CONSTITUTIONALITY OF RESCISSION OF PROSPECTIVE PAY RAISES

OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATORS ‑- SALARIES ‑- CONSTITUTIONALITY OF RESCISSION OF PROSPECTIVE PAY RAISES 

The legislature may not constitutionally cancel, or rescind, prospective salary increases for its own members which are payable during the remainder of their current terms of office and which were provided for by a law that had already been enacted and taken effect before those current terms began.

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                                                                November 5, 1981 

Honorable William M. Polk
Speaker of the House
House of Representatives
7220 ‑ 92nd Avenue S.E.
Mercer Island, WA 98040

Cite as:  AGO 1981 No. 17                                                                                                                

 Dear Sir:

            This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:

             To what extent would it be constitutionally permissible for the legislature, by amendatory action taken prior to January 1, 1982, to rescind the legislative pay raises which, under RCW 43.03.010 as amended by § 1, chapter 255, Laws of 1979, 1st Ex. Sess., are scheduled to become effective on that date or thereafter?

             We respond to the foregoing question in the manner set forth in our analysis.

                                                                      ANALYSIS

             Chapter 255, Laws of 1979, 1st Ex. Sess. dealt with the salaries of state officials.  Among its provisions was the following, relating to members of the legislature:

              [[Orig. Op. Page 2]]

            ". . .  Members of the Legislature shall receive for their service eleven thousand two hundred dollars per annum, effective January 12, 1981, twelve thousand dollars per annum effective January 1, 1982, twelve thousand eight hundred fifty dollars effective January 10, 1983, and thirteen thousand seven hundred fifty dollars effective January 1, 1984; . . ."1/

              The particular provision of the Constitution that relates to your question is Article XXVIII, § 1 (Amendment 20) which reads, in material part, as follows:

             "All state elected officials shall each severally receive such compensation as the legislature may direct.  The compensation of any state officer shall not be increased or diminished during his term of office, . . ."2/

              Before proceeding, however, a brief explanation of one facet of this section of the Constitution is in order.  On its face, it covers both mid-term decreases (the subject of your inquiry) and mid-term increases in compensation.  But in fact, as a consequence of the subsequent adoption, in 1968, of Article XXX, § 1 (Amendment 54), that latter prohibition‑-although still applicable to those officers who fix their own compensation (for example, legislators)‑-no longer applies to those other state officials (e.g., the Governor, attorney general, etc.) whose salaries are set by the legislature.

             It was, presumably, because of this continuing prohibition against mid-term salary increases for legislators that § 2, chapter 255, supra, was enacted in the form it was‑-insofar as legislative salaries are concerned.3/   But, you ask,  [[Orig. Op. Page 3]] having provided for such pay raises, may the legislature later rescind those raises scheduled for specific dates by action prior to those dates?  Or would such action result in a mid-term decrease which would be barred by Article XXVIII, § 1 (Amendment 20),supra?

             In considering this question, it is first important to note that such legislative action would have no immediate impact on the salaries of approximately half of the current members of the State Senate; namely, the class of senators who were last elected in 1978 to four-year terms commencing January 8, 1979 and ending January 10, 1983.  Of constitutional necessity, those senators are still receiving only the salaries which were in effect prior to the passage of chapter 255, Laws of 1979, 1st Ex. Sess.,supra,4/ and will be ineligible to receive anything more until the commencement of their next ensuing terms (if reelected) in 1983.  And, in turn, the further salary increases which are now scheduled to take effect when those new terms begin on January 10, 1983, may in the meantime clearly be rescinded, as to those terms, without violating the Constitution.  Likewise, those sameJanuary 10, 1983 raises for incumbent members of the House of Representatives may now be rescinded because, again, such action would not result in a diminishment of their compensation during their current terms of office‑-which all end on that date.

             Insofar as members of the House of Representatives are concerned, therefore, the critical issue relates to the more imminent January 1, 1982 pay raises.  And, for the "other" half of the Senate (i.e., those last elected in 1980), it involves both those raises and the further 1983 and 1984 raises as well.  Quaere:  Would it be constitutionally permissible for the legislature, by amendatory action taken prior to January 1, 1982, to cancel, or rescind, those pay raises for the remainder of the current terms of the members of the legislature (House and Senate) who otherwise would be entitled to receive them on January 1, 1982, January 10, 1983 or January 1, 1984, respectively?  For the reason hereinafter explained, we answer in the negative.

              [[Orig. Op. Page 4]]

            As a possible source of support for a contrary, affirmative answer to the above question, we have had called to our attention the Court's decision in the somewhat analogous Initiative 282 case, Yelle v. Kramer, 83 Wn.2d 464, 520 P.2d 927 (1974).  There, as you may recall, a pro tem panel of retired judges (sitting because all of the regular members of the Court had disqualified themselves) was concerned with the constitutionality of an initiative relating to the salaries of elected officials (including judges) which had been approved by the voters at the November, 1973, general election.  And one of the issues presented was whether the salary increases provided for therein were unconstitutional because they actually represented reductions‑-when compared to the substantially higher salary levels that had earlier been provided for through the passage of § 110, chapter 137, Laws of 1973, 1st Ex. Sess.  For example, under § 110, chapter 137, supra, legislative salaries would have been increased from $3,600 per year to $10,560 per year whereas under Initiative 282, they were raised to only $3,800 per year.

