California Superior Court, San Francisco.

Eight retired state court judges have lost an early bid to block a new policy capping the total amount of days they can fill temporary openings on the state court bench.

The plaintiffs sued the Judicial Council of California and the state's chief justice in May claiming changes to the program allowing retired judges to fill temporary vacancies, including a 1,320-day limit on service in the so-called assigned judges program, amounted to age discrimination.

But on Wednesday, San Francisco Superior Court Judge Ethan Schulman denied the retired judges' request for a preliminary injunction finding that they failed to show the changes had a disparate impact on older judges.

Schulman found that a given judge's lifetime cumulative days of service in the program, which allows retired judges to fill vacancies left in cases of vacation, illness or death of active judges, does not depend on age. Schulman found, rather, that length of service in the program depended on the length of service on the bench prior to retirement, how quickly the judge enrolled in the program post-retirement and began accepting assignments, the number of days served on assignment per year, and the judge's proximity to a court with a need for temporary coverage.

“Plaintiffs have failed to show that the lifetime cap limit has any adverse impact on retired judges because of their age, such that it would support a finding of likelihood of success on their claim of discrimination,” Schulman wrote.

Schulman went on to note that the program was essential to the functioning of the state's judiciary and that practitioners and jurists across the state owe a “debt of gratitude” to the program's participants. However, he concluded: “Absent a showing of some likelihood of success on the merits of their statutory and constitutional claims, however, plaintiffs are not entitled to injunctive relief constraining the Chief Justice's and Judicial Council's discretion to implement the policy choices that have made administering that program.”

Peter Allen, the spokesman for the Judicial Council, declined to comment on the decision. Furth Salem Mason & Li's Daniel Mason, who represents the retired judge plaintiffs, didn't immediately respond to a message Thursday morning.

Read Judge Schulman's opinion: