Judges’ lawyer in back wages lawsuit asks high court to ‘clarify’ recusal order

A lawyer for judicial officers seeking $40 million in back wages is asking for more information regarding the state Supreme Court's recusal, saying he believes the high court can consider the case under the same necessity rule invoked by the appellate and trial courts.

While William J. Casey of Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates isn't challenging the recusal of the six Supreme Court judges, he argued in a Wednesday letter to the court the recusal is unnecessary, and that a plan to give the case to a panel of superior court judges violates court procedure and ignores other conflicts regarding future raises.

The request apparently had little effect on the court. Hours after receiving it, the court announced Thursday the appointment of six superior court judges to the case: Brett Bianco, Bruce E. Brodie and Steve Cochran of Los Angeles County; Andre De La Cruz and Scott B. Cooper of Orange County, and Teresa M. Caffese of San Francisco County.

Bianco is to be the acting chief justice because he's served the longest, though all were appointed by Gov. Jerry Brown on Nov. 2.

Any judge or justice who hears the case "has a possible financial interest in its outcome," including Los Angeles County Superior Court Judge Elihu M. Berle and the 2nd District Court of Appeal justices who considered two appeals, Casey wrote.

"We are certain that the Court did not intend to call into question Judge Berle and the Court of Appeal Justices' having sat on the case," Casey wrote. "We respectfully request that the Court clarify its order, so as to leave no ambiguity both as to past and future proceedings by Judge Berle and other members of the judiciary."

Casey's request for clarification followed a Monday order from the court in which all six justices recused themselves from a petition for review filed by the state attorney general's office that challenges Berle's July 2017 enforcement order that the state must pay approximately 3,400 current and retired judges approximately $40 million in back salary and interest related to miscalculated raises. Mallano v. Chiang et al., S250379.

The court missed the Sept. 25 deadline to grant or deny the petition within 60 days, which according to Rule 8.512 of the California Rules of Court means the petition is "deemed denied." However, the judges filed an extension on Oct. 10 and entered it nunc pro tunc to apply to Sept. 25, giving the newly appointed panel until Nov. 1 to grant or deny the review petition.

The court has retroactively extended deadlines in other cases, said Supreme Court spokesman Cathal Conneelly, adding that it's done "on a case-by-case basis, if necessary."

The high court's recusal order calls for the case to be considered by judicial officers who took office on or after July 1, 2017. That means only superior court judges are eligible because all current appellate justices were appellate justices or superior court judges prior to 2017.

Casey cast doubt on the propriety of this plan, noting that the court's procedures allow appellate justices to serve pro tem "only after he or she has served on the Court of Appeal for one year."

Given that, "it may be that relatively few individuals are available to serve as pro tempore justices," Casey wrote.

Conneelly said the July 1, 2017 date correlates with when the state changed salaries to comply with a judgment in this case.

But Casey said judges appointed after those changes took effect also are conflicted because the case regards future salary raises, so "any determination of the petition will inherently decide, whether by addressing or determining not to address, the current statute in effect that governs the calculation of future judicial salaries pursuant to Government Code Section 6820."

Casey also said neither the plaintiff nor the court have reviewed the methodology the state is using to comply with the salary requirements.

At issue is a nine-year period between 2008 and 2017, with most of the owed money accruing before 2013. The class representative is Robert M. Mallano, a retired 2nd District Court of Appeal justice and retired Los Angeles County Superior Court judge.

Berle certified the class in 2015 to include all state judges active since the 2008-09 fiscal year, as well as anyone who has since then received benefits from CalPERS' judge retirement systems.