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11-14-1985

Disability Benefits - Judges' Retirement SystemSenate Committee on Public Employment and Retirement

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Recommended CitationSenate Committee on Public Employment and Retirement, "Disability Benefits - Judges' Retirement System" (1985). California Senate.Paper 152.http://digitalcommons.law.ggu.edu/caldocs_senate/152

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~ .. \-:(_

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INTERIM HEARING

SENATE COMMITTEE

ON

PUBLIC EMPLOYMENT AND RETIREMENT

STATE OF CALIFORNIA

LA . V ~- ~ n"" rY ,, __ .., ~ <<>.'V f:l ~ Ill '

GOLDEN GATE UNIVERSITY

DISABILITY BENEFITS -- JUDGES' RETIREMENT SYSTEM

STATE COMPENSATION INSURANCE FUND BUILDING

Reported by:

1275 MARKET STREET, ROOM 266

SAN FRANCISCO, CALIFORNIA

THURSDAY, NOVEMBER 14, 1985

10:00 A.M.

27 I Evelyn Mizak

28

I Shorthand Reporter

~ ~ I ,.... I

o...9 1 OC>

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APPEARANCES

MEMBERS PRESENT

SENATOR WADIE DEDDEH, Chairman

SENATOR ART TORRES

STAFF PRESENT

DAVID B. FELDERSTEIN, Consultant

MARY TRAIN, Committee Secretary

EVELYN MIZAK, Research Aide

LEGISLATORS PRESENT

!ASSEMBLYMAN PHILLIP WYMAN

ALSO PRESENT

CHARLES F. CONRAD, Assistant Executive Officer, Office of Governmental Affairs, PERS

BARRY HACKER, Legislative Representative PERS

JACK FRANKEL, Director and Chief counsel Commission on Judicial Performance

JUDGE ROBERT WEIL Los Angeles County Superior Court

JUDGE HOWARD SCHWARTZ Alameda Count Superior Court

JUSTICE ELWOOD LUI Court of Appeals, Second Appellate District

JUDGE GENE McDONALD San Mateo County Superior Court I· REBECCA TAYLOR, Senior Research Analyst California Taxpayers' Association

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I N D E X

Proceedings

Opening Statement by CHAIRMAN DEDDEH

Prese_ntation by PERS

-cHUCK CONRAD, Assistant Executive Officer BARRY HACKER, Legislative Representative CHUCK CONRAD

JACK FRANKEL, Director and Chief Counsel Commission on Judicial Performance

Recess

JUDGE ROBERT WEIL, President California Judges' Association

JUSTICE ELWOOD LUI Second District Court of Appeals

JUDGE HOWARD SCHWARTZ Alameda County Superior Court

JUDGE GENE McDONALD San Mateo Superior Court

JUSTICE LUI

REBECCA TAYLOR, Senior Research Analyst California Taxpayers' Association

Closing Statement by CHAIRMAN DEDDEH

Adjourment

Certificate of Reporter

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2 --ooOoo--

3 CHAIRMAN DEDDEH: I think it's past 10:00. I want to

4 state that this is not in the statement that I'm going to read.

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The fact that there are not too many Members here does not

indicate anything at all. This is an interim hearing, and one

I person can hold a hearing to that effect.

So, today's hearing is on a problem that is small in

some ways, but very large in others. I'm referring to disability

retirement in the Judges' Retirement System. The problem with

judges' disability is small because not many judges are on the

disability rolls, and only about 10 judges per year are granted

13 disability retirement. The problem is also large because of the

14 nature of the injuries behind some of the disability retirements.

15 Recent newspaper articles imply that some of the judges now

receiving a disability allowance may not be deserving of such a

generous lifelong benefit at the taxpayers' expense.

18 The purpose of this hearing is to find out how it is

19 determined that a judge is too sick to continue on the bench.

Legislature has provided that the Commission on Judicial

21 Performance is the appropriate body to decide if a judge is

22 disabled. This means that the Commission is put the posit

23 of, quote, "holding the purse strings", unquote, to a very

24 expensive public pension benefit.

25 I would like to know if there are problems with the

26 current statutes that allow judges who aren't truly disabled to

27 receive this generous benefit. Are there sections of the law

28

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are too broad or too ? We're ask the witnesses for

legis changes to be

I would like to know if the

is sability determination. This Committee is interested

how many of the applications for disability are by

are c not le to out ir dut s, or

s who have had heart or med

, quote, "an open and shut case"

For ones, fficult di

the Commission.

1

which require the Commission to closely examine

judge's claimed ailment, what is the process that

uses to make this decision, and does the

have the resources it to perform dut s?

I've ta toPERS, seems sa to say the

s ci

correct; average j 's disability retirement costs

over $1 mill considering disability payments

the judge and his or her beneficiar in their

s.

Now, I want to state very c ly that if the Commission

not has the resources to the medical or legal

needs on questionable sabil cases, please would

for the record. I am sure wou cost the

a less than $1 11 case to provide the

with any medical or 1 expertise need to properly

eva each disabil appl tion.

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I II )I

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3

Our ss is Conrad from

' Ret PERS s the state agency that

sters the Judges' Retirement System, and I will at this 'I !1 time call on Chuck, wherever you are.

II 11

II II I ,, II II

MR. CONRAD: Senator Deddeh, good morning. Thank you

much.

I'm Chuck Conrad. I'm the Assistant Executive Officer II ,, . II Wl th PERS. " II II I'd like to take this opportunity to thank you for

il inviting us here today. I'd like to make just a couple of brief

/!introductory remarks. 1:

!I " I!

II ji ,, II II

With me also is Barry Hacker, our Legislative

sentative, and Terry Kagiyama, the Manager of the Judges'

'! li Retirement System in PERS. li li The PERS of Administration's concerns are a bit i'

Ji broader than those that you mentioned I,

s morning. I'd like to

I' 1icongratulate you, Senator, on your efforts with Senate Bill 838, n ,, i[ and the Consultant to this Committee, David Felderstein in his \i ii 11 personal efforts. ,, ii 11

I! Our concerns bas ly are that the California Judges'

Ret System is now a trust fund 17 of

Constitution, along with PERS the state ret

systems. And those funds are therefore he in trust exclusively

for the benefit of the members and beneficiaries. And that trust

s, there , a fiduciary responsibility on someone's part.

Our Board is concerned as to who bears that

responsibility with respect to the Judges' fund. We have

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Ian f, who is probably the nat 's preeminent

of f i standards, who was the first D of the

rtment of Labor's ERISA division. has advised our

re to their personal several li 1 c=ts II IJtrustees of the Public Employees' Retirement Fund, the

11 slators' Retirement Fund, the Volunteers System and

I II

I II II II II !

tern, but we have one additional concern with the

s' System, and that is first that the system does not have

we would consider to a schedule. In

our de , it's not a retirement tern because a

tern involves an actuarial funding schedule, and the

Retirement System is essentially an intergenerational

transfer mechanism. That is, funds are taken directly

paid to beneficiar s today.

Second , our Board no over the contribution I II Those are set by statute, both the judges', I) rates to be charged.

II state's a filing

II 11 q II II d II li II il " II II II

s. So, we no control over

funding policy or the contribution flow.

's no investment to speak of because there is no

stment fund. So, one of the major components of any

mechanism is gone.

last , we no c over issue of

ii sab li determinations. 's made by the Commission on

II ,Jud

II

II e

II

I

1 Per

The PERS Board has sponsored a number of lls in an

ss the issue of funding. Unfortunately for many to

, to increase funding for the Judges' tern, as you are

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1 aware, Senator, s cuts as

2 f. Even 838 d some members of

some sta members sn't go

4 enough in what they consider to be reforms of the judicial

5 system.

