Constitutional Law State's Attorneys And Sheriffs – Whether Officers are Entitled to Receive Automatic Salary Increases During Their Terms When Those Increases Are Set in Advance Before the Term – Whether it Would Be An Unconstitutional Reduction in Salary to Rescind An Automatic Salary Increase that Was Set Before the Term ( 2019 )

Gen. 41] 41
CONSTITUTIONAL LAW
STATE’S ATTORNEYS AND SHERIFFS – WHETHER OFFICERS ARE
ENTITLED TO RECEIVE AUTOMATIC SALARY INCREASES
DURING THEIR TERMS WHEN THOSE INCREASES ARE SET IN
ADVANCE BEFORE THE TERM – WHETHER IT WOULD BE AN
UNCONSTITUTIONAL REDUCTION IN SALARY TO RESCIND
AN AUTOMATIC SALARY INCREASE THAT WAS SET BEFORE
THE TERM
June 28, 2019
James J. Moran, President
County Commissioners of Queen Anne’s County
You have requested our opinion on two related questions
regarding the salaries of the State’s Attorney and the Sheriff for
Queen Anne’s County. First, you ask whether those public officers’
salaries, which are tied by law to the salary of a District Court
judge, will increase with automatic pay raises that District Court
judges are scheduled to receive in each of the next three years and
that were set before the State’s Attorney and Sheriff began their
current terms of office. Second, if the salary of the Sheriff will
increase, you ask whether the County Commissioners can take any
action at this point to freeze the salary of the Sheriff at its current
level.
You have provided us with the opinion of the County
Attorney on both of these questions, in accordance with our
Office’s policy requiring a local jurisdiction to do so when
requesting an opinion of the Attorney General. The County Attorney
concluded that the salaries of the State’s Attorney and Sheriff will
increase with the automatic pay raises for District Court judges, the
next of which will occur on July 1, 2019. In addition, he concluded
that any action taken to freeze the salary of the Sheriff at its current
level—thus depriving the Sheriff of the automatic pay raises—
cannot become effective until the next term of office begins. For
the reasons explained below, we agree with the County Attorney.
In our opinion, the salaries for the State’s Attorney and Sheriff
will increase with the automatic pay raises for District Court
judges. Because those pay raises were objectively established by
legislation enacted before their current terms of office began, the
pay raises do not violate Article III, § 35 of the Maryland Constitution,
which prohibits most public officers from having their salaries
42 [104 Op. Att’y
either increased or decreased during their terms. In addition, we
conclude that the County Commissioners may not freeze the salary
of the Sheriff at its current level because any action to prevent the
automatic pay raises set by legislation enacted before the Sheriff
took office would, in effect, be a reduction in salary that violates
Article III, § 35.
I
Background
A. The Salaries of the State’s Attorney and the Sheriff for
Queen Anne’s County
Under a series of related legislative enactments, the salaries
of both the State’s Attorney and the Sheriff for Queen Anne’s
County have been tied to the salary of a judge of the District Court
of Maryland. With respect to the State’s Attorney, the Maryland
Constitution created the office of State’s Attorney in each county
and established that the salary is as “prescribed by the General
Assembly.” Md. Const., Art. V, § 9. The General Assembly, in
turn, has prescribed that the salary of the State’s Attorney for
Queen Anne’s County is “equal to the salary of a judge of the
District Court of Maryland” and “shall be set before the start of the
elected term of office.” Md. Code Ann., Crim. Proc. (“CP”) § 15-
418. 1
Similarly, with respect to the Sheriff, the Constitution created
the office of Sheriff in each county and established that the salary
is as “fixed by law.” Md. Const., Art. IV, § 44. Accordingly, the
General Assembly has provided that the Queen Anne’s County
Sheriff is to receive a salary set by the County Commissioners of
at least $10,000. Md. Code Ann., Cts. & Jud. Proc. (“CJP”) § 2-
309(s)(1)(i). The County Commissioners, in turn, have determined
that, “as of January 1, 2015 and thereafter, the salary of the Sheriff
will be equivalent to that of the Queen Anne’s County State’s
Attorney.” Queen Anne’s County Resolution No. 09-04. Therefore,
to determine the salaries that must be paid to the State’s Attorney
and the Sheriff for Queen Anne’s County, we must determine the
salary for a District Court judge.
