[CJA letterhead]

Mr. Marc J. Nolan,Deputy Attorney GeneralOffice of the Attorney General300 South Spring Street, Ste. 1702Los Angeles, CA 90013

RE: Request for Comment – Opinion 11-603

Dear Mr. Nolan:

On behalf of the California Judges Association (CJA), I appreciate this opportunity to comment on two questions posed to your office by the Commission on Judicial Performance (CJP), through its general counsel, Victoria B. Henley. CJA is the largest private association of judges in the United States with 2,500 dues paying members. Its members represent three-quarters of the sitting justices, judges and subordinate judicial officers in the state.

As discussed below, CJA believes the Legislature clearly intended to authorize supplemental compensation to judges retroactively thereby clarifying that any such benefits received by judges are, and were, legal. Further, CJA demonstrates the Legislature’s plenary powers give it the authority to shield from liability, even retroactively, actions by state employees and judges. The separation of powers doctrine is not implicated where a narrow area of conduct is excepted from CJP’s disciplinary reach.

Because CJA believes that a fair reading of SBX2 11 avoids the constitutional separation of powers issues raised by the first question, our discussion begins with Question 2. (See People v. Superior Court (Romero)(1996) 13 Cal.4th 497, 510 [“If a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable. [Citations.] The basis of this rule is the presumption that the Legislature intended, not to violate the Constitution, but to enact a valid statute within the scope of its constitutional powers.” (Citations.)]).

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Question 2:

Does section 2 of SBX2 11 (a) simply identify which judges are permitted as of the effective date of SBX2 11 to continue receiving supplemental compensation from the effective date forward, on the terms and conditions in effect on July 1, 2008, or (b) retroactively authorize all or some portion of supplemental compensation provided by counties to judges, or to judges themselves, so long as it was being provided as of July 1, 2008?

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A full and fair examination of SBX2 11’s history and text leads to the conclusion that the Legislature intended it to be applied retroactively.

For many years before trial court unification, trial judges received supplemental benefits from their counties. (Historical Analysis Of Disparities In Judicial Benefits, Report to the Senate Committee on Budget and Fiscal Review, the Assembly Committee on Budget and the Senate and Assembly Committees on Judiciary, Administrative Office of the Courts, December 15, 2009, pp. 9-13.) These benefits served a public purpose by improving recruitment and retention of bench officers. (Sturgeon v. Los Angeles County, 167 Cal. App. 4th 630, 639 (“Sturgeon”)) .

Beginning in 1957, the Legislature demonstrated its intention to authorize these benefits. In that year, the Legislature enacted Government Code §§ 53200-53210, allowing counties to pay additional compensation and benefits to their local judges. (Sturgeon, supra, at 643.)

In a 1976 opinion, however, the Attorney General opined this provision was unconstitutional because the Legislature failed to set adequate standards by which such compensation could be paid. Thereafter, the Legislature responded correcting this defect by refining Government Code § 53200.3. But, in 1978, the Attorney General again questioned whether the Legislature had adequately authorized these benefits.

In 1997, the law makers passed the Lockyer-Isenberg Trial Court Funding Act (Lockyer-Isenberg). Lockyer-Isenberg specifically sought to maintain judicial compensation and benefits at the level received prior to unification. As the Court of Appeal concluded in

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Sturgeon, this legislation authorized counties and courts to provide supplemental benefit payments to trial judges. (Sturgeon, supra at 642.)

In 2006, the Sturgeon lawsuit challenged the propriety of Los Angeles County Superior Court’s supplemental judicial benefits program. The trial court hearing the matter granted Los Angeles County’s motion for summary judgment. On appeal, the Fourth District held: the benefits were proper; the benefits were not a gift of public money; the benefits were not waste; and the benefits were authorized by Lockyer-Isenberg. However, the Court of Appeal said the Legislature needed to take a more active role in “prescribing” benefit amounts; that task could not be delegated. (Sturgeon, supra., at 657.)

Consequently, in February 2009, the Legislature passed, and the Governor signed, SBX2 11, adding to the Government Code §§ 68220, 68221, and 68222. The statutory language of these provisions explicitly states that the Legislature intended to correct any deficiencies identified in Sturgeon.

First, the Legislature reiterated the intent of the Lockyer-Isenberg bill: Judges should have received, and should continue to receive, supplemental benefits under the law:

“SECTION 1. The Legislature finds and declares all of the following:(a) It is the intent of the Legislature to address the decision of the Court of Appeal in Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630, regarding county-provided benefits for judges.(b) These county-provided benefits were considered by the Legislature in enacting the Lockyer-Isenberg Trial Court Funding Act of 1997, in which counties could receive a reduction in the county’s maintenance of effort obligations if counties elected to provide benefits pursuant to paragraph (l) of subdivision (c) of Section 77201 of the Government Code for trial court judges of that county.(c) Numerous counties and courts established local or court supplemental benefits to retain qualified applicants for judicial office, and trial court judges relied upon the existence of these

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longstanding supplemental benefits provided by the counties or the court.

