Judges: WRITTEN BY: Jon Bruning, Attorney General Charles E. Lowe, Assistant Attorney General
Filed Date: 8/17/2009
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Janice K. Walker
Nebraska State Court Administrator
As you note in your inquiry letter, LB 414 was enacted with the emergency clause and was signed into law by the Governor on May 19, 2009. Thus, the bill went into effect the next day — May 20, 2009 — at 12:01 a.m. Op. Att'y Gen. No. 87049 (April 15, 1987). You also inform us that a new district judge in the 4th Judicial District "took office" nine days later on May 29, 2009. It is in this context that you ask three specific questions.
1. When does a "full term" of office begin for purposes of Article
III , Section19 of the Nebraska Constitution and specifically related to LB 414?2. Is the judge whose term began May 29, 2009, entitled, as of July 1, 2009, to receive the increased salary for district judges as set forth by Neb. Rev. Stat. §
24-301.01 ?3. If the answer is yes, are all other judges of the State of Nebraska also entitled to receive such increased compensation as of July 1, 2009?
In pertinent part, LB 414, § 1 amends Neb. Rev. Stat. §
*Page 3On July 1, 2009, the salary of the Chief Justice and the judges of the Supreme Court shall be one hundred thirty-nine thousand two hundred seventy-seven dollars and sixty-one cents. On July 1, 2010, the salary of the Chief Justice and the judges of the Supreme Court shall be one hundred forty-two thousand seven hundred fifty-nine dollars and fifty-five cents.
Under that statutory language it appears at first blush that the salary increases are to occur on July 1 of 2009 and 2010.
Neb. Const. art.
The reason for constitutional provisions limiting when executive branch and judicial branch officials and judges may receive salary increases or decreases has been set forth in State ex rel.Johnson v. Marsh,
The main intent and purpose of the restrictions contained within section 19, article III, supra, are of course, to aid in maintaining a separation of the executive, legislative, and judicial branches of our government. Such a provision is one of the oldest of the "checks and balances" provided in the federal Constitution and in the Constitutions of most, if not all, of the states. If the Legislature can control the salary of the Governor and members of the judiciary, at will and at any time, then it has a great power toward controlling their will.
Accordingly, if LB 414, § 1 is interpreted as strictly requiring that the salary increases take effect on July 1 of both years, that section would necessarily be deemed unconstitutional because there would be an irreconcilable conflict between it and Neb. Const. art.
We have set forth well-recognized principles of statutory interpretation providing the framework within which the constitutionality of a statute is *Page 4 considered. "`It is well established that all reasonable intendments must be indulged to support the constitutionality of legislative acts. . . .'" State v. Ruzicka,
218 Neb. 594 ,597 ,357 N.W.2d 457 ,461 (1984). A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. State v. Worm,268 Neb. 74 ,680 N.W.2d 151 (2004). A penal statute must be construed so as to meet constitutional requirements if such can reasonably be done. State v. Hynek,263 Neb. 310 ,640 N.W.2d 1 (2002). "When a statute is susceptible of two constructions, under one of which the statute is valid while under the other of which the statute would be unconstitutional or of doubtful validity, that construction which results in validity is to be adopted." Hookstra,263 Neb. at 124 ,638 N.W.2d at 836 . The unconstitutionality of a statute must be clearly established before a court may declare it void. State v. Spady,264 Neb. 99 ,645 N.W.2d 539 (2002). "`The courts will not declare an act of the Legislature unconstitutional except as a last resort on the facts before the court.'" Goodseal,186 Neb. at 369 ,183 N.W.2d at 264 (Spencer and Boslaugh, JJ., dissenting), quoting Stanton v. Mattson, 175 Neb. 767, 123 N.W.2d 844 (1963).
In other words, if it is at all possible to do so, a statute should be interpreted such as to render it constitutional, rather than unconstitutional.
Applying these principles to LB 414, § 1 in light of Neb. Const. art.
Such a reading of LB 414, § 1 would also be consistent with Neb. Rev. Stat. §
*Page 5shall be so interpreted as to effectuate [its] general purpose to provide, in the public interest, adequate compensation for the judges of the Supreme Court, Court of Appeals, district court and separate juvenile courts and to permit a change in such salaries as soon as the same may become operative under the Constitution of Nebraska. (Emphasis supplied.)