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Our concern simply the system be placed at I

I some point on some kind of a funding schedule. A.nd our Board

jwill be considering legislation simply to give the slature a I

!number of options. We probably 11 sponsor a bill that will

,I provide for normal cost funding just to keep unfunded

llliability from getting any larger than it currently is, perhaps II II o an option to retire over some very long and extended lj 11 period, 60 or 70 years, and then provide the option which we Ji !I prefer, which is over some shorter and more prudent

il period, perhaps 30 or 40 li il We don't suspect that there's enough political support 11 I ',\for that bill, but we'd at least like to get it on the record

li 'i that we've made one last effort to try to prudently fund the II il system.

il If the Legis the people involved, the interest i! :1 , are not interested funding the system, I believe our 11 11 Board will seek from s some redress in terms of s II

/!administrative role. Frankly, we'd like to see this system

il aced someplace else. If it's not going to be funded, we're not II

Ill to have some control over it, we'd just as soon see it

\placed somewhere else. We have absolutely no interest in II I· !!continuing any further, and we don't care, frankly, where the ji ' ,I

11 system is placed in terms of an administrative role.

:I il L jl

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we

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mention as a corollary

our fiduc res pons

to permit our to

ct last year

us wit.h limited coverage, $25

iary responsibil

cost us $220,000, which now in

State Teachers' is

seems to have been a

a

to

1

mill

we were

, so we sought

PERS that

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our Board members. That

considering

to and some other

We've already been informed by underwriters for that

that they will not renew. We've already been formed by

major insurance groups that will not renew either

coverage or the State Teachers' System for any price,

P..nd you've

coverage and the problems

sn't seem to any dif

I thi we 11, therefore,

of stories recent

ing all publ

retirement

approaching

ent

terns.

slature next year and for authority to use the

assets of ifornia to form our own

pool with respect to breaches of fiducia

Now, kinds of breaches are only what you would

r to be breaches of the normal negligence standards. They

do not, we would not , indemnificat such

as llful and wanton misconduct. Those kinds of things

s of risk that pension systems are simp going to

to take on the own.

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d 1 to 's our

Do

a few more to

and fics of the Judges'

CHAIRMAN DEDDEH: I will be a ing a question or two.

want me to now or Mr. Hacker?

MR. CONRAD: Whatever you prefer, Senator.

CHAIRMAN DEDDEH: Let's hear from Mr. Hacker.

Before Mr. Hacker comes, me this opportunity to

introduce the staff here.

To my right is the Chief Consultant to this Committee, a

valuable asset to the Committee, Mr. Dave Felderstein.

To my le is Mary Secretary to the

Committee.

I love to a

at the piano. She's a court

staff.

refer to Evelyn Mizak as the lady

, but 's also a member of

And standing there, guarding the door, is our Sergeant

at Arms, Ken Johnson.

that, Mr. I

MR. HACKER: very much.

ttee , I we s to present some

formation to you today.

Mr. Conrad has provided an overview of some of the

System's concerns. I'm going to a 1 more speci c and

talk about the condition of the fund, provide some background

about the Judges' Retirement System, and so forth, and

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II li 11

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li !I II ,I II II

s

II II ret

II ll II

e

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the fits are and

rements.

s' Fund was es i , or

ished 1937 by the Act

s' Retirement Fund Act. And a tern of

f s Super Court j , Distr Courts of

s, and the Supreme Court. In 1941,

j s were brought uri

1\ In II

, the Governor,

!Treasurer's Of had responsibil

.I II ,I II II I

Fund, and the administration of the Fund was

1 of the General Fund. An development

1979, when the administrative responsibility for JRS

.I was transferred to the PERS Board of Administration.

, to 1951, 's relative little information as

l II ~I II II II II II ll

II I H li I' d II !I "

s of members covered dol s involved.

we in 1951, Fund had a ba of a million

llars.

'm to make if re to our testimony

ttee I'll to be if so

can

950 s saw rece s of

exceed the disbursements, and so trend was very

the Fund was By 961, , that trend

so that Fund balance began 1 ing. In 1967, the

I and what occurred is the first General Fund

ion in 1967 of just over $300,000 That augmentation

lly, 1985 $10 million.

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I j!to 1960,

Now, s is an

1 of an 8%

was

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to state's

rate. So, from 1937

From '61 to '67,

I changed, and by '67 the Fund was defunct and it was a pay-

II as-you-go system.

II CHAIRMAN DEDDEH: We're about the benefits now?

MR. HACKER: Benefits exceeding the receipts to the

tern.

CHAIRMAN DEDDEH: Why did that happen?

MR. HACKER: The number of retirees growing.

CHAIRMAN DEDDEH: Living longer.

MR. HACKER: Living longer, and then the number of

13 retirees growing a lot faster than the number of incumbent judges

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paying into the System.

As a partial solution to s funding problem, the

judges' contribution rates have been changed a couple of times.

In 1962, the judges' rate changed from 2~% to 4%, and then

1964, the rate was increased to 8%, which is the current rate.

employer also contributes 8%, and court fees, filing fees

and Municipal Courts add another 4%, and 's

current rate System.

ion I made reference to in 1985, the

1$10.4 million, that's going to double each five years up until

!the year 2000. We have a projection on Attachment C that gives a

ll good indication of what the General Fund obligation will

!become. It's a multiplier effect that is fairly dramatic.

I II II

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a

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CRAIIDA..AN DEDDEH: Can you us the 1 f ? In

do ect, $25 llion?

MR HACKER: Well, 1985, total di sements

are just over $30 11

CHAIRMAN DEDDEH: What is the state's ion to

?

MR. HACKER: augmentation is about 10~ million.

t to the 7 11 state a

contribution, an 8% contr

CHAIRMAN DEDDEH: the year 1995, if I read s

, we're look at between $48-50 11 state

MR. HACKER: That will be the extra appropriation, s,

You , Senator , the reasons for this

inally, back 1951, when we accurate records,

at Chart B now, the number of judicial positions

was 312. The number of retired judges was two dozen.

CHAIRMAN DEDDEH: Give me that again?

MR. HACKER: The f t line on Chart B number

it at just over 300 judie 1 i

of retirees, two dozen. So, the retired population is

8% of the total judges'

If take a look at second page, 1 as

number of active judges has grown to 1300, which is

fold multiplier, and the number of rees is in excess

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of 2200. So, now we

so it won't

status.

CHAIRMAN DEDDEH:

11

41% of

one out of two j

's a licy issue. We cannot

I 1 quarrel those appointments.

I MR. HACKER: I can't answer.

is of a j to the

, whether IS or Appellate Court?

CHAIRMAN DEDDEH: Do we have some ion on that?

I'm sure somebody could answer that later on, but I

like to get the answer.

MS. TAYLOR: In 1981, the average was 44 years.

CHAIRMAN DEDDEH: All

MR. HACKER: A couple of other significant events,

current situation is that I Senator, that have contributed to

IJ to 1959, II 1 50%. With the passage of

maximum bene payable to a retired judge was

slation in 1959, the maximums were

up to 75% for a judge with 20 years of service and 65%

ss 20 of service.

CHAIRMAN DEDDEH: ten of service qualify

MR. HACKER: Yes, s

so, survivor were broadened. Beginning

1953, judges were permitted to provide for a surviving spouse,

I 1 and 1959, 1 entitled were

j to half pay, half of the judge's allowance.

