The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5555

September 4, 1979

JUDGES:

Compensation and salaries

OFFICES AND EMPLOYEES:

Compensation and salaries

CONSTITUTION OF MICHIGAN:

Article 6, Sec. 18 (salaries of judges)

The County Boards of Commissioners of the counties comprising the 29th Judicial Circuit may supplement judicial salaries in an amount lower than that paid to a judge whose term had expired before newly elected judges began to serve their terms of office.

The Honorable Timothy M. Green

Circuit Judge

Clinton County Circuit Court

Courthouse

St. Johns, Michigan 48879

You have requested my opinion on a matter related to lowering the supplemental judicial salary previously established by Clinton and Gratiot Counties which comprise the 29th Judicial Circuit.

You have stated that you were elected for an eight year term to a newly-created circuit judgeship established by the legislature by 1978 PA 164, and that Judge Tahvonen was elected to a six year term beginning January 1, 1979 at the same November, 1978 General Election at which you were elected. Judge Tahvonen was elected to the seat on the bench formerly occupied by Judge Corkin whose term expired on December 31, 1978. You also advise that prior to the commencement of the new terms, the Boards of Commissioners of both Clinton and Gratiot Counties voted additional salaries to Judge Tahvonen and yourself which were lower than the supplemental salary previously paid to Judge Corken.

You ask my opinion on whether the boards of county commissioners are required to supplement the salaries paid to you and Judge Tahvonen in the same amount that was paid to Judge Corkin prior to the expiration of his term.

In OAG, 1952-1954, No 1661, p 157, (May 21, 1953), it was held that a county board of commissioners may not decrease the additional salary payable to circuit judge during the period after his election or appointment but before he took office. That opinion rested on the wording of Const 1908, art XVI, Sec. 3, which read:

"Salaries of public officers, except circuit judges, shall not be increased, not shall the salary of any public officer be decreased, after election or appointment." [Emphasis added]

The current Constitution, however, does not include the same lanuage preventing a decrease in the additional compensation paid by the county after election or appointment, but rather provides in Const 1963, art 6, Sec. 18:

'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.

'Each of the judges of the circuit court shall receive an annual salary as provided by law. In addition to the salary received from the state, each circuit judge may receive from any county in which he regularly holds court an additional salary as determined from time to time by the board of supervisors of the county. In any county where an additional salary is granted, it shall be paid at the same rate to all circuit judges regularly holding court therein.' [Emphasis added]

OAG, 1965-1966, No 4561, p 413 (December 30, 1966), reviewed the development of Const 1963, art 6, Sec. 18, and noted that the section of the 1963 Constitution retained similar prohibition against decreasing salaries of circuit judges during their term and the reasons that the delegates requested uniformity of salary for all judges serving within the same salary. It was noted that the effect of these provisions is that, in multi-judge circuits, the county board of commissioners may not terminate or reduce the additional salary previously paid by them except and only to the extent of a general salary reduction in all branches of the county government where the judicial terms are staggered.

This conclusion did not deal with the situation which occurred in the 29th Judicial Circuit. The Constitution and the statutes do not prevent the legislature from beginning the term of a newly-created judgeship simultaneously with the beginning of the new term of an existing judgeship provided that the two offices are filled for staggered terms.

It is therefore my opinion that the county boards of commissioners of the counties comprising the 29th Judicial Circuit may supplement judicial salaries in an amount lower than that paid to a judge whose term had expired before newly-elected judges began to serve their terms of office.

Frank J. Kelley

Attorney General