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Seven Retired Judges Over 70 Fail to Show Age Discrimination in FEHA Action—C.A.
Opinion Says Ex-Jurists May be Barred From Return to Active Duty After Serving in Assigned Judges Program for 1,320 Days
By a MetNews Staff Writer
A group of seven retired Superior Court judges who are over the age of 70 has failed to persuade the First District Court of Appeal that a 2018 policy instituted by then-Chief Justice Tani Cantil-Sakauye barring ex-jurists from continuing to sit on assignment once they had done so for 1,320 days—the equivalent of a six-year term of office—constitutes unlawful age-discrimination based on a “disparate impact” on oldsters.
That impact, they allege, constitutes a violation of California’s Fair Employment and Housing Act (“FEHA”).
Prior to institution of the policy, while a sitting judge faces the prospect, under the state Constitution, of an election challenge every six years, a retired judge in the good graces of the chief justice could continue to serve on the bench, year after year, without the possibility of voter rejection, for a period in excess of the normal term of office, with no need for stipulation of the parties. One highly respected retired member of the Los Angeles Superior Court, Kathleen Parker, served on continual assignment for 17 years (from 1975-92) under successive orders of assignments.
Under the Cantil-Sakauye policy, put into effect on July 1, 2018 following review by the Judicial Council, a judge who is in the Assigned Judges Program (“AJP”) may receive no further assignments after putting in 1,320 days, and those who have not reached the limit may serve no more than 120 days per year. There is also now a AMP 90-day waiting period before newly retired judges may be placed on assignment.
2021 Reversal
The Court of Appeal, on July 28, 2021, reversed a judgment of dismissal of the seven judges’ action, following the sustaining of a demurrer without leave to amend, holding that while the lawsuit could not proceed on behalf of all retired judges 40 and older, leave to amend must be granted, on remand, to state a possible claim with respect to those at least age 70.
The complaint was amended; a summary judgment was awarded in favor of the defendants by San Francisco Superior Court Judge Richard Ulmer Jr.; on Friday, the First District’s Div. One, in an AMP unpublished opinion by Acting Presiding Justice Kathleen Banke, affirmed.
She wrote:
“This case presents no evidentiary doubt or ambiguities—the parties do not dispute any underlying facts relevant to the alleged disparate impact (i.e., participants’ ages and days worked before and after the 1,320 rule took effect) or the accuracy of plaintiffs’ expert’s calculations based on the data she considered. Rather, the dispute in this case is whether those calculations are legally sufficient to establish a prima facie case of disparate impact discrimination. This is a question of law.”
Statistics Not Sufficient
According to the operative pleading. “the odds of being at the lifetime limit when 70 years old or older is over four times that of a AJP participant who is not yet 70 years old.”
But statistics—and, in particular, a report by economist Elizabeth Newlon, designated by the plaintiffs as an expert—proved unpersuasive to the Court of Appeal.
Banke commented that “courts have long been concerned that exposure to liability based solely on statistical analyses of business decisions’ outcomes, without regard for their underlying intent or reasoning, could prompt quota-based decisions.”
She pointed to the U.S. Supreme Court’s 2015 decision in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc. where it weas observed that “disparate-impact liability has always been properly limited in key respects to avoid serious constitutional questions that might arise…e.g., if such liability were imposed based solely on a showing of a statistical disparity.”
The jurist said the defendants succeeded in showing that the plaintiffs lack evidence by which “to prove the causation element (i.e., that the 1,320 rule caused the disparity).” She continued:
“This shifted the burden of production to plaintiffs, obliging them to offer evidence of a causal link between the disparity and the challenged policy that would satisfy the ‘robust causality requirement’ applied at the prima facie stage of a case like this.”
That burden was not met, Banke said, declaring that Newton’s report, upon which the plaintiffs relied, lacks “substantive sufficiency to support a claim of disparate impact discrimination.”
The case is Mahler v. Judicial Council of California, A170157.
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