II II II II

I,

II

enti

had

and we do

measure

is something

re

was carr

Senate il 838,

of

to f

is

s

un liabili as of June 30 of last

11 's as specif

actuar 1 evaluat that was

as an attachment

G.

your test

Coates,

ast

, too. t's

12

was

&

I S

recommend a total contr

of payroll would

by year 2002. And if

rate of 80 and

to find an

current employer

contribution rates are not increased, then the

11 a

As far as di il

System go, to 1959, a j was entitled

dis il retirement only if he qualified for service

both the age and irements.

would only be ent for a pension based on the

f years s on the bench.

Current now, a j s excess of two years of

is eligib for a disability retirement of 65%. And if

20 or more of s would be a 75%

CHAIRMAN DEDDEH: Two years of

li that be someth

, retirement on

happened to the

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,, II li ,,

you

dur

was not

two years or two

MR. HACKER:

was not a re

rement. If

be no

CHAIRMAN DEDDEH:

some

11 I

Is

MR. HACKER:

s

quest

I CHAIRMAN DEDDEH:

~~Commission. As

a

1,

s

II MR. FELDERSTEIN:

,, s 1 can to

II II

?

II

II II

.MR. HACKER

of j

CHAIRMAN DEDDEH: ,,

'I two years.

I II

I

a il s

13

o a

wa

1 to 65%?

f or

of a

was a of ,

you're tell me, if I

to , knowing

, two , and under your

two , as I brought

ss I to

?

, Senator, I

a to answer

I m a advance of

, I will answer

not true if the

j re , 's no

s correct. If i is a

is no

concern is

h or with her to the

was one could take

14

of waiting iod, tv10

one c d lity. That's not a 1

f we assume Munic j and I don't know

sa is, 62,000, whatever start sa is --

's a chunk of money to be

All r

MR. HACKER: Senator Deddeh, as of 1,

were 48 judges active rece 1

the total s al is

0, so provides an of $4,000 month to the

judge. And the accumulated value of such a monthly

somewhere between $800-900,000 for life

for the normal life expectancy, assuming no survivor

its, and assuming no cost 1 adjustments. But with a

cost of living adjustment, would be over a million dol

On D, there's a comparison of age of

retirements, of service retirees, to disability retirees,

average age for a service retirement is age 67; the

ge age for a disability retirement is age 59. And the life

for disabled judge at 59 is 15 years.

st age we for a d retirement

was age 39, and judge had two serv ,

requirement, and the least amount of service was three

at age 59. And graphs on Charts D, E F reflect

comparisons between average amounts of service average

rement age, and a comparison between two of

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Per

JRS,

not

wou

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actual s

ss on

ss Just make

, the e tive date is

ss s State,

State JRS, I System, of

j IS name is retirement roll.

of s mak payments and is

the process.

There been 18 cases we're aware of where

of the incumbent j

sability retirement became

to

after

date

!VfR. FELDERSTEIN:

li a

MR. HA.CKER:

the

1,

to the death bene

be

CHAIRMAN DEDDEH: I

case

di a

MR. HACKER: I'm sure

process, Senator.

f comment

is purpose of that, of

judge?

would be

options available to

enters

to

isn't

earn

i

?

decision

test 's

s

sed

Just a

on the di judge. A disabled judge under age 70 is

an test, is to submit earnings s to

rernent , and we acce s

's to ver those

are two retired j s on disab

earn s to

CHAIRMAN DEDDEH: How do we

re rernent?

. HACKER: We have 48.

CHAIRMAN DEDDEH:

relat

HACKER:

to their earn

's correct, sir.

and

?

FELDERSTEIN: , is there any

now

not about

HACKER: We have no of

1

1

t

16

status

are on

under

?

earnings

're If 're avai le through the

sure

Te wou

CHAIRMAN DEDDEH:

that a ret

rtment, be

occurs, an offset.

to he me out on that.

se

performs a

you make reference

1 capac , or

nvestrnents? f are v.1e

?

MR. HACKER: a emp

CHAIRMAN DEDDEH: stments and 1 would

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no

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CHAIRMAN DEDDEH: But if a ret j were to

or to someone $40 500 an , or

1 wou i the earn test?

MR. HACKER: Yes, would be limited to 75% of the

sa , a

earnings test

1 , on

of legis

But

after age 70.

7 of

that became

w s

two tlements or

to age 70: there

, is a listing of

in 1985. These don't

in necessarily to disability, but they do have an affect on

Judges' Retirement System.

Senator cone s remarks. or

. Conrad or myself would be happy to answer any questions you

have.

CHAIRMAN DEDDEH: I

you've answered them in

one more ques d

two or three questions, but I

process of your testimony. I

at PERS, for instance,

a disability evaluation for the Commission if you were

to do so on a case-by-case basis? Would you be able to do

MR. HACKER: I'll

CHAIRMAN DEDDEH: As

upon t.

Mr.

MR. CONRAD: Out of all of the

, Senator

t end of the stick.

answer that question.

so-called

ings that we do to

, that's the

18

t 1 our

nose disabil ion process --

CHAIRMAN DEDDEH: If you were requested by

4 i sion, wou be le to do ? Would want to

?

MR. CONRAD: I suspect our would not interested

doi it. I'm not forec the poss il , but I ink

real lem would standa s.

As you know from hearing sta, real

is descr the job and having i job standards

a disability lication can be reviewed and

med 1 testimony can be al That's

all of groups within PERS, and that would

case with the judges.

I th a prerequisite to a more rational disability

ss and I'm waiting to hear how the process s

don't c im to know anything about it -- but we think one

to a more rational disability process for any system

to very ific job descriptions and standards.

's extreme diff t to do with respect to the

s.

CHAIRMAN DEDDEH: , you're next.

MR. HACKER: I I stole all Terry's comments.

CHAIRMAN DEDDEH: Be I call on next witness,

is ty to also thank the State Compensation

Fund for mak ility available to us for this

ing.

19

1 1 now we 1 tness

2 s on

3

Mr.

5 MR. FRANKEL: Senator of the

f of s Performance

1 i, we are to

s as

9 matters. I'll happy to

assist the Committee in any that we can and to cooperate

1 any to

Bas ion as

out Statute,

75060 of Government suggesting

e of or of bene ts.

to to st of its ability as

statute to

18 CHAIRMAN DEDDEH: does the statute require?

19 MR. FRANKEL: statute that any judge who is

to d duties of his or 0

reason s 1 is or is 1

consent

ss on Jud ia1

I

es 1 of standards

a judge to disability.

DEDDEH: so prove, what of

does

• FRANKEL: Let me ske

11 re to

CHA.Iru•lAN DEDDEH: fine;

I

, I am re to an

I presented

the statute

must

I

to j

certif s to

certificate, must

re evant

illustrat

can a case that g

In what

'm re i

les of

11 call the norma

to s t

s

le

want to

ss does

ord

a

a

a

I

the

the medical

we so

t is

, and I

lustrat

the normal

document

as the

to -- that

us to corre

tor,

med 1 is the

se are order, name

letter of the certificate

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II

I II from

j1 from j al s ,

21

us

I ::t included ssion evaluates

rece 1 records wh are

ttal,

!I information.

II Now,

1' sion

cases

st an evaluat by another doctor. .And we

an s of University of

ifornia whereby they refer us to a consul physician who

llwill examine our documentat and then report to us as to the

evaluation medical records. That's not done invariably,

certain cases seem clear on and on basis

records. So, e with or without an

evaluation, Commiss will consider s

then will vote to and to grant the sabil

At that point goes to f Justice, and the

f Justice makes an independent The Commission

Chief Justice; it's an independent

on part Commission and Chief Just

CHAIRMAN DEDDEH: f Justice makes

is on all cases or se cases?

