Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1988 No. 29 -
Attorney General Ken Eikenberry


1.         A county may lawfully eliminate its provision of medical, dental, and life insurance benefits to its superior court judges when the judges, who are also state officers, receive similar benefits from the state.

2.         Where superior court judges as state officers are receiving health and life insurance benefits from the state, a county is not legally required to provide superior court judges with the same type of benefits, whether or not the state benefits are as comprehensive as those offered by the county to its other officers and employees.

                                                              - - - - - - - - - - - - - 

                                                                December 1, 1988

Mr. Gary Tomlinson
Court Administrator
Superior Court of the State
of Washington for King County
Seattle, Washington 98104 

Cite as:  AGO 1988 No. 29                                                                                                                

 Dear Mr. Tomlinson:

             By letter previously acknowledged, you have requested our opinion on the following question:

             1.         May King County lawfully eliminate its provision of medical, dental, and life insurance benefits to its superior court judges when the judges also receive such benefits from the state?

             You have asked us to consider several additional questions relating to the differences between the benefits provided by the state and those provided by the county.  We have combined and rephrased these questions as follows:

             2.         Does the answer to question 1 depend on whether the state coverage is at least as comprehensive as the county coverage?

             We answer your first question in the qualified affirmative and your second question in the negative.

              [[Orig. Op. Page 2]]


             Question 1

             May King County lawfully eliminate its provision of medical, dental, and life insurance benefits to its superior court judges when the judges also receive such benefits from the state?

             As you indicate in your letter, superior court judges hold office as both state and county officers.  This dual status has been recognized in case law and in a prior attorney general opinion.  State ex rel. Edelstein v. Foley, 6 Wn.2d 444, 448, 107 P.2d 901 (1940); AGO 1979 No. 14.1/

              Because of this dual status, superior court judges in King County have received medical, dental, and life insurance benefits as both county officers and state officers.2/

             The King County Council now proposes to eliminate the medical, dental, and life insurance benefits being provided by the county on the grounds that they are an unnecessary and duplicative expenditure of county monies.

             You have asked whether such action is permissible.  In reaching our conclusion that such action is permissible, we have considered whether such a reduction in judges' benefits is permitted by the state constitution and statutory law.  We have also considered whether such action would violate the doctrine of separation of powers or the equal protection clause of either the United States Constitution or the Washington State Constitution.

             A.  State Constitution

             There are six state constitutional provisions that regulate the salary or compensation received by superior court judges.  Article 2, section 25 provides in part:

             The legislature shall never grant any extra compensation to any public officer  . . . after the services shall have been rendered,  . . . nor shall the  [[Orig. Op. Page 3]] compensation of any public officer be increased or diminished during his term in office. . . .3/

             Article 3, section 25 provides in part:

             The compensation for state officers shall not be increased or diminished during the term for which they have been elected. . . .4/

           Article 4, section 13 provides in part:

             The judges of the supreme court and 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. . . .

 Article 11, section 8 provides in part:

             The salary of any county  . . . officers shall not be increased except as provided in section 1 of Article XXX or diminished after his election, or during his term of office; . . .

 Article 28, section 1 provides in part:

             Salaries for  . . . judges of the  . . . superior courts  . . . shall be fixed by an independent commission created and directed by law to that purpose. . . .

              . . .

             Any change of salary shall be filed with the secretary of state and shall become law ninety days thereafter without action of the legislature or  [[Orig. Op. Page 4]] governor, but shall be subject to referendum petition by the people, filed within the ninety-day period. . . .  The salaries fixed pursuant to this section shall supersede any other provision for the salaries of  . . . judges of the  . . . superior courts  . . . .

              . . .

 Article 30, section 1 provides:

                         The compensation of all elective and appointive state, county, and municipal officers who do not fix their own compensation, including judges of courts of record and the justice courts may be increased during their terms of office to the end that such officers and judges shall each severally receive compensation for their services in accordance with the law in effect at the time the services are being rendered.

                         The provisions of section 25 of Article II (Amendment 35), section 25 of Article III (Amendment 31), section 13 of Article IV, section 8 of Article XI, and section 1 of Article XXVIII (Amendment 20) insofar as they are inconsistent herewith are hereby repealed.

             Of these six provisions, three use the term "salary" (article 4, section 13; article 11, section 8; and article 28, section 1) and three use the term "compensation" (article 2, section 25; article 3, section 25; and article 30, section 1).  The terms are not generally considered to be synonymous.

