CHAPTER 415

FORMERLY

HOUSE BILL NO. 1066

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 56, TITLE 29, DELAWARE CODE, RELATING TO THE STATE JUDICIARY PENSION PLAN.

WHEREAS, it is the intent of this legislation to establish a revised judicial pension plan which reflects the design of the State Employees' Pension Plan, while recognizing the special nature of judicial employment such as:

a. the need to recruit capable and experienced legal talent from the practicing bar; and

b. the higher average entry age and retirement age; and

c. the specific term of office undertaken in mid-career; and

WHEREAS, it is the further intent of this legislation to provide sitting judges with the right to elect continued participation in the current plan or participation in the revised plan; and

WHEREAS, it is the further intent of this legislation to fund the State Judicial Pension Plan on an actuarial basis beginning in fiscal year 1980.

NOW, THEREFORE:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OP DELAWARE:

Section 1. Chapter 56, Title 29, Delaware Code is amended by adding a new Section 5600 which shall read as follows:

"§5600. Definitions

As used in this chapter:

(a) "Member" shall mean an individual who accepts the provisions of this Chapter while a member of the State Judiciary.

(b) "State Judiciary" means the judges mentioned in Article IV, S2, of the Constitution of Delaware, and any other judge of a court of records who:

I. Is appointed by the Governor and confirmed by the Senate for a term of 12 years; and

2. Receives his entire remuneration as judge in the form of a salary paid by the State; and

3. Is by law during this tenure of office either prohibited from practicing law, or else prohibited from engaging in any other gainful occupation.

(c) "Final average compensation" shall mean the member's average annual compensation during his or her highest paid 5 consecutive years for service as a judge, or the average annual compensation during the period of his or her service as a judge if such period is less than 5 years.

(d) "Board" shall mean the Board of Pension Trustees established by Section 8308 of Chapter 83, Title 29, Delaware Code.

(e) The clause "for which he or she is eligible under the Federal Social Security Act" shall mean the old age insurance benefit or the disability insurance benefit for which an individual is or will be eligible by virtue of age and his or her wage credits under the Federal Social Security Act, based on his or her final average compensation and the provisions of the Federal Social Security Act in effect when the individual ceased to be a judge and computed in accordance with rules and regulations approved by the Board, regardless of any other factors such as, without limitation, whether the judge has made application for Social Security benefits or is subsequently employed.

(f) The "closed plan" shall mean the eligibility and benefit pensions of this Chapter in effect on June 30, 1980."

Section 2. Subsection 5601 (a), Chapter 56, Title 29, Delaware Code is amended by striking said subsection (a) in its entirety and inserting in lieu thereof a new subsection (a) which shall read as follows:

"(a) The State Judiciary Retirement Fund shall be established and maintained by the Board. The State Treasurer shall act as the Board's agent in care of the assets of the Fund. Each member who elects or who has elected the provisions of this Chapter; and

(i) who was first appointed to the State judiciary prior to July 1, 1980 and -is a member covered by the closed plan, shall contribute $500 to the Fund each year for the first 25 years of service; or

(ii) who is a member covered by the revised plan, shall contribute to the Fund each year for the first 24 years of service an amount equal to 3% of his or her total compensation in excess of $6,000 up to the Social Security wage base, and 5% of total compensation in excess of the Social Security wage base. Such contributions shall be prorated on a monthly basis."

Section 3. Section 5601, Chapter 56, Title 29, Delaware Code is amended by adding a new subsection (c) which shall read as follows:

"(e) The benefit provisions of this chapter shall be divided into two plans, the closed plan and the revised plan. Members of the State judiciary first appointed before July 1, 1980 who do not elect, as provided in Section 5605, to accept the provisions of the revised plan shall be members covered by the closed plan even through reappointments to the State judiciary. All other members of the State judiciary who accept the provisions of this Chapter, as provided in Section 5605 of this Chapter, shall be members covered by the revised plan."

Section 4. Chapter 56, Title 29, Delaware Code is amended by adding a new Section 5612 which shall read as follows:

"§5612. Revised plan; eligibility

(a) A member covered by the revised plan shall become eligible to receive a pension who has:

(1) Completed 12 years of service as a judge, and has attained age 62, or

(2) Completed 24 years of service as a judge.

(b) A member covered by the revised plan who has completed 12 years of service as a judge shall have a vested right to a pension. Such right shall be forfeited upon his or her application for a refund of his or her accumulated contributions."

Section 5. Chapter 56, Title 29, Delaware Code is amended by adding a new Section 5613 which shall read as follows:

"§5613. Revised plan; pension amount

Subject to the provisions of subsection (b) of this section:

(a) The amount of the annual pension or disability pension payable to a member under the revised plan shall be the sum of: 1/24 of final average compensation multiplied by years of service as a judge up to 12 years inclusive, plus 1/48 of final average compensation multiplied by years of service as a judge from 13 to 24 years inclusive; such sum to be reduced by: 1/24 of the old age insurance benefit for which he or she is eligible under the Federal Social Security Act at age 62, or the disability insurance benefit for which he or she is eligible, multiplied by years of service as a judge not to exceed 24 years. Disability pensions will be computed on the basis of actual service as a judge or 12 years of service as a judge, whichever is greater.

