Olson v. Cory

636 P.2d 532, 27 Cal. 3d 532, 178 Cal. Rptr. 568, 1980 Cal. LEXIS 154

• Court: California Supreme Court
• Decided: March 27, 1980
• Docket: L.A. 31142
• Status: Published

Opinions

Opinion

CLARK, J.

Defendants, Controller of the State of California and Auditor-Controller of the County of Los Angeles, appeal from judgment declaring unconstitutional 1976 legislation purporting to place a limit on cost-of-living increases previously provided for judicial salaries.¹ The statute as amended was held unconstitutional by the superior court on grounds it constitutes an impermissible impairment of vested contractual rights (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9) and conflicts with California Constitution, article III, section 4.²

Defendants contend that placing a limit on current provisions providing for cost-of-living increases to judicial salaries does not impair the vested or contractual rights of judges in office or of judicial pensioners. Additionally, defendants contend that the amendment to section 68203 does not reduce judicial salaries in violation of Proposition 6. We reject defendants’ contentions and affirm in part the judgment of the superior court.

In amending section 68203 the Legislature attempted in effect first to maintain judicial salaries at the 1 September 1976 level for 22 months, and then to limit prospective increases beginning on 1 July 1978 to 5 percent regardless of the actual increase in the California Consumer Price Index (hereinafter CPI). (See fn. 1, ante.) Without the amendment judges would have been entitled to a 5.327 percent increase beginning on 1 September 1977. After the defendant Controller announced he would not pay such an increase, plaintiffs—judges in office and judicial pensioners—commenced this action for declaratory relief.

Conflict of Interest

We consider first whether we may hear and adjudicate the cause, recognizing each member of this court is financially interested in the outcome. The rule of necessity provides that a judge is not disqualified from adjudicating a cause because of personal financial interest if there is no other judge or court available to hear and resolve the cause. (See Atkins v. United States (1977) 556 F.2d 1028 [214 Ct.Cl. 118].) It is immediately apparent that all California judges have at least an involuntary financial interest in this case. To disqualify one would disqualify all, depriving them and their surviving spouses of opportunity to litigate their case. This court as now constituted is qualified to hear and determine the issues before us.

Abridgment of Vested or Contractual Rights of Judges in Office

We recognize the often quoted language that public employment is not held by contract and therefore is not protected by the contract clause. (Markman v. County of Los Angeles (1973) 35 Cal.App.3d 132, [110 Cal.Rptr. 610]; see also Butterworth v. Boyd (1938) 12 Cal.2d 140, 150 [82 P.2d 434, 126 A.L.R. 838].) Those and other cases involve purported rights to remain in office or to continued public employment. On the other hand, we deal here with the right to compensation by persons serving their term of public office to which they have undisputed rights. “[P]ublic employment gives rise to certain obligations which are protected by the contract clause of the Constitution. ...” {Kern v. City of Long Beach (1947) 29 Cal. 2d 848, 852-853 [179 P.2d 799]; see also California League of City Employee Associations v. Palos Verdes Library Dist. (1978) 87 Cal.App.3d 135, 139 [150 Cal.Rptr. 739].) Promised compensation is one such protected right. {Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 308-309 [152 Cal.Rptr. 903, 591 P.2d 1].) Once vested, the right to compensation cannot be eliminated without unconstitutionally impairing the contract obligation. {Id., at p. 314.) When agreements of employment between the state and public employees have been adopted by governing bodies, such agreements are binding and constitutionally protected. {Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal. 3d 296, 304, quoting from Glendale City Employees Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 337-338 [124 Cal.Rptr. 513, 540 P.2d 609].) In the instant case the Legislature in 1969 adopted the full cost-of-living increase provision, binding the state to pay persons employed at the represented compensation for their terms of office.

