Matthew C. McGlynn v. State of California

In this mandamus proceeding, six judges who were elected to the superior court in

mid-term elections in 2012, but who did not take office until January 7, 2013, maintain

they are entitled to benefits under the Judges’ Retirement System II (JRS II)1

as in effect

at the time they were elected, rather than at the time they assumed office. This is a matter

of considerable importance to these judges because, on January 1, 2013, JRS II became

subject to the provisions of the California Public Employees’ Pension Reform Act of

2013 (PEPRA),

2 which amended virtually all state employee retirement systems to begin

addressing the state’s enormous unfunded pension liability and returning these systems to

actuarially sound footing. Among other things, PEPRA increases employee

contributions, provides for fluctuating contribution rates based on market performance

and actuarial projections, and bases the amount of monthly pension payments on an

employee’s final three years of compensation, rather than on only the final year.

We conclude, as did the trial court, that the judges did not obtain a vested right in

JRS II benefits as judges-elect, but rather obtained a vested right to retirement benefits



1 Government Code section 75500 et seq.

2 Government Code section 7522 et seq.

2

only upon taking office, after PEPRA went into effect. We also conclude PEPRA’s

provisions pertaining to fluctuating pension contributions do not violate the nondiminution

clause of the California Constitution (Cal. Const., art. III, § 4), nor do they

impermissibly delegate legislative authority over judicial compensation (Cal. Const., art.

VI, § 19). We therefore affirm the judgment.3

BACKGROUND

The petitioning judges were elected to superior court judgeships in June and July

of 2012. However, the terms of their offices did not commence, and they did not begin to

draw a state salary, until January 7, 2013. (Cal. Const., art. VI, § 16, subd. (c) [“Terms of

judges of superior courts are six years beginning the Monday after January 1 following

their election.”].) Other judges were appointed to office during 2012. Unlike appellants,

they assumed office on or before December 31, 2012, and the parties do not dispute that

their retirement benefits are governed by pre-PEPRA JRS II.4

There is an additional,

third group of judges—those who were elected during 2012, but who held public



3 Our Supreme Court has granted review in two recent cases addressing the

impact of PEPRA on other public employee retirement systems, Marin Assn. of Public

Employees v. Marin County Employees’ Retirement Assn. (2016) 2 Cal.App.5th 674,

review granted November 22, 2016, S237460, and Cal Fire Local 288 v. California

Public Employees’ Retirement System (2016) 7 Cal.App.5th 115, review granted April

12, 2017, S239958. Both cases provide an excellent overview of the financial crisis

facing public pension systems, and both address whether government employees have

vested rights in the way in which pension benefits were previously calculated. Both

cases conclude they do not. (Marin Assn., at p. 680; Cal Fire, at p. 121.) Neither case

involved judges-elect, nor did they consider whether PEPRA’s contribution requirements

run afoul of the non-diminution clause applicable to judges.

4 A judicial office is filled by election when the incumbent judge serves out his or

her full term and does not seek reelection to another term. (See Cal. Const., art. VI, § 16,

subds. (b), (c).) Because the judicial office remains filled by the incumbent until the end

of the term, the individual who has been elected to next fill the office cannot actually

assume it until the start of the new term. (Id., subd. (c).)

A judicial office is filled by appointment when the incumbent judge retires before

the end of his or her term. (Cal. Const., art. VI, § 16, subd. (c).) Because the office

becomes vacant upon a retirement, the appointee can assume the office immediately.

(Ibid., see Gov. Code, § 75522, subd. (b).)

3

employment at the time and, thus, were already members of a public retirement system.

Their retirement benefits are also governed by pre-PEPRA JRS II.

Between the time appellants were elected and the time they assumed their judicial

offices, the Legislature passed, and the Governor signed into law, PEPRA, which became

effective on January 1, 2013.

Appellants aver that prior to taking office, and in choosing to give up their private

law practices and go into public service, they relied on representations by the state about

JRS II. For example, after being elected but before assuming office, they were advised

by state personnel about the provisions of pre-PEPRA JRS II—which include an 8

percent contribution rate and a monthly pension benefit based on the final year of

salary—and were given a JRS II pamphlet. In fact, they allege state personnel expressly

represented that “[u]pon PEPRA’s passage and following its effective date,” the prePEPRA

provisions of JRS II would nevertheless continue to govern their retirement.

And, for more than a year after they assumed office, until March 2014, the state treated

the judges as within pre-PEPRA JRS II.

The state then did an about-face and notified appellants they were subject to

PEPRA’s less favorable provisions. As a result, the judges’ take home pay in 2014 was

reduced by 7.25 percent due to additional contributions to the retirement system (making

their total contribution 15.25 percent of their salary) and was reduced by a further

(unspecified) amount in 2015 due to an increased contribution rate. Appellants allege

they “are now subject to a fluctuating and increasing–as opposed to [a] guaranteed–rate

of contribution towards their pension benefits.” The judges will also receive lower

monthly pension payments, as under post-PEPRA JRS II, the amount will be based on the

average of their final three years of compensation, rather than their final year.

The judges filed a verified petition for writ of mandate on behalf of themselves

and those similarly situated to compel the State of California, the Judicial Council, the

CalPERS Board of Administration, and the state’s Comptroller (collectively respondents)

to include them within pre-PEPRA JRS II. The judges additionally alleged respondents

are subject to promissory and equitable estoppel.

4

The trial court sustained respondents’ demurrer, deeming it dispositive that

appellants’ terms of office and their actual employment began on January 7, 2013. Their

“statutory entitlement to pension benefits therefore began” after PEPRA was operative

and not in 2012, when they were elected to, but had not yet been sworn into, their offices.

“Accordingly,” said the trial court, “PEPRA does not unconstitutionally impair their

pension rights. Similarly, PEPRA does not violate the constitutional prohibition on

lowering judicial salary during a judge’s term of office. . . .” The court also rejected the

judges’ assertions that PEPRA unconstitutionally violates their right to equal protection

and delegates to CalPERS the Legislature’s authority to set judicial pay. The court

concluded estoppel could not apply because the state respondents could not be compelled

to act beyond their authority, which they would do if they treated appellants as within

pre-PEPRA JRS II.

DISCUSSION

Appellants are Subject to PEPRA

The Judicial Retirement System and PEPRA

In 1994, the Legislature made major changes to the then existing judicial

retirement system, known as JRS I. (Cf. Gov. Code, §§ 75000 et seq., 75500 et seq.)

5



These changes included significant contribution increases, lower monthly retirement

benefits, the elimination of the option to retire before 20 years of service with a

correlative reduction in pension benefits, and the elimination of an economic incentive to

defer retirement and work several additional years. (§§ 75521, 75522, 75601, 75602; see

Warner v. Public Employees’ Retirement System (2015) 239 Cal.App.4th 659, 667.)

Accordingly, under this more recently enacted retirement system, known as JRS II,

judges receive significantly reduced retirement benefits than were provided under JRS I.

(Id. at p. 667.)



5

All further statutory references are to the Government Code unless otherwise

indicated.

5

JRS II expressly described the judges to which it applied as follows: “ ‘Judge’

means a justice of the Supreme Court or of a court of appeal, or a judge of a superior

court, municipal court, or justice court who is first elected or appointed to judicial office

on or after November 9, 1994,” which was the day following the 1994 general election.

(§ 75502, subd. (a).) Accordingly, judges “elected or appointed” before November 9,

1994, were grandfathered into, and continued to receive, the more favorable benefits of

JRS I. (§§ 75502, subd. (a), 75000, 75500.)

Under JRS II, the “period of time a judge receive[s] a salary and ma[kes]

contributions to the system by reason of holding office as a judge” is known as the

judge’s “service.” (§ 75502, subd. (c).) The state and counties, as applicable, deduct 8

percent from a judge’s salary and deposit that amount in the JRS II retirement fund.

