every judge is conflicted, no judge is conflicted.

Berle certified the class and issued an order to allocate each active jurist roughly $16,500, or about $23 million total; and every retired judge about $7,200, or $13 million total. Judges also get 10 percent annual interest for each year of nonpayment by the state.

A 2nd District Court of Appeal’s unanimous decision, written by Justice Victoria M. Chavez, agreed with Berle, and the state declined to seek Supreme Court review.

Instead, in an opposition to Kennedy’s motion to enforce judgment, Rich stated that since the state sued under a declaratory relief action, plaintiffs are entitled to only prospective and not retroactive payments.

Rich cited language from Chavez’s order that, “The judgment contains no monetary damages award.”

Further, the state’s lawyer posited that Kennedy “framed the cause of action as a declaratory relief action” because he would face a “higher burden with a damages case.”

Asked about Rich’s argument after the hearing, Kennedy acknowledged that technically Berle need not award damages.

However, “Ordinarily the parties comply with the court’s declarations without needing to be forced to do so,” Kennedy said. “A judge who has jurisdiction over a declaratory relief claim has equity powers to do whatever is necessary to effectuate his or her declarations.”

For his part, Berle focused less on Rich’s legal arguments and more on the deputy attorney general’s wisdom, or lack thereof, in pursuing the case.

Berle, for example, noted that each year, by not paying the back pay amounts, the state is exposed to $4 million more in interest.

“You’re willing to expose the state to that interest?” Berle said.

Time and again, Berle implied that Rich was wasting the court’s, and the taxpayers’, time.

“The defendants want to litigate what is already being litigated,” Berle said, later adding that the justice department seeks to “drain judicial resources in multiple ways.”

“Why create duplicate proceedings when liability is not disputed? Why unnecessarily inflict pain on class members?” Berle said, while reading his order. “The simple answer is there is no reason to ... .”