Original Author: Hemsley, Sid
Date of Material: 05/06/1998
Reviewed Date: 07/27/2021
MTAS was asked several questions about increasing the salary of the city judge.
You have the following questions:
1. Is it legal for the city to provide by ordinance for increases in the salary of the city judge during his term of office through cost of living increases? Under the facts you related to me, the city proposes to pass an ordinance that sets the salary of the city judge elected in August, 1998, and who takes office on September 1, 1998, for an eight year term. However, the salary would not be a fixed amount for those eight years, but would automatically increase according to increases in the cost of living. The city judge has concurrent jurisdiction with courts of general sessions.
2. Is the city obligated to provide for the increase in the city judge’s salary to offset the increase in the cost of living?
3. Can the city judge by paid an hourly rate that is fixed running his term of office?
The answer to question 1 is yes. The answer to question 2 is no. The answer to question 3 is no.
Analysis of Question 1
Such an ordinance would not violate the provision of Article VI, Section 7 of the Tennessee Constitution that provides that the compensation of “Judges of the Supreme or Inferior Court....shall not be increased or diminished during the time for which they are elected.”
However, in my opinion, the ordinance does violate the provision of Article VI, Section 7 of the Tennessee Constitution that requires the salary of the “Judges of the Supreme or Inferior Courts to be “ascertained by law.” As I will point out in detail below, the Tennessee courts have held in a long line of cases that the phrase “ascertained by law” requires that the General Assembly must set the salaries of the judges of Inferior Courts, and that such salaries cannot be set by any other body. For that reason, in my opinion both Article XI, Section 2, of the city’s charter, and Tennessee Code Annotated, section 16-18-205, are unconstitutional. Both those statutes allow the city’s governing body to set the compensation of the city judge.
The Ordinance would not violate the provision of Article VI, Section 7, that prohibits the compensation of the Judges of Inferior Courts from being increased or diminished during their terms of office
Article XI, Section 1, of the city’s charter provides that the city judge shall have jurisdiction over ordinance violations, and concurrent jurisdiction with courts of general sessions over violations of the criminal law committed within the city. Under State ex rel. Town of South Carthage v. Barrett, 840 S.W.2d 895 (Tenn. 1992), judges who exercise concurrent jurisdiction must be elected and meet other qualifications of the judges of Inferior Courts under Article VI, Section 4 of the Tennessee Constitution. Article XI, Section 2, of the city’s charter provides for a city judge who is elected and meets those qualifications. It also provides that, “The Council shall establish the compensation of the Town Judge by ordinance, and the ordinance must receive final reading ninety (90) days prior to the next election of the Town Judge.”
In addition, Tennessee Code Annotated, section 16-18-205(a)(1), provides that:
(a) The salary of the popularly elected city judge shall be established in one (1) of the following ways:
(1) The salary may be fixed by the governing body by ordinance or resolution prior to the term of office and shall not be increased nor diminished during the term....
Both the city’s charter and the general law reflect Article VI, Section 7, of the Tennessee Constitution, which provides that:
The Judges of the Supreme or Inferior Courts, shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be increased or diminished during the time for which they are elected. They shall not be allowed any fees or perquisites of office nor hold any other office of trust or profit under this State or the United States. [Emphasis is mine.]
Your exact question arose in Overton County v. State ex rel Hale, 588 S.W.2d 282 (Tenn. 1979). The primary question there was whether a statute under which county officials, including sessions judges, were entitled to annual salary adjustments tied to the consumer price index was legal. The County argued that the annual salary adjustments with respect to the sessions judges would violate Article VI, Section 7, of the Tennessee Constitution. The Court held otherwise, declaring that:
It is universally recognized that the rationale undergirding such constitutional provisions is the maintenance of judicial independence from legislative action to punish or reward judges for decisions that produce a favorable or unfavorable reaction. The key words of the Tennessee constitutional provision are “during the time” which obviously means legislative action taken within the time period of a judicial term of eight years, to increase or diminish compensation. [At 288.]
The Court also reasoned that:
The theory behind hinging an annual change in salary to the consumer price index is that the index accurately measures the change in the purchasing price of the dollar, with the result that by “indexing” judicial salaries, the “compensation” remains constant. That theory has a solid foundation in fact. The Tennessee Legislature has no power over the amount of index change and thus no power over the will of judges.... [At 289.]
The statute in question had been passed before the judge took office, and did not affect the salary of any judge then in office.
The touchstone in State ex rel. Hale was not the indexing of the judge’s salaries to the cost of living, but a salary-setting mechanism that did not involve “legislative action taken within the time period of the judicial term of eight years to increase or diminish compensation.” The consequence of that salary-setting mechanism was that the judge’s judicial independence was preserved. In other words, apparently any system put in place before the judges took office and that provided for an incremental increase in their salaries during their terms of office would have passed muster.
If the ordinance proposed by your city does permit or require any legislative action by the city council during the city judge’s eight year term, it would apparently comply with Article VI, Section 7, of the Tennessee Constitution, Tennessee Code Annotated, section 16-18-205, and Article XI, Section 2, of the city’s charter. [Also see Cornelius v. McWilliams, 641 S.W.2d 508 (Tenn. App. 1982.).]
The Ordinance would violate the provision of Article VI, Section 7 of the Tennessee Constitution that requires the compensation of the judges of Inferior Courts to be "ascertained by law."
The defect in both Tennessee Code Annotated, section 16-18-205, and Article XI, Section 2, of the city’s charter is that it permits the salary of the city judge to be set by local ordinance or resolution. Article VI, Section 7, of the Tennessee Constitution, requires the salaries of the judges of the “Supreme and Inferior Courts” to be “ascertained by law.” A long line of cases hold that “ascertained by law” means that the salaries of such judges must be set by the General Assembly, and that the power to set their salaries cannot be delegated to the county courts or to any other body. [See County of Shelby v. Six Judges, 3 Shannon’s Cases 508 (1875); Colbert v. Bond, 75 S.W. 1061 (1903); Chamber v. Marcum, 255 S.W.2d 1 (1953); Franks v. State, 772 S.W.2d 428 (1989).]
It is not clear whether city courts that exercise jurisdiction concurrent are actually Inferior Courts or are only exercising Inferior Court jurisdiction. However, that question involves hair-splitting. Town of South Carthage v. Barrett, above, held that city court judges exercising concurrent jurisdiction were exercising the power of Inferior Courts, and must be elected and meet the other qualifications of judges of Inferior Courts under Article VI, Section 4 of the Tennessee Constitution. [Also see State ex rel. Newsom v. Johnson v. Roberts, 881 S.W.2d 678 (Tenn. Crim. App. 1993).] If such judges must be elected and meet the qualifications of the judges of Inferior Courts, I can think of no reason why the commands of Article VI, Section 7, of the Tennessee Constitution, would not apply to city courts exercising Inferior Court jurisdiction, including the command that the salaries of the judges of Inferior Courts must be set by the General Assembly.
Analysis of Question 2
State ex rel. Hale does not mandate the indexing of judges salaries to the cost of living; it simply declared that the General Assembly had the authority to index such salaries without running afoul of Article VI, Section 7, of the Tennessee Constitution. In fact, the General Assembly repealed the statute at issue in that case.
Let me know if I can help you further in this or any other matter.
Sidney D. Hemsley
Senior Law Consultant