Prior to the 1976 amendment judges had a vested right not only to their office for a certain term but also to an annual increase in salary equal to the full increase in the CPI during the prior calendar year. with the 1976 amendment the state purported to withdraw that right unilaterally thus impairing a vested interest.³ The question remaining is whether in the circumstances of this case the impairment is in some way permissible.

In Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal.3d 296 this court reiterated the four factors identified by the United States Supreme Court in Home Building and Loan Assn. v. Blaisdell (1934) 290 U.S. 398 [78 L.Ed. 413, 54 S.Ct. 231, 88 A.L.R. 1481] warranting legislative impairment of vested contract rights. Those factors are: (1) the enactment serves to protect basic interests of society, (2) there is an emergency justification for the enactment, (3) the enactment is appropriate for the emergency, and (4) the enactment is designed as a temporary measure, during which time the vested contract rights are not lost but merely deferred for a brief period, interest running during the temporary deferment. (23 Cal.3d at pp. 305-306.)

In applying these standards the enactment’s severity must be measured to determine “the height of the hurdle the state legislation must clear.” (Allied Structural Steel Co. v. Spannaus (1978) 438 U.S. 234 [57 L.Ed.2d 727, 98 S.Ct. 2716].) This court stated in Sonoma County that impairing a granted increase in wages goes to the heart of the employment contract and is therefore severe and permanent. (Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal.3d 296, 308-309.) Therefore the state’s hurdle in applying the four factors in the instant case is heightened because section 68203 is an impairment affecting the heart of the employment contract.

Defendants, offering no reason or justification for the state action, fail even to approach their burden of demonstrating the impairment of plaintiffs’ rights is warranted by an “emergency” serving to protect a “basic interest of society.”

A judge entering office is deemed to do so in consideration of—at least in part—salary benefits then offered by the state for that office. If salary benefits are diminished by the Legislature during a judge’s term, or during the unexpired term of a predecessor judge (see Cal. Const., art. VI, § 16; Gov. Code, §§ 71145, 71180), the judge is nevertheless entitled to the contracted-for benefits during the remainder of such term. The right to such benefit accrues to a judge who served during the period beginning 1 January 1970 to 1 January 1977, whether his term of office commenced prior to or during that time period. “An employee’s contractual pension expectations are measured by benefits which are in effect not only when employment commences, but which are thereafter conferred during the employee’s subsequent tenure.” (Betts v. Board of Administration, supra, 21 Cal.3d 859, 866.)⁴

A judge who completes one term during which he was entitled to unlimited cost-of-living increases and elects to enter a new term has impliedly agreed to be bound by salary benefits then offered by the state for the different term. Thus, while a judge is entitled to a salary based on unmodified Government Code section 68203 throughout a term ending, for instance, in 1978, his salary for a new term beginning on or after the effective date of the 1976 amendment—1 January 1977—will be governed by the statute as amended. Likewise, a judge entering office for the first time on or after 1 January 1977, including a judge entering upon his Own term or upon the unexpired term of a predecessor judge, cannot claim any benefit based on section 68203 before the 1976 amendment.

As will be seen, our conclusions based on the contract clause as affecting salaries of judges in office are consistent with our conclusions regarding Proposition 6.

Abridgement of Vested or Contractual Rights of Judicial Pensioners

The 1976 amendment, in addition to impairing the vested rights of judges in office, also impairs those of judicial pensioners.⁵ A long line of this court’s decisions has reiterated the principle that a public employee’s pension rights are an integral element of compensation and a vested contractual right accruing upon acceptance of employment. (Betts v. Board of Administration, supra, 21 Cal.3d 859, 863; Kern v. City of Long Beach, supra, 29 Cal.2d 848, 852-853.) In Betts, this court held that a former state treasurer who had served in that office from 1959 to 1967 was entitled to a pension on the basis of the law in effect at the time of his termination rather than the modified law in effect at the time of his application for pension benefits in 1976. {Id., at pp. 867-868.) The statute in effect in 1976 purported to withdraw benefits to which he had earned a vested contractual right while employed. Although an employee does not obtain any “absolute right to fixed or specific benefits... there [are] strict limitations] on the conditions which may modify the pension system in effect during employment.” {Betts v. Board of Administration, supra, 21 Cal.3d 859, 863-864.) Such modifications must be reasonable and any “‘changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.’” {Id., at p. 864.) Since no new comparable or offsetting benefit appeared in the modified plan, we held the 1976 statute unconstitutionally impaired the pensioner’s vested rights.

