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AGO 1967 No. 22 - June 19, 1967
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS - JUDGES - SUPERIOR COURTS - APPLICABILITY OF SALARY INCREASE LAW TO PUBLIC OFFICIALS WHOSE TERMS COMMENCE FOLLOWING ENACTMENT BUT PRIOR TO EFFECTIVE DATE.

The judge appointed to fill the new superior court judgeship created in Snohomish county by § 3, chapter 84, Laws of 1967, Ex. Sess., is entitled, after June 8, 1967, to receive the $22,500 annual salary established for superior court judges under chapter 65, Laws of 1967.

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                                                                   June 19, 1967

Honorable Albert C. Bise
Administrator for the Courts
Temple of Justice
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1967 No. 22

Dear Sir:

            By letter previously acknowledged, you have asked for our opinion on a question which we paraphrase as follows:

            Is the judge appointed to fill the new superior court judgeship created in Snohomish county by § 3, chapter 84, Laws of 1967, Ex. Sess., entitled after June 8, 1967, to receive the $22,500 salary established for superior court judges under chapter 65, Laws of 1967?

            In our opinion this question is to be answered in the affirmative.

                                                                     ANALYSIS

            Prior to 1965, the annual salary for superior court judges was fixed by statute at $15,000.  See, RCW 2.08.190.  However, in 19651/ and again in 1967,2/ the legislature, under express authority of Article IV, § 14 of our state constitution, increased this annual salary from $15,000 to $20,000  [[Orig. Op. Page 2]] and from $20,000 to $22,500.  However, neither of these salary increase acts -and most significantly, the 1967 act with which we are here concerned -carried an emergency clause.3/   Thus, the 1967 act which increased the annual salaries of superior court judges from $20,000 to $22,500 did not become effective until June 8, 1967, ninety days after adjournment of the 1967 regular legislative session.4/

             Since both the 1965 and 1967 increases were enacted during the existing terms of all incumbent superior court judges,5/ no incumbent judge can benefit from them until such time as he commences a new term of office for the reason that Article IV, § 13, of our state constitution prohibits an increase in judicial salaries from being granted during an existing term of office.6/

             With this background in mind we can now turn our attention to chapter 84, Laws of 1967, Ex. Sess., the measure providing for  [[Orig. Op. Page 3]] an additional superior court judge in each of four counties, King, Pierce, Kitsap, and Snohomish.

            Chapter 84 creates an unusual situation.  As to the Snohomish county judgeship, the act became immediately operative on the date it was signed by the governor (April 27, 1967), but as to the remaining counties, the act becomes operative on July 30, 1967.  The different operative dates are attributable to the fact that only § 3, pertaining to the Snohomish county judgeship, carried an emergency clause.  The consequence of this situation is that the term of the new judge in Snohomish county commenced on April 27, 1967, while the terms of the new judges in King, Pierce and Kitsap counties commence on July 30, 1967.7/

             This difference in the commencement date of the term of the Snohomish county judgeship, as compared to the remaining three new judgeships, gives rise to your inquiry about salary.

            It is perfectly obvious that the persons appointed to the new positions on the King, Pierce, and Kitsap county superior courts will receive an annual salary of $22,500, in accordance with the 1967 pay law.  Nothing in Article IV, § 13,supra, will preclude these new appointees from receiving a statutory salary that is fixed and payable prior to the commencement of their terms of office.  Cf. State ex rel. Henneford v. Yelle, 12 Wn.2d 434, 121 P.2d 948 (1942).  For the same reason it is perfectly obvious, as we have previously advised, that the new appointee to the Snohomish county superior court could only receive compensation at the rate of $20,000 per annum (under the 1965 pay law) until June 8, 1967, the date upon which the 1967 pay law becameoperative.

            The difficult problem created by the new judgeship law, and the question you ask, is whether the Snohomish county appointee, after the operative date of the 1967 pay law (June 8, 1967), is entitled from then on to receive the $22,500 annual salary fixed by that law.  We answer that question in the affirmative, reasoning as follows:

             [[Orig. Op. Page 4]]

            (1) Absent constitutional limitations, the compensation of judges may be changed during an existing term of office.  State ex rel. Jackson v. Porter, 57 Mont. 343, 188 Pac. 375 (1920); State ex rel. Henneford v. Yelle, supra.  Thus our inquiry is whether the 1967 pay act can be given operative effect as to the new Snohomish county judgeship without violating the provisions of Article IV, § 13,supra.

