Elaine Howle, California State Auditor

Updated on May 10

California's assigned judges program, a constitutionally provided system that uses retired jurists to cover judicial absences, is under mounting scrutiny amid allegations of cost overruns, questionable practices and new rules that some judges say amount to age discrimination.

A report released Tuesday by state Auditor Elaine Howle found that in 2016 the judiciary spent nearly $7 million to send retired judges, assigned by the chief justice, to five courts that workload data suggest should have had enough judges on the bench to handle absences due to illnesses, training sessions or case disqualifications.

Howle's report concluded that the assigned judges program, with a $27 million annual budget in 2016, lacked any procedures that would ensure courts requesting judicial temps had tried to find available in-house replacements or from other trial courts.

“Further, we found that the [program] had no mechanism for program staff to review whether the courts requesting additional resources already had more judicial positions than its workload justifies,” Howle's audit said. “In fact, program staff consistently reported that they did not even question the courts' requests but simply attempted to fill them as best they could.”

During Howle's review of a whistleblower complaint against the assigned judges program, investigators learned that judicial administrators were already looking into similar problems with the assignment system, including a projected cost overrun in 2018, the audit said.

Judiciary officials last spring instituted new rules for the program. Retired judges are now restricted to 120 days of assigned work a year and a retroactive, lifetime cap of 1,320 total days in the program. Judges must wait 90 days after their retirement to join the program, and administrators must consider a court's overall judicial staffing when analyzing a temp request. The rules also give each court a budgeted number of days they can use assigned judges.

Assigned judges are paid $764 a day plus whatever pension they already receive.

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“The state auditor's review reinforces our own earlier review of the assigned judges program, which resulted in the announcement of various program changes,” Martin Hoshino, the Judicial Council's administrative director, said in an email Tuesday to The Recorder.

Hoshino said branch executives agree with the auditor's recommendations, “particularly the recommendation to review the trial courts' compliance with the recent program changes. The presiding judges in each of our state's 58 superior courts are key partners in the program and we will be following up with them, as the auditor recommends.”

The auditor said the changes would help the program run “in a more efficient manner.”

But not everyone is happy about the new rules. Some retired judges don't like the lifetime service cap or the retroactive nature of the new rules.

“It's a violation of law,” said Quentin Kopp, a retired San Mateo County Superior Court judge. “It discriminates on the basis of age in its effect.”

Kopp, who once served in the assigned judges program, said he represents a handful of retired jurists who allege the new rules unfairly block them from work because of their years of service. He said the retirees have filed a complaint with the state Department of Fair Employment and Housing, a potential precursor to a lawsuit.

The new rules allow the chief justice to grant exemptions for situations such as a judge's unexpected absence or a rural court location where few qualified jurists live.

Tani Cantil-Sakauye, chief justice of California. Credit: Diego M. Radzinschi / ALM

In a March 28 letter to Gary Nadler, a Sonoma County Superior Court judge who chairs a Judicial Council committee of presiding judges, Chief Justice Tani Cantil-Sakauye wrote that over a recent three-month period courts submitted 121 rules-exemption requests for assigned judges. Of those requests, staff recommended, and Cantil-Sakauye said she approved, 88—most of them for retired jurists who have already served more than 1,320 days.

Cantil-Sakauye wrote that staffers are working on “a more defined process” for rule waiver requests.

Their use varies widely from court to court. The 10 courts with the biggest demand for temporary judges include the state's largest trial courts, according to data provided by the Judicial Council. Los Angeles County Superior Court, for instance, used 23,777 days of service from assigned judges between 2013 and 2018. But also on the top-10 list was rural Tulare County Superior Court with 5,012 days.

Judicial Council records show that 20 retired judges were each paid at least $1.2 million for various tenures of work in the assigned program between 1999 and 2018. The top-earning retiree received $1.9 million over that time span. Those payments did not include pension disbursements or reimbursements for travel costs.

This post was updated to correct the daily compensation for assigned judges. The amount is $764.