JOHN K. VAN DE KAMP Attorney General
CLAYTON P. ROCHE Deputy Attorney General
AGO 83-805
No. 83-805
California Attorney General Opinion
Office of the Attorney General State of California
January 24, 1984
THE
HONORABLE RALPH J. GAMPELL, DIRECTOR, ADMINISTRATIVE OFFICE
OF THE COURTS, has requested an opinion on the following
question:
Is a
justice court judge who takes a deferred retirement under a
county retirement system and who subsequently withdraws his
funds from the retirement system still deemed to be a retired
judge who is eligible for judicial assignments?
CONCLUSION
A
justice court judge who takes a deferred retirement under a
county retirement system and who subsequently withdraws his
funds from the retirement system is no longer deemed to be a
retired judge who is eligible for judicial assignments.
ANALYSIS
Article
VI, section 6, of the California Constitution provides in
part:
"The Chief Justice shall seek to expedite judicial
business and to equalize the work of judges. The Chief
Justice may provide for the assignment of any judge to
another court but only with the judge's consent if the
court is of lower jurisdiction. A retired who consents may
be assigned to any court." (Emphasis added.)
Our
opinion is requested as to whether a justice court judge who
takes a deferred retirement under a county retirement system
and who subsequently withdraws his funds from the retirement
system is still deemed to be a "retired judge"
within the meaning of article VI, section 6, so as to be
available for judicial assignments. We conclude that the
answer is "no."
Judges
of courts of record come within the provisions of the
"Judges Retirement Law," Government Code section
75000.
1 Accordingly, justice court judges are
excluded from that retirement system. (See § 75002.)
Such judges may, however, be members of a county retirement
system under the County Employees Retirement Law of 1937,
section 31450 et seq. (See § 31469, subd. (b).)
Sections
31700 through 31706 contain the provisions relating to
deferred retirement for members of a county retirement
system. Section 31700 provides for the specific election to
take a deferred retirement upon leaving county service and
section 31701 permits a member to rescind such election and
withdraw all his accumulated contributions from the
system.
2
For
purposes of article VI, section 6, of the California
Constitution, it is clear from both the present statutory law
and the history of that law that the sine qua non
for status as a "retired judge" within the
constitutional provision is a present pecuniary interest in a
public retirement system. Accordingly, a "retired
judge" within the meaning of the constitution is a judge
who is presently receiving retirement benefits under such a
system or who has a present right to receive such
benefits at some future time.
Section
68549 has been enacted to implement article VI, section 6,
with respect to the judicial assignment of retired judges.
Subdivision (b) thereof which was added in 1980 (Stats. 1980,
ch. 51, § 2, p. 145) and amended in 1981 (Stats. 1981,
ch. 417, § 1, p. 1617)...