1
A majority of jurisdictions in Maryland have similar provisions
setting the salary of their State’s Attorney equal to, or at some percentage
of, the salary of judges. See Title 15, Subtitle 4 of the Criminal
Procedure Article.
Gen. 41] 43
B. The Salary of a District Court Judge
Judicial salaries in Maryland are established through a multi-
step process created by the General Assembly. Every four years,
the Judicial Compensation Commission reviews the salaries of
judges (district, circuit, and appellate) and makes recommendations
about future salaries to the Governor and the General Assembly.
CJP § 1-708(c). The Governor is required to include in the State
budget the funding necessary to implement the Commission’s
recommendations, subject to further action by the General
Assembly prescribed by the statute. Id. No later than the fifteenth
day of the session, the General Assembly is required to introduce
the Commission’s recommendations as a joint resolution in each
house. CJP § 1-708(d). Each house has the opportunity to amend
the joint resolution to reduce the recommended salary amounts but
may not increase them. Id. If the General Assembly fails to adopt
or amend the joint resolution within 50 days after its introduction,
the recommendations of the Commission become law. Id. If the
General Assembly rejects the recommendations, judicial salaries
remain unchanged. Id. “Any change in salaries . . . adopted by the
General Assembly under this section takes effect as of the July 1 of
the year next following the year in which the Commission makes
its recommendations.” CJP § 1-708(f). 2
The General Assembly introduced the Commission’s most
recent recommendations, which were made in 2017, during the
2018 Session. See House Joint Resolution 3 (2018); Senate Joint
Resolution 5 (2018). After the General Assembly reduced the
recommended salary amounts, both houses passed the joint
resolution. House Joint Resolution 3 (2018). The amended joint
resolution thus became law and took effect on July 1, 2018. See
CJP § 1-708(f). Accordingly, the current salary amounts for a
judge of the District Court of Maryland are as follows:
Beginning July 1, 2018 = $146,333
Beginning July 1, 2019 = $151,333
Beginning July 1, 2020 = $156,333
Beginning July 1, 2021 = $161,333
2
In a year where no salary increase is provided by a joint resolution
enacted using this process, judges receive any “general salary increase”
that is awarded to all State employees. CJP § 1-703(b)(1). Where a joint
resolution establishes a judicial salary increase, however, judges cannot
receive any general salary increase that might be awarded to State
employees. CJP § 1-703(b)(2).
44 [104 Op. Att’y
House Joint Resolution 3 (2018). Those salary amounts, having
been established, may not be reduced. See CJP § 1-708(d); see also
Md. Const., Art. IV, § 41H (providing that the salary of a District
Court judge may not be reduced during the judge’s term of office).
The Commission will complete its next set of salary
recommendations in 2021. Any change in salaries adopted by the
General Assembly as a result of those next salary recommendations
will take effect as of July 1, 2022. See CJP § 1-708(f).
C. Article III, § 35 of the Maryland Constitution
Under the Maryland Constitution, the salary or compensation
of a public officer may not be increased or diminished during the
officer’s term, unless the officer’s term of office is fixed by law at
more than four years. Md. Const., Art. III, § 35. The purpose of
this constitutional provision is two-fold. First, it “prevent[s] a
public officer from using his office for the purpose of putting
pressure upon the General Assembly or other authorized agency to
award him additional compensation” and, second, it “prevent[s] the
General Assembly or other agency from putting pressure on a
public officer by offering him increased compensation or
threatening a decrease thereof.” Comptroller v. Klein, 215 Md.
427, 434 (1958).
Although this provision is usually easy to apply, the analysis
can become more complicated when the salary of a public officer
who is covered by Article III, § 35 is tied by law to the salary of
another officer whose term is longer than four years and who is
thus exempt from the relevant requirements of Article III, § 35. For
example, as applied here, the term of office for both the State’s
Attorney and the Sheriff is four years, Md. Const., Art. IV, § 44;
Md. Const., Art. V, § 7, meaning that they are covered by the
requirements of Article III, § 35. However, because the term of
office for District Court judges is ten years, Md. Const., Art. IV,
§ 41D, they may receive salary increases during their terms that the
State’s Attorney and Sheriff would not be able to receive without
violating Article III, § 35. Thus, when a public officer’s salary is
tied to that of a judge, there can be some ambiguity about when and
whether that public officer is entitled to the same salary increases
as the judge.
