Arkansas Issue 3: Only 22 states have judicial compensation commissions and they tend to be advisory

An aspect I’ve not discussed yet of Arkansas’ Issue 3 is the specific role and function of the Independent Citizens Commission. Under the terms of the amendment if approved the commission would meet and set the salaries for justices/judges, elected constitutional officers of the executive department, and members of the General Assembly. The Commission’s determinations would be automatically put in place and the legislature would not have the power to override their determination. Moreover, the legislature would not have to appropriate the funds separately, a sticking point in other states.

22 states have statutorily or constitutionally created commissions to look at judicial compensation. Several other states (such as Kentucky in 2010) have ad hoc or one-time only commission to this effect.

Data for the below is from two NCSC products: State Court Organization and the KIS Resource Guide on such commissions.

Judicial Compensation Commissions vs. Joint Compensation Commissions

The commission envisioned under Issue 3 would handle the salaries for the state’s top officials in all three branches of government. Of the 22 states with commissions that work on or look at judicial compensation, half (11) focus solely on the judiciary.

  • Reviews Non-Judicial Positions (11): Alaska, Arizona, Georgia, Hawaii, Michigan, Minnesota, Missouri, New Jersey, Oregon, Utah, Washington
  • Reviews Only Judicial Positions (11): Alabama, Connecticut, Delaware, Iowa, Louisiana, Maine, Maryland, New Mexico, New York, Oklahoma, Texas

Advisory, Automatic, or Automatic Subject to Override?

Another element of the Issue 3 commission is that its recommendations would be automatically into place and not subject to neither a separate appropriation nor a legislative override. In the case of Arkansas the adjustment would be automatic (“An adjustment to a salary shall be effective ten (10) days after it is filed with the Auditor of State.“)

  • Commission recommendation is advisory only; legislature must appropriate funds (14): Alabama, Alaska, Connecticut, Georgia, Iowa, Louisiana, Maine, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Texas, Utah
  • Commissions recommendation is automatically appropriated unless legislature overrides (7): Arizona, Delaware, Hawaii, Maryland, Missouri, New York, Oklahoma
  • Commissions recommendation is automatically appropriated unless voter referendum overrides (1): Washington

 

 

Arkansas Issue 3: Compensation for judges would be protected from diminishment while in office

Note: a draft version of this was posted accidentally

I alluded yesterday in my review of Arkansas’ constitutional history of judicial compensation that throughout much of the state’s history the compensation of judges of the state’s lower courts was not constitutionally protected while those of the higher courts (Supreme, Circuit, and while it existed Chancery) were. Issue 3 however reword those protections.

The present language is:

The General Assembly shall by law determine the amount and method of payment of salaries and expenses of the judges of the Supreme Court, Circuit Courts, Chancery Courts, and Municipal Courts of Arkansas; provided such salaries and expenses may be increased but not diminished during the term for which such judges are elected; provided further that the salaries of Circuit and Chancery Judges shall be uniform throughout the state.

The Issue 3 language would read:

The independent citizens commission may increase but not diminish the salaries for the positions under subdivisions (d)(9) – (14) of this section…

The offices listed in (d)(9)-(14) include

(9) Chief Justice of the Supreme Court;

(10) Justice of the Supreme Court;

(11) Chief Judge of the Court of Appeals;

(12) Judge of the Court of Appeals;

(13) Circuit court judge; and

(14) District court judge.

1836/1864 Constitutions: High courts protected from diminishment, lower courts not

Both the 1836 and 1864 constitutions protected only the judges and justices of the Supreme and Circuit Courts. Chancery Courts were first created in 1855, but not protected under the 1864 constitution. County and Justice of the Peace Judges did not have compensation protections. Specific language can be found in yesterday’s post.

