WILLENS v. COMMISSION ON JUDICIAL QUALIFICATIONS

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Court of Appeal, Fifth District, California.

Maxwell M. WILLENS, Plaintiff and Respondent, v. The COMMISSION ON JUDICIAL QUALIFICATIONS et al., Defendants and Appellants.

Civ. 1872.

Decided: February 20, 1973

Evelle J. Younger, Atty. Gen., Elizabeth Palmer, Asst. Atty. Gen., N. Eugene Hill and William J. Power, Deputy Attys. Gen., Sacramento, for defendants and appellants. Buchalter, Nemer, Fields & Savitch, Benjamin E. King, Earl P. Willens, Los Angeles, for plaintiff and respondent.

OPINION

This is an appeal from a judgment granting a peremptory writ of mandate commanding appellants to approve respondent's request for disability retirement benefits under the Judges' Retirement Law.

Respondent served as a judge of the Municipal Court of the Stockton Judicial District, County of San Joaquin, from 1962 until 1968 when he was elevated to the superior court of that county. In February 1970 he presented himself as a candidate for reelection for a 6-year term commencing January 4, 1971, and was unopposed in the primary election.

On June 11, 1970, respondent was indicted by the Grand Jury of San Joaquin County on charges of violation of section 182, subdivision (1) of the Penal Code, criminal conspiracy, and section 93 of the Penal Code, bribery by a judicial officer. The indictment contained eight counts and alleged that on various occasions from December 1967 to April 1970 respondent conspired to receive or did receive bribes as a judicial officer.1

As a result of respondent's indictment, he was disqualified from acting as a judge by virtue of article VI, section 18, subdivision (a), of the California Constitution.2

At the general election on November 3, 1970, respondent was defeated by a writein candidate. By letter of the same date addressed to the Commission on Judicial Qualifications (hereinafter ‘Commission’) with a copy to the Chief Justice, respondent declared his inability to discharge efficiently the duties of his office by reason of physical and mental disabilities likely to become permanent, expressed his consent to disability retirement, and requested that he be retired pursuant to section 75060 of the Government Code. Respondent was 61 years of age at the time of his request for retirement. Attached to his letter were supporting medical affidavits as required by Government Code section 75060, subdivision (c). We will assume, without deciding, that the affidavits establish that as of November 3, 1970, respondent was medically disabled within the meaning of Government Code section 75060.

By letter dated December 18, 1970, respondent's request for disability retirement was turned down by the Commission; the letter stated, in part:

‘The judge is not eligible for disability retirement since his inability to serve is by reason of his disqualification under article VI, section 18a of the California Constitution. It is the view of the Commission that disability benefits are not available to a judge who is prevented by operation of law from performing his judicial duties, wholly aside from and regardless of his physical condition. . . .’

Because respondent was defeated at the general election on November 3, 1970, his term of office as a superior court judge ended on January 4, 1971.

On April 16, 1971, respondent instituted a mandamus action asking that appellants be ordered to approve his request for disability retirement. After trial, on December 17, 1971 judgment was entered in favor of respondent and a peremptory writ of mandate was issued commanding appellants to approve respondent's request for disability retirement and to cause a certificate evidencing such approval to be filed with the Secretary of State as required by Government Code section 75060. Appellants filed a timely notice of appeal.

We view the question before us solely as one of statutory construction, which can be stated as follows: Was respondent, on November 3, 1970, a member of the class of persons eligible for disability retirement under Government Code section 75060? We hold that he was not.

Government Code section 75060, subdivision (a), provides:

‘(a) Any judge who is unable to discharge efficiently the duties of his office by reason of mental or physical disability that is or is likely to become permanent may, with his consent and with the approval of the Chief Justice or Acting Chief Justice and the Commission on Judicial Qualifications, be retired from office. The retirement shall be effective upon approval by the designated officers, . . .’ (Emphasis added.)

We interpret the phrase ‘by reason of’ to mean that for a judge to qualify for disability retirement his medical disability must be the operative cause in fact of his inability to perform the duties of his office.

At the time of respondent's request for retirement, he was under indictment for a felony. By virtue of article VI, section 18, subdivision (a), of the Constitution, he was unable to perform the duties of his office. This constitutional disqualification is absolute and exists irrespective of the judge's medical condition. (Cal.Const. art. I, § 22.) Because respondent could not lawfully have performed his duties on November 3, 1970, even if he had been in good health, he is not within the class of persons contemplated by the statute.3

We believe our interpretation of section 75060 is consistent with section 75060.6 (added Stats.1957, ch. 2065, p. 3661, § 6, as amended Stats.1961, ch. 681, p. 1919, § 3: Stats.1961, ch. 2075, p. 4335, § 1) which provides that the Commission at any time may require a judge who is retired for medical disability and who is under the age of 65 years to undergo a medical examination and if it is determined by the Commission on the basis of the examination that the judge is no longer incapacitated ‘he shall be a judicial officer of the State . . .’ and subject to assignment for duty, and if he refuses assignment his retirement allowance shall cease. It is clear from this statute that the Legislature contemplated that a judge who is retired for disability and thereafter recovers his health while under age 65 would go back to work as a judge or else lose his retirement allowance.

