FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENISE SCHMIDT,
Plaintiff-Appellant,
v.
No. 11-15563
CONTRA COSTA COUNTY; JUDICIAL
D.C. No.
COUNCIL OF CALIFORNIA,
Administrative Office of the 3:05-cv-00197-
Courts; CONTRA COSTA SUPERIOR VRW
COURT; LAUREL BRADY; THOMAS OPINION
MADDOCK; LOIS HAIGHT; BARRY
BASKIN; KEN TORRE,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Argued and Submitted
July 19, 2012—San Francisco, California
Filed September 10, 2012
Before: Richard A. Paez and Jay S. Bybee, Circuit Judges,
and Sarah S. Vance,* Chief District Judge.
Opinion by Judge Paez
*The Honorable Sarah S. Vance, Chief District Judge of the Eastern
District of Louisiana, sitting by designation.
10787
10790 SCHMIDT v. CONTRA COSTA COUNTY
COUNSEL
Geoffrey M. Faust, Clayton, California, for plaintiff-appellant
Denise Schmidt.
Joseph E. Wiley (argued), Suzanne I. Price, and Joan Pugh
Newman, Wiley Price & Radulovich, LLP, Alameda, Califor-
nia, for defendants-appellees Torre, Maddock, Brady, Haight,
and Baskin.
Sharon L. Anderson, County Counsel, Monika L. Cooper
(argued), Supervising Deputy County Counsel, Contra Costa
County, Martinez, California, for defendant-appellee Contra
Costa County.
SCHMIDT v. CONTRA COSTA COUNTY 10791
OPINION
PAEZ, Circuit Judge:
Plaintiff Denise Schmidt alleges that she broke an unwrit-
ten rule and suffered the consequences when she challenged
a sitting superior court judge for his seat in a local election
while she was serving as a temporary superior court commis-
sioner. Schmidt lost her March 2004 election bid against an
incumbent judge of the Superior Court of California, County
of Contra Costa (“Superior Court”). Soon after, the Superior
Court’s Executive Committee adopted a policy rendering Sch-
midt ineligible to continue to serve as a temporary commis-
sioner. Having lost the election and her position as a
temporary commissioner, Schmidt filed this action under 42
U.S.C. § 1983 alleging, inter alia, that the Executive Commit-
tee adopted this policy in retaliation for her challenge to the
incumbent judge in violation of her free speech rights under
the First Amendment and the California Constitution. While
the timing and targeted effect of the Superior Court’s policy
are certainly suspicious, we do not reach the merits of Sch-
midt’s federal or state law retaliation claims because the
judges of the Superior Court’s Executive Committee enjoy
legislative immunity for their decision to alter the minimum
qualifications to serve as a temporary commissioner. We
therefore affirm the district court’s grant of summary judg-
ment to the Defendants.1
I.
Denise Schmidt became employed as an acting or tempo-
1
In a separate memorandum disposition filed concurrently with this
opinion we address and reject Schmidt’s Monell claim against Contra
Costa County, her claim of wrongful termination in violation of public
policy against Court Executive Officer Ken Torre in his official capacity,
and her challenge to the district court’s denial of her request and motions
for additional discovery.
10792 SCHMIDT v. CONTRA COSTA COUNTY
rary commissioner for the Superior Court in 1998. Schmidt
previously had been employed as a temporary commissioner
by the Walnut Creek-Danville Municipal Court, but, as a
result of the consolidation of the municipal and superior
courts, in June or July of 1998 she automatically became
employed as a temporary Superior Court commissioner. She
was paid a per diem rate for her work, and was free to accept
or reject days of work that she was offered.
Schmidt’s correct job title is an issue of some debate
between the parties. The district court described Schmidt as
“an acting or temporary court commissioner.” The documents
from her appointment in 1998 classify her as a “temporary”
court commissioner. Schmidt refers to her employment status
in her First Amended Complaint as that of “Acting Court
Commissioner.” She also argues in her reply brief that she
was a court commissioner tout court, and that the classifica-
tion of “temporary court commissioner” does not exist.
Although that classification may not exist currently, it did
exist in Contra Costa County when Schmidt was appointed as
a temporary commissioner for the Municipal Court. See Cal.
Gov’t Code § 73363 (1988), repealed by 2002 Cal. Legis.
Serv. Ch. 784 (S.B. 1316), § 404. That section of the Govern-
ment Code was repealed in 2002 following the consolidation
of the municipal and superior courts, after which there was no
longer any specific authority in the Government Code for the
Superior Court to employ “temporary court commissioners.”
However, the Trial Court Employment Protection and Gover-
nance Act, Cal. Gov’t Code §§ 71600-71675, which was a
key piece of legislation in the consolidation process, guaran-
teed that pre-consolidation trial court employees would
remain employed “at their existing or equivalent classifica-
tions.” Id. § 71615(c)(1) (2008). Ultimately, though, whether
the Superior Court had the authority to employ “temporary
court commissioners” is beside the point; the parties agree
that Schmidt was a subordinate judicial officer (“SJO”), and
whether the Superior Court has the authority to regulate the
qualifications of SJOs is a threshold issue for our analysis of
SCHMIDT v. CONTRA COSTA COUNTY 10793
legislative immunity.2 Whether Schmidt was a temporary
court commissioner or an acting court commissioner is irrele-
vant to this inquiry.
Schmidt was an active member of the California Bar prior
to her appointment as a temporary Superior Court commis-
sioner in 1998 and remained active until at least 2001. At
some point in late 2001 or early 2002, Schmidt telephoned the
California Bar on an unrelated matter, and the Bar representa-
tive with whom she spoke informed her that, in light of her
appointment as a court commissioner, it was appropriate for
her to be in inactive status.3 According to Schmidt, the Cali-
fornia Bar then placed her in inactive status of its own accord,
made her inactive status retroactive to her appointment as
court commissioner in 1998, and refunded the active-status
fees that she had paid for those years.