In the present case the state has purported to modify pension rights with the amendment of section 68203. Between 31 December 1969 and 1 January 1977, a judicial pensioner was entitled to receive benefits based on a specified percentage of the salary of a judge holding the judicial office to which the retired or deceased judge was last elected or appointed. (Gov. Code, § 75000 et seq.) The salary for such a judicial office—if the retired or deceased judge served in office during the period 1970 to 1977—was convenanted to increase annually with the increase in the CPI. The 1976 limitation on increases in judicial salaries is, in turn, calculated to diminish benefits otherwise available to those judicial pensioners. Such modification of pension benefits works to the disadvantage of judicial pensioners by reducing potential pension increases, and provides no comparable new benefit. Again, we conclude that defendants have failed to demonstrate justification for impairing these rights or that comparable new advantages were included and that section 68203 as amended is unconstitutional as to certain judicial pensioners.

Contractually, each judicial pensioner is entitled to some fixed percentage of the salary payable to the judge holding the particular judicial office to which the retired or deceased judge was last elected or appointed. (See e.g., Gov. Code, §§ 75032, 75033.5, 75060.6, 75076, 75077, 75091, 75093, 75094, 75096, 75096.1, 75096.3.) Accordingly, a judicial pensioner cannot claim impairment of a vested right arising out of the 1976 amendment except when the judge holding the particular judicial office could also claim such an impairment. The resolution of pensioner vested rights, then, is dependent on the foregoing resolution of judges’ vested rights left unimpaired by the 1976 amendment.

Judicial pensioners whose benefits are based on judicial services terminating while section 68203 provided for unlimited cost-of-living increases in judicial salaries, acquired a vested right to a pension benefit based on some proportionate share of the salary of the judge or justice occupying the particular judicial office including the incumbent judge’s or justice’s unlimited cost-of-living increases.

Judicial pensioners whose benefits are based on judicial services terminating before the effective date of applicable law providing for unlimited cost-of-living increases, have no vested right to benefits resulting therefrom. Legislation providing for unlimited cost-of-living increases was first enacted in 1964 to become effective on 1 January 1965, although the statute then provided for quadrennial increases based on a different index than the CPI. (Stats. 1964, First Ex. Sess., ch. 144, p. 518, § 4.) However, it is not necessary for our purposes to determine a judicial pensioner’s right as being vested. Vested or not, a pensioner’s right entitles him or her to benefits based on the prevailing salary for the judge or justice occupying the particular judicial office, regardless of the date of termination of judicial services giving rise to the pension.⁶ Finally, as in the case of judges or justices who enter upon a new or unexpired term of a predecessor judge after 31 December 1976, benefits of judicial pensioners based on the salaries of such judges will be governed by the 1976 amendment.⁷

Reduction of Judicial Salaries as a Violation of California Constitution, Article III, Section 4

Judges are state officers. (Cal. Const., art. VI, §§ 1, 16; see also Spreckles v. Graham (1924) 194 Cal. 516 [228 P. 1040].) Therefore, the prohibition against reducing state officers’ salaries includes judicial salaries. (See fn. 2, ante.)

