BILL ANALYSIS Ó AB 1028 Page 1 Date of Hearing: May 12, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 1028 (Bonta) -As Introduced February 26, 2015 As Proposed to be Amended SUBJECT: JUDICIAL OFFICERS: OATHS AND AFFIRMATIONS KEY ISSUE: SHOULD A MEDICAL EVALUATION BE REQUIRED IN ORDER FOR THE COMMISSION ON JUDICIAL PERFORMANCE TO CERTIFY THAT A RETIRED JUDGE CAN ADMINISTER OATHS AND AFFIRMATIONS? SYNOPSIS This bill, as proposed to be amended, creates a certification process with the Commission on Judicial Performance (the Commission) to allow retired state judges to administer oaths and affirmations to the public. The certification process requires an evaluation from a retired judge's physician, verifying that the retired judge can perform the duties required to administer oaths and affirmations. After receiving medical clearance from his or her physician, the retired judge provides the medical certification, along with an application for certification and the application fee to the Commission. The Commission reviews the medical certificate to determine if the retired judge should be issued a certification for five years or AB 1028 Page 2 two years. A five-year certification is issued if there is no medical condition that hampers the judge's ability to perform his or her duties to administer oaths and affirmations. If the medical certification indicates that the retired judge does have a medical condition, but it does not presently hamper the judge's ability to perform the required duties, a two-year certification is issued. Currently, a retired judge may request certification from the Commission to administer oaths and affirmations as long as he or she did not have any formal actions pending against him or her at the time of retirement. However, a judge who retired on disability may not be certified by the Commission and may not administer oaths and affirmations under any circumstances. The author's seeks to ensure that all retired judges who are capable of administering oaths and affirmations and have the desire to do so, are allowed to provide this valuable service to their communities. To ensure that the Commission has the financial resources to provide the required forms and to review the required medical certifications, this bill allows the Commission to charge a fee, which may not exceed $15. The California Judges Association is in support of this bill and there is no known opposition. SUMMARY: Repeals provisions of state law that prevent certain retired judges or justices from administering oaths and affirmations and establishes a new Commission on Judicial Performance process for certification of retired judges who wish to administer oaths and affirmations. Specifically, this bill: 1)Allows all qualified retired judges, including those retired based on disability, to administer oaths and affirmations after receiving certification from the Commission. 2)Establishes a certification process, administered by the Commission, which includes an evaluation from a retired judge's physician to demonstrate that the retired judge can AB 1028 Page 3 perform the duties required to administer oaths and affirmations. A five-year certificate is issued if there is no medical condition that hampers the judge's ability to perform his or her duties to administer oaths and affirmations. If the medical certification indicates that the retired judge does have a medical condition, but it does not presently hamper the judge's ability to perform the required duties, a two-year certification is issued. 3)Allows the Commission to charge a fee, not to exceed $15, for applications to certify or re-certify retired judges to administer oaths and affirmations. EXISTING LAW: 1) Provides that every executive and judicial officer and every member of the Legislature may administer and certify oaths. (Government Code Section 1225.) 2) Provides that a former state judge who retired or resigned from office, other than a judge who was retired for disability, can request and receive from the Commission a certification of the absence of any pending formal disciplinary proceeding at the time of his or her retirement or resignation. The certification allows the retired judge to administer oaths and affirmations. (Government Code Section 1225.) 3) Provides that every court, judge or justice, clerk of any court, notary public, and any person authorized to take testimony in any action or proceeding, or decide upon evidence, has the power to administer oaths or affirmations. (Code of Civil Procedure Section 2093(a).) AB 1028 Page 4 4)Provides that a former state judge or justice who retired or resigned from office, other than a judge or justice who retired based on disability, has the power to administer oaths and affirmations, if the former judge or justice requests and receives, from the Commission, a certification that no formal disciplinary proceedings were pending at the time of retirement or resignation. Where no formal disciplinary proceeding was pending at the time of retirement or resignation, requires the Commission to issue the certification. (Code of Civil Procedure Section 2093(c).) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: Currently, a retired judge who did not retire due to disability may administer oaths and affirmations once he or she receives certification from the Commission confirming that at the time of retirement no formal disciplinary proceedings were pending. If a judge retired due to disability, he or she is not eligible to receive a certification from the Commission and may not administer oaths and affirmations. According to the author: In the 70's and 80's there were abuses of the judges' disability retirement system. Two particular cases led to a backlash in the Legislature. A Los Angeles judge lost re-election based on his reputation as an absentee judge. Before his term expired, he retired on disability and collected a pension. Another judge was convicted of a crime of moral turpitude, retired for disability and collected his pension while in prison. These cases led the Legislature to revoke benefits and privileges that were formerly granted to judges who were retired by disability. AB 1028 Page 5 AB 1028 will remove from state law, provisions preventing a former judge or justice who was retired by the Supreme Court for disability from administering oaths and affirmations. Administering oaths or affirmations does not require a feat of physical powers or agility. These provisions are an arbitrary obstacle to disabled persons who want to continue serving their communities. Requirements of an Oath or Affirmation. Oaths and affirmations are so similar that the terms are usually used interchangeably. An oath is a promise that a statement or information being given is true, and usually invokes the name of something or someone sacred. An