In Marshall v. Director of Finance for Prince George’s
County, 294 Md. 435, 436-439 (1982), for example, the Court of
Appeals had to decide whether the State’s Attorney for Prince
George’s County, whose salary was tied to that of a circuit court
judge, was entitled to receive a pay raise that had been enacted for
Gen. 41] 45
circuit court judges. Before the State’s Attorney took office, the
General Assembly had enacted legislation making the salary of the
State’s Attorney “equal to” the salary of a circuit court judge. Id.
at 436. Then, after the State’s Attorney took office, the General
Assembly enacted legislation granting a pay raise to circuit court
judges. Id. The Court held that it was unconstitutional to grant the
pay raise to the State’s Attorney, even indirectly, “by legislation
enacted during his term of office.” Id. at 439; see also 65 Opinions
of the Attorney General 373, 374 (1980) (reaching the same
conclusion). Instead, the pay raise could not take effect until the
beginning of the State’s Attorney’s next term. Marshall, 294 Md.
at 439. Therefore, in answering your questions, we must analyze
the potential effect of Article III, § 35, as interpreted by the Court
of Appeals in Marshall, on any salary increase for the State’s
Attorney and the Sheriff for Queen Anne’s County.
II
Analysis
A. Increasing the Salaries of the State’s Attorney and Sheriff
Your first question is whether the salaries of the State’s
Attorney and Sheriff are fixed at the exact amount that a District
Court judge earned at the beginning of their terms of office or
whether their salaries will increase in line with the automatic pay
raises that District Court judges will receive over the next three
years. To answer that question, we start with the language of the
statutory provision that governs the salary of the State’s Attorney
for Queen Anne’s County. 3 See Lockshin v. Semsker, 412 Md. 257,
276 (2010) (explaining that “[t]o ascertain the intent of the General
Assembly, we begin with the normal, plain meaning of the
language of the statute”). That provision states that the salary of
the State’s Attorney is “equal to” the salary of a judge of the
3
We focus on the statute setting the State’s Attorney’s salary because
Queen Anne’s County has provided that the Sheriff’s salary is
“equivalent to” the State’s Attorney’s salary. Queen Anne’s County
Resolution No. 09-04. We also defer to county attorneys on the
interpretation of county laws, and the County Attorney has concluded (in
the opinion provided to our Office) that the salary for the Sheriff will
increase in line with the State’s Attorney’s salary, so long as those
increases are constitutional under Article III, § 35. Thus, under the
County’s resolution, if the State’s Attorney receives the same in-term
pay raises as District Court judges, so too will the Sheriff.
46 [104 Op. Att’y
District Court of Maryland and that the salary “shall be set before
the start of the elected term of office.” CP § 15-418(b)(1). Under
that language, the question is whether the requirement for the salary
to be “set” before the start of the State’s Attorney’s term means that
the salary must be fixed at a single, unchangeable amount as of the
first day of the term or whether the State’s Attorney is entitled to
automatic pay raises during the term so long as those pay raises
were “set” before the start of the term.
In our view, by including a requirement that the salary be
“set” before the beginning of the State’s Attorney’s term, the
General Assembly merely intended to codify the constitutional
requirement in Article III, § 35 that a public officer’s salary cannot
be increased during the officer’s term of office. As our Office has
previously observed, statutory provisions like this one that act to
delay the effect of salary increases during an officer’s term “are but
legislative reiterations of the constitutional requisites of Article III,
§ 35.” 65 Opinions of the Attorney General at 374. We think the
same is true here. There is no evidence in the legislative history or
otherwise that the General Assembly intended its amendment to
impose more stringent requirements than the Maryland
Constitution. Had the General Assembly sought to mandate that
the State’s Attorney’s salary be fixed at the same amount for the
entire four-year term, regardless of whether pay raises “set” before
the beginning of the term comply with the Maryland Constitution,
it likely would have stated that limitation more clearly. 4
Given our conclusion that the General Assembly intended to
codify Article III, § 35, we turn to that constitutional provision to
determine whether the pay raises at issue would conflict with the
provision’s requirements. As noted above, the Court of Appeals
concluded in Marshall that, under Article III, § 35, a public officer
was not entitled to an indirect pay raise resulting from legislation
4
This conclusion is also supported by the historical context in which
the General Assembly adopted the requirement that the State’s
Attorney’s salary be “set” before the start of a new term. See 1982 Md.