The word “salaries” in Proposition 6 (see fn. 2, ante) must bear the same meaning in both contexts in which it appears in that constitutional provision. (See Miller v. Dunn (1887) 72 Cal. 462, 466 [14 P. 27].) Legislative history demonstrates that the provision “[l]aws that set these salaries are appropriations” was drafted in 1972 to forestall the effect of a budgetary “line-item” veto. Such a veto could not effectively eliminate funding for an existing provision of law—such as judges’ salaries including a cost-of-living increase—when the statute is an appropriation. The word “salaries” in the last sentence of Proposition 6 is thus intended to mean cost-of-living salaries because the appropriating law then provided for annual cost-of-living adjustments. It follows that the provision in Proposition 6 that “[s]alaries of elected state officers may not be reduced during their term of office” forecloses during that term any limitation on cost-of-living increases even though such increases were first provided by the Legislature during that same term. To the extent that the 1976 amendment to Government Code section 68203 contemplates such limitations it is unconstitutional.

Policies underlying Proposition 6 support our interpretation. The primary purpose of that constitutional provision is to “strengthen the independence of all three branches of the government,”⁸including the judiciary. Security of both tenure and subsistence are important factors in creating and maintaining an independent judiciary. These factors are met by insuring relatively long, fixed terms of office (Cal. Const., art. VI, § 16; Gov. Code, § 71145) and foreclosing reduction in salary during term of office. Should the state arbitrarily limit the cost-of-living salary, the level of subsistence would be reduced.

Defendants rely on Atkins v. United States (1977) 556 F.2d 1028 [214 Ct.Cl. 186]. Atkins involved a claim by federal judges that Congress unconstitutionally reduced salaries by refusing to increase salary levels in the face of continuing inflation. However, the federal judges, unlike plaintiff judges, did not have the benefit of a guaranteed statutory cost-of-living provision. Moreover, no action was ever taken to place a limitation on salaries already fixed by Congress. In contrast, the Legislature has provided California judges with a cost-of-living provision as part of their established salaries.

Applicability

. Having concluded the 1976 amendment to Government Code section 68203 infringes upon constitutionally protected rights when applied to some but not to all judges, it is apparent that if so applied salary disparity among peer judges will result. While it is established that the Legislature may create different salary levels for different officers or employees performing similar duties (see Gov. Code, § 18850 et seq.; Sevier v. Riley (1926) 198 Cal. 170 [244 P. 323]; Crawford v. Payne (1936) 12 Cal.App.2d 485 [55 P.2d 1240]), a further question arises whether an enactment which has immediate constitutional application in some instances but only prospective application in others, satisfies constitutional requirements.

The issue raised is not one of severability in the usual sense. No part of the enactment is constitutionally infirm and therefore no question arises as to whether part of the enactment taints the remainder so as to render the whole a nullity. (See Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 330-335 [118 Cal.Rptr. 637, 530 P.2d 605]; In re Blaney (1947) 30 Cal.2d 643, 655 [184 P.2d 892].) Further, the amendment to section 68203 is incapable of mechanical severance and must survive, if at all, as a wholly integrated enactment. If it does so survive, then its application to particular judges during their protected terms of office must be deferred to the end of each such term.

The issue presented has been dealt with by this court in similar factual situations. The court has concluded that when an enactment suffers from a temporary constitutional defect its applicability is merely delayed until such time as the constitutional bar ceases to exist. In Busch v. Turner (1945) 26 Cal.2d 817 [161 P.2d 456, 171 A.L.R. 1063], legislation increasing salaries of public officials was confronted with a constitutional provision precluding an increase in compensation during a term in office. Before the term of one such official had expired the constitutional provision was amended and implementing legislation was enacted removing the bar to an increase in the official’s compensation. This court held that the provision for increased compensation was merely held in abeyance as to that official during the period of the statute’s constitutional infirmity, to become applicable when the constitutional bar was removed. After referring to other decisions in which constitutionally inapplicable statutes were deferred until a change of circumstances permitted applicability, the court stated: “These decisions. .. represent a specific application of the general principle that statutes will be construed, if their language permits, so as to avoid unconstitutionality. The court [in those cases] thus held, in substance, that the Legislature intended the statutes to be operative at the earliest time the Constitution would permit, but not before.. . ‘The old law stands and controls the right to compensation until the time arrives at which, by the constitution, the new law is permitted to supersede it. . . .’” (Id., at p. 820; see also Regan v. County of San Mateo (1939) 14 Cal.2d 713 [97 P.2d 231]; Galeenerv. Honeycutt (1916) 173 Cal. 100 [159 P.2d 595]; Smith v. Mathews (1909) 155 Cal. 752 [103 P. 199]; Harrison v. Colgan (1905) 148 Cal. 69 [82 P. 674]; Kilroy v. Whitmore (1931) 115 Cal.App. 43 [300 P. 851]; Shay v. Roth (1923) 64 CaLApp. 314 [221 P. 967].)

