Attorney General: Honorable Aaron Ment, Judge, Chief Court Administrator, 1991-010 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

March 9, 1991

Honorable Aaron Ment, Judge
Chief Court Administrator
Drawer N, Station A
Hartford, CT 06106

Dear Judge Ment:

This is in response to your letter of January 28, 1991 in which you ask whether or not a "judge who has been called in to active duty in the Armed Services of the country ... should be continued on the payroll of the Judicial Department for the period of time the judge concurrently retains the office of judge and serves in the Armed Forces of the United Stated." A superior court judge who is in the reserve component of the Armed Forces of the United States has been called to active duty after August 7, 1990 in connection with Operation Desert Shield/Desert Storm, necessitating an answer to your question.

For the reasons set forth below, we conclude that for the first thirty calendar days after the call to active duty, such a judge would be entitled to his or her full judicial salary and that thereafter the judge would be entitled to the difference between the judge's judicial salary plus longevity and the judge's total compensation for such active service.

The following legal principles govern the answer to your question. First, judges of the supreme, appellate and superior courts are constitutional officers with fixed terms of office of eight years. Article Fifth of the Constitution of Connecticut, and Articles VIII, XI, XX, and XXV of the Amendments to the Constitution of Connecticut. Second, in contrast to employees, a judge's right to his salary depends on the legal possession of that office and not upon the performance of the work. Samis v. King, 40 Conn. 298 (1873); Coughlin v McElroy, et al., 74 Conn. 397, 50 A. 1025 (1902); Sibley v. State of Connecticut, 89 Con. 682, 96 A. 161 (1915). Third, a judge may not be removed from office either permanently or temporarily except by means set forth in the Constitution, or in legislation enacted pursuant to Constitutional authorization. Smith v. Jackson, 246 U.S. 388 (1918). (In Connecticut, the vehicles for suspension and removal of judges are set forth in Article Fifth of the Constitution of Connecticut, Articles XI, XX, and XXV of the Amendments to the Constitution, and in Conn. Gen. Stat. 51-45c and 51-51g through 51-51u.) Fourth, because a judge may not be removed or suspended from office except in accordance with the Constitution and because the salary attaches to the office, a judge may not be denied his salary or have his salary suspended except by removal or suspension from office in accordance with the Constitution. Smith v. Jackson, 246 U.S. 388 (1918); Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49 (1968). Fifth, the power to determine judicial salaries is a legislative power, and includes the power to diminish those salaries so long as the diminution is uniformly applied to a class. McGovern v. Mitchell, 78 Conn. 536, 63 A. 433 (1906); Eielson v. Parker, 179 Conn. 552, 427 A.2d 814 (1980).

Since the date of your request for advice, the General Assembly has enacted 1991 Conn. Pub. Acts No. 91-2, which specifically answers the question posed in your request. That act contains several new statutory provisions ad amendments dealing with Connecticut residents, including state employees, serving on active duty in the Armed Forces of the United States in support of Operation Desert Shield and Operation Desert Storm. Sections 1 and 3 of the Act are applicable to the situation presented in your request. Section 1 defines the terms "state employee" or "employee" and "part pay."

As used in sections 1 to 4, inclusive, of this act, "state employee" or "employee" means any elected official, officer or full-time employee of the executive, legislative or judicial department; and "part pay" means the difference between the state employee's base rate of pay plus longevity in the employee's primary position on the date the employee is called to active service in the armed forces of the United States and the total compensation the employee receives for such active service, as certified to the comptroller by the employing state agency in a manner acceptable tot the comptroller.

As was discussed, supra, judges are constitutional officers in Connecticut. Included it he definition of "state employee" and "employee" is "any ... officer... of the ... judicial department." This phrase clearly encompasses judges. (The fact that the definition includes elected officials, who are also constitutional officers, resolves any doubt that the above referenced phrase might only over non-constitutional judicial officers, and, therefore, not a judge of the superior court.)

Section 3 of Public Act 91-2 contains the operative provisions governing pay for state employees in the armed forces or activated reserves of the United States during Operation Desert Shield and Operation Desert Storm.

Notwithstanding any provision of the general statues or any public or special act to the contrary, any state employee who is a member of the armed forces of the state or of any reserve component of the armed forces of the United States and who has been called to active service in the armed forces of the United States during the period commencing on August 7, 1990, and lasting for the duration of Operation Desert Shield and Operation Desert Storm until the cessation of hostilities as determined by the President of the United States or until a date established by an act of the general assembly, shall be entitled to a leave of absence with pay for thirty calendar days from the date on which the employee was called to active service. After the expiration of such thirty-day period, the state employee shall receive part pay for the duration of his active service in the armed forces if the compensation received by the state employee for his active service in the armed forces of the United States is less than the employee's base rate of pay, plus longevity, in the employee's primary position. The state employee shall not be required to exhaust accrued vacation or sick time in order to be eligible for the paid leave of absence and part pay under this section.

