Olson v. Cory

Decision Date30 December 1983
Citation673 P.2d 720,197 Cal.Rptr. 843,35 Cal.3d 390
Parties, 673 P.2d 720 Lester E. OLSON et al., Plaintiffs and Appellants, v. Kenneth CORY, as State Controller, et al., Defendants and Respondents. L.A. 31780.
CourtCalifornia Supreme Court

Stroock & Stroock & Lavan, William H. Levit, Henry J. Silberberg, Margaret A. Nagle, Gibson, Dunn & Crutcher and Richard Chernick, Los Angeles, for plaintiffs and appellants.

Lawrence E. Gercovich, D. Robert Shuman, Sacramento, John H. Larson, County Counsel, Halvor S. Melom, Deputy County Counsel, Los Angeles, Richard J. Moore, County Counsel, Oakland, Daniel Blackstock Chico, and Delbert M. Siemsen, County Counsel, Oroville, John B. Clausen, County Counsel, Martinez, Floyd R. B. Viau, County Counsel, Fresno, Raymond W. Schneider and Robert D. Curiel, County Counsel, Eureka, James H. Harmon, County Counsel, Elcentro, Ralph B. Jordan, Jr., County Counsel, John R. Irby, Deputy County Counsel, Bakersfield, Douglas J. Maloney, County Counsel, San Rafael, Russell M. Koch, County Counsel, Merced, Paul DeLay and Ralph R. Kuchler, County Counsel, Salinas, Stephen W. Hackett, County Counsel, Napa, Adrian Kuyper, County Counsel, Santa Ana, James H. Angell and Gerald J. Geerlings, County Counsel, Riverside, Lee B. Elam, County Counsel, Sacramento, Alan K. Marks, County Counsel, San Bernadino, Donald L. Clark, Barstow, George P. Agnost, City Atty., San Francisco, Gerald A. Sherwin, County Counsel, Stockton, James B. Lindholm, Jr., County Counsel, San Luis Obispo, Keith C. Sorenson, Redwood City, and James P. Fox, County Counsel, San Mateo, George P. Kading and Kenneth L. Nelson, County Counsel, Marvin Levine, Chief Asst. County Counsel, Santa Barbara, Selby V.I. Brown, Jr., County Counsel, San Jose, Clair A. Carlson, County Counsel, Santa Cruz, Milton Goldinger, Fairfield, and Charles O. Lamoree, County Counsel, Vallejo, James P. Botz, County Counsel, Santa Rosa, Gilbert W. Boyne, County Counsel, Modesto, Darrell W. Larsen, County Counsel, Yuba City, Calvin E. Baldwin and Thomas D. Bowman, County Counsel, Visalia, Dorothy L. Schechter, County Counsel, Ventura, Charles R. Mack, County Counsel, Woodland, George Deukmejian, Former Atty. Gen. and John K. Van de Kamp, Atty. Gen. and Richard M. Radosh, Deputy Atty. Gen., for defendants and respondents.

REYNOSO, Justice.

Plaintiff judges and judicial pensioners claim interest on the salary and pension increases to which this court held them entitled in Olson v. Cory (1980) 27 Cal.3d 532, 178 Cal.Rptr. 568, 636 P.2d 532 (Olson v. Cory I ). They appeal from the trial court's order denying their motion for a determination that their right to the interest is without substantial controversy.

We reach the following conclusions: The plaintiffs are entitled to interest on amounts due as increases in salaries of judges of courts of record (Cal. Const., art. VI, § 1) and in pensions payable under the Judges' Retirement Law (Gov.Code, § 75000 et seq.). 1 The trial court's order was not appealable; nonetheless, under the unusual circumstances of this case we reach the merits by treating the appeal as a petition for a writ of mandate.

Before being amended in 1976, effective January 1, 1977, Government Code section 68203 (hereafter section 68203) provided that salaries of justices of the Supreme Court and Courts of Appeal and of judges of the superior and municipal courts were to be increased on September 1st of each year in accordance with the California consumer price index. 2 The 1976 amendment provided that the salaries should be increased according to that index each July 1st, beginning with July 1, 1978, and that each increase should not exceed 5 percent. 3

Plaintiffs brought this action on August 3, 1977, alleging that they were superior and municipal court judges and recipients of pensions under the Judges' Retirement Law and praying for a declaration that the 1976 amendment was unconstitutional and that they therefore were entitled to salary and pension increases in accordance with section 68203 prior to the amendment. The complaint named as defendants the State Controller and the Los Angeles County Auditor-Controller and declared that the action was being brought on behalf of all judges of California courts of record and all retired judges and judges' widows entitled to pensions. By stipulation filed February 17, 1978, the complaint was amended to pray also for damages consisting of salary and retirement benefits due under section 68203 prior to the amendment, together with interest "at the lawful rate" and attorney fees (sought under various theories). On February 21, 1978, the trial court rendered judgment declaring that the 1976 amendment to section 68203 was unconstitutional and reserving jurisdiction over all other matters including class certification, interest, and attorney fees.