affirmation is an attestation that a statement given is the truth, without the invocation. Oaths and affirmations are used when someone is providing testimony, or when swearing in a witness or taking a deposition. For an oath to be official, the oath must be administered by a person who has the legal right to give and affirm the oath. Those who are legally authorized to administer oaths and affirmations in California include a court, judge, clerk of the court, court reporter, notary public, and any officer or person authorized to take testimony in an action or proceeding. (Code of Civil Procedure Section 2093(a).) While many persons who are authorized to administer oaths and affirmations are monitored by, or under the supervision of, their employers or a regulating body, retired judges who administer oaths and affirmations are not under any supervision. The Commission on Judicial Performance and its Relationship with Retired Judges. The Commission is responsible for monitoring active judges. It investigates judicial misconduct and incapacity of active judges. Under current law, once a judge retires, he or she is no longer considered to be an employee of AB 1028 Page 6 the courts and is no longer under the purview of the Commission. To administer oaths and affirmations during retirement, the judge simply must apply for and receive a certification from the Commission. The certification only certifies that, at the time of retirement, there were no formal disciplinary actions pending against the judge. It does not certify that the retired judge is or has been evaluated and found fit to administer oaths or affirmations. Once a judge receives certification from the Commission, there are no additional requirements and that judge may continue to administer oaths and affirmations for as long as he or she desires. The practice is different for a judge who retired based on disability. Current law prohibits the Commission from providing a certification to a judge who retired due to disability. However, since certification by the Commission is required in order for a retired judge to administer oaths and affirmations, judges who retired due to disability may not administer oath and affirmations. Americans with Disabilities Act and the Fair Employment and Housing Act. There are both federal and state laws that prohibit discrimination against persons with disabilities in employment settings. Title I of the federal American with Disabilities Act (ADA) applies to employers with 15 or more employees and requires that employers provide qualified individuals with disabilities equal opportunities to benefit from the full range of employment-related opportunities that are available to others. The act prohibits discrimination in, among other things, privileges of employment. (42 U. S. C. 12101 et seq.) California has its own anti-discrimination law contained in the Fair Employment and Housing Act, known as FEHA. (Government Code Section 12940.) FEHA includes all of the protections of the ADA, but provides additional protections if the employee can prove that he or she is a "qualified individual with a disability," meaning that the individual is capable of performing essential functions of the job, with or without reasonable accommodation, as defined in Green v. State of California (2007) 42 Cal. 4th 254. AB 1028 Page 7 Employees with disabilities should be afforded the same opportunities as employees without disabilities. In regards to retired judges, the two classifications of retired judges (those with and those without disability status at retirement) do not have equal access to receive certification from the Commission. Since both federal law and state law are limited to the treatment of employees, it is unclear whether either law would apply to former employees who receive unequal treatment from their former employer during their retirement. However from a public policy perspective, it appears unfair for a government employer to treat retired employees differently based solely on their disabled status. This bill's provisions address this inequity in treatment by establishing a procedure to allow retired judges to receive certification, regardless of any existing disability so long as they are capable of performing the required duties to administer oaths and affirmations. This Bill Addresses the Issue of Public Protection. Currently, the Commission does not have a way to keep track of judges after they retire. A retired judge can receive a certification from the Commission to administer oaths and affirmations but there is no ongoing evaluation or certification system for retired judges who perform these public duties during their retirement years. This bill creates a process for certifying judges to continue to perform service in their local communities and creates an avenue for the recertification of judges to ensure that they continue to have mental and physical ability to perform those functions. Under the bill's provisions, a retired judge who wishes to administer oaths and affirmations can apply to the Commission for certification. The Commission will provide the retired AB 1028 Page 8 judge with an application for certification and a medical certificate form to be completed by the retired judge's physician. The new medical certification procedure provided in this bill requires a medical professional, not the Commission, to make the call on a judge's fitness to perform the required duties and to list the limitations, if any, of the judge's fitness on the medical certificate. The retired judge returns the completed application, medical certification and small fee to the Commission. The Commission, based upon the medical certificate, then issues the retired judge a certification to administer oaths and affirmations for either five years, or two years. A five-year certificate is issued if there is no medical condition that hampers the judge's ability to perform his or her duties to administer oaths and affirmations. If the medical certification indicates that the retired judge has a medical condition that interferes with his or her abilities to perform those functions, but it does not presently hamper the judge's ability to perform the required duties, a two-year certification is issued. Any retired judge who qualifies may recertify with the Commission when his or her existing certification nears its expiration. This new procedure will allow the Commission to certify judges based on medical evidence of the judge's capability to perform the required duties, and not merely based on an assumption, which may be biased, about the judge's ability to perform, or the past history of a judge's complaint record. REGISTERED SUPPORT / OPPOSITION: Support California Judges Association Opposition AB 1028 Page 9 None on file Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334