December 24, 2008

By Kenneth Ofgang (View author info)

The California Supreme Court yesterday denied review of a Fourth District Court of Appeal ruling that Los Angeles County's payment of benefits to Superior Court judges, over and above those given all judges under state law, violates the California Constitution.

The justices, at their last weekly conference of the year, voted 6-0 to deny the county's petition for review in Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630. Justice Kathryn M. Werdegar was absent and did not participate.

The Fourth District's Div. One said in the Oct. 10 decision that the payments violate Art. VI, Sec. 19 of the Constitution, which requires that the Legislature "prescribe compensation for judges of courts of record."

First District Court of Appeal Justice James Richman, who was specially assigned to the case, ruled last year that the benefits, which have been paid since the late 1980s, were legal.

County Lacks Authority

But Justice Patricia Benke, writing Friday for the Court of Appeal, said the Legislature must determine judicial compensation and cannot delegate that authority to the county.

The court reinstated an action by Harold P. Sturgeon, a county taxpayer, challenging the "local judicial benefits." Sturgeon was represented by lawyers from the conservative legal organization Judicial Watch, who could not be reached yesterday for comment.

Richard Fine, a local attorney who had no involvement in the Sturgeon appeal but has been attacking the benefits for years, said the high court's denial means that he was right all along.

He predicted that the county would soon stop paying the benefits, and that the Legislature would not act to restore them. While the county appealed the ruling, he added, he said that officials were probably secretly hoping for yesterday's result.

"They need that $21 million," Fine said, referring to the amount spent on the benefits last year, Fine said.

Judges Retain Counsel

County Counsel Raymond G. Fortner notified county officials of the court's action in an e-mail, a copy of which was obtained by the MetNews. He informed recipients that the judges "have retained the firm of Gibson, Dunn & Crutcher to represent them in the Superior Court remand to assert that they were necessary parties to the proceedings and are entitled to be heard before a judgment is entered."

Assistant Presiding Judge Charles W. McCoy, who will inherit the fallout from the decision when he takes the helm of the court next week, said he could not comment on the case or on Fortner's e-mail, other than to say that the judges were "looking at all the options."

Sturgeon, in his capacity as a taxpayer, sued the county, not the court.

Although further proceedings must take place before the benefits are discontinued and legislative action remains a possibility, two judges have already identified the ruling as a factor in their decisions to leave the court, and others are reported to be considering leaving as well.

Early Retirement

Judge William Pounders, who has served on the court since 1985, said he had planned to leave at the end of next year but will move that up if the benefits are terminated, since his combined pensions as a retired judge and deputy attorney general would exceed his state salary.

Judge Joe W. Hilberman is leaving the court Jan. 31, and told the MetNews that the impending loss of the county benefits is one of a number of financial pressures that are forcing him to leave his post after seven years to become a private judge.

The benefits at issue include participation in the county's "MegaFlex" cafeteria benefits program-which allows a beneficiary to receive additional taxable income equal to 19 percent of salary, or benefits costing the county an equal amount-along with a "professional development allowance" and a 401(k) match of up to four percent of the judge's salary.

Los Angeles Superior Court judges who received the maximum 401(k) match totaled $46,436 in county benefits last year, on top of a state salary of $171,648 and benefits that all superior court judges receive statewide.

Benke cited two attorney general opinions from the 1970s suggesting that counties could not treat judges as county employees for purposes of providing benefits beyond those mandated statewide by the Legislature.

The justice rejected arguments that the benefits are not "compensation" in the sense meant by Sec. 19, and that the Legislature has "prescribed" the local benefits by enacting trial court funding legislation saying that "no personnel employed in the court system as of July 1, 1997, shall have their salary or benefits reduced as a result of this act."

Benke wrote:

"The fact the county itself has elected to tie its judicial benefits to the benefits it provides other salaried employees is not a substitute for a legislative mandate that it do so."

In a footnote, however, Benke suggested that the benefits might be lawful, at least in part, under Art. VI, Sec. 20, which provides for judicial retirement benefits based on age or disability. That issue was not litigated in the trial court, however, the justice explained.

In other action, the justices agreed to review a Sept. 15 Third District Court of Appeal decision reinstating a challenge to a state law that gives in-state college tuition to aliens who are in the country illegally if they attended California high schools.

Federal law prohibits the state from granting the in-state tuition rate to persons who lack lawful immigration status unless it grants the same rate to all U.S. citizens regardless of California residence, Justice Richard Sims III wrote for the court.

The justices reinstated claims by persons who pay out-of-state tuition to attend the University of California, the California State University, or community colleges that Education Code Sec. 68130.5 is preempted by 8 U.S. Secs. 1621 and 1623. The court also held that the plaintiffs may amend their complaint to allege violation of the Fourteenth Amendment's Equal Protection and Privileges and Immunities clauses.

Sec. 1623, part of the 1996 immigration reform law known as IIRIRA, provides that "an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State...for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit...without regard to whether the citizen or national is such a resident."

Sec. 1621, part of the 1996 welfare reform legislation, generally provides that a person who is in the country illegally "is not eligible for any State or local public benefit," including "any... postsecondary education...benefit" except "through the enactment of a State law after [Aug. 22, 1996], which affirmatively provides for such eligibility."

In seeking review, the state argued that in-state tuition is not a "benefit" and that it is granted to illegal aliens based on their having attended and graduated from a California high school, and not on the basis of "residence."

They also contend that Sec. 68130.5 is not preempted by Sec. 1621 because it was enacted after the federal statute and "affirmatively provides" for in-state tuition for students who lack legal immigration status but meet the statute's eligibility requirements.

Sims concluded that the huge differential between in-state and out-of-state tuition and fees-more than $17,000 per semester at UC, more than $10,000 on average at CSU, and more than $1,600 for a student with an average load of 15 credits at a community college-makes the lesser rate a "benefit."

The California Latino Legislative Caucus, Association of Mexican American Educators, ACLU and National Immigration Law Center were among a number of groups urging the high court to take the case, Martinez v. Regents of the University of California (2008) 166 Cal.App.4th 1121, which it did by a vote of 6-0, with Werdegar absent and not voting.