Judicial Council claims immunity from retired judges’ age discrimination case

The Judicial Council claimed this week it is immune to a lawsuit filed by eight retired judges who are no longer eligible to participate in the Temporary Assigned Judges Program.

The council claimed the petitioners lack a private right of action and failed to show age discrimination, according to a court document filed Monday by attorneys from Jones Day opposing the plaintiffs' bid for a preliminary injunction.

Retired judge and former state legislator Quentin L. Kopp filed the complaint last month, alleging a new policy limiting participation in the program discriminated by the age of the judges. Mahler v. Judicial Council of California, CGC19575842 (S.F. Super. Ct., filed May 9, 2019).

The brief claimed the Judicial Council is "immune from suit under the doctrine of legislative immunity."

It argues under Steiner v. Superior Court (1996) 50 Cal.App.4th 1771, 1784, the Legislature gave the Judicial Council the power to set the California Rules of Court. The proper remedy, it continues, is to convince the Legislature to force the courts to change the rules.

"That is such poppycock," Kopp said of the Judicial Council's claim of legislative immunity, noting the state is frequently sued over laws the Legislature passes. Of counsel with Furth Salem Mason & Li LLP in San Francisco, he said his firm will file a reply and likely call several witnesses at a July 9 evidentiary hearing to counter the agency's claims.

The program allows retired judges who meet certain requirements to continue to sit on the bench on a fill-in basis, earning 92% of the standard daily pay while still receiving their pension. Chief Justice Tani Cantil-Sakauye authorized an internal review of the program in 2017 after it ran a deficit for the first time in its history.

That work resulted in new policies announced last year that limit retired judges to 120 days of work a year and 1,320 days total. The policy also demands the biennial Judicial Needs Assessment be used to show whether a given county needs the help of a temporary judge.

These changes allowed the Judicial Council to get out ahead of an April report from the state auditor prompted by complaints about the program. That report found the program spent a quarter of its $27 million 2016 budget in just five low-need counties but praised the changes already implemented.

The Judicial Council reply claims allowing judges to serve longer than a standard six-year term violates the right of local voters to choose their judges periodically. Several of the plaintiffs in the suit have already served 1,500 or more days in the program, with one having worked more than 2,000 days.

"Before defendants modified the program, these retired judges could sit in perpetuity without ever standing for election again," the reply stated.

Finally, the Judicial Council noted all of the retired judges enrolled in the program are over 40, but less than one in five has hit the maximum days. It also argued one plaintiff has "accumulated more days of service" than another plaintiff "despite being 14 years younger."

Kopp called the Judicial Council's age arguments "a question of fact" that he will gladly litigate while showing his clients, as a group, are older than retired judges in the program who haven't hit the limit.

"They followed all the rules," Kopp said. "Then they are beset by a new rule that unmistakably discriminates against those who've been in the program the longest, and they are the eldest of retired judges."

A Judicial Council spokesperson said it is policy not to comment on pending litigation.