                       TO BE PUBLISHED IN THE OFFICIAL REPORTS


                            OFFICE OF THE ATTORNEY GENERAL

                                      State of California


                                       DANIEL E. LUNGREN

                                         Attorney General


                           ______________________________________

                   OPINION           :
                                     :          No. 92-1105
                  of                 :
                                     :          APRIL 20, 1993
        DANIEL E. LUNGREN            :
           Attorney General          :
                                     :
        ANTHONY S. Da VIGO           :
        Deputy Attorney General      :
                                     :
______________________________________________________________________________

               THE COMMISSION ON JUDICIAL PERFORMANCE has requested an opinion
on the following question:

                 Does a former judge of a court of record in this state who was defeated in a judicial
election and who retired or resigned prior to the expiration of his term, and who has received a
certification from the Commission on Judicial Performance that no formal disciplinary proceeding
was pending at the time of his retirement or resignation, have the power to administer oaths or
affirmations?

                                            CONCLUSION

                 A former judge of a court of record in this state who was defeated in a judicial
election and who retired or resigned prior to the expiration of his term, and who has received a
certification from the Commission on Judicial Performance that no formal disciplinary proceeding
was pending at the time of his retirement or resignation, has the power to administer oaths or
affirmations.

                                              ANALYSIS

                 This opinion concerns the authority of former judges to administer and certify an oath
or affirmation, other than in the context of an assignment to the bench under California Constitution,
article VI, section 6.1 Specifically, we are asked to consider the status of an incumbent judge who
is defeated for reelection, and who retires or resigns prior to the expiration of his term. Is he eligible
to administer oaths and affirmations? We conclude that he is.

  1
   Section 6 of article VI of the Constitution allows the Chief Justice "to expedite judicial business
and to equalize the work of judges" by assigning judges to other courts; "[a] retired judge who
consents may be assigned to any court."

                                                   1.                                           92-1105

               In 1986, the Legislature added subdivision (c) of section 2093 of the Code of Civil
Procedure, as follows:

                   "A former judge or justice of a court of record in this state who retired or
           resigned from office, other than a judge or justice who was retired by the Supreme
           Court for disability, shall have the power to administer oaths or affirmations, if the
           former judge or justice requests and receives a certification from the Commission on
           Judicial Performance that there was no formal disciplinary proceeding pending at the
           time of retirement or resignation. Where no formal disciplinary proceeding was
           pending at the time of retirement or resignation, the Commission on Judicial
           Performance shall issue the certification."

By the same act (Stats. 1986, ch. 1418), the Legislature added the second paragraph of section 1225
of the Government Code.2 Section 1225 provides as follows:

                 "Every executive and judicial officer and every member of the Legislature
           may administer and certify oaths.

                   "A former judge of a court of record in this state who retired or resigned from
           office, other than a judge who was retired by the Supreme Court for disability, shall
           be deemed a judicial officer for purposes of this section, if the former judge requests
           and receives a certification from the Commission of Judicial Performance that there
           was no formal disciplinary proceeding pending at the time of retirement or
           resignation. Where no formal disciplinary proceeding was pending a the time of
           retirement or resignation, the Commission on Judicial Performance shall issue the
           certification. . . ."

               It has been suggested that the quoted statutes should be construed in a manner
consistent with section 68549 and that under the latter statute, an incumbent judge who has been
defeated for reelection may not be deemed a "retired judge." Section 68549 states:

                  "(a) A judge who has been defeated in an election for his or her office and
           who, before his term of office expires, elects to leave his or her accumulated
           contributions in the fund pursuant to Section 75033, or to receive benefits pursuant
           to Section 75033.5, shall not be deemed a retired judge within the meaning of
           Section 6 of Article VI of the California Constitution.

                   "(b) Except as provided in subdivision (a), any judge whose position is
           terminated by court annexation, merger, closure, or consolidation, or who retires or
           resigns from office, and who has a vested interest under a public employees'
           retirement system as a result of service as a judge, and who has been a member of
           the State Bar for at least five years or who has served as a judge of a court of record,
           shall be deemed a retired judge within the meaning of Section 6 of Article VI of the
           California Constitution."3

   2
   All references hereafter to the Government Code are by section number only.
       3
     Section 75033 allows certain judges to leave their accumulated contributions in the judges'
retirement fund when their service terminates "by means other than death, resignation, recall,
impeachment, or retirement," and section 75033.5 specifies eligibility requirements and formulas

                                                     2.                                           92-1105

                 On the contrary, we are not at all constrained in our interpretation of the provisions
initially set forth, by the specifications of the latter section. First, section 68549 is not in pari
materia with the other two statutes. Section 68459 defines a "retired judge" specifically as that term
is used "within the meaning of Section 6 of Article VI of the California Constitution." As previously
indicated, the constitutional provision states in part: "A retired judge who consents may be assigned
to any court." The provisions under consideration herein, on the other hand, are concerned solely
with the power to administer an oath or affirmation, such as an oath of office.4 Nothing in the
legislative history of those enactments suggests otherwise.

               Second, section 68549 does not in fact preclude a judge who has been defeated in an
election from being deemed a retired judge unless the judge has exercised an option to defer
retirement or to retire early under the terms of sections 75033 and 75033.5, respectively, as
contained in the Judges Retirement Law. Thus, a judge who has been defeated in an election and
who has not exercised such an option may nevertheless qualify under section 75025 for service
retirement.

                Third, subdivision (b) of section 68549, which includes within the stated definition
of a retired judge "any judge . . . who retires or resigns from office, and who has a vested interest
under a public employees' retirement system as a result of service as a judge," clearly includes
judges who satisfy the prescribed criteria without regard to the results of any election, except only
as provided in subdivision (a) of the statute.

                Essentially, we find no basis for construing the plain import of the words which
comprise the provisions in question. A judge who has been defeated for reelection and who
thereupon retires or resigns his office is nevertheless a former judge "who retired or resigned from
office" within the meaning of section 1225 and Code of Civil Procedure section 2093, subdivision
(c). Accordingly, such an individual, upon requesting and receiving the requisite certification, is
authorized to administer and certify oaths and affirmations.

                                                 *****




for calculating benefits for early retirement.
  4
   Among the numerous persons who may administer oaths and affirmations are arbitrators in court
ordered arbitrations (Code Civ. Proc., § 1141.19; Cal Rules of Court, rule 1614) and in non-judicial
arbitrations (Code Civ. Proc., § 1282.8).

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