The Superior Court’s Executive Committee4 had been con-
2
An SJO is “a person appointed by a court to perform subordinate judi-
cial duties as authorized by article VI, section 22 of the California Consti-
tution, including a commissioner, a referee, and a hearing officer.” Cal. R.
Ct. 10.701(a).
3
The Rules of the State Bar of California specify that “a member serv-
ing for a court or any other governmental agency as a referee, hearing offi-
cer, court commissioner, temporary judge, arbitrator, mediator or in
another similar capacity is eligible for enrollment as an inactive member
if he or she does not otherwise [practice law or give legal advice] or hold
himself or herself out as being entitled to practice law.” R. State Bar Cal.
tit. II, div. 3, R. 2.30(C) (2007) (emphasis added).
4
According to the local court rules for the Contra Costa County Supe-
rior Court, “[t]he Executive Committee shall consist of the Supervising
Judges of the Civil, Criminal, Juvenile, and Family Law Divisions and the
Supervising Judges of each outlying geographic court location in Pitts-
burg, Richmond and Walnut Creek, all appointed by the Presiding Judge,
as well as the Assistant Presiding Judge of the Superior Court. The Presid-
ing Judge shall preside over the proceedings of the Executive Committee,
but shall not be entitled to vote except to break ties.” Contra Costa Cnty.
Superior Ct. Local R. 4(A) (2000). Minutes from Executive Committee
meetings, which were part of the summary judgment record, show that the
four individual judges named as defendants in this action—Laurel Brady,
Lois Haight, Barry Baskin, and Thomas Maddock—were all members of
the Superior Court’s Executive Committee.
10794 SCHMIDT v. CONTRA COSTA COUNTY
sidering the issue of adopting a temporary or pro tem judges
policy since at least August 2003, when Judge Lois Haight, a
defendant in this action, prepared policy recommendations
requiring that temporary judges be members of the California
Bar for five years immediately preceding their appointment.5
Handwritten notes on the draft policy by then-Presiding Judge
Laurel Brady, another defendant, suggested adding a require-
ment that temporary judges be active members of the Bar.
The draft policy was discussed at the August 28, 2003 Execu-
tive Committee meeting.
Also in 2003, Schmidt decided to challenge an incumbent
judge, John Sugiyama, who was up for election in March
2004 after his appointment to the Superior Court in 2002. On
November 5, 2003, Schmidt filed a “Declaration of Intent to
Run,” and took all other steps required to qualify as a candi-
date for Judge of the Superior Court. Schmidt campaigned
from November 2003 until March 2004. According to Sch-
midt, her “inactive State Bar status became a campaign issue
during the election,” which she lost in March 2004, when
Judge Sugiyama won a decisive victory.
Judge Haight stated in a declaration that she had no knowl-
edge of Schmidt’s candidacy. At her deposition, however, she
confirmed that she donated money to Judge Sugiyama’s cam-
paign. The other individual defendants in this action—former
Court Executive Officer Ken Torre, then-Assistant Presiding
Judge Thomas Maddock, Judge Brady, and Judge Barry
5
A temporary judge is “an active or inactive member of the State Bar
of California who, under article VI, section 21 of the California Constitu-
tion and [the California Rules of Court], serves or expects to serve as a
judge once, sporadically, or regularly on a part-time basis under a separate
court appointment for each period of service or each case heard.” Cal. R.
Ct. 1.6(13). “On stipulation of the parties litigant the court may order a
cause to be tried by a temporary judge . . . .” CAL. CONST. art. VI, § 21.
While an SJO may sit as a temporary judge if she has the required qualifi-
cations and the parties’ consent, a temporary judge is not classified as an
SJO. Cal. R. Ct. 10.700(b), 10.701(a).
SCHMIDT v. CONTRA COSTA COUNTY 10795
Baskin—were aware of Schmidt’s candidacy. Judge Baskin
was on Judge Sugiyama’s election committee, held a fundr-
aiser for Judge Sugiyama in his home, and donated money to
Sugiyama’s campaign committee.
On April 21, 2004, a month and a half after the election, the
Executive Committee held its monthly meeting. The fifth item
on its agenda was discussion of a “temporary judge policy”
drafted by Judge Baskin. That draft policy document
addressed only temporary judges—not commissioners or ref-
erees—and required them to be “active members in good cur-
rent and historical standing of the State Bar of California for
a minimum of five consecutive years immediately preceding
appointment,” and to sign a declaration so stating “on each
day of service, before serving.” Judge Baskin’s draft policy
was strikingly similar to Judge Haight’s draft policy from the
previous August. The Executive Committee discussed Judge
Baskin’s draft policy and decided to include “small claims
appeals pro tem judges” in the program, and “it was moved,
seconded, and APPROVED that the Assistant Presiding Judge
oversee the Pro Tem Program . . . .” Judge Baskin was tasked
with preparing amendments to the policy.
In May 2004, then-Chief Assistant Court Executive Officer
Sherry Dorfman had a report drawn up reflecting the Califor-
nia Bar membership status of all pro tem judges, private
judges, and temporary commissioners, which she provided to
the Executive Committee at its next meeting on May 19,
2004. Schmidt was listed as “inactive” as of January 1, 1998.
Only three other people were listed as “inactive”: Temporary
Commissioner Richard Calhoun,6 Private Judge Stanley Dod-
son, and Private Judge Patrick Resen. On May 17, 2004, Sch-
midt applied for a permanent commissioner position at the
6
Richard Calhoun was a former Superior Court judge who had either
retired or been defeated in a re-election bid. The temporary judges policy,
through all its iterations, never applied to retired judges. Moreover, Cal-
houn ceased working for the Superior Court in March of 2004.
