Updated at 7 p.m. PST

The California Supreme Court has recused itself from a case that could decide whether current and retired state judges receive $36 million in back pay.

In a brief order issued Monday, the justices said they will refer the pending appeal in Mallano v. Chiang “to other judicial officers who first took judicial office on or after July 1, 2017.”

“The justices of this court, having determined recusal is appropriate … hereby recuse themselves,” the order says.

Read the Supreme Court's order in Mallano v. Chiang:

At issue is a case brought by retired Second District Court of Appeal Justice Robert Mallano, who alleged the state improperly deprived active and retired judges of statutorily mandated salary increases after the 2008 recession.

In January 2015, Los Angeles Superior Court Judge Elihu Berle, a potential class member who heard the case under the “doctrine of necessity,” certified a class of about 1,800 retirees and 1,600 sitting judges. A subsequent 2016 judgment granted the judges' back pay, plus 10 percent interest and $660,000 in attorney fees to lawyers at Skadden, Arps, Slate, Meagher & Flom.

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.”

The Supreme Court order cites three cases where justices recused themselves for potential conflicts and appellate justices were chosen to take their places. The court's internal operating guidelines also spell out procedures for replacing justices who disqualify themselves from cases, although they don't specifically address a circumstance when the entire court steps away from a petition.

The high court has relied on a series of appellate justices sitting pro tempore to fill the vacancy created when Associate Justice Kathryn Mickle Werdegar retired in August 2017.

The court order excludes any judicial officer who took the bench prior to July 1, 2017. That would eliminate all of the appellate court justices Gov. Jerry Brown appointed after that date because all of them had previously served on a state trial court.

Monday's order would also exclude judges with previous experience as court commissioners, according to Supreme Court spokesman Cathal Conneely. That leaves about 111 superior court judges appointed between November 2017 and July 20, 2018, who appear to be eligible for appointment in the Mallano case.

The governor also appointed 17 non-commissioner judges on May 22, 2017. It's unclear if any of those appointees took their oaths after the court's July 1, 2017, deadline. Brown named another 24 judges without court commissioner experience on Thursday, but it seems unlikely that many of those appointees have taken office yet.

Read more:

Correction: An earlier version of this story misstated the number of judges who could possibly consider the appeal in this case.