Attorneys with Jones Day, representing California's Judicial Council, said in court documents filed Monday that a group of retired judges has no grounds for suing over changes to the state's assigned judges program.

The Judicial Council and Chief Justice Tani Cantil-Sakauye were acting in a “legislative” capacity in May 2018 when they placed a retroactive 1,320-day lifetime cap on retired judges who serve as judicial substitutes around the state, Jones Day labor and employment partner Robert Naeve said in the court papers. The doctrine of legislative immunity shields the defendants from the suit filed by eight retired judges, Naeve argued.

The plaintiffs also failed to show proof of age discrimination or that the changes will have a disparate impact on older jurists, lawyers for the judicial council said.

“What is an 'older judge,' or a 'younger judge'? Plaintiffs provide no answer,” Naeve said in the filing. “And what proportion of 'older judges' are impacted compared to their younger colleagues? Again, plaintiffs' motion offers no clues.”

At issue is a long-standing judiciary program that assigns retired judges to courts with temporary vacancies due to vacations, judicial training, illnesses and other reasons. A 2017 internal review of the program found that judges were being assigned to courts that statistics suggest already had enough bench officers to cover any temporary absences. The review also found assigned judges who had served more than 120 days in a year and, in some cases, longer than the six-year equivalent of an active judge's term.

A report issued by state auditor Elaine Howle in April was equally critical of the program's costs and assignment practices.

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. Retired judges and courts can ask for exemptions from the rules.

A group of retired judges, represented by former San Mateo County Superior Court Judge Quentin Kopp and the San Francisco firm of Furth Salem Mason & Li, sued judicial branch leaders in May, arguing that the program changes discriminate against older jurists who have already surpassed the 1,320-day lifetime service cap.

On June 10, the plaintiffs asked the court for a preliminary injunction to block the Judicial Council from retroactively enforcing the changes.

Naeve said any benefit the plaintiffs might receive from an injunction “is entirely speculative.”

“Even if the 1,320-day service limit was enjoined, plaintiffs have no right to an assignment,” he wrote. “Assignment is not and should not be dependent on the identity of a particular judge, rather a judicial assignment from the [program] is dependent on a courts' caseload need, the chief justice's constitutional duty to equalize the work of the judges, and her discretion in making the order.”

San Francisco Superior Court Judge Ethan Schulman is scheduled to hear the retired judges' motion for a preliminary junction July 2.