Olson v. Cory I was filed March 27, 1980, and, after modification, became final on June 27, 1980. The opinion concluded that the 1976 amendment to section 68203 "cannot be constitutionally applied to (1) a judge or justice during any term of office, or unexpired term of office of a predecessor, if the judge or justice served some portion thereof (a 'protected term') prior to 1 January 1977, and (2) a judicial pensioner whose benefits are based on some proportionate amount of the salary of the judge or justice occupying that office." (27 Cal.3d at p. 546, 178 Cal.Rptr. 568, 636 P.2d 532.) To that extent, the judgment was affirmed; in other respects it was reversed.

On April 18, 1980, three municipal court judges filed a complaint in intervention naming as defendants in intervention the auditors or controllers of some thirty counties (in addition to Los Angeles) and asking relief similar to that sought in the principal complaint.

In August and September 1980, at the request of plaintiffs, the trial court enjoined defendants from paying more than 75 percent of the back salaries due under Olson v. Cory I. (Such an order is not in the record but is inferred from references in later trial proceedings and in the briefs.) The apparent purpose of the order or orders was to secure payment of plaintiffs' attorney fees.

On October 8, 1980, the Board of Administration of the Public Employees' Retirement System was made a defendant by a stipulation reciting that it had succeeded the Controller, as of July 1, 1979, as administrator of the Judges' Retirement Fund. (See Gov.Code, § 75005, fn. 4, post.)

On the same date, October 8, plaintiffs filed a motion for "an order determining that there is no substantial controversy that plaintiffs are entitled to recover interest at the legal rate on the retroactive salary and pension payments due them pursuant to the opinion of the California Supreme Court in this action." The accompanying memorandum stated that the motion was made "pursuant to Code of Civil Procedure section 437c, for an order specifying issues without substantial controversy."

On December 12, 1980, the trial court certified plaintiffs' suit as a class action on behalf of all judges of California courts of record and all judicial pensioners under the Judges' Retirement Law.

The following month, on January 7, 1981, the trial court denied plaintiffs' motion for an order specifying their right to interest as an issue without substantial controversy. It ruled that "no interest is payable for the period prior to June 27, 1980, when [Olson v. Cory I ] became final" and that "no interest is due on amounts withheld under the court order of September 1980, which amounts cannot be paid until further order of court."

Plaintiffs filed a timely notice of appeal from the trial court's denial of the motion.


Though one of the briefs suggests that the trial court's ruling was not appealable, all the principal defendants, as well as plaintiffs, urge that we review the ruling on its merits. Nonetheless, since the question of appealability goes to our jurisdiction, we are duty-bound to consider it on our own motion. (Collins v. Corse (1936) 8 Cal.2d 123, 64 P.2d 137; DeGrandchamp v. Texaco, Inc. (1979) 100 Cal.App.3d 424, 430, 160 Cal.Rptr. 899.)

The ruling was not a final judgment. Plaintiffs' motion for the ruling was made explicitly under Code of Civil Procedure section 437c, which provides for summary judgments. After prescribing the showing necessary to support a motion for summary judgment, the section provides in subdivision (f): "[I]f it appears that the proof supports the granting of such motion as to some but not all the issues involved in the action, ... the court shall, by order, specify that such issues are without substantial controversy. ... At the trial of the action the issue so specified shall be deemed established and the action shall proceed as to the issues remaining." Subdivision (i) provides: "Except where a separate judgment may properly be awarded in the action, no final judgment shall be entered on a motion for summary judgment prior to the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for."

No judgment was entered on the trial court's order denying the motion, and the record makes clear that further proceedings were contemplated. Thus, plaintiffs' notice of class action, filed December 30, 1980, explains that the complaint sought not only declaratory relief, but also damages consisting of salary and retirement benefits, interest, and attorney fees. The notice characterizes the trial court's 1978 ruling that the 1976 amendment to section 68203 was unconstitutional as "an interlocutory declaratory judgment" and states that this court subsequently "rendered a decision" in Olson v. Cory I, reaching conclusions that are explained in detail. The notice further states: "If you are a member of the class who does not request exclusion and...

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