Lawyer vows appeal after retired judges’ age discrimination suit is dismissed

An attorney challenging new limits on the state retired judges program said Friday he'll appeal a San Francisco County Superior Court judge's dismissal of the age discrimination lawsuit.

Quentin L. Kopp, a partner at Furth Salem Mason & Li LLP, said he's not displeased with Judge Ethan P. Schulman's decision because he wants an appellate court to consider the case.

"I think we will prevail," said Kopp, a retired San Mateo County Superior Court judge.

Schulman sustained a demurrer brought by Jones Day attorneys representing state Supreme Court Chief Justice Tani G. Cantil-Sakauye and the Judicial Council on Thursday, ruling the claims are precluded by legislative immunity, "which bars actions against judicial officers when they act in a legislative capacity."

It's the same reasoning that drove Schulman in July to deny the plaintiffs' motion for a preliminary injunction. Their opposition to the demurrer then rested "entirely on their prior briefing," so Schulman deemed it unnecessary to "repeat that analysis here" and kept his ruling to one page.

"As it is dispositive, the court need not reach any of the other issues raised by defendants in their demurrer," the judge wrote.

Kopp, who represents eight retired judges, said he's talked to lawyers, including appellate experts, "who can't imagine applying legislative immunity to the Judicial Council for a one-person decision."

Jones Day partner Robert A. Naeve, who represents Cantil-Sakauye and the Judicial Council, said in an email, "We are pleased with Judge Schulman's well-reasoned decision."

"We typically don't comment on appeals, especially ones that have not been filed as of yet," Naeve wrote.

Kopp said his team will file a notice of appeal with the 1st District Court of Appeal as soon as the judgment is finalized. He said he expected the demurrer decision and tried to get Jones Day attorneys to stipulate to skipping the litigation and moving straight to appeal, but they refused.

"It's commonly done when you know a ruling in advance, and you want to get into the Court of Appeal as quickly as possible," Kopp said. "I've never seen an attorney or a law firm not stipulate in such a circumstance."

The octet of retired judges challenged changes to the Judicial Council's Assigned Judges Program, which issues temporary judicial assignments to assist with staffing shortfalls. The changes cap service at 1,320 days, which limited plaintiffs' participation because they'd already worked more than that.

The plaintiffs and their superior courts are: Glenn Mahler and James H. Poole of Orange County, Julie Conger of Alameda County, Edward M. Lacy Jr. of Stanislaus County, William S. Lebov of San Diego County, John C. Minney of Contra Costa County, John J. Sapunor of Sacramento County and F. Clark Sueyres of San Joaquin County.