Olson v. Cory

No. 31142. Mar. [L.A. 1980.] al., v. et Plaintiffs and Respondents,

LESTER E. OLSON CORY, Controller, al., et Defendants KENNETH as State Appellants. Counsel Poliak, Falk, Prim, Rice, Nemerovski, & Jerome B.

Howard, Canady Larson, Counsel, Stewart Jr., Brick, William F. Ann John H. County Appellants. Melom for Defendants and and Halvor S. Levit, Lavan,

William H. Stroock & Stroock & J. Henry Silberberg, Gibson, Crutcher, Chernick, & Margaret A. Dunn Richard Nagle, W. Smith and Callister Plaintiffs Wayne Q. Daniel for Respondents. Jr., Davis,

Edwin A. Peter & Heafey, W. Roach Crosby, Heafey, May, Cotchett, Illston, Cotchett, Robert A. & W. Su- Seligson, Dyer Joseph Illston, Danneskiold, Kline, san Robert C. J. S. Anthony Byron and Allen H. Sumner as Amici Curiae. Georgiou Opinion Defendants, Controller

CLARK, of the State of California and J. Auditor-Controller of the of Los from County Angeles, appeal judg ment place unconstitutional 1976 declaring legislation purporting limit on salari increases for cost-of-living previously provided judicial held the superior es.1 The statute as amended was unconstitutional by court on it constitutes an of vested impermissible impairment grounds 1 pertinent provided Prior to amendment in 1976 Government Code section 68203 in judge. part: September year. salary justice on each the of each and . .shall “... of . . by salary current by produced multiplying be increased that amount which is the then figure justice judge by percentage by representing each the which the the Califor of or by price compiled reported Department nia consumer index as and the California 1969, (Stats. previous year.” calendar Industrial Relations has increased in the 1507, I.) ch. § 1, 1977, 68203, pertinent part: July “On January provides Section effective 1 1978, justice judge. salary of each and . .shall July year and on 1 of each thereafter the salary by multiplying the then current by produced be increased that amount which is figure representing the Cali- justice judge. .by percentage by the which the of each or . Department the California price compiled reported consumer index as and fornia year, but not to exceed five previous Industrial has increased in the calendar Relations 1183, 4.) (5%).” (Stats. percent ch. § Const., I, 10; Const., I, 9) (U.S. art. and contractual art. Cal. rights § § Constitution, III, section 4.2 conflicts with California article that a limit on current placing provisions provid- Defendants contend for increases to salaries does not the ing cost-of-living judicial impair vested or contractual in office or of rights judges judicial pensioners. defendants contend that the amendment to section 68203 Additionally, does not reduce salaries in violation of 6. We Proposition reject judicial defendants’ and affirm in of the part judgment contentions superior court.

In in effect first attempted section 68203 amending Legislature months, maintain salaries at the 1 1976 level for 22 September judicial and then to limit increases on 1 1978 to 5 prospective beginning July of the actual increase in the California percent regardless Consumer 1, ante.) (hereinafter (See CPI). Price Index Without fn. amend- ment would have been entitled to a 5.327 judges percent increase 1on 1977. After the defendant Controller an- beginning September increase, nounced he would not such an pay plaintiffs—judges office and judicial pensioners—commenced this action for declaratory relief.

Conflict Interest We consider first whether we hear and may adjudicate cause, each member of this court is interested in recognizing financially the outcome. The rule of that a is not necessity provides judge disquali fied from a cause adjudicating because of interest if personal financial there is no other or court available judge to hear resolve cause. (See Atkins v. United States (1977) 556 F.2d 1028 118].) Ct.Cl. [214 It is all at immediately California have least an in apparent judges financial interest in this case. one voluntary disqualify To would all, them and their of disqualify depriving surviving spouses opportunity to their case. This court as now constituted is to hear litigate qualified and determine the issues before us.

Abridgment of Vested or Contractual

Rights Judges of in Office We quoted the often that recognize language public employment held is not contract and therefore is not by protected the contract by (Markman Los County Angeles (1973) clause. v. 35 132, Cal.App.3d of provides: 2Thal section “Salaries of elected may during state officers not be reduced their of term office. Laws that set these appropriations.” salaries are The section was part added to the Constitution in 1972 as a designated of an Proposi- initiative measure 538 Boyd (1938) 12 Butterworth also v. Cal.Rptr. 610];

134-135 see [110 140, 434, cases 150 126 A.L.R. Those and other 838].) Cal.2d P.2d [82 em public in office to continued rights involve to remain or purported hand, the the we deal here with to right On other ployment. their office to which persons public term of compensation by serving to rise certain undisputed gives have they rights. employment “[P]ublic the which are the clause of Constitu contract obligations protected 848, Beach City (1947) v. 29 Cal. 2d 852-853 Long tion. ...” {Kern of League Associ see City Employee 799]; P.2d also [179 California of 135, ations v. Palos Verdes Dist. (1978) 139 Library Cal.App.3d 87 such 739].) compensation protected Promised is one Cal.Rptr. [150 Public v. County Organization Employees County right. {Sonoma of 903, Sonoma (1979) 296, 23 308-309 591 P.2d Cal.Rptr. Cal.3d [152 vested, the 1].) Once to cannot be eliminated with compensation right {Id., out the contract at unconstitutionally impairing obligation. 314.) When the state p. between and agreements employment public bodies, been have such are employees adopted by governing agreements Organization County {Sonoma binding constitutionally protected. Sonoma, 304, Public 296, 23 Cal. 3d Employees County supra, v. Assn., from Glendale Inc. v. Glendale City Employees City of quoting 513, (1975) 15 Cal.3d 337-338 540 P.2d Cal.Rptr. [124 In the in 1969 609].) Legislature adopted instant case full increase the state to cost-of-living provision, binding pay persons at the their terms of represented compensation for office. employed not Prior to the 1976 amendment had a vested to judges right only to for a certain term but also an annual increase in salary their office the full in the CPI calendar during prior year. increase equal with amendment the state to with purported the 1976 thus a vested interest. right impairing draw unilaterally lion It is Proposition No. 6. hereinafter referred to as 6. VI, Constitution, pertinent article 19: Also issues herein is California section Legislature prescribe judges “The shall of record.” compensation for of courts (1930) Riley dicta extracted from Millholen v. 211 Cal. persuaded by 3We are not judges and is 69], suggest relationship claimed to that the between the state P. [293 relationship there place, employment in nature. first involved not contractual In the public to be in nature of a office” which secretary whose duties were deemed “the law 33.) (Id., p. was not one of a vested will. at The issue could be terminated at apparently employ provide and power of a court to right but rather the constitutional contractual provisions to necessary independently statutory of deemed personnel compensation for Moreover, although a the elements of of state. only department the executive concern of express employ contract by by law rather than an public office created office—an Witkin, (8th (see Summary of Cal. Law ed. respects 1 different some ment—may be relationship exists between the 647), 1973) not that no contractual p. it does follow

539 is whether in the circumstances of this remaining The question permissible. in some way case the is impairment In Sonoma Public v. County Organization Employees County of Sonoma, 296 this court reiterated the four factors supra, 23 Cal.3d of in Home and Building Supreme identified the United States Court by 413, Assn. v. Blaisdell (1934) 290 398 L.Ed. 54 Loan U.S. S.Ct. [78 231, vested 88 A.L.R. of con warranting legislative impairment 1481] (1) tract factors are: the enactment serves to basic rights. protect Those (2) interests is an the enact of there for society, emergency justification ment, (3) (4) the enactment is for the the appropriate emergency, measure, as enactment is a which time the designed temporary during vested but contract are not lost deferred for a brief rights merely (23 interest the period, deferment. Cal.3d at running during temporary 305-306.) pp.

In these applying standards the enactment’s must be mea severity sured to determine “the of the hurdle the state height must legislation (Allied Structural Steel Co. v. clear.” (1978) Spannaus 438 U.S. 234 727, L.Ed.2d 98 S.Ct. stated in Sonoma County This court 2716].) [57 that impairing granted a increase in to the wages goes heart of the em (Sonoma ployment contract and is therefore severe and permanent. Sonoma, County Organization Public Employees County v. supra, of of 296, 23 308-309.) Cal.3d Therefore the state’s hurdle in apply ing the four factors in the instant case is because heightened section is 68203 an impairment the heart of the affecting employment contract. Defendants, action, no reason or for the state offering justification fail even to their approach burden the demonstrating impairment is an plaintiffs’ rights warranted a by “emergency” serving protect “basic interest of society.”

A office is deemed to do so in consideration judge entering of—at least in benefits then offered the state for that part—salary by office. If salary benefits are diminished Legislature during term, (see judge’s or term of a during unexpired predecessor judge Const., 16; VI, Code, 71145, 71180), Cal. art. Gov. is judge § §§ nevertheless entitled contracted-for benefits the remainder during of such term. The such benefit to a right to accrues who served judge 1977, during 1 to 1 period beginning January 1970 January state person fact, and a elected or appointed to that In compen- office. the elements of sation for such an office contractually become upon acceptance vested employment. (See 859, Betts v. (1978) Board Administration CaI.Rptr. Cal.3d I [148 614].) 582 P.2d

540 prior whether his term of office commenced to or that time during per contractual pension expectations iod. “An are employee’s in benefits which are effect not when only measured by employment commences, which are thereafter conferred the during but employee’s Administration, (Betts v. Board supra, tenure.” subsequent of 859, 866.)4 Cal.3d who one term he

A which was judge completes during entitled and elects to enter a new unlimited increases has cost-of-living term bound benefits then offered by salary be impliedly agreed Thus, different while a is entitled state for the term. to a judge salary Code based on unmodified Government section 68203 a throughout instance, 1978, in his term term for for a new ending, salary beginning on after the effective date of 1976 amendment—1 or January Likewise, be the statute as amended. governed by 1977—will a judge 1977, or after office for first time on a entering January including term or term of upon upon unexpired his Own a judge entering pred cannot benefit section 68203 ecessor claim based on before judge, any the 1976 amendment. seen,

As will be our based on the contract as af- conclusions clause with salaries of in office are consistent our conclusions fecting judges 6. regarding Proposition

Abridgement of Vested or Contractual

Rights of Judicial Pensioners amendment, the vested in addition to impairing rights The 1976 office, A long also those of impairs judicial pensioners.5 judges reiterated the a principle public this court’s decisions has line of and compensation an element rights integral are employee’s pension upon a accruing acceptance employment. vested contractual right Administration, 859, 863; (Betts Kern v. 21 Cal.3d supra, v. Board of distinguished em pensioner’s—as with of a from an questions deals 4While Betts benefits, pensioner’s clear a contractual benefits are it is ployed person’s—contractual Moreover, will be seen in dis employment. as our merely from covenants of derivative any salary provision reduction forecloses Proposition that constitutional cussion of office, cost-of-living including provision enacted reduction in a during judge’s term a term in office. during the same herein, judges retired to both phrase “judicial pensioners” refers used 5As e.g., judge, the surviv deceased based on services whose benefits are persons other judge. or retired of a deceased or minor children ing spouse

541 Beach, Betts, 848, 852-853.) this City In Long 29 Cal.2d supra, court in that office held that a former state treasurer who had served from the law in 1959 to 1967 was entitled to a the basis of pension on effect at the time of his termination rather than the modified law in ef- {Id., fect at the time of his for in at application pension benefits 1976. 867-868.) pp. The statute in effect in 1976 withdraw bene- purported to fits to which he had earned a vested contractual while right employed. an does not obtain “absolute to fixed or Although employee any right benefits... there the specific strict on conditions [are] limitations] which the in may pension effect modify system during employment.” Administration, v. Board 859, 863-864.) supra, {Betts 21 Cal.3d Such modifications must be reasonable and in a any “‘changes pension which result plan in to disadvantage should be employees accompanied {Id., 864.) new at comparable Since no new advantages.’” p. compa- rable or benefit in offsetting appeared the modified we held the plan, 1976 statute unconstitutionally the vested impaired pensioner’s rights.

