The opinion
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
:
OPINION : No. 89-904
:
of : December 14, 1989
:
JOHN K. VAN DE KAMP :
Attorney General :
:
RODNEY O. LILYQUIST :
Deputy Attorney General :
:
THE HONORABLE WILLIAM E. DAVIS, DIRECTOR OF THE
ADMINISTRATIVE OFFICE OF THE COURTS FOR THE JUDICIAL COUNCIL OF
CALIFORNIA, has requested an opinion on the following question:
May a retired judge serving on a superior court by assignment of the Chief
Justice lawfully be paid a $250 to $350 per diem fee by the county for his or her services if
the judge waives acceptance of the compensation specified in Government Code section
68543.5?
CONCLUSION
A retired judge serving on a superior court by assignment of the Chief Justice
may not lawfully be paid a $250 to $350 per diem fee by the county for his or her services
even if the judge waives acceptance of the compensation specified in Government Code
section 68543.5.
1
ANALYSIS
Retired judges may be assigned by the Chief Justice of the Supreme Court to
sit upon any of the courts of the state. (See Stewart v. Bird (1979) 100 Cal App.3d 215, 217-
218; Western Sierra, Inc. v. Ramos (1979) 97 Cal.App.3d 482, 486; Estate of Zahn (1971)
16 Cal. App.3d 106, 116.) Section 6 of article VI of the Constitution provides in part:
“The Chief Justice shall seek to expedite judicial business and to
equalize the work of judges. The Chief Justice may provide for the assignment
of any judge to another court but only with the judge’s consent if the court is
of lower jurisdiction. A retired judge who consents may be assigned to any
court.”
The Legislature has provided for the compensation of retired judges who accept
temporary judicial assignments. (See Waite v. Waite (1972) 6 Cal.3d 461, 471; Stewart v.
Bird, supra, 100 Cal.App.3d 215, 218.) Government Code section 68543.51 states in part:
“Whenever a judge retired as such under the Judges’ Retirement Law
is assigned to sit in a court, he or she shall be compensated while so sitting at
a rate equal to 92 percent of the full compensation of a judge of the court to
which he or she is assigned. . . .
“If such compensation is greater than his or her retirement allowance,
his or her retirement allowance shall be suspended so long as he or she
receives such compensation. If such compensation is less than his or her
retirement allowance, his or her retirement allowance shall continue to be paid
while he or she receives such compensation but only in an amount equal to the
difference between such compensation and the retirement allowance to which
he or she would otherwise be entitled.
“If a judge retired under the Judges’ Retirement Law is assigned to sit
in a court, the 8-percent difference between the compensation of the retired
judge while so assigned and the compensation of a judge of the court to which
assigned shall be paid to the Judges’ Retirement Fund.
“When assigned to sit in a county other than that in which he or she
resides, he or she shall also be allowed his or her necessary expenses for travel,
board, and lodging incurred in the discharge of the assignment. Such expenses,
if any, shall be chargeable as follows:
1
All references hereafter to the Government Code are by section number only.
2
“(a) When the assignment is to the Supreme Court or a court of appeal,
to the state.
“(b) When the assignment is to a superior, municipal, or justice court,
to the county.
“When assigned to sit in the county in which he or she resides, he or she
shall be allowed his or her necessary and reasonable expenses for travel,
parking, and board incurred in the discharge of the assignment for and during
any period that he or she waives salary or other compensation except his or her
retirement allowance.
“Notwithstanding the above provisions pertaining to compensation, a
retired judge on senior judge status shall receive compensation from the state
as provided in Sections 75028 and 75028.2, and shall be allowed necessary
expenses for travel, board, and lodging incurred in the discharge of the
assignment as provided in this section.”
We are informed that several counties in California are experiencing difficulty
in providing a sufficient number of superior court judges to meet the needs placed upon their
courts. One possible solution would be for the Chief Justice to assign retired judges residing
within or outside the county to hear cases on a temporary basis. The counties are finding,
however, that the amount of compensation set by the Legislature in section 68543.5 is
insufficient to attract the number of retired judges necessary to serve. Accordingly, the
counties are contemplating the payment of a $250 to 350 “per diem fee” instead of the
amount specified in section 68543.5. Though called a “per diem fee” the $250 to $350 would
be compensation for services. It is not proposed or contended that the per diem fee would be
to reimburse the retired judges for “necessary and reasonable expenses for travel, parking,
and board incurred in the discharge of the assignment” under the terms of section 68543.5.
Under the proposal, the retired judges would waive acceptance of the statutory compensation
but keep their retirement allowances. The question presented for resolution is whether the
counties may provide the retired judges with the proposed compensation. We conclude that
they may not.
Section 19 of article VI of the Constitution states in part: “The Legislature shall
prescribe compensation for judges of courts of record.” In Sevier v. Riley (1926) 198 Cal.
170, the Supreme Court analyzed this constitutional provision in the form that it had when
originally added to the Constitution [“The compensation of the justices or judges of all courts
of record shall be fixed and the payment thereof prescribed by the legislature”]. The court
stated:
3
“There is no room for doubt as to the interpretation to be given to this
clause in said amendment to the constitution, since it makes manifest as clearly
and tersely as words could do the intent of the framers thereof that the entire
matter of the compensation of justices and judges of courts of record in this
state, both as to the amount thereof and as to the time and manner of payment
thereof, should be . . . reposed in the legislature.” (Id., at pp. 174-175.)
