Douglas A. Copeland
Copeland Thompson Farris, P.C.
Clayton

In 1994, at the suggestion of the General Assembly, the people of Missouri passed an amendment to the state constitution that created a Citizen’s Commission on Compensation for Elected Officials. The provisions creating and defining that commission are found in section 3 of Article XIII of the Missouri Constitution. Those provisions give the commission the exclusive right to adopt salary schedules for the amount of compensation to be paid to elected state officials, members of the General Assembly, and all state court judges. It states that “the power to control the rate of compensation of elected officials of this state is retained and exercised by the tax paying citizens of the state.” Many were, and continue to be, of the opinion that it was enacted so that legislators could not be accused of increasing their own salaries. Both of those purposes may have been accomplished but for a late change in the resolution that put the amendment on the ballot.

As originally passed by the House, the joint resolution included no involvement whatsoever by the legislature in the setting of compensation for themselves, judges, and the governor and other statewide elected officials. However, the Senate added two provisions that brought these salary issues right back into the political world of the General Assembly. First, the salaries set by the compensation commission were “subject to appropriation” – meaning that if the legislature didn’t like the compensation schedules adopted by the commission, they could simply not fund them, in full or in part. Second, the commission’s salary schedules could be “disapproved” by a concurrent resolution adopted by both the Senate and the House. Such was the resolution submitted to the voters by the General Assembly, and the one the voters passed.

As for the commission itself, it is composed of 22 members. Twelve members are appointed by the governor, with confirmation by the Senate. Nine are selected at random by the Secretary of State, with one eligible voting citizen from each congressional district. The final member is a retired judge appointed by the Supreme Court. They each serve four year terms, so that a new commission was to be appointed in 1996, 2000, 2004, etc.

We now have the luxury of looking back and seeing how this new creation has succeeded or failed. A commission was duly appointed and began its work in 1996. In November of that year, they proudly reported the salary schedule for the next two fiscal years, including increases for legislators. The House and Senate rejected the schedule. Assumingly undeterred, in November of 1998 the commission reported its approved salary schedule for the next two fiscal years. Again, the House and Senate rejected the schedule. A new compensation commission was appointed in 2000, and set about its work as had its predecessor. Although not rejected by an affirmative vote, the General Assembly failed to appropriate funds sufficient to actually pay the salaries in the schedule in full. In what has to date turned out to be the swan song of the commission, in November of 2002 the commission issued a report that, in addition to including another salary schedule, stated that if the legislature continued to reject or ignore its work, the commission should either be abolished or its decisions made binding. In response, the General Assembly again affirmatively rejected the salary schedule. Given this record of failure, no one even bothered to appoint a compensation commission in 2004, and since the terms of the 2000 commission members expired, no commission has even existed, much less issued any additional salary schedules.

At this point you may be surmising that the title to this article is more than a bit rhetorical. The 2002 commission report perhaps sums it up best: “When government tries an activity that does not work it should be changed or eliminated.” You might dismiss this as simply another seemingly good idea that did not work, chalk it up as a failure that is inevitable from time to time in our form of government, and move on to other issues. You might – except for the devastating impact this failure has had on judicial compensation. Instead of freeing judicial compensation from the political jungle, state judges’ salaries are now held hostage to a system that is apparently hopelessly flawed. The result? Salaries of our judges have remained at the same level since 2000, without even a partial cost of living increase.

So where do we go from here? Relatively late in the recently-concluded legislative session a resolution was filed, H.J.R. 55, that proposed submitting a constitutional amendment to the voters that would change section 3 of Article XIII with the hopes of making the work of the compensation commission meaningful. What ultimately passed in the House, with barely a week left in the session, was an amendment that eliminated the ability of the legislature to reject or fail to appropriate the salary schedules adopted by the commission. With only days to consider the resolution, the Senate managed to pass a measure that adopted most, but not all, of the House’s proposal. The Senate added the ability of the General Assembly to reject the salary schedules, but required a two-thirds majority in both the House and Senate to be effective. On the last day of the session, the House accepted the revised ballot measure. It is really quite remarkable that anything was accomplished within the time confines that existed. Consequently, the proposal that will go to the voters later this year essentially eliminates the ability of the legislature to fail to appropriate, retains the ability to reject, but makes it more difficult to reject.

At the end of the day, the Senate was unwilling to relinquish all control over the salaries covered by the commission. In all fairness, there is some validity to the concern expressed in the Senate that the legislature should not give up all control over this portion of the budget, since their hands would then be tied in the event dire circumstances existed at some point in the future. But will the retained veto power only be used in the event a budget crisis exists? Is two-thirds a high enough majority to ensure a limited use of the veto power? Only time will tell, assuming voters approve the amendment. If I were a pessimist, I would question why judges were not included this year in the 4% increase for state employees. That increase for judges would have only cost in the neighborhood of $1.5 million, and I hardly think we are in a budget crisis this year.

I believe we have unanimity in the belief that the compensation commission is broken. I have heard no one suggest that the power to set salaries of judges, legislators and statewide elected officials is effectively in the hands of “the tax paying citizens of the state.” Whether you agree with the “fix” that came out of the General Assembly or not, it appears to be the only viable mechanism to effect a change in the way the commission works, or whether it works at all.

The optimist in me suggests that if this measure passes, the crisis with judicial compensation, which is very real, will, at least over time, be solved. The fact that the voters of Missouri had an opportunity to either eliminate or amend the compensation commission structure in 2000 but refused to do so causes me some concern. Perhaps the past six additional years of failure will convince voters that change is warranted now.

I have no doubt that the success or failure of this ballot measure will be determined by whether we can educate Missouri citizens sufficiently to understand the problem and agree that now is the time to fix this broken concept called the Citizen’s Commission on Compensation for Elected Officials. If we don’t join together and accomplish this task now, we are going to be confronted with disastrous consequences in our judiciary in the not too distant future. I am committed to helping in this educational process, but it is going to take the effort of the entire bar to make this happen. Can I count on your help? I hope so.