MR. FRANKEL: Each every case.

CHAIRMAN DEDDEH: And you mentioned some cases are

and shut.

MR. FRANKEL: Yes.

1

CHAIRMAN DEDDEH: How of

call s

MR. FRANKEL: The major

of perhaps 75% 11 be a

document at

ave

?

the

st sure s ly

CHAIRMAN DEDDEH: the 25%, ballpark

22

ions

, do not

in the open and shut cases, do ?

MR. FRANKEL: No.

CHAIRMAN DEDDEH: How many of have been denied, of

5%?

.MR. FRANKEL: Well, I've provided a

'85, numbers, and my recol

's under 10% are

CHAIRMAN DEDDEH:

MF. FRANKEL: But

CHAIRMAN DEDDEH:

Ten rcent denied?

t's just recol

Ten percent of a 1

that shows for

is that

applicants, or

of who are questionable?

MR. FRANKEL: No, of all that are filed. For example,

were -- some years were none~ going from '80-'85, two

o ten; 1982 there were seven led, out of the seven.

it's under 10% of all that are filed are den

's an in category that are not open and

, and t are not denied, in which the Commission goes

simply an evaluation by an independent phys ian, but will

judge to be examined by a phys ian of our choice.

That perhaps once or twice a year.

2

3

5

6

7

9

11

18

II

r ll !' I 11 too II 11maj

II II I·

II

Now, a

to draw any

or at

a judge

whom we have

1 t ,

1

1

1

•. 1 a course, depending upon

11 not, or

Well,

sn't seem to

in cases,

, and the Commiss

of what needs to be

You'll

, a photostat or

the

Legis

23

I s are

as it's

st once or a year on an

examination by a

been re to us as

acts suant to

or

is I call ordinary case

problems consideration, and

of statute appears

no problem in

I've also Committee a

our docket, of 1 of

hand s it was

1967. I can't even give you

ly. I've just directly from our

t.

It exc s, es of lege

ity, The den ls

on this all of

the courts s of appl which have

accepted down to 1 1985, two were accepted,

11 see, at

So, that is procedure in the normal case. Now, at

is point I might refer to ion of resources.

24

In cases, th~ ones T I .L 1

t is any problem 1 or 1 or

resources. We have of a to to

s are by of med , consul I .L

any has run over $1,000 in med 1 s.

I've also filed a with Committee that shows

CHAIRMAN DEDDEH: Mr. Frankel, before I lose that po

't have resources, I'll I

don't resources

Has the an to a the

or ies, ever makes the decision, for

?

MR. FRANKEL: I'm not sure what I said. What I intended

s was there's no lack of resources. The Commission has not

any constra ts to fie funds.

CHAIRMAN DEDDEH: I read your answer to my letter to

you are telling me t you don't have 1 the resources

I I that somewhere.

MF. FRANKEL: I what you're referr to, and

there any change the statute by way of

ld there be any

ifications or amendments the problem cases, there would

to iate at tent to addi 1 resources

we have no or resources.

We are not to deal judicial

ab lities. Our ing is entirely our main

2

3

4

5

6

7

8

9

11

under

of j

obta

neces

disc

General and

present system

CHAIRMAN DEDDEH:

were to trans

25

effort that i

, on one , or

, s request to

the Attorney General furnish counsel

been adequate.

more comfortable if

of ishing

lity, disability , to another agency? I'm

specifical making reference to PERS. Take this out of your

hands so you would not be bothered with it, and let somebody else

that decision. Let the prove that a certain member of

bench really qualifies; let them worry about And you

confine your function to purpose for which you were created

originally.

MR. FRANKEL: The Commiss has no vested interest at

all ful !ling the judie 1 sability function, and I think

is neutral as to whether it should

18 Commission or not.

, retained with the

20

23

24

26

27

28

main disadvantage of the Commiss doing is that

ssion has no particular expertise and is dealing

matters of judicial s conduct, and

an agency that is, e , a board that

doctors and lawyers on its staff who are specializing in these

areas, there would be an advantage.

The disadvantage that I also point out of making

any change is that frequently there has been some connection with

the sciplinary investigation, perhaps for disability or

3

4

6

8

1

II I'

26

11

lcoholism, II

, and a later So, certa n

II cases, a matter of expertise has been ach by the

II ss

1! connect I! 'I II an

II li

II II limy s 'I ,, li II IJ

of the rest of There is some

the disc inary investigations and somet s

disability.

CHAIRMAN DEDDEH: Mr. Frankel, those know me

1 know me well to be to say that is not

e to ss anybody, to a anybody.

I this is a result f some reports I saw

ss that everybody read. They probably caused a sense II j1o ,j

sment to some otherwise very dedicated members of the

II I· II II

'I we

I

il II II

ll II d ,, II !I II n II H ' lj II p II

I' II

II !!

II i! p

, committed, loyal, great people.

If one, only one out of 100 gives the bench a black eye,

to correct that. We're not after anybody. But I don't

i IS proper us to that I

seen press. Those of us

are in contact with the ic on a daily basis are asked

, and if we cannot answer, they ask a second question: Why

't ing about it?

s I'm seek I am not for witch

ses. I'm not to embarrass anybody.

I am here to correct the wrongs, if there are

If there aren't, we have had a nice little get

in San Francisco and we can go home.

I want a public hear to let the world know that, s,

are certain s need to be corrected. I will not 11 II ment d

names, but I know of two or three cases where they would !I 'I II ,,

'I II

correct,

9

If s

I

I

f

reverence.

ttee

s neces

s me

1

, we

se,

s 1

If not on

s tra

state

I mean

see, I'm a

j

we need to

s

i

, we

, can

1

to s

I

t

the

or

2

f,

, to

i i

go

This is not style nor the s

MR. FRANKEL: Thank you.

Well, as I said, I think Commiss

28

of this

is ically

neutral on whether this a good or bad idea, whether it should be

6 or not. It was never requested by the Commission. It

7 handed to the Commission by the Legislature.

8 The Commission recognizes a certain connection between

9 function performs on the disability front and the function

2

7

23

26

27

examining judicial discipline problems and is

ling to shoulder whatever responsibility the Legislature, in

wisdom, wishes to impose.

CHAIRMAN DEDDEH: Do you do any follow up? Let's say

judge~ I retire on disability with an open and shut case or

able, but I am ret under disability.

Is there a follow up to see that I may be taking some

tion or seeing some doctors so that eventually I can come

to the bench and perform? Or, is it that once I retire,

it?

MR. FRANKEL: There's no follow up of the nature that

're t There is a provision whereby the Commission

restoration to capacity a judge who has

That has been carried out completely at the

tiative of the judge so far, as far as the Commission is

concerned.

The reasoning behind that is that forcing or even overly

encouraging an individual to accept assignments as a judge is not

s

f us

So,

But I

Government

Court o

DEDDEH:

of

I'

j

ment

is one

a

't want to

n Sacramento Los

is not

return ass

i

as a

st.

We power under

to all of our

, four

of

ss

s se 0

2

5

6

7

11

1

30

dollars, put some kind of Constitutional Amendment or

to do, hones , damage to the very branch of the

s insulation and isolation and protection.