Laws, Ch. 202. At the time, there was an ongoing dispute (eventually
resolved by the Court of Appeals in Marshall) about the entitlement of
the Prince George’s County State’s Attorney to receive a pay raise based
on legislation enacted during his term. See 65 Opinions of the Attorney
General at 378 (Editor’s Note). Our Office had already advised at the
time that granting the Prince George’s County State’s Attorney a pay
raise based on legislation enacted during his term would violate Article
III, § 35, id., and the General Assembly likely sought to clarify its intent
to follow the requirements of Article III, § 35 that would have prohibited
the pay raise at issue in Marshall.
Gen. 41] 47
enacted during his term that raised the salary of another officer.
Marshall, 294 Md. at 438-39. The Court held that “where a public
officer’s salary is increased, directly or indirectly, by legislation
enacted during his term of office, there is a violation of Article III,
§ 35.” Id. at 439 (emphasis added). However, the Court expressly
left open the question at issue here, that is, whether the State’s
Attorney would have been entitled to a pay raise during his term if
that future pay raise had been set by legislation enacted before the
beginning of his term of office. See id. at 439 n.1 (declining to
“pass upon” the constitutionality of a statute providing for annual
increases in the salary of the Prince George’s County State’s
Attorney that was enacted before the State’s Attorney’s term
began).
Although Marshall did not consider the constitutionality of an
in-term salary increase set before a public officer’s term began, our
Office has long been of the view that such an increase does not
violate Article III, § 35, provided that certain criteria are met. In
1975, for example, we concluded that the General Assembly could
constitutionally provide in advance for automatic cost-of-living
adjustments over the course of a term, so long as the adjustments
were pre-determined based on objective standards, were
“announced in advance of a new term,” and were “designed to take
effect at stated intervals after the new term had commenced.” 60
Opinions of the Attorney General 823, 832 (1975); see also 67
Opinions of the Attorney General 340 (1982) (reiterating that
conclusion).
Similarly, when advising that a State’s Attorney whose salary
was tied to a judge could not receive a raise for judges enacted
during his term, we concluded that an in-term increase would have
been permissible had it occurred “[n]ot by virtue of any subsequent
legislative action, but solely by the automatic operation of the very
law in effect at the beginning of the term” where that law
“definitely prescribed and fixed the compensation incident to the
office.” 65 Opinions of the Attorney General at 375 (quoting Yuma
County v. Sturges, 140 P. 504, 506 (Ariz. 1914) (emphasis in
original)). We reasoned that, when salary “increases are fixed prior
to the commencement” of a term, there is no opportunity for public
officers to exploit their offices to obtain a salary increase during
their terms, and the purpose of Article III, § 35 is thereby “fully
and effectively preserved.” Id. at 374-75 (quoting 60 Opinions of
the Attorney General at 832 (emphasis omitted)). We thus suggested
that, if the pay raises at issue there for judges—and by extension
the State’s Attorney—had been “known” and “objectively established
48 [104 Op. Att’y
in advance of” the term, they would not have constituted invalid
increases in salary during the State’s Attorney’s term. Id. 5
Applying that same rationale, it would not violate Article III,
§ 35 for the State’s Attorney and Sheriff to receive, during their
terms, the same automatic pay raises that were set in advance for
District Court judges. Although our earlier opinions preceded the
Court of Appeals decision in Marshall, our conclusion is entirely
consistent with that decision. Unlike the salary increases in Marshall,
which the Court repeatedly emphasized were enacted “during” the
State’s Attorney’s term, see, e.g., Marshall, 295 Md. at 438-39, the
salary increases here were enacted (and became legally effective)
before the current terms of the State’s Attorney and Sheriff began.