In the the present modify pension case state has purported with rights the amendment of section 68203. Between 31 December 1969 and 1 was a entitled to receive January judicial pensioner benefits based on a of the of a specified percentage salary judge holding office to which the retired or deceased was last judicial judge (Gov. Code, elected or et for such a appointed. 75000 The seq.) salary § office—if the retired deceased served in judicial or office judge during 1970 with period to 1977—was convenanted to increase annually the increase in the CPI. The 1976 on sal limitation increases judicial is, turn, aries calculated to diminish available to benefits otherwise those judicial pensioners. Such modification benefits works pension disadvantage judicial pensioners potential by reducing pension increases, and no new benefit. we conclude provides comparable Again, that defendants have failed to demonstrate justification impairing for these rights or that new were included and that comparable advantages section 68203 as amended is as unconstitutional to certain judicial pensioners. each is entitled to some fixed

Contractually, judicial pensioner per- of the to the centage salary payable judge holding particular judicial office to which the retired or deceased was last elected or judge (See Code, 75032, 75033.5, 75060.6, 75076, appointed. Gov. e.g., §§ 75077, 75091, 75093, 75094, 75096, 75096.1, 75096.3.) Accordingly, of a vested claim out judicial pensioner impairment right arising cannot holding particular when the judge of the amendment except of The resolution such an impairment. office could also claim judicial the resolution then, is on dependent foregoing pensioner rights, vested 1976 amendment. the unimpaired of vested left judges’ rights by ter- are on services judicial Judicial whose benefits based pensioners unlimited cost-of-living while section 68203 for provided minating salaries, to a a vested benefit right pension increases in judicial acquired of the based on some share of the or proportionate salary judge justice the the office incumbent particular including judge’s occupying judicial or unlimited increases. justice’s cost-of-living

Judicial pensioners whose benefits are based on services ter- judicial before the date of law for minating applicable effective providing increases, unlimited have no vested re- cost-of-living right to benefits therefrom. sulting Legislation for unlimited cost-of-living providing increases was first in to effective enacted 1964 become on 1 January 1965, the then although provided quadrennial statute for increases based (Stats. 1964, Sess., on a different the index than First Ex. CPI. 144, 518, 4.) However, ch. it is not for p. our to necessary purposes § not, determine a as vested. a judicial pensioner’s right Vested or being pensioner’s entitles him her to right or benefits based on the prevailing office, salary for the or judge particular the justice occupying judicial regardless of the date of termination of services rise to judicial giving the as of pension.6 Finally, in the case or who enter judges justices upon a new unexpired or term of a after 31 December predecessor judge 1976, benefits the salaries of based on of such judicial pensioners judges will be the by 1976 amendment.7 governed judicial in salaries percentage participation pre-1965 pensioners 6Even are entitled justices the judges occupying or of paid compulsion law actually paid or to be under justice elected or judge or was last or deceased judicial which the retired office to appointed. the benefit pensioner the was entitled to both Betts this court held 7We note that in fluctuating part a of the proportionate as of a retirement allowance calculated basic and, additionally, a occupied pensioner the by office salary of the incumbent the effect of We stated then that cost-of-living adjustment of the basic allowance. of in a double increment thereby the benefit of holding petitioner receives “is that Administration, 859, crease, (Betts supra, 21 Cal.3d troubling v. Board a result.” judicial pensioner allow a 867.) holding the instant case is to The of our net effect increase, in the sala being pro-rata increase the increment but one increment judge. retired or deceased formerly occupied by the ry judge occupying of the office increases, pro judicial cost-of-living pensioner’s salary fluctuates with While that any it is not increased allowance and basic retirement portionate share is his cost-of-living factor.

543 Salaries as Violation Reduction of Judicial III, Constitution, Section California Article (Cal. VI, 16; Const., art. see also are state officers. Judges §§ (1924) Therefore, P. 1040].) Spreckles v. Graham 194 Cal. 516 [228 salaries judicial state officers’ includes prohibition against reducing 2, ante.) (See salaries. fn. 2, ante) (see

The word “salaries” in fn. must bear the Proposition both in which it in that same in contexts constitutional meaning appears 462, Miller v. Dunn (See (1887) 72 P. Cal. 466 provision. 27].) [14 demonstrates that the that set Legislative history provision “[l]aws in these salaries are was drafted 1972 to forestall the appropriations” effect of a “line-item” Such veto could veto. a not budgetary effectively eliminate for an funding existing provision of law—such as sala- judges’ ries a the including cost-of-living increase—when statute is an appropriation. The word “salaries” in the last sentence Proposition of 6 thus is intended to mean cost-of-living salaries because the appropriat- law ing then for annual It provided cost-of-living adjustments. follows that the in 6 that provision Proposition of elected state offi- “[s]alaries cers not reduced their may during be term of office” forecloses during that term limitation any on increases even cost-of-living though such in- creases were first the provided by Legislature that same term. during To the extent the 1976 amendment to Government Code section 68203 such limitations it is contemplates unconstitutional.

Policies 6 underlying Proposition support our The interpretation. pri mary of that constitutional purpose is to provision “strengthen the ,”8i all independence of three branches of the the government ncluding judiciary. of both and Security tenure subsistence are important factors in and creating an maintaining independent These factors are judiciary. that, case, Betts distinguishable ground is on the unlike instant express there was legislative mandating cost-of-living adjustment direction applied be the fluctuat- ing (Id., p. 865.) basic necessarily retirement allowance. at It thus was held that since fluctuating statutes establishing both the basic retirement allowance and the cost-of-liv- ing office, adjustment during thereto were in effect term pensioner’s in he had acquired rights legislation vested contractual dual benefits. In the instant case directing increases—cost-of-living exists or otherwise—in the basic retirement allowance, although may depending adjustments that allowance itself fluctuate on —cost-of-living judges. or of otherwise—in salaries incumbent Summer, Arguments 8Excerpt Proposition signed by from Favor Bruce W. Commission, Petris, Chairman the Constitutional Revision Senator Nicholas G. and Assemblyman G. Beverly. Robert 544 (Cal. Const., art.

met fixed terms of office by insuring relatively long, VI, 16; Code, dur 71145) reduction foreclosing salary Gov. § § cost-of-living limit the ing arbitrarily term office. Should the state the level of subsistence would be reduced. salary, (1977) on Atkins v. United States F.2d Defendants rely Atkins involved a claim that Con- federal by judges Ct.Cl. [214 186]. salary to increase gress refusing reduced salaries unconstitutionally by However, the federal judges, levels in the face of inflation. continuing statu- unlike did not have the benefit of a plaintiff judges, guaranteed Moreover, was ever taken to no action tory cost-of-living provision. contrast, In limitation on salaries fixed place already a Congress. has with Legislature cost-of-living provi- California provided judges sion as their established salaries. part

Applicability the 1976 amendment to Government Code section Having . concluded when to constitutionally 68203 infringes upon protected rights applied if so dispar some not to all it is that judges, apparent applied salary but While that will result. it is established ity among peer judges levels different officers the create different for Legislature may salary Code, (see seq.; or similar duties Gov. 18850 et performing employees § Payne Sevier v. (1926) 198 170 P. v. Riley 323]; Cal. [244 Crawford (1936) 485 P.2d a further arises 1240]), question 12 Cal.App.2d [55 has immediate constitutional application whether enactment which an others, in but in satisfies only prospective application some instances constitutional requirements. in the usual sense. No part

The issue raised is not one of severability no infirm and therefore constitutionally question is the enactment remainder so as to of the enactment taints the arises as to whether part Dist. v. Santa Barbara Sch. (See Superior nullity. render the whole a 637, 315, 530 P.2d (1975) Cal.Rptr. 330-335 13 Cal.3d Court [118 Further, 643, 892].) re (1947) 655 P.2d In 30 Cal.2d Blaney 605]; [184 of mechanical severance is incapable the to section 68203 amendment all, If it does survive, enactment. wholly integrated if at as a and must pro- their survive, during to particular judges then its application so term. the end of each such deferred to of office must be tected terms in fac this similar dealt with court by has been presented The issue when enact- that an has concluded The court tual situations.

545 ment its suffers from a constitutional defect is temporary applicability merely until such time as the constitutional bar ceases to delayed exist. In Busch v. Turner (1945) 26 Cal.2d 817 P.2d 171 A.L.R. [161 1063], legislation salaries of officials was confronted increasing public awith constitutional an increase in provision compensation precluding a during term office. Before the term of one such official had expired the provision legislation constitutional was amended implementing was enacted bar an the to increase the official’s removing compensa- tion. This court held the increased provision compensation that for was held in as to official merely abeyance period the of the stat- during ute’s constitutional to become when the infirmity, applicable constitutional bar After was removed. to other decisions in referring which statutes were deferred until constitutionally inapplicable a change circumstances the permitted applicability, court stated: “These .. decisions. represent specific application general prin- construed, that statutes will if ciple permits, be their so as language to held, avoid The court those thus in sub- unconstitutionality. [in cases] stance, that the be intended the statutes at Legislature operative to earliest time the Constitution would but . permit, not before.. ‘The old law stands and until the time arrives controls right compensation which, constitution, at new is law permitted supersede it. . . 820; .’” (Id., at Regan County San Mateo p. see also v. (1939) 14 Cal.2d 713 Galeenerv. Honeycutt P.2d 231]; (1916) 173 [97 100 Smith Mathews Cal. P.2d v. 595]; (1909) Cal. [159 [103 P. 199]; Harrison v. Colgan (1905) 148 Cal. 69 P. 674]; Kilroy v. [82 (1931) Whitmore 851]; Shay 115 43 P. v. Roth Cal.App. (1923) [300 64 314 CaLApp. 967].) P. [221 Busch was removed

While the in bar constitutional by amendment and in the instant case the of running a term judge’s protected renders him, the amendment applicable as to reason the why prohibition “[t]he Turner, (Busch ceases to is operate immaterial. v. supra, entirely ...” 817, 821.) 26 Cal.2d Busch This court in that is concluded there “no constitutional to objection” a statutory interpretation giving prospective effect to a provision on the constitutionally inapplicable stated effective (Id., 821-822.) date. at pp.