1874 Constitution: No mid-term diminishment, but no increase either

The 1874 Constitution included two separate protections against diminishment for Supreme and Circuit Courts, first in the Judiciary Article (Art. VII, Sec. 10 (Supreme) and Sec. 18 (Circuit)) and next in the Miscellaneous Provisions Article (Art. XIX, Sec. 11). It is the second provision that introduced for the first time a prohibition on raising judge salaries during their term in office

The governor, secretary of state, auditor, treasurer, attor­ney-general, judges of the supreme court, judges of the circuit court, commissioner of State lands, and prosecuting attorneys shall each receive a salary to be established by law, which shall not be increased or diminished during their respective terms

Lower court judges remained implicitly unprotected.

The county judge shall receive such compensation for his services as presiding judge of the county court, as judge of the court of probate, and judge of the court of common pleas, when established, as may be provided by law. (Art. VI, Sec. 37)

The Amendments

Amendment 9 (1924): Expanded the Supreme Court and kept the no diminishment/no increase language after a one-time change by the legislature in implementing the new provision (“such salary shall not thereafter be increased or diminished during their respective terms…”)

Amendment 23 (1928): Increased salary for Judge of the Circuit Courts and Chancellors to $3,600. Since it specified their salary, neither increase nor diminishment was going to happen without a constitutional amendment.

Amendment 37 (1944): Created a range for the “salaries and expenses” of Judges of the Circuit Courts and Chancellors to $4,800 to $7,200 with the specific amount to be set by the legislature.

Amendment 43 (1956): This amendment adopted the modern language in use today. It also reopened the possibility after 80 years of mid-term salary increases for judges.

The General Assembly shall by law determine the amount and method of payment of salaries and expenses of the judges of the Supreme Court, Circuit Courts, Chancery Courts, and Municipal Courts of Arkansas; provided such salaries and expenses may be increased but not diminished during the term for which such judges are elected; provided further that the salaries of Circuit and Chancery Judges shall be uniform throughout the state.

What do other states do?

Nearly every state has a constitutional provision related to judicial salaries and compensation, however they vary widely in terms of whether or not such items can be reduced or increased (as was the case in Arkansas for decades) and if so under what conditions. Most recently New Jersey amended its constitution after a state supreme court ruling that making judges contribute more to the pension program was a diminishment

State by state details below the fold.

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Arkansas Issue 3: State has had a long, winding constitutional history when it comes to judicial compensation

One provision of Issue 3 would create an Independent Citizens Commission to set salaries for judges in the state. Arkansas has had a somewhat tumultuous constitutional history when it came to compensation for officials in general and for the courts in particular.  Since its 1874 constitution at least there has been effort after effort to lock in salaries for officials, including and specifically judges, into the state constitution, making it all but impossible to raise salaries at any rate.

1836/1864 Constitutions

Both the 1836 and 1864 constitutions provided the same language on this score: Supreme and Circuit Court judges were explicitly protected in their “compensation” and County and Justice of the Peace Courts compensation were to be set by law, but there were no particular limits aside from non-dimishment for the higher courts (a matter which will be dealt with tomorrow).

The judges of the supreme and circuit courts shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be diminished during the time for which they are elected [or appointed]. (1836 Constitution: Art. VI, Sec 8; 1864 Constitution: Art. VII, Sec. 10; 1868 Constitution Art. VII, Sec. 13 (added words “elected or appointed”))

The Presiding judge of the County Court and Justices of the Peace shall receive for their services such compensation and fees as the General Assembly may from time to time by law direct. (1836 Constitution: Art. VI, Sec. 11; 1864 Constitution: Art. VII, Sec. 13)

1874 Constitution: Locking in salaries

The 1874 Constitution started to change some of the language that was at play. While keeping some of the language of protecting the compensation of higher court judges, it also capped that total compensation within the constitution itself.

The supreme judges [and judges of the circuit courts] shall, at stated times, receive a compensation for their services to be ascertained by law, which shall not be, after the adjournment of the next general assembly, diminished during the time for which they shall have been elected. (Art. VII, Sec. 10 (Supreme) and Sec. 18 (Circuit))

The…judges of the supreme court, judges of the circuit court…shall each receive a salary to be established by law, which shall not be increased or diminished during their respective terms…Provided, That the salaries of the respective officers herein mentioned shall never exceed per annum…for judges of the supreme court, each, the sum of $4,000; for judges of the circuit courts and chancellors, each, the sum of $3,000… (Art. XIX, Sec. 11)

No officer of this State, nor of any county, city, or town, shall receive, directly or indirectly, for salary, fees, and perquisites, more than five thousand dollars net profit per annum in par funds… (Art. XIX, Sec. 23).

