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.

Alabama The compensation of a judge shall not be diminished during his official term. Alabama Const. Art. VI, Sec. 148
Alaska Compensation of justices and judges shall not be diminished during their terms of office, unless by general law applying to all salaried officers of the State. Alaska Const. art. IV, § 13
Arizona The salary of any justice or judge shall not be reduced during the term of office for which he was elected or appointed…All State and county officers (except notaries public) and all justices of the peace and constables, whose precinct includes a city or town or part thereof, shall be paid fixed and definite salaries, and they shall receive no fees for their own use. A.R.S. Const. Art. VI, § 33 & XXII, § 17
Arkansas The General Assembly shall by law determine the amount and method of payment of Justices and Judges. Such salaries and expenses may be increased, but not diminished, during the term for which such Justices or Judges are selected or elected. Salaries of Circuit Judges shall be uniform throughout the state. Ark. Const. Amendment 80, § 16
California The Legislature may prescribe increases in those salaries during a term of office, and it may terminate prospective increases in those salaries at any time during a term of office, but it shall not reduce the salary of a judge during a term of office below the highest level paid during that term of office. Cal Const, Art. III § 4
Colorado Justices and judges of courts of record shall receive such compensation as may be provided by law, which may be increased but may not be decreased during their term of office and shall receive such pension or retirement benefits as may be provided by law. Colo. Const. Art. VI, Section 18
Delaware reasonable compensation to be fixed by the General Assembly Del. Const. art IV, § 4
Florida Their compensation shall be fixed by general law Art. V, § 3 (Supreme Court), § 4 (District Courts of Appeal)
Georgia An incumbent’s salary, allowance, or supplement shall not be decreased during the incumbent’s term of office. Ga. Const. Art. VI, § VII, Para. V
Hawaii Any salary established pursuant to this section shall not be decreased during a term of office, unless by general law applying to all salaried officers of the State. HRS Const. Art. XVI, § 3.5
Idaho The legislature may by law diminish or increase the compensation of…justices of the Supreme Court, judges of the court of appeals and district courts and magistrate judges; but no diminution or increase shall affect the compensation of the officer then in office during his term Idaho Const. Art. V, § 27
Illinois Judges shall receive salaries provided by law which shall not be diminished to take effect during their terms of office. Illinois Const., Art. VI, § 14
Indiana The Justices of Supreme Court and Judges of the Court of Appeals and of the Circuit Courts shall at stated times receive a compensation which shall not be diminished during their continuance in office. Ind. Const. Art. 7, § 19
Kansas The justices of the supreme court and judges of the district courts shall receive for their services such compensation as may be provided by law, which shall not be diminished during their terms of office, unless by general law applicable to all salaried officers of the state. Kan. Const. Art. 3, § 13
Kentucky The compensation of a justice or judge shall not be reduced during his term. Ky. Const. § 120
Louisiana The term of office, retirement benefits, and compensation of a judge shall not be decreased during the term for which he is elected. La. Const. Art. V, § 21
Maine The Justices of the Supreme Judicial Court and the Judges of other courts shall, at stated times receive a compensation, which shall not be diminished during their continuance in office Me. Const. Art. VI, § 2
Maryland The salary of each Judge of the Court of Appeals shall be that now or hereafter prescribed by the General Assembly and shall not be diminished during his continuance in office… The salary of each Chief Judge and of each Associate Judge of the Circuit Court shall not be diminished during his continuance in office…The salary of a judge of the District Court shall not be reduced during his continuance in office. Md. Const. art. IV, § 14 (Court of Appeals), §24 (Circuit), § 41H (District)
Massachusetts Permanent and honorable salaries shall also be established by law for the justices of the supreme judicial court. ALM Constitution Pt. 2, Ch. II, Sec. I, Art. XIII
Michigan Salaries of justices of the supreme court, of the judges of the court of appeals, of the circuit judges within a circuit, and of the probate judges within a county or district, shall be uniform, and may be increased but shall not be decreased during a term of office except and only to the extent of a general salary reduction in all other branches of government. MCLS Const. Art. VI, § 18
Minnesota The compensation of all judges shall be prescribed by the legislature and shall not be diminished during their term of office. Minn. Const., Art. VI, § 5
Mississippi The judges of the Supreme Court, of the circuit courts, and the chancellors shall receive for their services a compensation to be fixed by law, which shall not be increased or diminished during their continuance in office. Miss. Const. Ann. Art. 6, § 166
Missouri All judges shall receive as salary the total amount of their present compensation until otherwise provided by law, but no judge’s salary shall be diminished during his term of office. Mo. Const. Art. V, § 20
Montana All justices and judges shall be paid as provided by law, but salaries shall not be diminished during terms of office. Mont. Const., Art. VII § 7
Nebraska The compensation of any public officer, including any officer whose compensation is fixed by the Legislature, shall not be increased or diminished during his or her term of office, except that when there are members elected or appointed to the Legislature or the judiciary, or officers elected or appointed to a board or commission having more than one member and the terms of such members commence and end at different times, the compensation of all members of the Legislature, of the judiciary, or of such board or commission may be increased or diminished at the beginning of the full term of any member thereof. Ne. Const. Art. III, § 19
Nevada The Justices of the Supreme Court and District Judges shall each receive for their services a compensation to be fixed by law and paid in the manner provided by law, which shall not be increased or diminished during the term for which they shall have been elected, unless a Vacancy occurs, in which case the successor of the former incumbent shall receive only such salary as may be provided by law at the time of his election or appointment… Nev. Const. Art. 6, § 15
