Metropolitan News-Enterprise


Thursday, January 23, 2014


Page 1


Justice Robert M. Mallano Files Class Action Suit for Back Pay


By MICHAEL J. PEIL, Staff Writer


Court of Appeal Presiding Justice Robert M. Mallano has filed a class action complaint against State Controller John Chiang, the judges’ retirement systems, and 100 unnamed defendants.

The complaint, filed Tuesday, seeks a declaration that since 2008, judicial salaries have been underpaid in light of the pay increases mandated by Government Code §68203.

Section 68203 provides that judicial salaries “shall be increased” each year by the average percentage of salary increases of state employees, and shall not be subject to the discretion of state officials.

The Complaint

Mallano claims that he did not receive—and does not believe that any class member—received an increase in salary or derivative benefit from 2008-14. He asserts, however, that California state employees received average salary increases of at least 0.97 percent from fiscal year 2007-08, and further increases in 2009-11 of at least 0.21 percent.

Mallano says the class of similarly situated persons for this action consists of at least 1,600 active judges and justices, and at least 1,800 judicial retirees, pension beneficiaries, and survivors. The latter group of the class, he explains, is listed because the benefits from which they are to be paid corresponds to the final judicial salaries of active judges.

Mallano asserts in his complaint that the Los Angeles Superior Court should retain jurisdiction.

Explaining that “all California judges have at least an involuntary financial interest in this case,” so the rule of necessity applies.

The filing of this complaint comes after a previous demand by Mallano for what he contended was an unlawful withholding of his judicial salary.  

In December 2013, Mallano sent an email to Chiang, a copy of which was given to the MetNews, in which he demanded full pay, as mandated by §68203.

He cited Olson v. Cory (1980) 27 Cal.3d 532, holding that the previous version of §68203, which tied the salary increases to a computation of cost-of-living increases, could not be reduced during the terms of sitting or retired judges under the state constitution.

The filed complaint alleges that Chiang did not reply, or acknowledge, his demand.

Mallano also attached to his email a letter sent to judges from Steven Jahr, the administrative director of the courts, and Butte Superior Court Judge Rob Glusman, president of the California Judges Association, , dated Nov. 27, 2013.  

In that letter, Jahr and Glusman explained that the State Department of Human Resources said judicial salaries would be increased by 0.22 percent, in accordance with the increase of average pay for state employees for the 2013-14 fiscal year.

Jahr and Glusman also recognized, however, that the attempt to increase the judicial salaries only for that year overlooked the deficient salary increases from 2008-11, which led them to contacting the Department of Finance and the Department of Human resources to address the retroactive balance prior to July 2013.

After dealing with the Director of Finance Michael Cohen, Jahr and Glusman explained, the Department of Finance agreed to take into account the two previous increases to state employees pay for purposes of computing what the increase to judges salary.

The different computation, Mallano learned, meant that he would receive a salary increase of salary increase of 1.4% retroactive to July 1, 2013. The pay would not, however, provide compensation for salary increases prior to July 1.

Mallano found this increase in retroactive pay to be unacceptable, explaining that the proposed scheme for limited retroactive pay still ignoring the 0.97 percent salary increase from 2007-08, and the subsequent 0.21% increases.  

Amount Owed

He estimated last December that a complete accounting of the additional pay he was due by law would amount to about $15,000.

Since 1978, Millano has served as on the South Bay Municipal Court, Los Angeles Superior Court, and Court of Appeal for this district.

He has filed an application for retirement with the Judges’ Retirement System to be effective Feb. 28, 2014.

Raoul D. Kennedy, James P. Schaefer, and William J. Casey of Skadden, Arps, Slate, Meagher & Flom LLP did not return calls from the MetNews yesterday for comment about their client’s suit.

Peter Allen, a senior manager at the Administrative Office of the Courts, said yesterday that his office had “no comment on pending litigation.”


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