Wednesday, December 11, 2013
Mallano Says State Owes ‘Unlawfully Withheld’ Judicial Salaries
Presiding Justice Writes Controller, Tells MetNews He Is Confident He Will Not Have to Sue Over Retroactivity Issue
By KENNETH OFGANG, Staff Writer
Court of Appeal Presiding Justice Robert Mallano yesterday demanded payment of a portion of his salary he said had been improperly withheld from his paycheck, along with that of every other judge and justice in the state, for the past five years.
In an email to Controller John Chiang, a copy of which he provided to the MetNews, the presiding justice of this district’s Div. One said the state has been misapplying Government Code § 68203(a). The statute mandates that judicial salaries be increased each year by the average percentage salary increase for state employees.
The state has violated the law, Mallano argued, by failing to pay judges increases on two occasions within the past five years when state employees got raises.
He cited Olson v Cory (1980) 27 Cal.3d 532, which held that cost-of-living increases mandated by a previous version of the statute—the current version, tying the increases to state employee pay rather than to a standard statistical compilation of inflation, has been in effect since 1985—could not be reduced during the terms of sitting judges, based on the state Constitution.
He also attached to his email a copy of a Nov. 27 latter sent to judges by the administrative director of state courts, Steven Jahr, and California Judges Association President Rob Glusman.
In that letter, Jahr and Glusman explained that earlier this year, the State Department of Human Resources, also known as CalHR, said that judicial salaries would be increased by 0.22 percent, representing the average pay raise for represented state employees for the 2013-2014 fiscal year.
“Because it overlooked a 0.97 percent increase from 2008–2009, which was not authorized f or funding at that time due to the deepening recession, as well as a 0.21 percent increase between 2009–2010 and 2010–2011, the Judicial Council and the California Judges Association (CJA) jointly contacted the directors of the Department of Finance... and CalHR to address this oversight in the application of Section 68203(a),” the judges wrote.
The Administrative Office of the Courts, they explained, was aware in 2008 that the
Schwarzenegger administration, by not funding the increase for judges, was acting in a manner inconsistent with the law as the AOC interpreted it.
“After protracted discussions with the Administration at that time, judicial branch leadership elected to defer rather than to formally contest addressing that decision,” they wrote. “The Administrative Office of the Courts , acting on behalf of the Judicial Council, and CJA did so because the state was then descending into its worst recession since the 1930’s, resulting in the successive years of significant staff attrition that courts throughout the state have experienced.”
This year, Jahr and Glusman reported, they persuaded state Director of Finance Michael Cohen to take the two prior increases for rank-and-file employees into account in the calculation, so that judges will receive a 1.4 percent increase retroactive to July 1 of this year.
That’s unacceptable, Mallano said yesterday, because the judges should have gotten the 0.97 increase five years ago, and another 0.21 percent increase after that, and those amounts should now be paid retroactively as well. In his case, he said, it amounts to about $15,000 in additional pay that he is entitled to by law.
CJA, the AOC, and the Judicial Council have no authority to give away what he and his colleagues are entitled to by statute, he wrote the controller.
“None of those entities, either alone or acting together has the authority to give up a judge’s lawful claim for his or her judicial salary, including my own,” he told Chiang. “And neither the past administration nor the present one can lawfully refuse to follow section 68203(a).”
Lack of Information Claimed
Mallano, who has been a judge since 1978 and is set to retire Feb. 28, told the MetNews yesterday he had been unaware until recently of the prior discussions with the Schwarzenegger administration, or he would have raised the issue earlier.
“I and most of my colleagues voluntarily gave up 5 percent of our salary” in 2009-2010 in order to help the courts balance their budgets, he noted. He might not have done it if he had known that state officials “were denying me my constitutional pay.”
Mallano emphasized that he is not “groveling for a raise,” but simply asking that he and his colleagues receive what is legally theirs. And now that there’s a budget surplus, he added, Chiang “can write the check.”
He said he truly is optimistic that litigation over the issue will be unnecessary.
“I think the controller is going to talk to [his] lawyers, and the lawyers are going to say the judges are entitled to the money,” he explained.
Jahr told the MetNews that he had spoken to Mallano, who had contacted him a few days ago to inform him of his plan to send Chiang the letter. The courts director is a retired judge who served with Mallano on the state Trial Courts Budget Commission in the 1980s.
“I understand what his point is,” Jahr said, adding that the conversations he and Glusman had with Cohen were “in the nature of advocacy” and that he was not claiming any authority to negotiate on behalf of the state’s judges. He added that while they were “aware” of the discussions that were had with the prior administration, he was “not conversant” as to what information, if any, the affected judges received at the time.
Jahr retired from the Shasta Superior Court in 2009 and took over his present post in October of last year.
“We need to look forward,” he said yesterday.
Copyright 2013, Metropolitan News Company