New Hampshire Permanent and honorable salaries shall be established by law, for the justices of the superior court. N.H. Const. Pt. SECOND, Art. 59
New Jersey The Justices of the Supreme Court and the Judges of the Superior Court shall receive for their services such salaries as may be provided by law, which shall not be diminished during the term of their appointment, except for deductions from such salaries for contributions, established by law from time to time, for pensions as provided for under paragraphs 3 and 5 of Section VI of this Article, health benefits, and other, similar benefits. N.J. Const., Art. VI, Sec. VI, Para. 6 (bold added in 2012)
New Mexico Magistrates shall receive compensation as may be provided by law, which compensation shall not be diminished during their term of office. N.M. Const. art. VI, § 26
New York The compensation of a judge of the court of appeals, a justice of the supreme court, a judge of the court of claims, a judge of the county court, a judge of the surrogate’s court, a judge of the family court, a judge of a court for the city of New York established pursuant to section fifteen of this article, a judge of the district court or of a retired judge or justice shall be established by law and shall not be diminished during the term of office for which he or she was elected or appointed. NY CLS Const Art VI, § 25
North Carolina The General Assembly shall prescribe and regulate the fees, salaries, and emoluments of all officers provided for in this Article, but the salaries of Judges shall not be diminished during their continuance in office. N.C. Const. art. IV, § 21
North Dakota The justices of the supreme court shall be chosen by the electors of the state for ten-year terms, so arranged that one justice is elected every two years. They shall hold office until their successors are duly qualified, and shall receive compensation as provided by law, but the compensation of any justice shall not be diminished during his term of office… The compensation of district judges shall be fixed by law, but the compensation of any district judge shall not be diminished during his term of office. N.D. Const. Art. VI, § 7 (Supreme Court) & § 9 (District Court)
Ohio The judges of the supreme court, courts of appeals, courts of common pleas, and divisions thereof, and of all courts of record established by law, shall, at stated times, receive, for their services such compensation as may be provided by law, which shall not be diminished during their term of office. Oh. Const. Art. IV, § 6
Oklahoma The salaries of Judges and Justices shall not be diminished, but may be increased during their respective terms of office. Okl. Const. Art. VII, § 11
Oregon The judges of the supreme and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years, and shall receive such compensation as may be provided by law, which compensation shall not be diminished during the term for which they are elected. Ore. Const. Art. VII, § 1
Pennsylvania Justices, judges and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth. Pa. Const. Art. V, § 16
Rhode Island The judges of the supreme court shall receive a compensation for their services, which shall not be diminished during their continuance in office. R.I. Const. Art. X, § 6
South Carolina The Justices of the Supreme Court and the judges of the Court of Appeals and Circuit Court shall each receive compensation for their services to be fixed by law, which shall not be diminished during the term. S.C. Const. Ann. Art. V, § 16
Tennessee The Judges of the Supreme or Inferior Courts, shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be increased or diminished during the time for which they are elected. Tenn. Const. Art. VI, § 7
Texas Salaries set “by Legislature”, “as shall be provided by law”, “to be fixed by Legislature”, or “as may be prescribed by law” Tex. Const. Art. V, § 1-a (generally); Art. V, § 2 (Supreme Court); Art. V, § 4 (Court of Criminal Appeals); Art. V, § 7 (District Courts); Art. V, § 15 (County Courts)
Utah The Legislature shall provide for the compensation of all justices and judges. The salaries of justices and judges shall not be diminished during their terms of office. Utah Const. Art. VIII, § 14
Virginia The salary of any justice or judge shall not be diminished during his term of office. Va. Const. Art. VI, § 9
Washington 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. Wash. Const. Art. IV, § 13
West Virginia Justices, judges and magistrates shall receive the salaries fixed by law, which shall be paid entirely out of the state treasury, and which may be increased but shall not be diminished during their term of office, and they shall receive expenses as provided by law. The salary of a circuit judge shall also not be diminished during his term of office by virtue of the statutory courts of record of limited jurisdiction of his circuit becoming a part of such circuit as provided in section five of this article. W. Va. Const. Art. VIII, § 7
Wisconsin (2) Except as provided in this subsection, the compensation of a public officer may not be increased or diminished during the term of office:(a) When any increase or decrease in the compensation of justices of the supreme court or judges of any court of record becomes effective as to any such justice or judge, it shall be effective from such date as to every such justice or judge.(b) Any increase in the compensation of members of the legislature shall take effect, for all senators and representatives to the assembly, after the next general election beginning with the new assembly term. Wisc. Con. Art. IV, § 26
Wyoming The judges of the supreme and district courts shall receive such compensation for their services as may be prescribed by law, which compensation shall not be increased or diminished during the term for which a judge shall have been elected, and the salary of a judge of the supreme or district court shall be as may be prescribed by law; provided, however, that when any legislative increase or decrease in the salary of the justices or judges of such courts whose respective terms of office do not expire at the same time, has heretofore or shall hereafter become effective as to any member of such court, it shall be effective from such date as to each of the members thereof. Wyo. Const. Art. 5, § 17

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