10796 SCHMIDT v. CONTRA COSTA COUNTY
Superior Court. Two days later, at its May 19 meeting, the
Executive Committee discussed an amended version of the
policy presented at the April meeting, and unanimously
approved it. The May version of the temporary judges policy
(“the Policy”) also applied to temporary commissioners and
temporary referees, and had an effective date of May 15,
2004. The Policy required all temporary judges, commission-
ers, and referees to “be active members in good current and
historical standing of the State Bar of California for a mini-
mum of five consecutive years immediately preceding each
day of service.”
Also on May 19, Commissioner Steven Houghton con-
tacted Schmidt on his own initiative to inform her of the
Executive Committee’s decision and to tell her that she would
no longer be able to sit as a temporary commissioner under
the new Policy. According to Houghton, Schmidt’s response
was that “they were targeting her.” Houghton informed Sch-
midt that Temporary Commissioner Calhoun and Houghton
himself would no longer be eligible under the Policy and that
“it wasn’t about her.” Houghton also offered to try to obtain
a waiver of the active Bar membership requirement for Sch-
midt on account of the length of her service in the Superior
Court.
Judge Maddock, then the Assistant Presiding Judge over-
seeing implementation of the Policy, learned on May 19 that
Schmidt had telephoned a Superior Court staff member
regarding her status as a temporary commissioner. Judge
Maddock returned Schmidt’s call the next day and read to her
the paragraph of the Policy that set forth the criteria to serve
as a temporary judge or commissioner, including the five-year
active membership requirement. Following adoption of the
Policy on May 19, Schmidt never again served as a temporary
commissioner for the Superior Court.
The Policy was further revised at Executive Committee
meetings in June and July, 2004. The June revision changed
SCHMIDT v. CONTRA COSTA COUNTY 10797
the date that the Policy would go into effect to “May 15,
2004, or when revised, on subsequent dates of revision.” The
July revision added a sentence clarifying that the Superior
Court’s policy remained that “temporary judges and tempo-
rary commissioners have no employment rights and are not
entitled to employment benefits.”
II.
Schmidt filed a complaint in federal court in January 2005
against Judge Maddock, Judge Brady, Judge Haight, and
Judge Baskin (“the Judge Defendants”), and against Ken
Torre, Contra Costa County, the Judicial Council of Califor-
nia, and the Contra Costa Superior Court. She filed a First
Amended Complaint (“FAC”) only against the Judge Defen-
dants, Torre, and the County in April 2005, seeking monetary
and injunctive relief (1) pursuant to 42 U.S.C. § 1983 for vio-
lation of her rights under the First, Fifth, and Fourteenth
Amendments and the Bill of Attainder clause of the United
States Constitution, (2) for violation of her analogous rights
under the California Constitution, and (3) for wrongful termi-
nation in violation of public policy. Of the Judge Defendants,
Schmidt sued Judge Maddock in his official and individual
capacities, and Judges Brady, Haight, and Baskin in their indi-
vidual capacities.7 Schmidt also sued Torre in his official
capacity. The district court granted the defendants’ separate
motions to dismiss the FAC in January 2006, dismissing all
of Schmidt’s claims with leave to amend. Schmidt then filed
a Second Amended Complaint (“SAC”) against only Torre,
Judge Maddock, and Judge Brady in April 2006. These
remaining defendants responded with a motion to dismiss,
which the district court granted with prejudice in November
2006 as to all of Schmidt’s SAC claims.
7
Although Schmidt sued Judge Maddock in both his official and indi-
vidual capacities, the charging allegations in the FAC and the arguments
on appeal reflect that Schmidt sought relief against him only in his indi-
vidual capacity.
10798 SCHMIDT v. CONTRA COSTA COUNTY
Schmidt appealed, and we reversed and remanded in a
memorandum disposition. See Schmidt v. Contra Costa Cnty.,
310 Fed. App’x 110 (9th Cir. 2009). We reversed “principally
on procedural grounds,” and therefore did “not reach the mer-
its of each of Schmidt’s claims.” Id. at 112 n.1. As we
explained in our disposition, we reversed because (1) the dis-
trict court considered matters outside the pleadings in ruling
on the defendants’ motion to dismiss and treated it as a
motion for summary judgment without complying with Rule
56 of the Federal Rules of Civil Procedure, and (2) the district
court erred by concluding that Schmidt failed to state a First
Amendment claim under 42 U.S.C. § 1983. Id. at 111-12.
On remand, Schmidt elected to go forward on her FAC.
The Judge Defendants along with Torre again moved to dis-
miss the FAC for failure to state a claim under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. In December 2009,
the district court granted the motion with respect to all claims
against the Judge Defendants and Torre for their role in pro-
mulgating the Policy, concluding that they were entitled to
legislative immunity. The district court also concluded, how-
ever, that neither the Judge Defendants nor Torre was entitled
to immunity from liability on Schmidt’s claim that they
applied the Policy to her retroactively. The district court
therefore denied the motion to dismiss with respect to Sch-
midt’s § 1983 First Amendment claim, but granted the motion
with respect to her other claims. Schmidt also claimed that the
Judge Defendants and Torre violated her rights under the Cal-
ifornia Constitution, but the rights that she identified were
analogues of the rights she identified in the federal constitu-
tion; therefore, the district court also dismissed all of Sch-
midt’s state-law claims other than her free speech claim.8
After discovery, all parties—Schmidt, the Judge Defen-
8
In addition, the district court dismissed Schmidt’s wrongful termina-
tion in violation of public policy claim, which we address in our concur-
rently filed memorandum disposition.
