Sacramento State Capitol building on Capitol Way. Credit: Jason Doiy/ Recorder

Six state trial judges who were elected in 2012 but didn’t take the bench until 2013 are stuck with a less generous pension plan that kicked in that year, the First District Court of Appeal said Tuesday.

The unanimous three-justice panel affirmed a San Francisco Superior Court ruling that found even though the six trial court judges were initially included in the more lavish Judges’ Retirement System II plan, that doesn’t mean they were exempt from statutory changes enacted on Jan. 1, 2013.

Kathleen Banke (2009). Credit: Jason Doiy/The Recorder

“While we certainly sympathize with the appellates’ frustration over the erroneous information with which they were provided, [the state] cannot be estopped from correcting a legal mistake and ensuring that JRS II is managed in conformance with the operative statutes,” Justice Kathleen Banke wrote for the court.

Faced with skyrocketing public pension costs, the Legislature and Gov. Jerry Brown approved changes in 2012 that would require future employees to contribute more to their retirement plans. The legislation covered judges, too.

New judges would contribute 15.25 percent of their salary to their pensions compared to 8 percent for existing judges. Pension payments for future judges would also be based on their final three years’ of salaries instead of their one final year. The changes meant new judges would take home 7.25 percent less in each paycheck than their more veteran peers.

The appellants are six trial court judges who were elected in the summer of 2012 but whose new terms did not start until Jan. 7, 2013, six days after the pension changes went into effect. The judges say they were assured by state officials they would be covered by JRS II based on their election date. And they did initially receive those benefits, until March 2014 when the state did “an about-face,” according to the appellate panel, and decided they had to pay the higher 2013 pension contributions.

In addition to arguing that the state should live up to its initial assertions, the judges said their election gave them a “vested right” to the better benefits of 2012. The panel disagreed.

“No case cited by appellants, nor any of which we are aware, suggests, let alone holds, that merely being elected to fill an office gives rise to a vested right in any of the benefits associated with that office as of the date the individual is elected,” Banke wrote. “Rather, vested rights arise when an individual actually assumes office and commences his or her public employment.”

The appellants also argued that the effective reduction in their take-home pay violates state law ensuring that judges’ pay won’t be reduced during their time in office. The appellate justices said they could find no state case law on point but were persuaded by U.S. Supreme Court and New York state cases that found that a reduction in take-home pay does not automatically trigger “non-diminution” clauses.

Moreover, the panel wrote, “state judges are bearing the same financial obligation imposed on virtually every other state employee eligible to participate in a state retirement system.”

The appellant judges are Matthew McGlynn of Tehama County; L. Brooks Anderholt of Imperial County; Tara Flanagan of Alameda County; Gary Kreep of San Diego County;  Benjamin Wirtschafter of Yuba County; and Jennifer Giuliani of Kings County. They are represented by Costantin Kerestenzis of Beeson, Tayer & Bodine. Kerestenzis did not return a message seeking comment.

Deputy Attorney General Peter Chang represented the state and Timothy Yeung of Sloan Sakai Yeung & Wong served as counsel for the respondent Judicial Council. Arthur Wei-Wei Liou of Leonard Carder filed an amicus brief for the California Judges Association on behalf of the appellants.


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