A judge who is removed from office by the Supreme Court by reason of conviction of a felony is ineligible for judicial office. (Const. art. VI, § 18, subd. (d).) To grant respondent's request for disability retirement at age 61 while he is under indictment for a crime, the conviction of which would result in his permanent removal from office, would thwart the legislative policy expressed in section 75060.6 in that were he to regain his health he would not be subject to judicial assignment yet would continue to receive the disability retirement allowance.

Our holding that a judge cannot qualify for disability retirement while under a felony indictment does not mean that he cannot qualify for such retirement if he is thereafter found to be innocent of wrongdoing. The constitutional disability is not permanent; if the judge is found to be innocent of the charges his disqualification ceases and he is restored to full judicial status and becomes a member of the class contemplated by the retirement statute.

To avoid the grave injustice which would result if a judge innocent of wrongdoing is defeated for office while an indictment is pending, we suggest that the acquittal or final determination in his favor should relate back by operation of law to the date of his request for retirement, and that all events occurring between the time of such request and the time of acquittal or final determination be disregarded.4 Thus if criminal proceedings had been decided in respondent's favor and assuming he was medically disabled at the time of his request, he would qualify for disability retirement even though his term of office ended on January 4, 1971.

Respondent contends that the Commission's action in disallowing his request for retirement deprived him of vested rights under the Judges' Retirement Law, created by his eight years of judicial service and his monthly contributions to the judges' retirement fund. His contention is without merit. Under Government Code section 75033, when respondent's service as a judge terminated on January 4, 1971, he was entitled to receive back his accumulated contributions to the fund or, at his election, to allow his accumulated contributions to remain in the fund until he reached age 65, at which time he would receive a specified retirement allowance based on his number of years of service as of the date of his termination of service. Because of respondent's rights under section 75033, there has been no forfeiture of his interest in the retirement fund.5

Cases cited by respondent dealing with a public employee's rights after the contingency upon which retirement benefits are payable has occurred, and cases dealing with attempted modification of pension legislation after the contractual right to a pension has accrued, are inapposite to the statutory construction question here involved. (See, e. g., Pearson v. County of Los Angeles, 49 Cal.2d 523, 319 P.2d 624; Wallace v. City of Fresno, 42 Cal.2d 180, 265 P.2d 884; Skaggs v. City of Los Angeles, 43 Cal.2d 497, 275 P.2d 9; Cochran v. City of Long Beach, 139 Cal.App.2d 282, 293 P.2d 839.)

A statute cannot be construed in a vacuum, but must viewed in the light of relevant constitutional limitations. Moreover, if it is reasonably possible from the language used we must astutely avoid an interpretation that produces a discordant result at variance with sound public policy.

In view of the explicit language of Government Code section 75060, subdivision (a), we hold that a judge who is under indictment for a felony cannot qualify for disability retirement.

The judgment is reversed and the peremptory writ is quashed.

I dissent.

There is substantial evidence in the record to support the lower court's findings that respondent had a permanent disabling physical injury when he applied for a disability pension, and that the disability came into existence before he was indicted for a felony. The majority reasons, however, that a judge is entitled to a disability retirement pension only if he ‘is unable to discharge efficiently the duties of his office’ and, because respondent was already unable to perform his duties as the result of a constitutional disqualification he was not eligible for disability benefits at the time he made the application, regardless of the nature and extent of his illness. It follows, logically, that the rationale of the majority opinion is that article VI, section 18, of the California Constitution and Government Code section 75060 are interrelated and serve essentially the same purpose, i. e., the removal of a judge from office who for whatever cause is not fit or able to perform his judicial duties.

I do not share the majority viewpoint. Article VI, section 18, was enacted for the benefit of the public and is concerned only with the compulsory removal of judges. Furthermore, the removal is not automatic, not even if the judge is convicted of a felony; under subparagraph (a) a judge who is charged with a felony is foreclosed from exercising his judicial powers, but he is not removed from office or deprived of his salary; under subparagraph (b) the Supreme Court may suspend a judge without salary if he is convicted of a felony and if the conviction becomes final the suspension is permanent.

