Tani Cantil-Sakauye, Chief Justice of California. Photo: Diego M. Radzinschi / ALM

Three retired California state court judges have sued the Judicial Council of California and Chief Justice Tani Cantil-Sakauye claiming that changes to the state’s assigned judges program, which uses retired jurists to fill judicial needs across the state, amount to illegal age discrimination.

Retired Orange County Superior Court Judges Glenn Mahler and James Poole and retired Alameda County Superior Judge Julie Conger filed suit Thursday, claiming that a new 1,320-day cap on service in the program disadvantages older judges who must apply for exceptions to the new lifetime limit. All three of the plaintiffs have already served more than 1,500 days in the program, according to the complaint.

“This policy has a disparate impact on the plaintiffs and other persons of their age in that it causes them to be demonstrably disadvantaged vis-a-vis in the AJP,” wrote the retired judge’s lawyers at Furth Salem Mason & Li.

Last spring the Judicial Council instituted rules limiting retired judges to 120 days of assigned work a year and a retroactive, lifetime cap of 1,320 total days served in the program. Under the rules the chief justice can grant exemptions for situations including unexpected judicial absences or need in a rural court in a location with few qualified jurists. But plaintiffs claim that the “exception” positions that they are eligible to apply for involve extensive travel to remote courts, while younger judges remain eligible to fill vacancies at their home courthouses.

Furth Salem’s Quentin Kopp, who himself is a retired judge who previously participated in the program, said Thursday that he and his clients had asked that the lifetime service limits be made prospective rather than retrospective, so that they would not discriminate against older judges who have accrued more service days.

“Ageism in the workplace is alive and well,” said Kopp. ”One of the best ways to fight stereotypes of aging professions is to identify discrimination in all forms as it occurs.”

Kopp said that 72 judges in the program have reached the 1,320-day limit, and Furth Salem partner Daniel Mason said four more judges have already signed on to the complaint. The suit claims the changes violate the California Fair Employment and Housing Act and the state constitution. Plaintiffs are seeking back pay, future pay and attorneys fees.

A report released last year by state auditor Elaine Howle found that in 2016 the judiciary spent almost $7 million to send retired judges to five courts that workload data suggest should have had enough judges. The state auditor’s report also found that the program, which had a $27 million budget in 2016, lacked procedures to ensure courts requesting temporary help had exhausted available in-house replacements or help from other trial courts.

Read the complaint: