Mahler v. Judicial Council of Cal.

Citation67 Cal.App.5th 82,282 Cal.Rptr.3d 34
Decision Date28 July 2021
Docket NumberA158696
CourtCalifornia Court of Appeals Court of Appeals
Parties Glenn MAHLER et al., Plaintiffs and Appellants, v. JUDICIAL COUNCIL OF CALIFORNIA et al., Defendants and Respondents.

67 Cal.App.5th 82
282 Cal.Rptr.3d 34

Glenn MAHLER et al., Plaintiffs and Appellants,
JUDICIAL COUNCIL OF CALIFORNIA et al., Defendants and Respondents.


Court of Appeal, First District, Division 1, California.

Filed July 28, 2021

Furth, Salem, Mason & Li LLP, Daniel S. Mason, Quentin L. Kopp, and Thomas W. Jackson for Plaintiffs and Appellants.

Jones Day, Robert A. Naeve, Irvine, and Nathaniel P. Garrett, San Francisco, for Defendants and Respondents.

Banke, J.

282 Cal.Rptr.3d 37


Plaintiffs, retired superior court judges who have participated in the Temporary Assigned Judges Program (TAJP), challenge recent changes to the program made by the Chief Justice. These changes include limits on the duration of service in the program but provide for some exceptions. Plaintiffs claim these changes discriminate against "older" retired judges and have filed the instant lawsuit, alleging disparate impact age discrimination under the Fair Employment and Housing Act (FEHA). The trial court sustained defendants’ demurrer without leave to amend on the ground legislative immunity bars the suit.

Legislative immunity does, indeed, shield the Chief Justice and the Judicial Council from suit, regardless of the nature of the relief sought, to the extent plaintiffs’ discrimination claim is based on the Chief Justice's promulgation of changes to the TAJP. Legislative immunity does not, however, foreclose suit to the extent plaintiffs’ claim is based on defendants’ enforcement of the challenged provisions of the TAJP through individual judicial assignments. Rather, judicial immunity applies to the Chief Justice's assignment of individual judges in accordance with the new TAJP provisions, and while judicial immunity forecloses monetary relief, it does not foreclose prospective declaratory relief.

Defendants also demurred on the ground plaintiffs’ allegations fail to state a viable disparate impact age discrimination claim. Although the trial court did not consider the sufficiency of the complaint, defendants press this as an alternative ground to affirm, and we therefore address the issue, given our conclusion that legislative immunity does not wholly bar plaintiffs’ suit. We agree that plaintiffs’ allegations are, at present, insufficient.

We do not agree, however, that plaintiffs must be denied leave to amend. In so concluding, we disagree with defendants that a disparate impact age discrimination claim cannot, as matter of law, be based on disparate impact on an older subgroup within the class of persons protected under the FEHA, namely employees forty years of age and older. No California court has squarely addressed this issue, and while several federal circuit courts have held "sub-class" disparate impact age discrimination claims are not viable under the Age Discrimination in Employment Act (ADEA), the majority view is now to the contrary. We find the reasoning of these recent cases more persuasive than that of the older cases and conclude it is in keeping with our Legislature's stated intent that the FEHA age discrimination provisions be liberally construed to achieve its salutary purposes.

We therefore reverse the dismissal order and remand to allow plaintiffs an opportunity to amend. In doing so, we are expressing no opinion as to whether further amendment will sufficiently state a disparate impact age discrimination claim or as to the merits of plaintiffs’ claim.


The Temporary Assigned Judges Program

The TAJP has its roots in the original Judges’ Retirement Act, Stats. 1937, page

282 Cal.Rptr.3d 38

2204. ( Pickens v. Johnson (1954) 42 Cal.2d 399, 402, 267 P.2d 801 ( Pickens ).) By 1951, section 6 of the Judges’ Retirement Act, provided that: " ‘Justices and judges retired under the provisions of this act, so long as they are entitled by its provisions to receive a retirement allowance, shall be judicial officers of the State, but shall not exercise any of the powers of a justice or judge except while under assignment to a court as hereinafter provided. Any such retired justice or judge may, with his own consent, be assigned by the Chairman of the Judicial Council to sit in a court of like jurisdiction as, or higher jurisdiction than, that court from which he was retired; and while so assigned shall have all the powers of a justice or judge thereof. If assigned to sit in a court, he shall be paid while sitting therein in addition to his retirement allowances the difference, if any, between his retirement allowance and the compensation of a judge of the court to which he is assigned.’ "1 ( Pickens , at p. 402, 267 P.2d 801, quoting Judges’ Retirement Act, Stats. 1951, p. 3694.)

As our Supreme Court explained in Pickens in upholding the validity of retired judge assignments against a variety of constitutional challenges, "[w]hether as a matter of policy the system of assignment of retired judges should be put into effect is for the people of the state to determine through the Constitution or by the Legislature." ( Pickens, supra, 42 Cal.2d at p. 409, 267 P.2d 801.) "That policy has been declared by both, by the Constitution by reasonable implication and by the Legislature in the unmistakable and definite terms of section 6 of the retirement act." ( Ibid . ) The purposes of such provision are, moreover, wholly beneficial to the state, making "available to the judicial department the experience, aptitude and capabilities of retired judges who, with their consent, may be called upon for assistance in the administration of justice." ( Id. at p. 410, 267 P.2d 801.) Utilization of retired judges "is highly desirable not only in particular cases but also when congestion in judicial business in a particular locality has become critical, and oftentimes intolerable." ( Ibid. )

The high court went on to explain that "[t]he chairman of the Judicial Council"—the Chief Justice—"is the logical constitutional officer in whom to vest the power of assignment. It is one of his [or her] functions to marshal the judicial manpower of the state by assignment and transfer of judges to facilitate the dispatch of judicial business. No other person is in better or as good a position as he [or she] to determine the desirability and need for such assistance." ( Pickens, supra, 42 Cal.2d at p. 410, 267 P.2d 801.) Indeed, "[b]y section 1a of article VI (subd. 6) of the Constitution the duty is enjoined upon the chairman of the Judicial Council to seek to expedite the judicial business of the state, to equalize the work of the judges, and to provide for the assignment of incumbent judges from one county to another under certain conditions." ( Pickens, at p. 409, 267 P.2d 801.)

Two decades later, in Mosk v. Superior Court (1979) 25 Cal.3d 474, 159 Cal.Rptr. 494, 601 P.2d 1030 ( Mosk )2 , our Supreme Court reaffirmed the broad assignment authority

282 Cal.Rptr.3d 39

of the Chief Justice, upholding the validity of a Supreme Court comprised entirely of appointed Court of Appeal justices on the recusal of the sitting justices. Justice Mosk, who was challenging the issuance of a subpoena by the Commission on Judicial Performance, claimed as a threshold matter, that the high court, so constituted, had no constitutional authority to act. ( Id. at pp. 479-480, 159 Cal.Rptr. 494, 601 P.2d 1030.)

The Supreme Court reiterated that "[t]he Chief Justice has long had constitutional authority to assign any lower court judge, who is otherwise qualified, to the Supreme Court to sit in place of a disqualified Supreme Court justice. The 1926 constitutional amendment which created the Judicial Council ( Cal. Const., art. VI, § 1a, now § 6 ) provided that the Chief Justice, as chairman of the Judicial Council, ‘shall seek to expedite judicial business and to equalize the work of the judges, and shall provide for the assignment of any judge to another court of a like or higher jurisdiction to assist a court or judge whose calendar is congested, to act for a judge who is disqualified or unable to act, or to sit and hold court where a vacancy in the office of judge has occurred.’ As amended in 1966 and 1974, this provision now reads: ‘The Chief Justice shall seek to expedite judicial business and to equalize the work of judges. The Chief Justice may provide for the assignment of any judge to another court but only with the judge's consent if the court is of lower jurisdiction. A retired judge who consents may be assigned to any court.’ ( Cal. Const., art. VI, § 6, par. 5th.)" ( Mosk, supra, 25 Cal.3d at p. 481, 159 Cal.Rptr. 494, 601 P.2d 1030.)

Thus, "[t]he Constitution gives the Chief Justice broad authority to expedite the work of the courts [citation], and implicit in that authority is the Chief Justice's power to assign judges to assist the Supreme Court when regular Supreme Court justices are disqualified. Such assignments have become commonplace." ( Mosk, supra, 25 Cal.3d at pp. 481-482, 159 Cal.Rptr. 494, 601 P.2d 1030.) It is further implicit, since "[t]here is no constitutional provision, statute, or court rule which prescribes the manner in which assigned judges are to be selected,"3 that the "manner, method, or criteria for selection of duly qualified assigned judges is within the inherent power of the Supreme Court and within the discretion of the Chief Justice in the exercise of her constitutional authority to make the assignments." ( Mosk, at pp. 482-483, 159 Cal.Rptr. 494, 601 P.2d 1030.)

The Court of Appeal brought these principles to bear some twenty years later in People v. Superior Court (Mudge ) (1997) 54 Cal.App.4th 407, 62 Cal.Rptr.2d 721 ( Mudge ), in examining the retired judges program and invalidating a statute that allowed the parties in a criminal case to stipulate that an assigned retired judge was " ‘not capable or qualified to hear and retry the criminal case.’ " ( Id. at p. 410, 62 Cal.Rptr.2d 721.) The statute could not, said the court, "be reconciled with the Chief Justice's implied factual determination that the assigned retired judge"...

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