People v. Superior Court of San Luis Obispo Cty.

Code of Civil Procedure section 170.65 subdivision (a), enacted in 1995, and recodified in 1996 provides: “A retired judge shall not hear and try any criminal cause when it is stipulated jointly by the prosecuting attorney and the defendant and his or her counsel, and submitted to the court as hereinafter provided, that the retired judge is not capable or qualified to hear and try the criminal cause.” This statute has a “sunset” provision, i.e., it “shall remain in effect until January 1, 2001, and as of that date is repealed, unless a later enacted statute, which is enacted before January 1, 2001, deletes or extends that date.” (Code Civ. Proc., § 170.65, subd. (c).)

We conclude that the sun shall set sooner on section 170.65. This legislative experiment substantially impairs the Chief Justice’s constitutional power to appoint retired judges who he determines are “capable and qualified.” A stipulation filed pursuant to the statute is evidentiary in nature and specific to the assigned retired judge. It cannot be reconciled with the Chief Justice’s implied factual determination that the assigned retired judge is possessed of his or her faculties so as to render him or her…