Since judges are state employees for the purposes of Public Act 91-2, Section 3 of that Act applies to them. A judge who is a member of any reserve component of the Armed Forces of the United States and who s called to active service after August 7, 1990 is entitled to his or her judicial salary for thirty calendar days from the date on which the judge was called to active service. Thereafter, the judge would be entitled to "part pay" as defined in Section 1 of Public Act 91-2, viz., the difference between his or her judicial salary plus longevity, and the total compensation he or she receives for the active service. Thus, after the initial thirty days, the combined military pay and State "part pay" would be the same as the salary of the judge prior to the call to active duty. And, of course, he or she would continue to retain his or her constitutional office as judge.

As stated, supra, in general a judge's salary may not be denied or suspended because the salary attaches to the office, not the work performed. The mechanism presented in Public Act 91-2 does not run afoul of this proposition because Public Act 91-2 does not work to either deny or suspend a judge's salary.

The General Assembly possesses broad authority to set judicial salaries. "The amount of the compensation to be paid to the judges of each of these courts [Supreme Court of Errors ad Superior Court] was left to be determined by such laws as the General Assembly might think proper to enact from time to time." McGovern v. Mitchell, 78 Conn. 536, 548, 63 A. 433 (1906). The court, in McGovern, went on to define the extent of those powers. "The legislative power of the State, except so far as restrained by its own constitution, is at all times absolute with respect to all offices within its reach ... [I]t may increase or diminish the salary or change the mode of compensation." McGovern, at 553. The reason for this sweeping power was also descried by the court. "The power of regulating by law the compensation of public officers is inseparable from one of the broadest and most important fields of legislative power, namely, that of creating the whole machinery of government and providing for its administration. A free hand in adapting the amount and kind of compensation to the varying conditions of public service required is essential to the efficient execution of this power." McGovern , at 554.

After the initial thirty day period established in Public Act 91-2, the combined total compensation received by a judge called to active duty will be the same as his judicial salary alone. An argument could be made that this odes not result in a diminution is proper under McGovern. first, the power to set judicial salaries rests with the legislature. Second, that power includes the power to diminish compensation. Third, there is no constitutional provision which specifically prohibits the enactment of Public Act 91-2, or any enactment diminishing judicial salaries. Fourth, by providing for the payment of "part pay" after the initial thirty day period, the General Assembly has done nothing more than "adapt the amount ... of compensation to the varying conditions of public service...." In 1980, the supreme court had the opportunity to again review the extent of the legislature's power to set judicial salaries. eielson v. Parker, 179 Conn. 552, 427 A.2d 814 1980) arose fro the merger of the court of common pleas into the superior court in 1978. As a result of that merger, the former common pleas judges received a lower salary as a new superior court judges than those judges who already were superior court judges on the date of the merger. In arguing that this pay differential was improper, the plaintiffs relied on the requirement in McGovern that the legislature "enact laws establishing ... for all members of each court a certain, uniform, and adequate compensation." McGovern, at 548.

The supreme court rejected the argument that McGovern required judicial salaries to be equal. Eielson, at 559. The court stated that what is prohibited by McGovern "is legislative conduct that is irregular, special, ad homonym;" Eielson, at 559; but that legislation which is uniform is proper. "A law is uniform if it applies generally to all those within a designated class, if people similarly situated are treated alike. [citations omitted] Only if there is something improper in the legislative classification ... could [McGovern's] strictures be said to apply." Eielson, at 559.

The classification established by Public Act 91-2 is uniform as defined in Eielson; it will apply to all those within a designated class of judges, i.e., those called into active service after August 7, 1990. All those in the class will be uniformly provided with "part pay" from the State, and as a result of the formula for computing "part pay", every judge in the class will receive the equivalent of his or her judicial salary notwithstanding the amount of his or her military pay.

The only remaining question under Eielson is whether the legislative classification - judges called to active duty after August 7, 1990 - is an improper one. The court in Eielson, noting that judges are not a suspect classification, applied the rational basis test. "'[C]lassificiations must be based on natural and substantial differences, germane to the subject and purpose of the legislation, between those within the class included and those whom it leaves untouched.' [citation omitted]" Eielson, at 566.

Accordingly, the court in Eielson found proper a legislatively enacted judicial pay system establishing different salaries for judges based on whether the judge was an incumbent superior court judge or a new superior court judge s a result of the court merger. To the extent that it can be argued that Public Act 91-2 results in a diminution in judicial pay, it is a proper legislative enactment based on a rational classification and is within the legislative power to determine the judicial salary system. It meets the rational basis test of Eielson, and does not, therefore, violate the strictures of McGovern.

Accordingly, it is our conclusion that Public Act 91-2 governs the payment of judges called into active duty in the Armed Forces of the country during Operation Desert Storm or Operation Desert Shield. They should be continued on the payroll of the Judicial Department at full pay for the first thirty calendar days after their call to active duty. Thereafter, they should be continued on the payroll of the Judicial Department at "pat pay" as that term is defined in Section 1 of Public Act 91-2 for the balance of their judicial term of office, or their return fro active duty.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Robert A. Whitehead
Assistant Attorney General

RB/RAW:eh


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