While the bar in Busch was removed by constitutional amendment and in the instant case the running of a judge’s protected term renders the amendment applicable as to him, “[t]he reason why the prohibition ceases to operate is entirely immaterial. ...” (Busch v. Turner, supra, 26 Cal.2d 817, 821.) This court concluded in Busch that there is “no constitutional objection” to a statutory interpretation giving prospective effect to a provision constitutionally inapplicable on the stated effective date. (Id., at pp. 821-822.)

We adhere to the rule of construction in Busch and the cases on which it relies. No different rule is warranted where, as here, the enactment can be applied to different judges at different times. We conclude that the 1976 amendment to Government Code section 68203 fixes salaries of all judges—and benefits of judicial pensioners grounded on such salaries—except during completion of particular protected terms of office as defined above. In the absence of express legislative intent we should rely on the settled rule of construction presuming legislative intent. Thus in Busch it is stated without reference to actual legislative expression that the courts have “in substance” held that the Legislature intended statutes to be operative at the earliest time the Constitution would permit. {Id., at p. 820.) Presumed legislative intent follows in part from the recognized rule that statutes will be construed when possible to avoid unconstitutionality. The 1976 amendment is thus construed to avoid unconstitutionality by a presumed legislative intent that it be temporarily inapplicable to fix salaries of those judges to whom it cannot be constitutionally applied. The same rule of construction and presumed legislative intent is stated by this court in Smith v. Mathews, supra, 155 Cal. 752 to serve as “precedent for the construction of all future acts of the same character.” (Id., at p. 760.) Our presumption of legislative intent is bolstered by the further presumption that the Legislature in adopting the amendment to section 68203 was aware of the existing rule of construction making the amendment prospectively applicable in those instances of temporary constitutional infirmity. (See Bailey v. Superior Court (1977) 19 Cal.3d 970, 977 [140 Cal.Rptr. 669, 568 P.2d 394]; Bishop v. City of San Jose (1969) 1 Cal.3d 56, 65 [81 Cal.Rptr. 465, 460 P.2d 137],)⁹

Conclusion

We conclude that Government Code section 68203 as amended in 1976, insofar as it would limit cost-of-living salary increases as provided by section 68203 before the 1976 amendment, cannot be constitutionally applied to (1) a judge or justice during any term of office, or unexpired term of office of a predecessor, if the judge or justice served some portion thereof (a “protected term”) prior to 1 January 1977, and (2) a judicial pensioner whose benefits are based on some proportionate amount of the salary of the judge or justice occupying that office.

The salaries of judges and justices as fixed on 1 September 1976 constituted equal compensation for all judges and justices in a particular peer group (the “base salary”). (See Gov. Code, §§ 68200-68203.) Salaries for judges and justices never having served in a protected term are fixed by the legislative scheme to be at any time the 1976 base salaries increased annually by the percentage increase in the CPI not to exceed 5 percent, beginning on 1 July 1978 (the “statutory salary”). However, salaries for judges and justices while serving a protected term will be increased above the 1976 base on 1 September each year beginning 1977, by the percentage increase in the CPI for the prior calendar year. There will thus be a disparity in salaries within a peer group of judges or justices while any judge or justice within that group continues to serve a protected term. Such disparity will continue, in the case of trial judges, no later than the first Monday in January 1981 and, in the case of appellate justices, no later than the first Monday in January 1987. (Cal. Const., art. VI, § 5, subd. (a), § 16, subd. (a); Gov. Code, § 71145.)

