Metropolitan News-Enterprise
 
Tuesday, September 3, 2024
 

Los Angeles Superior Court Complaint:
Judges, Justices Receiving Lower Pay Than Law Requires

Pleading Says State Is Failing to Follow Dictates of Statute; if Successful, Annual Increases Would Be Computed by Taking Into Account All Salary Hikes of Other Employees, Back Pay Would Be Owed, Retirement Benefits Affected
 
By Roger M. Grace, editor
 
A complaint is slated to be filed today in the Los Angeles Superior Court seeking higher salary payments to every California Superior Court judge and all members of the courts of appeal and the Supreme Court based on the contention that the state has been using an erroneous method of calculating how much compensation jurists are entitled to receive.
“Judges and justices play a critical role in our society,” the complaint says. “Yet, for years, the judges and justices serving California’s court system—the largest in the nation—have been knowingly underpaid by Defendant the California Department of Human Resources (‘CalHR’)….”
If the action is successful, back pay will be required—likely to be in the thousands of dollars for each judge and justice—and retirement and survivorship benefits will be impacted.

Gilliard Brings Suit

Sacramento Superior Court Judge Maryanne G. Gilliard, a director of the Alliance of California Judges, is the plaintiff/petitioner, suing on behalf of herself and in a representative capacity. Declaratory relief and issuance of a writ of mandate are sought.
The pleading, prepared by the law firm of Skadden, Arps, Slate, Meagher & Flom LLP, alleges that there is a continual violation of Government Code §68203(a). That statute says that on July 1 of each year, “the salary of each justice and judge….shall be increased by the amount that is produced by multiplying the then current salary of each justice or judge by the average percentage salary increase for the current fiscal year for California state employees.”
That isn’t being done, the complaint asserts.

  Under-Reporting Alleged

Sec. 68203(b)(1) sets forth that “[f]or the purposes of this section, average percentage salary increases for California state employees shall be those increases as reported by the Department of Human Resources to the State Controller in a pay letter.”
The complaint alleges that CalHR has under-reported the average increase of employees’ salaries by considering only general salary increases (“GSIs”) and has not taken into account special salary adjustments (“SSAs”) which the pleading defines as “salary increases that apply only to certain ‘classifications’ of employees.”
Through negotiations with unions, SSAs are granted by CalHR to specified categories of employees in the state’s bargaining units, of which there are 21.
The complaint avers:
“Additional categories of salary increases include, but are not limited to, increases authorized to meet recruiting challenges, increases to obtain qualified employees, increases to correct salary inequities, and increases to give credit for prior state service.”

‘Clear and Unambiguous’

The document alleges (with paragraph numbering removed):
“By 1979, when Section 68203 of the Government Code was amended to require that judicial salaries were to be increased on an annual basis by reference to the salary increases of other California state employees, there was no question that SSAs were a form of salary increases.
“The language used by the Legislature in enacting Section 68203 is clear and unambiguous: the phrase ‘average percentage salary increase’ means exactly what it says.
“ ‘Average percentage salary increase’ refers to the ‘average’ of all ‘salary increases’ for California state employees, which are expressed as ‘percentage[s].’ ”
It points out that since 1979, §68203 has been amended at least six times and contends that if the Legislature wanted to tie increases in judicial salaries to a single type of pay boost conferred on nonjudicial employees, it could have done so on those occasions.
Undisputed is that both SSAs and GSIs were taken into account by CalHR in reckoning the average pay boosts of state employees during the 2006-07 fiscal year.

CalHR’s Position

Asked by Shelley Curran, administrative director of the Judicial Council, for an explanation of its computations, CalHR Director Eraina Ortega said on April 29:
 “CalHR has consistently used the same methodology for calculating judge salaries for many years, and not included special salary adjustments in these calculations, but instead included general salary increases.”
She added that “CalHR believes this is an appropriate methodology based on the language of the applicable statute.”
On June 25, a spokesperson responded to an inquiry from the METNEWS to Curran, declining to go beyond the April 29 statement.

 Plaintiff Comments

Gilliard told the METNEWS:
“For years, judges have relied on the state to faithfully calculate judicial salaries according to the law. We had no reason to suspect the state would fail to follow the law but that is what has occurred. As a result, for years, judges have been denied their just compensation.
“We are not asking for a pay raise. We are simply asking the state to follow Government Code Section 68203. The law should apply to everyone, even judges.”

Five Defendants

Defendants are CalHR, Ortega, state Controller Malia Cohen, and the California Public Employees’ Retirement System and its Board of Administration.
The complaint, in addition to seeking declaratory and writ relief, asks for pre-judgment and post-judgment interest plus attorney fees.
Although court commissioners—who are employees of counties—are not included among those for whom the complaint seeks relief, it appears that they would be benefitted if Gilliard’s action succeeds, although additional litigation might be needed. Government Code §69894.1 provides that such bench officers are paid 85 percent of what judges make.
State Bar Court hearing officers would apparently also be affected. They receive, pursuant to Business & Professions Code §6079.1(d), “91.3225 percent of the salary of a superior court judge” except the presiding judge, who “shall be paid the same salary as a superior court judge.”
Administrative law judges seemingly would not be impacted.