On the other hand, section 75060 of the Government Code is a part of the Judges' Retirement Law, a legislative enactment, and this law applies only to voluntary retirements. The section is activated with the judge's consent and the phrase ‘any judge who is unable to discharge efficiently the duties of his office by reason of a physical or mental disability’ is simply a yardstick by which the required physical or mental disability is measured. The purpose of all public disability retirement pensions is to provide some form of remuneration for disabled public employees who do not qualify for service retirements, but all illnesses do not make them eligible for disability benefits; for a judge, only an illness which prevents him from discharging ‘efficiently the duties of his office’ is sufficient. It is clear that the phrase upon which the majority rely to deprive respondent of his disability retirement is not an additional qualifying condition and does not mean that to be eligible for disability benefits a judge must be free from temporary constitutional impairments.

The question presented in this appeal is one of statutory, not constitutional, construction. Yet, the majority ignores basic principles; that a statute should not be literally and narrowly construed to effectuate a forfeiture is a good example. They also ignore the legislative history.

Prior to November 1, 1971 the Judges' Retirement Law, like other public retirement laws, contained no provision for the forfeiture of retirement rights despite the many judicial pronouncements that such forfeitures cannot occur in the absence of an express legislative direction. (Skaggs v. City of Los Angeles, 43 Cal.2d 497, 503, 275 P.2d 9.) In 1971 the Legislature added section 75033.1 to the Government Code; this section, effective March 4, 1972, provides that a judge who is removed from office by the Supreme Court is not eligible for deferred retirement benefits under section 75033. I is significant that at that time the Legislature did not interfere with the service retirement rights of a judge who is convicted of a felony, nor did it interfere with the disability retirement rights of a judge who is charged with a felony even though the plain language of the section which provides these rights, section 75060, applies to ‘any judge.’ It is also significant that during the 1972 session of the Legislature a proposal was presented to the assembly (assembly bill #1193) to amend the Judges' Retirement Law to provide that any judge ‘who is convicted of asking for or receiving or agreeing to receive a bribe shall not receive any of the benefits provided under the Judges' Retirement Law and shall be repaid his accumulated contributions'; this proposal was referred to the Assembly Judiciary Committee for further study.

I cannot believe that the Legislature, after careful consideration, refused to direct the forfeiture of earned service retirement rights by judges who are actually convicted of felonies and also intended to make it possible for a judge who is innocent of wrongdoing and has an incurable disease to forfeit all of his disability retirement benefits because he is charged with a felony. Yet, this incredible result would have followed in this case if respondent, who was defeated for office prior to his trial, had been exonerated at that trial.

Commendably, my colleagues recognize the grave injustice which would result if a judge innocent of wrongdoing was defeated for office while an indictment or information charging him with a felony was pending. They suggest that an acquittal or final determination in the judge's favor ‘should relate back by operation of law to the date of request for retirement, and that all events occurring between the time of such request and the time of acquittal or final determination be disregarded.’ This solution is a legislative rather than a judicial pronouncement and it is necessitated by the tacit recognition that a judge who becomes physically incapacitated while still in office, to the extent that he is incapable of performing his judicial duties, acquires a vested interest in a disability retirement which he protects by making the necessary application.

The majority opinion has created another inconsistency in the Judges' Retirement Law. Section 75033.1, by express terms, is not applicable to judges who were in office prior to its effective date. As a consequence, a judge who was in office before March 4, 1972 does not lose his deferred retirement privileges if he is convicted of a felony and removed from office. But, as the result of the majority's narrow construction of section 75060 a judge could lose even greater retirement rights if he is charged with and ultimately convicted of a felony, though he, too, was in office prior to March 4, 1972.

My colleagues state further that their interpretation of the disability retirement rights of judges is consistent with the legislative intent as expressed in Government Code section 75060.6. Under this section a judge who retires for medical reasons and who recovers from the disability must accept judicial assignments, and if he refuses to accept such assignments his retirement allowance ceases. The majority concludes that to give respondent a disability retirement ‘would thwart the legislative policy expressed in section 75060.6 in that were he to regain his health he would not be subject to judicial assignment . . ..’

This reasoning equates a felony charge with a felony conviction. It also ignores the basic fact that removal of a judge from office is not an automatic consequence of his felony conviction. Section 75060.6 is in the nature of a condition subsequent; it terminates a disabled judge's right to receive disability benefits when he recovers from the disability to the extent that he is again able to discharge efficiently his judicial duties. If anything, the section makes it very clear that the phrase in section 75060, which reads: ‘Any judge who is unable to discharge efficiently the duties of his office by reason of mental or physical disability . . .,’ is the yardstick by which the required mental or physical disability necessary to make the judge eligible for disability retirement is measured.