(§§ 75601, 75602.) After attaining either 20 years of service and 65 years of age, or five

years of service and 70 years of age, a “judge is eligible to retire” and receive a monthly

pension payment based on the judge’s salary during his or her final year in office and

length of service. (§§ 75502, subd. (d), 75522, subd. (a).)

In 2012, nearly two decades after the enactment of JRS II, the California

Legislature passed a comprehensive bill making significant changes to nearly all public

retirement systems, including to JRS II. (§§ 7522 et seq., 75500 et seq.) Effective

January 1, 2013, PEPRA affects public employees who are “new members” of their

retirement systems. (§§ 7522.02, subd. (b), 7522.04, subd. (f)(1), 7522.30, 7522.32.) A

new “member” includes “[a]n individual who becomes a member of any public

retirement system for the first time on or after January 1, 2013, and who was not a

member of any other public retirement system prior to that date.” (§ 7522.04, subd.

(f)(1).)

Among other things, under PEPRA, a new “member” must pay half of the “normal

cost” of pension benefits (§§ 7522.30, subd. (a), 7522.04, subd. (g) [defining “[n]ormal

cost”]), and the amount of a member’s monthly pension benefit depends on his or her

highest average pay over the final three years of employment (§ 7522.32).

6

Under the Statutory Language, Appellants are Subject to PEPRA

Appellants point out that they come within the parameters of JRS II—that is, they

were “first elected or appointed to judicial office on or after November 9, 1994.”

(§ 75502, subd. (a).) They do, indeed. But that does not mean they are not affected by

the amendments to JRS II made by PEPRA.

As set forth above, PEPRA took effect on January 1, 2013—six days before

appellants assumed their judicial offices. By its own terms, the Act applies to any “[n]ew

member,” meaning an “individual who becomes a member of any public retirement

system for the first time on or after January 1, 2013.” (§ 7522.04, subd. (f)(1).)

Accordingly, PEPRA applies to any judge who becomes a “member” of JRS II for the

first time on or after January 1, 2013. (See § 75505, subd. (a) [expressly amending JRS

II to require adherence to PEPRA to “the extent applicable”]; see also §§ 7522.02, subd.

(a) & (b), 7522.04, subd. (f)(1), 7522.30, 7522.32.)

PEPRA, itself, does not address when a judge becomes a “member” of JRS II.

However, JRS II and the Public Employees’ Retirement Law (PERL), read together,

provide the answer to this question.

The statutes establishing and governing JRS II instruct that the judicial retirement

system “shall be administered and governed pursuant to [PERL] to the same extent and

with the same effect as if those provisions are contained in this chapter [governing JRS

II], except for those provisions that . . . conflict with any provision of this chapter.”

(§ 75505, subd. (a).) PERL, in turn, specifies that an “employee becomes a member” of

his or her retirement system “upon his or her entry into employment.” (§ 20281, italics

added; see Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th 491, 499.) We

discern no conflict in reading JRS II as including this provision of PERL. In fact, other

provisions of JRS II are entirely consistent with PERL’s directive that a public employee

becomes a “member” of his or her retirement system upon “entry into employment.” It is

only upon assuming judicial office that a judge goes on the public payroll, is authorized

to perform judicial duties, commences making contributions to the JRS II retirement

system, and begins to accrue “monetary credits” towards a pension. (See Cal. Const. art.

7

XX, § 3 [must take oath of office before entering upon duties of office]; § 75502, subd.

(f) [contributions made from salary]; § 75520 [monetary credits].)

Appellants could not, of course, be said to have entered into judicial employment

as of the time they were elected. On the contrary, at least some of the appellants

remained employed by their law firms to conduct an orderly disengagement from their

practices and, perhaps, to ensure they received the full annual compensation they were

promised. As long as they remained employed by their law firms, they could not also be

employed as a judge, as judges are prohibited from engaging in such outside legal

employment. (See Cal. Code Jud. Ethics, canon 4B, D.)

Appellants’ reliance on section 75606 is misplaced. This statute prohibits judges

who are already bench officers, and who are seeking a new term or a different judicial

office, from withdrawing their pension contributions before the election or before

transitioning to their new office, if elected. (§ 75606, subd. (a).) In other words, this

statute applies to individuals who are judges and not merely judges-elect, and who have

already paid into JRS II and have already accrued pension benefits.

There is, moreover, a striking difference between the statutory language that

closed JRS I to future judges and established JRS II, on the one hand, and PEPRA’s

language modifying JRS II, on the other. As set forth above, the statutes closing JRS I

and creating JRS II specifically defined judge to mean “a justice of the Supreme Court or

of a court of appeal, or a judge of a superior court, municipal court, or justice court who

is first elected or appointed to judicial office on or after November 9, 1994.” (§ 75502,

subd. (a), italics added.) While this language may be reasonably susceptible to the

interpretation that judges who were merely elected or appointed before November 9,

1994, but who had not yet assumed their judicial offices, would become members of JRS

I, rather than JRS II, no such language appears in PEPRA. Rather, PEPRA specifically

applies to an individual who becomes “a member of any public retirement system for the

first time on or after January 1, 2013, and who was not a member of any other public

retirement system prior to that date.” (§ 7522.04, subd. (f)(1).) An individual who is a

judge-elect and not yet a judge, and who has never been a member of any public

8

retirement system, plainly falls within this statutory provision of PEPRA modifying JRS

II.

In an effort to overcome this difference in the statutory language of JRS II as

enacted, and as modified by PEPRA, appellants point out that, after the enactment of

PEPRA, some members of the Legislature became concerned about its application to

judges elected in 2012, but who could not, and did not, assume their offices until the

commencement of new terms, on January 7, 2013. Accordingly, the 2013 cleanup

legislation making numerous tweaks to PEPRA (Sen. Bill No. 13 (2013–2014 Reg.

Sess.)) initially included language that “would have excluded from the definition of ‘new

member’ as used in the provisions requiring new members to pay at least 50% of the

normal cost rate, a judge who was elected to office prior to January 1, 2013, but may

have become a member of the Judges’ Retirement System II (JRS II) for the first time on

or after that date.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No.

13 (2013–2014 Reg. Sess.) as amended Sep. 12, 2013, p. 2.) However, this language was

ultimately stricken from the bill before passage. (Stats. 2013, ch. 528, § 3; see § 7522.04,

subd. (f).)

The following year, in 2014, the Legislature succeeded in passing legislation

(Assem. Bill No. 837 (2013–2014 Reg. Sess.)) that would have “specifically exclude[d]

from the definition of ‘new member’ a judge, as defined in specified existing law, elected

to office before January 1, 2013.” (Ibid.) An assembly report stated the bill’s author

believed the legislation merely corrected a “ ‘technical’ ” oversight, that PEPRA “ ‘was

intended to apply to judges first elected or appointed after January 1, 2013,’ ” and that

“ ‘[i]t is clear under PEPRA that judges appointed before this date are included under the

old pension contribution rules.’ ” (Assem. Conc. Sen. Amends. to Assem. Bill No. 837

(2013–2014 Reg. Sess.) as amended Aug. 4, 2014, p. 2.) The Governor, however, vetoed

the legislation, stating: “This measure creates an exemption to the California Public

Employees’ Pension Reform Act of 2013. I am unwilling to begin chipping away at

these reforms.” (Governor’s veto message to Assem. on Assem. Bill No. 837 (Sep. 28,

2014) Recess J. No. 25 (2013–2014 Reg. Sess.) p. 6805.)

