I. Leaving the Nineteenth Century
. . .
H. Usually Underpaid
Justice Corliss's resignation in 1898 was the only change on the Court before the turn of the century. Justice Corliss left the Court, Lounsberry reported, "mainly because of the inadequacy of the compensation allowed to the judges."(96) To begin, their annual pay was only $4,000 each.(97) From the start, the justices have been usually underpaid. The 1903 legislature increased a justice's pay to $5,000 annually,(98) but that was hardly enough. When Justice Edward Engerud (1904-1907) resigned to return to practice,(99) Lounsberry again reported "he made known the fact that financial considerations largely controlled," and "[n]o doubt the meager remuneration paid by the state . . . contributed also to the decision."(100)
The legislature approved very few salary increments for justices during the first half of the twentieth century.(101) A 1917 increase to $5,500 annually was repealed by a depression-era initiated measure in 1932 that put future judicial salaries back to $5,000 each.(102) Litigation took place in 1918 over an additional $500 annually appropriated for unvouchered expenses, but it was constitutionally upheld as "additional compensation."(103) The practice of appropriating some form of additional compensation, besides the statutory salary for justices and judges, persisted for a long time, but it did not help a great deal.(104)
Not until 1944 was a justice's salary restored to $5,500.(105) In 1949, the legislature added a helpful retirement pension for judges and justices who paid five percent of their salary into a special Judicial Retirement Fund and who retired after age seventy with eighteen years of service.(106) Under that plan, a retiring judge who qualified was to receive a pension "equal to one-half of the salary provided by law for his office at the time of his retirement."(107) In 1959, this retirement plan was amended to qualify a judge retiring at age sixty-five with over twenty years of service, or older and with fewer years of service, up to age seventy, with ten years of service. The amendment also redefined the pension amount with an escalator clause: "equal to fifty percent of the annual salary payable from time to time to judges of the classification the retired judge last had" before retirement.(108)
Then, the 1973 legislature authorized $10,000 yearly "additional salary" for each justice and district judge, but also tinkered with the existing retirement plan.(109) The judges and justices appreciated the long overdue and much needed raise, but some worried about potential cutbacks in their retirement pay.(110)
The 1973 legislation moved all new judges to the Public Employee Retirement System that still covers retirement of trial judges and justices.(111) That legislation also re-worded the escalator clause of the 1949 pension plan to say that a vested incumbent judge reelected after July 1, 1973, would receive a pension "equal to fifty percent of the annual salary payable to judges of the classification the retired judge had at the time he retired. . . ."(112) As incumbent judges with over ten years of service were reelected in elections after 1973, the changed wording in the escalation clause cast doubt on escalation of their future pay during retirement.
Eventually, five long-term district judges, and a widow of another, all of whom had been reelected after 1973, brought a class action for all judges similarly situated to resolve the uncertainty, to clarify the statute still authorized post-retirement escalation of their retirement pay, and to defend their promised retirement benefits from diminishment.(113) In August 1979, these judges got a judgment, "for all judges of the supreme court and of the district court . . . similarly situated by reason of commencement of service as judge prior to July 1, 1973, reelection as judge after July 1, 1973, and subsequent retirement," that declared the statute still authorized post-retirement escalation of their retirement benefits.(114) Although not named as parties, two Supreme Court justices were beneficiaries of this class judgment that preserved their future retirement benefits, even though their regular salaries remained abysmally low.(115)
The stingy attitude of the legislature toward its co-equal branch of government is shown by this sorry trend of appropriations for judicial compensation in this state. While some substantial salary increases have been made in recent years,(116) North Dakota justices and judges remain, sadly, among the lowest paid in the nation.(117)
96. Lounsberry, supra note 1, at 449-50.
97. See Sketch, supra note 2, at 19; 1895 Rev. Code, § 379.
98. See Sketch, supra note 2, at 19; 1903 N.D. Laws ch. 194, § 2, at 267.
99. See Sketch, supra note 2, at 28. Justice Engerud had been appointed to replace Justice Cochrane (who died in office), and had been elected to serve the remainder of Justice Cochrane's term. See Sketch, supra note 2, at 28. Justice Engerud was succeeded by Justice Burleigh F. Spalding (1907-1914), who was appointed by the governor, elected in 1908, but defeated in the 1914 general election. See Sketch, supra note 2, at 31.
