CHAPTER 7. 1977 RETIREMENT, DISABILITY, AND DEATH SYSTEM
IC 33-38-7
Chapter 7. 1977 Retirement, Disability, and Death System
IC 33-38-7-1
Application of chapter
Sec. 1. This chapter applies only to an individual who beginsservice as a judge before September 1, 1985.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-2
"Americans with Disabilities Act" defined
Sec. 2. As used in this chapter, "Americans with Disabilities Act"refers to the Americans with Disabilities Act (42 U.S.C. 12101 etseq.) and any amendments and regulations related to the Act.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-3
"Board" defined
Sec. 3. As used in this chapter, "board" refers to the board oftrustees of the public employees' retirement fund.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-4
"Employer" defined
Sec. 4. As used in this chapter, "employer" means the state ofIndiana.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-5
"Fund" defined
Sec. 5. As used in this chapter, "fund" refers to the Indiana judges'retirement fund established by IC 33-38-6-12.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-6
"Internal Revenue Code" defined
Sec. 6. As used in this chapter, "Internal Revenue Code":
(1) means the Internal Revenue Code of 1954, as in effect onSeptember 1, 1974, if permitted with respect to governmentalplans; or
(2) to the extent consistent with subdivision (1), has themeaning set forth in IC 6-3-1-11.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-7
"Participant" defined
Sec. 7. As used in this chapter, "participant" means a judge whoparticipates in the fund.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-8
"Salary" defined
Sec. 8. As used in this chapter, "salary" means the total salarypaid to a participant by the state and by a county or counties,determined without regard to any salary reduction agreementestablished under Section 125 of the Internal Revenue Code.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-9
"Services" defined
Sec. 9. As used in this chapter, "services" means the periodbeginning on the first day a person first becomes a judge, whether thedate is before, on, or after March 11, 1953, and ending on the dateunder consideration and includes all intervening employment as ajudge.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-10
Participants; contributions
Sec. 10. (a) A person who completed at least eight (8) years ofservice as a judge before July 1, 1953, may become a participant inthe fund and be subject to this chapter if the person qualifies forbenefits under section 11 of this chapter. A person who is a judge onJuly 1, 1953, shall become a participant in the fund and be subject tothis chapter, beginning on July 1, 1953, unless twenty (20) daysbefore July 1, 1953, the judge files with the board a written notice ofelection not to participate in the fund.
(b) A person who:
(1) becomes a judge after July 1, 1953, and before September1, 1985; and
(2) is not a participant in the fund;
becomes a participant in the fund and is subject to this chapter,beginning on the date the person becomes a judge, unless withintwenty (20) days after that date the judge files with the board awritten notice of election not to participate in the fund. An electionfiled under this subsection is irrevocable.
(c) A person who irrevocably:
(1) elects not to participate in the fund; or
(2) withdraws from the fund under section 13 of this chapter;
is ineligible to participate and to receive benefits under this chapter.
(d) Participation of a judge in the fund continues until the date onwhich the judge:
(1) becomes an annuitant;
(2) dies; or
(3) accepts a refund;
but a person is not required to pay into the fund during any periodthat the person is not serving as a judge, except as otherwiseprovided in this chapter.
(e) A participant is considered to have made a one (1) timeirrevocable salary reduction agreement of six percent (6%) of each
payment of salary that a participant would otherwise have receivedfor services as a judge.
(f) The auditor of state and the county auditor shall pay and creditto the fund the amounts described in subsection (e) as provided inIC 33-38-6-21 and IC 33-38-6-22. However, no amounts shall be paidon behalf of a participant for more than twenty-two (22) years.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-11
Retirement annuities; termination of employment; requirements;computation of amount
Sec. 11. (a) Benefits provided under this section are subject toIC 33-38-6-13 and section 16 of this chapter.
(b) A participant whose employment as judge is terminated,regardless of cause, is entitled to a retirement annuity beginning onthe date specified by the participant in a written application, if thefollowing conditions are met:
(1) The date the annuity begins is not:
(A) before the date of final termination of employment bythe participant; or
(B) the date thirty (30) days before the receipt of theparticipant's written application by the board.