Section 75060.6 demonstrates that the majority's relation back theory to solve the dilemma of what to do about an innocent judge defeated for office while a felony charge is pending against him, is a legislative, not a judicial, pronouncement. The authority of the Commission on Judicial Qualifications to reinstate as a judicial officer a judge who retires because of a disability and who recovers from that disability, by necessity stems from the judge's initial appointment or election to a judicial office. If during the interim the judge is removed from office by the electorate, by what authority can future judicial assignments be made by the Commission?

The retirement rights of public employees are deferred compensation, nothing less. (Wallace v. City of Fresno, 42 Cal.2d 180, 184, 265 P.2d 884; Phillis v. City of Santa Barbara, 229 Cal.App.2d 45, 51, 40 Cal.Rptr. 27.) They are a part of a public employee's compensation for services performed, and become vested contractual rights when the conditions of the retirement system of which he is a member are fulfilled. (Pearson v. County of Los Angeles, 49 Cal.2d 523, 543, 319 P.2d 624; Allen v. City of Long Beach, 45 Cal.2d 128, 131, 159, 287 P.2d 765; Wallace v. City of Fresno, supra, 42 Cal.2d 180, 183, 265 P.2d 884.) A judge's right to disability payments is also a part of a judge's compensation, and this right vests when the judge becomes physically or mentally incapacitated to the extent that he cannot function efficiently as a judge.

I conclude that because respondent was still in office and entitled to the payment of his salary when he became incapacitated and applied for a disability retirement, his right to a retirement vested; the right was not forfeited by his subsequent felony conviction. This construction of the Judges' Retirement Law comports with the common and salutary principle that the law abhors a forfeiture. It also comports with the public policy of this state that legislation conferring pension and disability benefits must be liberally and broadly construed in favor of the claimant. (Gorman v. Cranston, 64 Cal.2d 441, 50 Cal.Rptr. 533, 413 P.2d 133; Terry v. City of Berkeley, 41 Cal.2d 698, 701–702, 263 P.2d 833.)

In reaching the conclusion that respondent has not forfeited his disability retirement, I do not condone his reprehensible conduct; he committed heinous offenses and violated a sacred trust. Respondent has paid his debt to society under the laws which were in effect at the time of his conviction. He served a prison sentence; he has lost an important judicial position; he will never again hold public office; his ability to earn a living has been irrevocably impaired; and his standing in the community has been diminished. It is not the prerogative of this court to increase the penalties already provided, no matter how we may feel about the offenses committed; that decision is for the Legislature.

I would affirm the judgment.

FOOTNOTES

1.  On June 23, 1971, after trial by jury, respondent was found guilty on four counts. After entry of judgment of conviction on December 6, 1971, he filed a notice of appeal. However, on July 27, 1972, he voluntarily abandoned his appeal and his conviction became final.

2.  Article VI, section 18, subdivision (a) of the California Constitution provides, in pertinent part: ‘A judge is disqualified from acting as a judge, without loss of salary, while there is pending (1) an indictment or an information charging him in the United States with a crime punishable as a felony under California or federal law . . ..’Article VI, section 18, was added to the Constitution on November 8, 1966, and replaced article VI, section 10a (added Nov. 8, 1938) which provided that upon conviction of a crime involving moral turpitude a judge shall be suspended from office without salary and upon his conviction becoming final he shall be removed from office.

3.  We interpret the statutory language to require a finding, as a prerequisite to eligibility, that ‘but for’ the medical disability the judge would have been able to perform the duties of his office. Viewed in a narrower sense of legal cause, the medical disability was not a substantial factor in producing his inability to perform. The constitutional disability was the overriding force and rendered the medical disability moot.If the statute does not require the medical disability to be the sine qua non of the judge's inability to perform, then a judge who is suspended from office without salary after conviction of a felony (Const. art. VI, § 18, subd. (b)) and thereafter fortuitously is disabled prior to removal from office by the Supreme Court, would qualify for retirement. Such an absonant result cannot have been intended by the Legislature.

4.  The judicial doctrine of ‘relation back’ has long been recognized by the courts as a proper means of achieving substantial justice between the parties. (Sefton v. Sefton, 45 Cal.2d 872, 875, 291 P.2d 439.)

5.  Government Code section 75033.1 (added by stats.1971, ch. 1316, p. 2619, effective March 4, 1972) provides that any judge removed from office by the Supreme Court shall not receive any of the benefits provided by section 75033 other than a return of his accumulated contributions to the fund. Section 75033.1 is applicable only to persons who become judges after the effective date of the section.

FRANSON, Associate Justice.

GEO. A. BROWN, P. J., concurs.

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