Moreover, lower court judges remained implicitly unprotected.

The county judge shall receive such compensation for his services as presiding judge of the county court, as judge of the court of probate, and judge of the court of common pleas, when established, as may be provided by law. (Art. VI, Sec. 37)

The Amendments

Amendment 9 (1924): Expanded the Supreme Court and at the same time rewrote the compensation protection language for that court raising the $4,000 ceiling set in 1874 up to $7,500.

The Supreme Court judges shall at stated times receive compensation for their services to be fixed by law. When the salary of the judges under this amendment to the Constitution shall have been established by law, such salary shall not thereafter be increased or diminished during their respective terms. Until otherwise provided by law, the judges of the Supreme Court shall each receive a salary of seven thousand five hundred dollars per annum.

Amendment 23 (1928): Increased salary or Judge of the Circuit Courts and Chancellors to $3,600.

Amendment 37 (1944): Created a range for the “salaries and expenses” of Judges of the Circuit Courts and Chancellors to $4,800 to $7,200 with the specific amount to be set by the legislature.

Amendment 43 (1956): This amendment adopted the modern language in use today.

The General Assembly shall by law determine the amount and method of payment of salaries and expenses of the judges of the Supreme Court, Circuit Courts, Chancery Courts, and Municipal Courts of Arkansas; provided such salaries and expenses may be increased but not diminished during the term for which such judges are elected; provided further that the salaries of Circuit and Chancery Judges shall be uniform throughout the state.

Amendment 56 (1976): Repealed Art. XIX, Sec. 23 which limited lower court judges not otherwise covered by Amendment 43 to no more than $5,000.

Arkansas Issue 3: Salary commission for judges and others

Arkansas voters will have in the form of Issue 3 a whole host of topics all in one vote. The ballot item, originally three separate bills that were merged together includes changes to legislative term limits as well as limits on lobbyist contributions and gifts to officials.

Of particular relevance to the courts are three provisions that will be examined this week:

  • Independent Citizens Commission: Commission to set all salaries for judges/justices, members of the General Assembly, and elected constitutional officers of the executive department. The salary recommendations are to go into effective automatically without the need for separate appropriation.
  • Increase/diminishment during term of office: currently “salaries and expenses may be increased but not diminished during the term for which [] judges are elected.” Issue 3 would  reword the provision.
  • Uniform judicial salaries: The state constitution also provides that “the salaries of Circuit and Chancery Judges shall be uniform throughout the state.” Although Arkansas disbanded its Chancery Courts in 2001, the Circuit Courts remain.

 

Call for Submissions: Trends in State Courts

Trends in State Courts is an annual, peer-reviewed publication that highlights innovative practices in critical areas that are of interest to courts, and often serves as a guide for developing new initiatives and programs, and informing and supporting policy decisions.  Trends in State Courts is the only publication of its kind and enjoys a wide circulation among the state court community. It is distributed in hard copy and electronically.

Submissions for the 2015 edition are now being accepted. Please email abstracts of no more than 500 words by October 15, 2014 to Deborah Smith at dsmith@ncsc.org Abstracts received after this date are welcome and will be considered for inclusion in our monthly online edition.

Visit the Trends in State Courts website at www.ncsc.org/trends .

Hawaii Mandatory Judicial Retirement Age Amendment: Third time voters will weigh in on judicial aging issues in last decade

This year will mark the third time in a decade that Hawaii voters will be deciding issues related to mandatory judicial retirement. A review of these efforts shows a great many elements at play in the prior ballot efforts.