            (2) There can be no doubt about the purposes of such constitutional provisions as this.  Restrictions such as those imposed by Article IV, § 13, serve two ends: (a) to establish definiteness and certainty in salaries of public officers and (b) to prevent changes in that salary as a reward or punishment for official action.  See,State ex rel. Port of Seattle v. Wardall, 107 Wash. 606, 183 Pac. 67 (1919);Everett v. Johnson, 37 Wn.2d 505, 224 P.2d 617 (1950); 67 C.J.S., Officers, § 95, and 43 Am.Jur., Public Officers, § 350.  Accordingly, the constitutional restriction is not to be read as a requirement that salaries must be paid at a fixed and constant rate at all times during a term of office.  The legislature may vary salaries at mid-term if it does so by a law enacted prior to commencement of the term to become operative at a later date.  See,Moore v. Frohmiller, 46 Ariz. 36, 46 P.2d 652 (1935), construing a similar provision contained in the Arizona constitution.  The legislature may also fix salaries before a term commences by reference to afactual basis that will cause the amount of compensation to vary in mid-term, provided that the factual basis is fixed, certain, and unchangeable during the term.8/State ex rel. Mack v. Guckenberger, 139 Ohio St. 273, 39 N.E.2d 840 (1942).

             [[Orig. Op. Page 5]]

            (3) We are persuaded by the views of the Iowa and Arizona supreme courts inSchaffner v. Shaw, 191 Iowa 1047, 180 N.W. 853 (1920), and Bland v. Jordan, 79 Ariz. 384, 291 P.2d 205 (1955),9/ that a salary statute enacted prior to the commencement of a term can be given effect even though the statute does not become operative (for want of an emergency clause) until after the commencement of a term.

            TheSchaffner case from Iowa, on its facts, concerned the exact problem confronting us with regard to the new Snohomish county judgeship.  Additionally, that state's applicable constitutional provisions are almost identical to ours.  InSchaffner, the governor had approved a bill on April 12, 1917, increasing the annual salaries of district judges from $3,500 to $4,000.  The measure carried no emergency clause and thus became operative on July 4, 1917.  On April 17,1917, the governor approved a bill creating two new district judgeships.  (The legislature passed this bill after it had passed the pay bill.)  The judgeship bill carried an emergency clause and became immediately operative on the date of its publication.  The appointees to the new judgeships qualified for office on May 1, 1917.  Thereafter the right of the new judges to the increased salary for that part of their term following July 4, was challenged.

            The Iowa supreme court ruled that the judges were entitled to the increase.  The court reached its decision by noting that (191 Iowa 1047, 1056):

            ". . . the manifest object of . . . [the constitutional clause prohibiting a change of compensation during the judges' terms of office] is to shield the judges from influence which otherwise might emanate from the other departments of government, and its meaning is not that the salary must be the same throughout the term, . . . The prohibition is interposed against action by the general assembly, for it only may fix or increase compensation; and this clause merely denies it the power, during a term of a district judge, to increase or diminish his compensation for services rendered or to be rendered in that period."

             [[Orig. Op. Page 6]]

            The court then added at p. 1057:

            ". . . It [the pay measure] was not enacted during the term of office of either of these appointees, and the only remaining question is whether the amendment [to the existing salary statute] became a law when approved by the governor, or was it tentative merely, to be ripened into law only upon the lapse of time? . . ."

            After review of provisions of the Iowa constitution which are comparable to Washington Constitution Article III, § 12, and Article II, § 1 (c), (Amendment 26)10/ the court concluded:

            "The bill [increasing judicial salaries], then, became a law upon its approval by the governor; . . . It follows, then, that the increased compensation provided by the amendment . . . [to the existing salary statute] became a law before, and not during, the terms of judges De Land and Thompson, and they were entitled to the compensation authorized thereby from the time the law took effect."

            The Arizona case ofBland v. Jordan, supra, like the Schaffner case from Iowa, also holds that a pay increase authorized by a statute enacted prior to the commencement of a term is payable in mid-term if the operative date of the statute falls in midterm because of the lack of an emergency clause.

            The facts of theBland case were these: On July 15, 1955, Bland was appointed state post auditor for a four-year term commencing on July 1, 1955.  On April 13, 1955, the governor had approved a legislative enactment increasing the annual salary of post auditor from $7,200 to $8,400.  The measure  [[Orig. Op. Page 7]] contained no emergency clause and as a consequence became operative on July 3, 1955, two days after commencement of the current term for post auditor.

            The court, after review of prior case authority, concluded that the $8,400 salary was to be paid Mr. Bland because (79 Ariz. 384):

            "This amended law fixing the salary of $8,400 was the law on and after the date the governor signed the bill and filed it in the office of the secretary of state, though not operative due to the absence of a legally enacted emergency clause. . . .