SCHMIDT v. CONTRA COSTA COUNTY 10799
dants and Torre, and Contra Costa County—moved for sum-
mary judgment. The only remaining claims were Schmidt’s
First Amendment claim under the federal constitution and her
free speech claim under the California Constitution. In Febru-
ary 2011, the district court granted summary judgment to the
Judge Defendants and Torre on the First Amendment and free
speech claims, because it concluded that “candidacy for polit-
ical office does not amount to speech on a matter of public
concern” and therefore is not protected speech. The district
court also concluded that the Judge Defendants and Torre
were protected by absolute legislative immunity, because
“[t]he policy is legislative” and Schmidt failed to present evi-
dence that she was terminated pursuant to an administrative
decision to apply a forward-looking policy retroactively.9
Schmidt raises various issues on appeal, but here we only
address Schmidt’s challenge to the district court’s grant of
legislative immunity to the Judge Defendants.10
III.
The district court initially granted the Judge Defendants
legislative immunity “from all claims predicated on [their]
involvement in promulgating the policy” in its December
9
The district court also granted summary judgment to Contra Costa
County on the § 1983 claims against it, and denied Schmidt’s discovery
request and related motions. We address Schmidt’s appeals of those rul-
ings in our concurrently filed memorandum disposition, along with her
appeal of the dismissal of her wrongful termination claim against Torre.
10
Although the district court granted Torre legislative immunity for his
involvement in the adoption and application of the Policy, in fact legisla-
tive immunity is inappropriate for Torre because Schmidt sued him in his
official capacity. See Hirsch v. Justices of the Supreme Court of the State
of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (discussing legislative immunity
for “individual defendants . . . in their individual capacities”). Moreover,
it is clear from Schmidt’s FAC and her briefs in this appeal that she
included Torre in this suit only for purposes of her wrongful termination
claim, discussed in our concurrently filed memorandum disposition.
10800 SCHMIDT v. CONTRA COSTA COUNTY
2009 Rule 12(b)(6) dismissal order. In that order, the district
court set forth its analysis of the legislative nature of the Pol-
icy, and in doing so, properly limited its discussion to the alle-
gations contained in Schmidt’s FAC. However, in its
February 2011 order granting summary judgment to the Judge
Defendants on Schmidt’s remaining First Amendment and
California free speech claims, the district court again deter-
mined that “[t]he policy is legislative,” and again concluded
that the Judge Defendants were entitled to absolute legislative
immunity. Because the district court again addressed the issue
of legislative immunity in its summary judgment ruling, we
elect to address the issue of the Judge Defendants’ entitlement
to legislative immunity at the summary judgment stage, where
we consider the evidence produced in response to the parties’
summary judgment motions.
“This court reviews a district court’s grant of summary
judgment de novo.” Dawson v. Entek Int’l, 630 F.3d 928, 934
(9th Cir. 2011). We “must determine, viewing the evidence in
the light most favorable to the nonmoving party, whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.”
Id. Our task is not to “ ‘weigh the evidence or determine the
truth of the matters asserted but . . . only [to] determine
whether there is a genuine issue for trial.’ ” Autery v. United
States, 424 F.3d 944, 956 (9th Cir. 2005) (quoting Summers
v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir.
1997)). We may affirm summary judgment “on any ground
supported by the record.” Hawn v. Exec. Jet Mgmt., Inc., 615
F.3d 1151, 1155 (9th Cir. 2010). In addition, we review de
novo the district court’s decision to grant or deny legislative
immunity. San Pedro Hotel Co. v. City of Los Angeles, 159
F.3d 470, 476 (9th Cir. 1998).
IV.
[1] “Legislators are entitled to ‘absolute common-law
immunity against civil suits for their legislative acts, which is
SCHMIDT v. CONTRA COSTA COUNTY 10801
parallel to the immunity provided by the Speech or Debate
Clause.’ ” Id. at 476 (quoting Chappell v. Robbins, 73 F.3d
918, 920 (9th Cir. 1996)). Legislative immunity applies to
actions for damages and for injunctive relief. Supreme Court
of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719,
732-33 (1980). We conclude that the Judge Defendants enjoy
absolute legislative immunity for the adoption and application
of the Policy, and we therefore affirm the district court’s grant
of summary judgment on that basis.
A. Authority to Regulate
[2] The threshold inquiry in our discussion of legislative
immunity is whether the Superior Court has the authority to
regulate the minimum qualifications of SJOs employed by the
court, as the Executive Committee did when it adopted the
Policy. In most legislative immunity cases, the governmental
entity’s authority to act is clearly defined and therefore rarely
at issue. See, e.g., Cmty. House, Inc. v. City of Boise, 623 F.3d
945, 960 (9th Cir. 2010) (noting the sections of the Idaho
Code authorizing cities to pass ordinances and resolutions);
Kaahumanu v. Cnty. of Maui, 315 F.3d 1215, 1222 (9th Cir.
2003) (noting that the Maui County Council has authority to
grant conditional use permits). To merit legislative immunity,
however, government officials must act within their defined
or delegated legislative powers. The foundational case on leg-
islative immunity, Tenney v. Brandhove, focuses specifically
on whether officials “act[ed] in the sphere of legitimate legis-
lative activity.” 341 U.S. 367, 376 (1951) (emphasis added);
see also Rehberg v. Paulk, 132 S. Ct. 1497, 1502 (2012);
Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998). When officials
act outside their legitimate sphere of legislative authori-
ty—when they “acquire power by an unwarranted extension
of privilege”—courts must not “hestitate[ ] to sustain the
rights of private individuals” in the face of illegitimate legis-
lative action. Tenney, 341 U.S. at 376, 377. Officials cross the
line only when they violate the separation of powers and
10802 SCHMIDT v. CONTRA COSTA COUNTY
“usurp[ ] . . . functions exclusively vested in the Judiciary or
the Executive.” Id. at 378.
[3] Here, the Superior Court’s authority to adopt the Policy
is not clear-cut. This is not because this case arises within the
context of California’s judicial branch, as it is well-settled that
when judges perform legislative functions, they too may be
entitled to legislative immunity.11 Supreme Court of Va., 446
U.S. at 734; Hirsch v. Justices of the Supreme Court of the
State of Cal., 67 F.3d 708, 715 (9th Cir. 1995). Rather, it is
because a superior court’s authority to regulate the qualifica-
tions of SJOs is not specifically enumerated in California law.
