Challenge to lifetime temporary judges cap meets skepticism

A San Francisco judge on Wednesday was skeptical of a challenge to a lifetime cap of 1,320 days for participation in the California Temporary Assigned Judges Program.

Seven retired judges, all over 70 and over the cap, said the court system is unfairly denying them the ability to serve as temporary judges. The program allows courts to assign retired judges to help deal with heavy caseloads.

Superior Court Judge Ethan P. Schulman dismissed the case in 2019, citing the Judicial Council's "sweeping power" to make rules for state courts. The 1st District Court of Appeal ruled in July that the plaintiffs could challenge the rule, but could not seek damages. The remaining six judges -- one original plaintiff has died -- filed an amended complaint and landed back in Schulman's courtroom.

Schulman began Wednesday's hearing by noting that instead of a tentative opinion he wrote out a series of questions he wanted the attorneys to answer about the sufficiency of the new claims. Mahler v. Judicial Council of California, 2021 DJDAR 7765.

Representing the Judicial Council of California and Chief Justice Tani G. Cantil-Sakauye, Robert A. Naeve argued the plaintiffs had again failed to show statistically significant evidence of disparate impact against a protected group.

"The opposition concedes they don't allege losses of employment," said Naeve, of counsel with Jones Day in Irvine.

Schulman said Naeve may take a too narrow view of the appellate court's assessment on what the plaintiffs need to do to show disparate impact. The plaintiffs may still show they were treated differently under the new rules, the judge said, but appeared skeptical of the amended claims around geography and subject matter.

"The plaintiffs say, 'We got sent to family law appointments.' I guess the inference is that's less desirable. 'And we were required to accept assignments in courts remote from our places of residence,'" Schulman said. "There's not much here."

"That's not the theory of the complaint," Naeve replied.

Instead, Naeve said, the plaintiffs are trying to challenge a retroactive portion of the policy because they lacked a statistical basis for their claims. There is only a four-year difference in age between judges in the program who have exceeded the cap and those who haven't, he said.

"Their theory says, 'It was retroactively applied to me and I don't like it,'" Naeve said. "There are no examples where that occurred, let alone statistically significant examples. ... It doesn't say 23% of judges were sent to Barstow instead of being sent to downtown Los Angeles."

Representing the retired judges, Daniel S. Mason conceded that presiding judges could specifically request a judge who had exceeded the limit. But he said this process was onerous and put judges over the cap at the mercy of the chief justice.

"The chief justice rules on exceptions," said the partner with Furth Salem Mason & Li LLP in San Francisco. "She decides whether or not she is going to give one. No one else goes through that."

Schulman conceded the exception process may be "burdensome" and lead to "less desirable assignments." He was less forgiving of Mason's statement that his side could not get the statistics they needed to prove their case. Mason said the other side has only provided statistics on the program through June 2019, even after his side filed a timely amended complaint in October.

"We have gotten exactly zero documents up to now," Mason said.

"The question is, based on the documents you have now, can you state a prima-facie claim?" Schulman replied. "This is not a case management conference where I'm being asked to schedule discovery or hear a motion to compel. ... Your individual judges presumably know whether they've received assignments or not."

Schulman later said the plaintiffs could seek the documents they needed through a Public Records Act request from the State Bar.

"We ought not to have to go to the Public Records Act," Mason replied. "For them to complain the statistics are not robust enough when they have this information and we've asked for it, that's not right, your honor."

Schulman said he would rule in about a week.