We adhere to the rule of Busch in and construction the cases on which it where, here, relies. No different rule is warranted as the enact ment can be to different applied at different times. We conclude judges that the 1976 amendment to Government Code section 68203 fixes sal of aries all judges—and of benefits judicial pensioners grounded on

546 of terms salaries—except during completion particular protected such In the absence of intent we express legislative office as defined above. of in presuming on settled rule of construction legislative should the rely Busch it in is stated without reference to actual legislative tent. Thus held have “in substance” that the Legislature that the courts expression the at the earliest time Constitution operative intended statutes to be {Id., 820.) in Presumed intent follows p. legislative would at permit. will be the rule that statutes construed when recognized pos from part The 1976 amendment is thus unconstitutionality. sible to avoid a intent by presumed legislative to avoid unconstitutionality construed fix to inapplicable it to salaries of those temporarily judges that be rule The same of construc constitutionally applied. whom it cannot be this court in Smith v. intent is stated by tion and presumed legislative Mathews, 752 serve as for the construc supra, “precedent 155 Cal. (Id., 760.) at p. of of the same character.” Our tion all future acts intent is bolstered further by presumption of presumption legislative the amendment to section 68203 was Legislature adopting rule of construction the amendment existing making pro aware of temporary in those instances of constitutional applicable spectively (See (1977) 970, Court 19 Cal.3d 977 Bailey v. Superior infirmity. San Jose 669, (1969) 394]; Bishop City v. 568 P.2d Cal.Rptr. [140 465, 56, 137],)9 P.2d 1 Cal.3d Cal.Rptr. [81

Conclusion as amended Code section 68203 that Government We conclude pro increases as 1976, cost-of-living salary it would limit insofar as amendment, be constitu cannot before the 1976 vided section 68203 office, or term of (1) or justice during any a judge tionally applied if or served justice the judge predecessor, term of office unexpired term”) (a to 1 prior January “protected thereof portion some are based on some proportionate whose benefits (2) a judicial pensioner that office. or occupying salary judge justice amount 1976 con- 1 September fixed on and as The of judges justices salaries in a particular and justices all for compensation judges equal stituted interests, intent, to recognition in of vested its clearly indicated has Legislature 9The compensation differing levels of by which afford elections or to minimum levels provide 75060.1, Code, (See, e.g., Gov. pensioners. §§ judicial available to may become 75095, 75093, 75094, 75090.3, 75090.1, 75090.2, 75090, 75076, 75075.1, 75060.2, constitu accommodate inclination to its has thus indicated 75095.1.) Legislature The policies. legislative its the substance of preservation of in innovations tionally compelled

547 (See (the Code, 68200-68203.) “base Sala- peer Gov. group salary”). §§ never a judges justices having protected ries for and served in term are fixed the to be the 1976 by any scheme at time base salaries legislative increased the increase in the CPI not to annually by exceed percentage However, (the 5 on 1 1978 percent, beginning July “statutory salary”). for salaries and while a term will be in- judges justices serving protected 1977, creased above the 1976 base on 1 each September year beginning increase in the CPI for the by percentage prior year. calendar There will be a thus in salaries within a of or disparity peer group judges jus- while tices or within that any judge justice continues to serve a group continue, protected term. Such will in the trial disparity case of judges, and, no later than the first in the case Monday January of ap- pellate justices, (Cal. no later than the first 1987. Monday January Const., VI, 5, (a), art. (a); Code, 71145.) subd. subd. Gov. § § §

A or a judge justice completes protected who term and voluntarily embarks a new term can no upon longer claim serve in a protected term, and his her or will be compensation thereafter governed by the provisions of as section 68203 amended in 1976.10 While section speaks annual increases in salaries of “each justice or judge” aby percentage of the then current of “such or salary justice we do judge,” not deem this to mean that the of a or salary judge justice at end of a term will protected be the at which the salary judge or com- justice new, a mences term unprotected should he or she succeed himself or {ante, herself. As 544-545), stated pp. section 68203 becomes fully ap- plicable upon expiration of a term it protected follows that benefits derived from constitutional protections during that term cannot be an projected into Thus unprotected term. at which salary un- any protected term is commenced—including the of a or salary judge justice a leaving protected and an embarking upon unprotected term—is the then statutory salary paid judges justices or rank who equal never served a term.11 a during protected Although salary a or justice judge a serving protected term, term will be decreased new upon a entering a such result is a constitutionally permissible as such or judge justice course, end, running addition its protected may 10In to the a by term otherwise as incumbent, retirement, office, by by death of the other election or removal to by another or departure from office. application right 11Thedeferred applying par of the amendment is not a to a term, judicial Upon protected justice ticular judge office. termination of a or who judicial office—including succeeds to the salary only the incumbent—will be entitled to that 68202, inclusive, through provided applicable, sections 68200 as and amended section 68203. 548 will embark voluntarily embarked or a new term upon

has voluntarily is a legislatvely designated compensation.12 which there was or for served is affirmed as to or who any judge justice any The judgment term of a unexpired predecessor prior of his term or the portion 1977, whose benefits are based on and as to January judicial pensioners the the or In all other respects judgment of such salary judge justice. on appeal.13 is reversed. All shall bear their own costs parties * Manuel, J., Mosk, J., Richardson, J., Racanelli, J., C. and Acting (G. J.,* A.), Brown concurred. sensitive politically another

NEWMAN, year ago, I dissent.One J. Tanner (1979) 24 v. Hand as follows (People case, I Learned quoted 450, “‘When we ask 514, 328]): 596 P.2d Cal.Rptr. Cal.3d 538 [156 “intended”, there can be usually another legislature] what Congress [or ac answer, persons what or person group if what we mean is any no do, do, is to we and must as we what may, had in mind. Flinch tually who uttered can, of those ourselves, we into position as best project dealt with the would have words, they to them how and to impute 1952) (2d 199 F.2d Cir. (United Klinger States v. concrete occasion.’ added, that he supposes ‘He who 645, 648.) justice The distinguished result, the attempt.’” least fitted for certain of the is the can be been decided if each of us on How this case have might salary 1972, 1964, 1969, himself into conscientiously court had projected the words” that are who “uttered and 1976 of those positions legislators in- In for measures here? pertinent contained in the legislative Counsel, (or in his stance, in debate the Legislative what if a legislator (1) for in- have noted stated, had “Interested observers summary) Price Index based on the Consumer increases cumbent appellate judges, (2) expire, those terms judges’ until will be irrevocably guaranteed until 1982”? will not expire the terms for some incumbents with paid been in accordance in all instances have judicial salaries 12We note that in 1976. as amended section having parties at approved in this case been of the court composition 13The question disqualification inap as moot the hearing, we deem the commencement dissenting opinion. in the addressed propriately * Council. Acting Chairperson of the Judicial Assigned by the 549 What if a committee chairman had advised: “For legislative each to an contract’ and to you being approve are asked judge ‘employment at pp. 539], endorse his or her The ‘promised compensation’ [ante bill now to you ‘agreements as drafted means are about of em- adopt [ante, .. binding constitutionally protected’ are and ployment. [that] Its our p. ‘full would State to cost-of-living provision’ require pay 538]. all full judges represented ‘the compensation [including cost-of-living office’; is, for their terms of that for some until judges increases] Further, 1982—more now than from of years regardless the [id.]. that, laws will set for all other salaries state officers in future years, and employees, Legislature may never contracts with impair that this bill judges would unless there is some adopt ‘“emergency” to society”’ [ante, p. 539].” serving “a basic interest of protect In brief I dissent here I am summary, because that no evi- persuaded dence whatever that suggests the California ever Legislature intended (1) promise (2) to judges anything, adopt any formally recognized “agreements (3) at employment” p. 538], or to preclude modi- [ante by fication statute of that cost-of-living adjustments were demonstrably experimental and tentative.

If this court’s 1980 views had been forecast if by anyone, slide-rule of the now projections and swollen grotesquely out-of- embarrassingly line salaries—cultured anachronically the medium of the Consumer Price Index been plan—had if the reported, scales that now pay have won the had majority’s blessing earlier been in full arrayed Winchester Mystery House I splendor,* think it is inconceivable that the legislators would have enacted and left unchanged pending proposals—in 1969, for unrestricted use of the and, Consumer Price Index in 1972, for rigidifying by Assembly Constitutional Amendment not only the sal aries (as elected state officers but also now seems hindsight counsel) the unique salary-adjustment-formula for incumbent judges. 13, 1980, May Acting *See the letter of addressed to Chief Justice Manuel coun petitioners Kirkpatrick just copy sel et received a for al.: have amicus “[We] Brown, Jr., curiae brief submitted on behalf of Edmund G. ernor Governor.... The Gov [¶] agrees petitioners’ opinion position unequal with basic Court’s creates this compensation judges improperly for the same court and unreasonable levels of on greater salary courts which are than the establishes levels for some members lower higher argues compensation paid to some members of courts. The Governor’s brief... Opinion nightmare’ that the fice and the has ‘created an administrative for both Controller’s of Judges’ System upon based the ‘fortuitous dates the terms of Retirement began thoroughly agree We with office of their successors and ended.’... these [¶] comments....” failed to an- have explained, as will be I think Finally, my colleagues opinion set Court of Appeal swer several forth the arguments ably Beach, Roth, J., J., J., concurring). P. and this with (by Fleming, case I. and rights Contractual vested 68203 impair Does the 1976 amendment to Government Code section so, what contractual or vested If to the amendment rights? prior exactly who be- contractual did the section vest in the took office rights judges fore 1977? January read,

The section then the effective date of the 1969 amend- “[Ojn ments this 1 of the year to and on each September section thereafter that salary justice of each and . .shall be increased amount judge. by (Italics added.) which The justices is produced by multiplying [etc.].” and referred to “named in Sections 68200 to 68202.” were those judges The names in those were “the Chief Justice... and appearing sections Court,” each Associate of the the “[presiding Justice Supreme justice division,” of a each the or associate court of of justice appeal “[j]udge court,” a the municipal and each of court.” Did superior “[j]udge Legis- the lature mean incumbents not. Those who took office only? Obviously were included too. original after the enactment and after amendment However, the with to each individual and did regard justice judge or intent as to “term office”? I think Legislature express imply any it not. The statute nowhere term. Instead anybody’s specifies mentions I there- year “each thereafter.” Until when? submit that “each year the or with repealed, after” meant each until statute was amended year be set terms of office. no extra to years by course, and and enter into employees may, salary Public officers state; ar- Legislature may with the and statute agreements wage kind But section 68203 is not that ticulate the terms of agreements. never would have approved The majority legislators of statute. con- law, believe, words created a had been advised its they I survive amendment increases that would cost-of-living tractual right or accep- there was no offer There was no contract because repeal. or a not legislative, was as a designed thereafter” tance. year “[E]ach contractual, phrase. em- including public bind employers, contracts that and

Salary wage it startling Is not for definite dates. contain typically ployers, there- to “each only year here to rule that a statute majority referring contract binding pay after nonetheless creates [indefinitely]” I there was no certain salaries terms office? believe particular during contract, been thus no that could have binding identify rights I impaired.