9

Appellants claim these recent legislative efforts show that the intent of the

Legislature when it passed PEPRA in 2012 was akin to its intent when it enacted JRS II

in 1994 and grandfathered in both individuals elected to and holding judicial office prior

to November 9, 1994. However, in our view, this subsequent legislative history

underscores that, as written and enacted, PEPRA does not grandfather into pre-PEPRA

JRS II individuals who, as of January 1, 2013, had only been elected to, but who had not

yet assumed, judicial office and who had never been a member of any public pension

plan. While some individual legislators may have been of the view that the language

proposed in 2013 and 2014 would make only a “technical” change to PEPRA to clarify

the Legislature’s intent when it passed the Act in 2012, it is too much of a stretch to say

that the unsuccessful legislative efforts in 2013 and 2014 reflect the collective legislative

intent in 2012, particularly since the proposed language was removed from the 2013

cleanup legislation while it was still in the Legislature and the Governor understood the

language proposed in 2014 as creating a new exception to the Act. (See Carter v.

California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922–923 [“ ‘court cannot

accept the Legislative statement that an unmistakable change in the statute is nothing

more than a clarification and restatement of its original terms’ ”].)

We therefore conclude that, under the relevant statutory provisions, appellants are

subject to PEPRA.

No “Vested Right” to Pre-PEPRA JRS II Benefits

Regardless of PEPRA’s language, appellants claim that, having sought and won

election to their judicial offices prior to the Act’s effective date, they acquired a “vested

right” in the retirement benefits provided under pre-PEPRA JRS II.

Appellants rely on language in cases to the effect that “the right to pension

benefits vests upon the acceptance of employment.” (Miller v. State of California (1977)

18 Cal.3d 808, 815 (Miller), italics added; accord Betts v. Board of Administration (1978)

21 Cal.3d 859, 863 (Betts).) They maintain they “accepted” employment as a judge on

being elected to the offices they sought.

10

However, neither Miller nor Betts involved an official-elect, and neither remotely

suggests an individual who cannot yet legally assume the office for which they stand

ready, acquires a “vested right” in any public benefit attached to that office. Indeed,

neither case addressed the meaning of the term “acceptance” of employment.

In Miller, an employee of the state controller’s office challenged a statute that

changed the retirement age for employees in his category from 70 to 67 years old.

(Miller, supra, 18 Cal.3d at p. 811.) The Supreme Court concluded the Legislature’s

power to reduce the tenure of an employee’s civil service position, by changing the

mandatory retirement age, was “not [] limited by any contractual obligation” (id. at

p. 814); the employee had “no vested contractual right to remain in public employment

beyond the age of retirement established by the Legislature” and therefore had suffered

“no impairment of vested pension rights.” (Id. at p. 818.) Notably, while Miller stated

“the right to pension benefits vests upon the acceptance of employment,” (id. at p. 815) it

also explained “[p]ension rights, unlike tenure of civil service employment, are deferred

compensation earned immediately upon the performance of services for a public

employer.” (Id. at p. 814, italics added.)

Similarly, Betts concerned a statutory change in the calculation of pension benefits

occurring after a former state treasurer left office, but before he retired and applied for

benefits. (Betts, supra, 21 Cal.3d at p. 862.) The former state officer asserted he was

entitled to monthly pension benefits based on the highest salary received by the current

treasurer—the law in effect while he was in office—rather than the new formula based on

the highest salary he had received while in office. (Ibid.) Thus, the issue was not when

pension benefits vested, but whether the former state officer had a vested contractual

right to benefits earned under the earlier, more favorable, formula. The high court

concluded he was entitled to benefits based on the more favorable formula in effect

during his term in office, holding it was the measure of the official’s “reasonable pension

expectations.” (Id. at p. 867.)

As numerous cases make clear, “acceptance of employment” essentially means the

commencement of employment—that is, going on the payroll, providing services to the

11

employer, and making contributions, if required, towards the benefits associated with the

position. (See, e.g., White v. Davis (2003) 30 Cal.4th 528, 566 [“once a public employee

has accepted employment and performed work for a public employer, the employee

obtains certain rights”]; Olson v. Cory (1980) 27 Cal.3d 532, 540 (Olson) [“ ‘An

employee’s contractual pension expectations are measured by benefits which are in effect

not only when employment commences, but which are thereafter conferred. . . .’ [¶] . . . A

judge entering office for the first time on or after [the effective date of the amendment]

will be governed by the statute as amended.”]; In re Marriage of Brown (1976) 15 Cal.3d

838, 845 [“we held in Dryden v. Board of Pension Commrs. . . . that an employee

acquires a property right to pension benefits when he enters upon the performance of his

employment contract”]; Kern v. City of Long Beach (1947) 29 Cal.2d 848, 852, 855

[though court had “stated in two recent decisions” that pension “vests upon acceptance of

employment” court characterizes rule as vesting when employee “has performed

substantial services for his employer”]; French v. French (1941) 17 Cal.2d 775, 777,

overruled on another ground in In re Marriage of Brown, at p. 841 [“The Dryden case

concerned the rights of a policeman in a pension fund to which he had made

contributions while he was on active duty. It was held that by the provisions of the city

charter, under which that fund was created and maintained, the right to a pension was an

integral part of the contract of employment and became a vested right at the time the

employment began.”]; Dryden v. Board of Pension Commrs. (1936) 6 Cal.2d 575, 579,

citing O’Dea v. Cook (1917) 176 Cal. 659, 661–662 [“where, as here, services are

rendered under such a pension statute, the pension provisions become a part of the

contemplated compensation for those services and so in a sense a part of the contract of

employment itself”], and Aitken v. Roche (1920) 48 Cal.App. 753, 755 [“it is correctly

stated that the right to pension is a vested one, and that it enters into the contract of

employment when a man enters the police department”]; Deputy Sheriffs’ Assn. of San

Diego County v. County of San Diego (2015) 233 Cal.App.4th 573, 579 (Sheriffs’

Association) [“ ‘ “[t]he contractual basis of a pension right is the exchange of an

12

employee’s services for the pension right offered by the statute” and thus “ ‘[f]uture

employees do not have a vested right in any particular pension plan.’ ” ’ ”].)

As Division Two of this district recently explained, “it is commonly said that a

public employee has pension rights that ‘vest’ on the first day of employment [citation],

or in the less precise phrasing used by plaintiffs, ‘upon acceptance of employment.’

(Betts [, supra,] 21 Cal.3d [at p.] 863. . . .) We say less precise because, unlike

professional sports, there are no signing bonuses in public service. The actual moment of

vesting comes with the commencement of work, which gives rise to ‘ “the right to the

payment of salary which has been earned.” ’ ” (Marin Association of Public Employees

v. Marin County Employees’ Retirement Assn., supra, 2 Cal.App.5th at p. 695, fn. 17,

italics omitted, quoting Miller, supra, 18 Cal.3d at p. 815.)

In short, no case cited by appellants, nor any of which we are aware, suggests, let

alone holds, that merely being elected to fill an office gives rise to a vested right in any of

the benefits associated with that office as of the date the individual is elected. Rather,

vested rights arise when an individual actually assumes office and commences his or her

public employment.

Nor can appellants rely on respondents’ initial mistaken application of JRS II as

giving rise to a vested right in pre-PEPRA JRS II retirement benefits. In Medina v.

Board of Retirement (2003) 112 Cal.App.4th 864 (Medina), for example, several county

employees who changed positions were no longer legally entitled to enhanced “safety

member[]” retirement benefits. (Id. at p. 866.) Nevertheless, the retirement system

continued to treat them as eligible for the enhanced benefits. (Id. at pp. 867–868.) When

the mistake was finally discovered and corrected, the affected employees filed a petition

for writ of mandate, claiming equitable estoppel and a vested right in the enhanced

benefits for which they were previously qualified. (Id. at pp. 867–868, 871.) The trial

court denied the petition. (Id. at p. 868.) The Court of Appeal affirmed, explaining

“[a]ny purported contract to give appellants the pension benefits of safety members was

invalid, and thus the vested rights doctrine does not apply.” (Id. at p. 871.) The mistake

13

in continuing to treat them as eligible for the enhanced benefits was “the equivalent of

attempting to form an unauthorized contract.” (Id. at p. 872.)