Therefore, there is no risk that the State’s Attorney or the Sheriff
will be able to use their offices to put pressure on other officials
“to award [them] additional compensation” during their terms or
that other officials will put undue “pressure on [them] by offering
[them] increased compensation” during their terms. Klein, 215
Md. at 434.
Indeed, our Office reached the same conclusion in a 2006
letter of advice, in response to a similar inquiry about the salary
payable to the State’s Attorney for Queen Anne’s County where
5
That conclusion is consistent with the “majority rule” in other states,
under which future changes in compensation set before the beginning of
a public officer’s term according to a fixed formula are permissible under
those states’ analogous constitutional provisions. See Stiftel v. Malarkey,
384 A.2d 9, 16 (Del. 1977) (collecting cases). Under that majority rule,
attorneys general in other states have applied similar principles to
conclude that “[s]tatutory provisions granting automatic periodic salary
increases during an officer’s term have been found to be constitutional
where they were in effect before the commencement of the term.” 1986
Ohio Op. Att’y Gen. No. 86-106, 1986 WL 237932 (Dec. 19, 1986)
(concluding that “an incremental salary schedule, under which the
amount paid to each [officer] in question automatically increases
annually, either by a set dollar amount or by a specified percentage”
would be constitutional); see also, e.g., Neb. Op. Att’y Gen. No. 09009,
2009 WL 2988032 (Aug. 17, 2009) (concluding that automatic salary
increases were permissible if enacted before the officer’s term); 72 Wis.
Op. Att’y Gen. 45, 1983 WL 180865 (Apr. 15, 1983) (concluding that “a
clearly established step salary plan which would provide for different
predetermined and readily ascertainable rates to apply during different
years of a fixed term” would be constitutional); 1980 Colo. Op. Att’y
Gen. No. 80, 1980 WL 109280 (Oct. 29, 1980) (concluding that
“incremental increases” in the salary of district attorneys are
“constitutionally permissible, provided they are established prior to the
commencement of the term of office.”).
Gen. 41] 49
the Judicial Compensation Commission had provided in advance
for future pay raises for District Court judges. See Letter from
Robert N. McDonald, Chief Counsel for Opinions & Advice, to
Frank Kratovil, State’s Attorney for Queen Anne’s County (Aug.
21, 2006). The letter advised that, because the law at the beginning
of the State’s Attorney’s term provided for “known” and
“objectively established” increases in the salary of District Court
judges at precise intervals during the term, the State’s Attorney’s
salary could increase by the same amounts at those same intervals.
Id. at 4 (quoting 65 Opinions of the Attorney General at 375-76).
The letter cautioned, however, that if the General Assembly
changed the salary of District Court judges during the State’s
Attorney’s term, the salary of the State’s Attorney could not
constitutionally reflect that change until the beginning of the next
term. Id.
In our view, the same principles apply here to both the State’s
Attorney and the Sheriff for Queen Anne’s County. The General
Assembly set the salaries of District Court judges, including
automatic pay raises, in 2018, before the State’s Attorney and
Sheriff began their current terms of office. Therefore, both the
State’s Attorney and the Sheriff may receive, during their current
terms, the automatic pay raises that were objectively established
for District Court judges in 2018, without violating Article III, § 35
of the Maryland Constitution. Beginning July 1, 2019, the State’s
Attorney and Sheriff will earn $151,333, followed by $156,333 on
July 1, 2020, and $161,333 on July 1, 2021.
Although we conclude that the salary increases discussed
above do not violate Article III, § 35, the answer to your question
in future years will always be a fact-specific one that depends on
when salary legislation is enacted, when a public officer’s term of
office begins, and whether the salary increase was known and
objectively established in advance of the officer’s term. For
example, when the General Assembly acted on the most recent
recommendations of the Judicial Compensation Commission, it set
automatic pay raises for District Court judges in 2018, 2019, 2020,
and 2021. See House Joint Resolution 3 (2018). Because the
current terms of the State’s Attorney and Sheriff did not begin until
2019, these pay raises went into effect during the prior four-year
term for those offices. As a result, the State’s Attorney and Sheriff
could not receive the first pay raise for District Court judges (which
occurred on July 1, 2018) until their new terms of office began in
January of 2019. While they may now receive the remaining
automatic pay raises on the same schedule as the District Court
50 [104 Op. Att’y
judges, they may not receive any additional pay raises granted to
judges during this term. Any additional pay raises would be the
result of legislation enacted after their terms of office began and,
under Marshall, would violate Article III, § 35. 6 In the final
analysis, the State’s Attorney and Sheriff are entitled to the same
automatic pay raises afforded to District Court judges, so long as
those pay raises were known, enacted, and objectively established
in advance of their current terms of office.
