Metropolitan News-Enterprise


Friday, December 18, 2015


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State’s Judges Entitled to Retroactive Raises, Berle Rules

Class Action Was Brought by Retired Court of Appeal Presiding Justice Robert M. Mallano




The state of California has failed to provide judges with salary increases mandated by statute, Los Angeles Superior Court Judge Elihu Berle has ruled.

In a decision issued Wednesday, Berle sided with the state’s judges in a class action brought by retired Court of Appeal Presiding Justice Robert Mallano. Mallano filed suit in January of last year, four weeks before he retired from the bench, naming then-state Controller John Chiang and others as defendants.

Berle said the judges are entitled to a declaration that the state has not paid them the amounts mandated by Government Code §68203.

That section 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.

Years of Non-Complience

Berle said the state has been out of compliance with the statute since 2008. He rejected the argument that “decreases” in state employee compensation, including those resulting from furloughs imposed during the fiscal years beginning July 1, 2009 and July 1, 2010, should be figured into the calculation.

The judge wrote:

“Section 68203(a) uses the exclusive term ‘average percentage salary increase.’…The statute does not use the term ‘average percentage salary increase or decrease’; nor ‘average percentage salary net increase’; nor ‘average percentage salary change.’”

The state’s position, he said, was contrary to the plain statutory language.

State employees, Berle noted, receive average salary increases of 0.97 percent for fiscal year 2007-08, and increases of 0.10 percent and 0.11 percent in the following two years. There were then no increases for two years; and then increases of 0.22 percent, 1.83 percent, and 2.4 percent for FY 2013-14, 2014-15, 2015-2016, respectively, the judge said, citing California Department of Human Resources (“CalHR”) statistics.

The judges, he declared, are entitled to their mandated increases, based on the CalHR statistics, plus interest of 10 percent per year, court costs, and attorney fees pursuant to the private attorney general statute.

Harris Blasted

Mallano’s attorney, Raoul D. Kennedy of Skadden Arps in Palo Alto, told the MetNews he hoped “we can bring this matter to closure.” He criticized Attorney General Kamala Harris for opposing the judges, suggesting she was “too busy running for the [U.S.] Senate to stop her people from taking unprincipled positions.”

The attitude of state officials, he said, was that the judges didn’t deserve the raises because “they haven’t suffered through the agony of the recession with the rest of us.” But there is “no pain exception in the statute,” he said, adding that the judges in fact did their share, because 90 percent of them heeded calls from branch leaders to take voluntary pay cuts as the economy declined and court budgets were slashed.

A spokesperson for the attorney general referred a request for comment to the Controller’s Office. But a spokesperson for Chiang’s successor, Controller Betty Yee, said the office would have no comment because its role in the process is “ministerial,” since it pays whatever amounts CalHR tells it to pay, in what are called “exempt pay letters” or “written pay letters.”

The controller asserted the lack of such letters as a defense to Mallano’s action, but Berle noted in his decision that the issuance of such a letter is not a prerequisite to payment under the statute.

At the time the action was filed, Mallano estimated that the plaintiff class consisted of at least 1,600 active judges and justices, and at least 1,800 judicial retirees, pension beneficiaries, and survivors, whose benefits are tied to judicial salaries.

The case is Mallano v. Chiang, BC 533770.


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