Opinion No. Oag 2-80, (1980)

69 Op. Att'y Gen. 4

Opinion

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

You have asked whether sec. 40.96(3), Stats., created by ch. 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 sec.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 ch. 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 ch. 38, Laws of 1979, effective as to all classes of justices and judges mentioned in sec.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 sec. 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. 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 sec. 20.923(3), Stats., while the salaries of circuit judges receiving retirement benefits will change according to sec. 40.96(3), Stats.

In my opinion, sec. 40.96(3), Stats., is not repugnant to Wis. Const. art. IV, sec. 26, which provides in part, that:

[W]hen 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 Wis. Const. art. IV, sec. 26, prohibits the Legislature from doing this.

BCL:WMS