Kansas Attorney General Opinion 2018-019

December 21, 2018
ATTORNEY GENERAL OPINION NO. 2018- 19
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,

The Honorable John E. Barker
Page 2
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
1 The Kansas Legislature has enacted statutes regarding the annual compensation of the justices, court
of appeal judges, district court judges, and magistrate judges. 	See K.S.A. 75-3120f (chief justice and
justices of the supreme court); K.S.A. 2018 Supp. 75-3210g (chief judge and judges of the district courts);
K.S.A. 2018 Supp. 75-3120h (chief judge and judges of the court of appeals); and K.S.A. 2018 Supp. 75-
3120k for district magistrate judges. The annual salaries for all of these justices and judges are subject to
percentage increases when the rates of compensation in the steps of the pay plan for employees in the
classified service under the Kansas Civil Service Act are increased. See K.S.A. 2018 Supp. 75-3120l.
However, the 2.5% salary increase given to judges and justices in L. 2017, Ch. 104, §177(f)(4) was not
based upon such increases.

The Honorable John E. Barker
Page 3
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 6 regarding 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 Constitution have the same purpose.
In your request, you cited other cases in which courts had held specific legislation
violated a constitutional judicial compensation clause with language similar to that in the
Kansas Constitution. 8 	Those cases involved legislation that made an indirect decrease
in 	the 	compensation 	paid 	to 	judges. 	See 	United 	States 	v. 	Hatter,9 	Hudson 	v.
Johnstone, 10 Goodheart v. Thornburgh, 11 and DePascale v. New Jersey.12 	However,
2 Emphasis added. 	The Compensation Clause does not protect Court of Appeals judges and District
Magistrate Court judges who received a 2.5% salary increase under L. 2017, Ch. 104, §177(f)(4).
Because your question was limited to Article 3, § 13, of the Kansas Constitution, we limit our opinion to
whether L. 2017, Ch. 104, §177(f)(4) violates the Compensation Clause for Kansas Supreme Court
justices and State District Court judges (collectively referred to as “judges”).
3 Kan. Const., Art. 1, §§ 1, 15.
4 L. 2017, Ch. 104, §177(e)(2)(D) (The salary increase “shall not apply to the . . . State officers elected on
a statewide basis.”).
5 660 P. 2d 1180 (Alaska 1983).
6 449 U.S. 200, 101 S. Ct. 472, 66 L. Ed. 2d (1980).
7 449 U.S. at 217-18. The Compensation Clause in the United States Constitution states: "The Judges,
both of the supreme and inferior Courts . . . shall, at stated Times receive for their Services, a
Compensation, which shall not be diminished during their Continuance in Office.” Art. III, § 1.
8 The Honorable John Barker, Correspondence, March 8, 2018.
9 532 U.S. 557, 121 S. Ct., 149 L. Ed. 2d 280 (2001) (Compensation Clause did not prohibit Congress
from enacting a law imposing a nondiscriminatory Medicare tax upon federal judges regardless of
appointment before or after enactment of the tax law but did prevent Congress from collecting Social
Security taxes from salaries of judges who held office before Congress extended the Social Security
taxes to federal employees).
10 660 P. 2d 1180 (Alaska 1983) (the legislature violated the constitutional judicial compensation clause
by implementing a mandatory contribution into the judicial retirement system via a salary deduction for
those judges who were appointed prior to the effective date of the legislation but did not violate the

The Honorable John E. Barker
Page 4
our analysis focuses upon a federal case addressing legislation that involved direct
increases and decreases in compensation paid to judges.
United States v. Will
In Will, the Supreme Court addressed appropriation acts for four consecutive fiscal
years (described below as Year 1, Year 2, Year 3, and Year 4) that modified or
rescinded pay increases for federal judges that were calculated pursuant to three
different acts: 	the Postal Revenue and Federal Salary Act of 196713 (the Salary Act);
the Federal Pay Comparability Act of 1970 14 (the Comparability Act); and the Executive
Salary Cost-of Living Adjustment Act15 (the Adjustment Act). 	These interwoven acts
provided for base salaries adjusted annually for civil service employees and again
quadrennially for higher-rank positions.
Year 1: 	In October 1976, under the Comparability Act, the salaries in the General
Schedule (GS salaries), which is a matrix of grades and steps that determines the
salaries of most federal employees, 16 were increased by an average of 4.8%. 	On
October 1, 1976, the first day of the new fiscal year and the first day of the relevant pay
period, the President signed an appropriation act. 17 The appropriation act also included
a provision that prohibited any appropriated funds to pay the salary of an individual in a
position or office referred to in § 225(f) of the Salary Act; by referencing this provision in
the Salary Act, the appropriation act prohibited paying the 4.8% raise under the
Adjustment Act effective on October 1, 1976, to federal judges, Members of Congress,
and high-level officials in the Executive Branch. 18 	The Supreme Court found that the
4.8% salary increase under the Adjustment Act had already taken effect when the
President signed the appropriation act during the business day on October 1, 1976,
thereby repealing a salary increase already in effect. 	Thus, the Court concluded the
appropriation 	act 	violated 	the 	Compensation 	Clause 	because 	it 	diminished 	the
compensation of federal judges. 19
Year 2: The GS salaries were scheduled to increase an average of 7.1% on October 1,
1977, under the Comparability Act. In July 1977, the President signed an appropriation
act that provided the salary adjustment under the Comparability Act that would be
constitution under the equal protection clause for the judges appointed on or after the effective date of the
legislation.).
11 521 Pa. 316 (1989) (legislation eliminating retirement benefit options and increasing the contribution
rates to the retirement plan for judges appointed after its effective date denied those judges the
constitutionally required adequate compensation to judges).
12 211 N.J. 40 (2012 (legislation increasing pension and health care contributions without any
corresponding increase in salaries to all employees, including judges, was an unconstitutional diminution
of salaries as applied to judges holding office at time of enactment).
13 81 Stat. 642, as amended, 2 U.S.C. §§ 51-361 (1976 Ed. and Supp. III.)
14 5 U.S.C. §§ 5305-5306.
15 Pub. L. 94-82, 89 Stat. 419.
16 449 U.S. at 203.
17 Legislative Branch Appropriation Act. 1977, Pub. L. 97-440, 90 Stat. 1439.
18 449 U.S. at 205-06.
19 Id. at 225-26.

