Proposed Amendments To Government Code Section 68203 Should Be Rejected

Posted on June 16, 2016

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On May 20, the California Judges Association announced it had “averted a proposed repeal of an essential judicial salary statute,” Government Code section 68203, which establishes the formula whereby judicial officers receive pay raises based on an average of raises received by other state employees. It has since been revealed that CJA President, Eric Taylor, flew to Sacramento to meet with representatives of the Department of Finance and others to negotiate the proposed “compromise” amendments to section 68203. The announcement referred to a pending lawsuit which has resulted in a judgment that is now before the Second District Court of Appeals.

Last week we forwarded a Metropolitan News article regarding objections to this proposed amendment of section 68203 raised by the lead plaintiff in that class action, Retired Justice Robert Mallano. The budget trailer bill that would amend section 68203, which we understand will be voted on this evening in the Assembly, is attached; the language amending section 68203 can be found at pages 21- 23. In a nutshell, the amendments would change how future raises would be calculated and severely limit “any award of interest on an order to pay unpaid salary or judicial retiree benefit increases pursuant to this section.”

We feel it is imperative that we clarify what has occurred and how it affects sitting and retired judges and justices. Since the class was certified in Mallano v. Chiang, we are all plaintiffs in that suit and can discuss this case which affects our personal interests. Moreover, the statute involves the administration of justice and therefore judges may take a position and discuss that position with lawmakers and other interested parties. Justice Mallano has done so, and his analysis of the bill is reprinted below.

We are attempting to communicate to legislators and their staff that CJA has no authority to agree to any amendments to this statute on behalf of the judges of this state or take any action that affects the Mallano lawsuit, and that the “compromise” negotiated by CJA is not one agreed to by the plaintiff class or its lead plaintiff, Justice Mallano. Contrary to what legislators have been told, this bill was NOT the product of negotiations between the Executive and Judicial branches. The bill is bad policy and it should be rejected. We urge any of you who have contacts at the Capitol to make calls and send emails to your legislators and their staffers to convey your objections to this trailer bill as well. Time is short.

Directors, Alliance of California Judges

 

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As class plaintiff in Mallano v. Chiang, certified to represent the class consisting of all the judges and JRS-I and JRS-II beneficiaries, I feel obligated to defend the judgment in the case in favor of the class against political interference in the form of the proposed amendment to Government Code section 68203 which the California Judges Association is supporting. In order to place in context the proposed amendments to Government Code section 68203, I will explain some of the defendants’ contentions in the law suit.

First, the business about deleting in subparagraph (b) “salary increases … Reported by the Department of Human Resources,” and adding in subparagraph (b)(1)(A), “as reported by the Department of Human Resources to the Controller in a pay letter”:  This change lets the Controller off the hook in future law suits. This change doesn’t help the taxpayers any; it just complicates further law suits and insulates the Controller from failing to follow the law.

Second, the “net” language and the “net average percentage salary increase” language would be disastrous if there were furloughs in the future, as I will explain after some background.

What happened in 2008 – 2011 was that 1.4% raises were given state employees.  Judges weren’t given those raises until July 2013, but the Department of Finance thought “it wasn’t fair” to give the salary raises owing since 2008 (totaling $10,018 for Superior Court judges), because of the state employee furloughs (ignoring that 80% of the judges in California donated 4.62% of their salary for 10 months).  When I got the CJA/Jahr letter, I was prompted to file the law suit because if we were being given the raises based on 2008 et seq. raises in July 2013, it was apparent to me that we should get them from 2008.  The trial court asked two questions on this: (1) Did the state employees get the 1.4% raises (AG’s answer: yes); (2) Why did the judges get the raises based on 2008 state employee raises in July 2013, if the furloughs had cancelled out any raises? (The AG argued there were no raises given state employees after the furloughs were factored in.  Although the Department of Finance had reported the 1.4% raises in segments of .97%, .21% and .22% each year they were given, the Department of Finance came up with a new table after the law suit was filed, at the direction of a defense attorney, netting out the raises.)  In response to the trial court judge’s question, then if the furloughs netted out the raises, why pay them starting July 2013, the AG’s surprising and even shocking answer was “it was a political decision.”  Now our salaries are “political”!  The purpose of 68203 was to take politics out of judges pay issues.

Here’s the disaster that can happen under the amendment:  In year X,  State employees are given a 5% raise and one day’s furlough for a year (not so far fetched as they got a 1.4% raises and were furloughed a day a month).  The judges get no raise.  In year X + one, the furloughs cease and the state employees keep receiving the raises in year X.  What do the judges get in year X + one?  Zero.  The temporary furlough cancelled the judges’ raises, but not the state employees.

The interest provision in subparagraph (f) is as we discussed: the proposed amendment seeks to all but wipe out the legal interest we are entitled to under the law.  If the state employees sue for their raises and win, they get 10% pre-judgment interest; if judges sue and win, .05% at today’s rates.  Pure and simple anti-judge discrimination. The prejudgment interest is approximately $5,000.00 per judge. To be very clear, I am not conceding and will not concede that in the lawsuit that is pending.

This is a trailer bill which will go into effect immediately per section 19.

This legislation is garbage: spiteful retaliation by the Department of Finance.  I think judges ought to do every thing they can to defeat this.  We should contact every public official whose salary is linked to a judges’ salary or who might aspire to such a job as they are termed out.  Judges who have close relationships with legislators should contact them, too.

–Robert Mallano, Retired Justice of the Court of Appeals

709 Public Employee Benefits (Link)