Van De Kamp, 012484 CAAGO, AGO 83-805

Docket Nº:AGO 83-805
Case Date:January 24, 1984
Court:California
 
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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)...

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