A judge or justice who completes a protected term and voluntarily embarks upon a new term can no longer claim to serve in a protected term, and his or her compensation will thereafter be governed by the provisions of section 68203 as amended in 1976.¹⁰ While that section speaks of annual increases in the salaries of “each justice or judge” by a percentage of the then current salary of “such justice or judge,” we do not deem this to mean that the salary of a judge or justice at the end of a protected term will be the salary at which the judge or justice commences a new, unprotected term should he or she succeed himself or herself. As stated {ante, pp. 544-545), section 68203 becomes fully applicable upon expiration of a protected term and it follows that the benefits derived from constitutional protections during that term cannot be projected into an unprotected term. Thus the salary at which any unprotected term is commenced—including the salary of a judge or justice leaving a protected and embarking upon an unprotected term—is the statutory salary then paid to judges or justices of equal rank who never served during a protected term.¹¹ Although a salary of a judge or justice serving a protected term will be decreased upon entering a new term, such a result is constitutionally permissible as such a judge or justice has voluntarily embarked or will voluntarily embark upon a new term for which there was or is a legislatvely designated compensation.¹²

The judgment is affirmed as to any judge or justice who served any portion of his term or the unexpired term of a predecessor prior to 1 January 1977, and as to judicial pensioners whose benefits are based on the salary of such a judge or justice. In all other respects the judgment is reversed. All parties shall bear their own costs on appeal.¹³

Manuel, Acting C. J., Mosk, J., Richardson, J., Racanelli, J.,

* and Brown (G. A.), J.,* concurred.

1 Prior to amendment in 1976 Government Code section 68203 provided in pertinent part: “... on September 1 of each year. . . the salary of each justice and judge. . .shall be increased by that amount which is produced by multiplying the then current salary of each justice or judge by the percentage by which the figure representing the California consumer price index as compiled and reported by the California Department of Industrial Relations has increased in the previous calendar year.” (Stats. 1969, ch. 1507, § I.)

Section 68203, effective 1 January 1977, provides in pertinent part: “On July 1, 1978, and on July 1 of each year thereafter the salary of each justice and judge. . .shall be increased by that amount which is produced by multiplying the then current salary of each justice or judge. . .by the percentage by which the figure representing the California consumer price index as compiled and reported by the California Department of Industrial Relations has increased in the previous calendar year, but not to exceed five percent (5%).” (Stats. 1976, ch. 1183, § 4.)

2 Thal section provides: “Salaries of elected state officers may not be reduced during their term of office. Laws that set these salaries are appropriations.” The section was added to the Constitution in 1972 as a part of an initiative measure designated Proposilion No. 6. It is hereinafter referred to as Proposition 6.

Also pertinent to the issues herein is California Constitution, article VI, section 19: “The Legislature shall prescribe compensation for judges of courts of record.”

3 We are not persuaded by dicta extracted from Millholen v. Riley (1930) 211 Cal. 29 [293 P. 69], claimed to suggest that the relationship between judges and the state is not contractual in nature. In the first place, the employment relationship there involved a law secretary whose duties were deemed to be in “the nature of a public office” which apparently could be terminated at will. (Id., at p. 33.) The issue was not one of a vested contractual right but rather the constitutional power of a court to employ and provide compensation for necessary personnel independently of statutory provisions deemed to concern only the executive department of state. Moreover, although the elements of a public office—an office created by law rather than by an express contract of employment—may be different in some respects (see 1 Witkin, Summary of Cal. Law (8th ed. 1973) p. 647), it does not follow that no contractual relationship exists between the state and a person elected or appointed to that office. In fact, the elements of compensation for such an office become contractually vested upon acceptance of employment. (See Betts v. Board of Administration (1978) 21 Cal.3d 859, 863 [148 CaI.Rptr. I 58, 582 P.2d 614].)