100. Lounsberry, supra note 1, at 454. Not only poor pay but also poor working conditions may have contributed to the early departure of justices from the Court in those years. In 1908, D.M. Slattery, Superintendent of the State Capitol Building, in a "Memorandum of Needed Repairs" with his Report "To The Honorable Board of Trustees of Public Property," complained about the condition of the Law Library:
Judges' chambers need awnings over windows. Plate glass windows needed, as ordinary windows will not stand the high winds. Several windows have been blown in and in two instances judges were injured by the flying glass. The plaster is continually falling and unless something is done the books are bound to be damaged--many already have been.
Seventh Biennial Report of the Secretary of State of North Dakota (1908). Fortunately, the Court's working conditions have improved since 1908.
101. See Sketch, supra note 2, at 19.
102. See 1917 N.D. Laws ch. 224, § 1, at 311; 1933 N.D. Laws, at 503.
103. North Dakota ex rel. Langer v. Kositzky, 166 N.W. 534, 537 (N.D. 1918).
104. See 1967 N.D. Laws ch. 52, § 1, at 68 (authorizing $500 each for January 1, 1967 to June 30, 1967, "for expenses . . . without the filing of any itemized voucher or statement"); 1969 N.D. Laws ch. 276, § 1, at 534 (authorizing $2,000 annually); 1971 N.D. Laws ch. 295, § 1, at 684 (authorizing "additional salary" of $4,000 annually).
105. See 1944 N.D. Laws ch. 33, § 1, at 37.
106. See 1949 N.D. Laws ch. 206, §§ 1-2, at 267 (codified as amended at N.D. Cent. Code §§27-17-01, 27-17-02 (1991)).
107. Id. § 4.
108. 1957 N.D. Laws ch. 210, § 1, at 430.
109. 1973 N.D. Laws ch. 246, § 2, at 610 (authorizing "additional salary" of $10,000 annually); § 3 (redefining retirement rights); §§ 4-15, at 611-15 (additional amendments). For background, see 1973 Report of the North Dakota Legislative Council 147-54.
110. See Judicial Council Minutes 216 (June 20, 1973) (on file with North Dakota Supreme Court Administrator's Office).
111. See 1973 N.D. Laws ch. 246, §§ 1(2), 10, at 610, 613; N.D. Cent. Code § 54-52-06.1 (1989 & Supp. 1999).
112. 1973 N.D. Laws ch. 246, § 3, at 610; N.D. Cent. Code § 27-17-01(3) (1991).
113. See Complaint, Ilvedson v. North Dakota (4th Jud. Dist. N.D. Aug. 14, 1979) (Civ. No. 28558) (on file with Burleigh County Clerk of District Court, Bismarck, N.D.).
114. See Judgment, Ilvedson (No. 28558) (on file with Burleigh County Clerk of District Court, Bismarck, N.D.).
The outcome of the lawsuit also could affect retirement benefits for at least two other judges now serving in the state, although neither is named as a plaintiff in the case. They are Supreme Court Chief Justice Ralph Erickstad and Supreme Court Justice William Paulson. Both began their judicial service prior to 1973 and have been re-elected since 1973.
Hal Simons, N.D. Judges Sue Over Pension Cuts, Fargo Forum, June 30, 1979, at 9. Before 1979, the last pay increase had set a justice's annual salary at only $36,800 and a district judge's at only $34,500. See 1977 N.D. Laws ch. 255, at 598. No judicial salary increase had been authorized by the 1979 legislative assembly.
116. 1999 North Dakota Laws chapter 2, section 7 increased a justice's salary to $83,807 annually beginning July 1, 1999, and to $85,483 beginning July 1, 2000. Currently, federal appellate judges on the comparable United State Courts of Appeal receive $145,000 annually. See 5 U.S.C.A. § 5332, sch. 7 (West Supp. 2000). A North Dakota justice gets less than 60% of that corresponding level of compensation.
117. See 25 Survey of Judicial Salaries 1 (Spring 1999). The national average salary for a state supreme court justice is $107,905 and the median is $109,842. See id.