B. Freezing the Salary of the Sheriff
Your second question is whether the County Commissioners
may take any action at this point to freeze the salary of the Sheriff
at its current level. To answer that question, we must determine
whether preventing an automatic pay raise from taking effect, when
that pay raise was set before the start of a public officer’s term,
constitutes a reduction in salary that violates Article III, § 35. The
Court of Appeals has established, just as clearly as it has for an
increase in salary, that a reduction in salary cannot occur based on
legislation enacted after a public officer’s term has begun. See,
e.g., Calvert County Commissioners v. Monnett, 164 Md. 101
(1933). In fact, even if a public officer were to agree to accept a
reduction in salary, that agreement would be void as against public
policy. See County Commissioners of Anne Arundel County v.
Goodman, 172 Md. 559 (1937). Thus, if a salary freeze in the face
of a pre-determined automatic pay raise constitutes a reduction in
salary in violation of Article III, § 35, any action taken by the
County Commissioners to freeze the salary of the Sheriff would be
ineffective during the current term of office, even if the Sheriff
were to voluntarily accept such a freeze.
Although no Maryland court has decided this question, courts
and attorneys general in other states with analogous constitutional
provisions have persuasively reasoned that revoking an automatic
pay raise set to occur during a public officer’s term is an
unconstitutional reduction of the officer’s salary. The Delaware
Supreme Court, for instance, held that its state legislature could not
constitutionally rescind automatic cost-of-living adjustments for
6
As noted above, in years where judges do not receive salary
increases via the Judicial Compensation Commission process, they
receive any “general salary increase” that is awarded to all State
employees. See footnote 2, supra. Given that judges are entitled to
salary increases through the Commission process in each of the next
three years, we do not need to decide whether the State’s Attorney would
be entitled to a salary increase where District Court judges obtain a raise
as part of a general salary increase for State employees as a whole.
Gen. 41] 51
public officers that were established in advance of their terms and
objectively tied to the federal government’s cost-of-living index.
Stiftel, 384 A.2d at 16. The Court explained that, even though the
officers’ current salary did not yet reflect the salary adjustments,
the purpose underlying the constitutional provision “would apply
as well to a threat of removing a salary adjustment.” Id. at 15.
After all, the Court noted, the “potential duress” on the officer
“would be the same,” regardless of whether the legislature reduced
the salary at the commencement of the officer’s term or future
automatic increases that had been established before the officer’s
term began. Id.; see also Olson v. Cory, 636 P.2d 532, 539 (Cal.
1980) (concluding that legislation restricting automatic cost-of-
living increases for judges, which had been objectively tied to the
consumer price index, constituted a reduction in salary that could
not take effect during those judges’ terms).
Likewise, the Washington Attorney General reached the same
conclusion when asked whether it was constitutionally permissible
to rescind automatic pay raises for members of the legislature that
had been set before the beginning of their terms. 1981 Wash. Op.
Att’y Gen. No. 17, 1981 WL 139671 (Nov. 5, 1981). In that
situation, a law in effect prior to the current term of office for
certain legislators had established that their salaries would increase
by a set amount in each of the next four years. Id. After the terms
of those legislators had begun, the Attorney General was asked
whether the legislature could rescind those future salary increases.
Id. In response, the Attorney General reasoned that any such
rescission would be an unconstitutional reduction in salary during
the legislators’ terms, as it would eliminate the “periodically
increasing level of compensation already provided for in the law
when the current terms of the affected legislators commenced.” Id.
