By Ed Mendel
Monday, March 31, 2014

A class-action lawsuit contends that California judges are owed back pay and a pension increase because their salary, frozen for five years, did not keep pace with average increases in state worker pay as required by law.

A presiding judge of the 2nd District Court of Appeal, Robert Mallano, who retired last month, filed the lawsuit in Los Angeles Superior County Court on Jan. 21, suing state Controller John Chiang and two CalPERS retirement systems for judges.

The suit said the defendants have “no discretion regarding the duty” to pay the salary increases required by law and “to increase the payment to retired justices and judges and judicial pension beneficiaries and survivors.”

While judicial salaries were frozen, said the suit, state workers received average salary increases of 0.97 percent in fiscal 2008-09, followed by increases of 0.21 percent in 2009-10 and 0.22 percent in 2013-14.

Judges were told last November they would receive a 1.4 percent pay increase retroactive to July 1 and the matching increase in pensions. The suit said judges also were told the “statutorily mandated salary and benefits” prior to July 1 would not be paid.

Mallano’s suit said he wrote a letter to Chiang in December explaining the legal obligation and “demanding payment of the full judicial salary to which he was entitled,” but he received no reply.
Judge Mallano

Judge Mallano

At a CalPERS board meeting this month, Alan Milligan, the chief actuary, said there is no formal estimate of the cost if the suit prevails. He said “most or all” of a $97 million liability gain, mainly due to lower salaries, likely would be lost.

“How it plays out over time in the contribution rate, that’s a bit more difficult,” Milligan said. “I would have to do a bit of work to calculate that.”

Board member Richard Costigan said he asked about the suit because of a recent meeting with state Supreme Court Chief Justice Tani Canil-Sakauye and her plea for state funding to end a “civil rights crisis” of access caused by clogged courts.

She said in her annual address to the Legislature on March 17 the courts, hit by “$450 million ongoing cuts,” have “harmful delays in urgent family matters, in business contracts, wrongful termination, discrimination cases, personal injury cases.”

The chief justice proposes a $1.2 billion increase over three years to restore and improve access to courts. During the recession, 51 courthouses closed, 205 courtrooms closed, 30 courts reduced public hours and 37 courts cut self-help/family law services.

Last week a court budget committee voted to request $70 million from the state to plug a hole in the Trial Court Trust Fund, an operational fund that has been paying for some court employee health and pension benefits, Courthouse News Service reported.

Last fall the Judicial Council ended an attempt to build a statewide court computer system after spending $500 million. The projected cost ballooned from $260 million to $2 billion, drawing fire from a dissident group of about 400 judges.

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