A lot of money is on the line. An appeals court justice filed a similar lawsuit a decade ago, and the state had to cough up $40 million after losing the case.
The formula at the heart of the lawsuit sounds simple. State law requires that judges receive annual raises based on the “average percentage salary increase” given to other California state employees. This year, judges received a 2.6% wage increase, down from 3.2% in the previous year.
But the state has fouled up the math before. The earlier case filed by a retired appeals court justice, Robert Mallano, turned on a mistake the state made during the Great Recession when it had withheld judges’ raises even though certain civil servants had received small pay increases. The state, ordered to recalculate judges’ wages, handed them $15,000 checks for missed pay.
This time, the complaint by Sacramento Superior Court Judge Maryanne Gilliard draws attention to one way Govs. Jerry Brown and Gavin Newsom raised pay for public employees without giving them substantial general salary increases. It alleges the state illegally shorted the judges by not counting some of the pay-raising perks that went into recent contracts.
Both governors signed contracts that included general salary increases of up to 4% that benefited all workers represented by a given union, plus more generous targeted raises for specific groups of employees.
The judges allege the state has been counting only the general salary increases in the formula it uses to set judicial raises — while excluding the more targeted salary adjustments.
“Defendant CalHR has intentionally modified the inputs to the calculation such that active judges and justices are paid less than the salaries to which they are entitled,” reads the complaint, filed in September in Los Angeles Superior Court.
Gilliard’s attorney, Jack DiCanio, declined to answer questions for this story. Camille Travis, spokeswoman for the California Human Resources Department wouldn’t discuss the lawsuit.
Gilliard’s lawyers and attorneys for the state appeared before a judge last month. The state’s attorneys said the department “has properly calculated state employee average salary increases” and that state law “does not require the inclusion of ‘all categories of increases’ when calculating state employee average salary increases,’” according to a summary of the hearing.
Gilliard’s lawsuit names the State Controller’s Office and the California Public Employees’ Retirement System as additional defendants. The controller’s office manages the state payroll and would have to make adjustments to judges’ checks if the lawsuit succeeds. Similarly, Gilliard’s lawsuit asks CalPERS to recalculate the pensions it provides to judges.
The base pay for California judges is the third highest in the nation, according to the National Center for State Courts. But when the cost of living is factored in, California is in the middle of the pack at 25th.
From furloughs to real raises
Three key dates stand out in Gilliard’s complaint, with each reflecting a milestone in state labor negotiations:
- In 2006, the lawsuit contends, the state included the special pay raises when calculating the judges’ raises. That was the last year that happened. That’s also when state finances began to nosedive in the recession, leading to the prolonged budget crisis that defined former Gov. Arnold Schwarzenegger’s second term. Schwarzenegger ordered unpaid furloughs for state workers beginning in 2009.
- In 2016, then-Gov. Brown signed a contract with the largest union in the state workforce that made heavy use of so-called special salary adjustments. The deal gave an 11.5% raise over three years to all workers represented by Service Employees International Local 1000, but about a fifth of them received targeted wage increases that brought up their pay an additional 2% to 15%. Gilliard wants the state to recalculate judicial raises back to that year.
- In August 2023, Gilliard began to question the raises judges had been receiving. Newsom that month reached a deal with the enormous Local 1000 that included even more special salary adjustments than the Brown-era agreement. More than 50,000 workers — half of the civil servants represented by the union — received the kind of pay increases that the judges want included in their raise formula. Those incentives are worth about $200 million a year.
Local 1000 is not the only public employee union to make use of special salary adjustments and other kinds of pay-raising mechanisms.
A 2019 contract for the union that represents Caltrans engineers, for instance, added substantial incentives for longevity. The newest contract for the union that represents state scientists doesn’t have a general salary increase at all. Instead, it lifts pay through the targeted raises for specific groups of workers that are at the center of Gilliard’s lawsuit and by changing pay ranges, according to the Legislative Analyst’s Office.
One-time retention perks are now routine
Eight years ago, union leaders characterized special salary adjustments as essential in keeping salaries competitive for certain high-demand workers. The biggest raises in the 2016 Local 1000 contract, for instance, went to highly trained actuaries.
Now, they are much more common. Last year, the legislative analyst who studies public employee contracts noted the Newsom administration did not explain why certain workers received extra money and others didn’t when it negotiated the most recent Local 1000 contract.
That “reduces transparency and increases complexity of the agreement with only days to review,” wrote analyst Nick Schroeder. “This limits the ability for both the Legislature and the public to understand why some state employee should receive higher pay increases than others.”
CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.
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