2005-2006: Eliminate the age (defeated at ballot box)

In 2005, Hawaii had the first Republican governor since statehood with the power to appoint judges via merit selection, a legislature made up of a supermajority of Democrats (41 to 10 in the House, 20 to 5 in the Senate), and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a constitutional amendment (SB 995) eliminating the mandatory retirement age of 70. The vote went along party lines, the move was viewed as partisan in general, and it which went down to a nearly 2-1 defeat in the November 2006 elections.

2007-2010: Raise the age

After the defeat in 2006 and taking the 2007 session off, the legislature went back to work on the subject. HB 2344 of 2008 would have raised the age from 70 to 72, while SB 3202 of the same year would have raised it from 70 to 80, but only for judges appointed after November 4, 2008 when the item would have been on the ballot. The 70-to-72 version went nowhere, the 70-to-80 version was approved in the House and Senate, but using slightly different language that could not be reconciled in conference committee in time.

A 2009/2010 version (HB 621) to raise the age from 70 to the end of the term in which a judge turned 70 was never even brought up for a committee hearing.

2011-2012: Raise and/or work around the age (defeated at ballot box)

The 2011/2012 session saw attempts to try and work around the mandatory retirement age of 70. SB 650 authorized the chief justice of the supreme court to appoint judges forced into retirement as “emeritus judges” to serve as per diem judges or judicial mentors in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months. An amended version, removing any reference to “judicial mentors” was approved by the House and Senate unanimously, but there was a catch. Because it was a constitutional amendment, the legislature was required under the constitution to give the governor 10 days written notice before passage. They failed to do so and had to swiftly repass the bill to get it onto the 2012 ballot. Despite no apparent opposition, the provision failed when over 10% of voters simply declined to vote on the item. Final tally: 49.6% Yes, 39.9% No, 10.4% not voting.

In the meantime the effort to raise the age was reintroduced and redebated (SB 2206 of 2012) again with an eye towards raising it from 70 to 80. It was approved unanimously in the Senate and the House Judiciary Committee in March 2012, but the focus for the remaining months of the legislature was on SB 650, the work around, rather than the increase.

2013-2014: Raise the age (again)

Despite the loss in 2012, the legislature moved ahead in 2013 with two tracks. The first was a repeat, almost verbatim, of the judge emeritus concept again to voters (HB 275 and SB 346). The difference here was that House version applies to any retired judge or justice, trial or appellate, regardless of whether they are forced into retirement at age 70 or not; the Senate version mentions only “judges” and otherwise reproduces the language of the 2012 bill (i.e. only those forced to retire at age 70):

The second, and appearing on the ballot this November, is another attempt and an increase. HB 792, SB 886 (which will be on the ballot) and SB 1022 all increased the mandatory judicial retirement age from 70 to 80. SB 886 moved quickly through the 2013 legislature, going from introduction on January 18, 2013 to final adoption on April 4.

Hawaii Mandatory Judicial Retirement Age Amendment: State has had mandatory retirement age since statehood

When the issue came up last year in New York, I looked at the history of mandatory judicial retirement age in the state. Today, I’ll be looking at Hawaii.

From 1898 to 1959, Hawaii was an organized incorporated territory of the United States. Neither the 1894 Republic of Hawaii Constitution nor the Congress-approved Organic Act of 1900 for the Territory of Hawaii included a mandatory judicial retirement age. The first iteration of a mandatory judicial retirement age came as part of the 1950 constitutional convention that adopted a new constitution, effective with statehood in 1959 (Art V., Sec. 3)

They [justice of the supreme court or judge of a circuit court] shall be retired upon attaining the age of seventy years.

The 1968 constitutional convention kept the same provision (Art. V, Sec. 3)

They [justice of the supreme court or judge of a circuit court] shall be retired upon attaining the age of seventy years.

Moreover, it does not appear that at the 1978 constitutional convention which overhauled many aspects of the judiciary article changes to the retirement age provision were discussed. The final provision, still operative today, read essentially the same as in 1950 (Art. VI, Sec. 3)

They [justices and judges of the supreme Court, intermediate appellate court, circuit courts and district courts] shall be retired upon attaining the age of seventy years.