Judicial Council won’t say how much it’s paying firm

How much is the Judicial Council of California paying a private law firm to defend an age discrimination case brought by a group of retired judges? The agency won't say, according to an email obtained by the Daily Journal.

In an odd twist, plaintiffs' attorney Quentin L. Kopp said he helped write one of the laws shielding this information. The Judicial Council's denial references a California Supreme Court ruling based in part on the California Public Records Act, a law amended when Kopp was a state senator.

The Daily Journal obtained an email showing the agency has denied a request for "judicial administrative records showing the amount of money paid or because of the Jones Day law firm." The email from the Council's Public Access to Judicial Administrative Records division was forwarded by a third party last week. Mahler v. Judicial Council of California, 2021 DJDAR 7765 (Cal. App. 1st Dist., July 28, 2021).

"We have determined that we have no disclosable responsive records," the response stated. "The only responsive records are exempt. (See Cal. Rules of Court, rule 10.500(f) (5); Evid. Code, § 954; see also, Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal. 5th 282, 282, 297--298.)."

"This is taxpayer money," said Kopp, of counsel with Furth Salem Mason & Li in San Francisco, which represents the plaintiffs. "It's not the money of the Chief Justice or other individuals on the Judicial Council. The public is entitled to know."

According to court records, the Judicial Council is represented by Robert A. Naeve, of counsel with Jones Day, and partner Nathaniel P. Garrett. Jones Day did not respond to an email seeking comment.

In an email, Judicial Council spokesman Cathal Connelly said, "The matter is still pending" and referenced the code cited in the Judicial Council's response.

Rules of Court 10.500(f) (5) states: "Records whose disclosure is exempted or prohibited under state or federal law, including provisions of the California Evidence Code relating to privilege, or by court order in any court proceeding." Evidence Code 954 covers attorney-client privilege in state law.

The case the Judicial Council cited in a California Supreme Court ruling found that attorney-client privilege does not apply to legal invoices unless a case is pending. The ruling contains several references to the California Public Records Act.

Before becoming a San Mateo County Superior Court Judge, Kopp was in the California Senate from 1986 to 1998. He wrote several bills to strengthen the California Public Records Act, often working with the California Newspaper Publishers Association. Reached Friday, Kopp said during his time in office, he wrote a law that strengthened the California Public Records Act but exempted judicial records.

"I regret that as a state senator I exempted the judiciary from the strengthening of the Public Records Act," he said.

Kopp said he could not remember the bill number or exact year. But there is a section of Government Code pertaining to the act dating from 1987, during his time in office, stating records are "protected by the attorney work product privilege until the pending litigation has been finally adjudicated."

The Mahler plaintiffs are retired judges over 70 who sued the Judicial Council over changes to the temporary retired judges program. This is a program that allows these judges to fill in on overburdened courts. They claimed a recently enacted limit capping 1,320 days of lifetime participation in the program discriminates by age. One of the original eight plaintiffs died after the case began.

San Francisco Superior Court Judge Ethan P. Schulman dismissed the case in 2019, saying the Judicial Council had immunity under its "sweeping power" to set rules for state courts. But a unanimous panel of the 1st District Court of Appeal revived the case last year. They ruled that while the plaintiffs could not seek damages, they may challenge the rule.

The plaintiffs filed an amended complaint in October. Schulman has scheduled a hearing on the Judicial Council's demurrer for Wednesday.

The Judicial Council also hired Garrett and Naeve to defend it in an unrelated case over alleged delays on the 3rd District Court of Appeal. Eisenberg v. The Court of Appeal for the Third Appellate District, S269691 (Cal., filed July 6, 2021).

Jon B. Eisenberg, a retired appellate attorney who represented himself in that case, said he never sought to find out how much the council paid the firm but it could be "close to $1,000 an hour."

"It's possible they gave the State of California something of a discount," Eisenberg said, "But they certainly wouldn't have to."