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










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          None on file



          Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334