             Notably, however, the salary increases provided for by § 110, chapter 137,supra, although enacted by the legislature at its 1973 session, did not become payable until January 1, 1974.  And thus, when Initiative No. 282 was approved, it had the impact of intervening, prior to the scheduled effective date of the legislatively enacted increases, so that it was already in place‑-as the law on the subject‑-when January 1, 1974 arrived.  Specifically, the initiative, having been approved by the voters at a general election held on November 6, 1973, took effect thirty days later, on December 6, 1973, when the Governor proclaimed its passage in accordance with Article II, § 1 (Amendment 7) of the State Constitution.

             It was, in turn, clearly on the basis of this time sequence that the Court held the initiative valid; i.e., that it did not result in an unconstitutional diminishment of state officials' salaries.  Specifically, what the Court said by way of explanation, at page 478, was this:

             ". . .  The legislature, in the absence of constitutional restraint, may fix any time in the future as the time when a statute  [[Orig. Op. Page 5]] shall become effective.  State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 P.28 (1915).  It is a cardinal rule that a statute passed to take effect at a later date speaks from the time it becomes operative and not from the time of its passage.

             "InWalker v. Lanning, 74 Wash. 253, 256, 133 P.462 (1913), the court quoted with approval as follows:

                         "'Until the time arrives when it is to take effect and be in force, a statute which has been passed by both houses of the legislature and approved by the executivehas no force whatever for any purpose, and all acts purporting to have been done under it prior to that time are void.'  36 Cyc. 1192

             "(Italics ours.)

             "Without more, the increased salaries would have become effective January 1, 1974.

             "Meanwhile, however, the voters amended section 110 by initiative measure 282.  Its adoption was certified by the Governor December 6, 1973.  It became effective January 1, 1974, as the only valid salary-increase legislation for state elected officials and the judiciary which is now in effect.  Both being validly enacted statutes, the one last in time‑-the initiative ‑-controls.  No state official or judge had acquired a vested interest in a salary increase until January 1, 1974.

             "Accordingly, there was no reduction of salary of any state official or judge.  On the contrary, there was a salary increase.

             ". . ."  (Emphasis supplied)

              [[Orig. Op. Page 6]]

            We have reviewed this decision because, at first blush, its rationale might also seem to apply in the instant situation.  On closer analysis, however, that would be so only if one assumed (for purposes of discussion) that, likewise, no member of the legislature will acquire a "vested interest" in the salary increases provided for by § 1, chapter 255, Laws of 1979, 1st Ex. Sess.,supra, until they actually become payable.  In the meantime, under the posited line of reasoning, the legislature, exercising its authority under Article XXVIII, § 1 (Amendment 20), supra, could "rescind" those salary increases which are still prospective.5/   And because those prospective increases would not yet have taken effect, such legislative action would not represent an unconstitutional diminishment or decrease.

             In our opinion, however, there is a fatal flaw in that approach to the problem because the assumption upon which it is based cannot be sustained.

             What distinguishesYelle v. Kramer, supra, from the instant case is this:  InYelle, the salary increases which were rolled back by Initiative 282 were, themselves, the result of legislation (chapter 137, Laws of 1973, 1st Ex. Sess.) that was not enacted until after commencement of the affected terms of office in either January, 1971 or January, 1973.  Therefore, in actuality, what was being withdrawn was merely part of a prospective mid-term increase in compensation which, although constitutionally permissible under Article XXX, § 1 (Amendment 54), supra, for the officials involved, would have substantially exceeded the rate of pay provided for by the law in effect when their terms began.  Here, on the other hand, what would be rescinded by the contemplated legislative action would be a periodically increasing level of compensation already provided for in the law when the current terms of  [[Orig. Op. Page 7]] the affected legislators commenced.  For it was not chapter 255, Laws of 1979, 1st Ex. Sess. which had a delayed effective date, but only certain of the salary increases that were provided for therein.6/

              In addition to Yelle v. Kramer, supra, we have also looked for other possible cases in point, both from this state and from other jurisdictions with similar constitutional provisions.  We have, however, found no other Washington cases worth mentioning on the relatively narrow issue here raised; i.e., the constitutionality of a mid-term rescission of a previously granted pay increase.  And, insofar as decisions from other states are concerned, what little we have found is, arguably, contrary to evenYelle v. Kramer itself with regard to the point with which we are here concerned.  See,e.g.,Olson v. Cory, 164 Cal. Rptr 217, 609 P.2d 991 (1980), holding that certain cost of living salary increases for judges and other elected officials could not be later restricted during the same terms as they were serving when the increases were first provided for, and Stiftel v. Malarkey, Del. Supr., 384 A.2d 9 (1977), invalidating legislation aimed at excluding state officers from a cost of living pay increase schedule previously established by the legislature for state employees, generally.

             We are not, of course, in any position to overrule, or set aside, our own Court's ruling inYelle v. Kramer, supra, on the basis of such cases from other states.  But those cases most certainly do suggest caution insofar as any extension ofYelle to a different factual pattern is concerned.

             Conclusion:

             Consistent with the foregoing, therefore, this is what we believe the Washington Constitution does, in prohibiting mid-term decreases in the pay of state elected  [[Orig. Op. Page 8]] officials.  First, it focuses in on the law in effect at the start of their particular terms.  And then, with that law in mind, it says to the officials involved:  Insofar as your salaries are concerned, they are vested at the level (or levels) now provided for‑-to the end that, although for some of you, they may later be increased, in no event will they be less, during the terms you are about to begin, than what is specified in that threshold law.7/

              For the above explained reasons, this principle (or promise, if you will) was not violated by Initiative 282 and thus the initiative was upheld.  But it would be violated by the amendatory legislation which you have, by your letter, asked us to consider.

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Deputy Attorney General