Challenge to assigned judges program is dismissed, again

A San Francisco judge has again dismissed a case brought by a group of retired judges who challenged limits on the Judicial Council's Temporary Assigned Judges Program.

In a ruling on Wednesday, Judge Ethan P. Schulman dismissed the plaintiffs' constitutional claims and refused to consider discovery requests. He allowed them 20 days to amend for their cause of action under the state's Fair Employment and Housing Act. Attorney Quentin L. Kopp said Thursday his side would file a third amended complaint. Mahler v. Judicial Council of California, 2021 DJDAR 7765.

"The issue on the instant demurrer is whether the Plaintiffs have stated a claim for disparate impact age discrimination based on Defendants' enforcement of implementation of the challenged provisions of the TAJP that could support a request for prospective declaratory relief. ...The Court concludes that Plaintiffs' allegations in the SAC [second amended complaint] remain inadequate to state such a cause of action," Schulman wrote.

Judicial Council spokesman Cathal Conneely said the agency "cannot comment on pending litigation."

"We'll file a third amended complaint," Kopp said Thursday.

Kopp, of counsel with Furth Salem Mason & Li LLP in San Francisco, added, "You don't plead evidence, you plead facts and law. What this order bespeaks is pleading evidence in a complaint."

At a Jan. 19 hearing, Furth Salem partner Daniel S. Mason argued the Judicial Council has not shared the information his side needs to prove its case. Schulman gave these arguments a chilly reception, both at the hearing and in his ruling.

"Plaintiffs attempt to justify their pleading deficiencies on the basis of Defendants' purported failure to provide discovery," Schulman wrote. "As Defendants correctly point out, however, Plaintiffs argument puts the cart before the horse. ... Speculation that Plaintiffs may be able through future discovery to uncover evidence to support such a claim is not a proper basis for opposing a demurrer."

Eight retired judges -- one has since died -- claimed a 1,320 day limit the Judicial Council passed in 2018 was a form of age discrimination. Finding the Judicial Council had immunity, Schulman dismissed the case in 2019. The 1st District Court of Appeal revived the case last year, finding the judges could not seek monetary damages but could challenge the policy. The plaintiffs filed an amended complaint in October, claiming the "arbitrary" and "retroactive" policy violates state law and the state constitution because it discriminates by age.

In his order, Schulman focused on the appellate court's finding that the plaintiffs must challenge the policy "through individual judicial assignments." Plaintiffs must prove not just that they suffered disparate treatment, he said, but disparate impact on the plaintiffs.

"The central flaw in the SAC is that it contains literally no factual allegations regarding Defendants' enforcement of the challenged provisions," Schulman wrote.

Instead, he added, the plaintiffs appear to challenge the "wisdom" of the policy in an amended filing that was "substantially identical ...to the first complaint."

The plaintiffs are all older than 70 and have exceeded the 1,320 day limit in the program, which allows judges to earn money while sitting temporarily in courts in need.

The judge said some plaintiffs have received assignments through exceptions in the policy but complained these were "either to Family Law Departments or to courts located in communities far from home."

While the plaintiffs showed that retired judges over 70 were over three times more likely to be over the limit, "Defendants do not allege a single instance in which Defendants refused a TAJP assignment because a particular judge had reached or exceeded the 1,320-day limit."