Metropolitan News-Enterprise


Friday, June 10, 2005


Page 1


C.A. Rejects Local Superior Court Reporters’ Suit Over Pensions


By Kenneth Ofgang, Staff Writer/Appellate Courts


Fees paid to official court reporters for transcripts of felony trials cannot be included in calculating wages for pension purposes, the Court of Appeal for this district ruled yesterday.

The court affirmed Orange Superior Court Judge William M. Monroe’s denial of a writ of mandate sought by the reporters’ unions and individual reporters. The Div. Five panel said Monroe correctly applied the governing statutes, as well as a prior Supreme Court ruling that dealt with the subject.

Justice Orville Armstrong explained that reporters are paid an hourly wage for 40 hours of work each week, and those wages are “pensionable.” Fees for preparing transcripts in felony cases, where court or party requests one or an appeal is filed, are paid according to statute, with the reporters being treated as independent contractors for that purpose, so the fees do not count as part of the base on which pensions are calculated under the County Employees’ Retirement Law.

That law provides that retired county employees—court reporters were considered county, rather than court, employees prior to 2002 and are still covered by the law—are entitled to a pension calculated as a percentage of “final compensation.”

Compensation Defined

 The law defines compensation as “the remuneration paid in cash out of county or district funds, plus any amount deducted from a member’s wages for participation in a deferred compensation plan.” Final compensation is the average annual compensation “during any three years or before the time [the employee] files an application for retirement.”

 In McNeil v. Board of Retirement (1958) 51 Cal.2d 278, the Supreme Court held that transcript income was outside the definition of compensation.

 The justices noted there that the retirement law, which had previously excluded court reporters from county retirement systems, was amended in 1945 to provide for the inclusion of “‘phonographic reporters who are paid salaries or per diems by the county and whose contributions shall be based upon such salaries or per diem.”

  That language, the Supreme Court reasoned, reflected legislative intent that transcript income not be included in reporters’ income for pension purposes. The court also noted that persons “employed under contract for temporary services” were excluded from coverage under the law and reasoned that reporters, when preparing transcripts outside their regular duties, are acting as temporary contract workers.

Attorney General’s Opinion

The McNeil court cited a 1954 opinion of the attorney general, who concluded that court reporters’ transcript fees were not “compensation earnable” under the retirement law.

Armstrong yesterday rejected the argument that the nature of transcript preparation has changed, and that those duties should no longer be considered “temporary.” The court is still bound by McNeil, he concluded.

Attorneys on appeal were Thomas J. Wicke of Lewis, Marenstein, Wicke & Sherwin and David J. Duchrow for the reporters and Paul W. Cane Jr. and Elizabeth A. Falcone of Paul Hastings, Janofsky & Walker and Elwood Lui, Scott D. Bertzyk, and Kirstin Poirier-Whitley of Jones Day for the court.

The case is Cramer v. Superior Court, 05 S.O.S. 2750.


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