But in order to do that, they've got to be like Caesar's

impeccably clean from any criticism. And unless we can

public we are honestly doing what we can to make sure

branch is impeccably clean -- not as far as their judgment

jud ial formance, because that's not my concern -- but in

retirement areas where we're talking about taxpayers'

This is the area about which I'm concerned.

I know there are some members of the bench here. I hope

am ing myself abundantly clear. I am here to protect the i I .l

11 bench,

II II

not to go after the bench.

MR. FRANKEL: I agree completely with your thought, and

II i

II

connection, I'd like to point out that since 1973, the

ssion has resisted six applications in court. In other

, they denied the judge's application, and then the judge

!!went to court to try to force the acceptance. In only one out of

II II s has the Commission been able to prevail. So, five 'I JJcases, the CoroiDission thought that it was upholding the public !I II st by denying an application, and it was forced later by II II court II 'I

ss to grant it.

Now, some of these examples, as these examples occur, II ,I 'I although numerically they may not be great, as you said, they

a blot in the public mind upon all of the judges. And even I d

l,i,l. though there might be only one a year of a judge who campaigns

reelection and then, within a month after losing an election,

0

s

6

8

32

I come a

llcourse if

tomorrow or next month, that would be the

•I

II

!I II

ct

II II ses

II Governor

11 courts. II II !I icons

medical in ion is adequate furnished.

CHAIRMAN DEDDEH: Mr. Frankel, ne you nor I are

I'm not a lawyer.

You mentioned the word "statute". The

, a proposed law, it's signed into law by the

becomes a law. And the law is by the

Is it not possible, then, listening to you and

ing what's going on in the press, that the Legislature

II

1 proscribe by law that cases such as the ones of "two years II J!

II II II II

I I~ 11

II

I'm out on disability, even though I carried with me to the

an illness or sickness and I already had", whether it was

problems or high blood ssure, whatever you had, don't

we can do by How can the court get around

set it·as if we proscr that?

MR. FRANKEL: Certainly there are changes that could be

I 1made, and of course there's the whole situation of how many of 'I h II these r jl

!! !!

II II I! II r II

ss

have already vested.

But I'm afraid I must back away by saying that the

does not want to get into the desirabil of any

changes. So, I feel --

CHAIRMAN DEDDEH: Do you think there is some need to

11 make some changes, in your professional opinion?

I' ll 1 set

I

II

II tl

II

forth

MR. FRANKEL: I think that some of the examples that I

the , speaking my role as a citizen, I

well stand attention and improvement. I think that

33

care

exact of

as to more

CHAIRMAN DEDDEH we cannot vested

cons We

7

is no on of

9 we a s , to

cases -- I'm not saying illegal, but

1 cases -- ever future.

Do is s to

?

MR. FRANKEL: I some s

I slature,

If more, if are

slature We've s,

we we just s t want to

se we can out of , at

But I some

j rement.

CHAIRMAN DEDDEH we want to is

sure t Mr. , or one of

s , Kiwanis,

1 e read ss like

28

or

f s true,

How answer to

is concern

I can

them

0

is is

aren't

aren't

sent 65

But,

00

access to the

34

s am

've an

, most of the

MR FRANKEL: I th one or two or s

Now,

on

We

DEDDEH Preci

S I

wa

much

us we ve

c zen far outwe

s could

testimony.

jo a

i

fv1ember of the

Employees and Retirement in As

1.

4

5

6

7

8

9

11

18

35

ASSEMBLYMAN

I if

Inc y just been

Mr. E

DEDDEH: so are now on the policy

ttee

ASSEMBLYMAN ~~MAN: Yes.

CHAIRMAN DEDDEH So, we now as a

ttee.

ASSEMBLYMAN WYMAN: Now new , and now in

town who's to to me, so I hope

CHAIRMAN DEDDEH Go , Phil.

ASSEMBLYMAN WYMAN: , Mr. , has to do

avai in disc ine

on one , di lity cases on the

ss on ial what are

i secret or con of information,

case of sc

a ss files

disc 's a

ance 's no any disc

,

are case of

ty? be the light of public scrutiny

s cases of s 1 ?

36

s true

s

. }

tenderne

s

s

di s

PERS the

t

at

s re

s f are

ss

i

a set f s

s

2

3

4

5

6

7

8

9

1

18

24

27

il II concerns concPrns wh

37

need some 'I ~~form of confidentiality, you to a set o

llrules apply to disability area. It isn't the same as

1

j scipline area, and the full shield that may be appropr II It

I' ,I

I II

I'

case disciplining a judge certainly shouldn't be

to bear without any separate distinction when you're

about a disability retirement.

can't help if they're sick. They can help

1

1

they're corrupt.

if

I I

MR. FRANKEL: It's an entirely different situation, and

II agree with you--

ASSEMBLYMAN WYMAN: But you don't have a separate set of

rules.

MR. FRANKEL: There are no rules --

ASSEMBLYMAN WYMAN: You apply the discipline rules in

I !/the case of disability, and so I'm asking you why.

'I I

MR. FRANKEL: We don't apply the disability rules. We

~~apply the government statute that mandates privilege on medical

!!records to all those coming under PERS jurisdiction. There's no

!/exclusion for the judiciary in that statute, and therefore, until II jl 's some determination, the Commission doesn't feel that II !lis empowered to do anything about , plus the fact that II jCommission has no rule making authority of its own.

ASSEMBLYMAN WYMAN: Well, I'm reading an article here

II the Examiner that says: "Most Commission members, both I, \!present and former, favor more openness."

II II

II

II

3

4

6

9

3

II 39

I 1

1

,

1

current state

,! s

I

f so, if want us to

a d

is interests certa I

I· 's r to

I I

MR FRANKEL:

II cons stent

11

sc

l1 11 extens

Commission favors maximum openness

dis lity and the s

ion. It vigorous 30-day resisted

Jud 1 Council, you re to

Ill Judicial Council imposed additional restriction over the

jections, the stated objections, of the Commission by a II jone-vote margin.

I

II II II ,J ll was

As far as

ASSEMBLYMAN WYMAN: When did that occur?

MR. FRANKEL: That was last September, I believe. No,

June meet of Council, by I think

II 1jwas a i'

to ten vote. II 'I

I' IIMr. 'I II li I!

II II II II II jl ,! il

I I q

II I'

1\

I ,J

II il II

ASSEMBLYMAN WYMAN: So, may very well be re

, for us to look legislatively at some sort of remedy

CHAIRMAN DEDDEH: You probably e thunder.

stening to Mr. ' I 11 s

Means, SB 838, 11 , I if sses,

, $20 llion a year, to fund the unfunded liability, wh

$625 million, over 40 years.

As I can out of and Means, assuming

t Governor agrees, and so far we've had some kind of

tanding that that will be the vehic , if I were seeking

s

0 cons a

i

No

has no

s of i

ser

s

fere

were

ext ens

on

the

0

27

I' II ,,

II I! I il I! I! correct

II II ll 11 sn 't II il

II l'i ,I

II II lion i!

ilsect II H II II !I II il

ii 11 I! n II :I \i II II \i d il I i

CHAIRMAN DEDDEH wou have

FRANKEIJ we

CHAIRMAN DEDDEH: Have else statute

statute?

MR. FRANKEL: Yes, s not --

is pos than anybody else

CHAIRMAN DEDDEH: Commiss

if we would 1 to is Government Code

?

MR. FRANKEL: I ss would neutral

if it saw someth

or was some couldn't

out.