4 While Betts deals with questions of a pensioner’s—as distinguished from an employed person’s—contractual benefits, it is clear a pensioner’s contractual benefits are merely derivative from covenants of employment. Moreover, as will be seen in our discussion of Proposition 6, that constitutional provision forecloses any salary reduction during a judge’s term in office, including reduction in a cost-of-living provision enacted during the same term in office.

5 As used herein, the phrase “judicial pensioners” refers to both retired judges and other persons whose benefits are based on services of a deceased judge, e.g., the surviving spouse or minor children of a deceased or retired judge.

6 Even pre-1965 pensioners are entitled to percentage participation in judicial salaries actually paid or to be paid under compulsion of law to judges or justices occupying the judicial office to which the retired or deceased judge or justice was last elected or appointed.

7 We note that in Betts this court held the pensioner was entitled to both the benefit of a basic retirement allowance calculated as a proportionate part of the fluctuating salary of the incumbent in the office occupied by the pensioner and, additionally, a cost-of-living adjustment of the basic allowance. We stated then that the effect of the holding “is that petitioner thereby receives the benefit of a double increment of increase, a troubling result.” (Betts v. Board of Administration, supra, 21 Cal.3d 859, 867.) The net effect of our holding in the instant case is to allow a judicial pensioner but one increment of increase, that being the increment of pro-rata increase in the salary of the judge occupying the office formerly occupied by the retired or deceased judge. While that salary fluctuates with cost-of-living increases, the judicial pensioner’s proportionate share is his basic retirement allowance and it is not increased by any cost-of-living factor.

Betts is distinguishable on the ground that, unlike the instant case, there was express legislative direction mandating the cost-of-living adjustment be applied to the fluctuating basic retirement allowance. (Id., at p. 865.) It was thus necessarily held that since statutes establishing both the fluctuating basic retirement allowance and the cost-of-living adjustment thereto were in effect during the pensioner’s term in office, he had acquired vested contractual rights to the dual benefits. In the instant case legislation exists directing increases—cost-of-living or otherwise—in the basic retirement allowance, although that allowance itself may fluctuate depending on adjustments —cost-of-living or otherwise—in salaries of incumbent judges.

8 Excerpt from Arguments in Favor of Proposition 6, signed by Bruce W. Summer, Chairman of the Constitutional Revision Commission, Senator Nicholas G. Petris, and Assemblyman Robert G. Beverly.

9 The Legislature has clearly indicated its intent, in recognition of vested interests, to provide minimum levels or to afford elections by which differing levels of compensation may become available to judicial pensioners. (See, e.g., Gov. Code, §§ 75060.1, 75060.2, 75075.1, 75076, 75090, 75090.1, 75090.2, 75090.3, 75093, 75094, 75095, 75095.1.) The Legislature has thus indicated its inclination to accommodate constitutionally compelled innovations in preservation of the substance of its legislative policies.

10 In addition to the running of its course, a protected term may otherwise end, as by death of the incumbent, by retirement, by election or removal to another office, or by other departure from office.

11 The deferred application of the 1976 amendment is not a right applying to a particular judicial office. Upon termination of a protected term, a judge or justice who succeeds to the judicial office—including the incumbent—will be entitled only to that salary provided by sections 68200 through 68202, inclusive, as applicable, and amended section 68203.

12 We note that judicial salaries have in all instances been paid in accordance with section 68203 as amended in 1976.

13 The composition of the court in this case having been approved by the parties at the commencement of hearing, we deem as moot the question of disqualification inappropriately addressed in the dissenting opinion.

Assigned by the Acting Chairperson of the Judicial Council.