Like reasoning applies here. Any mistakes by system administrators in the

application of JRS II and PEPRA cannot create vested rights in contravention of the

terms of these statutes. There is “no vested right in an erroneous classification.”

(Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567, 586 (Crumpler).)

We therefore conclude appellants did not, at the time of their election, obtain a

vested right in the retirement benefits provided by pre-PEPRA JRS II. Rather, they

obtained a vested right to retirement benefits upon entering into their judicial offices,

which occurred after PEPRA’s effective date.

No Estoppel to Comply with PEPRA

Appellants claim respondents should, in any case, be estopped from excluding

them from pre-PEPRA JRS II because state personnel told them several times PEPRA

did not apply to them and for more than a year the state treated them as members of prePEPRA

JRS II. While we certainly sympathize with appellants’ frustration over the

erroneous information with which they were provided, respondents cannot be estopped

from correcting a legal mistake and ensuring that JRS II is managed in conformance with

the operative statutes, including PEPRA.

“The doctrine of equitable estoppel is founded on notions of equity and fair

dealing and provides that a person may not deny the existence of a state of facts if that

person has intentionally led others to believe a particular circumstance to be true and to

rely upon such belief to their detriment. [Citation.] ‘ “Generally speaking, four elements

must be present in order to apply the doctrine. . . : (1) the party to be estopped must be

apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so

act that the party asserting the estoppel had a right to believe it was so intended; (3) the

other party must be ignorant of the true state of facts; and (4) he must rely upon the

conduct to his injury.” ’ ” (City of Oakland v. Oakland Police and Fire Retirement

System (2014) 224 Cal.App.4th 210, 239–240 (City of Oakland), quoting Golden Gate

Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 257.)

14

“Where, as here, a party seeks to invoke the doctrine of equitable estoppel against

a governmental entity, an additional element applies. That is, the government may not be

bound by an equitable estoppel in the same manner as a private party unless, ‘in the

considered view of a court of equity, the injustice which would result from a failure to

uphold an estoppel is of sufficient dimension to justify any effect upon public interest or

policy which would result from the raising of an estoppel.’ (Long Beach v. Mansell

(1970) 3 Cal.3d 462, 496–497. . . .)” (City of Oakland, supra, 224 Cal.App.4th at

p. 240.)

Moreover, even when equitable estoppel against a public entity might otherwise be

warranted, it is improper when application of the doctrine would contravene a “statutory

limitation.” (City of Oakland, supra, 224 Cal.App.4th at p. 243, citing cases; Chaidez v.

Board of Administration Etc. (2014) 223 Cal.App.4th 1425, 1431–1432 [pensioner

misinformed and unaware of statute reducing his pension benefits because of time he

spent as an elected official, could not invoke equitable estoppel to obtain expected

benefits]; Medina, supra, 112 Cal.App.4th at pp. 869–871 [employees who no longer met

statutory definition of “safety members,” could not invoke equitable estoppel based on

respondents’ mistake to remain eligible for enhanced retirement benefits].)

As we have discussed, PEPRA imposes explicit limitations on judicial retirement

benefits under JRS II. Accordingly, even if the retirement system administrator

mistakenly made assurances to appellants that PEPRA would not apply to them and they

reasonably relied on those assurances, appellants cannot invoke estoppel to prevent the

state from correcting that mistake and properly applying the JRS II/PEPRA statutory

scheme.

Appellants correctly point out that if the state or CalPERS Board of

Administration had discretion under JRS II and PEPRA to provide them with pre-PEPRA

benefits, compelling them to provide such benefits would not require them to act in

excess of statutory authority, and equitable estoppel might be available. (See City of

Oakland, supra, 224 Cal.App.4th at p. 245; Medina, supra, 112 Cal.App.4th at pp. 870–

15

871; Crumpler, supra, 32 Cal.App.3d at p. 584.) Appellants suggest section 75505

provides the needed administrative latitude.

Section 75505 provides in pertinent part: “To the extent applicable, the Board of

Administration of the Public Employees’ Retirement System [PERS] shall administer

[JRS II] in conformance with [PEPRA] to the same extent and with the same effect as if

the provisions of the act are contained in [JRS II]. If the Board of Administration of

[PERS] determines that there is a conflict between the provisions of [PEPRA] and [JRS

II], the provisions of [PEPRA] shall control.” (§ 75505, subd. (a).) This provision

plainly compels compliance with PEPRA, and while it may give PERS some initial sayso

as to the existence of a conflict between JRS II, as enacted, and PEPRA, it

categorically resolves that conflict in favor of PEPRA. It in no way grants the state any

authority to disregard PEPRA, and as we have discussed, the state would have to ignore

PEPRA to grant appellants pre-PEPRA JRS II benefits.

Appellants further contend that whatever PEPRA may say, that statutory scheme is

ultimately of no consequence because the initial assurances they were given about

retirement benefits under pre-PEPRA JRS II, were made before PEPRA went into effect.

This does not change the fact that requiring respondents to treat appellants as coming

within pre-PEPRA JRS II would require respondents to act beyond the legal authority

they now have. In addition, JRS II, even as originally enacted, reserved to the

Legislature the power to increase the base 8 percent rate of contribution as “appropriate”

and to “reduce” pension benefits. (§ 75603 [“The Legislature reserves the right to

increase the rates of contribution prescribed by Sections 75601 and 75602 in the amounts

as it may find appropriate.”]; § 75604 [“The Legislature reserves the right to reduce any

benefits applicable to any person who becomes a judge who is subject to this chapter.”];

cf. Walsh v. Board of Administration (1992) 4 Cal.App.4th 682, 704 [when Legislature

has power to diminish pension benefits, it may do so without impairing vested rights,

though it may not terminate them outright].) No plan administrator could tie the

Legislature’s hands in these respects, and thus any reliance by appellants on a promise of

16

certain benefits by an administrator would have been unreasonable. (See City of

Pleasanton v. Board of Administration (2012) 211 Cal.App.4th 522, 543–544.)

The few cases in which the courts have applied estoppel with respect to a

government benefit are distinguishable. Driscoll v. City of Los Angeles (1967) 67 Cal.2d

297, involved widows of former police and fire department employees, some of whom

did not file a claim for a share of their husbands’ pension benefits because they were

advised by the Board of Pension Commissioners that they were “not eligible to receive a

pension of any kind.” (Id. at pp. 300, 303.) The board so advised based on a change to

the city charter, requiring a widow to have been married to a pensioner for one year prior

to the date of his retirement, rather than one year prior to his death, in order to receive

pension benefits. (Id. at pp. 301, 303.) Following a Supreme Court decision that the city

charter amendment could not be applied to widows whose husbands had retired prior to

the effective date of the amendment, the widows filed suit. (Id. at pp. 301–302.) At this

point, the City of Los Angeles maintained the widows’ claims were barred by the

applicable statute of limitations, and that equitable estoppel did not apply. (Id. at

pp. 304–305.) The Supreme Court disagreed. It concluded the “great magnitude” of a

“widow’s right to a continuing pension upon the death of her retired husband,” the City’s

“unreasonable” conduct in advising the widows that filing a claim would be unavailing,

and the fact the City “might have reasonably expected” its advice would induce the

widows not to file a claim, estopped the City from asserting the statute of limitations.

(Id. at pp. 310–311.) The court concluded estoppel did not apply, however, to prevent the

City from asserting the six-month retroactive claim provision of the city charter, under

which retroactive pension benefits are limited to six months prior to the filing of a claim.

(Id. at p. 311.) As to that provision, the court held the City’s advice was not

unreasonable, and retroactive accruals were not of such great magnitude. (Ibid.)