But as as s

to

CHAIRMAN DEDDEH: We' 1 power to

, to

a j is to do. The I

to correct, if are some correct

ss. we'd 1 if

to out; is area wh

to see

t I'm 11 be

to some of to the s

I

. )

We

f

abuses

see

our

se

9

0

6

23

27

28

a

li

;I !Ira !\ ;l H !i

We

to now.

F t of all we

Court.

Per

resource

Court.

z

Senator

We are

I

to serve as a

\I

!I il 11 scussed IJ

II :1 !i

if i! II if II II !l I)

il !! II n

ss

I

1

3

we t seen

are

a

z of

as a of

of f years. He's

can answer st

area.

Gene McDona of San Mateo

s CJA who s

of and

slature.

Just

and

ttee and

s to our

ter to our

on we've

to answer

us to

JUDGE

record

Dove

t seems

As

However

a

s

want to

us.

re

I

i

areas

s

to

0

s

so

s

As

to outl a few

f

ism

we

f

can

art le

c s

a

s s

of t.he

f

s and

47

so, if

to amount

d s s t s

not ized as well.

5 So, fact is

can

not

9 d

0 c we is to your 11,

to retirement

Because li

are is

4 dif 's no to

5 system. tern is disability and

6 come out of same . I is no In

7 li

18 I Governor and the

19 11 SB 838.

-- we

2 40-some a tota sum 0

ret But are

23 For , I can a

$235 a 1, I on

25 's assume it wou

at $4,000 a Well,

27 t's something $195,000 is out

enter

cost

ts.

i

can a 1

or a

if s 1

So state is

f sure

state

s

So

a

27

state

se

or

4

State Bar

But I can a

costs

or

out now

is out,

on.

In

s, and

not as as

the

was a former

you

9

DEDDEH me t and I

2 s

How t

year, as we we'll

was

25 we

But I have seen, at least I

seen wou us to , as I 27

28

50

I

1

8

?

I was to Judges'

tern Internal

asked was: are we the

ERISA, 're not , of a

8 1 ?

We of s not

s can We can't if we were to

% s ill

not f s

s one

CHAIRMAN : current. one.

not

to

3

4

3

14

5

16

8

24

25

26

27

28

That is

of Cal

a

Now, if

be

feel

terns

But I

of one

his j

' on at

cases

Court

Here is

as

a

are

I,

was not

He

if

an

to s

s own

come, not

Court

CHAIRMAN DEDDEH: You

JUSTICE LUI of

I

cou

ret a

He

j

elf

51

f at

s d a

assets.

the s tern

s on

of

s ituat as an

He

suffered a

at

out

is j

n't a

a

we cannot

States

,

Cali

tr to

an NFL

issues

we can't

a

3

5

25

28

CHAIRMAN

JUSTICE LUI:

CHAIRMAN DEDDEH: Next

JUDGE SCHWARTZ

t want

CHAIRMAN DEDDEH

we

f

VI

much,

Senators

state

1

1 Council, is

18. So,

a

Lui.

As

name

52

s

even

, and now

7

1, t, but I'm as

9 an s a so some

a di li

I went

We s a 1

meet And I I can state

j

are areas at tent

I

s But I'd

1 statements your

re sever a

f, I 1

deal th

are of as s ls

4

8

0

ll

2

13

4

6

7

9

2

23

25

26

27

28

hal

PERS

I

f

ss

of PERS

as stre

It seems

j

s 25

of

were ove

are ect to.

s s one reason

j f two i

Governor It

sue

54

execut

to

slature.

to,

ject

s are

consider

j disability

t ss

and two lay

to me

I

lar s

of quas

wou a

state

a f area as

a s 1

1

area of

ss and a of

2

4

5

6

7

9

0

1

3

4

5

6

7

8

9

23

26

28

55

a moment s issue of

, re to I just sa

extreme to one who must submit

herself to If a judge has some

a person , or any elected

0 ial, some or not be di

and as we are grey areas of disabili , obvious

formation, if s or leaked out any way,

is of tremendous political di to person.

Now, that does not answer the question of what about

candidate who has, or judge who a d ability at the t

or she submits to public election. And I

suggest that a condition ought to be

I that a person

ts himself for e to should be required

to at the time they

.i themselves to were capable of I

II

/lout functions of the job.

II :I CHAIRMAN DEDDEH: On me ask you, we're ,, :! I,

!I ~ l I l

:i .I • :1 r1 ll

II exposed

~~we don't I,

a

or

Whether

11 be

the campaign,

to the

I am running

Bench, or is,

disclose or do not, I S

It's respons lity. If

. if not, it's not. Any one of I

s I am ill; I'm s

I! il a good look, and if they want to elect you, that's their !\ 'I II

'I that. I'm not concerned ss.

I S

us,

7

9

1

ll

3

5

1

17

8

19

22

23

24

26

27

II I 56 I I l I! I'm at

II is II

now may

I' to ,I ·I

)1 9 f our j are in ted and ,I II II

ile e tor ate or , 95%,

II k of the I, I• !I

to inquire about I! s s il il of 1 ? Is that II ,, II II II to or not? il I' II

JUDGE SCHWARTZ: In 1 ion, it is certainly II II I' i\

it to

CHAIRMAN DEDDEH: Senator Torres.

SENATOR TORRES: Pr

II appointment li

e ?

JUDGE SCHWARTZ:

~ \ jlone s il

to me

exerci

1

is is

i

if

some

t

SENATOR

?

to

i

a

IS not

a

TORRES:

I

of

f

How

to ? Between

? be done?

the person submits

It's the same as

an appointment,

ifications;

j

IS condition,

's 1 to do

as matter of I

some don't seems

discretion be

if s or

2

3

4

5

6

7

8

9

1

3

8

9

!I I' ,,

llher d II

II or

57

1i or terms of

?

'I II JUDGE SCHWARTZ: It seems --ll II il 'I

li 11 d

II II

I! \I

I i

I,

II r ,,

I! a

s

SENATOR TORR.ES: Or

Governor

How

dec

SCHWARTZ: You

is

di ing.

It's a matter judgment,

, as we You can

ect, 're

a 1 of

?

nature of 1i ty, a

or not?

of key

1ity and what is,

doctors are going to

on f s of

mistakes,

I 't want to

I area

jure someone's career. It s a very di t

d ,,

ll

I

ll You

II As Justice

II II lito can t or II II II ,, II II /I for

II II II 'I

II II il jl 'I I, li

But

are

your abil

can

out, some

for one

can't. It's

to

now

1 or

Const , serious

stress

11 stick it out and

reason or don't want

a area.

I seems to me

on an appl form

to state whether

ich would in any

, to carry on the j

7

0

4

7

done a

c d

, an

can control

to grey areas are

is

one is,

I

ss

even

, two

of

s

j

s

to

f

seems to me,

're not

and two

are

s,

1

s well

to i

seems to me

I

of

out

to make

are

a broad

kinds

the

lly they've

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is

to

So, I

as to di

f

1

Do

area f

to

to

want to use

t

59

, and f

for

shment

for being

as a means

anything about Judge Willens. I'm just

sur of the article, and if

case, only evidence

was which es i a

court real d 't have anything to

, not disabled. This is the same

at e question.

