Judicial Compensation Commission

Summary of Meeting of August 25, 2005

Room 334, State House


Convened:  9:45 a.m.


Members Present:

            Edwin N. Clift

            Sandra Featherman

            David Flanagan 


            Lock Kiermaier, Legislative Analyst, Office of Fiscal & Program Review

            David Boulter, Executive Director, Legislative Council


Others Present:

            Edward Kelleher, Public Information Officer, Judicial Department; Supreme Court Justice Robert W. Clifford; Superior Court Justice Robert E. Crowley; Superior Court Justice Thomas E. Delehanty, II; Superior Court Justice Donald H. Marden; Superior Justice Roland Cole and Superior Court Justice Joseph M. Jabar.


            Executive Director David Boulter convened the second meeting of the Judicial Compensation Commission.


            After introductions of members and staff had been made, Executive Director Boulter then reviewed the proposed agenda and noted that the first item of business was for the commission members to elect a Chair.  He also stated that once a Chair had been elected that his presence would no longer be necessary and that he would hand over the gavel to the Chair.


            Executive Director Boulter then called for nominations.  Edwin Clift nominated Sandra Featherman to be elected as Chair.  Ms. Featherman was then elected as Chair after a unanimous vote of the commission members. 


            After assuming her duties as Chair from Executive Director Boulter, Ms. Featherman then called the commission to the next order of business on the proposed agenda and invited Supreme Court Justice Robert W. Clifford to speak before the commission. 


Justice Clifford began by stating that 3 other members of the court were also present to discuss specific aspects of judicial compensation and that Edward Kelleher, Public Information officer for the Judicial department, was also present to discuss Resolve 2005, c. 86 which was a listed topic on the proposed agenda.  Justice Clifford thanked the commission members for their willingness to serve on the commission and for their interest in the subject of judicial compensation. He also stated that that the commission was an excellent vehicle by which members of the judiciary could discuss their concerns about compensation outside the normal legislative process.


Justice Clifford emphasized that the main area of concern was the level of compensation paid to members of the Maine Judiciary.  The topic of compensation is one that the Legislature has sporadically addressed.  Prior to 1984, judicial salaries were quite low and only tended to attract senior members of the bar who were nearing retirement.  Justice Clifford stated that the Legislature instituted changes in 1984 which included step increases and the introduction of a judicial retirement plan which required contributions from members of the judiciary.  In subsequent years, the Legislature had instituted annual COLAs with the intention of allowing judicial salaries to keep pace with yearly inflation. Justice Clifford suggested that COLAs would have been an effective tool but that as a budget savings measure, the Legislature had repealed the annual COLA for 7 of the past 16 years and that judicial salaries had lost significant ground in the intervening years. Justice Clifford also asserted that judicial compensation had been adversely affected by two other factors: first, the 7.6% contribution rate required of the judiciary for retirement purposes and second, the state’s relatively high income tax rate of 8.5%.


In response to Justice Clifford’s remarks, David Flanagan asked that staff determine exactly which years the COLAs had been repealed and any corresponding budget actions which affected the salaries of other state employees.


Chair Featherman then welcomed Superior Court Justice Robert E. Crowley to offer his remarks.  Justice Crowley focused his remarks on the impact that the repeal of the COLAs has had on judicial retirement; he maintains that the subsequent lag in judicial salary levels has significantly impaired the levels of retirement payments that members of the judiciary can expect. Justice Crowley also stated that this problem is made even more significant by the advancing age of many current justices and judges: by September of 2007, 4 members of the Supreme Court, 8 members of the Superior Court and 12 District Court Judges will have reached the age of 60 and will be vested in the judicial retirement system.  As a possible solution to this problem, Justice Crowley recommended that the applicable retirement laws be amended to allow the 3 highest years of salary to be calculated on the basis of the imputed COLAs that had been repealed.


