Metropolitan News-Enterprise


Thursday, September 29, 2011


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Judges Cannot Be Disciplined for Authorizing Their Own Benefits, CJA Tells Attorney General


By a MetNews Staff Writer


The California Judges Association has come to the defense of bench officers who may have authorized supplemental compensation to be paid to themselves from public funds, contending that state law protects them from discipline or prosecution.

Then-CJA President Keith Davis, writing to Attorney General Kamala Harris on Aug. 16, insisted the Legislature “clearly intended to authorize supplemental compensation to judges retroactively” in enacting SBX2 11, “thereby clarifying that any such benefits received by judges are, and were, legal.”

Harris’ office invited the CJA’s comments after receiving a request for an opinion from the Commission on Judicial Performance. The response by Davis, whose term as president ended earlier this month, was posted this week on the website, which has been reporting on local benefits paid to San Luis Obispo Superior Court judges.

The Commission on Judicial Performance submitted two questions to Harris in late May, inquiring as to the scope of this legislation, passed in 2009 and adjudged by the Fourth District Court of Appeal last year to have adequately addressed the deficiencies which had led it to declare supplemental benefits unconstitutional in Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630.

SBX2 11, by Senate President Pro Tem Darrell Steinberg, D-Sacramento, directed that counties and courts that were supplementing judges’ salaries continue to do so, subject to termination on 180 days’ notice. The bill also immunized all public entities and officers against any liability resulting from past payment of local judicial benefits.

Benefits have been paid to the Los Angeles Superior Court’s judges since the 1980s, including participation in the “MegaFlex” cafeteria benefits program—which allows a beneficiary to receive additional taxable income equal to 19 percent of salary, or benefits costing the county an equal amount—along with a “professional development allowance” and a 401(k) match of up to four percent of the judge’s salary.

CJP Director and Chief Counsel Victoria B. Henley told Harris that “[t]here is a conflict between the grant of immunity in section 5 of SBX2 11 and the commission’s constitutional authority to discipline judges,” and that her group felt the Legislature “cannot directly or indirectly remove that authority, or authorize it to be performed by any other authority.”

She further suggested that the bill was not a retroactive authorization of past supplemental benefits, but merely identified “which judges are permitted as of the effective date of SBX2 11 to continue receiving supplemental compensation from the effective date forward, on the terms and conditions in effect on July 1, 2008.”

Harris, in June, invited judicial groups and others to weigh in on the matter.

Davis argued that “the Legislature’s plenary powers give it the authority to shield from liability, even retroactively, actions by state employees and judges” and the separation of powers doctrine “is not implicated where a narrow area of conduct is excepted from CJP’s disciplinary reach.”

Davis said that “the Legislature’s plenary authority encompasses the power to enact laws that significantly affect the Judiciary, including matters of judicial discipline” and that the prohibition in SBX2 11 “would not defeat or materially impair the CJP’s role in California’s scheme of judicial discipline,”  but only “removed a potential ground for discipline, i.e., a judge’s receipt of employment benefits before the effective date of the law.”

As for the question of the law’s retroactivity, Davis said “it makes no sense to authorize the benefits only as of the date of enactment of SBX2 11, if the purpose is to retain qualified applicants for judicial office and to recognize that trial court judges relied on the existence of these longstanding benefits provided by the counties and court prior to court unification.”

Additionally, he said the Legislature “makes clear its intent that supplemental judicial benefits received prior to the effective date of the act are authorized by law” as the statutory language specifically refers to judges who “received” supplemental benefits, and provides that they “shall continue to receive” the benefits that were in effect as of July 1, 2008.

“The words ‘received’ and ‘shall continue’ can only refer to actions started in the past and that should now be on-going,” Davis said.

He further noted that the language providing “no governmental entity, or officer or employee of a governmental entity, shall incur any liability or be subject to prosecution or disciplinary action because of benefits provided to a judge under the official action of a governmental entity prior to the effective date of this act on the ground that those benefits were not authorized under law”  would be “meaningless” if the law were not retroactive.


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