The major Cons is: Was

judge ? Your argument, or your comment, Senator,

were

, come

I was

1,

to run

say:

's a

di

of

1, I

1

st

slature wants to

your medical

election that you were

's a serious que

or

, and now ust

wasn't i

, and 's a dif

is ion

of

lt

to run

one.

support a finding before

, if you choose to

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'I I II II I' II

I II

II

I II to

11 Is

I lj

\i

II II II

II I

me

not

I execut I \\want to

self to

your to

to.

t a

cases

I

a fa use

CHAIRMAN DEDDEH:

one

We asked

1 judge or an

In , .L

branch 11

h you and

II at least is

II some ai

to

II Is a

II unconst 1? L

II II JUDGE SCHWARTZ: II jl d an 1

I' jyou re ified to 1l

d

I

II physic and whatever other

II I do want to II 1\ to separate, even though

I[ issue of funding of ret

[[disability. II II II

II

60

are rejectPd, we're go

s 1 you

quest order to

to you might want

at standpo

lity system?

Senator Torres' question,

executive branch has power or

the hea situation of a

judie

let's assume that the

f j of whether they

less of your background,

on the record that Judge A or B

, pressure, whatever it is,

to the bench.

to es ish, or maybe it's

is I

for a job that

j includes mental,

ifications.

sa about trying

ically difficult, the

and the question of

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to

I

CHAIRMAN DEDDEH: And I

'd

to

for us.

f

JUDGE SCHWARTZ: I

to

us,

come

I are

I

's

1

s down and out

ki

offer, and you'll

and

some k of a

not to do it,

v t want out

the

j we've to rea

sent

want to

, I

, and without

As soc

know I'm

f at

discuss

CHAIRMAN DEDDEH: I

I te

JUDGE SCHWARTZ:

CHAIRMAN DEDDEH: Now we

JUDGE McDONALD: Senator

Court

CHAIRMAN DEDDEH: From Lou

to

JUDGE

I

First, not

He s

out some

I not

, I don t even

are areas

sence

testimony.

McDona

, Senator Torres, I'm

San Mateo

IS str , so I'l

us

s.

for S I

own court. 't

SENATOR TORRES: 're 1 disab ?

62

3 rece , I liaison

on f not slature.

We

rea m s I've

i arena,

8 , as re t, st

issues. So among s f execut

10 I've some re ates to se issues, and I'm

here mos to

I some comments. f one risk

is say or you what

1 said be , so I'm to use a lot of words

s little.

6 I wou d thi and slature to use

17 extreme caut There's a

18 to to the one risk of doing

9 to 99%. To comments

, for e create a

2 cases s t to the

22

If avai to a sea 1 or a meat

cleaver, p p sea 24

I so to 25

rea i t to an may not be an 26

abuse 27

28

63

I ze necess

4

is i or

7 to or to

8 an s

to j zat I and out

lO There was an

recent , stingly enough,

on 1

Per j z dis ili

14 ret terns.

In a I'm not to

16 ss

f were that - but

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II II II

II II \l

ll from the Const

!lconf li be

II fil of d

~Court ses from a Court q I! 11 Performance II

!l 11 The Judie Council real !i !I

\j And I'm not sure t tinker !I

is process,

into too care 1

If you have any st

CHAIRMAN DEDDEH:

of you be here

i! late bench. il !i

I am go to

64

ru

30 1

ion to Supreme

is , Guber versus The

1 no choice.

is within the ability

•t I've not real

, I'm to respond.

, I deeply appreciate

Superior Court and the

offer sincere and with great

easure of work Committee and our staff to give us

11 some recommendations as you see it from

ij own perspective

ii ,, [we could incorporate. We p :; II accept your of to make rl

I'll t

of s hearing of

after anybody. We're

not them, but at least I

to me.

I've said several times: The purpose

is not to i anybody, to

to correct. If is one percent

all of us to do it, and to do in true legis tive process,

not a circus- of legis ive process. I'm not after thati I

don t want that I'm not a to

I'm going to at word, and between now and

first week of January, we have about seven weeks. I may not

65

your te to of Just

f

on s

4 s Sacramento.

5 I 1 of us to we are

i we can on f the execut

so not cr s ture so

8 not 1, 1 me I s I

9 reverence what you do is,

our Const ion. I don't do it

s is not s to you

12 for I we owe 1 a of

I want to and our system

4 of of I've studied in

15 jud to st ing I've ever

6

7 I'm I m not a may a b s

18 I 't But I apprec appreciate

9 to state so 1 no

as 1 are

21 JUDGE McDONALD comments,

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i

24 a we can

26 McDonald.

f 1

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JUSTICE f s to

to 1 to us.

rea want to score is our

to s Committee

staff to

Of course, we re the

we can, we're a of our view

a 1 1 , and we're

to to can to

Also I want to s issue of disability

unconnected

11 if we a

in the we'd still be here today

the abuses of li , and that's probably the most

reason for saying we the ' Assoc ion, think they

are completely issues.

CHAIRMAN DEDDEH:

I ho bench

that s on

and

You 't

We had one

more, who

pros

j

integrity and hone

j

1

s· I

a

San D

Appe

But

, I come from San Diego.

Mun ipal and Superior and

Court as exceptional models of

we it to be

ss at all.

's not on

s was prosecuted

For s months,

was doing its

ent and knowledge, and

s months, 's all you read

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I'd so 1

roommate or

v

to c a 1

s

67

s 1

1e story about a judge

next to He's a

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to cons

He

e one

, and I sa to myself as I

he was

concerned

who has pas s 98

and running and

isn't

why there's no abuse

I'll c

CHAIRMAN DEDDEH: You

Cal Tax to have 1

She's to

leave at about 12:10 from

s.

MS. TAYLOR:

Good morning. I

I

68

out se stor s. He

He was

, breaking out a

that maybe I shou

And reason why I was a

that was Just Lester

and is a person who keeps

day. man is my

He's the best

the system that we have.

word. We

Taylor.

she knows I have to

, so she's got about four or

I 11 be brief.

to be here,

tor and Senator Torres. I don't to appear sort

sneak, not to have let rest of know that I

intended to here

I s to

Let me just say a few facts,

and some of the seem sl

s' Ret

CHAIRMAN DEDDEH: We're

points I'd 1 to make.

I'm hearing some

different to me from

For example

about disability.

MS

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3

1 fer

j

0

i

tern

cost is is the

1

s two

even

to 90% o

ze

ever so

It's

,

1

s. And I

f

are some

the

s

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ak s

that of the

them are

And

I wou

of

we

it is for the Munic

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the bench. A

to the bench, 99. %

I am

$62,000 start

sounds 1

to have s on

salary, or

a lot of money

7 my wife, who's a school teacher. But these people can earn

8 $150,000-200,000 a if real want to.

I can 1 from in college that the

10 itish system, the greatest honor that an attorney or a lawyer

looks for eventually is to be s Maje 's or Her Majesty's

2 judge. That's a great honor. And to a of people who

IJ

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are on bench, 's a honor, and it's a coveted job.

It's a beautiful jobi it's a prest

But we should not that with salary. I don't

we them ly as as they're entitled to; $62,000

a Municipal judge, starting salary, is peanuts really. They

make twice that much being lawyers.

I thought I'd 1 to that off chest, not because

judges are sitting here and make them feel good, but I th

ld be stated.

MS. TAYLOR: Sen , I'm not real addressing the

level. What I'm trying to say is, if we're talking about

one percent, or the bad apples, or whatever, we must

ize we're ta about a generous disability benefit

the one hand.

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On read,

some of the stat

Performance, 90-some

1 of di lity bene

ly rece

If

CHAIRMAN DEDDEH: ?

MS. TAYLOR: It s 91.6% if on it

s that I've

If you compare

i

s. I'm not sure

of your cons

s a

is,

in

I just

s state wi other

disabled

out to

For , out of retire as

li i , one out of ten s out on

out of

So,

t seems to me

seems to me

ly not

some j to try

CHAIRMAN DEDDEH:

a size j iary, Texas,

s go out on di

just don't

lity.

jive. In the State

1 two judges out on disabil

's j on di il

Cali

is some I mean, I

is a disincentive bui t

is perhaps some

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MS. Tl\YLOR: Yes.