            "Salary" is generally defined as a fixed or stated amount paid regularly or periodically to a person for his official or professional services or his regular work.  It is generally considered a specific form of compensation, although not all forms of compensation are considered salary.  SeeSt. Louis Fire Fighters Ass'n v. St. Louis, 637 S.W.2d 128, 130 (Mo. Ct. App. 1982); Oregon Ed. Ass'n v. Eugene Sch. Dist. 45, 52 Or. App. 722, 633 P.2d 28, 31 (1981);Olson v. Townsend, 148 Vt. 135, 530 A.2d 566, 568 (1987); Black's Law Dictionary.  Under this definition, "salary" is not generally held to include health benefits.  John v. Woodstock, 99 Ill. App. 3d 206, 425 N.E.2d 490, 493 (1981); Hay v. Highland Park, 134 Mich. App. 624, 351 N.W.2d 622, 627-28 (1984);In re Taylor v. McGuire, 100 Misc. 2d 834, 420 N.Y.S.2d 248, 249 (1979).

            Since salary does not include health benefits, the prohibition in article 11, section 8 against diminishing the salary of county officers after election does not apply to  [[Orig. Op. Page 5]] decreasing health benefits.5/

             Likewise, both article 4, section 13 and article 28, section 1 prescribe rules for salary only and are, therefore, inapposite to whether the judges' benefits may be diminished.

             The prohibitions in article 2, section 25; article 3, section 25; and article 30, section 1 refer to compensation.  The ordinary meaning of "compensation" is remuneration in whatever form it may be given, whether it be salaries, wages, or benefits.  SeeState ex rel. Funke v. Board of Comm'rs, 48 Wash. 461, 465-66, 93 P. 920 (1908) ("The term 'compensation,' as used [in article 2, section 25] seems to be broad enough to include any kind of remuneration from the public treasury for a public officer, whether by way of what is called 'salary' or otherwise.").  Does "compensation" include health benefits?  The Legislature has apparently said no.

             RCW 41.04.190, as amended in 1983, provides:

             The cost of any such group policy or plan [for hospitalization and medical aid] to any such public agency or body shall not be deemed additional compensation to the employees or elected county officials covered thereby. . . .

 (Emphasis added.)  If this statute is constitutional, and if it applies to the situation at hand, then health benefits are not compensation and the prohibitions on increasing or decreasing compensation in article 2, section 25; article 3, section 25; and article 30, section 1 do not apply.  Therefore, King County would be free to reduce or eliminate county benefits for judges without violating any of the constitutional provisions regarding judicial compensation.

              [[Orig. Op. Page 6]]

             We recently observed, however, that there is a question whether the Legislature exceeded its constitutional power in declaring the cost of group insurance policies or plans not to be compensation.  See AGO 1988 No. 27.  A copy of this opinion is attached for your review.  In keeping with our long-standing policy, we did not (and will not) directly address the constitutionality of RCW 41.04.190.  We did note, however, that we previously had addressed the constitutionality of an increase in compensation for elective officials in AGO 53-55 No. 355.

             Given the possibility that health benefits are compensation, notwithstanding RCW 41.04.190, we will proceed to analyze article 2, section 25; article 3, section 25; and article 30, section 1, each of which contains prohibitions relating to compensation.  Of these provisions, article 30, section 1 was adopted most recently and specifically repeals the other two to the extent they are inconsistent.

             Article 30, section 1 authorizes the increase in compensation, for various state and local officers including judges, during their terms of office "to the end that such officers and judges shall each severally receive compensation for their services in accordance with the law in effect at the time the services are being rendered."  By its plain language, this provision allows only increases to compensation during a term of office and does not refer to reductions in compensation.  It does not repeal other constitutional provisions which prohibit reducing officers' compensation during their term of office, i.e., article 2, section 25 and article 3, section 25.

             Article 2, section 25 and article 3, section 25 both prohibit the reduction in compensation of any public officer during his term of office.  If compensation includes health benefits, then King County cannot reduce the health benefits of its superior court judges during their term of office.  "[T]he term of office of all superior judges in this state shall be for four years from the second Monday in January next succeeding their election and until their successors are elected and qualified."  Const. art. 4, § 5;see also RCW 2.08.070.  We understand that all superior court judges in King County are on the same four-year cycle and that their new terms all begin on January 9, 1989.  Thus, to safely avoid any constitutional prohibitions contained in article 2, section 25 and article 3, section 25, King County would have to act prior to January 9, 1989, in order for any reduction in health benefits to be effective before 1993.