(2) The participant:
(A) is at least sixty-two (62) years of age and has at leasteight (8) years of service credit;
(B) is at least fifty-five (55) years of age and the participant'sage in years plus the participant's years of service is at leasteighty-five (85); or
(C) has become permanently disabled.
(3) The participant is not receiving a salary from the state forservices currently performed as:
(A) a judge (as defined in IC 33-38-6-7); or
(B) a magistrate under IC 33-23-5.
(c) A participant:
(1) who:
(A) elects to accept retirement after June 30, 1977; and
(B) is at least sixty-five (65) years of age; or
(2) who:
(A) elects to accept retirement after June 30, 1999;
(B) is at least fifty-five (55) years of age; and
(C) meets the requirements under subsection (b)(2)(B);
is entitled to an annual retirement benefit as calculated in subsection(d).
(d) The annual retirement benefit for a participant who meets therequirements of subsection (c) equals the product of:
(1) the salary being paid for the office that the participant heldat the time of the participant's separation from service;multiplied by
(2) the percentage prescribed in the following table:
TABLE A
Participant's Years Percentageof Service
8 24%
9 27%
10 30%
11 33%
12 50%
13 51%
14 52%
15 53%
16 54%
17 55%
18 56%
19 57%
20 58%
21 59%
22 or more 60%
If a participant has a partial year of service in addition to at leasteight (8) full years of service, an additional percentage shall becalculated by prorating between the applicable percentages, based onthe number of months in the partial year of service. A participantwho elects to accept retirement before July 1, 1977, is entitled to anannual retirement benefit that equals the average of the benefitcomputed under this subsection and the benefit the participant wouldhave received under IC 33-38-6 as in effect on June 30, 1977.
(e) If the annual retirement benefit of a participant who beganservice as a judge before July 1, 1977, as computed under subsection(d), is less than the amount the participant would have received underIC 33-38-6 as in effect on June 30, 1977, the participant is entitled toreceive the greater amount as the participant's annual retirementbenefit instead of the benefit computed under subsection (d).
(f) Except as provided in subsections (b)(2)(B) and (d), if aparticipant who elects to accept retirement after June 30, 1977, hasnot attained sixty-five (65) years of age, the participant is entitled toreceive a reduced annual retirement benefit that equals the benefitthat would be payable if the participant were sixty-five (65) years ofage reduced by one-tenth percent (0.1%) for each month that theparticipant's age at retirement precedes the participant's sixty-fifthbirthday. This reduction does not apply to:
(1) participants who are separated from service because ofpermanent disability;
(2) survivors of participants who die while in service afterAugust 1, 1992; or
(3) survivors of participants who die while not in service butwhile entitled to a future benefit.
(g) A participant who is permanently disabled is entitled to anannual benefit equal to the product of:
(1) the salary being paid for the office that the participant heldat the time of separation from service; multiplied by
(2) the percentage prescribed in the following table:
TABLE B
Participant's Years Percentage
of Service
0-12 50%
13 51%
14 52%
15 53%
16 54%
17 55%
18 56%
19 57%
20 58%
21 59%
22 or more 60%
If a participant has a partial year of service in addition to at leasteight (8) full years of service, an additional percentage shall becalculated by prorating between the applicable percentages, based onthe number of months in the partial year of service.
