The Honorable John E. Barker
AGO 2018-19
No. 2018-19
Kansas Attorney General Opinion
State of Kansas Office of the Attorney General
December 21, 2018
The
Honorable John E. Barker
State
Representative, Seventieth District
103
Wassinger
Avenue
Abilene, KS 67410
Re:
Constitution of the State of
Kansas—Judicial—Compensation of Justices and
Judges; Certain Limitation
Synopsis:
The 2.5% salary increase given to judges under L. 2017, Ch.
104, §177(f)(4) did not violate Article 3, § 13, of
the Kansas Constitution, even though some other state
employees received a 5% salary increase under L. 2017, Ch.
104, §177(f)(1). Rather, the enactment of L. 2017, Ch.
104, §177(f)(4) was based on the Kansas
Legislature's delegated power in Article 2, § 24, of
the Kansas Constitution to fix and, periodically, increase
judicial compensation. It did not diminish the compensation
of judges. Thus, the Compensation Clause in the Kansas
Constitution was not violated. K.S.A. 75-3120g; K.S.A. 2018
Supp. 75-3120g; 75-3120h; 75-3120k, 75-3120l; L. 2017, Ch.
104, §177; Kan. Const., Art. 1, §§ 1, 15; Art.
2, § 24; Art. 3, § 13.
Dear
Representative Barker:
As the
State Representative for the Seventieth District, you ask for
an opinion on whether the differential treatment of salary
increases as set forth in L. 2017, Ch. 104, §177(f)
between judges and justices and unclassified and classified
employees violates the Compensation Clause set forth in
Article, 3, § 13, of the Kansas Constitution. For the
reasons set forth below, the answer is no.
Pursuant
to Article 2, § 24, of the Kansas Constitution, the
Kansas Legislature sets forth specific appropriations made by
law. The Legislature enacted L. 2017, Ch. 104, §177,
which made the following appropriations for salary increases
to state employees for the fiscal year ending June 30, 2018:
(f) A state employee shall be eligible for a salary increase
under this section based on only one of the following:
(1) 5% salary increase, including associated employer
contributions, for all state employees in the classified and
unclassified service who have not received an increase in
salary after July 1, 2012, and who have been continuously
employed by the state since July 1, 2012, except as provided
in paragraph (3) or (4);
(2) 2.5% salary increase, including associated employer
contributions, for all state employees in the classified and
unclassified service who first became employed by the state
after July 1, 2012;
(3) 2.5% salary increase, including associated employer
contributions, for all non-judicial employees of the judicial
branch; or
(4)2.5% salary increase, including associated employer
contributions, for all justices of the supreme court, judges
of the court of appeals, district court judges and district
magistrate judges.
Additionally,
other specified state employees and officials, including
members of the legislature, were prohibited from receiving
salary increases. L. 2017, Ch. 104, §177(e)(1),
(2)(A)-(D).
Your
concern is the 2.5% differential in salary increase between
subsections (f)(1) for certain state employees and (f)(4) for
justices and judges in L. 2017, Ch. 104, § 177. In other
words, you question whether the Compensation Clause in §
13 of Article 3 of the Kansas Constitution requires the
legislature to raise the salaries of justices and judges by a
percentage that is equal to or greater than the largest
percentage given to any other state employees.
Article
3, § 13, of the Kansas Constitution states:
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,1 which shall not be diminished
during their terms of office unless by general law applicable
to all salaried officers of the state. Such justices or
judges shall receive no fees or perquisites nor hold any
other office of profit or trust under the authority of the
state, or the United States except as may be provided by law,
or practice law during their continuance in
office.2
The
above italicized language is known as a Compensation Clause.
Article 1 of the Kansas Constitution includes an identical
Compensation Clause, which applies to the governor,
lieutenant governor, secretary of state, and attorney
general.
3 However, the 2017 law prohibited salary
increases for these officials.
4
In
Attorney General Opinion No. 87-2, our office found that the
Compensation Clause for judges was added to our constitution
in 1972 and taken from the Alaska Constitution. Thus, we
relied upon an Alaska Supreme Court case, Hudson v.
Johnstone,
5 to interpret this language. Based on
language in Hudson, our office opined that the
underlying purpose of the proscription against diminishing
judicial compensation was to assure a judiciary independent
from the domination of the executive and legislative
branches. The Hudson court was quoting the United
States Supreme Court in United States v.
Will
6regarding the purpose of the Compensation
Clause in the federal constitution.
7 In other words, the
compensation clauses in the Kansas Constitution and the
United States...
