BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 1028 (Bonta)
          Version: May 13, 2015
          Hearing Date: July 7, 2015
          Fiscal: Yes
          Urgency: No
          BCP


                                        SUBJECT
                                           
                     Judicial officers:  oaths and affirmations

                                      DESCRIPTION  

          This bill would permit a former judge or justice who is retired  
          by the Supreme Court for disability to administer oaths and  
          affirmations, if certified by the Commission on Judicial  
          Performance (CJP). 

          This bill, in order for a judge or justice who retired or  
          resigned to administer oaths and affirmations, would require the  
          former judge or justice to submit a medical certification in  
          conjunction with his or her application for certification to  
          administer oaths and affirmations, and would require the CJP to  
          issue a certification to administer oaths and affirmations to  
          the applicant if his or her medical certification indicates that  
          he or she does not have a medical condition that would impair  
          his or her ability to administer oaths and affirmations.  If the  
          applicant's medical certification indicates that he or she has a  
          medical condition that could impair his or her ability to  
          administer oaths and affirmations, but the certification does  
          not so indicate at the time of the medical certification's  
          submission, the bill would require the CJP to issue a  
          certification to administer oaths and affirmations valid for  
          only two years. 

          This bill would also permit former judges and justices certified  
          before January 1, 2016, to continue to administer oaths and  
          affirmations until January 1, 2017, before needing to reapply  
          for certification pursuant to these provisions.








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                                      BACKGROUND  

          Under existing law, every court, judge, justice, and clerk has  
          the power to administer oaths or affirmations.  With respect to  
          former judges or justices of a court who have retired from  
          office, those individuals can administer oaths or affirmation if  
          the former judge or justice requests, and, the CJP certifies  
          that there was no formal disciplinary proceeding pending at the  
          time of retirement or resignation.  In that case, the CJP is  
          required to issue the certification.

          However, existing law does not allow a judge or justice who was  
          retired by the Supreme Court for disability to similarly be  
          certified to administer oaths or affirmations.   As there are  
          different ways in which a judge or justice may retire for  
          disability, the Attorney General's December 20, 2012, opinion  
          No. 10-804 concludes:

            [A] judge who has voluntarily retired for disability with  
            the approval of the Commission on Judicial Performance and  
            the Chief Justice of the California Supreme Court may not be  
            certified to administer oaths under Code of Civil Procedure  
            section 2093(c) and Government Code section 1225. However,  
            pursuant to a separate statutory scheme, a judge who has  
            voluntarily retired for disability, but who is later found  
            by the Commission on Judicial Performance to be capable of  
            judicial service and is assigned to a court by the Chair of  
            the Judicial Council, may administer oaths while sitting on  
            assignment.

          In order to provide greater flexibility for retired judges and  
          justices to administer oaths and affirmations, this bill would  
          allow all retired judges and justices to administer oaths  
          (including those who retired for disability), if the judge or  
          justice submits an application for certification and a medical  
          certification, as specified.

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that every executive and judicial officer  
          and every Member of the Legislature may administer and certify  
          oaths.  (Gov. Code Sec. 1225.)

           Existing law  provides that every court, every judge, or clerk of  







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          any court, every justice, and every notary public, and every  
          officer or person authorized to take testimony in any action or  
          proceeding, or to decide upon evidence, has the power to  
          administer oaths or affirmations.  (Code Civ. Proc. Sec. 2093.)

           Existing law  provides that a former judge or justice of a court  
          in this state who retired or resigned from office, other than a  
          judge who was retired by the Supreme Court for disability, may  
          administer oaths or affirmations, if the judge or justice  
          requests and receives a certification from the Commission on  
          Judicial Performance (CJP) that there was no formal disciplinary  
          proceeding pending at the time of retirement or resignation.   
          Existing law requires the CJP to issue the certification if no  
          formal disciplinary proceeding was pending at the time of  
          retirement or resignation.  (Gov. Code Sec. 1225; Code Civ.  
          Proc. Sec. 2093.)
           
          This bill  would, instead, provide that a former judge or justice  
          of a court in this state who retired or resigned from office  
          shall have the power to administer oaths and affirmations, if  
          both of the following conditions are met:
           the former judge or justice requests and receives a  
            certification from the CJP; and
           a formal disciplinary proceeding was not pending at the time  
            of the retirement or resignation.

           This bill  would provide that a former judge or justice of a  
          court of record in this state who retired or resigned from  
          office may apply to the CJP to receive a certification to  
          administer oaths and affirmations.  This bill would require the  
          CJP to supply the required forms to an applicant upon request.