In Crumpler, the appellants were hired by a city police department as animal

control officers. (Crumpler, supra, 32 Cal.App.3d at p. 570.) At the time of their

employment, they were classified as “local safety members,” and made contributions to

the retirement system based on that classification. (Id. at pp. 570–571.) Safety members

17

could retire at age 55 with “substantial benefits,” while non-safety “miscellaneous”

members could retire at age 55 but would not receive “substantial benefits” until age 65.

(Id. at p. 572.) Following an investigation, the board determined appellants had been

mistakenly classified as safety members rather than miscellaneous members. (Id. at

p. 571.) On appeal, the Court of Appeal concluded the board properly reclassified

appellants, but was estopped from doing so “nunc pro tunc as of the date they became

members of the system.” (Id. at p. 574.) The members could only be reclassified

prospectively. (Ibid.)

Neither of these cases, nor any case of which we are aware, employed principles

of estoppel to afford a public employee a benefit that otherwise would directly

contravene a statutory or constitutional limitation.

No Denial of Equal Protection

Appellants also mount an equal protection challenge to PEPRA. They assert the

Act improperly distinguishes between them and (a) judges appointed after PEPRA’s

passage but who assumed office before its effective date, and (b) judges elected in 2012

but who were previously public employees and thus were already members of a public

retirement system.

Appellants maintain we should review these classifications under the stringent,

“strict scrutiny” standard. This standard applies, say appellants, because PEPRA impacts

a “fundamental right,” namely their assertedly vested right to retirement benefits under

pre-PEPRA JRS II. (See Kasler v. Lockyer (2000) 23 Cal.4th 472, 480–481 [generally

discussing strict scrutiny review in equal protection challenge].) However, we have

concluded appellants have no vested right in pre-PEPRA JRS II benefits.

But even if we were to apply strict scrutiny in evaluating the validity of the

classifications post-PEPRA JRS II creates,

6

there is simply no question that the difference



6 We note that “[c]ourts generally have applied a rational basis test in evaluating

equal protection claims based on differing treatment of members of public employee

retirement plans.” (Hudson v. Board of Administration (1997) 59 Cal.App.4th 1310,

18

in treatment is justified by a compelling state interest—namely, the urgency of

implementing public pension reform as quickly as possible and the necessity of drawing a

clear line as to when these reforms would become operative, giving due regard to the

“vested rights” doctrine uniquely applicable to public employment. PEPRA was

designed to address the critical issue of unfunded public pension liabilities. “ ‘In 2011,

the Little Hoover Commission advised the Governor and the Legislature: “California’s

pension plans are dangerously underfunded, the result of overly generous benefit

promises, wishful thinking and an unwillingness to plan prudently. Unless aggressive

reforms are implemented now, the problem will get far worse, forcing counties and cities

to severely reduce services and [lay off] employees to meet pension obligations.” . . . The

situation was described as “dire,” “unmanageable,” a “crisis” that “will take a generation

to untangle,” and “a harsh reality” that could no longer be ignored.’ ” (San Joaquin

County Correctional Officers Assn. v. County of San Joaquin (2016) 6 Cal.App.5th 1090,

1095, review withdrawn (Mar. 15, 2017), quoting Marin Assn. of Public Employees v.

Marin County Employees’ Retirement Assn., supra, 2 Cal.App.5th at p. 681.) There is

certainly a compelling state interest in resurrecting the actuarial viability of public

retirement systems and avoiding the draconian consequences that will occur if public

pension liabilities remain underfunded.7

Appellants also rely on an observation made in Olson, supra, 27 Cal.3d 532.

While acknowledging that Olson held “the Legislature may create different salary levels

for different officers or employees performing similar duties,” appellants point out the

Supreme Court noted that “a further question arises whether an enactment which has

immediate constitutional application in some instances but only prospective application

in others, satisfies constitutional requirements.” (Id. at p 544.) Olson addressed 1976

legislation limiting judicial cost-of-living increases to 5 percent per year, rather than the



1329; see Sturgeon v. County of Los Angeles (2010) 191 Cal.App.4th 344, 354–355

(Sturgeon II) [“disparity in judicial compensation is not subject to strict scrutiny”].)

7 Because we conclude the classes of judges created by PEPRA can survive even

strict scrutiny review, they necessarily pass muster under “rational basis” analysis.

19

actual increase in the California Consumer Price Index, to which judges had previously

been entitled. (Id. at pp. 536–537, 540.) The legislation sought to maintain judicial

salaries at the September 1, 1976 level for 22 months, and then, as of July 1, 1978, to

limit prospective salary increases to 5 percent. (Id. at p. 537.) Because judicial pensions

were “based on a specified percentage of the salary of a judge holding the judicial office

to which the retired or deceased judge was last elected or appointed,” the 1976 legislation

limiting judicial salary increases, in turn, diminished pension benefits. (Id. at p. 541.)

The Supreme Court concluded the new legislation could not be constitutionally

applied to “a judge or justice during any term of office, or unexpired term of office of a

predecessor, if the judge or justice served some portion thereof (a ‘protected term’) prior

to 1 January 1977, and . . . a judicial pensioner whose benefits are based on some

proportionate amount of the salary of the judge or justice occupying that office.” (Olson,

supra, 27 Cal.3d at p. 546.) However, it could be applied to judges already in office but

commencing a new term after the effective date of the legislation, and judges entering

office for the first time after the effective date. (Id. at p. 540.)

The court explained that “A judge entering office is deemed to do so in

consideration of–at least in part–salary benefits then offered by the state for that office. If

salary benefits are diminished by the Legislature during a judge’s term, or during the

unexpired term of a predecessor judge (see Cal. Const., art. VI, § 16; . . . §§ 71145,

71180), the judge is nevertheless entitled to the contracted-for benefits during the

remainder of such term. The right to such benefit accrues to a judge who served during

the period beginning 1 January 1970 to 1 January 1977, whether his term of office

commenced prior to or during that time period. ‘An employee’s contractual pension

expectations are measured by benefits which are in effect not only when employment

commences, but which are thereafter conferred during the employee’s subsequent

tenure.’ [Citation.] [¶] A judge who completes one term during which he was entitled to

unlimited cost-of-living increases and elects to enter a new term has impliedly agreed to

be bound by salary benefits then offered by the state for the different term. Thus, while a

judge is entitled to a salary based on [the prior statute] throughout a term ending, for

20

instance, in 1978, his salary for a new term beginning on or after the effective date of the

1976 amendment–1 January 1977–will be governed by the statute as amended. Likewise,

a judge entering office for the first time on or after 1 January 1977, including a judge

entering upon his own term or upon the unexpired term of a predecessor judge, cannot

claim any benefit based on [the former section] before the 1976 amendment.” (Olson,

supra, 26 Cal.3d at pp. 539–540, italics omitted.)

As to judicial pensioners, the high court explained “a judicial pensioner cannot

claim impairment of a vested right arising out of the 1976 amendment except when the

judge holding the particular judicial office could also claim such an impairment. The

resolution of pensioner vested rights, then, is dependent on the foregoing resolution of

judges’ vested rights left unimpaired by the 1976 amendment.” (Olson, supra, 26 Cal.3d

at pp. 541–542, italics omitted.)

Thus, Olson expressly allowed differing compensation for judges based on when

they entered office. (Olson, supra, 27 Cal.3d at pp. 546–547.) And, it concluded that, to

the extent the enactment suffered from a temporary constitutional defect as to judges who

had already entered office, “its applicability is merely delayed until such time as the

constitutional bar ceases to exist.” (Id. at p. 545.) Where appellants’ analysis falls short

is that, unlike the judges in Olson, they had no vested right in any of the emoluments of

the judicial offices they had not yet assumed.

No Violation of the Non-Diminution Clause

Appellants also challenge the provisions of PEPRA that allow for fluctuating

contributions. Because increased contributions are deducted from a judge’s monthly

paycheck, and thereby reduce his or her monthly take home pay, appellants claim such

increases violate our state’s non-diminution clause (Cal. Const., art. III, § 4).

