Metropolitan News-Enterprise


Friday, July 30, 2021


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Ex-Judges’ Suit Assailing Policy of Cantil-Sakauye Restored

Court of Appeal Declares Challenge to Limiting Active-Duty Assignments of Retirees to Cumulative 1320 Days May Be Repled Under Fair Employment and Housing Act Pursuant to Theory of Disparate Impact on Elderly


By a MetNews Staff Writer


The First District Court of Appeal has reinstated an action challenging Chief Justice Tani Cantil-Sakauye’s new policy against granting to a retired judge more days of service on assignment than would be spent on the bench by someone elected to a six-year term on a superior court, giving the green light to an amending of the complaint to fine-tune a cause of action based on an alleged disparate impact on the elderly.

Damages cannot be garnered from the defendants—the Judicial Council and Cantil-Sakauye—the opinion declares, citing judicial immunity, but says that declaratory relief might be available, and possibly injunctive relief.

Writing for Div. One, Justice Kathleen Banke said in an opinion filed late Wednesday that the plaintiffs, eight retired Superior Court judges, are entitled to another chance at stating a cause of action under the state’s Fair Employment and Housing Act (“FEHA”). The plaintiffs, who have long participated in the Assigned Judges Program (“AJP”), under which they reassume judicial duties under stints pursuant to assignments by the chief justice, contend that capping cumulative service at 1,320 days violates Government Code §12940(a), contained in the FEHA.

Age Discrimination

That section renders it unlawful for an employer “because of the…age…of any person, to refuse to hire or employ the person…or to bar or to discharge the person from employment…or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”

The first amended complaint sets forth that “discriminatory actions” by the Judicial Council and the chief justice “constitute unlawful discrimination in employment on account of age,” adding:

“Further, they are not based on any bona fide job qualifications in that limiting an Assigned Judge to 1,320 days of service is not necessary to the AJP, is inefficient and wasteful, and is contrary to law and public policy.”

The Judicial Council is sued in its capacity as an employer and Cantil-Sakauye is named based on her capacity as chair of that body.

The chief justice made the AJP policy changes on May 21, 2018, after a review by a Judicial Council Committee and a survey of views by the Judicial Council’s staff of the views of Superior Court presiding judges and others. Implementation of the policies—which include a 90-day waiting period for a judge to join the program after retiring and a 120-day per-year limit on serving on assignment—began on Jan. 1, 2019.

(Cantil-Sakauye gave herself some wiggle-room, providing for the making of exceptions to the rules.)

Legislative Immunity

San Francisco Superior Court Judge Ethan P. Schulman on Aug. 8, 2019, sustained a demurrer without leave to amend solely on the basis of legislative immunity which, he noted, “bars actions against judicial officers when they act in a legislative capacity.” In her opinion affirming the Aug. 21, 2019 judgment of dismissal, Banke agreed that legislative immunity is implicated, but said that judicial immunity is, also.

Banke said there “can be no serious dispute that the Chief Justice’s promulgation” of revisions in AJP “was legislative in character” and that legislative immunity applies, but added that such immunity pertains only to Cantil-Sakauye’s “role in formulating and promulgating the policies and rules that govern the program” and not her assignment-making.

The making of assignments, she declared, is a judicial function, bringing into play a consideration of the breadth of judicial immunity. The justice noted that California courts have devoted scant attention to this matter. “[I]t is generally recognized by the federal courts that judicial immunity, unlike legislative immunity, does not foreclose suit for prospective declaratory relief and in limited circumstances does not foreclose injunctive relief,” Banke wrote, proceeding to indicate:

“Since it appears to be the universal view of the federal courts, with sound basis, that the common law doctrine of judicial immunity has never foreclosed declaratory relief, we take that view, as well.”

Banke pointed out that a cause of action based on a “disparate impact” requires a showing that facially neutral employment policies in fact “have such significant adverse effects on protected groups” as to be akin to intentional discrimination. She assessed the retired judges’ pleading of such a cause of action as being defective based on containing merely conclusory allegations.

“[T]he complaint must allege facts or statistical evidence demonstrating a causal connection between the challenged policy and a significant disparate impact on the allegedly protected group,” she set forth.

In proclaiming that, on remand, leave to amend must be granted, Banke dismissed the defendants’ contention that case law precludes an action by the retired judges, saying:

“[W]e disagree with defendants that a disparate impact age discrimination claim cannot, as matter of law, be based on disparate impact on an older subgroup within the class of persons protected under the FEHA, namely employees forty years of age and older. No California court has squarely addressed this issue, and while several federal circuit courts have held ‘sub-class’ disparate impact age discrimination claims are not viable under the [federal] Age Discrimination in Employment Act (ADEA), the majority view is now to the contrary. We find the reasoning of these recent cases more persuasive than that of the older cases and conclude it is in keeping with our Legislature’s stated intent that the FEHA age discrimination provisions be liberally construed to achieve its salutary purposes.”

The plaintiffs, and the counties in which they sat on the superior court, are Glenn Mahler and James H. Poole, Orange; Julie Conger, Sonoma; Edward M. Lacy Jr., Stanislaus; William S. Lebov, Yolo; John C. Minney, Contra Costa; John Sapunor, Sacramento; and F. Clark Sueyres, San Joaquin.

The case is Mahler v. Judicial Council of California, 2021 S.O.S. 4236.


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