Opinion AGO 10-804.

• Case Date: December 20, 2012
• Court: California

California Attorney General Opinions 2012. Opinion AGO 10-804. TO BE PUBLISHED IN THE OFFICIAL REPORTSOFFICE OF THE ATTORNEY GENERAL State of CaliforniaKAMALA D. HARRIS Attorney GeneralOPINION of KAMALA D. HARRISAttorney General DIANE EISENBERG Deputy Attorney GeneralNo. 10-804 December 20, 2012THE COMMISSION ON JUDICIAL PERFORMANCE has requested an opinion on the following question:May 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 be certified to administer oaths under Code of Civil Procedure section 2093(c) and Government Code section 1225?CONCLUSION 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. ANALYSIS An oath or affirmation is a solemn declaration that one's statement is true or that one will be bound to a promise.(fn1) A person may be required to make an oath or affirmation in a variety of circumstances, such as when called upon to testify as a witness,(fn2) or before assuming the duties of a public office.(fn3) A number of statutes authorize various persons to administer oaths or affirmations in different situations.(fn4) A judge has authority to administer oaths in proceedings before him or her,(fn5) and in all other cases where it may be necessary in the exercise of the court's or the judge's powers and duties.(fn6) Judicial officers, along with executive officers and members of the Legislature, also have authority to administer and certify oaths.(fn7) In this opinion, we are asked to determine under what circumstances a judge(fn8) who has voluntarily retired because of disability may be empowered to administer oaths. The Commission on Judicial Performance (Commission)(fn9) is the state agency authorized to investigate and act upon matters of judicial misconduct and other conduct prejudicial to the administration of justice.(fn10) The Commission is vested with the power to disqualify, censure, admonish, remove, or retire judges, subject to review by the California Supreme Court.(fn11) The purposes of Commission proceedings are"protection of the public, ensuring evenhanded and efficient administration of justice, and the maintenance of public confidence in the integrity of the judicial system"(fn12) The Commission has asked us to determine whether judges who take voluntary disability retirement may subsequently be empowered to administer oaths generally, or whethe-as is true for other judicial functions-uch a judge may only perform oaths while sitting on assignment, after having being reinstated by the Commission for that purpose. We conclude that a judge who has voluntarily retired for disability may not later be empowered to administer oaths generally; but if the judge is found by the Commission to be capable of judicial service and is thereafter assigned to a court by the Chair of the Judicial Council, the judge may administer oaths while sitting on assignment. Code of Civil Procedure section 2093(c) and Government Code section 1225 enable most former judges to regain the power to administer oaths or affirmations if they meet specified requirements. These provisions do not expressly exclude from their ambit judges who have voluntarily retired for disability. Nevertheless, we construe them as excluding such judges because there are two other statutes (Government Code sections 75060.6 and 75560.6) that govern the circumstances under which a judge who has voluntarily retired for disability may be restored to any judicial capacity-lcluding the administration of oaths-aid these other statutes contain additional requirements and restrictions. Pursuant to Government Code sections 75060.6 and 75560.6, a judge who has voluntarily retired for disability may be restored to judicial service only after undergoing a medical examination, and once restored may perform judicial functions only while sitting on assignment. We explain the grounds for our conclusion in greater detail below. Judges' Retirement Systems The Constitution requires the Legislature to provide reasonable allowances for the retirement of judges for age or disability.(fn13) In 1994, the Legislature adopted a two-tiered system of retirement benefits for judges. Generally speaking, the Judges' Retirement System (JRS) applies to judges elected or appointed to office before November 9, 1994,(fn14 )while the Judges' Retirement System II (JRS II) applies to judges elected or appointed to office on or after November 9, 1994.(fn15) Disability Retirement for Judges A judge's disability may lead to retirement in either of two ways. First, pursuant to Government Code section 75060(a), a 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 the Commission on Judicial Performance, be retired from office.

As the court of appeal has noted, ' '[fjhis section provides a procedure whereby a judge who is physically or mentally disabled can voluntarily request retirement"(fn16) 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.(fn17) 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 or is likely to become permanent.(fn18) 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 Commission'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.(fn19) The intent of this provision was to protect the public against "incompetency, misconduct, or non-performance of duties on the Bench."(fn20) 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."(fn21) In 1994, the voters approved Proposition 190, which transferred the authority to remove a judge or retire a judge for disability to the Commission, and made the Commission's determination subject to discretionary review by the Supreme Court.(fn22) Thus, article VI, section 18(d) currently provides that the Commission ' '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"(fn23) Upon petition by the judge, the Supreme Court may review the Commission's determination.(fn24) Although section 18(e) of article VI states that '[a] judge retired by the commission shall be considered to have retired voluntarily"(fn25) retirement for disability under section 18(d), which is initiated by the Commission and not by the judge, is commonly referred to as"involuntary."(fn26) 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. Code of Civil Procedure section 2093(c) and Government Code section 1225 We turn now to the statutory provisions that are at the heart of the...