Updated at 8:15 pm with the list of judges chosen to consider the case.
Lawyers seeking back pay for current and retired California state judges have asked the state’s high court to clarify that lower court rulings in the case remain valid even though all six justices recused themselves earlier this week—presumably because the case could affect their own pocketbooks.
Lawyers at Skadden, Arps, Slate, Meagher & Flom, representing retired Second District Court of Appeal Justice Robert Mallano, previously won class certification from Los Angeles Superior Court Judge Elihu Berle for about 1,800 retirees and 1,600 sitting judges in 2105 and a subsequent 2016 judgment from Berle, a potential class member, of back pay, plus 10 percent interest.
In a letter sent to the Supreme Court Wednesday, Skadden’s William Casey wrote that he didn’t challenge the justice’s decision to recuse. But he did ask the court to “clarify that its order, which appears limited to ‘the present posture of the above-captioned matter,’ does not call into question any past or future proceedings by Judge Berle or other members of the fiduciary. “
A unanimous Second District panel last year rejected the state’s appeal, finding nothing in state law “constrains or prohibits the controller from fulfilling its ministerial duty to pay judicial salary increases.”
in Wednesday’s letter, Skadden’s Casey contended that while the state maintains that it has paid judges in keeping with the lower court orders in the case, neither the plaintiffs nor the court have been able to review the state’s method for compliance while its petition for the state Supreme Court has been pending. That leaves open, he contended, the possibility that even the newly minted judges that the Supreme Court has indicated should hear the case could be affected by the case’s outcome.
On Thursday, the Supreme Court issued an order noting that six judges—all of whom have taken the bench since July 1, 2007—were chosen to act as justices in the case. The group will consider the petition for review and, if review is granted, decide the case. The roster includes Judges Brett Bianco, Bruce Brodie, and Steve Cochran of Los Angeles Superior Court, Judges Andre De La Cruz and Scott Cooper of Orange County Superior Court, and Judge Teresa Caffese of San Francisco Superior Court.
Read the Skadden letter: