Opinion No. 75-145 (1975) Ag ( 1975 )

COURT ON THE JUDICIARY — POWER The Court on the Judiciary has the power to entertain proceedings on a petition directed against a retired judge. Since a retired judge is still a part of the judicial system in that he may be assigned judicial duties, he may be removed from the system and the sanction that he be disqualified from holding an office of honor, trust or profit in the future may be imposed in the judgment of the Court. The Court on the Judiciary may not entertain proceedings against a former judge who is not a retirant. The Attorney General is in receipt of your request for an opinion wherein you ask the following question: "Does the Court on the Judiciary have the power to entertain any proceedings on a petition directed against: (a) a former judge; or (b) a retired judge?" It is clear that the Court on the Judiciary may entertain proceedings against a retired judicial officer. A judge's eligibility as a retirant contemplates that he or she is available for assignment to judicial duties and it follows that he or she possesses the authority to act as a judicial officer if assigned. Title 20 Ohio St. 1107 [20-1107] (1971) provides: "Notwithstanding anything to the contrary as set forth in Senate Bill No. 494, of the Second Session of the Thirty-first Oklahoma Legislature, Justices or Judges holding a supernumerary status, prior to the enactment of said Senate Bill No. 494, may, upon written application to the Court Administrator, be assigned judicial duties by the Supreme Court. "Any Judge or Justice retired under the provisions of said Senate Bill No. 494 may, upon written application to the Court Administrator, be assigned judicial duties by the Supreme Court. Provided, such application for assignment or the actual assignment for judicial duty shall not constitute the creation of a public office under the provisions of this Act." Article VII, Section 11 provides in pertinent part: "(c) . . . Any retired justice or judge may, in the discretion of the Supreme Court, be assigned to judicial service. . . ." Since a retirant is in the position to act as a judicial officer and perform judicial duties there is no question that the Court on the Judiciary may entertain proceedings directed against a retired judge should he or she run afoul of constitutional provisions and statutes relating to removal of judicial officers. Article VIIA, Section 4 of the Oklahoma Constitution provides in pertinent part: "(d) Pending the determination of the proceedings, the trial division in its discretion may suspend the respondent from the exercise of his office. After full hearing, the trial division shall render such judgment as the facts may justify. No judgment shall extend further than: (1) to removal of the respondent from office, with or without disqualification to hold any public office of honor, trust, or profit under this State, or (2) to compulsory retirement from office. . . ." (Emphasis added) A retired judicial officer, still being a part of the system, is subject to "removal" by judgment of the Court on the Judiciary. Upon entering a judgment to remove a judicial officer, the Court may extend its judgment to provide that the officer shall be disqualified from holding any public office of honor, trust, or profit in the future. Under the above rationale, the Court on the Judiciary may not entertain proceedings against a former judge who is not a retirant. Since the sanction of "disqualification to hold any public office of honor, trust or profit under this State" is inexorably tied to a judgment of removal, one not subject to removal is not subject to the sanction. This conclusion is inescapable from a plain reading of Section 4(d) above. It is, therefore, the opinion of the Attorney General that your questions be answered as follows: The Court on the Judiciary has the power to entertain proceedings on a petition directed against a retired judge. Since a retired judge is still a part of the judicial system in that he may be assigned judicial duties, he may be removed from the system and the sanction that he be disqualified from holding an office of honor, trust or profit in the future may be imposed in the judgment of the Court. The Court on the Judiciary may not entertain proceedings against a former judge who is not a retirant. (Michael Cauthron)