            ". . . The salary attached to this office at the beginning of its term was definitely fixed by law to be operative on a certain day (in the absence of a demand for a referendum), not by virtue of any subsequent action on the part of the legislature but solely by the automatic operation of the Act and the Constitution working together.

            "Such a holding does not violate the letter or the spirit of the constitutional provision prohibiting an increase or decrease in salary during a term.11/  . . ."

            (4) We have noted and considered the apparently contrary California view stated inHarrison v. Colgan, 148 Cal. 69, 82 Pac. 674 (1905), which suggested that a pay statute must be enacted and legally operative prior to the commencement of a term before the changed salary may be received during the term.  However, since we can see no constitutional purpose to be served by the California approach, we are confident that our own supreme court would follow, instead, the Iowa-Arizona rule of theSchaffner and Bland cases which we have summarized above.

            Our answer to your inquiry can be summarized in this fashion:

             [[Orig. Op. Page 8]]

            1. The judge appointed to fill the new superior court judgeship created in Snohomish county by chapter 84, Laws of 1967, Ex. Sess., is entitled, after June 8, 1967, to receive the $22,500 annual salary established for superior court judges under chapter 65, Laws of 1967.

            2. Payment of the $22,500 salary will not violate Washington Constitution Article IV, § 13,supra, even though the law establishing the salary was enacted but not operative prior to the commencement of the judge's term of office.12/

             We trust that the foregoing information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HAROLD T. HARTINGER
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, § 2, chapter 127, Laws of 1965, Ex. Sess.

2/See, § 1, chapter 65, Laws of 1967.

3/I.e., a declaration of necessity for the immediate preservation of the public peace, health and safety, etc.; See, Washington constitution Article II, § 1 (b) (Amendment 7).

4/As provided for in Washington constitution, Article II, § 41 (Amendment 26).

5/Incumbent superior court judges were elected in November, 1964, and serve a four year term commencing in January, 1965, and ending in January, 1969.

6/Cf. Article II, § 25 (Amendment 35) and Article III, § 25 (Amendment 31).  The pertinent language of Article IV, § 13, is as follows:

            ". . . The judges . . . of the superior courts shall severally at stated times, during their continuance in office, receive for their services the salaries prescribed by law therefor, which shall not be increased after their election, nor during the term for which they shall have been elected."

7/For the purposes of this opinion we adopt the earliest possible date for commencement of the initial term of the new judgeships, cf. Harrison v. Colgan, 148 Cal. 69, 82 Pac. 674 (1905), rather than the general rule that the term commences at the time of appointment to a newly created office, see 67 C.J.S. Officers, § 45 (1950).

8/On this basis a majority of the states, but not Washington, permit mid-term salary changes based on population changes. Annot., 139 A.L.R. 737, 742-48 (1942).  We have examined the Washington cases.  E.g., State ex rel. Maltbie v. Will, 54 Wash. 453, 103 Pac. 479, 104 Pac. 797 (1909);State ex rel. Jordan v. Dehart, 15 Wn.2d 551, 131 P.2d 156 (1942).  They undoubtedly express a strong public policy to discourage midterm salary changes based on changedfacts to be determined in the future.  However, we do not read these cases as a restriction on the right of the legislature to make a midterm salary change through delayed operation of a law enacted prior to the commencement of a term.

9/Accord:  Kleindienst v. Jordan, 93 Ariz. 188, 379 P.2d 463 (1963).

10/Article III, § 12, provides in material part:

            ". . . Every act which shall have passed the legislature shall be, before it becomes a law, presented to the governor. . . ."

            Article II, § 1 (c), Amendment 26, provides in part:  "No act, law, or bill subject to referendum shall take effect until ninety days after the adjournment of the session at which it was enacted.  . . ."

11/For a later Arizona decision in accordance with Bland, see Kleindienst v. Jordan, 93 Ariz. 188, 379 P.2d 463 (1963).

12/In thus concluding, we fully recognize that although on the one hand our result will produce equality of pay as between the four new superior court judges filling the positions created by the 1967 legislature, there will remain great inequality between the pay of these new judges and that of the incumbents serving terms which commenced in January, 1965.  In addition, of course, the four new superior court judges will be receiving $2,500 per annum more than six of the nine present members of our state supreme court.  This unfortunate result, which is dictated by the present provisions of our state constitution, can, however, be rectified by the voters if, at the 1968 general election, they recognize and understand the problem and, in consequence, approve the adoption of a proposed constitutional amendment (H.J.R. 13) which was proposed by the 1967 legislative session.

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