Pro tem justices are not supposed to be in the majority on 4–3 decisions. But that’s what happened today — for the first time in almost nine years — in Los Angeles County Employees Retirement Assn. v. County of Los Angeles, when First District, Division Five, Court of Appeal Justice Mark Simons voted with opinion author Justice Corrigan, Chief Justice Guerrero, and Justice Kruger.
The majority holds a county public employee retirement system’s board doesn’t have the authority to set civil service classification and salary levels for system employees; instead, a county’s board of supervisors has that power, albeit challengeable by the system board for any county abuse of discretion. Justice Groban writes a dissent, joined by Justices Liu and Evans, relying on 1973 legislation.
That summary greatly simplifies the 86-page majority opinion and the 44-page dissent, but it’s the pro tem’s deciding vote that seems like the bigger story.
The court tries to avoid results like today’s, which leads to the institutional problem that a case’s outcome was determined by the happenstance of which Court of Appeal justice was randomly chosen to sit on the Supreme Court for that one case.
The court’s Internal Operating Practices and Procedures say that pro tems are assigned by the Chief Justice “on an alphabetical rotational basis” and, until recently, they said that the court doesn’t conference to consider scheduling a case for oral argument until a tentative disposition of the case “has been approved by at least four justices or is likely to be approved by four justices at the conference.” (It now says, “If it appears . . . that a majority of the justices concur in the original calendar memorandum [i.e., a tentative disposition], the Chief Justice places the case on a weekly conference to discuss whether the case should be set for an upcoming oral argument.”) Former Chief Justice Cantil-Sakauye has been reported to have “said the [pro tem] justice isn’t seated on the court until a majority of its permanent members have tentatively agreed on a ruling, which occurs before the case is argued in public.” For today’s case, Justice Simons was assigned six days after the matter was calendared for argument.
If normal practices were followed, it’s likely that one of the permanent justices in today’s majority was originally on board with Justices Liu, Groban, and Evans, but switched their vote sometime after the argument-scheduling conference. I guess that situation answers the question we asked earlier this year, Why does the Supreme Court use pro tems?
[August 4 revision: of course, another possible switched vote could have been by a justice who was originally in the Guerrero–Corrigan–Kruger camp. Either way, it’s likely one permanent justice left a four-member bloc at a late date, leaving the pro tem justice as the deciding vote.]
The court today reverses the Second District, Division Seven, Court of Appeal’s published opinion, which had disagreed with the Third District’s decision in Westly v. Board of Administration (2003) 105 Cal.App.4th 1095. The Supreme Court majority today says Westly‘s “narrower construction” of “the constitutional authority of retirement boards” was correct. The court denied review in Westly with Justices Kennard and Moreno recording dissenting votes.