8



8

This issue is not concerned with the initial pension contributions PEPRA

required from the petitioning judges—which were significantly higher than their

contributions would have been under pre-PEPRA JRS II. Rather, this issue concerns

whether or not, as sitting judges, they can be subject to further contribution increases

under PEPRA’s contribution formula.

21

PEPRA specifies that an employee’s pension contribution must be “at least 50

percent of the normal cost rate for that defined benefit plan.” (§ 7522.30, subd. (c).)

PEPRA also defines “normal cost” as meaning “the portion of the present value of

projected benefits under the defined benefit that is attributable to the current year of

service, as determined by the public retirement system’s actuary according to the most

recently completed valuation. For the purpose of determining normal cost, the system’s

actuary may use a single rate of contribution or an age-based rate of contribution as is

applicable to that retirement system.” (§ 7522.04, subd. (g).) “The ‘normal cost rate’

shall mean the annual actuarially determined normal cost for the plan of retirement

benefits provided to the new member and shall be established based on the actuarial

assumptions used to determine the liabilities and costs as part of the annual actuarial

valuation.” (§ 7522.30, subd. (b).) What this formula has meant for the petitioning

judges is that, in year one, they had a 15.25 percent contribution rate, which increased to

an unspecified rate the following year.

California’s non-diminution clause broadly provides that: “Except as provided in

subdivision (b), salaries of elected officers may not be reduced during their term of

office.” (Cal. Const., art. III, § 4 subd. (a).) Subdivision (b) states, specifically as to

judges, that: “Beginning on January 1, 1981, the base salary of a judge of a court of

record shall equal the annual salary payable as of July 1, 1980, for that office had the

judge been elected in 1978. The Legislature may prescribe increases in those salaries

during a term of office, and it may terminate prospective increases in those salaries at any

time during a term of office, but it shall not reduce the salary of a judge during a term of

office below the highest level paid during that term of office.” (Id., § 4 subd. (b).)

Such provisions are a common feature of our constitutional form of democracy.

As the United States Supreme Court has explained with respect to the analogous federal

clause,

9

“the Compensation Clause . . . helps to guarantee what Alexander Hamilton



9

The federal non-diminution clause (frequently called the Compensation Clause)

provides in pertinent part: “Judges . . . shall, at stated Times, receive for their Services, a

22

called the ‘complete independence of the courts of justice.’ [Citation.] Hamilton thought

these guarantees necessary because the Judiciary is ‘beyond comparison the weakest of

the three’ branches of government. [Citation.] It has ‘no influence over either the sword

or the purse,’ . . . ‘no direction either of the strength or of the wealth of the society.’

[Citation.] It has ‘neither FORCE nor WILL but merely judgment.’ ” (U.S. v. Hatter

(2001) 532 U.S. 557, 567–568 (Hatter).) “And Hamilton knew that ‘a power over a

man’s subsistence amounts to a power over his will.’ [Citation.] For this reason, he

observed, ‘next to permanency in office, nothing can contribute more to the independence

of the judges than a fixed provision for their support.’ ” (Id. at p. 586, italics omitted.)

“[T]hese guarantees of compensation and life tenure exist, ‘not to benefit the judges,’ but

‘as a limitation imposed in the public interest.’ [Citation.] They ‘promote the public

weal,’ [citation] . . . by helping to secure an independence of mind and spirit necessary if

judges are ‘to maintain that nice adjustment between individual rights and governmental

powers which constitutes political liberty.’ ” (Ibid.; see Olson, supra, 27 Cal.3d at

pp. 543–544 [“Security of both tenure and subsistence are important factors in creating

and maintaining an independent judiciary.”].)

The parties have cited no California case, nor are we aware of one, that has

considered whether an increased payroll deduction, resulting in a commensurate

reduction in a judge’s take-home pay, violates our state’s non-diminution clause.

However, the United States Supreme Court and a number of other state courts have

addressed this issue in connection with other non-diminution clauses, reaching varying

conclusions.

In Hatter, the United States Supreme Court considered whether Medicare and

Social Security tax mandates, resulting in new deductions from the paychecks of sitting

federal judges, violated the federal non-diminution clause. (Hatter, supra, 532 U.S. at

pp. 560–561.) Notably, the high court did not adopt a bright line rule automatically



Compensation, which shall not be diminished during their Continuance in Office.” (U.S.

Const., art. III, § 1.)

23

exempting sitting judges from new tax deductions. Rather, the court focused on the

nature and impact of the taxes and reached different conclusions as to the new Medicare

and the new Social Security tax burdens.

The new Medicare law extended Medicare eligibility to all new and current federal

employees, including sitting federal judges, and imposed a like tax. (Hatter, supra,

532 U.S. at pp. 561–562.) Repudiating its own prior authority, the high court held “the

Compensation Clause does not forbid Congress to enact a law imposing a

nondiscriminatory tax (including an increase in rates or a change in conditions) upon

judges, whether those judges were appointed before or after the tax law in question was

enacted or took effect.” (Id. at p. 571.) “There is no good reason,” said the court, “why a

judge should not share the tax burdens borne by all citizens.” (Ibid.) And while

conceding that the court had “held that the Legislature cannot directly reduce judicial

salaries even as a part of an equitable effort to reduce all Government salaries . . . a tax

law, unlike a law mandating a salary reduction, affects compensation indirectly, not

directly.” (Ibid.) “And those prophylactic considerations that may justify an absolute

rule forbidding direct salary reductions are absent here, where indirect taxation is at issue.

In practice, the likelihood that a nondiscriminatory tax represents a disguised legislative

effort to influence the judicial will is virtually nonexistent. Hence, the potential threats to

judicial independence that underlie the Constitution’s compensation guarantee cannot

justify a special judicial exemption from a commonly shared tax. . . .” (Ibid.)

The new Social Security tax provisions, however, were another matter. Because

of the peculiar way in which these provisions worked, of all the federal officials that had

formerly been excepted from Social Security, only federal judges were unable to avoid

“any additional financial obligation as a result of joining Social Security.” (Hatter,

supra, 532 U.S. at pp. 562–563.) Rejecting the assertion that the non-diminution clause

protects judges “only against a reduction in stated salary, not against indirect measures

that only reduce take-home pay” (id. at p. 576), the court held the new tax burden could

not be imposed on sitting judges. (Id. at p. 578.) The court identified “four features” of

24

the new law, which “taken together,” led it to conclude the law discriminated against

judges “in a manner” forbidden by the non-diminution clause. (Id. at p. 572.)

First, the high court identified “federal employees” as the class being impacted by

the new tax law. (Hatter, supra, 532 U.S. at p. 572.) Second, the new law “in effect

imposed a new financial obligation upon sitting judges, but did not impose a new

financial burden upon any other group of (then) current federal employees.” (Ibid.)

Third, the law “adversely affected” most sitting judges, as most had already qualified for

Social Security before taking the bench. (Id. at p. 573.) Thus, the “new law imposed a

substantial cost on federal judges with little or no expectation of substantial benefit for

most of them.” (Ibid.) Fourth, the government’s justification for the burden on judges

was “to make up for the fact that the judicial retirement system is basically a

noncontributory system, while the system to which other federal employees belonged was

a contributory system.” (Id. at pp. 573–574.) However, the fact the federal judicial

retirement system is noncontributory goes hand in hand with the federal judiciary’s life

tenure provisions. Thus, the new tax burden was not only unrelated to the

noncontributory judicial retirement system, but it targeted one of the fundamental

attributes of the federal judiciary. (Id. at pp. 575–576.) “Taken together,” these four

factors “reveal[ed] a law that is special—in its manner of singling out judges for

disadvantageous treatment, in its justification as necessary to offset advantages related to

constitutionally protected features of the judicial office, and in the degree of permissible

legislative discretion that would have to underlie any determination that the legislation

has ‘equalized’ rather than gone too far.” (Id. at p. 576.)