             B.  Statutory Law

             The only state statute relevant to the question of whether judicial benefits may be reduced would appear to be RCW  [[Orig. Op. Page 7]] 41.04.180, which relates generally to health benefits for county employees.  It currently provides:

             Any county, municipality, or other political subdivision of the state acting through its principal supervising official or governing bodymay, whenever funds shall be available for that purpose provide for all or a part of hospitalization and medical aid for its employees and their dependents through contracts with regularly constituted insurance carriers or with health care service contractors as defined in chapter 48.44 RCW or self-insurers as provided for in chapter 48.52 RCW, for group hospitalization and medical aid policies or plans: PROVIDED, That any county, municipality, or other political subdivision of the state acting through its principal supervising official or governing body shall provide the employees thereof a choice of policies or plans through contracts with not less than two regularly constituted insurance carriers or health care service contractors or other health care plans, including but not limited to, trusts of self-insurance as provided for in chapter 48.52 RCW:  AND PROVIDED FURTHER, That any county may provide such hospitalization and medical aid to county elected officials and their dependents on the same basis as such hospitalization and medical aid is provided to other county employees and their dependents: PROVIDED FURTHER, That provision for school district personnel shall not be made under this section but shall be as provided for in RCW 28A.58.420.

 (Emphasis added.)

             We are unaware of any case law addressing the extent to which this statute requires a county to provide health benefits for all its employees or to provide the same benefits for all employees.  Two prior opinions of this office are, however, on point:  AGO 65-66 No. 1 and AGO 65-66 No. 34.

             In AGO 65-66 No. 1, we considered whether a school district was required, under an earlier but substantially similar version of RCW 41.04.180, to provide like health care benefits to all its employees.  We said it was not.  We further opined that a school district was not even required to make any coverage available for all its employees:

            There simply is no express requirement in the statute that all employees of a given department of state government or of a given political subdivision be afforded hospitalization and medical aid coverage merely because the employer has determined, as a matter  [[Orig. Op. Page 8]] of policy, to establish or make available this coverage for specific categories of its employees.  Of course, any classification as to employees covered and employees not covered must be rational.  It cannot be arbitrary, capricious, or invidiously discriminatory.

 AGO 65-66 No. 1, at 5.  We reaffirmed this opinion in AGO 65-66 No. 34.

             RCW 41.04.180 has not been amended since 1965 in any way that would change our analysis.  Thus, statutory law does not prevent the county council from excluding superior court judges from receiving health benefits afforded other county officials and employees, so long as the county acts upon a rational basis.  Whether such action would be rationally based is considered in part D. below.

             C.  Separation of Powers

             Whenever the Legislature acts to curtail the funding of the courts or reduce the compensation of judges, there may be a question whether the Legislature has violated the separation of powers doctrine.  SeeIn re Juvenile Director, 87 Wn.2d 232, 552 P.2d 163 (1976); Zylstra v. Piva, 85 Wn.2d 743, 539 P.2d 823 (1975).  In its exhaustive historical review of the doctrine of separation of powers, the court inIn re Juvenile Director quoted Justice Jackson, concurring in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 96 L. Ed. 1153, 72 S. Ct. 863 (1952):

                         The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.  While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.  It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

 87 Wn.2d at 243.  The system can, however, break down:

                         The spirit of reciprocity and interdependence requires that if checks by one branch undermine the operation of another branch or undermine the rule of law which all branches are committed to maintain, those checks are improper and destructive exercises of the authority.


              [[Orig. Op. Page 9]]

             With particular regard to judicial funding, the court in In re Juvenile Director said:

             While courts must limit their incursions into the legislative realm in deference to the separation of powers doctrine, separation of powers also dictates that the judiciary be able to insure its own survival when insufficient funds are provided by the other branches.  To do so, courts possess inherent power [to finance their own functions] . . . .

 Id. at 245.

