Oregon Advisory Opinions July 07, 1970: OAG 70-51 (July 7, 1970)

OAG 70-51.

Prior to enactment of Chapter 332 [1969] Oregon Laws 593, district judges were not eligible for participation in or benefits under the Judges' Retirement Fund, instead falling under the Public

Employes' Retirement Act, ORS Chapter 237.

Section 12 of Chapter 332 amended the law to provide sitting judges with an opportunity to participate in the Judges' Retirement Fund, effective as of any date the district judge might elect between the date he first took office and December 31, 1969. Section 13 provides for transfer of credits from the Public Employes' Retirement System to the Judges' Retirement Fund, for a district judge having made such election, with the judge making up any deficit in such credit if it does not equal the amount which would have been paid into it since the elected effective date. Section 14 provides that a district judge may elect to participate in the Judges' Retirement Fund prospectively, without credit for previous service, retaining or withdrawing previous contributions into the Public Employes' Retirement System.

A district judge who fails to make any election at all by December 31, 1969, loses his opportunity to participate in the Judges' Retirement Fund. (Sections 12, 13 and 14 of Chapter 332, having only one-time and temporary significance, have not been codified in ORS, but are set forth for convenience following ORS 1.385). Section 15, now ORS 1.385, provides that district judges taking office for the first time after June 3, 1969, automatically become subject to the judicial retirement provisions, without necessity of or opportunity for election.

The result is that a district judge in office at the effective date of Chapter 332 may by appropriate election have obtained credit under the judicial retirement act for any or all previous years of service in the district court. The first ques

tion is whether a circuit judge who had previous service as a district judge may also elect to obtain credit for his previous years of service as a district judge.

Section 12 and 13 of Chapter 332 [1969] Oregon Laws 593 both deal with the election made by a district judge in office as such at the effective date of the act. The act does not refer to or cover former district judges, or judges who have been district judges. The election to come within the judicial retirement plan is given only to district judges, and we find no basis for a judge of any other court to make any election. It is to be noted that prior to enactment of Chapter 332, a district judge who became a circuit judge automatically came within the provisions of the judicial retirement plan as of that date, without necessity for any election. We thus conclude that a circuit judge is given no opportunity to elect to receive credit, for judicial retirement purposes, for previous service as a district judge.

Although he may not affirmatively elect judicial retirement credit for such previous service, does he nevertheless automatically receive credit for it under the 1969 Act? We conclude that he does receive such credit for purposes of retirement due to age.

Section 3 of Chapter 322 amended ORS 1.314 to read:

"(1) Any judge may retire and receive the retirement pay provided in ORS 1.340 if such judge has attained an age and has served in such courts for an aggregate period as follows:

(a) 65 years of age and 16 years of service; or

(b) 70 years of age and either 12 years of service or two full six-year terms;

(c) And has contributed to the Judges' Retirement Fund in amounts required by then applicable law for such years of service.

"(2) Any judge shall be retired at the end of the calendar year in which he attains the age of 75 years, and, if he has served as judge in such courts for an aggregate period of 12 years or two full six-year terms, may receive the retirement pay provided in ORS 1.340."

By reason of other provisions of Chapter 322, the word "judge" in this statute includes district judges, and "such courts" includes district courts. ORS 1.314(1) requires that the judge, to qualify for retirement pay under ORS 1.340, be 65 years of age and have served for 16 years, or 70 and have served for 12 years, and have "contributed to the Judges' Retirement Fund in amounts required by then applicable law for such years of service." (emphasis added) ORS 1.314(1)(c). Thus a judge serving as district judge, which is qualifying service, for 8 years, paying into the Judges' Retirement Fund the amount then required by law, which was nothing, followed by 8 years of service (commencing prior to the effective date of the act) as circuit judge with appropriate contributions, will upon reaching age 65 have fully complied with all the requirements of ORS 1.314(1).

This conclusion is reinforced by comparison of ORS 1.318 with ORS 1.314(1). ORS 1.318, as amended by Chapter 322, which governs eligibility for retirement pay when a judge ceases to hold office before reaching retirement age, reads as follows:

"Any person who has served as a judge

The underlined language is to be contrasted with the quoted language of ORS 1.314(1)(c), which qualified the verb "contributed" by the phrase "amounts required by then applicable law." ORS 1.318(1), however, makes the requirement absolute by failing to qualify the verb "contributed" at all. If possible, effect should be given to every word, phrase, sentence and section of a statute, and it should be read in connection with all statutes relating to the same subject matter, in order to determine legislative intent. State v. Popiel , 216 Or. 140, 145, 337 P.2d 303, 305 (1959). In order to give effect to the qualifying phrase in ORS 1.314(1)(c), in our opinion it must be construed to limit the contribution requirement to years in which contribution was actually required by law.

It must be emphasized that this conclusion does not apply to district judges holding office as such at the effective date of the Act. Ch. 332, §§ 12, 13 and 14 [1969] Oregon Laws 600-601 manifest a clear legislative intent that the only way such a judge may obtain retirement credit for previous years of service for any purposes is by appropriate election and contribution. If these sections are apparently inconsistent with ORS 1.314, they must nevertheless be read with it in order to determine the true legislative intent. That intent is obvious, so ac

cordingly the conditions contained in Sections 12, 13 and 14 must be read into ORS 1.314. We note again that those sections do not apply to circuit judges with former service as district judges.

In fact, those sections and ORS 1.314, read together, can be harmonized so that there is no inconsistency. It is true that for a district judge no contributions were required prior to 1969 by "then applicable law." However, the law applicable in 1969 (Sections 12, 13 and 14) requires elections and contributions for all prior years for which credit is desired. By failing to make these contributions in 1969 a district judge is ineligible for credit under ORS 1.314.

To recapitulate, it is our opinion that a circuit judge with former service as a district judge is given no opportunity to elect to receive judicial retirement credit for such service as district judge. However, under ORS 1.314 he automatically receives credit for such former service as district judge for purposes of retirement at age 65 or 70. He does not receive credit under ORS 1.318 for such former service if he ceases to hold office prior to reaching retirement age.

* This opinion, republished October 7, 1970, is a modification of and is substituted for the original edition dated July 7, 1970.