(h) The surviving spouse or surviving child or children, asdesignated by the participant, of a participant who has qualifiedbefore July 1, 1977, to receive the retirement annuity under theprovisions of this chapter, either by length of service or by beingpermanently disabled, shall, upon the death of such participant, beentitled to an annuity in an amount equal to the greater of:
(1) the sum of:
(A) two thousand dollars ($2,000); plus
(B) fifty percent (50%) of the amount of retirement annuitythe participant was drawing at the time of the participant'sdeath, or to that which the participant would have beenentitled had the participant retired and begun receivingretirement annuity benefits prior to the participant's death; or
(2) the amount determined under the following table:
TABLE C
Year Amount
July 1, 1995, to
June 30, 1996 $10,000
July 1, 1996, to
June 30, 1997 $11,000
July 1, 1997, and
thereafter $12,000
(i) If a participant who qualifies after June 30, 1977, and beforeJuly 1, 1983, to receive a retirement annuity under the provisions ofthis chapter, either by length of service or by being permanentlydisabled, dies, the participant's surviving spouse or surviving childor children, as designated by the participant, is or are entitled to anannuity in an amount equal to the greater of:
(1) fifty percent (50%) of the amount of retirement annuity theparticipant was drawing at the time of death, or to that whichthe participant would have been entitled had the participantretired and begun receiving retirement annuity benefits before
death; or
(2) the amount determined under TABLE C in subsection(h)(2).
(j) If a participant:
(1) dies after June 30, 1983; and
(2) on the date of the participant's death:
(A) was receiving benefits under this chapter;
(B) had completed at least eight (8) years of service and wasin service as a judge;
(C) was permanently disabled; or
(D) had completed at least eight (8) years of service, was notstill in service as a judge, and was entitled to a futurebenefit;
the participant's surviving spouse or surviving child or children, asdesignated by the participant, is or are entitled, regardless of theparticipant's age, to an annuity in an amount equal to the greater ofthe amount determined under TABLE C in subsection (h)(2) or fiftypercent (50%) of the amount of retirement annuity the participantwas drawing at the time of death, or to that which the participantwould have been entitled had the participant retired and begunreceiving retirement annuity benefits on the participant's date ofdeath, with reductions as necessary under subsection (f).
(k) Notwithstanding subsection (j), if a participant:
(1) died after June 30, 1983, and before July 1, 1985; and
(2) was serving as a judge at the time of death;
the surviving spouse is entitled to the same retirement annuity as thesurviving spouse of a permanently disabled participant entitled tobenefits under subsection (i).
(l) The annuity payable to a surviving child or children undersubsection (h), (i), or (j), is subject to the following:
(1) The total monthly benefit payable to a surviving child orchildren is equal to the same monthly annuity that was to havebeen payable to the surviving spouse.
(2) If there is more than one (1) child designated by theparticipant, then the children are entitled to share the annuity inequal monthly amounts.
(3) Each child entitled to an annuity shall receive that child'sshare until the child becomes eighteen (18) years of age orduring the entire period of the child's physical or mentaldisability, whichever period is longer.
(4) Upon the cessation of payments to one (1) designated child,if there is at least one (1) other child then surviving and stillentitled to payments, the remaining child or children shall shareequally the annuity. If the surviving spouse of the participant issurviving upon the cessation of payments to all designatedchildren, the surviving spouse will then receive the annuity forthe remainder of the surviving spouse's life.
(5) The annuity shall be payable to the participant's survivingspouse if any of the following occur:
(A) No child named as a beneficiary by a participant
survives the participant.
(B) No children designated by the participant are entitled toan annuity due to their age at the time of death of theparticipant.
(C) A designation is not made.
(6) An annuity payable to a surviving child or children may bepaid to a trust or a custodian account under IC 30-2-8.5,established for the surviving child or children as designated bythe participant.
As added by P.L.98-2004, SEC.17. Amended by P.L.28-2005, SEC.1.
IC 33-38-7-12
Permanent disability of participants; transcripts, records, andother materials
Sec. 12. (a) Benefits provided under this section are subject toIC 33-38-6-13.
(b) A participant is considered permanently disabled if the boardhas received a written certificate by at least two (2) licensed andpracticing physicians, appointed by the board, indicating that:
(1) the participant is totally incapacitated, by reason of physicalor mental infirmities, from earning a livelihood; and
(2) the condition is likely to be permanent.