Indeed, it was of vested to the absence from statutes salary rights consti- for services not rendered that necessitated the compensation yet tutional in elected officers’ salaries prohibition of reductions during (art. Ill, 4). their terms fitting of office It is neither nor for necessary § this court protection to add to that constitutional a contrived judicially contractual, right, that is not of purportedly by thousands enjoyed other public officers and who serve indefinite employees tenures. (1) (2)

As to and took on pensioners, who office or after judges 1, 1977, I January persuaded am these Flem- excerpts from Justice ing’s opinion: of are rights judicial pensioners tied to directly “[T]he those of sitting and take the of judges form a floating pension propor-

tionate to the comparable current We have heretofore judicial salary. that, concluded absent reduction in the dollar amount of the any pen- sion, are judicial pensioners’ rights dependent upon sitting judges’ rights and, to if salary, in prospective increase for sitting does salary judges materialize, not have pensioners no com- independent grounds for plaint. Any contractual for in rights future increases and judicial salary vested any or accrued to future in rights increases are judicial salary not the of rights the pensioners. Consequently, any or in- impairment fringement of such and rights only indirectly affects secondarily judicial pensioners (Cf. gives them separate no cause to complain. Harrison (1905) v. Colgan 148 Cal. 674].) P. The pensioner floats [82 office, water whose origin is the current and like water his judicial rights cannot rise above their source.

“Newly-elected Judges. Nor do or newly-elected newly-appointed have of judges cause to in the future complain prior legislative change of the office which salary to has been elected or judge appointed. Such did not judges serve under the old and could have no dispensation of the legitimate expectation cost-of-living continuance increases in law, under the old in that the law had been salary changed already to their prior assumption office.” The constitutional mandate

II. whether the 1976 amendment to section 68203 The next is question salaries; reductions in prohibition with the conflicts constitutional I it is answered in Jus- correctly is difficult. believe that question The “Before this constitutional discussing tice as follows: opinion Fleming’s that lead to constitutional we first note the considerations general issue in the salaries of officers judicial during reductions prohibitions against in- The is create and maintain an objective their term of office. key this are bring and the factors about key thought dependent judiciary, Both factors security appear of tenure and subsistence. security Constitution, shall hold office judges the federal which declares which shall be di- behavior and receive a not good compensation during (U.S. Const., Ill, 1.) in office. art. minished their continuance during § Evans Gore (1920) 253 U.S. the Court in v. Supreme As observed 550, 245, 887, 892, 40 turn 519], 252 11 A.L.R. in L.Ed. S.Ct. [64 79, Federalist, The No. over a man’s power Hamilton in quoting ‘[a] will.’ to a over his That court further noted power subsistence amounts not of a subsistence is protection the constitutional that premise judge’s in the public of as it is for the interest judge so much for the benefit the Gore, (Evans v. at supra, an independent judiciary. of preservation at 890-893].) 248-254 L.Ed. pp. pp. [64 the find in California

“These constitutional premises expression basic fixed Constitution, of protection relatively-long which gives judges 16)) (art. VI, 12 trial 6 years judges, years; judges, terms (appellate § their term of in salaries during reductions judges’ and which prevents (art. Ill, 4). office § in dif- in come about four salary may reductions

“Factually, judicial ways: ferent

“(1) salaries. judicial in dollar amounts of Reduction salaries. “(2) against judicial deductions specific Increased all salaries. “(3) deductions against Increased general of all salaries. “(4) power in purchasing Reduction dollar to reduce had undertaken if the Legislature “Clearly, (item 1), undertaken or had salaries to judges as payable amounts 553 deduct increased amounts from salaries for contribu- pension judicial tions or the like and about an absolute reduction in thereby brought (item 2), salaries judges’ prohibition the constitutional reduc- against tion in of salary during judge’s term office would come into play. (Cf. 438, (1958) v. City Abbott Los 50 Cal.2d Angeles [326 P.2d Neither 484].) of these events has occurred. Nor has com- any been plaint consequence made reduction in salaries as a of a judicial (item 3), tax all general imposed on salaries which was the issue in (1920) 887, 550, Evans v. Gore 253 U.S. 245 40 S.Ct. L.Ed. [64 A.L.R. the case which 519], exempted the salaries of federal judges from the then newly-imposed income tax. The com- general reduction plained here is related to loss in for all power salaries purchasing (item 4). Plaintiffs do not of loss of directly complain purchasing power salaries as judges’ a result of inflation depreciating and the value of dollar, the issue raised in Atkins v. unsuccessfully United States cert, (Ct.Cl. 1977) 1028, (1978) 556 F.2d denied 434 U.S. 1009 [54 L.Ed.2d 98 S.Ct. but 718], point form they present indirect that by arguing during removal an inflationary period pro- statutory tection against in the increases constitutes a reduction in cost-of-living III, salary contrary article section 4 of the California Constitution. Plaintiffs argue sitting judges 1969 to 1976 had a ex- during legal pectation of annual in increases commensurate with salary increases in index, the cost-of-living as shown the California consumer a by price le- gal that expectation constituted a valuable of part compensation, their and that any diminution in the amount of such increases their during term of office effected an unconstitutional in reduction Plaintiffs salary. III, 4, conclude that article section which forbids reduction in salary office, a during judge’s term of likewise forbids modification of future increases salary called for under an automatic formula. cost-of-living “Of equal general importance to this cause is another of provision the Constitution, VI, 19, California article section which authorizes the Legislature to prescribe compensation for of courts of record. judges That confers on provision the ‘the fullest measure of con- Legislature trol, direction, ordination, and dictation over the matter of the amount (Sevier (1926) of . . .’ v. payment judicial salaries. 198 Cal. Riley 170, 175 P. Absent some constitutional or 323].) statutory provi- [244 sion to the the salaries of all contrary, public employees, including be judges, may legislative modified action. No officer or of by employee the State of California has an vested to any immutable right specific (Butterworth (1938) 140, 434, salary. v. 12 150 P.2d Boyd Cal.2d [82 (1885) 142, 126 A.L.R. Miller v. Kister 144 838]; 813]; 68 Cal. P. [8 554 808, (1977) 18 813

cf. Miller v. State Cal.3d [135 of California 386, P.2d Cal.Rptr. 970].) to to the 1976 amendment section

“Plaintiffs’ constitutional challenge 4, III, reduction prohibits section which any 68203 asserts that article office, term not in the salaries of elected state officers their during to power judicial current qualifies plenary adjust only Legislature’s term of of- judge’s a prohibits legislative adjustment during salaries but in section 68203. by in formula established cost-of-living fice in 1964 attempts that the legislative In defendant opposition, argues by over salaries perennial controversy judicial and 1969 to solve the salaries, determine future judicial a formula to adopting cost-of-living indefinitely particular to any did not bind the maintain Legislature is- for salaries. The constitutional formula future cost-of-living judicial cost-of-living of prospective is whether the 1976 modification posed sue in salaries as that is term increases in constituted reduction salary in Constitution. used 4, III, Not Plain- Article Section Does History Support The

“A. Its Meaning. Interpretation tiffs’ III, was intended expressly

“Plaintiffs assert that article section ad- cost-of-living revision of the Legislature prohibit prospective of their assertion support contained section 68203. In justments which court materials related to plaintiffs superior submitted to the III, section 4. of the enactment article background 1971 the then Governor at- “From these materials it appears for from the 1970 increase prevent cost-of-living judges tempted which of budget appropriation effect a line-item veto a coming by into an Attorney gave The General judicial covered the increase salaries. not, ‘Section 68203 does which concluded that to Controller opinion itself, required by to the increase funds necessary support of appropriate at .,’ salaries remained payable . that although Section 68203. judicial the extent rate, except not be to paid the new could higher they and Thus, appropriated. salaries had been for the of payment judicial funds be to salaries would position, judicial to adhere his if the Governor were sala- rates, to such pay but funds appropriated at the increased paid an of the fiscal On year. the close would become exhausted before ries compli- full prevent effective to basis the veto would become annualized shove, however, and the to did not come section 68203. Push ance with withdrew the Governor was averted when fiscal crisis future potential

555 Thereafter, veto. the chairman of the Constitution Revi- his line-item an amendment to the sion Commission drafted constitutional personally an revision then under consideration in amendment Legislature, is 4 which added the second sentence to what now section of article III. of elected state not be reduced their ‘Salaries officers term may during of office. Laws that these salaries are (Italics set appropriations' ours.) This additional sentence remained in the final version legislative of the Constitution the electorate in November adopted 1972. by this plaintiffs III,

“From incident that the of article argue proponents 4, section to expressly prevent intended modification of prospective sala- is, under section ry adjustments 68203—that to forbid future legislative modification of the automatic cost-of-living formula then contained in section, that even for and for future future years salary levels. This seems speculation wide of the Plainly proponents mark. and draft- III, 4, men of article section meant a prevent repetition of the incident, line-item veto a achieved goal second of sentence article III, 4, section which converts a law such as salary section into an appropriation and renders unnecessary separate budget appropriation which a governor could veto. But it III, is one to view thing article sec- 4, tion as protective salary increases that have become due and payable, and another to as do argue, that it plaintiffs, also prevents modification of all prospective salary We find adjustments. nothing III, the legislative 4, of article history section in the nothing veto incident to support argument.

“Nor can plaintiffs derive for their support interpretation article III, 4, section from the ballot arguments to the presented voters at the time of the of the adoption constitutional revision in November 1972. The arguments in the ballot pamphlet submitted to the voters were not only devoid of any disclosure of intent and purpose prevent modifica- tion of prospective judicial salary but to adjustments, the contrary they suggested the absence such any purpose. Insofar as they related to III, article section the ballot arguments stated: “‘A would be added to provision prohibit reduction in any the salaries of elected state officers their during term office and to provide that laws This those salaries would eliminate the setting are appropriations. be existing that there a requirement specific appropriation enacted in Act, otherwise, to pay salaries.'1 the or Budget 1 entitled, "Excerpt Analysis by pamphlet Legislative from the ballot ‘Detailed the

Counsel.’