             By the same token, attempts by the judiciary to exercise this inherent judicial power can create their own serious problems.  Such attempts

             [ignore] the political allocation of available monetary resources by representatives of the people elected in a carefully monitored process.  Supreme Courts, obviously, are not composed of judges elected in a proportionally representative manner.  The unreasoned assertion of power to determine and demand their own budget is a threat to the image of and public support for the courts.  In addition, such actions may threaten, rather than strengthen, judicial independence since involvement in the budgetary process imposes upon the courts at least partial responsibility for increased taxes and diminished funding of other public services.

 Id. at 248 (citations omitted).

            To resolve these competing considerations, courts have imposed upon themselves

             a very high standard for the application of inherent power in funding matters.  The burden is on the court to show that the funds sought to be compelled are reasonablynecessary for the holding of court, the efficient administration of justice, or the fulfillment of its constitutional duties.

 Id. at 249-50 (emphasis in original).6/

              [[Orig. Op. Page 10]]

             In re Juvenile Director involved an attempt by the Lincoln County Superior Court to order the Lincoln County Board of commissioners to increase the salary of the County Director of Juvenile Services.  After setting forth the appropriate test and burden in cases involving judicial compensation, the Supreme Court found a "fundamental failure of proof" on the part of the Superior Court:

             No evidence in the record supports by a preponderance of the evidence‑-let alone by a clear, cogent, and convincing showing‑-respondent's determination that the salary paid to the Director of Juvenile Services was so inadequate that the court could not fulfill its duties.  Neither does the record show that an increase in salary was reasonably necessary for the efficient administration of justice.

 Id. at 252.

             In re Juvenile Director is the leading case in this state on the doctrine of separation of powers, particularly as it relates to judicial compensation.  Applying the test set forth in that case to the situation before us, we do not see any basis on which the King County Superior Court could argue that the county's proposed reduction of judicial health benefits would violate the separation of powers doctrine.  The reduction in benefits, as important an issue to the judges as it may be, will certainly not so reduce the compensation of judges that they will be unable to fulfill their duties, nor is the preservation of county benefits reasonably necessary for the efficient administration of justice.7/

              D.  Equal Protection

             The equal protection clause of the fourteenth amendment to the United States Constitution and corresponding article 1, section 12 of the Washington State Constitution prohibit invidious discrimination by the government in the enforcement or  [[Orig. Op. Page 11]] enactment of laws.  SeeState v. Perriqoue, 81 Wn.2d 640, 641, 503 P.2d 1063 (1972).

            At the outset of any equal protection analysis, it is necessary to define the standard of review against which to test the challenged state action.  State v. Rice, 98 Wn.2d 384, 399, 655 P.2d 1145 (1982).  Two tests are used to judicially measure classifications alleged to violate equal protection:  the strict scrutiny and rational relationship tests.  The strict scrutiny test is used if the classification attacked as discriminatory involves a "suspect" class or a "fundamental right" explicitly or implicitly guaranteed by the United States Constitution.  Id.  When strict scrutiny is involved, the classification will be upheld only if the State makes a showing of a compelling state interest to justify the classification.  Id.;Darrin v. Gould, 85 Wn.2d 859, 865, 540 P.2d 882 (1975).

             Judges are not a "suspect" class.  Thompson v. Walker, 758 F.2d 1004, 1009 (4th Cir. 1985); Schwartz v. Judicial Retirement sys., 584 F. Supp. 711, 723 (D.N.J. 1984) ("[T]he state judiciary is [not] a group 'saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.'").  Nor do they have a fundamental right to continued health care benefits.  The source of their right to benefits is not constitutional; it is statutory.  See RCW 41.04.180.  As we have said, the county has considerable authority as to whether to grant such benefits at all.  See AGO 65-66 No. 1; AGO 65-66 No. 34; see alsoSanchez v. Department of Labor & Indus., 39 Wn. App. 80, 89, 692 P.2d 192 (1984) (classifications bearing on nonconstitutional interests, even those involving the most basic economic needs of impoverished human beings, usually will not be subject to heightened scrutiny because they are not distinguishable, in any relevant way, from other regulations in the area of economics and social welfare).

             The appropriate test to use here, therefore, is the "rational relationship" test.  The court inDavis v. Department of Empl. Sec., 108 Wn.2d 272, 280, 737 P.2d 1262 (1987) described this test as follows:

                         Under the "rational relationship" test legislation must satisfy three requirements:  (1) it must apply alike to all members of the designated class; (2) there must be some basis in reality for resonably distinguishing between those falling within the class and those falling outside of it; and (3) the challenged classification must have a rational relationship to the purposes of the challenged statute.