(c) The participant shall be reexamined by at least two (2)physicians appointed by the board at the times as the boarddesignates but at intervals not to exceed one (1) year. If, in theopinion of these physicians, the participant has recovered from theparticipant's disability, then benefits cease to be payable as of thedate of the examination unless, on that date, the participant is:
(1) at least sixty-five (65) years of age; or
(2) at least fifty-five (55) years of age and meets therequirements under section 11(b)(2)(B) of this chapter.
(d) To the extent required by the Americans with Disabilities Act,the transcripts, reports, records, and other material generated by theinitial and periodic examinations and reviews to determine eligibilityfor disability benefits under this section shall be:
(1) kept in separate medical files for each member; and
(2) treated as confidential medical records.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-13
Withdrawal of participant from fund
Sec. 13. (a) Except as otherwise provided in this chapter, aparticipant:
(1) whose employment as a judge is terminated regardless ofcause; and
(2) who has less than twelve (12) years service;
is entitled to withdraw from the fund, beginning on the date specifiedby the participant in a written application. However, the date onwhich the withdrawal begins may not be before the date of finaltermination of employment of the participant, or the date thirty (30)
days before the receipt of the application by the board.
(b) Upon the withdrawal, a participant is entitled to receive out ofthe fund an amount equal to the total sum contributed to the fund onbehalf of the participant, payable within sixty (60) days after date ofthe withdrawal application or in monthly installments as theparticipant may elect.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-14
Payments to participant's surviving spouse, dependents, or estate
Sec. 14. (a) Benefits provided under this section are subject toIC 33-38-6-13 and section 16 of this chapter.
(b) If annuities are not payable to the survivors of a participantwho dies after July 1, 1983, the surviving spouse or child or childrenof the participant, if any, as determined by the participant, and ifnone survive, then any dependent or dependents surviving shall drawfrom the fund the amount that the participant paid into the fund plusinterest as determined by the board. If no spouse, child or children,or other dependents survive, then the amount plus interest minus anypayments made to the participant shall be paid to the executor oradministrator of the participant's estate.
(c) The amount owed a spouse, child or children, or otherdependent, or estate under this section is payable within sixty (60)days after date of the withdrawal application or in the monthlyinstallments as the recipient may elect.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-15
Annuities; payment to dependent children
Sec. 15. (a) Benefits provided under this section are subject toIC 33-38-6-13 and section 16 of this chapter.
(b) If a participant's spouse does not survive the participant, anda child is not designated and entitled to receive an annuity undersection 11 of this chapter, any surviving dependent child of aparticipant is, upon the death of the participant, entitled to an annuityin an amount equal to the annuity the participant's spouse would havereceived under section 11 of this chapter.
(c) If a surviving spouse of a decedent participant dies and adependent child of the surviving spouse and the decedent participantsurvives them, then that dependent child is entitled to receive anannuity in an amount equal to the annuity the spouse was receivingor would have received under section 11 of this chapter.
(d) If there is more than one (1) dependent child, the dependentchildren are entitled to share the annuity equally.
(e) Each dependent child is entitled to receive that child's shareuntil the child becomes eighteen (18) years of age or during theentire period of the child's physical or mental disability, whicheverperiod is longer.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-16
Benefits limitations under Internal Revenue Code
Sec. 16. Notwithstanding any other provision of this chapter, andsolely for the purposes of the benefits provided under this chapter,the benefit limitations of Section 415 of the Internal Revenue Codeshall be determined by applying the provisions of Section 415(b)(10)of the Internal Revenue Code, as amended by the Technical andMiscellaneous Revenue Act of 1988 (P.L.100-647). This sectionconstitutes an election under Section 415(b)(10)(C) of the InternalRevenue Code to have Section 415(b) of the Internal Revenue Code(other than Section 415(b)(2)(G)) applied without regard to Section415(b)(2)(F) to anyone who did not first become a participant beforeJanuary 1, 1990.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-17
Service credit; contributions after retirement for subsequentservice as judge
Sec. 17. (a) A judge is entitled to a month of service credit forservices performed in any fraction of a calendar month. However, ajudge is not entitled to more than one (1) month of credit for servicesperformed in a calendar month.