556 in the of existing language and deletions

“‘The various revisions any will not result in this amendment by State Constitution proposed cost or revenue changes.'2 three 6 elected State officers in all protects also

“‘Proposition salaries can’t be re- branches of their government by providing were and salary duced the term for which elected makes during they or government This will not increase the cost appropriations. statutes of more, all independence cost but will the of strengthen the taxpayers (Italics added.) three of No reference was made government.’3 branches or, indeed, to to of the aspect cost-of-living adjust- section 68203 any issue, adoption ment other than the statements that of article general III, 4, ‘will cost of or the tax- government section not the cost increase and cost more’ ‘will not result in or payers any changes.’ revenue short, III, 4, “In the article section indicates it was directed of history of evil—attempts veto against perceived by appropriations prevent of increased salaries after payment cost-of-living adjustments judicial had effect The gone payable. into and become due and materials before III, 4, the who court that those who drafted article section those suggest ballot, favor, voted to it on the and those who voted in its never con- put III, adoption sidered or intended that of article section would freeze into the constitutional the landscape experiment judicial statutory salary set out section 68203. cost-of-living adjustments “B. Increases Are Not Salaries Within Prospective Cost-of-Living III, Section 4. Meaning the Article raises amendment to section 68203

“Plaintiffs’ challenge is, in- increases—that the question prospective cost-of-living whether salaries within have into effect—are gone creases which not yet III, Two settled princi- article section of the Constitution. meaning The first is the presumption law are relevant. ples of constitutional (See, e.g., is entitled. legislation to which all constitutionality California entitled, Legislative Analysis ‘Cost pamphlet 2"Excerpt from ballot Analyst.’ 6,’ W. signed by Judge Bruce ‘Argument Proposition in Favor of 3"Excerpt from Commission, C. Nicholas Sumner, Senator Revision Constitution Chairman Petris, Beverly. Assemblyman Robert G.

557 575, (1976) 17 Housing Finance v. Elliott Cal.3d 594 Agency [131 361, 551 P.2d The second is Cal.Rptr. 1193].) the canon that ‘where the has a construction of a Legislature by adopted statute reasonable provision constitutional its has force and persuasive action will strong (Woodcock 146, (1950) be followed.’ Dick 36 148 ordinarily v. Cal.2d (1956) P.2d 46 667]; County see also v. Alameda Lundberg [222 644, Cal.2d 652 P.2d San Francisco v. Industrial Acc. Com. 1]; [298 273, (1920) 183 bench, Cal. At the P.26].) Legislature’s im- [191 III, 4, plicit construction in 1976 that the word in article salary section increases, does not include prospective was cost-of-living reasonably III, 4, with its of article section contemporaneous approval 1972. 4, 68203, III, “Section as it existed when article section was drafted on 1 of adopted, provided September year each ‘the salary each or shall be increased’ an amount determined justice judge by by the ‘then current in the multiplying salary’ by percentage increase California consumer The price index. use of future tense ‘shall’ and the reference to ‘then current indicate that did salary’ Legislature not view a prospective increase as of a cost-of-living part judge’s salary until that increase due and added ‘then became was current salary’ Likewise, to become the for the next 12 months. salary payable salary (Gov. Code, is defined in the Law Judges’ 75003) Retirement as ‘the § compensation received judge as emolument of the office of (italics added). judge’ This definition does not embrace com- obviously pensation in the after payable cost-of-living future have adjustments made; been under section 75003 a is the clearly, judge’s compen- salary sation he is currently being paid.

“In (1905) Harrison v. Colgan 148 Cal. P. 674], the Califor- [82 nia Court, Supreme context, in a somewhat related refused to treat a prospective salary increase as included within the term salary. That case involved a constitutional provision justices of District entitling Courts of to the Appeal same salaries as justices of Court. Supreme In 1905 the Legislature raised the annual salaries of Supreme Court $6,000 justices $8,000. However, from due to the then constitutional prohibition against increases in the salaries of their term judges during office, no Supreme Court justice was eligible to claim the sal- higher ary until when justices two would begin to serve new terms. 558

Plaintiff, of a of a District Court claimed that because Appeal, justice increase, the date of the 1905 he had been after effective he appointed the constitutional salary provision was entitled to the under mak- higher the Court of the same as Appeal salaries of District those of ing justices this Supreme rejected Court The Court claim Supreme stating: justices. 'What, then, of the the court justices supreme are the salaries to of court must for the conform? present which those of the district justices the which be under the Clearly may payable not salaries hereafter when a new term of some of the of the su- justices amended statute the now present shall have but salaries allowed and begun, court preme (Harrison (1905) 69, 72; at Colgan p. law.’ v. 148 Cal. by by them paid words, added.) justices italics In other even Court though Supreme an compensation, a future to increase in until the in- right have might be within crease effective it could not considered the salary became the District Court of Appeal of provision entitling justices meaning The of a salary Supreme as Court salary Supreme justices. the same what was then So here. The of justice paid. Court was he being salary is he For ex- being an elected state officer the amount is presently paid. in its wisdom a passed if in 1976 the had ample, January Legislature for the calendar justice law the a Court of making salary Appeal of had the as of a Court then Supreme justice, 1977 same that year 1976, of law thus future Court returning Ap- the in repealed February amounts, under of Harrison reasoning salaries their peal original which materialized could not be consid- increase never prospective in would have occurred reason salary ered and no reduction salary, 68203 provided judges former section repeal. Although of increases, future increases did those receive annual cost-of-living would 4, III, until of article section meaning within salary not become as current payable salary. had become they future pay. not pay, is salary present point, “To conclude the Is a Reduc- Not Salary Increase “C. a Prospective Elimination of in Salary. tion issue, three the precise court has decided no California

“Although a of pro- that elimination argument have rejected cases Jersey New (Greenway salary. constitutes reduction in salary increase spective 890, 145 461 A.2d (1943) 129 N.J.L. v. Board Education [29 of (1944) 131 N.J.L. Education Board v. State 404]; A.L.R. Offhouse Orange, West Town v. Bd. Ed. 884]; A.2d Kopera 391 [36

559 Co. (1960) Essex In Green- A.2d N.J.Super. 846].) [158 way, supra, prohibited a New statute local school Jersey boards from teachers’ A reducing existing salaries. local board’s teachers’ salary schedule, which future increases for provided incremental teach- salary ers, was local as repealed the board an measure by economy the during A teacher contended that the the depression. repeal of in- prospective crease the local board constituted an reduction in impermissible salary the state statute. The New court contrary Jersey disagreed, holding that do not increments become of a teacher’s part salary until accrue, and that they until accrual their does modification not consti- (29 891.) tute a reduction in salary. Offhouse, A.2d at In supra, p. the court made the same point: accrued under valid ‘Only increments a and subsisting of the local board regulation repeal. are beyond Unaccrued increments not the do take classification of within the intend- ‘salary’ (36 ment of 887.) A.2d at And in Ropera, supra, the p. [the statute].’ court said: ‘The failure to an receive increase of salary does not consti- (158 tute a 846.) reduction.’ A.2d at p.

“Plaintiffs seek to distinguish these cases on the ground that they deal with a mere statutory prohibition and against reductions not salary with a constitutional prohibition. Such a misconceives the is- suggestion statute, sue. The New the Jersey like constitutional at provision issue here, prohibited reductions; there, here, the issue salary as was whether a repeal by subordinate of body it prospective increases had previously authorized constituted a in salary reduction within the meaning the statutory prohibition. The New not, courts held it did Jersey stating: accrual, ‘Until the or modification of the rule repeal providing for increments does not constitute a within reduction the intend- salary ment of A statute], regulation for a providing increments is mere [the declaration of is legislative that at all times policy subject abrogation (Offhouse Board by the local in State board v. public interest.’ Education, 887.) 36 at p. supra, Jersey A.2d The New cases thus fur- nish valuable precedent for resolution of the issue at bench. however, from

“Apart precedent, other fundamental considerations be must taken into The ulti- account. Constitution gives Legislature (art. VI, 19) mate for nd responsibility salaries for fixing judicial § other as fixing governmental salaries well. In 1964 the first Legislature experimented with a for salaries system automatically adjusting judicial 1976, however, to the viewed from cost-of-living. experiment, By whole, the legislative of state a had an perspective produced salaries as as imbalance a result of a which full cost- structure salary provided branch of-living adjustments for one of officers of one only group only to im- government. have Obviously, might responded Legislature balance all of inflation. by raising pressures state salaries to meet the For reasons of chose to do Such concerns political economy it not so. are branch, set- of the whose task responsibility legislative salary difficult, task delicate, is of its ting troublesome. The complexity III, counsels of the Con- judicial caution article section construing for stitution so mechanism broadly that with new any experiment cast in constitutional determining future increases becomes salary stone.... 4, III, would accepted,

“Plaintiffs’ of if interpretation article section the the to take effective action seriously power Legislature of cripple sal- judicial an area of its concern—its of important fixing and sensitive 19, VI, aries to the Constitution. Under pursuant article section of a kind of sor- plaintiffs’ the would become interpretation Legislature to never able cerer’s to turn but apprentice—able money spigot on does, insist, a pre- shut it off. It to as the that is one Constitution thing established, a term not be reduced during judge’s sent once salary, may office; find a it a to argue legislative experiment of is another to that into has been transmuted better mechanism for salaries setting judicial tradition, exemplified an irreversible economic Our constitutional grant. (Ct.Cl. 1977) F.2d as Atkins United States v. 556 by such decisions cert, 751, S.Ct. 1028, (1978) 434 1009 L.Ed.2d 98 denied U.S. [54 and over responsibility broad authority entrusts to 718], Legislature VI, 19.) (Cal. Const., We reject art. salaries. increases judicial § III, 4 Consti- article section of California plaintiffs’ argument a increases salary throughout future precludes adjustment tution term of office.” judge’s Disqualification judges

III. notably were this lawsuit have adjudged to who should as Questions Ne- the Rule of Clark’s brief discussion than Justice troubling more {ante, 537). implies p. cessity (Messrs. and Levit Cher- 16, 1978, plaintiffs counsel for

On January as “The Falk) parties follows: (Mr. stipulated nick) and defendant of Civil Proce- to Code pursuant motion any to make their right waive if Zack and Ernest J. Hupp L. Harry as to judges 170.6 dure Section 561 this action is to either of such but reserve their to assigned judges right any make motion law if the case is other permitted by assigned any ”. . judge.. That reference Code of Civil was signifi- Procedure section 170.6 cant. It is the section that of a trial governs imperative challenge Its v. Solberg Superior judge. potential was documented in impact Court (1977) 460, 19 Cal.3d 182 P.2d Cal.Rptr. 1148]; cf. [137 Martini, to End Legislators Urged Judges, Trial The Los Affidavit of (Dec. 12, 1979) 1; Angeles Journal Daily letter from page Maynard id., (Jan. 10, 1980) (the Craig, 4. Since date the page January filed), stipulation was have imperative seem not to been an challenges issue in this case. 22, 1978,

On November Messrs. plaintiffs’ Levit Chernick filed brief in the Court Appeal. stated: offered to They “Respondents stip- ulate that (for be case to a tern assigned judge pro example, retired federal like) a law school or judge, professor, dean or the so that no judge who was affected would be to decide by litigation required (C.T. 17-18.) offer, the matter. declined but Appellant such in any (as (C.T. event 303)), Appellant concedes under of the Rule Necessity, no is judge disqualified this case. That rule hearing California from has been recognized to to uniformly operate permit require and judges to determine in causes which all are in judges interested or- financially der to preserve words, access to the In other all courts. if are judges disqualified, (Italics none are.” added.) counsel’s that “it

