Retired judges sue over limits for temporary assignments

SAN FRANCISCO -- A trio of retired judges sued the Judicial Council over new rules that effectively expel them from the Assigned Judges Program.

They are challenging changes to the program that went into effect Jan. 1 limiting a retired judge to 1,320 days of total service in the program. Mahler et al. v. Judicial Council of California et al., CGC19575842 (S.F. Super. Ct., filed May 9, 2019).

The program assigns temporary judges to courtrooms around the state in order to help deal with staffing shortfalls. A report by the state auditor released last month found the agency had done a good job making the program more efficient in the wake of a 2017 complaint.

Among the changes announced last year by California Chief Justice Tani Cantil-Sakauye, who is also a named defendant, was a process to make courts show they needed the temporary judges and had tried other means of filling the positions.

Speaking with reporters in San Francisco City Hall on Thursday, attorneys Quentin L. Kopp and Thomas W. Jackson said the policy is discriminatory and doesn't move the program toward the stated goal. Kopp is of counsel with Furth Salem Mason & Li LLP and Jackson is an attorney with the firm.

"Everyone assumed it was a budgetary issue, but that rationale is not really borne out," Jackson said.

The plaintiffs are retired judges over the age of 40. Each has worked with the program for over a decade and accumulated at least 1,500 days. Glenn Mahler and James H. Poole served in Orange County. Julie Conger is a former Alameda County Superior Court judge.

"This policy has a disparate impact on plaintiffs and other persons of their age in that it causes them to be demonstrably disadvantaged vis-à-vis younger participants," the complaint states.

It argues the policy violates the state Government Code, which does not allow employers to "bar or discharge the person from employment" based on age and a variety of other factors.

Kopp, a retired San Mateo County Superior Court judge, said the policy turns away skilled and experienced judges who are willing to work for slightly less than they made when they were on the bench. The changes will likely result in many being lost to the private sector, he added.

"Fewer judges go into the Alternative Judges Program than into alternative dispute resolution," Kopp said. "In ADR, they can charge $1,000 an hour."

He also dismissed the notion that the age discrimination issue was eliminated by a policy allowing individual exceptions to each of the new rules. This leaves veteran judges in the program "at the whim" of the chief justice, who could "play favorites."

"You've got the right to ask for an exception, except that's an inefficient process that is costing taxpayers money," Kopp said.

A spokesperson for the Judicial Council said the agency had not yet been served and could not comment on the pending litigation. However, they pointed to the auditor's report, which noted, "The Judicial Council has taken steps to administer the AJP in a more efficient manner."

Judges already must comply with a long list of requirements to participate in the program. They can't practice law, have to apply within two years of retirement, and can't have lost their last judicial election. They are regularly evaluated by the presiding judge of the court where they are serving.

Kopp said many of the judges who participate end up traveling far from home, and often take assignments that have traditionally been hard to fill, such as family law.

He is also a former state senator. In the mid-1990s, Kopp chaired the Senate subcommittee in charge of the court's budget. He suggested there could be other areas of the budget where the courts could likely find savings.

"I can tell you there was plenty of fat in the budget requests," Kopp said. "One year, I'll never forget, including a sabbatical for every judge in the state," adding he shot down that idea.