Article VI, Section 6 of the California Constitution estab-
lishes the Judicial Council of California and charges it with
“adopt[ing] rules for court administration, practice and proce-
dure,” specifying that “[t]he rules adopted shall not be incon-
sistent with statute.” CAL. CONST. art. VI, § 6(d). In turn, the
Judicial Council adopted the California Rules of Court, which
“ ‘have the force of statute to the extent that they are not
inconsistent with legislative enactments and constitutional
provisions.’ ” Silverbrand v. Cnty. of Los Angeles, 205 P.3d
1047, 1059 (Cal. 2009) (quoting Sara M. v. Superior Court,
11
Contrary to Schmidt’s argument, it is not necessary that a court exer-
cise “the State’s entire legislative power” in order to qualify for legislative
immunity. See Supreme Court of Va., 446 U.S. at 734. The Supreme Court
of Virginia happened to do so when it promulgated and enforced rules pro-
hibiting attorneys in the state from advertising their services, id., but the
Supreme Court of Virginia opinion does not hold that a court must act in
place of the state legislature in order to qualify for legislative immunity.
Our 1987 opinion in Greater Los Angeles Council on Deafness v. Zolin
does not hold otherwise. See 812 F.2d 1103, 1108-09 (9th Cir. 1987).
Although we referenced Supreme Court of Virginia in that opinion, we did
not base our holding on the fact that the defendants, the Los Angeles
County Superior Court’s jury commissioner and director of juror services,
did not exercise the entire legislative power of the state of California. See
id. Instead, we held that the defendants made an executive decision
because they “were [not] empowered by a legislative body to promulgate
regulations to implement the legislative will.” Id. at 1108.
SCHMIDT v. CONTRA COSTA COUNTY 10803
116 P.3d 550, 556 (Cal. 2005)) (internal quotation marks
omitted). The Judicial Council also has specific statutory
authority to “promulgate rules establishing the minimum
qualifications and training requirements for [SJOs].”12 Cal.
Gov’t Code § 71622(c). The Superior Court’s Policy estab-
lished minimum qualifications for certain SJOs—temporary
commissioners and temporary referees—more demanding
than those set by the Judicial Council in the California Rules
of Court. We must therefore determine whether the Superior
Court may regulate SJOs in this way under California law.13
The California Rules of Court do authorize the Superior
Court to adopt regulations establishing minimum qualifica-
tions for current and potential employees. We disagree with
the district court and the Judge Defendants, however, that the
Superior Court’s authority to do so can be found in California
Rule of Court 10.901(2), which provides that “[e]ach court
must . . . [a]dopt for judges and court personnel an internal
operations manual of policies and procedures necessary for
the efficient operation and management of the court.” The
California courts have yet to interpret this Rule, but it does
not appear to provide authority for the Superior Court to adopt
minimum qualifications for SJOs. That this rule applies to
12
Those minimum qualifications are that an SJO be a member of the
California Bar and either (1) have “been admitted to practice law in Cali-
fornia for at least 10 years or, on a finding of good cause by the presiding
judge, for at least 5 years; or (2) [be] serving as a subordinate judicial offi-
cer in a trial court as of January 1, 2003.” Cal. R. Ct. 10.701(b).
13
We do not address whether the Superior Court has the authority to
regulate temporary and pro tem judges, who are not SJOs. See Cal. R. Ct.
10.700(b), 10.701(a).
We also note that California courts have inherent authority to appoint
SJOs. People v. Laff, 23 P.3d 563, 584 (Cal. 2001). The Legislature may
“regulate the manner in which trial courts exercise this authority, so long
as the Legislature does not defeat or materially impair the court’s exercise
of its constitutional power or the fulfillment of its constitutional func-
tions.” Id. The power to appoint SJOs is distinct from the power to regu-
late their qualifications, however.
10804 SCHMIDT v. CONTRA COSTA COUNTY
internal operations manuals suggests that such manuals are
meant to set forth the policies and procedures applicable to
current employees of the Superior Court, not to potential
employees.
Furthermore, there is no relevant authority in section 68070
of the Government Code, which both parties cite in their
briefs. Section 68070 provides that “[e]very court may make
rules for its own government and the government of its offi-
cers not inconsistent with law or with the rules adopted and
prescribed by the Judicial Council.” Cal. Gov’t Code
§ 68070(a). In addition to this statutory authority, “the supe-
rior court has the inherent supervisory and administrative
powers to enact its own rules so long as they do not conflict
with statutes, case law or the California Rules of Court.”
Ghaffarpour v. Superior Court, 136 Cal. Rptr. 3d 544, 547
(Cal. Ct. App. 2012); see also Elkins v. Superior Court, 163
P.3d 160, 165-66 (Cal. 2007); Rutherford v. Owens-Illinois,
Inc., 941 P.2d 1203, 1213 (Cal. 1997). The California
Supreme Court has concluded, however, that both this inher-
ent authority and the statutory authority from section 68070(a)
amount to nothing more than California courts’ ability to
“create their own rules of evidence and procedure,” so long
as those local rules do not conflict with statewide rules.
Elkins, 163 P.3d at 166. The authority to adopt local rules of
evidence and procedure is not expansive enough to encom-
pass the authority to adopt the policy at issue here.
[4] Instead, the Superior Court’s authority to adopt the Pol-
icy can be found in California Rules of Court 10.601(b)(3)
and 10.670(c)(4). By adopting Rule 10.601(b)(3), the Judicial
Council granted superior courts the authority to “[m]anage
their personnel systems, including the adoption of personnel
policies.” Rule 10.670(c)(4) requires superior courts to adopt
“personnel plans” that address “[r]ecruitment, selection, and
promotion policies.”14 These two Rules grant the Superior
14
The June version of the Policy references California Rule of Court
10.670(c)(4) (formerly Rule 6.603(c)(4)) as one of its sources of authority.
SCHMIDT v. CONTRA COSTA COUNTY 10805
Court significant authority over its personnel policies, includ-
ing policies that apply to potential or future employees,
through use of the terms “recruitment” and “selection.” Cal.
R. Ct. 10.670(c). This authority encompasses the ability to
adopt policies establishing the minimum qualifications for
persons who seek employment with the Superior Court.
[5] Personnel plans adopted by the superior courts in Cali-
fornia must be “consistent with applicable statutes, rules, and
standards of judicial administration.” Cal. R. Ct. 10.670(b).
The Superior Court’s Policy, which established qualifications
to serve as an SJO that are more demanding than those set by
the Judicial Council, is not inconsistent with the Judicial
Council’s statutory authority to “promulgate rules establishing
the minimum qualifications and training requirements for
[SJOs].” Cal. Gov’t Code § 71622(c). The crux of the issue is
the meaning of “minimum” in section 71622(c): Schmidt
argues that minimum qualifications are, in a sense, also maxi-
mum qualifications—that is, just as states may not increase
the minimum voting age above 18 years, superior courts in
California may not add to the minimum state-wide require-
ments to serve as an SJO. The Judge Defendants, by contrast,
read “minimum” as establishing a statewide baseline or floor
that allows superior courts to add to the requirements for
those who seek to serve as an SJO.
[6] Because the term “minimum” in section 71622(c) is
undefined in California statutes or case law, we must deter-
mine its meaning. We “must give effect to the language of a
statute if it is plain and unambiguous.” Golden W. Ref. Co. v.
SunTrust Bank, 538 F.3d 1233, 1238 (9th Cir. 2008); see also
In re W.B., Jr., 144 Cal. Rptr. 3d 843, 858 (Cal. 2012). The
plain meaning of the adjective “minimum” is “least attainable
or possible.” Webster’s Third New International Dictionary of
the English Language (Unabridged) 1438 (1993). Further,
Black’s Law Dictionary defines “minimum” as “[o]f, relating
to, or constituting the smallest acceptable or possible quantity
in a given case.” Black’s Law Dictionary 1085 (9th ed. 2009).
10806 SCHMIDT v. CONTRA COSTA COUNTY
Clearly, a “minimum” sets the lowest, “least,” or “smallest”
possible standard. The Judge Defendants’ interpretation of the
statute is consistent with this definition, while Schmidt’s
interpretation does not mirror the standard definition of the
term. Applying the plain meaning of “minimum” to this stat-
ute, it is clear that the Judicial Council establishes a statewide
floor for the necessary qualifications that an SJO must pos-
sess. This does not prevent a county superior court from
adopting additional requirements.
[7] In adopting the Policy, the Superior Court, through its
Executive Committee, exercised its authority under the Cali-
fornia Rules of Court, and therefore acted within its legisla-
tive authority. In the language of Tenney, this was not an
“unwarranted extension of privilege,” but rather was “legiti-
mate legislative activity.” 341 U.S. at 376. Therefore, we con-
clude that California law does afford the Superior Court the
authority to adopt a policy regulating the minimum qualifica-
tions for future and current SJOs, and therefore that the Judge
Defendants are eligible for legislative immunity at the first
step of the inquiry. We next turn to the federal test for legisla-
tive immunity.
B. Legislative Immunity Under Federal Law
[8] “[L]egislators are absolutely immune from liability
under § 1983 for their legislative acts.” Kaahumanu, 315 F.3d
at 1219. We do not look to “defined categories of government
acts but [to] ‘the character and effect’ of the particular act at
issue” to determine if the act is legislative. Cmty. House, 623
F.3d at 960 (quoting Cinevision Corp. v. City of Burbank, 745
F.2d 560, 580 (9th Cir. 1984)). In particular, we consider four
factors: “(1) whether the act involves ad hoc decisionmaking,
or the formulation of policy; (2) whether the act applies to a
few individuals, or to the public at large; (3) whether the act
is formally legislative in character; and (4) whether it bears all
the hallmarks of traditional legislation.” Kaahumanu, 315
F.3d at 1220 (internal quotation marks omitted). “The first
SCHMIDT v. CONTRA COSTA COUNTY 10807
two factors are largely related, as are the last two factors, and
they are not mutually exclusive.” Cmty. House, 623 F.3d at
960.
We emphasize that our “inquiry into whether the officials’
actions were legislative must be ‘stripped of all considerations
of intent and motive.’ ” Id. (quoting Bogan v. Scott-Harris,
523 U.S. 44, 55 (1998)). In Bogan, the Supreme Court stated
that “it simply is ‘not consonant with our scheme of govern-
ment for a court to inquire into the motives of legislators,’ ”
523 U.S. at 55 (quoting Tenney, 341 U.S. at 377), and noted
that legislative immunity was granted in Tenney despite the
accusation that the defendant “allegedly singled out the plain-
tiff for investigation in order ‘to intimidate and silence plain-
tiff and deter and prevent him from effectively exercising his
constitutional rights.’ ” Id. (quoting Tenney, 341 U.S. at 371).
In Bogan, the city council and the mayor of Fall River, Mas-
sachusetts eliminated the Department of Health and Human
Services, of which plaintiff Janet Scott-Harris was the sole
permanent employee, shortly after Scott-Harris prepared ter-
mination charges against a politically well-connected tempo-
rary employee serving under her who had allegedly made
repeated racial and ethnic slurs against her colleagues. Id. at
46-47. The Supreme Court nevertheless granted legislative
immunity to the city council members and the mayor, con-
cluding with “little trouble” that their acts of introducing, vot-
ing for, and signing the ordinance eliminating the department
into law were “quintessentially legislative.” Id. at 55. Keeping
these precedential examples in mind, we move on to the
Kaahumanu four-factor test.