              [[Orig. Op. Page 12]]

             Here, the proposed county action will satisfy the first prong of the rational relationship test, as it will, presumably, apply to all King County superior court judges.  The legislation will also satisfy the third prong.  The purpose of the county action is to avoid "unnecessary and duplicate expenditure of county monies."  King County Council Motion No. 7251, passed July 21, 1988.  Discontinuing judicial health benefits will obviously achieve this purpose by saving the county money.

             The only prong really at issue here is the second: whether there is some basis in reality for distinguishing between the superior court judges and the other employees who will continue to receive county health benefits.  We believe the distinction between judges and other county employees is easily maintained.  First, unlike others receiving county health benefits, superior court judges are officers of the state.  As such, they currently receive both state benefits and county benefits.  If county benefits are discontinued, they will still receive state benefits.8/

             Thus, there is a rational basis to distinguish between superior court judges and other county officials and employees in the provision of health benefits by the county.

             Second, while superior court judges are county officers and therefore are somewhat similarly situated with other county officers and employees, they are also members of the state judiciary and therefore are similarly situated with supreme court justices and court of appeals judges.  These other state judges receive only state health benefits.  If the county benefits are discontinued, superior court judges will still receive the same health benefits as their peer judges.  This fact further supports our conclusion that the rational relationship test is satisfied here.

             Question 2

             We repeat your second question for ease of reference:

             Does the answer to question 1 depend on whether the state coverage is at least as comprehensive as the county coverage?

             We have previously opined that as long as the benefits at issue are "substantially equivalent" there is no obligation to  [[Orig. Op. Page 13]] provide identical benefits.  AGO 65-66 No. 34, at 4.  We do not undertake here to define "substantially equivalent."  However, the county benefit package and the state benefit package, while not identical, both provide comprehensive benefits.

             We also have opined previously that two classes of employees need not receive even "substantially equivalent" benefits, provided there is a rational basis for differentiating between the two classes.  AGO 65-66 No. 1.  As we explained in our answer to question 1, there is a rational basis for providing different benefits to superior court judges than those provided to other county officers and employees.  Therefore, it is permissible to differentiate between judges and other county officers and employees regardless of whether the state coverage is as comprehensive as the county coverage.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
Attorney General 

Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/This special status derives from language in the Washington State Constitution which, among other things, provides that one‑half of the salary of a superior court judge will be paid by the State and one‑half by the county.  Const. art. 4, § 13

 2/State employee insurance coverage is provided for in chapter 41.05 RCW.  Chapter 41.04 RCW provides for county employee insurance coverage.

 3/Though article 2, section 25 refers to action by the Legislature, the language prohibiting the increase or decrease of compensation has been held to apply to any legislative authority, including a county council.  SeeEverett v. Johnson, 37 Wn.2d 505, 510, 224 P.2d 617 (1950).

 4/Article 3, section 25 applies to superior court judges because they are state officers as well as county officers.  State ex rel. Edelstein v. Foley, 6 Wn.2d at 448; AGO 1979 No. 14.

 5/In AGO 53-55 No. 355 we concluded that the term "compensation" included health benefits for the purpose of interpreting article 11, section 8, citing State ex rel. Funke v. Board of Comm'rs, 48 Wash. 461, 93 P. 920 (1908).  Because the term "compensation" does not appear in article 11, section 8, and because the cited language from Funke interprets article 2, section 25, rather than article 11, section 8, we conclude that AGO 53-55 No. 355 misstated the constitutional basis for its conclusions, and that the opinion is in fact based solely upon article 2, section 25.  We continue in the view that the terms "salary" and "compensation" are different, and that the selection of particular terms in the constitution and in statute was intentional.

 6/This standard was described by the court as "the highest burden of proof in civil cases when courts seek to exercise their inherent power in the context of court finance" and as requiring "clear, cogent, and convincing proof of a reasonable need for additional funds." Id. at 251.

 7/Such a showing is not possible here, if for no other reason, than that the supreme court justices and court of appeals judges receive the same benefits the superior court judges will receive after the council's proposed action.

 8/We express no opinion at this time as to whether the state is now obligated to continue to provide state benefits or whether the county would be required to reinstate county benefits for the superior court judges should the state eliminate its benefits.