62 Op. Att'y Gen. 269 (1973)
 
62 OAG 269  270  271  272  273

Wisconsin Attorney General Opinions

28 November 1973

County Judge   Salaries and Wages

County board can reduce additional salary
payable to county judge under Section
253.07(2), Stats., during term only to extent
necessary to keep total salary of county
judge, state, county and county addition,
within the limits set forth in Section
20.923(3), Stats., created by
Chapter 90, Laws of 1973.

JAMES M. LAPOINTE,
District Attorney, Ozaukee County

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You request my opinion whether the county
board is prohibited from reducing the county
supplement to a county judge's salary so as
to be effective during his term.

I am of the opinion that a county board could
only reduce the amount the county can pay
under Section 253.07(2), Stats., which is in
addition to the state portion and county
portion of the salary provided under Section
20.923(2) and (3), Stats., as recreated by
Chapter 90, Laws of 1973, and Section
253.07(1), Stats., where the total of the
three amounts exceeds the amounts specified
in Section 20.923(3), Stats., recreated by
Chapter 90, Laws of 1973, and only to the
extent that such additional salary exceeds
the amounts set forth therein.

In

State ex rel. Sachtjen v. Festge (1964),
25 Wis.2d 128, 150,
130 N.W.2d 457,

it was stated:

   We conclude that notwithstanding the
   contribution by the state of a share of
   the basic salary of county judges, their
   office has not sufficiently changed in
   character from a local to a state office
   to bring county judges within the class
   of public officer to which Section 26 of
   Article IV, Wis. Const., applies.

   It follows that the legislature is free
   to raise or lower the salary of county
   judges during their terms and to
   authorize the county boards to raise or
   lower, midterm, the supplemental salary
   paid by the county.

   To hold otherwise would be to apply a
   constitutional restriction on
   legislative power in a doubtful case.

Since the Sachtjen case, Article IV,
Section 26, Wis. Const., was amended in 1967,
to permit circuit judges and supreme court
justices to benefit from increases during
their terms in special circumstances.

The amendment does not include county judges.

Although Section 20.923(2), Stats., appears
to classify county judges as "other elected
state officials," I am of the opinion that
the legislature did not intend to make them
public officials subject to Article IV,
Section 26, Wis. Const., and thereby place
them in a position less advantageous than
that enjoyed by circuit judges and
supreme court justices.

Section 20.923(1)(a), Stats., as recreated,
provides in part:

20.923 Statutory salaries

20.923(1)

Establishment of
Executive Salary Groups.

20.923(1)(a)

   . . The salary-setting authority of
   individual boards, commissions,
   elective and appointive officials
   elsewhere provided by law is subject
   to and limited by this section, and
   the salary rate for these positions
   upon appointment and subsequent thereto
   shall be set by the appointing authority
   pursuant to this section, unless the
   position is subject to article IV,
   section 26 of the state constitution."

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Section 20.923(2), provides in part:
 

20.923(2) Constitutional Officers and
          Other Elected State Officials.

20.923(2)(a)

   The annual salary for each of the
   following positions shall be set
   at the midpoint of the assigned
   salary range for its respective
   executive salary group in effect
   at the time of taking the oath of
   office, except as provided in
   Paragraphs 20.923(2)(b) and 20.923(2)(c)
   and shall become effective immediately
   for all incumbent constitutional and
   other elected state officials, subject
   to the provisions of Article IV, Section
   26 of the Wisconsin Constitution and for
   any subsequently elected official who
   takes his oath of office following the
   effective date of this act (1973). . .

"3. County judge: executive salary group 2."

Section 20.923(3), provides:

20.923(3) CIRCUIT AND COUNTY JUDGES.

   The annual salary for any circuit or
   county judge, including county
   supplements paid pursuant to Sections
   252.016(2), 252.071 and 253.07(2)
   shall not exceed $33,500 for the period
   July 31, 1973, to December 31, 1974, and
   $34,500 for the period January 1, 1975,
   to December 31, 1975.

Section 253.07(2) as amended by Chapter 90,
Laws of 1973, provides:

253.07(2)

   The county may pay: each county judge
   compensation in addition to that
   specified in Section 20.923, but such
   additional compensation shall be the
   same for each such judge.

Section 59.15(1)(a), Stats., requires the
county board to establish the total annual
compensation of elective officers paid in
whole or in part from the county treasury
prior to the earliest date for filing
nomination papers.

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It also provides:

   . . The compensation established
   shall not be increased nor diminished
   during the officer's term and shall
   remain for ensuing terms unless
   changed by the board."

Section 66.195, Stats., provides:

66.195 Judicial salaries.

   The governing body of any county may
   during the term of office of a county
   judge whose salary is paid in whole or
   in part by such county, increase the
   salary of such county judge in such an
   amount as the governing body determines.

   The power granted by this subs/ection
   shall take effect notwithstanding any
   other provision of the law to the
   contrary, except that the exercise of
   this power shall be governed by
   Section 65.90(5).

Section 256.02(4), Stats., provides:

256.02(4)

   The county board is prohibited from
   reducing the salary or additional
   salary of a county or circuit judge
   for the term for which elected.

As noted above, however, the authority of the
county board to establish the salary of a
county judge is limited by the provisions of
Section 20.923(1), (2), (3), Stats., as
created by Chapter 90, Laws of 1973.

The total annual salary must be within the
limits of Section 20.923(3), Stats., for the
periods stated. I construe the provision of
Section 20.923(1), Stats., which provides
that

   . . The salary-setting authority of
   individual boards, commissions, elective
   and appointive officials elsewhere
   provided by law is subject to and
   limited by this section . .

as paramount to the language in Sections
59.15(1)(a), and 256.02(4), Stats., which
prohibits reduction of the salary or
additional salary of a county judge for the
term for which elected where reduction is
necessary to keep such salary within the
limits set forth in Section 20.923(3), Stats.

The provisions of Sections 59.15(1)(a) and
256.02(4), Stats., however, prohibit the
county from reducing the additional salary
paid to a county judge pursuant to Section
253.07(2), Stats., where the state portion
and county portion required by Section
20.923(1)(b), and 20.923(2)(a)3  together
with such additional amount heretofore
authorized do not exceed the limits
set forth in Section 20.923(3), Stats.

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