Relying in part on Hatter, the Supreme Court of New Jersey concluded a more

than 400 percent increase in pension contributions and a more than 100 percent increase

in health care premiums, imposed on sitting judges without a commensurate salary

increase, violated the state’s non-diminution clause.10

(DePascale, supra, 211 N.J. at



10

New Jersey’s non-diminution clause in effect when DePascale was decided

provided that justices and judges “ ‘shall receive for their services such salaries as may be

25

pp. 42–43, 47.) The New Jersey court observed that its state legislature had never before

imposed contribution requirements on sitting judges without a corresponding increase in

judicial salaries, and, thus, had “carefully assured that no diminution in salary occurred.”

(Id. at p. 54.) While the court recognized that Hatter had allowed deductions for a nondiscriminatory

tax “borne by all citizens,” it concluded this was the sole exception

sanctioned by the Supreme Court. (Id. at pp. 60–61.) “The United States Supreme Court

has never given any signal that even an indirect reduction in a judge’s salary during the

term of his appointment would be tolerable,” save for a general, nondiscriminatory tax.

(Id. at p. 62.) The court further observed that the state could not “point to another high

court in any jurisdiction with a similar constitutional no-diminution clause that has

upheld legislation reducing the take-home salary or compensation of judges during their

appointment to office, by compelling greater pension or health care contributions.” (Id.

at p. 64; see Hudson v. Johnstone (Ala. 1983) 660 P.2d 1180, 1181–1183, 1185

[interpreting “term” of judicial office to include additional terms served through retention

elections, and holding non-diminution clause prohibited state from requiring sitting

judges, for the first time, to make pension contributions (at 7 percent of their base

salary)11]; Carper v. Stiftel (Del. 1977) 384 A.2d 2, 6 [holding non-diminution clause

prohibited state from requiring sitting judges to pay more than $1,000 in additional

pension contributions for unchanged benefits12].)

However, more recently, New York’s high court concluded a reduction in state

contributions to health benefits (requiring a commensurate increase in employee



provided by law, which shall not be diminished during the term of their appointment.’ ”

(DePascale v. State (N.J. 2012) 211 N.J. 40, 42–43, 47; 47 A.3d 690 (DePascale).)

11 Alaska’s non-diminution clause provides in pertinent part: “Compensation of

justices and judges shall not be diminished during their terms of office, unless by general

law applying to all salaried officers of the State.” (Hudson v. Johnstone, supra, 660 P.2d

at p. 1182, italics omitted.)

12

Delaware’s non-diminution clause provides: “ ‘No law shall extend the term of

any public officer or diminish his salary or emoluments after his election or

appointment.’ ” (Carper v. Stiftel, supra, 384 A.2d at p. 6.)

26

contributions) did not violate the state’s non-diminution clause.

13

(Bransten v. State of

New York (2017) 30 N.Y.3d 434, 436 (Bransten).) Participation in the state’s health

insurance program was optional, and employees had an array of options to choose from.

(Id. at p. 434.)

The New York court reiterated the importance of the state’s constitutional nondiminution

clause: “As with the similar prohibition contained in the federal

Compensation Clause, the anti-diminution language was intended to protect judges from

the corruptive force of financial uncertainty, in order to maintain an able and independent

judiciary, free of coercion from the other branches.” (Bransten, supra, 30 N.Y.3d at

p. 439.) And it recognized that “the legislature may not enact laws that directly diminish

judicial compensation or accomplish the same result by singling out judges for

disadvantageous treatment that indirectly diminishes their pay.” (Ibid.)

Following the analytical template of Hatter, the New York court first considered

whether the reduced state contributions constituted a “direct” diminution of judicial

compensation. (Bransten, supra, 30 N.Y.3d at p. 439.) Reviewing the state’s prior case

law, the court concluded constitutionally protected judicial “compensation” refers “to a

judge’s salary and any additional monies that serve as a permanent remuneration for costs

necessarily incurred in fulfillment of a judge’s judicial obligations.” (Id. at p. 440.)

Health care benefits, said the court, did not fall within this definition, noting that a special

commission on judicial compensation had separately referred to monetary compensation

and “ ‘non-salary benefits.’ ” (Id. at p. 441.) The court also could discern no intent on

the part of the legislature that, in extending such non-salary benefits, it had intended state

contributions “to be treated as a permanent addition to a judicial salary.” (Ibid.) In short,

while reduced state contributions “would increase a participating judge’s share of the cost

associated with the chosen health care plan, such an increase is not the equivalent of a



13

New York’s non-diminution clause provides that the compensation of sitting

and retired judges “shall be established by law and shall not be diminished during the

term of office for which [a judge] was elected or appointed.” (New York Const., art. VI,

§ 25, subd. (a).)

27

direct reduction in judicial compensation. It is a cost that is voluntarily assumed by the

participating judges, and affects salary only indirectly.” (Id. at p. 443.)

The court next considered whether the reduced contributions constituted an

“indirect” diminution of judicial compensation, and construed Hatter as allowing a “cost

increase that indirectly affects judicial compensation” so long as “the increase does not

target judges for disadvantageous treatment.” (Bransten, supra, 30 N.Y.3d at p. 443.)

Considering the “four factors” that had guided the United States Supreme Court, the New

York court concluded the state law at issue did “not ‘reveal a law that is special’ in how it

disadvantages judges.” (Id. at pp. 445–446; see Cook v. Chilton (Ky. 1965) 390 S.W.2d

656, 657 [increasing pension contribution rate of sitting judges, from 2.5 percent to

4 percent, did not violate compensation clause; “obvious purpose” of a judicial retirement

system “is to promote independence and security” and it “would be a gross distortion” of

the provisions of the compensation clause “to hold they were intended to forbid a

legislative act designed to achieve the very same objectives as the constitutional

prohibitions”].)

While each of these cases examined the scope and meaning of a non-diminution

clause, none dealt with the particular circumstances presented here. First, these cases

involved statutory provisions that impacted judges for the first time during their terms of

office. Here, in contrast, PEPRA took effect prior to the time appellants assumed their

judicial offices. Second, none of these cases involved contributions to a retirement

system, like post-PEPRA JRS II, which (a) is mandatory and (b) fixes contributions by

way of a formula that applies to virtually all public employee retirement systems and

allows for adjustment based on market performance and actuarial data. In other words,

there appears to be no case from any jurisdiction that has considered whether the kind of

contribution formula that makes PEPRA retirement systems far more actuarially sound

than earlier systems, results in a constitutionally impermissible reduction in judicial

salaries when that formula calls for an increase in employee contributions.

Nevertheless, in our view, the United States Supreme Court’s decision in Hatter

and the New York high court’s recent decision in Bransten provide some guidance on the

28

issue at hand. We are particularly persuaded by the Supreme Court’s view, as explained

in Hatter, that a new deduction from take home pay does not automatically violate the

non-diminution clause. We are also persuaded that any increased contributions required

under PEPRA’s contribution formula are, as described in both Hatter and Bransten,

indirect reductions in a judge’s salary. Indeed, as respondents point out, under JRS II,

even as amended by PEPRA, a judge’s pension contributions are essentially banked for

his or her future withdrawal, either as a lump sum with interest or as part of a defined

monthly benefit. So, while part of his or her salary is set aside for payment at a later

time, no part of a judicial salary is eliminated.

We are further persuaded that the “four factor” template the Supreme Court set

forth in Hatter, and which the New York court applied in Bransten, provides a sensible

means of determining whether a financial obligation imposed on sitting judges runs afoul

of the non-diminution clause. Applied here, this template yields the following points:

First, given the breadth of PEPRA, the “appropriate” comparison group is virtually

all other state employees eligible to participate in a public retirement system. While this

is akin to the federal employee group covered by the Social Security tax disapproved, as

to sitting federal judges in Hatter, it is also equivalent to the New York state employee

group impacted by the reduction in state contributions (and commensurate increase in

employee contributions) considered and approved in Bransten.