Put another way, the legislators’ salaries were “vested at the level
. . . provided for” by law at the beginning of their terms of office,
and the promise of those future automatic increases could not be
revoked. Id.; see also 60 Op. Cal. Att’y Gen. 153, 1977 WL 24871
(May 25, 1977) (concluding with respect to the question that the
California Supreme Court eventually answered in Olson v. Cory
that “the salaries which an elected officer is to receive during his
or her term are fixed at the beginning thereof” and that the
legislature therefore could not rescind automatic salary increases
52 [104 Op. Att’y
for judges that had taken effect before the beginning of the judges’
terms). 7
In our opinion, the same logic applies here. When, as here,
the law in effect at the beginning of a public officer’s term provides
for automatic pay raises to occur during that term based on
objective and pre-determined criteria, the law has essentially fixed
in advance the compensation for those future years. See Part II.A,
supra. Thus, suspending those pay raises would disrupt the public
officer’s settled expectations and would undermine one of the core
purposes underlying Article III, § 35, namely, to prevent a
legislative body from putting undue pressure on a public officer by
threatening that officer’s compensation. See Klein, 215 Md. at 434.
As the Delaware Supreme Court recognized, the threat that a
legislative body might suspend an officer’s future salary
increases—when those increases are supposed to be automatic and
were objectively established before the officer’s term began—
could put just as much pressure on the officer to submit to the
legislature’s will as the threat of a reduction in the officer’s current
salary. Stiftel, 384 A.2d at 15.
Applying that constitutional rule to the Sheriff for Queen
Anne’s County, the law in effect at the beginning of his term
provided that his salary was to be “equivalent to” that of the State’s
Attorney. Queen Anne’s County Resolution No. 09-04. The law
governing the State’s Attorney’s salary, in turn, made that officer’s
7
A federal court has also held that legislation to block future cost-of-
living adjustments for federal judges from taking effect violated the
Compensation Clause, under which compensation for federal judges
“shall not be diminished during their Continuance in Office.” Beer v.
United States, 696 F.3d 1174 (Fed. Cir. 2012) (en banc) (quoting U.S.
Const., Art. III, § 1). The Court concluded that the process for
determining the adjustments was sufficiently “precise and definite” to
give rise to a reasonable expectation that the judges should have received
those adjustments. Id. at 1183-84. In reaching this conclusion, the Court
distinguished an earlier Supreme Court decision that had held Congress
did not violate the Compensation Clause by stopping certain cost-of-
living adjustments from going into effect. Id. at 1181 (citing United
States v. Will, 449 U.S. 200 (1980)). In Will, the Federal Circuit
explained, the Congressional scheme for cost-of-living adjustments at
the time was so discretionary and uncertain that it “prevented the creation
of firm expectations,” and there was no entitlement to the pay raise until
it actually became due and payable. Id. In our situation, the future pay
raises for District Court judges—and therefore for the State’s Attorney
and Sheriff—are far more definite and automatic than the schemes at
issue in either Will or Beer. We thus find the authority from other states
to be more relevant in this context.
Gen. 41] 53
salary “equal to” that of a District Court judge, CP § 15-418(b), and
the law governing the salaries for District Court judges provided in
advance for precise and definite pay raises over the next four years.
See House Joint Resolution 3 (2018). Moreover, those pay raises
were automatic in that, by express operation of law, they became
effective as of July 1, 2018, and no further legislative or executive
action is required for the pay raises to occur at the designated time.
See CJP § 1-708(f). Therefore, any action to freeze the salary of
the Sheriff—thus depriving the Sheriff of those automatic pay
raises—would effectively be a reduction in salary. The County
Commissioners may, of course, modify the salary of the Sheriff in
the same manner they set it, but any such modification would only
have prospective effect when a new term begins.
III
Conclusion
In sum, we conclude that the salaries of the State’s Attorney
and the Sheriff for Queen Anne’s County will increase with the
increases in the salaries of District Court judges, to the extent the
General Assembly enacted legislation setting automatic pay raises
before their current terms of office began. We also conclude that
the County Commissioners may not take action to freeze the salary
of the Sheriff at its current level because preventing an automatic
pay raise that was set to occur by legislation enacted before the
Sheriff’s current term is a reduction in salary that would violate
Article III, § 35 of the Maryland Constitution.
Brian E. Frosh
Attorney General of Maryland
Alan J. Dunklow
Assistant Attorney General
Patrick B. Hughes
Chief Counsel, Opinions and Advice