BILL ANALYSIS Ó
AB 1028
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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
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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
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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).)
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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.
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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
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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.
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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
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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
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None on file
Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334