           This bill  would require a certification application to be  
          accompanied by a medical certification, and, if an applicant's  
          medical certification indicates that the applicant does not have  
          a medical condition that would impair his or her ability to  
          administer oaths and affirmations, would require the CJP to  
          issue a certification to the applicant to administer oaths and  
          affirmations.  This bill would make that a certification valid  
          for a period of five years from the date of issuance, as  
          specified.

           This bill , if an applicant's medical certification indicates  
          that the applicant has a medical condition that may impair his  
          or her ability to administer oaths and affirmations, but does  







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          not do so at the time the medical certification is submitted  
          with the application, would require the CJP to issue a  
          certification to administer oaths and affirmation, but the  
          certification shall only be valid for a period of two years from  
          the date of issuance.

           This bill  would provide that a former judge or justice of a  
          court of record who received a certification from the CJP before  
          January 1, 2016, to administer oaths and affirmations may  
          continue to exercise this power until January 1, 2017, at which  
          time he or she shall reapply for certification.

           This bill  would allow the CJP to charge a regulatory fee not to  
          exceed $15 for each submitted certification application to cover  
          its costs, including costs to review the medical certification.

           This bill  would provide that a law, rule, or regulation  
          regarding the confidentiality of proceedings of the CJP shall  
          not be construed to prohibit the CJP from issuing a certificate.  

          
                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author:

            In the 70's and 80's there was abuse of the judges'  
            disability retirement system.  Two particular cases led to a  
            backlash in the Legislature.  An L.A. 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 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 entitled to judges retired by  
            disability. []

            In 1986, SB 1789 (Davis) allowed retired judges to  
            administer oaths and affirmations but excluded judges  
            retired from disability. The bill was sourced from former  
            judges who wished to continue to administer oaths and  
            affirmations.  []

            Proposition 190 was passed by the voters in 1994, approving  







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            more than a dozen significant changes to the commission. In  
            addition to mandating open hearings in all cases involving  
            formal charges, the amendment conferred the authority for  
            censure and removal determinations upon the commission,  
            rather than the Supreme Court, and transferred the authority  
            for promulgating rules governing the [CJP] from the Judicial  
            Council to the [CJP]. The membership of the [CJP] was  
            increased to eleven members and its composition changed to  
            three judges, two lawyers and six citizens.  []

            The changes made to oversight of judges by Proposition 190,  
            as well as earlier ballot initiatives, made the earlier  
            action by the Legislature to revoke the entitlements of  
            judges retired by disability unnecessary.  In 1999 Senator  
            Perata and the Judicial Council cooperated on SB 976 which  
            restored some of these benefits and privileges.  However,  
            the bill did not allow former judges retired from disability  
            to administer oaths and affirmations.  

            This bill would permit a former judge or justice who is  
            retired by the Supreme Court for disability to administer  
            oaths and affirmations, if certified by the [CJP].

          2.   Ability to administer oaths and affirmations
           
          Fundamentally, an "oath 'in its broadest sense includes any form  
          of attestation by which a party signifies that he is bound in  
          conscience to perform an act faithfully and truthfully.'"  
          Bradford v. Board of Education (1912) 18 Cal.App.19, 27-28.   
          Under existing law, judges who are retired by the Supreme Court  
          for disability are unable to be certified by the CJP to  
          administer oaths and affirmations.  Other retired judges and  
          justices are currently able to receive a certification from the  
          CJP if there was no formal disciplinary proceeding pending at  
          the time of retirement or resignation.    

          This bill would remove the existing prohibition with respect to  
          judges retired for disability, and, instead, allow any retired  
          judge or justice to receive a certification to administer oaths  
          and affirmations if the individual requests such a  
          certification, and, a formal disciplinary proceeding was not  
          pending at the time of retirement or resignation.  The  
          certification application must be accompanied by a medical  
          certification - if the certification indicates that the  
          applicant does not have a medical condition that would impair  







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          his or her ability to administer oaths and affirmations, then  
          the CJP must approve the request.  If a medical certification  
          indicates that the applicant has a medical condition that may  
          impair his or her ability to administer oaths and affirmations,  
          but does not do so at the time the medical certification is  
          submitted, the CJP must issue a certification to administer  
          oaths and affirmations, but the certification shall only be  
          valid for a period of two years from the date of issuance.  
           
          In support of removing the prohibition with respect to judges  
          who retired for disability, the author contends that  
          "[a]dministering oaths or affirmations does not require a feat  
          of physical power or agility," and that existing law creates "an  
          arbitrary obstacle to disabled persons who want to continue  
          serving their communities."  