Notwithstanding contention is not to susceptible doubt Court of 2d is Appeal, qualified, autho- that...[the District] rized, and required case,”1 Lillie, to decide the instant Justices 13, Thompson, 1979, and on Hanson March “that requested Division One be (See relieved of and all in any further action the within appeal.” A.) 20, their letter here appended as Annex On March an order signed Chief Acting Justice Tobriner transferred the from cause Division One of the Court of to Two. Appeal Division 1 245; (1920) e.g., Footnote brief 253 plaintiffs’ 3 of reads: “See Evans v. Gore U.S. 501; 277; (1925), O'Malley (1939), v. 307 Woodrough Miles 268 U.S. v. U.S. Graham cert, 1028, (Ct. 1035-1040, 1977), (1978), v. Cl. denied

Atkins United States 556 F.2d 1009, California, applied 434 U.S. 98 718. The same rule has been in and it is S.Ct. authorized, susceptible that this to de qualified, not to doubt court is and REQUIRED [capitalization added], City cide the instant case Brenkwitz v. Santa Cruz Cf. of 812, (Rule (1969), Cal.App.2d Cal.Rptr. Necessity Applied city 272 77 of to coun 705 (1969), engaging procedure); Optometry v. Board cil in reassessment Barkin 269

562 (Annex A) is because noteworthy

The letter Lillie-Thompson-Hanson case, Civil sec- for the first time in this Code of Procedure apparently, 170, It a justice tion 1 mentioned. appears disqualify subdivision was “a or is “in- or when she or he is judge party” from action sitting any have (Because terested.” so and seem to recently many lawyers judges words, I 170 of its exact discussed section without evident awareness B.) the absence refer- append any it here as Annex Notwithstanding section, Lillie, ence to in the Justices the “rule of code necessity” it us Thompson, permit and Hanson “... no doubt would observed to sit and this act on appeal”. 11, 1979,

On Two of the Court of Ap- June of Division opinion issued; (Justices Roth, Beach) was and matters peal Fleming, were of as follows: “Members pertinent disqualification disposed is in- this court the cause even each though financially may adjudicate not terested in Ordinarily, justice may the outcome of litigation. interest, but on in which he has a pass any personal cause judgment are, be, when in the may financially all state or interested justices (Evans outcome, (1920) 253 245 Gore of them sit. v. U.S. any may [64 Atkins v. United States 887, 550, L.Ed. 40 S.Ct. 11 A.L.R. 519]; (Ct.Cl. 1028, 1977) 1035-1040, (1978) F.2d den. 434 U.S. 556 cert. v. Pac. Mutual L. Ins. 751, Caminetti 1009 718]; L.Ed.2d 98 S.Ct. [54 Co. Brenkwitz v. 344, City (1943) 22 Cal.2d 366 P.2d 908]; [139 Bar- 812, Santa Cruz (1969) Cal.Rptr. 705]; 818 Cal.App.2d [77 kin v. (1969) Board 719-720 Optometry Cal.App.2d [75 of (1968) Cal. City Dairy Valley Gonsalves v. 265 Cal.Rptr. 337]; of 400, In such App.2d Cal.Rptr. 404-405 instances... 255].) [71 all The of this disqualification disqualifies application of none. judges States, Atkins v. United rule has in a supra, been discussed length at class federal to recover additional com- judges action on behalf of all exhaustive discussion of for their services as and the pensation judges, 1040) issue in Atkins the further discussion here (pp. 1035 to makes court, to which the cause necessity Under the rule of this unnecessary. Court, is both and qualified was the Supreme transferred California the obligated to decide cause [italics added].” 719-720, rule); 714, of Gonsalves (statutory application Cal.Rptr. 75 337 Cal.App.2d 404-405, (rule 400, is 71 255 Cal.Rptr. (1968), Cal.App.2d City Dairy Valley 265 v. of it a before duty upon act matter body has to where an administrative well settled that matter, may have that members the fact acting in the entity capable of only and is the per- from disqualify them taken not action does the result of the personal interest in forming duty).” their

563 20, 1979, the to Chief Plaintiffs’ counsel then wrote letter of July Tobriner, is here as Annex C. appended Bird and Justice that Justice reads, “It is submitted that The next-to-last the paragraph respectfully to of the above circumstances 3 6 the paragraphs suggest letter] [see and on the of the Chief Jus- possible part of bias appearance prejudice issues involved in respect tice and Justice Tobriner with basic this case, and that therefore should themselves.” disqualify they here, D

Annex C first Annex which the Chief Justice and discusses 16, 1978, as Chairperson Justice Tobriner wrote on June and Vice of the Judicial Council. Annex C then recites that “Jerome Chairperson Falk, Jr., Esq., B. for the defendant and principal attorney appellant herein, is as co-counsel for the Chief Justice in a matter acting now on before Commission Judicial Performance.” That “mat- pending ter,” course, of was the 1979 partly public, partly investigation private all Supreme seven Court justices. (Annexes

In 26, E, F, three letters dated 24 and 1979 and September here), plaintiffs’ G that suggested counsel Chief Justice Manuel Acting and Acting Justices Brown and Racanelli withdraw from the case.2 Tobriner, and, Unlike the Chief Justice and Justice did not recuse they instead, participated oral and in the calendar argument conference and have signed opinion. majority 2ln arguably politically cases that were sensitive law firm one involved here has See, uniquely justices. seemed possibilities removing e.g., alert as to the page 6 of the 14, (1978) letter dated March 1978 in State South Dakota v. Brown 20 Cal.3d 765 758, (“It Cal.Rptr. 576 P.2d would appropriate be for this Court effect [144 473] case...”); reading withdraw from the also the footnote as page follows on 5 of the 14, statement declaration filed on May Governorship (1979) 1979 in In re Cal.3d Cal.Rptr. 603 P.2d “Neither Sections 170 and 170a [160 nor 1357]: guidance the cases decided provide thereunder clear toas whether the members of this appointed by Court Governor involving Brown. . .should be recused in a case that same powers of appointment Governor’s an vis-a-vis those a Lieutenant Governor iswho from opposing political party. public’s It would seem clear confidence in the case, itself, process by which a decision is ju reached in this in the decision and in the diciary, only strengthened by could be justices of withdrawal those from the deliberations in this case....” 11, 1978, August Cf. the Chief argument Justice’s remarks on at the Amador (ap- 28, 1979, H). pended here as Annex On December erroneous news stories re v. Brown reported disqualified Curb that “Bird appointed by herself because she was Brown.” (See, e.g., Times.) dispatch the A. P. 1p. My understanding on of the Contra Costa is that she recused herself because she chairs the Appointments Commission on Judicial and was a party therefore to the Note too reply Judge action. Justice Tobriner’s to (Annex regarding here); Arabian that case N possible disqualifi- also the comments on Politician, campaign (Mar.

cation because of in contributions The Robed 2 L. A. Law. 1979) pages 30. sum, themselves

In no trial but five recused judges appellate judges was Three challenge. in this case—three of them even there no though unanswered unfortunately others refused to after An recuse challenge. did for re- is whether the who did recuse so reasons question justices that in fact seem more than impartiality compelling every garding conceded the amount of her or his concerning monthly interest judge’s salary. have respected in this the here

By participating justices case seven Atkins, the of Yet the cites necessity. opinion only supra, rule majority I the 556 F.2d The most discussion know of perplexi- 1028. informative Davis’ ties and of the rule in section 12.04 of Professor scope appears (hereafter Law Davis supplements) Administrative Treatise his (plus Treatise). in His conclusions are etched these comments by introductory “Interest”; 12.03, which who stands to or gain section deals with “One a is reason of in- disqualified by lose decision either personally by way terest the of the to exercise of functions. Most participate judicial with equal law because of interest concerning disqualification applies and The force to to administrative judges adjudicators. omitted.] [Fn. and the law dis- overwhelming almost about overshadowing fact of that, section, as in the interest is we shall see qualification ensuing for (Italics necessity.” most that law is the rule largely defeated added.)3 a to ignored corollary Is it that overlooked or possible my colleagues impact? the rule of well have had a necessity significant might That is that who but for rule would have been dis- corollary judges stance; that is to should a qualified say, bend-over-backwards exemplify and issues with both marked proffered should they approach legal (See prin- Treatise at 166: “Whatever the p. care. the Davis exceptional cases, cases which courts extraordinary impel . . .for ciples ordinary extraordinary often deserve necessity may to resort the rule Davis, Administrative Law: 358-359 of pp. See also scrutiny....” (6th 1977): auto- easy seemingly ed. “The Cases—Text—Problems than is dangerous is more necessity matic of the rule of application result may for opinions, grave injustice recognized typical judicial cases. . . escape disqualified adjudicate from officers allowing .[An] “interest,” affidavit Davis is that conclusion 3Regarding parameters “[a]n (Treatise alleges impersonal prejudice’.” ‘an ignored is when it charging properly bias Further, law or that an attitude about 146.) and consistent p. “The law is clear at case animosity party, as distin toward ‘personal’ not unless it involves policy or facts is issues, {Id.) party.” opposite an guished from or favoritism toward route. . .is. . .to review both more and more broadly when intensively the rule of is invoked than when no bias necessity gives rise to use of the rule of Is it that necessity.”) perhaps regrettable words of the disclose no of that majority opinion honoring here? approach A. For what reasons should be judges disqualified?

In California law (1) includes governing disqualification Code of (Annex Civil here) Procedure 170.8, sections 170 B and 170a to a plus Code, 703; Code, few unrelated statutes Prob. (e.g., Gov. § §§ (c) 87101); (2) subd. and certain clauses in the state and federal Con- stitutions; (3) rules; certain canons of conduct judicial and comparable (4) and countless written opinions of courts and other adjudicative (A bodies. brief O; is bibliography appended here as Annex see too K.) Annex C, E, F,

Interestingly, counsel Annexes and G do not stress that that, It law. is in so California cases surprising many where disqualifi- arisen, cation issues have and have lawyers judges proceeded argue and decide the issues without search and citation. appropriate Disquali- fication law, law is perhaps less than tax complex or say, corporate law; securities but no means is it accurately portrayed judges’ and law professors’ news folklore, commentators’ law- assumptions, or yers’ “Bias,” untutored assertions. “fair and “prejudice,” impartial,” “interest,” and related words are like so words in our many state’s laws. For enlightenment, legal research is essential. The chances are that reli- able guidance will be only rarely editorials, found in and TV newspaper speeches at bar meetings, common catechisms.

B. Should a judge continue to sit even when she

or he would like to withdraw a case? from The oath of office requires each “well and judge dis- faithfully charge means, believe, duties” of That I judging. that none of us should recuse herself or himself merely because so litigant requests. Nor should a recuse judge because she he merely or thinks there is too do, much other work seat, or wants to off the hot or is fearful get that participation criticism, and relevant ridicule, rulings might inspire or political attack.

