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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