Superior Court Does Not Enjoy Discretionary Immunity From Anti-Discrimination Statutes

The Court of Appeal has rejected the contention that the judiciary enjoys immunity under the California Constitution against claims of discrimination. In DeJung v. Superior Court (no, it's not a writ of mandate proceeding), the court rejected the claim that a superior court had discretionary immunity against a claim based on age discrimination. Here are the crucial two paragraphs, and good they are, too:

"It is true that California trial courts have the constitutional and statutory power to select subordinate judicial officers who will assist the courts’ judges in performing their duties. (Cal. Const., art. VI, § 22 [“The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.”]; § 71622, subd. (a) [“Each trial court may establish and may appoint any subordinate judicial officers that are deemed necessary for the performance of subordinate judicial duties . . . .”].) Certainly, that prerogative includes the discretion to determine which candidate for such a position is best suited to a court’s needs at a given time. But neither the trial judge’s statement of decision nor the Superior Court’s brief on appeal cites any authority for the proposition that in making this determination, courts may apply invidiously discriminatory criteria upon which other employers, including other government entities, are forbidden to rely. Indeed, as already discussed, FEHA specifically provides to the contrary.

Moreover, this remarkable suggestion is inimical to the core governmental responsibility entrusted to the courts: to provide for a public justice system that is unfailingly unbiased and impartial. (See generally Cal. Stds. Jud. Admin., §§ 10.20, 10.21 [courts have duty to refrain from bias in conducting proceedings, and not to discriminate in recruiting for court-appointed positions]; Cal. Code Jud. Ethics, canon 3C [judges shall discharge administrative responsibilities without bias or prejudice; shall exercise the power of appointment impartially on the basis of merit; and shall not engage in conduct that would reasonably be perceived as bias, including bias based on age].) Given this public trust, it is unimaginable that state law could be interpreted correctly as legally empowering the Superior Court itself to discriminate in selecting subordinate judicial officers on a basis prohibited under FEHA."