All six Supreme Court justices today recused themselves from ruling on a pending petition for review in a case involving judicial salaries. In the recusal order, the court also said it anticipated soon “assigning other judicial officers who first took judicial office on or after July 1, 2017,” to handle the petition and, presumably, to decide the case if review is granted.
The petition, in Mallano v. Chiang, was filed over two months ago. The court waited until just last week to extend the time to rule on the petition until November 1, which is the last possible day.
In the decision of which review is being sought, the Second District, Division Two, Court of Appeal affirmed an order enforcing an earlier class action judgment that mandated salary increases for many current and retired Supreme Court, Court of Appeal, and superior court judges.
The recusal order says that the “judicial officers” to be assigned will be picked according to, among other things, “the established procedure set out in the Internal Operating Practices and Procedures of the California Supreme Court, section IV.J.” That seems impossible.
The section provides for the assignment of Court of Appeal justices on a mostly alphabetical basis, but also stipulates that “[a] newly appointed Court of Appeal justice will be assigned as a pro tempore justice of the Supreme Court only after he or she has served on the Court of Appeal for one year.” So, under both the order and the court’s internal operating practices and procedures, the court is looking for justices who became judges after July 1, 2017, and who started on the Court of Appeal before October 15, 2017. That looks like a null set, according to a quick look at the online Court of Appeal justices’ bios.
Wholesale Supreme Court recusals are rare. I believe the last time it happened was in 2010, in a case involving the possible sale of a building in which the Supreme Court sits. (See also here and here.)