The Honorable John E. Barker
Page 5
effective after the date of the enactment of the appropriation act (i.e., the 7.1% increase
in October 1977) would not become effective for the compensation of judges. 	The
overall effect of the appropriation act was to nullify the scheduled 7.1% increase for the
high-level executive employees, Members of Congress, and federal judges. 20 	The
Supreme Court found this act was signed into law prior to the date the 7.1% increase
was to take effect on October 1, 1977. The Court stated:
[T]he 	Compensation 	Clause 	does 	not 	erect 	an 	absolute 	ban 	on 	all
legislation that conceivably could have an adverse effect on compensation
of 	judges. 	Rather, 	that 	provision 	embodies 	a 	clear 	rule 	prohibiting
decreases but allowing increases, a practical balancing by the Framers of
the need to increase compensation to meet economic changes, such as
substantial inflation, against the need for judges to be free from undue
congressional influence. 	The Constitution delegated to Congress the
discretion to fix salaries and of necessity placed faith in the integrity and
sound judgment of the elected representatives to enact increases when
changing conditions demand.
Congress enacted the Adjustment Act based on this delegated power to
fix and, periodically, increase judicial compensation. 	It did not thereby
alter 	the 	compensation 	of 	judges; 	it 	modified 	only 	the 	formula 	for
determining that compensation. 	Later, Congress decided to abandon the
formula as to the particular years in question. 	For Year 2, as opposed to
Year 1, the statute was passed before the Adjustment Act increases had
taken effect—before they had become a part of the compensation due
Article III judges. Thus, the departure from the Adjustment Act policy in no
sense diminished the compensation Article III judges were receiving; it
refused only to apply a previously enacted formula.
A paramount—indeed, an indispensable—ingredient of the concept of
powers delegated to coequal branches is that each branch must recognize
and respect the limits on its own authority and the boundaries of the
authority delegated to the other branches. To say that the Congress could
not alter a method of calculating salaries before it was executed would
mean the Judicial Branch could command Congress to carry out an
announced future intent as to a decision the Constitution rests exclusively
in the Congress.21
The Supreme Court concluded that, for purposes of the Compensation Clause, a
judges’ salary increase “vests” only when it takes effect as part of the compensation due
and payable to the judges. 	Thus, the Court held that the Compensation Clause did not
prohibit Congress from repealing the planned, but not yet effective, October 1, 1977,
cost-of-living adjustment when it did so prior to the time it was scheduled to become a
20 Id. at 206-07.
21 Id. at 227-28. Emphasis in original.

The Honorable John E. Barker
Page 6
part 	of 	the 	judges’ 	compensation. 	The 	October 	1977 	appropriation 	act 	was 	a
constitutionally valid exercise of legislative authority. 22
Year 3: 	The President approved increasing GS salaries under the Adjustment Act an
average of 5.5% for the fiscal year beginning October 1, 1978. 	However, one day
before the effective date of this increase, the President signed an appropriation act that
had the effect of prohibiting the payment of the 5.5% increase to any individual in the
legislative, executive, or judicial branch for the fiscal year that began on October 1,
1978. 23 	The Supreme Court concluded the issues were indistinguishable from the
issues in Year 2; the elimination of the salary increases contemplated under the
Adjustment Act occurred prior to the date the increases were to take effect. 	The Court
held the legislation in Year 3 did not violate the Compensation Clause. 24
Year 4: 	On August 31, 1979, the President approved a 7% salary increase beginning
on October 1, 1979, pursuant to his authority under the Comparability Act. Because the
prohibition against paying the 5.5% increase under the Adjustment Act applied only to
Year 3, that 5.5% increase also became effective for Year 4—making the total increase
over 12%. 	Eleven days after the 7% salary increase had taken effect, the President
signed an appropriation act prohibiting any funds from being used to pay any sum in
excess of the 5.5% increase for the fiscal year to executive employees, Members of
Congress, and the judiciary. 25 	The Court concluded that the issues were the same as
those in Year 1; the prohibition against paying the 7% increase became effective after
the increases had become effective. 	Thus, because the appropriation act diminished
the compensation of the judges, it violated the Compensation Clause.
In summary, under Will, the Compensation Clause is not violated if the legislation
directly 	diminishing 	judicial 	salaries 	became 	effective 	before 	the 	salary 	increases
became effective. 	A violation occurs only if the legislation directly decreasing the
compensation of judges became effective after the salary increase became effective or
had “vested.”
United States v. Hatter
Although the Hatter case did not involve a direct decrease or increase in judicial
salaries, it is helpful in answering your question.
In Hatter, Congress enacted statutory amendments that withheld Social Security and
Medicare taxes from judicial salaries for the first time. 	Regarding the Medicare taxes,
the statutory amendments meant all federal judges, as well as all federal employees,
had to contribute a part of their salaries to the Medicare program, thereby treating
judges the same way other citizens were treated. 26 	The Court held that the Medicare
22 Id. at 228-29.
23 Id. at 207-08.
24 Id. at 229.
25 Id. at 208, 229-30.
26 532 U.S. at 560-61.