Prior to the enactment of Code of (the Civil Procedure section 170.6 procedure for imperative of a challenges trial this court judge), de-

566 state a has superior of this judge “Under the Constitution dared: his office he takes perform. Upon assuming to and duties powers certain and he will the state federal support an that and subscribes to oath the of his of- discharge will duties faithfully and that he Constitutions the best of his One of ability.... court to superior fice as a of the judge causes to him unless in presented to determine those duties is hear and He or unable to act. not evade may is disqualified a cause he particular need au- too numerous to citation In duty. proceedings or avoid that of that when discharge duty required has been judge a thority superior v. a to act.” Austin Lambert to justify no cause good appeared refusal (italics 73, 849, added). 115 75 A.L.R. (1938) 11 P.2d Cal.2d 849] [77 and, words, absent submit, every I still appellate judge Those govern (See trial also Swan v. Tal- every challenge, judge. a proper imperative 143, (1907) 238].) 144 P. 152 Cal. bot [94 Also are these known comments of Justice Rehn- pertinent widely is entitled to have case heard a quist “Every litigant 1972: his oath, But neither the the disqualifi- mindful oath. judge federal] [the statute, the of the former Justices of this Court practice cation nor each will start off from dead center in a guarantees litigant judge the of counsel ability opposing arguments his or to reconcile willingness ” (409 the law. . . with his Constitution the . U.S. understanding Further, . .1 conclude that the p. 61].) appli- at 838 L.Ed.2d at “. p. [34 in this cable statute does not warrant case. my disqualification Having said, I fair-minded dis- judges might so would concede that certainly to be resolved favor of the If all doubts were agree about matter. I be- myself simply be that should may disqualify it disqualification, one, debatable even though I as fairly cause do regard question again, Here one’s sitting. I it in favor of would resolve upon analysis [II] view process he takes depend upon course of action well may Appeals disqualification. Of That Have Courts Those Federal Unanimously A That Concluded Have Considered The Matter Duty Judge Disqualified A Not Sit Where Which Has To Federal Duty Strong Disquali- To Not Sit Where Is Equally As The As his, capitals italics (409 60]; L.Ed.2d at p. p. at U.S. [34 fied.” in Laird v. Note, mine; Participate Decision see Rehnquist’s Justice The 106; review of cf. Neier’s (1973) Aryeh 73 Colum.L.Rev. Tatum “At time (Feb. 2, 1980) 120: pp. Brethren in The Nation avoid casting he wanted to himself, was that view my recused Douglas to impeach while the effort desecration upholding flag vote deciding A could have ignited him was still over smoldering. controversy flag in The Brethren it I would have been to find another view again. happy avoided.”4) that could have been easily instead of misinformation Remarks Concluding discussion of recu- that further hope

Part III of this reflects opinion intent is to no imply be nurtured. My sal and disqualification may above), I note Rehnquist (quoted of Like Justice criticism any judge. that that, Yet I believe strongly “fair-minded might disagree.” judges and that should precedential rulings issues should be aired troubling only orders and other available papers not be entombed unpublished in court clerks’ offices.

I have not discussed yet procedures for The rules are disqualification. Not complex. is known about them or their in Califor- enough history nia, as to especially appellate judges. Appropriate analysis requires untangling a morass of precedents and that practices unjustifiably (See would lengthen comments here. the brief my discussion of Code Proc., Civ. III, above; 170.6 at the Part the 2d beginning cf. my § (et (Annex par. seq.) here), of subd. 5 of 170 B which trial governs § judges only.)

New law on the of substitute role courts and the rule of necessity could have indorsed Mosk v. Superior was great procedural impacts Court 474, (1979) 494, 25 Cal.3d 601 Cal.Rptr. P.2d [159 1030] (“where... all the Court Supreme were justices ultimately disqualified, the Chief Justice is to make the tern empowered assignment pro jus- [of (Cf. under the rule of necessity”). Kleps, Disqualifications, tices] interest, [judges] imagined charge regardless of yield every of conflict of 4“[M]ust merits, long Surely believes it? No. there public so as there is a member of the who objective justice’ any inquiry ‘appearance can be some content to into whether the public have compromised given complaining party has been in a case. The or the must judicial impartiality jeopardy. Courts can handle such an a reasonable fear that is in subjective concepts of rea inquiry despite qualities, they its since deal all the time with sonableness—enforcing the Amendment’s ban on unreasonable searches and Fourth seizures, basing pedestrian or behaved example, liability for or civil on whether a driver (1974) (Mackenzie, reasonably Appearance under The of Justice the circumstances.” 240.) p. Substitute (Oct. Courts and L. A. Journal Assigned Judges, Daily 1979); and see here; the last of Annex P paragraph also Annex Q.5)

For full awareness of the innumerable rules that do affect the well duties, and faithful not our consciences but discharge judges’ only regard disqualification 5With to the appellate judges by colleagues, of their footnote that, 2 of the opinion reports Mosk case by on motion the Commission on Per Judicial formance, 19, subsequently “this court Sep. found and declared that Justice [on 1979] disqualified Newman was is participating (25 480.) from in p. this case.” Cal.3d at There 6, 1979, court, August no mention of the fact that on except the same for one mem yet ber appointed, not at its first conference filed a public denying formal and order that (Newman commission’s motion disqualify to participating). not Annex J here is September disqualification 19th justices order of the four who wrote neither an opinion nor explanation. unpublished dissenting an The opinions of Justices Miller and Hopper appended (Cf. are as Annexes K and L. Kleps, Judges Should Use Lawsuits 8, To (Nov. 2.) Raise Judicial Issues? L. Daily 1979) A. J. p. at (six my colleagues Supreme Appeal jus- The views of twelve and Court Court six of tices) regarding justices ought Appeal which Court of to be excluded from the 1979 might substitute appear perplexing. court to astute observers The first order declared “replacement by Supreme justices that lot the six Court who should not [of recused]” assignment result of “Justice Bertram D. the four of Janes.. .and members Divi- Two, order, party litigants.” sion Two of District all of whom are The second issued withdrawal, again after Justice Jefferson’s The third ensured that his name would not be selected. order, following disqualification, Newman’s also excluded “Justices.. .Alar- Thompson.” why they why con and I do not know were 1 named. Nor do know Justice since, though Racanelli was not named he had withdrawn from the Judicial Perfor- Supreme inquiry, mance Commission’s Court he still was a member of the commission arguably party litigant. and thus a just justices might That Supreme Appeal someday not Court but also Court of be af- by proceedings opened public fected commission to seems to have concerned no one. justices did prescribed “by any Nor the 11 who the various lot” selections evidence con- regarding justices very strong cern certain Appeal public Court of whose views on vs. private proceedings were known. mentioning justices finally disqualified Is it worth that the four who Newman order, unprecedented by seemed unconcerned that their accompanied opinion no or ex- planation, might might every even personally, potentially later affect them as it affect justice? Appeal Court of bias, 6, 1979, interest, August any On deny possess Justice Jefferson stated: “I that I prejudice, fairly preclude acting objectively, or other mental which me attitude would from Nevertheless, impartially and in the above entitled matter. I have no desire or party expressed wish to sit on able to am belief I will not be this case which a thereto has a objectively, fairly impartially Consequently, I and determine the issues involved. withdrawing justices He herewith as one of the selected to sit in this matter....” reasons; may good litigant’s expression have had but I believe that a mere of a belief Mitchell, (Cf. justify appellate judge, does not itself the recusal of an ever. Silber- 2, 1979, M.) berg Aug. & as Knupp letter of attached here Annex Uniquely intriguing Ap- filed at least 11 Court of are the statements recusal (1977) peal justices in v. on Judicial 19 Cal.3d McComb Commission Performance 459, Supreme apparently de- Spec.Trib.Supp. Cal.Rptr. 1 564 1 The Court P.2d. [138 ]. 89, against (1977) Cal.App.3d 99 Superior cided recusal in v. Court McComb [137 .denied”). hearing.. Cal.Rptr. (“application for a 233] will to be have requirements also and procedural both substantive recuse and Temptations much care. to searched and researched with (1) are because likely multiply formal motions for disqualification as newly more and decide to lawyers exploit challenges more may (2) will be part honed challenges inevitably and weapons advocacy, disturbing many judicial of the now-recognized politicization 3, ante-, (1979) 514, (Cf. v. 24 Cal.3d concerns. fn. Tanner People benefit, 450, California will I Cal.Rptr. 328].) 545-546 596 P.2d [156 those as problems they if its do to suggest, judges respond many other often us but impede law that confound problems involving sorely us not.

The for petition Cory rehearing was denied appellant May Tobriner, Bird, J., J., 1980. and did C. not therein. Brown participate (G. J.,* A.), J.,* Racanelli, Newman, J., and therein. and participated Racanelli, J.,* were of the view that the should and petition be granted then rendered the denial following opinions to the separate dissenting rehearing. Dissenting. On

NEWMAN, 30, 1980, May five justices concluded J. (1) that in this case there should be no (2) and rehearing, that nonethe less their must “opinion” (in be modified. I set I) forth here Part the reasons for belief that my is rehearing (in needed and II) also Part that, modifications earlier my opinion because of the majority’s modifications and because of facts and arguments that seem to me to appear documents, in the only I rehearing now regard as essential. I dissent: is a Why needed? rehearing

Part I. The California in VI, Constitution article section 14 distinguishes between “opinions of the Court” Supreme and of the Su- “[decisions preme Court.” As to opinions, only express commands in the Con- (1) stitution are that the Legislature provide for prompt publication of those the court deems published, (2) should be and that the so opinions selected be available for publication by any person.

The command that affects decisions is notably more comprehensive. Whenever decisions “determine causes shall be [they] in with writing reasons stated.” There are exceptions. no Yet what has happened this

*Assigned Acting by Chairperson of the Council. Judicial

case, is apparently, that the majority while their purporting modify have in fact modified their opinion Have decision. stated rea- they any sons? The answer is No. Therefore it seems that have they acted (See Court, 24(a): too Cal. Rules unconstitutionally. rule “. . .Where an is opinion modified without in the . such change judgment. . modifi- cation shall not postpone ..; time that the decision becomes final. but if the is judgment modified. .. the period specified herein begins to anew,

run as of the date of modification.”) In what critical has respects the decision here been altered? The ma- first, now decide jority terms judges serving protected should not aget that “will salary continue after 1 1977 to January increase in pro- (see portion to the CPI” the first sentence in fn. 9 of their original opinion, which is deleted); second, being and that a judicial pensioner must suffer (i.e., the base correspondingly for his or her benefit after the expiration of a protected term not reflect a may that has in- salary creased in to the proportion Index). Consumer Price

Also, certain judges pensioners will be affected the new hold- term, that a ing protected even when it has not expired by its running (“in course the case of trial no later judges, than the first Monday and, January 1981 in the case of appellate justices, no later than the first in Monday 1987”), January nonetheless will be deemed terminated “by incumbent, death of the retirement, by election or by removal to office, another (See or other by departure from office.” the majority’s ) new fn. 10. that is so Inexplicably, the “a notwithstanding phrase elected judge to an unexpired term serves the remainder of the term” that VI, 16, in article appears section (a) subdivision of the California Constitution.1 mean, wonder, salary by 1 these “If benefits are majority docs the words: 1What Const., (see judge Cal. art. .during unexpired predecessor the term of a diminished. . VI, 16; Code, 71145, 71180), the con judge the is nevertheless entitled to Gov. § §§ {ante, 539)? during p. of such term” at benefits the remainder tracted-for paragraphs majority's “for the office” from the last two the deletion of Note too of (26 based “judicial pensioners whose benefits are opinion pp. Cal.3d at 686-687: the judge”). salary the office of such a on. . .the for “salary by phrase the resolve uncertainties created By no means does that deletion introductory the sentence of justice occupying completes that office” that judge the or instance, nobody occupies if the office? what majority’s the new CONCLUSION.For “incumbent,” majority least three times in the used at puzzling are the words Also office,” to phrases four times. The “office judicial used at least

opinion, “particular and “the office for- judge appointed” elected or and deceased was last which the retired or (See Cal.3d at judge” appear. also 26 or deceased merly occupied by the retired 681-682.) pp. No have Thus reasons been forth to those alterations. the put justify with reasons writing Constitution’s command that . .be “[decisions. stated” has been disregarded.

