Willens v. Cory

Opinion

KAUS, P. J. Plaintiff Maxwell M. Willens appeals from a judgment in favor of defendant state Controller (Cory) in an action seeking interest on pension funds which the state failed to pay plaintiff when due.

Facts1

Plaintiff served as a judge of the municipal and superior court from 1962 through 1970. In June 1970, he was indicted by the grand jury of San Joaquin County on charges of criminal conspiracy and bribery. While proceedings were pending, he was automatically disqualified from acting as a judge. (10 Cal.3d at p. 453; Cal. Const., art. VI, § 18, subd. (a).)

On election day in 1970, when plaintiff was defeated at the general election by a write-in candidate, he applied to the Commission on Judicial Qualifications for a disability pension. (Gov. Code, § 75060, subd. (a).) In December 1970, the commission refused plaintiff’s request. (Id. at pp. 453-454.)

[106]In April 1971, plaintiff sought a writ of mandate in the superior court to compel the commission to approve his request for disability retirement. In June 1971, he was found guilty on four counts of bribery. His conviction was entered in December 1971 and became final. (Id. at p. 455, fn. 4.) That month, the superior court issued the requested writ of mandate and the commission appealed. (Id. at pp. 453-454.)

In February 1973, the Court of Appeal reversed the judgment of the superior court. The Supreme Court granted plaintiff’s petition for hearing, and in December 1973, held that plaintiff was entitled to receive his disability pension despite the fact that at the time he sought a pension based on an inability “to discharge efficiently the duties of his office by reason of mental or physical disability” (Gov. Code, § 75060, subd. (a)), he was then not performing those duties because of his disqualification under the state Constitution. (Id. at pp. 455-457.)

In January 1974, the state paid plaintiff $68,712 in back disability retirement benefits accruing after December 18, 1970, but refused to pay plaintiff interest—$7,221—on that amount. The superior court found that plaintiff was not entitled to the claimed interest and entered judgment accordingly.

Discussion

There is no merit to plaintiff’s contention that he is entitled to interest under Civil Code section 3287.