Retired judges give statistics in new try against assignment limits

Attorneys for a group of retired judges have filed their third amended complaint in a case challenging limits on the Judicial Council's temporary retired judges program. In response to a ruling last month, they added extensive statistical information about how many fewer assignments the judges received after the limits were imposed.

"It is a lengthy, fact-filled amended complaint consistent with the trial court's apparent desire to encourage evidentiary pleadings," said Quentin L. Kopp, of counsel with Furth Salem Mason & Li LLP in San Francisco.

San Francisco Judge Ethan P. Schulman dismissed the case a second time last month. An appellate court sent the case back to him, finding he erred in 2019 when he found the retired judges could not challenge the policy. Mahler v. Judicial Council of California, 2021 DJDAR 7765 (Cal. App. 1st Dist. July 28, 2021).

On remand, Schulman again dismissed the judges' constitutional claims. He also ruled they had failed to show sufficient evidence of "disparate impact age discrimination," but gave them 20 days to refile their claims under California's Fair Employment and Housing Act.

The amended complaint filed Tuesday was 53 pages, including exhibits, more than twice as long as the original two years ago. It went into great detail about how the judges, each over 70, were affected by changes to the Temporary Assigned Judges Program passed in 2018. These limit judges to 1,320 days of lifetime service in the program unless a court receives special permission from the chief justice. All the plaintiffs had already exceeded this limit.

The seven surviving judges -- one original plaintiff died last year -- averaged 167 days of annual service prior to the new policy, according to the complaint filed by Daniel S. Mason, a partner at Furth. They averaged 53 days in 2019 under the policy, and 43 days in 2020. Two of the judges received no assignments in 2020.

"The contrast between the individual judicial assignments plaintiffs received before defendants commenced enforcement of the lifetime cap with those received after is striking," Mason wrote. "Moreover, the dramatic reduction in judicial assignments made by defendants to plaintiffs was due neither to a lack of available assignments, nor to plaintiffs' failure to desire or accept such judicial assignments."

The figures show disparate impact by age, he argued. He also wrote that retired judges over 70 were more than three times as likely to have exceeded the lifetime cap as those under 70.

The Judicial Council's attorney attacked the previous complaint as "theoretical" and lacking "statistical significance" at a Jan. 19 hearing before Schulman. Robert A. Naeve, of counsel with Jones Day in Irvine, also said the plaintiffs failed to show "losses of employment."