Second, unlike the unique and singular financial impact on federal judges of the

Social Security tax at issue in Hatter, PEPRA’s contribution formula has widespread

effect and does not financially affect only judges.

Third, unlike in Hatter, where nearly all federal judges were already covered by

Social Security due to prior employment and there was no need for them to be brought

into the system by the new legislation, a California judge becomes eligible for retirement

benefits under JRS II only on assuming judicial office.

Fourth, unlike in Hatter, where the government’s justification for the singular

financial impact on federal judges (“to make up for the fact that the judicial retirement

29

system is basically a noncontributory system”)

14 directly impacted fundamental attributes

of the federal judiciary, the state legislature enacted PEPRA in order to address the dire

economic problems facing all public retirement systems and to make some headway

towards returning these systems to actuarial sound footing. Furthermore, unlike the

federal judicial retirement system, California’s judicial retirement system has always

been a contributory system. Accordingly, unlike the justification for the new Social

Security tax at issue in Hatter, the justification for PEPRA’s challenged contribution

formula does not cut to a core attribute of the state’s judiciary.

Thus, “[t]aken together,” the four factors identified in Hatter, do not reveal a law

that “is special—in its manner of singling out judges.” (Hatter, supra, 532 U.S. at

p. 576.) On the contrary, state judges are bearing the same financial obligation imposed

on virtually every other state employee eligible to participate in a state retirement system.

As the Little Hoover Commission found in its study leading to the enactment of PEPRA,

this burden is a matter of economic imperative. And the fiscal integrity of the state’s

retirement systems, including JRS II, cannot be restored without it. (E.g., Little Hoover

Com., Public Pensions For Retirement Security (Report No. 204, Feb. 2011) pp. i-ix.)

Our conclusion that PEPRA’s contribution formula does not run afoul of the nondiminution

clause is also consistent with a line of cases from other jurisdictions, of which

State ex rel. Mack, Judge v. Guckenberger, Aud., (Ohio 1942) 39 N.E.2d 840, is a leading

example. In Guckenberger, the Ohio Supreme Court considered whether a state law that

set the compensation for common pleas judges on the basis of local population (as

determined by federal census) violated the state’s compensation clause, and specifically,

the provision barring increases in compensation during a judge’s term. (Id. at p 842.)

This law had the effect of increasing judicial salaries during a term of office, when a new

census showed an increase in local population. Observing that “[e]very reasonable

presumption must be indulged in favor of the constitutionality of a statute” (id. at p. 843),

the Ohio court concluded the specified method of determining judicial compensation did



14 (Hatter, supra, 532 U.S. at pp. 573–574.)

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not violate the compensation clause. “[T]here is no inhibition,” said the court, “against

the Legislature fixing such compensation before the term begins on a basis which may

vary it in amount as time advances, provided that basis, within the contemplation and

understanding of both the judge and the people who elect him, is fixed, certain and

unchangeable during his term.” (Id. at p. 845.) The court also pointed out that because

the manner in which the judges’ compensation was determined was fixed prior to the

commencement of their terms, the “salutary purposes [of the state’s compensation clause]

are fully and effectually preserved by the terms of the present statute, albeit the

compensation of the judge is made variable, from and after the last federal census

becoming effective during his term.” (Id. at pp. 843–844.)

In Stiftel v. Malarkey (Del. 1977) 384 A.2d 9, the Delaware Supreme Court

described Gockenberg as aligning Ohio with “the roster of states whose highest courts

had already adopted the rule that changes in compensation generated under a fixed

formula are not increases or decreases for purposes of constitutional restriction.” (Id. at

p. 16.) The Delaware court observed additional states had subsequently followed these

precedents, and it applied the same reasoning in holding statutorily authorized cost of

living adjustments were permissible and could not be eliminated during a judge’s term of

office. (Ibid.)

Much the same can be said about PEPRA’s methodology for determining

contribution rates. It is a methodology spelled out by statute (§§7522.04, 7522.30,

7522.32) and which was in effect prior to the commencement of the terms of the

petitioning judges. Its application year in and year out, to virtually all employees that

participate in a public retirement system, cannot be said to be at odds with the purposes

of our state’s non-diminution clause.

No Impermissible Delegation of Legislative Authority over Salaries

Appellants lastly contend PEPRA’s contribution formula runs afoul of the

constitutional mandate that only the Legislature is to “prescribe compensation for

judges.” (Cal. Const., art. VI, § 19.) Specifically, they object to the provisions stating

that “the system’s actuary may use a single rate of contribution or an age-based rate of

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contribution as is applicable to that retirement system” (§ 7522.04, subd. (g)) and that the

“ ‘normal cost rate’ shall mean the annual actuarially determined normal cost for the plan

of retirement benefits provided to the new member and shall be established based on the

actuarial assumptions used to determine the liabilities and costs as part of the annual

actuarial valuation.” (§ 7522.30, subd. (b).)

Appellants acknowledge the Legislature may “make limited delegations of

Constitutional authority,” but claim the Legislature has failed, in PEPRA, to constrain

“such a delegation” with “ ‘a sufficient standard,’ ” quoting Sturgeon v. County of Los

Angeles (2008) 167 Cal.App.4th 630, 643 (Sturgeon I), superseded by statute as stated in

Sturgeon v. County of Los Angeles (2015) 242 Cal.App.4th 1437, 1440.)

In Sturgeon I, a taxpayer challenged the validity of employment benefits (which

included a mega-flex account, a professional development allowance, and a 401(k)

matching plan) that Los Angeles County provided to its superior court judges and which

were “in addition to” the compensation prescribed by the Legislature. (Sturgeon I, supra,

167 Cal.App.4th at pp. 635–636.) The court concluded the additional benefits were

“compensation” within the meaning of article VI, section 19 of the California

Constitution, which had not been prescribed by the Legislature. (Sturgeon I, at p. 657.)

The Sturgeon court explained: “Under our constitutional scheme, judicial compensation

is a matter of statewide concern and the Legislature must set policy with respect to all

aspects of judicial compensation. . . . [T]he Legislature’s obligation to ‘prescribe judicial

compensation’ requires that it set forth standards or safeguards which assure that

fundamental policy is implemented. . . . The obligation is not onerous, but does require

that the Legislature consider the specific issue and, at a minimum, establish or reference

identifiable standards.” (Ibid.)

Following Sturgeon I, the Legislature promptly passed legislation, which the same

taxpayer again challenged. This time, the court concluded the Legislature had adequately

“ ‘prescribed’ ” the additional compensation. (Sturgeon II, supra, 191 Cal.App.4th at

pp. 353–354.)

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Unlike the situation the court confronted in Sturgeon I, the Legislature has, in

PEPRA, “prescribed” the standards for calculating the “normal cost” of pension benefits.

The fact that the Legislature has specified that “normal cost” is to be calculated by an

actuary based on one of two rates of contribution (the specific problem appellants purport

to find with the statute) does not mean the Legislature has unconstitutionally delegated its

power to prescribe compensation. On the contrary, the Legislature has carefully

“prescribed” the manner in which contribution rates are to be determined. (See Kugler v.

Yocum (1968) 69 Cal.2d 371, 373 [ordinance specifying salaries for firefighters “shall be

no less than the average of those of an adjoining city . . . does not unlawfully delegate

legislative power because the power to legislate has been expressed and exerted in the

enactment of the policy of such parity [and] future adjustment in salaries pursuant to that

formula is no more than the automatic execution of that policy”]; Martin v. County of

Contra Costa (1970) 8 Cal.App.3d 856, 859, 862 [legislation tying court employees’

salaries and raises to their counterparts in the county “not an abdication of the

Legislature’s duty to prescribe the compensation”].)

The judgment is affirmed.