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It is difficult to imagine a more succinct, stronger statement of legislative intent than Section 1 of SBX2 11. Further, it makes no sense to authorize the benefits only as of the date of enactment of SBX2 11, if the purpose is to retain qualified applicants for judicial office and to recognize that trial court judges relied on the existence of these longstanding benefits provided by the counties and court prior to court unification.

Second, § 68220’s plain language reveals its retroactivity:

“Judges of a court whose judges received supplemental judicial benefits provided by the county or court, or both, as of July 1, 2008, shall continue to receive supplemental benefits from the county or court then paying the benefits on the same terms and conditions as were in effect at the time.” (emphasis added.) Cal. Gov’t Code 68220(a).

The words “received” and “shall continue” can only refer to actions started in the past and that should now be on-going. The Court of Appeal rendered the Sturgeon decision in October 2008. Given that the courts operate on a July 1 – June 30 fiscal year, the July 1, 2008 date referred to in SBX2 11 contemplates its application beginning in the fiscal year during which the Sturgeon decision was rendered.

Third, the Legislature makes clear in Section 5 its intention to make SBX2 11 retroactive:

“Notwithstanding any other law, no governmental entity, or officer or employee of a governmental entity, shall incur any liability or be subject to prosecution or disciplinary action because of benefits provided to a judge under the official action of a governmental entity prior to the effective date of this act on the ground that those benefits were not authorized under law.” (emphasis added.)

If the law were not retroactive, this section would be meaningless. With this language, the Legislature makes clear its intent that supplemental judicial benefits received prior to the effective date of the act are authorized by law. (See People v Alford (2007) 42 Cal. 4th 749, 754 [A statute may apply retroactively if there is ‘a clear and compelling implication’ that the Legislature intended such a result.]). Section 5 goes far beyond “a clear and compelling implication;” the statutory language clearly states the Legislature’s intent that SBX2 11 authorize supplemental judicial benefits retroactively.

I turn now to question 1, which concerns the separation of powers doctrine. As will be seen, there is no basis to conclude that SBX2 11 violates that constitutional mandate.

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Question 1:

Does the Legislature have the authority to enact legislation that purports to preclude the commission from disciplining California superior court judges for authorizing

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supplemental compensation to be paid to themselves from public funds, and/or receiving that supplemental compensation, on the ground that such benefits were or are not authorized by law?

The Legislature did not violate the separation of powers doctrine when it passed SBX2 11. The Legislature’s plenary authority encompasses the power to enact laws that significantly affect the Judiciary, including matters of judicial discipline. That SBX2 11 has identified a narrow item of conduct for which no discipline may be imposed (i.e.: a judge’s receipt of supplemental benefits on the ground that such benefits were not authorized by the law) does not “defeat or impair” the CJP’s core functions.

The separation of powers doctrine does not prevent one branch from taking actions that significantly affect those of another branch. (Carmel Valley Fire Protection District v. State of California (2001) 25 Cal. 4th 287, 291.) The prohibition in SBX2 11 would not defeat or materially impair the CJP’s role in California’s scheme of judicial discipline. There is no suggestion in the Legislature’s passage of SBX2 11 that the CJP should not remain as the arbiter of discipline. Nor have the CJP’s powers been removed or delegated to another body. Rather, all that has taken place here is that SBX 2 11 has removed a potential ground for discipline, i.e., a judge’s receipt of employment benefits before the effective date of the law.

The Legislature can make laws to protect one from liability, whether civil, criminal or administrative, for past conduct. Whether viewed as a retroactive immunity from liability, a retroactive authorization of conduct, or a retroactive reduction of penalties to zero, this is within the power of the Legislature. Furthermore, where the issue is whether a judge can be disciplined for a violation of the law, as is the case here, it is absolutely a legislative prerogative to determine what is and is not a violation of the law.

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In In re Estrada ((1965) 63 Cal.2d 740), the California Supreme Court held that where a criminal statute is amended to reduce the punishment for that crime, but the statutory amendment occurs after the prohibited act is committed but before judgment is entered, the amended criminal statute mitigating punishment applies retroactively. Indeed, if a law is repealed, no one can then be prosecuted for a prior violation of the repealed statute, unless the Legislature explicitly so provides by enacting a savings clause. (Id.)

The rule in Estrada also applies to civil penalties. As the Supreme Court held in People v. Durbin ((1966) 64 Cal.2d 474, 479): “What [Estrada] said with regard to an amendatory statute lessening criminal punishment equally applies to the reduction or elimination of civil penalties or forfeitures.” (See also, County of San Bernardino v. Ranger Ins. Co. (1995) 34 Cal.App.4th 1140, 1148-1149 (applying Durbin)).

These long standing rules protect the legislative prerogative to enact SBX2 11 and permit the Legislature to shield from liability judges who authorized or received supplemental compensation prior to enactment of SBX2 11.

Thank you for your consideration.

Very truly yours,

Judge Keith D. Davis,President, California Judges Association

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