(1) Ad Hoc Decisionmaking or Formulation of Policy
[9] An ad hoc decision is one “taken based on the circum-
stances of [a] particular case”; it does not “effectuate policy
or create a binding rule of conduct.” Kaahumanu, 315 F.3d at
1220. “An ‘ad hoc’ decision is made ‘with a particular end or
purpose,’ as distinguished from ‘a coordinated policy.’ ”
10808 SCHMIDT v. CONTRA COSTA COUNTY
Cmty. House, 623 F.3d at 961 (quoting Webster’s New Inter-
national Dictionary (Unabridged) 26 (2002)). The Superior
Court’s Policy is clearly not an ad hoc decision. Unlike the
Maui City Council in Kaahumanu, the Superior Court was not
considering an individual application for specific governmen-
tal action—in that case, the granting of a conditional use per-
mit—but rather was creating a binding rule for all attorneys
serving the Superior Court as temporary judges, commission-
ers, and referees. See Kaahumanu, 321 F.3d at 1220. This fac-
tor therefore supports finding that the Policy is legislative in
character.
(2) Application to a Few Individuals or to the Public at
Large
“When the act in question applies to a few individuals
rather than the public at large, legislative immunity is disfa-
vored.” Id. at 1222. However, “[a]n act need not affect a
city’s entire population in order to be considered legislative.
It is sufficient that the act affects a discrete group of people
or places.” Cmty. House, 623 F.3d at 960. This factor is a
“question . . . of degree,” and while it “ ‘may at times be use-
ful, it does not always provide an answer to the question’ of
whether an act is legislative.” Kaahumanu, 315 F.3d at 1222
(quoting Cinevision, 745 F.2d at 579).
[10] Here, the Policy affected every temporary judge, tem-
porary commissioner, and temporary referee appointed by the
Superior Court after May 15, 2004, and all such future
appointments. Although at the time of its adoption the Policy
affected only two temporary commissioners and two private
judges, the Policy was not limited to these four individuals
but extended to all future applicants for such positions.15
15
Schmidt cites Gutierrez v. Municipal Court, 838 F.2d 1031 (9th Cir.
1988), to argue that the Policy was a personnel decision and not the result
of legislative judgment. The Supreme Court vacated Gutierrez as moot,
and the opinion therefore holds no precedential value. 490 U.S. 1016
SCHMIDT v. CONTRA COSTA COUNTY 10809
Therefore, this factor also supports finding that the Policy is
legislative in character.
(3) Formally Legislative Character of the Act
[11] The “formally legislative character” of an act—i.e.,
the fact that a decision was made by voting or through an
equivalent legislative procedure—“weighs in favor of legisla-
tive immunity, [but] it does not itself decide the issue.” Id. at
1223. The act of voting on and passing ordinances and resolu-
tions pursuant to correct legislative procedures is “formally
and indisputably legislative.”16 Cmty. House, 623 F.3d at 960.
Here, the Executive Committee discussed and then “moved,
seconded, and unanimously APPROVED” the Policy at the
Committee’s May 19, 2004 meeting. The meeting itself
appears to have been a formal one, in that there was an
agenda, minutes were taken and later approved, and certain
formal procedures were followed, including making motions
and seconding those motions before voting on them. The Pol-
icy itself was approved unanimously, which indicates that a
vote took place. Therefore, the act of approving the Policy
was legislative in character, and this factor too weighs in
favor of legislative immunity.
(1989); see also Garcia v. Spun Steak Co., 998 F.2d 1480, 1487 n.1 (9th
Cir. 1993). Even if the reasoning of Gutierrez were still binding, however,
the case is distinguishable because it involved an intra-workplace English-
only “rule governing the conduct of clerical employees” in a specific
municipal court. Here, by contrast, the Policy did not affect conduct within
the workplace but rather established the minimum qualifications to serve
the court in certain judicial-type positions, and therefore had a much wider
application.
16
Schmidt’s argument that the Policy was not adopted consistent with
the Superior Court’s Local Court Rule 4 appeared only in her reply brief,
and is therefore waived. See Miller, 797 F.2d at 738; Kimble, 107 F.3d at
715 n.2.
10810 SCHMIDT v. CONTRA COSTA COUNTY
(4) Hallmarks of Traditional Legislation
The hallmarks of traditional legislation include the use of
discretion, the making of policy that implicates budgetary pri-
orities and the provision of services, and prospective implica-
tions that reach beyond the particular persons immediately
impacted. See Kaahumanu, 315 F.3d at 1223. Adoption of the
Policy was certainly a discretionary act; there is nothing in the
summary judgment record, governing statutes or court rules
that directed the Superior Court to adopt this particular policy.
[12] The Policy also implicates the provision of services to
litigants and the public. First, because the Policy set the quali-
fications of those who would be allowed to serve the Superior
Court in a subordinate judicial capacity, it had a direct impact
on litigants. Second, to the extent that certain temporary com-
missioners and referees then employed by the Superior Court,
like Schmidt, were rendered ineligible to serve, and that other
potential future applicants were similarly rendered ineligible
to apply for those positions for a certain number of years, the
Policy restricted the potential applicant pool for such posi-
tions. The diminished candidate pool had the potential to
affect the Superior Court’s ability to recruit qualified tempo-
rary commissioners and referees to meet its needs. Finally, the
Policy had prospective implications reaching beyond the par-
ticular temporary commissioners and private judges immedi-
ately affected in May 2004, because it applied to all future
applicants for the positions as well. Similar to the Fall River
City Council’s decision to eliminate the Department of Health
and Human Services in Bogan, the Policy was not “the hiring
or firing of a particular employee” but a decision to alter the
eligibility requirements for everyone wishing to serve in cer-
tain temporary bench officer positions in the Superior Court.
