Wisconsin Attorney General Opinions

Opinion # OAG 2-80,

16 January 1980

Judges; Salaries And Wages;
Chapter 38, Laws of 1979, is effective to
every judge of a court of record and justice
of the supreme court when either a supreme
court justice or judge of a court of record
commences a term of office.

J. DENIS MORAN, Director of State Courts
Supreme Court of Wisconsin

You have asked whether Section 40.96(3),
Stats., created by Chapter 38, Laws of 1979,
becomes effective as to the judges of the
court of appeals when a judge of the
circuit court commences a term.

In my opinion, the plain language of this
statutory provision requires a yes answer.

Section 40.96(3), Stats., provides:

   This subchapter applies to every judge
   of a court of record and justice of the
   supreme court on and after the date that
   any justice of the supreme court or
   judge of a court of record commences
   a term of office after the effective
   date of this act (1979).

You are concerned that this provision is in
conflict with Section 20.923(3), Stats.,
which provides that salary adjustments for
any supreme court justice or judge of the
court of appeals or circuit court shall
be made when any justice or judge of the
same court takes the oath of office.

It is evident that the Legislature meant that
the salary adjustment required by Chapter 38,
Laws of 1979, is effective for "every judge
of a court of record and justice of the
supreme court" as soon as any justice or
judge commences a term.

In other words, the Legislature is making
Chapter 38, Laws of 1979, effective as to all
classes of justices and judges mentioned in
Section 20.923(3), Stats., at the same time.

Sections 40.96(3) and 20.923(3), Stats., are
harmonious and each operates independently.
Section 40.96(3), Stats., establishes the
effective date that Section 40.91, Stats.
(wages reduced to offset retirement
benefits), will be implemented.

It applies only to those judges or justices
who are receiving retirement benefits.

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Section 20.923(3), Stats., governs when
salary increases are effective for
all judges and justices.

For example, the salaries of all circuit
judges, including those receiving retirement
benefits, could be changed according to
Section 20.923(3), Stats., while the
salaries of circuit judges receiving
retirement benefits will change
according to Section 40.96(3), Stats.

In my opinion, Section 40.96(3), Stats., is
not repugnant to WI Constitution Article IV,
Section 26, which provides in part, that:

When any increase or decrease provided
by the legislature in the compensation
of the justices of the supreme court or
judges of any court of record shall
become effective as to any such justice
or judge, it shall be effective from
such date as to each of such
justices or judges.

In this case, the Legislature is making the
effective change as to all judges and
justices at the same time.

Nothing in the Wisconsin Constitution,
Article IV, Section 26, prohibits
the Legislature from doing this.

BCL:WMS

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