Metropolitan News-Enterprise


Tuesday, September 11, 2012


Page 3


Ninth Circuit Throws Out Ex-Commissioner’s Suit Against Judges


By a MetNews Staff Writer


Contra Costa Superior Court judges are immune from liability for allegedly changing the qualifications for serving as a subordinate judicial officer in retaliation for a temporary commissioner’s election challenge to an incumbent, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

 “While the timing and targeted effect of the Superior Court’s policy are certainly suspicious,” Judge Richard A. Paez explained, the court could not reach the merits because the defendants were  acting in a legislative capacity as members of the court Executive Committee, and thus entitled to immunity.

The plaintiff, Denise Schmidt, was a temporary Walnut Creek-Danville Municipal Court commissioner when the county trial courts were unified in 1998. She then served as a temporary Superior Court commissioner, working part-time and paid on a per diem basis.

According to her opposition to the defendants’ summary judgment motion, she remained an active State Bar member until 2001 or 2002, when she was informed by the State Bar that as a part-time judicial officer not actually practicing law, it was appropriate for her to be an inactive member. She then was granted inactive status, she declared, retroactive to 1998 and received a refund of her active-member dues.

Fails Badly

Schmidt failed badly in her March 2004 primary challenge to Judge John Sugiyama. Two months later, the committee adopted its new policy requiring all temporary judges, commissioners, and referees to “be active members in good current and historical standing of the State Bar of California for a minimum of five consecutive years immediately preceding each day of service.”

 Schmidt also applied for a permanent commissioner appointment, but was not selected. She sued Executive Committee members Judges Thomas Maddock, Laurel Brady, Lois Haight, and Barry Baskin, among other defendants, for violation of her First Amendment right to run for office. She also pled other federal claims for the violation of her rights under the Takings Clause of the Fifth Amendment and the Bill of Attainder Clause, and equivalent claims under the state Constitution.

Legislative Immunity

Paez explained that legislative immunity applied because the committee adopted the policy under authority granted by the Government Code and Rules of Court, and because the committee exercised “[t]he hallmarks of traditional legislation,” including “the use of discretion, the making of policy that implicates budgetary priorities and the provision of services, and prospective implications that reach beyond the particular persons immediately impacted.”

The jurist wrote:

“Although the timing of the Policy and its targeted effect on Schmidt certainly call the Defendants’ motives into question, it is not for the courts to determine whether legislators had ‘dishonest or vindictive motives’ when they passed a specific piece of legislation.”

Paez was joined by Judge Jay Bybee and visiting jurist Sarah S. Vance, chief district judge of the Eastern District of Louisiana.

In a separate memorandum disposition filed concurrently with the opinion, the court rejected Schmidt’s  claim against Contra Costa County alleging a policy of violating civil rights, her claim of rongful termination in violation of public policy and her challenge to the district court’s denial of her request and motions for additional discovery.

The case is Schmidt v. Contra Costa County, 11-15563.


Copyright 2012, Metropolitan News Company