Judge skeptical of retired judges’ age discrimination argument

SAN FRANCISCO -- A superior court judge voiced skepticism Tuesday about whether to halt the Judicial Council's new policies that would disqualify eight retired judges from serving temporary judicial assignments.

Judge Ethan P. Schulman said "nothing suggests" plaintiffs have a reasonable chance of proving the changes constitute age discrimination if the case went to trial.

In a tentative ruling, the judge denied a preliminary injunction.

"A young retired judge can hit the limit pretty quickly and an old retired judge could never hit the limit," Schulman said.

The retired judges are challenging changes to the Assigned Judges Program, which issues temporary judicial assignments to assist with staffing shortfalls, that went into effect Jan. 1. The changes would limit service to a total of 1,320 days.

Plaintiffs' attorney Daniel S. Mason, a partner with Furth Salem Mason & Li LLP, argued the changes limiting eligibility are discriminatory because it they effectively disqualify the oldest judges from the program.

The defense has maintained the Judicial Council cannot be sued for discrimination because of legislative immunity. Even if it can, attorney Robert A. Naeve, who also represents Chief Justice Tani Cantil-Sakauye, said, "Age has nothing to do with reaching the cap."

The plaintiffs are retired judges, several of whom would no longer be eligible for the Assigned Judges Program. Mahler v. Judicial Council of California, CGC19575842 (S.F. Super. Ct., filed May 9, 2019).

Under the Judicial Council's contention of immunity, Mason said it could hypothetically enact a requirement that only white males or practicing Christians are eligible to serve in the program.

"From the court's view, that would be OK because no one could challenge it," he said. "There's a limit to legislative immunity."

Schulman responded that there is "nothing on the face of the policy to suggest insidious discrimination like the one you're suggesting." He added that he needs a showing that plaintiffs have a likelihood to prove the changes are discriminatory if the case went to trial in order to issue a preliminary injunction.

Mason shot back that the "court misstated the standard," to which Schulman said he is "well familiar."

"If you have no chance of success on the merits, you don't even need to look at equities, right?" the judge said.

Mason said his expert report details that the average age of judges who have exceeded the 1,320 day limit is 76 compared to 71.9 for judges who have not.

"The fact is that older judges are impacted much more than younger judges as a result of this policy," he said, adding that the results are statistically significant and have been disregarded by the defense, which has focused most of its case on legislative immunity.

Naeve argued that the purpose of the Assigned Judges Program has always been to "conserve resources" and "provide temporary assistance."

"This is a judgment call they made," he said. "That you're not providing temporary assistance if you're working longer than 1,320 days."

Asked what to make of Mason's argument that the Judicial Council could hypothetically implement discriminatory policies that allegedly cannot be challenged in court, Naeve said, "That's not this case."

When pressed for an answer, the Jones Day attorney responded, "There is no evidence of discrimination and they conceded as much."

Mason ended the hearing by remarking that plaintiffs' attorneys are only asking the injunction be applied to the eight retired judges they are representing, to which Schulman responded that not applying the injunction to all the judges in the program could make his decision appear "arbitrary."