Mallano’s Action

A failure to adhere to §68203 was established in an action brought in 2014 in the Los Angeles Superior Court by then-Court of Appeal Presiding Justice Robert M. Mallano who headed this district’s Div. One and is now retired.
Back pay and interest amounting to about $40 million went to retired and sitting jurists after Judge Elihu Berle on March 10 2016, awarded judgment in favor of Mallano and the class he represented, the Court of Appeal in 2017 affirmed, and the California Supreme Court in 2018 denied review.
Mallano advised the METNEWS, as reported on June 26, that further litigation was impending based on the state’s alleged dodging of its duty established in Mallano v. Chiang.
Skadden Arps also represented the judges and justices in that action. Jack P. Dicanio is the lead attorney in Gilliard’s lawsuit, joined by Caroline Van Ness, Joshua S. Brown, and Samantha Kaplan, all of the Palo Alto office.
 

Copyright 2024, Metropolitan News Company


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Tags: In The News

• Approximately 12,520 members of the International Union of Operating Engineers received SSAs. Depending on the job categories they were in, their salaries went up by 3, 4 or 5 percent, with a few increases at other levels (such as the pay of a lead automobile mechanic going up by 4.41 percent).
• The California Correctional Peace Officers Association, which represents about 31,000 state employees, won a 3 percent general pay hike for all members (with thousands of them at three prisons getting one-time $10,000 “retention bonuses.”) Employees in numerous categories received SSAs in addition to the three percent, at varying rates, including a captain at an adult facility garnering an added 6.25 percent.
• The powerful Service Employees International Union secured a 3 percent escalation in salaries for all members for 2023, 2024, and 2025, but with some favored with 4 percent or 5 percent SSA enhancement, and a few in odd amounts, up to 15.80 percent.
• All employees in one bargaining unit received a 3 percent pay boost while administrative law judges drew 4.5 percent SSA increases.

Mallano’s Inquiry

Mallano related:
“I contacted the Judicial Council in December and it inquired of CalHR about my claim, and after four months, CalHR said that it has been doing it that way, and is not changing. No legal justification was offered.

“I know from my time on the Judicial Council in the 1990s that special salary adjustments, or whatever they were called then, had been included.”

He said that he does not anticipate CalHR being able “to provide a valid legal position.”

New Class Representative

The former jurist—who served as a presiding judge of the Los Angeles Superior Court in 1993 and 1994—said that if litigation is filed on behalf of the state’s judges, the class representative will be Sacramento Superior Court Judge Maryanne Gilliard. She was director of the California Alliance of Judges which has questioned the soundness of the judiciary’s management and was instrumental in 2014 in bringing about an end to the Administrative Office of the Courts (or a “retirement” of its name, as the Judicial Council put it).

Mallano noted that Gilliard contacted him in December to query if judges are receiving the full amount to which they are entitled, and he advised that they are not.


“Because I am 85 years old, and no longer buy the green bananas, I didn’t want to undertake another Mallano vs. Chiang matter, which took five years to complete,” he explained. “So Judge Gilliard is taking up the mantle.

“I have great confidence in her for her diligence, determination, and integrity. I contacted Skadden, Arps, Slate, Meagher & Flom LLP, the firm that representing me in Mallano vs. Chiang, and a retainer agreement was finalized between Judge Gilliard and Skadden.”

(The nominal defendant in Mallano vs. Chiang was then-state Controller John Chiang.)

Mallano commented that he hopes that CalHR “realizes its position is hopeless, and unless it corrects its deficiencies, it will be facing another lawsuit like Mallano vs. Chiang, in which the state had to pay Skadden over $1 million dollars in attorney fees, and judges $20 million in interest” in addition to back pay.

“The judges are on their own here,” he remarked. “No help will come from the Judicial Council or the chief justice.”

Gilliard’s Comments

Gilliard said:

“I am proud to have the fine lawyers at Skadden Arps representing me on this issue, as there have been multiple instances of special salary adjustments paid out to state workers which have not been factored into judicial salary increases.

“I am hopeful CalHR will determine they had no legal basis to exclude these raises when calculating judicial salaries and make this right.”

She said of Government Code §68203:

“The statute is clear: judges are entitled to the average salary increase of all state workers except those who work for our Cal State and University of California systems, the legislative branch, and the judicial branch.”

CalHR’s Position

Responding on April 29 to an inquiry from Shelley Curran, administrative director of the Judicial Council, CalHR Director Eraina Ortega said that “CalHR has consistently used the same methodology for calculating judge salaries for many years, and not included special salary adjustments in these calculations, but instead included general salary increases.” She added that “CalHR believes this is an appropriate methodology based on the language of the applicable statute.”

Last Friday, Jack P. DiCanio, head of litigation in Skadden’s Palo Alto office and co-chief of the firm’s West Coast litigation practice, sent a letter to Ortega announcing that he is representing Gilliard and pointing out:

“Section 68203 does not contain any limitations on which salary increases should be included in the calculation of ‘average percentage salary increases’ and, more specifically, does not contain any express prohibition against including SSA….Thus, we respectfully request you explain the specific legal basis for excluding SSA, and any other types of salary increases, from CalHR’s calculation under Section 68203.”

He added:

“Moreover, we note your comment from that correspondence that CalHR has used the current ‘methodology,’ which omits SSA, ‘for many years’…This comports with our understanding that, in years past, SSA have been included in the calculation.”

The lawyer sought information from Ortega, including “[w]hen and why the decision was made to exclude SSA from that calculation.”

A Public Records Act request was also made seeking, among other things, “All documents showing any salary increases for California state employees, including but not limited to any ‘general salary increases’ and/or ‘special salary adjustments,’ beginning with the fiscal year commencing July 1, 2013.”

The amount of money to which judges are entitled, if the position of Mallano and Gilliard ultimately prevails, is uncertain at this point.

A comment was sought from Ortega. A spokesperson yesterday responded by repeating a portion of the language in Ortega’s April 29 email to Curran.
 
Copyright 2024, Metropolitan News Company

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