Friday, October 18, 2019
Court of Appeal:
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has rejected a novel statutory interpretation advanced in support of the contention that two deceased judges were cheated out of the retirement benefits to which they were entitled.
The appeal was decided under the Judges Retirement Law, relating to jurists appointed or elected before Nov. 9, 1994. In an unpublished opinion, filed Wednesday, Acting Presiding Justice Richard D. Fybel noted that the “analyses and conclusions in this opinion have no bearing” on judges selected for office after that date, who come under the Judges Retirement Law II.
Appealing from the denial of a writ of administrative mandamus were the trustee for the estate of Betty Lou Lamoreaux—who served as a judge for 14 years and 13 days, first on Orange County’s Harbor Municipal Court, then on the county Superior Court—and the widow of Harry A. Ackley, who held the post of a Yolo Superior Court judge for a total of 14 years, 10 months, and 7 days.
Retirement at 65
Lamoreaux retired Sept. 30, 1989, at age 65. Under Government Code §75025(f), she would have been entitled to lifetime retirement benefits, set at 65 percent of the salary of a sitting judge, if she had, at that point, “an aggregate of 20 years of service as a judge within the 24 years immediately preceding the effective date of retirement.”
She didn’t. To have received the full 65 percent, she would have to have remained on the bench until Sept. 18, 1991.
The judge would then have come under §75025(f), “[a]ge 67, with an aggregate of 16 years of service as a judge within the 20 years immediately preceding the effective date of retirement.”
By retiring early, she was still entitled to benefits, under §75033.5, but deferred until Sept. 18, 1991, and at a lower percentage. Under a formula, the Judges Retirement System (“JRS”) set the amount at 52.6336 percent of a sitting judge’s salary.
Ackley retired at age 66 and received benefits based on 55.6969 percent of the current salary of a Superior Court judge.
Claims to JRS
Prior to Lamoreaux’s death on Nov. 30 of last year, Sally Cicerone, her conservator (the retired judge suffered from Alzheimer’s dementia) applied to the JSR for back pay, arguing that the “effective date of retirement” referred to in §75025 meant the date when payment of retirement benefits commenced. She asserted that JRS was derelict in not advising Lamoreaux that instead of opting for a deferred retirement under §75033.5, she could have chosen to be paid at the rate of 65 percent of a current judge’s salary, starting Sept. 18, 1991, under §75025.
Widow Gloria Ackley, in a separate claim, made a like contention.
JSR disagreed; so did Orange Superior Court Judge Glenn R. Salter, who on July 16, 2018 denied a writ sought by the conservator and the widow. In the Court of Appeal, Lamoreaux’s nephew, Duff McGrath, trustee of his aunt’s trust, was substituted for Cicerone as an appellant.
In the opinion affirming Salter’s judgment, Fybel said:
“The clear language of section 75025 defeats this argument. That statute provides, in relevant part: ‘Upon the effective date of the retirement of any judge, the judicial office from which he or she has retired shall become vacant, and a successor shall thereupon be appointed to fill the vacancy.’…If the effective date of the retirement was the date on which the judge began receiving retirement benefits, the judicial office would not become vacant until that date. In construing statutes, we must avoid absurd or unworkable results.”
“Further, the fact that section 75033.5 specifically addresses deferred retirement benefits prevents this court from reading into section 75025 a separate deferred retirement benefit provision.”
The case is McGrath v. The Judges Retirement System, G057354.
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