Lawsuit by retired California judges alleges age discrimination in state court overhaul

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Three retired California judges including Sonoma resident Julie Conger are accusing the Judicial Council of California and Chief Justice Tani Cantil-Sakauye of age discrimination in a lawsuit spurred by new rules limiting how long they can work in temporary assignments.

The state’s Assigned Judges Program, which costs the state about $27 million annually, allows trial courts to tap retired judges to fill in for judicial absences, such as when judges take leave for vacation and illness, in order to prevent delays in civil, criminal, family and other proceedings in California’s 58 trial courts.

Last year, Cantil-Sakauye introduced new rules barring retired judges from working more than 1,320 days — the equivalent of a six-year term limit of an elected superior court judge. The change was among a slate of new guidelines designed to limit spending and encourage courts to avoid requesting retired judges when their services are not needed. The adjustments were applauded in an April state auditor report stemming from an investigation into a whistleblower complaint about the program.

Conger, 76, and her fellow plaintiffs, retired Orange County judges Glenn Mahler and James Poole — who have continued working about a decade after retirement and exceeded the new, retroactive limit — argue the changes discriminate against older and more experienced judges. Conger has put in a decade of work on the bench in Sonoma County since she retired in 2008 after 25 years on the bench in Alameda County.

The trio claim it’s unlawful to curb the number of days they can work after retiring, contending that such a move “amounts to illegal age discrimination” because it is “not based on bona fide occupational qualifications,” according to the complaint filed Thursday in San Francisco Superior Court. Conger declined to comment about the lawsuit and referred a Press Democrat reporter to her attorney.

“We’re not saying they have an absolute right to be appointed,” said Daniel Mason, an attorney for the plaintiffs who noted retired justices must apply and be accepted into the program. “What we’re saying is you can’t discriminate against judges who are older and have worked longer.”

A spokesman for the judicial council, a policymaking body chaired by Cantil-Sakauye that oversees California courts, said they cannot comment on a pending lawsuit and said that they have not yet been served with a copy of the complaint.

Assigned judges are paid $763.32 per day plus reimbursements for travel, lodging and meals — pay they receive while collecting their state pensions.

Conger has earned $1.2 million by working in retirement in addition to $61,908 in travel expenses reimbursed by the state, a judicial council spokesman said. Poole and Mahler have each been paid more than $1.5 million over the past decade working through the program, plus additional reimbursements totaling $2,260 and $1,010 respectively, the council said.

They judges receive monthly pensions between $13,337 and $13,714, according to the CalPERS, the state pension system.

Most California judges are appointed by the governor through a nomination process, but they have term limits and must be elected to remain on the bench. The term limit for superior court judges is six years; it is 12 years for appellate judges and state Supreme Court justices.

Retired judges faced no such limits until the rules Cantil-Sakauye introduced last year, which also prevent retired judges from working more than 120 days per fiscal year and restructure how the council allocates judicial resources to identify places with the greatest need for fill-in judges. Both rules were established with the goal of improving spending practices and opening up “opportunities for more recently retired judges to serve in the program,” according to a judicial council memo.

State Auditor Elaine Howe launched an investigation into the program after receiving a complaint about overspending in 2017. Her office found the program lacked accountability, resulting in overspending in jurisdictions utilizing retired judges above and beyond workload needs, according to a report released in April. The report highlighted $7 million spent in 2016 “to provide judges to the five counties that had the highest number of surplus judges.”

Presiding judges overseeing trial courts balked at the changes introduced by Cantil-Sakauye out of concern the new rules would make it difficult to handle vacancies and cause some court calendars to grind to a halt.

Sonoma County Superior Court Presiding Judge Gary Nadler, head of the council’s Trial Court Presiding Judges Advisory Committee, reported those concerns to the chief justice.

The ability to bring in retired judges, particularly those familiar with a given jurisdiction, is crucial for ensuring court calendars are fully staffed because otherwise “there would be a denial of access to justice to the public,” Nadler said in an interview this week.

He said he has sought exceptions to the limits twice since the new rules took effect, and both were granted.

“There was a lot of concern in the very beginning by the courts of this state, but at least in my own experience the issues are being resolved, assigned judges are being provided,” Nadler said. “We in Sonoma haven’t seen any disruption in our use of assigned judges.”

In Alameda County, Conger in 2002 established a specialized court focused on hearing elder abuse cases that was credited as the first of its kind in the nation.

Conger has worked an average of 9 months in each of the past 11 years she’s been retired, according to the complaint. She has spent much of that time in Sonoma County handing down sentences, ordering cases to trial and overseeing a variety of proceedings, including high-profile cases such as the 2013 sentencing of a Penngrove mother given an 11-year state prison term for abusing her 6-week-old baby.

She’s worked in at least five other Northern California trial courts, according to the council.

Outside of work, Conger has taken up dog breeding and showing Portuguese water dogs — a pursuit that brought her recognition at the Westminster Dog Show in New York City earlier this year when her dog “Feel the Burn de Remis” won best in breed.

Mason said Conger and the other plaintiffs tried to resolve the matter with the council before filing a lawsuit.

In March, they filed a complaint with the California Department of Fair Employment and Housing and the agency responded with notices approving their right to bring a civil lawsuit against the council.

“This is a case where, whether it was the intent or not, the effect of this rule is to deny older judges the same terms and conditions that every other judge in California has who is retired,” Mason said.

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