The Honorable John E. Barker
Page 7
taxes did not violate the Compensation Clause; it was a nondiscriminatory tax imposed
upon judges regardless of whether they were appointed before or after the effective
date of the Medicare tax. 27
When the Social Security law was enacted in 1935 it did not cover federal employees.
The 1983 amendments to the Social Security law required new employees to participate
in Social Security and gave about 96% of current federal employees an option to
decline 	participation 	in 	Social 	Security, 	which 	avoided 	any 	increased 	financial
obligation. 28 	The 	remaining 	4% 	of 	current 	federal 	employees 	were 	required 	to
participate in Social Security in such a manner that avoided any increased financial
obligation if they had previously participated in a federal retirement system requiring the
employee to contribute. 	The current federal employees whose retirement system was
non-contributory were not permitted to decline participation in Social Security, resulting
in an increased financial obligation for those employees. 	This last class of employees
consisted almost exclusively of federal judges because the federal judiciary retirement
system was noncontributory for judges. 29
To determine whether the Social Security tax was discriminatory, the Supreme Court
reviewed four features of the law 30 and concluded that the 1983 Social Security tax laws
discriminated against the federal judges. 31 	The Court held that the laws requiring
current judges to participate in Social Security and pay Social Security taxes violated
the Compensation Clause. 32 In rejecting the Government’s arguments, the Court noted
when it had previously upheld a non-discriminatory tax, 33 it had strongly implied in that
case, and in Will, the Compensation Clause would bar a discriminatory tax.34
Additionally, in his dissenting opinion on the Court’s conclusion that the Medicare taxes
were not discriminatory, Justice Scalia noted that fluctuations in the value of money
affected the value of compensation. But, he stated:
The Framers had this distinction well in mind. Hamilton, for example,
wrote that as a result of “the fluctuations in the value money,” “[i]t was . . .
necessary 	to 	leave 	it 	to 	the 	discretion 	of 	the 	legislature 	to 	vary 	its
provisions” for judicial compensation. 	Since Hamilton thought that the
Compensation Clause “put it out of the power of [Congress] to change the
condition of the individual [judge] for the worse,” he obviously believed that
inflation does not diminish compensation as that term is used in the
Constitution. 35
27 Id. at 571-72.
28 Id. at 562.
29 Id. at 563-64.
30 Id. at 572-74.
31 Id. at 576.
32 Id. at 578.
33 Id. at 576 citing O’Malley v. Woodrough, 307 U.S. 277, 282, 83 L.Ed. 1289, 59 S. Ct. 838 (1939) and
Will, 449 U.S. at 226.
34 Id.
35 532 U.S. at 583-84 (internal citations omitted).

The Honorable John E. Barker
Page 8
In short, the United States Supreme Court made it clear in Hatter that a different
Compensation 	Clause 	analysis 	applied 	when 	examining 	legislation 	that 	indirectly
decreased the compensation paid to judges through a tax than when examining
legislation that directly decreased the compensation paid to judges. 	In the former
instance, the question is whether the tax discriminated against judges; in the latter
instance, the question is whether the direct decrease in the judges’ compensation
occurred after the judicial compensation had vested. 	Additionally, Justice Scalia’s
dissent in Hatter points out that while inflation may diminish the value of judicial
compensation, the Compensation Clause did not prohibit such indirect diminution.
Rather, any adjustment to judicial compensation for inflation is left to the legislature’s
discretion.
Here, the legislation did not involve a tax being applied to the judges’ compensation nor
did it decrease the judicial compensation that had vested. 	Rather, L. 2017, Ch. 104,
§177(f)(4) increased the compensation paid to judges; thus, the Compensation Clause
in the Kansas Constitution was not implicated.
Based upon the above analysis, we opine that the 2.5% salary increase given to judges
under L. 2017, Ch. 104, §177(f)(4) does not violate Article 3, § 13 of the Kansas
Constitution even though 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.
Sincerely,
Derek Schmidt
Attorney General
Janet L. Arndt
Assistant Attorney General
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