The Judges' Retirement System appeals a judgment declaring provisions of Government Code sections 75033 and 75033.5
Effective January 1, 1974, the Legislature added section 75033.5 providing for early retirement. That section again affects judges accepting a federal judgeship by reducing their benefits by the amount of their salary as a federal judge.
With this brief exposition, we recite relevant background.
Alarcon was appointed to the superior court on July 1, 1964, where he served continuously until appointed to the Court of Appeal on June 8, 1978. He remained on the Court of Appeal until November 20, 1979, when he was appointed to the United States Court of Appeals, Ninth Circuit.
Alarcon married Lynn in 1968, separating in 1978. An interlocutory judgment of dissolution was entered May 21, 1979, and a final judgment of dissolution was entered July 2, 1979. The interlocutory judgment reserved jurisdiction to determine the interest of the marital community in benefits under the Judges' Retirement Law and how those benefits should be distributed between Alarcon and Lynn. The Judges' Retirement System participated as a party in the subsequent trial of this issue.
The court denied Alarcon's motion to withdraw his contributions to the retirement fund and Lynn's request for valuation and payment of her interest in the pension benefits. The court then concluded divestment under section 75033 and diminishment under section 75033.5 of pension benefits were unconstitutional in their application to Alarcon. The court ordered the Judges' Retirement System to treat Alarcon as any other judge without regard to his federal appointment and to pay benefits under section 75033.5 without reduction by reason of his federal salary, Lynn to receive her community property interest in the retirement allowance upon Alarcon attaining age 63.
Effective July 1, 1979 (§ 75005), the Board of Administration of the Public Employees' Retirement System administered and governed the Judges' Retirement Law. The state Controller as used in that law means the Board of Administration with two exceptions not here relevant.
When Alarcon became a superior court judge, section 75033 then provided retirement allowance rights to judges whose services were discontinued by means other than death, resignation, recall, impeachment or retirement.
Olson v. Cory I considered the effect of 1976 legislation capping to a maximum of 5 percent, the automatic cost of living increases in judges' salaries which had been effective since 1969. The court held judges had a vested right to salary and cost of living increases as effective upon their commencement of service as a judge by appointment or election which could not be impaired or reduced during the term to which appointed or elected, a "protected term" of office. The court also held a judge who completes a protected term during which he was entitled to salary and cost of living increases as then in effect and elects to enter a new term has impliedly agreed to be bound by salary benefits then offered by the state for the new term (the "unprotected term").
The argument of the Judges' Retirement System on applicability of Olson v. Cory I equates pensions with salaries, a clear case of mistaken identity. The contract for a salary provides for payments during a particular term of office. Judges are employed for specific terms.
A pension, however, is different from a salary. A right to pension benefits provided by the state payable upon fulfillment of age, service and other requirements may not be destroyed, once vested, without impairment of the state's contractual obligation. (Betts v. Board of Administration (1978) 21 Cal.3d 859, 863 [148 Cal.Rptr. 158, 582 P.2d 614]; In re Marriage of Brown (1976) 15 Cal.3d 838, 845 [126 Cal.Rptr. 633, 544 P.2d 561, 94 A.L.R.3d 164]; Dryden v. Board of Pension Commrs. (1972) 6 Cal.2d 575, 579 [59 P.2d 104]; Kern v. City of Long Beach (1947) 29 Cal.2d 848, 855
Alarcon's appointment in 1978 to the Court of Appeal did not affect his vested right to the deferred retirement allowance. Olson v. Cory I holds a judge entering upon the unexpired term of a predecessor judge may not claim salary benefits accruing to his predecessor. While Alarcon was not thus sheltered in his appointment to the unexpired term of his predecessor as to salary, it does not follow that his vested right to the deferred retirement allowance suffered a like fate. Pension rights inure in the person, not in the office. Alarcon transferred to a different court within the same retirement system. The coach ticket punched in the 1964 appointment to the superior court continued to be good for passage in the parlor car of the Court of Appeal. His retirement destination was the same.
In coming to this conclusion, we have considered the January 1, 1974, amendment to section 75033 making it inapplicable "to any person who becomes a judge after that date." Section 75002 defines "judge" as meaning "a justice of the Supreme Court or of a court of appeal, or a judge of a superior court or municipal court." While Alarcon's appointment to the Court of Appeal constituted the commencement of a new term as to him (Olson v. Cory I, supra, at p. 546) in and as to which the January 1, 1974, amendment would be arguably applicable, such applicability would destroy his right to the deferred retirement allowance which was vested before the amendment's effective date.
Alarcon is entitled to elect the options available to him under section 75033 as of the date, November 20, 1979, he assumed the federal bench. The March 7, 1973, federal divestment amendment to section 75033 does not apply to him.
SECTION 75033.5 — REDUCTION IN BENEFITS
We now determine Alarcon's entitlement to benefits under section 75033.5, effective January 1, 1974, providing for early retirement and deferred payment of benefits to judges so retired. Alarcon became entitled to eligibility for these early retirement benefits by reason of his service in his new superior court term commencing January 3, 1973, before the effective date of section 75033.5.
As part of its continuing responsibility, the Legislature has had fiscal concerns with the self-sufficiency of the retirement fund. (Stats. 1978, ch. 384, §§ 3-5, p. 1230.) From its inception, the Judges' Retirement Law, while providing for retirement allowances, has included provisions reducing such allowances upon the happening of various events.