(b) For a member first appointed before July 1, 1980 who accepts the provisions of the revised plan, as provided in Section 5605, the pension payable under the revised plan shall be the greater of the pension computed in accordance with subsection (a) of this Section or 3% of final average compensation multiplied by years of service as a judge subject to a minimum pension of 50% of final average compensation and a maximum of 75% of final average compensation."

Section 6. Chapter 56, Title 29, Delaware Code is amended by adding a new Section 5614 which shall read as follows:

"§5614. Survivor's pension

(a) Upon the death during service of a member covered by the revised plan, a monthly survivor's pension shall be payable to his or her eligible survivor or survivors equal to one-half of the pension for which the judge would have been eligible if he or she had been 62 years of age, and computed on the basis of actual service to the date of death or 12 years, whichever is greater.

(b) Upon the death of a member covered by the revised plan and receiving a service or disability pension at the time of his or her death, a monthly survivor's pension shall be payable to his or her eligible survivor or survivors equal to one-half of such service or disability pension.

(c) For the purpose of this section, the priority of eligible survivors of a member covered by the revised plan shall be as follows, provided that a member may change the priority of eligible survivors specified herein by designating his or her priority of eligible survivors on a form prescribed by the Board at the time of the member's death:

(1) the widow or widower, provided such person had been married to the deceased member for at least one year before the date of death, or

(2) if there is no eligible widow or eligible widower, a child (or with the survivor's pension divided among them in equal shares, all such children if there are more than one), provided the child is unmarried and either:

(i) has not attained age 18,

(ii) has attained age 18 but not age 22 and is attending school on a full-time basis, or

(iii) has attained age 18 and is permanently disabled as the result of a disability which began before he attained age 18, or

(3) if there is no eligible widow, eligible widower, or eligible child, a dependent parent (or, with the survivor's pension divided between them in equal shares, both such parents if there are two.).

(d) The amount payable to a widow or widower who has not attained age fifty at the time the survivor's pension begins shall be actuarially reduced, in accordance with actuarial tables approved by the Board, for each month the survivor is under age fifty at such time, provided, however, that the actuarial reduction for any such widow or widower shall not apply for the period during which such widow or widower has in his or her care a son or daughter who is unmarried and either: (1) has not attained age eighteen, (ii) has attained age eighteen but not age twenty-two and is attending school on a full-time basis, or (iii) has attained age eighteen and is permanently disabled as the result of a disability which began before he attained age eighteen.

(e) A parent shall be deemed to have been dependent on the deceased member, if such individual was receiving at least one-half of his or her support from the deceased member at the time of death.

(f) A survivor's pension shall begin with the month following the month in which the member dies. If payable to a widow, widower or parent, it shall cease with the month in which the survivor dies. If payable to a child, it shall cease with the month in which the child dies or fails to meet the conditions of eligibility in paragraph (e) (3)."

Section 7. Subsection 5602 (a), Chapter 56, Title 29, Delaware Code is amended by striking said subsection in its entirety and inserting in lieu thereof a new subsection (a) which shall read as follows:

"(a) Each member covered by the closed plan shall, upon his involuntary retirement from the State judiciary after serving at least 12 years as a judge, Including all years of judicial service in Delaware 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 §5605 of this title, receive an annual pension from the State, payable to him in equal monthly installments, commencing when he has attained the age of 65 years, or commencing upon involuntary retirement in ease he has reached the age of 65 years prior to such retirement, and continuing during the remainder of his lifetime."

Section 8. Subsection 5602(b), Chapter 56, Title 29, Delaware Code is amended by striking the clause "Each member of the state judiciary who shall accept the provisions of this chapter" and inserting in lieu thereof a new clause which shall read as follows:

"Each member covered by the closed plan"

Section 9. Subsection 5602(d), Chapter 56, Title 29, Delaware Code is amended by striking the clause "(d) Whenever any member of the State judiciary" and inserting in lieu thereof a new clause which shall read as follows:

"(d) Whenever a member covered by the closed plan"

Section 10. Subsection 5602(f), Chapter 56, Title 29, Delaware Code is amended by striking said subsection in its entirety and inserting in lieu thereof a new subsection (f) which shall read as follows:

"(f) Notwithstanding the provisions of section 5607 of this title or any other provisions of this chapter, if a member of the State judiciary covered by the closed plan has served at least one 12 year term and before reaching age 65 either voluntarily retires or resigns and accepts an appointment to the Federal judiciary, he may elect, within 90 days after such retirement or such resignation and acceptance, in a writing filed with the Secretary of State, to designate his wife as the person who shall receive the benefits provided under this chapter. Said member shall, until the expiration of 24 years from the date he first became a member of the State judiciary or until his death, whichever is sooner, be required to pay monthly to the Fund the amount said member would have been required to pay as a covered member of the State judiciary in the position then held. An election shall constitute a waiver of any right to a refund of contributions. Upon the death of a member of the State judiciary electing benefits under this subsection, the surviving widow shall be entitled to receive an annual pension as long as she lives and remains unmarried, and the amount of such pension shall be the same as a pension paid to a widow of a deceased member of the State judiciary who died after having retired on pension."