In response to Justice Crowley’s remarks, David Flanagan asked several questions.  First, he asked what the effect of compensation paid to active retired judges was on retirement. The answers provided by Justice Crowley and other members of the audience suggested that the relatively low rates paid to active retired judges does not have much effect on retirement compensation and that total compensation can not exceed 70% of final pre-retirement compensation.  Justice Clifford also suggested that the use of active retired judges had probably forestalled the need for more judicial positions.  Finally, Mr. Flanagan asked if any calculations had been made regarding Justice Crowley’s recommendation to impute the cost of past COLAs into the retirement calculations; Justice Crowley replied that a cost calculation has yet to be made.  Chair Featherman then requested that staff make sure that representatives of the Maine State Retirement System be invited to attend the commission’s next meeting to address the various judicial retirement topics that had been raised during this meeting.


Next, Chair Featherman asked that when considering the issue of judicial compensation, which would be considered to be the more important issue: salary or benefit levels?  Justice Clifford answered that the salary base is most important because it is the basis by which all other previously discussed issues are calculated.


Chair Featherman then invited Superior Court Justice Thomas E. Delehanty to speak.  Justice Delehanty spoke about the retirement issue from the perspective of some 10 to 12 currently serving members of the judiciary who have some amount of state service prior to serving on the court.  Because of certain changes in eligible retirement age, these members of the court would benefit from being able to apply (or transfer) the years in prior state employment to their judicial retirements but are currently not allowed to do so.  In response to Justice Delehanty’s comments, Chair Featherman asked staff for two pieces of information: first, a list of previous legislation which allowed state employees to transfer from one form of state retirement to another and use the retirement credit from the prior employment to the current retirement plan and, second, the cost to the retirement system if the affected members of the judiciary were allowed to transfer credit for past state employment to judicial retirement.


David Flanagan then made two comments: first, that it will be important for the commission to react to the total compensation package that is currently available to members of the judiciary (as opposed to just salary levels) and, second, that the overall state retirement system tends to penalize persons who enter some form of state service in mid-career.


Superior Court Justice Donald H. Marden was then invited by Chair Featherman to speak before the commission.  In his comments to the commission, Justice Marden emphasized the following: first, the frequent repeal of the COLAs, and the restraint of the judiciary in reacting to these repeals when they were being enacted, speaks effectively to the appropriate decision of the judiciary to remove themselves from the political process at that time and, second, the costs cited by the Maine State Retirement System have scuttled previous efforts to allow members of the judiciary to “buy back” and/or transfer previous years of state employment to judicial retirement.


Chair Featherman then invited Ed Kelleher, Public Information Officer for the Judicial Department, to make comments relative to Resolve, 2005, c. 86, “Resolve, Directing the Judicial Compensation Commission to Examine Allowing Judges to Receive Service Credit for Prior Legislative Service”.  Mr. Kelleher commented that he had followed the Labor Committee’s deliberations on this issue during the most recent session of the Legislature and that from his perspective there appeared to be some confusion on the part of committee members in understanding this issue and how it could be resolved. He also mentioned that the issues of contention around this issue seemed to center around portability (or lack thereof), accurate comparisons and unintended glitches from pervious legislation pertaining to retirement issues.


As a follow-up to Mr. Kelleher’s comments, Chair Featherman then invited Superior Court Justice Joseph M. Jabar to speak before the commission.  As a former legislator, Justice Jabar expressed his frustration at not being able to able his legislative service towards his judicial retirement and emphasized the inequity of not being able to apply his prior state service in this manner.


Chair Featherman then asked several questions and made a number of comments: first, did the members of the judiciary that were present have a specific salary proposal to make to the commission at this time and the answer was no; second, the commission should make an effort to determine what average (and median) judicial salaries were for all 50 states; third, she asked that commission staff determine what Maine’s judicial salaries would be had the COLAs not been repealed; and fourth, she asked if Mr. Flanagan would be willing to discuss with the Governor and members of his administration about the likelihood of including any recommendations from the commission in the Governor’s next supplemental budget. Mr. Flanagan agreed to explore this possibility as requested.


As a final item of business, commission members agreed to the following schedule of meetings:


·        Wednesday, September 28, 2005 from 9:30 a.m. to 12 noon in Room 334, State House;

·        Wednesday, October 19, 2005 from 9:30 a.m. to 12 noon in Room 334, State House;

·        Monday, November 7, 2005 from 9:30 a.m. to 12 noon in Room 334, State House; and

·        Monday, November 21, 2005 from 9:30 a.m. to 12 noon in Room 334, State House.