A number of other authorities support Sevier and the conclusion that the Legislature has total
control over the amount of compensation to be paid superior court judges, including retired
judges sitting by assignment. (See Pickens v. Johnson (1954) 42 Cal.2d 399,407; Crawford
v. Payne (1936) 12 Cal.App.2d 485, 487; Simpson v. Payne (1926) 79 Cal.App. 780, 785;
31 Ops.Cal.Atty.Gen. 29, 30 (1958); 12 Ops.Cal.Atty.Gen. 237, 237-238 (1948).)
Indeed, it has been repeatedly observed that the use of the word “prescribe” in
the Constitution means that the duty cannot be delegated to anyone else. (See People v.
Johnson (1892) 95 Cal. 471, 474-475; Zumwalt v. Superior Court (1989) 198 Cal.App.3d
833, 844; County of Madera v. Superior Court (1974) 39 Cal.App.3d 665, 669-670; 61
Ops.Cal.Atty.Gen. 388, 390 (1978); 58 Ops.Cal.Atty.Gen. 696, 698 (1975); 56
Ops.Cal.Atty.Gen. 315, 316 (1973).) As we said, for example, in 59 Ops.Cal.Atty.Gen. 496,
497 (1976):
“Because of the use of ‘prescribe’ the Legislature cannot delegate the
authority granted to it by Article VI, section 19 of the Constitution. Any
attempt to make such a delegation would be invalid.”
The Legislature has exercised its plenary authority over the amount of
compensation to be paid to superior court judges throughout the state. It is a uniform amount
(§ 68202) adjusted annually (§ 68203). While each county is directed to pay a portion of the
fixed amount (§ 68206), no county is given discretion to deviate from the specified formula.
In this context, then, we see that the compensation paid to retired judges is not
only fixed by the Legislature in section 68543.5 but is also uniform throughout the state. No
county is free to adopt its own compensation level for judges serving in the courts of record
in the county. Not only is statutory authority lacking (see People v. Langdon (1976) 54
Cal.App.3d 384, 390; County of Madera v. Superior Court, supra, 39 Cal.App.3d 665,
669-670; 70 Ops.Cal.Atty.Gen. 227, 230 (1987); 68 Ops.Cal.Atty.Gen. 173, 179 (1985)) but
whatever constitutional authority a county may have over “local” matters must give way to
the specific provisions of article VI of the Constitution regarding the compensation of judges
(see County of Madera v. Superior Court, supra, 39 Cal.App.3d 665, 669-670; Simpson v.
Payne, supra, 79 Cal.App. 780, 785-786; 63 Ops.Cal.Atty.Gen. 151,152 (1980).)2
2
Superior court judges are, of course, officers of the state. (Cal. Const., art. VI, §§ 1, 16; Olson v.
Cory (1980) 27 Cal. 3d 532, 543; Gould v. People (1976) 56 Cal. App. 3d 909, 921; 61 Ops. Cal. Atty. Gen.
4
Accordingly, while we agree that a retired judge may waive receipt of the
compensation specified in section 68543.5 (see City of Ukiah v. Fones (1966) 64 Cal.2d 104,
109-110; O’Sullivan v. City & County of S. F. (1956) 145 Cal.App.2d 415, 417-418; 68
Ops.Cal.Atty.Gen. 7, 10-11 (1985); 66 Ops.Cal.Atty.Gen. 176, 181 (1983); 60
Ops.Cal.Atty.Gen. 23, 24 (1945)), and previously have so concluded (40 Ops.Cal.Atty.Gen.
54 (1962)), such waiver would be irrelevant for purposes of article VI of the Constitution and
the statutes implementing its directive.
All the authorities relating to the present inquiry are in agreement. The
Constitution gives the Legislature complete control over the amount of compensation to be
paid superior court judges, including retired judges sitting by assignment of the Chief Justice.
While the amount specified in section 68543.5 may be waived in whole or in part by a retired
judge, counties have no authority to establish a different and greater amount of
compensation.3 Denominating the compensation as a “per diem fee” does not change the
character of the payments that would be made; they would still constitute compensation for
services rendered.
In answer to the question presented, therefore, we conclude that a retired judge
serving on a superior court by assignment of the Chief Justice may not lawfully be paid a
$250 to $350 per diem fee by the county for his or her services even if the judge waives
acceptance of the compensation specified in section 68543.5.
_______
388, 389 (1978); 58 Ops. Cal. Atty. Gen. 695, 697 (1975).
3
Based upon the amount of the retirement allowances for retired judges (§ 75076; see Cal. Const.,
art. VI, § 20) and the amount of compensation for sitting superior court judges (§§ 68202-68203), we note
that the $250 to $350 per diem fee proposed by the counties is significantly greater than the compensation
authorized by section 68543.5 for retired judges sitting by assignment. Although the payment of the proposed
amount may be cost-effective for a county, it is for the Legislature to so authorize.
5