Section 11. Section 5603, Chapter 56, Title 29, Delaware Code is amended by adding a new clause at the beginning of the section which shall read as follows:

"For members covered by the closed plan:"

Section 12. Subsection 5605(a), Chapter 56, Title 29, Delaware Code is amended by adding a new sentence at the end of said subsection which shall read as follows:

"A declaration of acceptance by a member first appointed on or after July 1, 1980, shall cover such member under the revised plan."

Section 13. Subsection 5605(b), Chapter 56, Title 29, Delaware Code is amended by relettering the existing subsection (b) to subsection (c) and adding a new subsection (b) which shall read as follows:

"(b) A member first appointed before July 1, 1980 may elect to be covered by the provisions of the revised plan by filing a declaration of acceptance in the office of the Secretary of State before July I, 1981 and shall be covered by the revised plan effective July 1, 1981."

Section 14. Section 5605, Chapter 56, Title 29, Delaware Code is amended by adding a new subsection (d) which shall read as follows:

"(d) Any declaration filed pursuant to the provisions of this section shall be irrevocable."

Section 15. Section 5606, Chapter 56, Title 29, Delaware Code is amended by striking said section in its entirety and inserting in lieu thereof a new section which shall read as follows:

"§5606. Application for Benefits

(a) A service pension, disability pension, survivor's pension, death benefit, or withdrawal benefit shall be paid only upon the filing of an application in a form prescribed by the Board. A monthly benefit shall not be payable for any month earlier than the second month preceding the date on which the application for such benefit is filed.

(b) The Board may require any member or eligible survivor to furnish such information as may be required for the determination of benefits under this chapter, or to authorize the Board to procure such information including, but not limited to, information regarding benefits pursuant to the Federal Social Security Act. The Board may withhold payment of any pension under this chapter whenever the determination of such pension is dependent upon such information and the member or eligible survivor does not cooperate in the furnishing or procuring thereof.

(c) Upon receipt of any form pursuant to subsection (a) of this section, the Board shall consider the retirement and if they find that benefits are due under this chapter they shall notify the State Treasurer who shall make payments of benefits under this chapter out of the State Judiciary Retirement Fund or out of funds transferred for the purpose from the General Fund, as provided in Section 5601 of this Title."

Section 16. Section 5608, Chapter 56, Title 29, Delaware Code is amended by striking said section in its entirety and inserting in lieu thereof a new section which shall read as follows:

"§5608. Death Benefit; Withdrawal Benefit

(a) Upon the death of a member, or if a survivor's pension is payable upon such death, when such pension ceases to be payable, there shall be paid to the designated beneficiary or, in the absence of a designated beneficiary, to the estate of the member, a lump sum equal to the excess, if any, of the accumulated member contributions over the aggregate of all pension payments made. Such contributions shall exclude interest for members covered by the closed plan, and include interest for members covered by the revised plan.

(b) Upon the withdrawal from service of a member who is not eligible for a service or disability pension, his or her accumulated contributions without interest if covered by the closed plan, or with interest if covered by the revised plan, shall be paid to him or her."

Section 17. Subsection 5611(a), Chapter 56, Title 29, Delaware Code is amended by striking the first sentence of said subsection and inserting in lieu thereof a new sentence which shall read as follows:

"(a) On and after July 1, 1972, no pension provided under the provisions of the closed plan which has been in effect for three years shall be subject to adjustment."

Section 18. Chapter 56, Title 29, Delaware Code is amended by adding a new section 5615 which shall read as follows:

"§5615. Revised Plan; Post-retirement Adjustments

Benefits provided under the provisions of the revised plan shall be adjusted in the same manner as benefits provided under the provisions of Chapter 55, Title 29, Delaware Code."

Section 19. Chapter 56, Title 29, Delaware Code is amended by adding a new Section 5618 which shall read as follows:

"§5616(a) The actuary shall prepare an actuarial valuation of the assets and liabilities of the Fund as of December 31, 1980, and at least once every two years thereafter. On the basis of reasonable actuarial assumptions and tables approved by the Board the actuary shall determine the normal cost required to meet the actuarial cost of current service and the unfunded accrued liability.

(b) The State's appropriation to the Fund for the fiscal year ending June 30, 1982 and for each fiscal year thereafter, shall be the percentage of covered payroll approved by the Board on the basis of the most recent actuarial valuation, and shall equal the sum of the normal cost plus the payment required to amortize the unfunded accrued liability over 40 years from July 1, 1981. The amortization payment shall be an amount computed as a level percentage of the prospective total covered payroll over the remainder of the amortization period, with such prospective total covered payroll to be determined on the basis of a growth rate of 4% per year, compounded annually."

Approved July 11, 1980.