CHAPTER 198

AN ACT TO AMEND CHAPTER 56, TITLE 29, DELAWARE CODE, TO PROVIDE INCREASED PENSIONS FOR JUDGES AND TO PROVIDE FOR ACTIVE DUTY ASSIGNMENT OF RETIRED JUDGES.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. § 5602 (a), title 29, Delaware Code, is amended by striking said subsection and substituting therefor the following:

(a) The State Judiciary Retirement Fund shall be established and maintained by the Trustees. The State Treasurer shall act as the Trustees' agent in the care of the assets of the Fund. Each member of the State Judiciary who elects to accept the provisions of this chapter shall contribute each year for the first 25 years of service but not thereafter the lesser of $500 or 5% of total compensation to the Fund. Such contributions shall be prorated on a monthly basis.

Section 2. § 5603, title 29, Delaware Code, is amended by striking subsection (b) , (d) and (e) of said section and substituting therefor the following:

(b) Each member of the State Judiciary who shall accept the provisions of this chapter shall, upon his retirement from the State Judiciary, whether voluntary or involuntary, after serving at least 24 years as a Judge, or after having reached the age of 65 years and having served at least 12 years as a Judge, receive an annual pension from the State, payable to him in equal monthly installments, commencing upon the date of retirement and continuing during the remainder of his lifetime.

(d) Whenever any member of the State Judiciary shall die while in office or shall die after retirement on a pension payable under the provisions of this chapter or shall die during a period of involuntary retirement after having served at least 12 years as a Judge but before having reached the age of 65, an annual pension shall be paid in the following contingencies :

1. If such Judge is survived by a widow but not by a de-

pendent child, there shall be paid to such widow an annual pension as long as she lives and remains unmarried ; or

2. If such Judge is survived by a widow and a dependent child or children, there shall be paid to such widow an annual pension as long as she lives and remains unmarried, but if the widow should die or remarry before the last of the said dependent children becomes independent as provided in this section or died, whichever first occurs, the said annual pension which would have been payable to the widow but for her death or remarriage, shall be divided into as many shares as there are dependent children then surviving and a said share shall be paid to or on behalf of each child annually until the said child becomes independent or dies, whichever first occurs; or

3. If such Judge leaves no surviving widow but leaves a surviving dependent child or children, the annual pension which would otherwise be paid to a surviving widow shall be divided into as many shares as there are dependent children then surviving and a said share shall be paid to or on behalf of each child annually until the said child becomes independent or dies, whichever first occurs.

As used in this section, the term "dependent child" means an unmarried child, including stepchild or an adopted child, who is under the age of eighteen years.

(e) For the purpose or computing service under this chapter, a Judge shall be deemed to commence serving as a Judge on the date his commission is issued by the Governor.

Section 3. § 5604, title 29, Delaware Code, is amended by striking subsection (a) and (b) of said section thereof and substituting therefor the following subsection :

(a) The amount of the annual pension shall be determined by first arriving at the retiring member's average annual compensation during his highest paid five consecutive years for his services as a Judge, or in the event a Judge becomes entitled to a pension prior to having served five consecutive years as a Judge then the average annual compensation during his entire term for his services as a Judge and multiplying the average annual compensation so computed by 3% and then multiplying the product

thus obtained by the total number of years of service as a Judge (including fraction of years), including all years of service of the retiring Judge both prior and subsequent to his becoming a member of the State Judiciary and both prior and subsequent to his filing a declaration of acceptance of the provisions of this chapter in accordance with Section 5606 of this title. For the purpose of determining the benefits provided under subsection (f) of Section 5603 of title 29, the retiring Judge shall be deemed to have served from the date of his original appointment until the date when he is no longer required to contribute under Section 5603 (f) of title 29. Anything to the contrary in this subsection notwithstanding, the maximum pension which a retired Judge shall receive is three quarters of the average annual compensation during the retired Judge's highest paid five consecutive years. Anything to the contrary in this subsection notwithstanding, the minimum pension which a retired Judge shall receive is one-half of the retired Judge's average annual compensation during his highest paid five consecutive years, or, in the event a Judge retires before he has served five consecutive years as a Judge, then one-half the average annual compensation during such retired Judge's entire term of service.

(b) The amount of the annual pension paid to any widow or dependent children of a deceased member of the State Judiciary shall be an amount equal to two-thirds of the annual pension such member of the State Judiciary, if he dies while in office, would have been entitled to receive if he had retired for disability on the day of his death, or shall be an amount equal to two-thirds of the pension of the deceased member of the State Judiciary if he died after having retired on pension. The amount of an annual pension paid to any widow or dependent children of a deceased member of the State Judiciary who shall die during a period of involuntary retirement after having served at least 12 years as a Judge but before having reached the age 65, shall be an amount equal to two-thirds of the annual pension such member of the State Judiciary would have been entitled to receive if he had lived to the age of 65. Such pensions shall be paid in equal monthly installments.

Section 4. Chapter 56, title 29, Delaware Code, is amended by adding theretu a new § 5611 to read as follows :

§ 5611. Assignment of retired Judges to active duty

(a) Any Judge retired from a statutorily created Court and receiving a judicial pension may be designated by the Chief Justice of Supreme Court to perform such judicial duties in any Court where such retired Judge could serve if he still held the judicial position from which he retired ; provided, however, that such retired Judge assents to such designation, and provided further that such retired Judge is not actively engaged in the practice of law.

(b) Any retired Judge accepting an active duty designation pursuant to a Constitutional or statutory authorization shall be compensated on a per diem basis of one hundred dollars per day, but in no event shall the total compensation received on a per diem basis when added to his retired pay exceed the then current annual salary of the judicial position from which such Judge has retired.

Section 5. The provisions of this Act notwithstanding, any active or retired Judge may by an election made in writing to the Board of State Judiciary Pension Trustees elect to stay within the provisions of 50 Delaware Laws, Chapter 119, as amended prior to this Act. If such election is not made within 90 days following thb passage of this Act, such Judge, active or retired, shall be considered to have elected to come under the provisions of this Act.

Section 6. If any part of this Act shall be held unconstitutional, such holding shall not in anywise invalidate the remaining provisions of this Act.

Approved December 29, 1967.