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. AB 1028 (Bonta) Page 2 of ? 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 AB 1028 (Bonta) Page 3 of ? 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 AB 1028 (Bonta) Page 4 of ? 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 AB 1028 (Bonta) Page 5 of ? 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 AB 1028 (Bonta) Page 6 of ? 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 AB 1028 (Bonta) Page 7 of ? 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 AB 1028 (Bonta) Page 8 of ? 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) ************** AB 1028 (Bonta) Page 9 of ?