A retired judge appointed by the Supreme Court or Court of Appeal to act as a master or referee can be paid in addition to his retirement allowance the difference between his retirement allowance and the compensation of a judge of the court from which he retired. (§ 75083.) A retired judge assigned to sit in a court is compensated at a rate equal to 92 percent of the compensation of a judge of the court to which he is assigned. If that compensation is greater than his retirement allowance, the retirement allowance is suspended so long as he receives the compensation. If it be less, then the retirement allowance is continued to be paid but only in an amount equal to the difference between the compensation he receives and the retirement allowance to which he is otherwise entitled. (§ 68543.5.)
Contrary to Alarcon's contentions, the Judges' Retirement Law diminishes retirement allowances by the amount of compensation received from other employment in various circumstances.
Nothing in the record is suggestive these classifications do not bear a rational relation to a constitutionally permissible objective, the providing of
ELECTION OF BENEFITS
The court denied Alarcon's motion to withdraw contributions to the Judges' Retirement Fund and Lynn's request she be awarded the actuarial value of her community interest in Alarcon's retirement benefits. The court ordered Alarcon to elect a section 75033.5 retirement and directed the Judges' Retirement System to allow such retirement and to accord Alarcon retirement benefits without regard to his service on the federal bench, i.e., upon attainment of age 63, to pay Lynn her community interest (33.815 percent) in the retirement allowance as paid from time to time by the system and the balance to Alarcon. Neither Lynn nor Alarcon appealed the judgment.
On the issues raised by the Judges' Retirement System in its appeal, we have concluded Alarcon is eligible for a section 75033 retirement and, though eligible under section 75033.5, his retirement allowance would be reduced to zero by reason of his federal salary.
This argument was advanced by Lynn in the trial court in her request for valuation and payment of her community interest in Alarcon's retirement benefits. The court rejected the argument and denied her request. She did not appeal the judgment. Nevertheless, as we remand for further proceedings, we consider her reimbursement contentions.
While Alarcon's federal appointment affected the parties' community right to receive retirement benefits from the retirement fund, his election did not defeat the community interest in pension benefits. (In re Marriage of Brown, supra, 15 Cal.3d at pp. 849-850.) That interest as with other community property intangibles is susceptible to valuation despite difficulties in appraisal.
In concluding the community interest in section 75033.5 retirement benefits is not defeated by Alarcon's federal appointment, we do not commit the court on remand to a valuation and division of that interest with possible reimbursement required of Alarcon. The court will consider options available to Alarcon under the Judges' Retirement Law and community property interests in those options such as withdrawal of contributions and retirement election under both sections with resultant consequences to the parties to include the uncertainties of maturation of the benefits, actuarial valuations of the right to future income, division of the payments upon maturation and retention of jurisdiction to effectuate a future disposition. "We believe that in cases of this kind the matter of the proper division of rights to termination benefits as marital property should be left to the sound discretion of the trial court, exercised in light of the particular circumstances of the case. We anticipate that in many instances the parties, seeking to achieve a final determination at the time of dissolution, may be able to reach some reasonable
The judgment is affirmed in part and reversed in part. The cause is remanded to the superior court for further proceedings consistent with this opinion. Each party shall bear their own costs of appeal.
Staniforth, Acting P.J., and Wiener, J., concurred.
The reduction in retirement allowances measured by federal salary payable to a judge eligible for early retirement benefits does not create a "suspect classification" such as race (San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 951 [92 Cal.Rptr. 309, 479 P.2d 669]), sex (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1 [95 Cal.Rptr. 329, 485 P.2d 529]), lineage or national origin (Sei Fujii v. State of California (1952) 38 Cal.2d 718, 730 [242 P.2d 617], and poverty (In re Antazo (1970) 3 Cal.3d 100 [89 Cal.Rptr. 255, 473 P.2d 999].)
While employment coupled with a suspect classification has been said to be a protectable fundamental interest (Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 16; Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566 [79 Cal.Rptr. 77, 456 P.2d 645, 38 A.L.R.3d 1194]), the reduction here in the retirement allowance is not so coupled and does not touch a fundamental interest such as the constitutional right to marry (Loving v. Virginia (1967) 388 U.S. 1 [18 L.Ed.2d 1010, 87 S.Ct. 1817]), to travel from one state to another (United States v. Guest (1966) 383 U.S. 745, 757-758 [16 L.Ed.2d 239, 248-249, 86 S.Ct. 1170]), to privacy (Griswold v. Connecticut (1965) 381 U.S. 479 [14 L.Ed.2d 510, 85 S.Ct. 1678]), to be eligible for welfare without a one-year residency (Shapiro v. Thompson (1968) 394 U.S. 618, 631 [22 L.Ed.2d 600, 613, 89 S.Ct. 1322]), to vote (Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663 [16 L.Ed.2d 169, 86 S.Ct. 1079]) and to procreate children (Skinner v. Oklahoma (1942) 316 U.S. 535, 541 [86 L.Ed. 1655, 1660, 62 S.Ct. 1110].)
We need not determine on this appeal whether the cut off of benefits to Lynn upon the fulfillment of these conditions is a taking of her community property interest without due process of law. As neither Lynn nor Alarcon appealed that decision, the issue is not before us. We note survival is a proper condition for payment of benefits. It will not defeat the community's otherwise vested right to retirement funds; it is simply a factor considered by the court in valuing future benefits. (See In re Marriage of Brown, supra, 15 Cal.3d at pp. 846-847; In re Marriage of Skaden, supra, 19 Cal.3d at pp. 687-688.) In ordering Alarcon's retirement under section 75033.5 and payment to Lynn of her share of the allowance, the court considered survival as one of the factors affecting its decision and will do so again on remand.