CHAIRMAN DEDDEH: You 91%, 's

72

to

out percentages. And then you mentioned 48 judges that are

disability? That's 48 judges out of how many that are sitting

the bench right now?

MS. TAYLOR: I bel

is close to 1700.

the current number of si t.ting

CHAIRMAN DEDDEH: What would the percentage be?

MR. FELDERSTEIN: There's 1300.

CHAIRMAN DEDDEH: If there's 48 out of 1300, what would

percentage be?

MS. TAYLOR: Approximately 7%.

CHAIRMAN DEDDEH: No, no, it can't be, because 10% of

would be 130; 5% would be 65, so it's less than 5%: it's got

be. If my computer is working correctly, it's got to be under

Now, we go to Oregon and other states. You mentioned

or two judges out of how many?

MS. TAYLOR: Unfortunately, I do not have that.

Your point's well taken, but I'm just trying to pa a

picture.

CHAIRMAN DEDDEH: But we also ought to. be fair.

I'm not questioning the integrity of your presenta on,

I think that since you're making it, you ought to be fair in

because we can twist sties at one time,

we've also got to establish the fact that California has, if

can recall Justice Tony Kline's figures correctly, California

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73

I s

correct me s I

sor

MS. are not

,

CHAIRMAN

MS. TAYI,OR: Let me and up some of the

of -- I we

someone I d a

a j

CHAIRMAN DEDDEH: And we for 's

we're

MS. TAYLOR: have not del a 1

I

this

If

t

f

is to

j 't want

CHAIRMAN DEDDEH

MS. TAYLOR

of t

I

to

t ve

s

I

're in a

a of us

are at lls

't want

are dis

a

't want

I 't so.

Let me make a

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74

It seems to me, after having reviewed what I have

understood about the Judges' System, and what I've seen from

I Coates, Herfurth & England through PERS, that there are at least

lfour or five suggestions we would make to you about the Judges'

,jdisabili ty program.

I One would deal with the determination of disability.

lUnder the current system, the Commission on Judicial Performance

~~makes this determination.

11 Those of us who look at local government and the

ld. b'l' f 1 . h 1 1 1 1sa 1 1ty programs o ten comp a1n t at oca government uses the I !disability program as a personnel tool. Rather than deal with a

!!problem employee, they ship the individual out on disability. II J!

i/You know from your Chula Vista hearings what a sensitive point

H qthat was. !! :I

Is that not also the case here, where not that the :I li !!commission is the employer, but they have the assignment of 'I !bringing disciplinary actions against judges, an action that ,, II

j\obvi ously is a black mark on the bench. !I 'I :'! ll d

I think it's inappropriate that the tool, then, is

'!available to this same Commission to put the individual, instead

iof bringing a charge of disciplinary action, to bring or to agree :I 'I :

1

to a disability retirement. I think there's a conflict there.

1\ My proposal would be, or at least something to think

llabout, is a model that comes from, I believe, Oregon. There the II !!determination is a medical determination. There are three

!\doctors appointed by the Governor who review the applicant for 1! !/disability retirement and then recommend to the Governor.

I

;\ (i \I

II i\ li II ,,

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II II il II lj 1 s not tern,

~ets med evidence s

~~etermination. So, would be my first point.

75

at t it

Jl My second point deal with level of bene t.

J\rt 1 s a 65% disability benefit under the Judges' System. If you II l~tay as a judge 10 years, you get 65% through a regular

~service retirement, deferred retirement as it were. Only after i! I' 1!two years, though, of serving on II

~~his 65% benefit. That sounds 1 II

bench, you can already claim

an incentive to me, perhaps.

I' d It would be less of an incentive if the benefit were II " 'I

iJlower, if it were, for example, a 50% ·benefit. That's what a lot it

)~f states offer under the disabil programs, and there is li

lj ~~vidence, certainly for the higher paid employees such as the II li !!judges represent, that 50% of their income upon retirement --11 I! [1

1that' s at least the statistics from President's Commission on

i!

!!Retirement -- is sufficient to allow them to maintain their II !!standard of living. I ,I !I We would see out of this 50%, which we're recommending n jjto you, that there would be offsets either for Social Security II il \!that been public contributed to, or whatever other •I

i! !)fund. il

In , we say earn , outs

, would obvious also offset this amount due under the

24 isability program.

The third point I would make is, there ought to be some 25

26 sort of periodic medical review. Again, I'm looking at my

27 experience of other retirement systems. The Auditor General has

28

76

stated that under PERS, STRS and si Retirement

2 System, there is inadequate review once a disability award is

3 made. Persons are often able to return to work, and indeed,

4 medical review would allow these persons to go off of the

5 disability roll and back into active employment.

6 The fourth point I would make is the one that Judge

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Schwartz made, that there ought to be some sort of pre-screening

on judges. If you're going to be a civil service employee for

the State of California, you have to meet a medical standard.

The Highway Patrol, for example, which has had rising disability

costs, has instituted this same kind of test at least to try to

preempt the future disabilitant. I think it's in the interest of

the system and probably in the interest of the individual as

11.

I'm sure that's not all the points. Mr. Frankel raised

a lot of issues that got me thinking: Why did the Commission's

ruling on those six judges not hold up in court, or only held up

in one of the six cases? There must be something there further

you would need if you're really going to take on this issue

future legislation.

But, I would offer for your consideration certainly

four points that I have made.

Let me address one thing before you ask me the question

about whether or not SB 838 should be the vehicle.

I've been around Sacramento long enough to know that

group such as mine is able to have some leverage when a

fit bill comes along, then our reforms somehow never quite

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I II !I I!

I 1:

77

sents some sort of here t

SB 838.

't care is literal ,

SB 838, but I would suggest that you double jo

''· other

1

1SSUe,

11 that you would carry to address this disability

Thank you.

II !1 Again, to all of you here present, I owe you a deep !I II gratitude, and publicly I'd like to thank the Examiner for

ill b . . h . . ' 1 k . . h I r1ng1ng t lS to our attent1on. We re oo 1ng 1nto t at, not

CHAIRMAN DEDDEH: Very well done. Thank you very much.

II just because of that article, because this was in the mind of

I some of us a long time ago, but I'm glad the Examiner came forth

I brought it faster, probably, to our attention. And so to all

you, my personal debt of gratitude to Senator Torres for being

, to my sta

I Now I think 's that magic time for us to break, and II 11 thank you again.

II

These proceedings are adjourned.

I I' li ,I II I II " II

\I

(Thereupon this Interim Hearing of

the Senate Committee on Public Employment

and Retirement was adjourned at approx-

12:15 P.M.)

--ooOoo--

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il II !i li i " :! 'I I

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!l II II

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II I! n II II II

il ,, II II !,

il II I; 'I

ii II

78

I, EVELYN MIZAK, a State of

Cali ia, certi

I am a disinteres ; that.

on D 1 ts for

Retirement System, by Senate Employment and

Retirement Committee, was reported in shorthand by me, Evelyn

Mizak, and thereafter transcribed into typewriting.

I further certify that I am not of counsel or attorney

any of to said , nor any way interested

in the outcome of said hearing.

IN WITNESS WHEREOF, I have hereunto set my hand this

day of November, 1985.

~~ LYNIZAk Shorthand Reporter