Denise Schmidt v. Contra Costa County

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).