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Mallano Asserts That Judges Are Shortchanged by State
Former Court of Appeal Presiding Justice—Who Prevailed in Suit Resulting in $40 Million in Back Pay with Interest for Sitting and Retired Jurists Based on Breach of Government Code Provision—Sees Further Litigation a Possibility
By Roger M. Grace, Editor
Retired Court of Appeal Presiding Justice Robert M. Mallano—who brought litigation in 2014 that resulted in back pay and interest amounting to about $40 million going to retired and sitting jurists—contends that the state is presently shortchanging trial court and appellate judges by failing to adjust their salaries upward each year to the extent that is statutorily mandated, saying that a prospect of further litigation looms.
Los Angeles Superior Court Judge Elihu Berle on March 10 2016, awarded judgment in favor of Mallano and the class he represented, ruling in Mallano v. Chiang that the state was failing to abide by Government Code §68203 which provides that judicial salaries “shall be increased” each year by the average percentage of salary rises of state employees. The Court of Appeal on April 5, 2017, affirmed, and the California Supreme Court on Oct 26, 2018, denied review.
The state is either again or still acting in disobedience to the statutory command, Mallano told the METNEWS on Monday. He related that the California Department of Human Resources (“CalHR”) is failing “to include all state employees raises in the formula called for” by §68203.
Sec. 68203 provides that on July 1 of each year, the salary of judges and justices “shall be increased by the amount that is produced by multiplying the then current salary of each justice or judge by the average percentage salary increase for the current fiscal year for California state employees.” Exceptions are spelled out.
Special Salary Adjustments
Mallano, who retired in 2014 after 14 years as a member of this district’s Div. One including eight years as its leader, said that CalHR impermissibly includes “only general salary increases” in its computations, “and not special salary adjustments.”
Special salary adjustments (“SSAs”) are granted by CalHR to specified categories of employees in the state’s bargaining units, of which there are 21. For example, effective July 1 of last year:
•Approximately 12,520 members of the International Union of Operating Engineers received SSAs. Depending on the job categories they were in, their salaries went up by 3, 4 or 5 percent, with a few increases at other levels (such as the pay of a lead automobile mechanic going up by 4.41 percent).
•The California Correctional Peace Officers Association, which represents about 31,000 state employees, won a 3 percent general pay hike for all members (with thousands of them at three prisons getting one-time $10,000 “retention bonuses.”) Employees in numerous categories received SSAs in addition to the three percent, at varying rates, including a captain at an adult facility garnering an added 6.25 percent.
•The powerful Service Employees International Union secured a 3 percent escalation in salaries for all members for 2023, 2024, and 2025, but with some favored with 4 percent or 5 percent SSA enhancement, and a few in odd amounts, up to 15.80 percent.
•All employees in one bargaining unit received a 3 percent pay boost while administrative law judges drew 4.5 percent SSA increases.
However, these and various other “adjustments” were not factored into the July 2023 computation of judges’ annual pay increases because an SSA is not viewed by CalHR as relating to the level of a “salary.” Mallano’s view is that any upward adjustment in what is paid to an employee is, necessarily, a salary increase—in essence, contending that a salary by any other name is a salary.
Mallano’s Inquiry
Mallano related:
“I contacted the Judicial Council in December and it inquired of CalHR about my claim, and after four months, CalHR said that it has been doing it that way, and is not changing. No legal justification was offered.
“I know from my time on the Judicial Council in the 1990s that special salary adjustments, or whatever they were called then, had been included.”
He said that he does not anticipate CalHR being able “to provide a valid legal position.”
New Class Representative
The former jurist—who served as a presiding judge of the Los Angeles Superior Court in 1993 and 1994—said that if litigation is filed on behalf of the state’s judges, the class representative will be Sacramento Superior Court Judge Maryanne Gilliard. She was director of the California Alliance of Judges which has questioned the soundness of the judiciary’s management and was instrumental in 2014 in bringing about an end to the Administrative Office of the Courts (or a “retirement” of its name, as the Judicial Council put it).
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MARYANNE GILLIARD Sacramento Superior Court judge |
Mallano noted that Gilliard contacted him in December to query if judges are receiving the full amount to which they are entitled, and he advised that they are not.
“Because I am 85 years old, and no longer buy the green bananas, I didn’t want to undertake another Mallano vs. Chiang matter, which took five years to complete,” he explained. “So Judge Gilliard is taking up the mantle.
“I have great confidence in her for her diligence, determination, and integrity. I contacted Skadden, Arps, Slate, Meagher & Flom LLP, the firm that representing me in Mallano vs. Chiang, and a retainer agreement was finalized between Judge Gilliard and Skadden.”
(The nominal defendant in Mallano vs. Chiang was then-state Controller John Chiang.)
Mallano commented that he hopes that CalHR “realizes its position is hopeless, and unless it corrects its deficiencies, it will be facing another lawsuit like Mallano vs. Chiang, in which the state had to pay Skadden over $1 million dollars in attorney fees, and judges $20 million in interest” in addition to back pay.
“The judges are on their own here,” he remarked. “No help will come from the Judicial Council or the chief justice.”
Gilliard’s Comments
Gilliard said:
“I am proud to have the fine lawyers at Skadden Arps representing me on this issue, as there have been multiple instances of special salary adjustments paid out to state workers which have not been factored into judicial salary increases.
“I am hopeful CalHR will determine they had no legal basis to exclude these raises when calculating judicial salaries and make this right.”
She said of Government Code §68203:
“The statute is clear: judges are entitled to the average salary increase of all state workers except those who work for our Cal State and University of California systems, the legislative branch, and the judicial branch.”
CalHR’s Position
Responding on April 29 to an inquiry from Shelley Curran, administrative director of the Judicial Council, CalHR Director Eraina Ortega said that “CalHR has consistently used the same methodology for calculating judge salaries for many years, and not included special salary adjustments in these calculations, but instead included general salary increases.” She added that “CalHR believes this is an appropriate methodology based on the language of the applicable statute.”
Last Friday, Jack P. DiCanio, head of litigation in Skadden’s Palo Alto office and co-chief of the firm’s West Coast litigation practice, sent a letter to Ortega announcing that he is representing Gilliard and pointing out:
“Section 68203 does not contain any limitations on which salary increases should be included in the calculation of ‘average percentage salary increases’ and, more specifically, does not contain any express prohibition against including SSA….Thus, we respectfully request you explain the specific legal basis for excluding SSA, and any other types of salary increases, from CalHR’s calculation under Section 68203.”
Shift in Position
He added:
“Moreover, we note your comment from that correspondence that CalHR has used the current ‘methodology,’ which omits SSA, ‘for many years’…This comports with our understanding that, in years past, SSA have been included in the calculation.”
The lawyer sought information from Ortega, including “[w]hen and why the decision was made to exclude SSA from that calculation.”
A Public Records Act request was also made seeking, among other things, “All documents showing any salary increases for California state employees, including but not limited to any ‘general salary increases’ and/or ‘special salary adjustments,’ beginning with the fiscal year commencing July 1, 2013.”
The amount of money to which judges are entitled, if the position of Mallano and Gilliard ultimately prevails, is uncertain at this point.
A comment was sought from Ortega. A spokesperson yesterday responded by repeating a portion of the language in Ortega’s April 29 email to Curran.
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