(b) Except as otherwise provided in this chapter, if a judge iselected or appointed and serves one (1) or more terms or part of aterm then retires from office but at a later period or periods isappointed or elected and serves as judge, the judge shall pay into thefund during all the periods served as judge, whether the periods areserved consecutively or not.
(c) Except as otherwise provided in this chapter, a judge is notrequired to pay into the fund:
(1) at any time when the judge is not serving as judge; or
(2) during any period of service as a senior judge underIC 33-23-3.
As added by P.L.98-2004, SEC.17.
IC 33-38-7-18
Credit for prior service; rollover distributions; trustee to trusteetransfers
Sec. 18. (a) This section applies to a person who:
(1) is a judge participating under this chapter;
(2) was appointed by a court to serve as a full-time referee,full-time commissioner, or full-time magistrate either:
(A) before becoming a judge; or
(B) after leaving an elected term on the bench;
(3) was a member of the public employees' retirement fundduring the employment described in subdivision (2); and
(4) received credited service under the public employees'retirement fund for the employment described in subdivision(2).
(b) If a person becomes a participant in the judges' 1977 benefit
system under section 1 of this chapter, credit for prior or subsequentservice by the judge as a full-time referee, full-time commissioner,or full-time magistrate shall be granted under this chapter by theboard if:
(1) the service was credited under the public employees'retirement fund;
(2) the state contributes to the judges' 1977 benefit system theamount the board determines necessary to amortize the serviceliability over a period determined by the board, but not morethan ten (10) years; and
(3) the judge pays in a lump sum or in a series of paymentsdetermined by the board, not exceeding five (5) annualpayments, the amount the judge would have contributed if thejudge had been a member of the judges' 1977 benefit systemduring the service.
(c) If the requirements of subsection (b)(2) and (b)(3) are notsatisfied, a participant is entitled to credit only for years of serviceearned as a judge in the 1977 benefit system.
(d) An amortization schedule for contributions paid undersubsection (b)(2) or (b)(3) must include interest at a rate determinedby the board.
(e) The following provisions apply to a person described insubsection (a):
(1) A minimum benefit applies to participants receiving creditin the judges' 1977 benefit system from service covered by thepublic employees' retirement fund. The minimum benefit ispayable at sixty-five (65) years of age and equals the actuarialequivalent of the vested retirement benefit that is:
(A) payable to the member at normal retirement underIC 5-10.2-4-1 as of the day before the transfer; and
(B) based solely on:
(i) creditable service;
(ii) the average of the annual compensation; and
(iii) the amount credited under IC 5-10.2 and IC 5-10.3 tothe annuity savings account of the transferring member asof the day before the transfer.
(2) If the requirements of subsection (b)(2) and (b)(3) aresatisfied, the board shall transfer from the public employees'retirement fund to the judges' 1977 benefit system the amountcredited to the annuity savings account and the present value ofthe retirement benefit payable at sixty-five (65) years of age thatis attributable to the transferring participant.
(3) The amount the state and the participant must contribute tothe judges' 1977 benefit system under subsection (b) shall bereduced by the amount transferred to the judges' 1977 benefitsystem by the board under subdivision (2).
(4) If the requirements of subsection (b)(2) and (b)(3) aresatisfied, credit for service in the public employees' retirementfund as a full-time referee, full-time commissioner, or full-timemagistrate is waived. Any credit for the service under the
judges' 1977 benefit system may be granted only undersubsection (b).
(5) Credit in the public employees' retirement fund for serviceother than as a full-time referee, full-time commissioner, orfull-time magistrate remains under the public employees'retirement fund and may not be credited under the judges' 1977benefit system.
(f) To the extent permitted by the Internal Revenue Code and theapplicable regulations, the judges' 1977 benefit system may accept,on behalf of a participant who is purchasing permissive service creditunder subsection (b), a rollover of a distribution from any of thefollowing:
(1) A qualified plan described in Section 401(a) or Section403(a) of the Internal Revenue Code.
(2) An annuity contract or account described in Section 403(b)of the Internal Revenue Code.
(3) An eligible plan that is maintained by a state, politicalsubdivision of a state, or an agency or instrumentality of a stateor political subdivision of a state under Section 457(b) of theInternal Revenue Code.
(4) An individual retirement account or annuity described inSection 408(a) or Section 408(b) of the Internal Revenue Code.
(g) To the extent permitted by the Internal Revenue Code and theapplicable regulations, the judges' 1977 benefit system may accept,on behalf of a participant who is purchasing permissive service creditunder subsection (b), a trustee to trustee transfer from any of thefollowing:
(1) An annuity contract or account described in Section 403(b)of the Internal Revenue Code.
(2) An eligible deferred compensation plan under Section457(b) of the Internal Revenue Code.
As added by P.L.98-2004, SEC.17. Amended by P.L.68-2007, SEC.1;P.L.180-2007, SEC.8.
IC 33-38-7-19
Credit for prior service; rollover distributions; trustee to trusteetransfers
Sec. 19. (a) This section applies only to a person who:
(1) is a judge participating under this chapter;
(2) before becoming a judge was a member of an Indiana publicemployees' retirement fund;
(3) received credited service under an Indiana public employees'retirement fund for the employment described in subdivision(2), and the credited service is not eligible for service creditunder section 18 of this chapter;
(4) has not attained vested status under a public employees'retirement fund for the employment described in subdivision(2); and
(5) has at least eight (8) years of service credit in the judges'retirement system. (b) If a person becomes a participant in the judges' 1977 benefitsystem under this chapter, credit for service described in subsection(a) shall be granted under this chapter by the board if:
(1) the prior service was credited under an Indiana publicemployees' retirement fund; and
(2) the judge pays in a lump sum or in a series of paymentsdetermined by the board, not exceeding five (5) annualpayments, the amount determined by the actuary for the 1977benefit system as the total actual cost of the service.
(c) If the requirements of subsection (b) are not satisfied, aparticipant is entitled to credit only for years of service after the dateof participation in the 1977 benefit system.
(d) An amortization schedule for contributions paid under thissection must include interest at a rate determined by the board.
(e) If the requirements of subsection (b) are satisfied, theappropriate board shall transfer from the retirement fund describedin subsection (a)(2) to the judges' 1977 benefit system the amountcredited to the judge's annuity savings account and the present valueof the retirement benefit payable at sixty-five (65) years of age thatis attributable to the transferring participant.
(f) The amount a participant must contribute to the judges' 1977benefit system under subsection (b) shall be reduced by the amounttransferred to the judges' 1977 benefit system by the appropriateboard under subsection (e).
(g) If the requirements of subsection (b) are satisfied, credit forprior service in a public employees' retirement fund is waived.
(h) To the extent permitted by the Internal Revenue Code and theapplicable regulations, the judges' 1977 benefit system may accept,on behalf of a participant who is purchasing permissive service creditunder subsection (b), a rollover of a distribution from any of thefollowing:
(1) A qualified plan described in Section 401(a) or Section403(a) of the Internal Revenue Code.
(2) An annuity contract or account described in Section 403(b)of the Internal Revenue Code.
(3) An eligible plan that is maintained by a state, a politicalsubdivision of a state, or an agency or instrumentality of a stateor political subdivision of a state under Section 457(b) of theInternal Revenue Code.
(4) An individual retirement account or annuity described inSection 408(a) or Section 408(b) of the Internal Revenue Code.
(i) To the extent permitted by the Internal Revenue Code and theapplicable regulations, the judges' 1977 benefit system may accept,on behalf of a participant who is purchasing permissive service creditunder subsection (b), a trustee to trustee transfer from any of thefollowing:
(1) An annuity contract or account described in Section 403(b)of the Internal Revenue Code.
(2) An eligible deferred compensation plan under Section457(b) of the Internal Revenue Code.As added by P.L.98-2004, SEC.17. Amended by P.L.122-2008,SEC.9.