Put another way, the Legislature itself, through §
We are satisfied, therefore, based on the above discussion, that the judicial salary increases called for by LB 414, § 1 are constitutional under Neb. Const. art.
There is, however, a statute which specifically deals with this issue. Neb. Rev. Stat. §
The full term of office of each judge shall commence: (1) On the first Thursday after the first Tuesday in January next succeeding the election referred to in sections
24-813 to24-818 [dealing with retention elections], or (2) if appointed pursuant to ArticleV of the Constitution of Nebraska, on the date of his appointment, as the case may be.
Accordingly, under this statute, if a sitting judge is continued in office by the voters at a retention election called for by Neb. Const. art.
We assume the genesis of your question is the fact that the district judge "took office" nine days after LB 414 went into effect with the emergency clause. Apparently there is some thought that the salary increase authorized as of July 1, 2009, by LB 414, § 1 can be implemented on that date because a new judge "took office" after LB 414 became law on May 20, 2009, but before July 1, 2009, arrived. We do not believe, however, that this sequence of events changes the conclusion we have reached because LB 414, § 1 itself makes clear the salary increase is to be available, at the earliest, on July 1. In essence, that portion of LB 414 was not to take effect until the July date.
Initially we note that the date a new judge takes office is not really pertinent to the issue of when the judge's full term begins. As discussed above, §
Even if we assume that the new district judge's full term did begin after LB 414 was signed by the Governor, to somehow conclude that the salary increase could go into effect on July 1, 2009, so long as any judge's full term began after LB 414 was signed into law — even if that term began before July 1, 2009 — would make little sense and conflict with the language of § 1 of the bill itself. Had the Legislature intended such a result it could have, consistent with Neb. Const. art.
Moreover, it is important to note that art. III, § 19 states clearly that the compensation of members of the judiciary may be increased only "at the beginning of the full term of any member thereof." The judge who took office in May did not begin his or her full term on July 1, 2009, the date specified for the salary increase; so to increase judicial salaries on that date simply because the judge took office or began his or her full term after LB 414 became law, but before July 1, would violate the unambiguous language of the constitutional provision.
*Page 91. Under Neb. Const. art.
III , §19 the salaries of members of the judiciary may be increased or decreased only when any member begins a full term.2. LB 414, § 1 states that the salaries of members of the Nebraska Supreme Court will be increased on July 1, 2009, and July 1, 2010.
3. LB 414, § 1 must be read in such a manner as to render it constitutional, rather than unconstitutional. This is especially true in light of §
24-201.03 .4. In order to be consistent with Neb. Const. art.
III , §19 , LB 414, § 1 should be interpreted as providing that the salary increases for the Chief Justice and judges of the Nebraska Supreme Court set forth therein are available as of July 1, 2009, and July 1, 2010, but may not be started until a time after those dates when any member of the judiciary begins a full term.5. As provided in §
24-819 , a new member of the judiciary begins his or her full term on the date of his or her appointment. An existing member of the judiciary begins his or her full term on the first Thursday after the first Tuesday in January following the election at which he or she was retained in office.6. All judges covered by statutes that make their salaries a percentage of the salaries paid members of the Nebraska Supreme Court, including the 4th Judicial District judge who took office on May 29, 2009, will be entitled to the increased compensation when, on some date after July 1, 2009, any member of the judiciary begins a full term.3
Sincerely yours,
JON BRUNING Attorney General
Charles E. Lowe Assistant Attorney General
Approved by: _______________________ Attorney General
State v. Johnson , 269 Neb. 507 ( 2005 )
Stanton v. Mattson , 175 Neb. 767 ( 1963 )
State v. Hynek , 263 Neb. 310 ( 2002 )
State v. Worm , 268 Neb. 74 ( 2004 )
State v. Spady , 264 Neb. 99 ( 2002 )
Garrotto v. McManus , 185 Neb. 644 ( 1970 )
State v. Ruzicka , 218 Neb. 594 ( 1984 )