California Superior Court, San Francisco, California. Photo by Jason Doiy

SAN FRANCISCO — Eight retired state court judges who sued the Judicial Council of California and the state's chief justice face an uphill battle in their attempt to block a new policy capping the total amount of days they can fill temporary openings on the state court bench.

San Francisco Superior Court Judge Ethan Schulman issued a tentative order Monday indicating he was apt to deny the retired judges' request for a preliminary injunction barring the state from applying a 1,320-day service limit for the assigned judges program, which uses retired jurists to fill temporary judicial needs across the state.

Schulman indicated at a hearing on the injunction request Tuesday that he thinks changes to the state's assigned judges program implemented by the Judicial Council of California amounted to “legislative” action. Schulman said he was inclined to find that Chief Justice Tani Cantil-Sakauye and the Judicial Council were immune from the retired judge's claims of age discrimination. He said the change in policy came after many meetings and considerable discussion within the Judicial Council.

“It's not as if [the chief justice] was sitting in her chambers and came up with it on her own,” Schulman said. “She has better things to do than that.”

However, at the end of Tuesday's hearing, Schulman stopped short of ruling on the judges' injunction bid, took the matter under submission, and said that he'd issue a written order “relatively soon.”

The plaintiffs sued the Judicial Council of California and Cantil-Sakauye in May challenging recent changes to the assigned judges program. The retired judges claim that the changes, including the 1,320-day service cap, amount to age discrimination. The retired judge's lawyers at Furth Salem Mason & Li were in court Tuesday seeking an injunction to block the retroactive effect of the new eligibility requirements, but their lawsuit aims to bar the changes altogether.

Name partner Daniel Mason said Tuesday that any presiding judge interested in using one of his clients to fill a temporary opening must exhaust all other possibilities, including judges from neighboring counties and younger judges who haven't hit the lifetime limits, before asking the chief justice to make an exception to the service limits. “Our clients simply want to work more, and they want to be put on the list. That's all,” Mason said.

The Judicial Council's lawyers at Jones Day have claimed that its members were acting in a “legislative” capacity in May 2018 when they placed the lifetime cap on retired judges serving as judicial substitutes around the state. The long-standing program assigns retired judges to courts with temporary vacancies due to vacations, training, illnesses and other reasons. A 2017 internal review of the program found judges were being assigned to courts that statistics suggested had the internal capacity to cover temporary openings. The review also found some assigned judges 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.

Jones Day's Robert A. Naeve said Tuesday that an appointment in the program was “never meant to be a job.”

“It was never meant to be anything other than a stopgap” to help the courts serve their communities, Naeve said. Naeve, however, didn't immediately offer a clear answer to the judge's question about what harm the Judicial Council would face if he were to bar the 1,320-day service limit for the plaintiffs until the case can go to trial.