Bogan, 523 U.S. at 56. Therefore, the Policy bore the hall-
marks of traditional legislation, and this final factor also sup-
ports finding that the Policy was legislative in character.
[13] All four Kaahumanu factors support our determina-
tion that the Policy adopted by the Superior Court’s Executive
SCHMIDT v. CONTRA COSTA COUNTY 10811
Committee in May 2004 was legislative. Furthermore, the dis-
trict court correctly rejected Schmidt’s argument that the
Judge Defendants were liable for applying the Policy to her:
the Policy was a legitimate legislative act, and was not
applied to Schmidt until May 20 at the earliest, one day after
it was unanimously adopted by the Executive Committee. We
therefore conclude that the Judge Defendants are entitled to
legislative immunity for their role in adopting and applying
the Policy. The district court correctly granted summary judg-
ment to the Judge Defendants for Schmidt’s First Amendment
claim under section 1983.
C. Legislative Immunity Under California Law
[14] The Judge Defendants also enjoy legislative immunity
from Schmidt’s California Constitution claims. In its initial
order dismissing most of Schmidt’s claims, the district court
concluded that the Judge Defendants enjoyed legislative
immunity from “all claims predicated on [their] involvement
in promulgating the policy,” which applied both to Schmidt’s
federal First Amendment claim and to her California free
speech claim, although the district court provided no separate
discussion of California legislative immunity. Neither did the
district court discuss California legislative immunity in its
February 2011 summary judgment order. We conclude, how-
ever, that the Judge Defendants do enjoy legislative immunity
from Schmidt’s California Constitution claims under Califor-
nia law.
[15] Legislative immunity in California law is grounded in
the separation of powers doctrine, embodied in Article III,
Section 3 of the California Constitution: “The powers of state
government are legislative, executive, and judicial. Persons
charged with the exercise of one power may not exercise
either of the others except as permitted by this Constitution.”17
17
The Judge Defendants argued to the district court that they were enti-
tled to legislative immunity pursuant to the California Tort Claims Act,
10812 SCHMIDT v. CONTRA COSTA COUNTY
See D’Amato v. Superior Court, 84 Cal. Rptr. 3d 497, 505-07
(Cal. Ct. App. 2008); Steiner v. Superior Court, 58 Cal. Rptr.
2d 668, 676-78 (Cal. Ct. App. 1996). A “corollary of the sepa-
ration of powers doctrine . . . is legislators have absolute
immunity from damage suits based on legislative acts.”
Steiner, 58 Cal. Rptr. 2d at 677. To determine whether a gov-
ernmental action qualifies as “legislative,” the California
courts focus on whether governmental actions “contain matter
which is properly to be regarded as legislative in character
and effect.” Id. at 679 (quoting Cinevision, 745 F.2d at 580).
Our lengthy discussion of the Policy under the Kaahumanu
framework establishes that it was “legislative in character and
effect” for the reasons given supra, in particular that the
Executive Committee formulated a policy that applied not just
to Schmidt but to all temporary judges, commissioners, and
referees, and to everyone looking to apply to serve in one of
those capacities.
V.
[16] Because Defendants Brady, Haight, Maddock, and
Baskin are entitled to legislative immunity from Schmidt’s
section 1983 and California Constitution claims for their role
in adopting and applying the Policy to Schmidt, we affirm the
district court’s grant of summary judgment to the Judge
Defendants. This conclusion forecloses any relief on Sch-
midt’s free speech claims, and also on her other section 1983
claims for the violation of her rights under the Takings Clause
of the Fifth Amendment and the Bill of Attainder Clause of
the United States Constitution, and their equivalents under the
which provides that “[e]xcept as otherwise provided by statute, a public
employee is not liable for an injury resulting from his act or omission
where the act or omission was the result of the exercise of the discretion
vested in him, whether or not such discretion be abused.” Cal. Gov’t Code
§ 820.2. However, the immunities set forth in the Tort Claims Act do not
apply to claims, like Schmidt’s free speech claim, which are based upon
alleged violations of the California Constitution. See Odello Bros. v. Cnty.
of Monterey, 73 Cal. Rptr. 2d 903, 912 (Cal. Ct. App. 1998).
SCHMIDT v. CONTRA COSTA COUNTY 10813
California Constitution, to the extent that these additional
claims are based on the Judge Defendants’ adoption of the Poli-
cy.18 Although the timing of the Policy and its targeted effect
on Schmidt certainly call the Defendants’ motives into ques-
tion, it is not for the courts to determine whether legislators
had “dishonest or vindictive motives” when they passed a
specific piece of legislation. Tenney, 341 U.S. at 378. Instead,
we are limited to “the narrow confines of determining that a
[governmental act] may fairly be deemed within its province.”
Id. Here, the Executive Committee of the Superior Court was
“within its province” when it promulgated the Policy, and
therefore we can comment no further.
AFFIRMED.
18
To the extent that these additional claims are free-standing due pro-
cess and bill of attainder claims under the federal and state constitutions,
we affirm the district court’s dismissal of these claims on the merits. First,
the district court correctly dismissed Schmidt’s claim that application of
the temporary judges policy constituted an unconstitutional taking of her
property without due process. The district court correctly concluded that
Schmidt failed to plead sufficient factual allegations in her FAC to permit
a reasonable inference that she had a legitimate claim of entitlement to
continued employment as a temporary court commissioner. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009); Gerhart v. Lake Cnty., Mont., 637 F.3d
1013, 1019 (9th Cir. 2011).
Second, the district court correctly dismissed Schmidt’s claim that the
temporary judges policy was an unconstitutional bill of attainder, because
she alleges no facts in her FAC that would allow the inference that the pol-
icy was punitive. See Iqbal, 556 U.S. at 678; United States v. Lujan, 504
F.3d 1003, 1006 (9th Cir. 2007).