Further, this court not still does know who the exactly among judges and be pensioners affected the Yet may adversely alterations. by many heard, of them have not been within the of due re meaning process quirements, because received no notice intent they any so to modify the initial decision. To accord the to be heard is a com opportunity pelling reason should be We why should not rehearing granted. pre tend that the modifications are or majority’s inherently demonstrably uncon testable.

In we and addition should not that the briefs other re- pretend papers ceived here merely since March 27 restate that were consid- arguments ered the court of the initial by prior opinions. issuance On con- the new focus on which trary practical complexities inequities, indeed are of the troubling, requires thorough reanalysis majority’s original assumptions and intent.3 presumptions regarding legislative I have not discussed the majority’s (filed second Opinion” today), “Modification of which also alters the March 27th decision and reasons. it was in- Apparently states no spired by on June petition plaintiffs “For Opinion” Further Modification of was filed 3, 1980. 1980, Acting 2Compare excerpt April letter of Chief Justice this from the by Presiding Judges’ Angeles County: Manuel of the Association Los Chairman attorneys “Up thought being repre were out for to now we our interests looked down, however, senting plaintiffs case. Since the decision has come named said conflicting we the has which have found that decision itself created numerous interests fairly make to all of us. to let impossible attorneys represent it for the Some wish the granting the strongly decision stand while others of in favor of of a Petition to us are attorneys representing the entire Reconsider a Petition for Intervention. The and/or urge you strongest 1 impossible fairly represent class find it to all of in the us. . . . [11] possible permit every judge opportunity terms properly through to in the State of the to be California represented this matter if he elects. This should be done either heard and in so Reconsideration, by a For a Intervention or some other Petition Petition For proper (Cf. your process meaning.” due disposal. means at In the absence of such has no 463, (1942) rehearing, “if Metropolitan Water Dist. v. Adams 19 Cal.2d 476: On opportunity litigants. reasonable to be is afforded the . .no federal constitutional heard guarantees violated.”) are Disaster, 18, Kleps, 3See Salary Angeles The Judicial Daily (Apr. Los Journal 1980) page at (as 3: “Justice makes point your Newman a with which commentator one legislation legislators 1969) who discussed the agree with and fully. in 1964 can law, believe, majority legislators 'The the of never approved they would have the I had been advised its a right cost-of-living that words created contractual to increases that the dissenting opinion II Modifications of

Part on 27 Cal. 3d is de commencing 1. The last paragraph page of 234, leted; on two are added page immediately these paragraphs two lines: following first case the seven here have justices respected in this

By participating Atkins, cites supra, opinion only the rule of Yet necessity. majority discussion I know of the perplexi- 556 F.2d 1028. The most informative 12.04 of the rule in section of Professor Davis’ scope appears ties and (hereafter his Davis (plus supplements) Administrative Law Treatise Treatise). are etched these comments in by introductory His conclusions 12.03, with “Interest”: “One who stands to or gain section which deals decision either is reason of in- way disqualified by lose a personally by in the of functions. Most of the terest to exercise participate judicial because of interest with applies equal law concerning disqualification The and to administrative adjudicators. force to judges [Fn. omitted.] about the law dis- and almost overshadowing overwhelming fact of that, section, in interest is as we shall see the ensuing qualification for the rule (Italics that law is largely most necessity.” of defeated added.)3 overlooked or ignored corollary

Is it that possible my colleagues well a significant impact? have had necessity might rule have been dis- who but for the rule would That is that corollary judges stance; that is to say, a bend-over-backwards exemplify should qualified with both marked and issues proffered legal should they approach (See at 166: “Whatever the prin- care. the Davis Treatise p. exceptional cases, cases which courts impel . the extraordinary for ciples. ordinary urge not a court to reconsider repeal.’. or . . One would would survive amendment [H] sort, In a case of this popular adverse reaction. its decision on the basis of a threatened however, be consequences can so is so fundamental and where where the issue any justice’s mind might Any doubt that exists grave, a further look not be amiss. salaries, judicial par- Legislature’s power to control of the should be resolved favor light conditions.” ticularly in of current economic (1979) County v. Sonoma County Organization Employees Cf. Public Sonoma Legislature intended by the claim that the persuaded 23 Cal.3d 319: “We are manner, dis- and that to in a uniform government employees and officers treat all local had a contractual employees who tinguish of the condition between application in the not, charter cities employees of who did or between right wage to increase and those a that intention.” general would violate under laws operating and counties and those

573 resort the of to to rule often deserve necessity may extraordinary Davis, See scrutiny....” pp. also 358-359 of Administrative Law: (6th 1977): Cases—Text—Problems “The ed. and auto- easy seemingly matic application of the rule of is more than is necessity dangerous recognized typical in grave injustice for result judicial opinions, may from officers to allowing disqualified cases. . adjudicate escape ..[An] to route... is... review both more and more when broadly intensively rule the is invoked than when no bias to necessity gives rise use of rule Is it necessity.”) perhaps that the words of regrettable no majority opinion disclose of that honoring approach here? inverted, 2. 2 Footnotes and 3 are “2” and substituted “3” on for 233.

p. 3. The that are paragraphs substituted the paragraph that follow for introduces the opinion on 219 beginning Cal. page 3d:

I dissent. case, One year ago, another I politically sensitive quoted Learned Hand (1979) as follows v. Tanner (People 514, Cal.3d 538): “‘When we ask what another Congress “intended”, legislature] [or answer, there can usually be no if what we mean what is person or any group of persons had in actually mind. Flinch as do, we what we may, do, and must is ourselves, can, project as best we into the position of those who words, uttered the and to impute them how would they have dealt with (United the concrete (2d occasion.’ States v. Klinger 1952) 645, Cir. 199 F.2d 648.) The added, distinguished justice ‘He supposes who that result, he can be certain of the is least fitted for the attempt.’”

How this might salary case have been decided each us if on the 1964, 1969, 1972, court had himself projected into the conscientiously and 1976 positions of those “uttered the legislators who words” are 1969, contained in the measures here? In legislative pertinent for in- stance, (or Counsel, what if a in debate legislator Legislative his stated, (1) had “Interested summary) observers have noted that for in- cumbent appellate increases based on the Consumer Price Index judges, will be irrevocably (2) until those terms guaranteed judges’ expire, for some incumbents terms will expire not until 1982”?

What if legislative committee chairman had advised: “For each are judge you being asked to an contract’ and to approve ‘employment endorse his her at ‘promised compensation’ pp. or [ante 539]. of adopt ‘agreements are about to you The bill as now drafted means [ante, constitutionally protected’ and binding . are employment. [that] our to pay would State provision’ require Its ‘full p. 538], cost-of-living full cost-of-living compensation [including all ‘the represented judges until office’; is, some judges their of that for for terms increases] Further, the of regardless from 1982—more than 12 now years [id.]. other will set for all state that, salaries in future laws years, officers with never the contracts and the may impair employees, Legislature is some adopt ‘“emergency” this unless there that bill would judges society”’ [ante, p. “a basic interest of serving protect to 539].” evi- I that no In brief I dissent here because am summary, persuaded intended ever dence whatever that the California Legislature suggests (1) (2) to adopt any formally recognized judges anything, promise (3) to modi- 538], preclude at or p. of “agreements employment” [ante were that demonstrably fication statute of by cost-of-living adjustments and tentative. experimental

If this court’s 1980 views had been forecast if slide-rule by anyone, the projections of now swollen and out-of- grotesquely embarrassingly line in the medium of the Consumer salaries—-cultured anachronically Price Index been if the scales that now have plan—had reported, pay full won the had been in Winchester majority’s arrayed earlier blessing that I think it is inconceivable the splendor,* legislators House Mystery would have enacted and left unchanged pending proposals—in 1972, and, Index for unrestricted use of Consumer Price not the sal only for Constitutional Amendment by rigidifying Assembly (as now seems hindsight aries elected officers but also state incumbent counsel) judges. for unique salary-adjustment-formula will I have failed to an- my as be think Finally, explained, colleagues swer in the of Appeal opinion several set forth Court arguments ably Beach, Roth, this J. concurring). case J. with P. J. and (by Fleming, 13, 1980, Acting Justice Manuel coun- May addressed to Chief *See the letter of just copy amicus have received a of the petitioners Kirkpatrick sel for et al.: “[We] Brown, Jr., The Gov- G. Governor. ... curiae brief submitted on behalf Edmund [H] opinion unequal position this Court’s creates agrees petitioners’ basic ernor with improperly court judges on the same compensation levels for and unreasonable greater are than lower which salary some members of courts levels for establishes .argues Governor’s brief.. higher courts. The compensation paid to some members of- nightmare’ both the Controller’s for has an administrative Opinion that the ‘created the terms of upon the ‘fortuitous dates Judges’ System based fice and Retirement thoroughly agree with these began We and ended.’... office of their successors [H] ” comments.... RACANELLI, J.*—Dissenting. I Part of Justice Newman. opinion

I in the join separate dissenting intervention those peti- and to rehearing permit by The failure to grant treated under our pensioners unequally classes of judges tioning a manifest to such discriminated injustice decision works original classes who have been foreclosed from assert- effectively independently (Cf. Proc., (b).) their interests. Code Civ. respective subd. ing § Moreover, the sensitive institutional raised policy questions de- in order that such unresolved issues cision mandate be rehearing may and determined. considered fully

*Assigned by Acting Chairperson of the Judicial Council.

Case Details

Case Name: Olson v. Cory

Court Name: California Supreme Court

Date Published: Mar 27, 1980

Citation: 636 P.2d 532

Docket Number: L.A. 31142

Court Abbreviation: Cal.