          3.   Retirement for disability  

          With respect to judges who are retired for disability, there are  
          two ways that the retirement would occur, as outlined in the  
          Attorney General's December 20, 2012, opinion No. 10-804:

            A judge's disability may lead to retirement in either of two  
            ways. First, pursuant to Government Code section 75060(a), a  
            [Judges' Retirement System (JRS)] judge who is unable to  
            discharge efficiently the duties of his or her office by  
            reason of mental or physical disability that is or is likely  
            to become permanent may, with his or her consent and with  
            the approval of the Chief Justice or Acting Chief Justice  
            and [CJP], be retired from office.  As the court of appeal  
            has noted, "[t]his section provides a procedure whereby a  
            judge who is physically or mentally disabled can voluntarily  
            request retirement."  

            Government Code section 75560.1(a) makes essentially the  
            same procedure available to JRS II judges.  For both  
            categories of judges, eligibility for voluntary disability  
            retirement requires either a minimum number of years of  
            judicial service or a disability that arose out of or in the  
            course of judicial service.  A judge's application for a  
            voluntary disability retirement must also be supported by a  
            written statement by a physician or psychiatrist who has  
            personally examined the judge, declaring that the judge is  
            unable to discharge efficiently the duties of the judge's  
            office by reason of a mental or physical disability that is  







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            or is likely to become permanent. 

            The second way that a judge's disability may lead to  
            retirement is without the judge's consent.  In 1960, the  
            electorate approved a measure that authorized the Supreme  
            Court, on the [CJP's] recommendation, to remove a judge for  
            specified misconduct, or to retire a judge for disability  
            that seriously interferes with the performance of the  
            judge's duties and is or is likely to become permanent.  The  
            intent of this provision was to protect the public against  
            "incompetency, misconduct, or non-performance of duties on  
            the Bench."  The purpose of a proceeding to remove or retire  
            a judge under California Constitution article VI, section  
            18(d) "is to protect the judicial system and the public  
            which it serves from judges who are unfit to hold office."

            In 1994, the voters approved Proposition 190, which  
            transferred the authority to remove a judge or retire a  
            judge for disability to the [CJP], and made the [CJP's]  
            determination subject to discretionary review by the Supreme  
            Court.  Thus, article VI, section 18(d) currently provides  
            that the [CJP] "may retire a judge for disability that  
            seriously interferes with the performance of the judge's  
            duties and is or is likely to become permanent." Upon  
            petition by the judge, the Supreme Court may review the  
            [CJP's] determination. Although section 18(e) of article VI  
            states that "[ a ] judge retired by the commission shall be  
            considered to have retired voluntarily," retirement for  
            disability under section 18(d), which is initiated by the  
            [CJP] and not by the judge, is commonly referred to as  
            "involuntary." We follow that practice here.

            We stress that many judges with disabilities are fully  
            capable of performing their judicial duties throughout their  
            careers, and take age or service-based retirement.  
            Disability retirement, whether voluntary or involuntary,  
            involves disability that prevents a judge from being able to  
            perform judicial functions effectively.

          This bill seeks to allow all judges who have retired for  
          disability to be certified to administer oaths and affirmations,  
          as long as they can provide the required medical certification  
          and are not subject to a formal disciplinary proceeding at the  
          time of retirement or resignation.  As a matter of policy, this  
          bill would treat all judges the same - regardless of whether or  







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          not they retired for "disability," and properly focus the  
          condition on whether or not the judge is medically able to  
          administer an oath or affirmation, rather than whether the judge  
          has a disability.  That removal of the current disability  
          prohibition would appear consistent with other California laws  
          that protect disabled individuals from discrimination in a wide  
          variety of circumstances.  For example, the Unruh Civil Rights  
          Act prohibits discrimination based on sex, race, color,  
          religion, ancestry, national origin, disability, medical  
          condition, marital status, or sexual orientation, and, the Fair  
          Employment and Housing Act prohibits discrimination in  
          employment on numerous bases, including, physical and mental  
          disability.


           Support  :  California Judges Association

           Opposition  :  None Known




                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation :  None Known

           Prior Legislation  : 

          SB 1789 (Davis, Chapter 1418, Statutes of 1986)  See Comment 1.

          SB 976 (Perata, Chapter 671, Statutes of 1999) See Comment 1.

           Prior Vote  :

          Assembly Floor (Ayes 78, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

                                   **************
          










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