Does the Arkansas Constitution require the state alone to pay state district court judges' salaries, or can cities and counties be required to chip in?
Plain-English summary
Representative Fite asked the Attorney General whether Amendments 80 and 94 to the Arkansas Constitution require the state to be the sole funder of state district court judge salaries, or whether requiring cities and counties to contribute (under A.C.A. § 16-17-1106(b)) is constitutional.
The AG's answer: cost-sharing is constitutional. Amendment 80 (passed in 2000) restructured the judiciary into a three-tier unified court system but said nothing about who pays salaries. The General Assembly created a pilot state district court program in 2007, with cities and counties contributing to a Constitutional Officers Fund that paid the judges. By 2014, when Amendment 94 was passed, that cost-sharing arrangement was already operating. Amendment 94 added an independent citizens commission to set salaries and required payment from the Constitutional Officers Fund, but did not change how the fund is replenished.
The opinion runs through 17 sub-questions but the bottom line is consistent: the constitutional text requires payment from the fund, not state-only funding. Whether to keep, modify, or end the cost-sharing requirement is a policy question for the legislature.
The AG also reiterated standard rules of constitutional interpretation: text controls, the legislature is presumed to have acted constitutionally, and a court will interpret a statute to avoid an unconstitutional reading where possible.
What this means for you
State legislators
The cost-sharing arrangement under § 16-17-1106(b) is constitutionally durable as currently structured. If you want to shift more or all of the cost to the state, the AG sees no constitutional barrier to doing that legislatively. If you want to keep cost-sharing, that is also constitutional. Two options, both available, as long as the Constitutional Officers Fund continues to be the salary source.
Cities and counties paying into the Constitutional Officers Fund
Continue paying. Section 16-17-1106(b) requires your contribution at "an amount equal to [your] proportionate share of one-half (1/2) of the base salary established by law for state fiscal year 2009 for that district's state district court judge." Cost-sharing agreements with the state in writing can vary the formula, per § 16-17-1106(b)(2).
If a future legislature shifts the burden entirely to the state, your obligation would be removed by statute. Until then, the AG confirms there is no constitutional defense to non-payment.
Municipal finance officers and county treasurers
The opinion does not change your accounting. The Constitutional Officers Fund continues to receive state general revenue plus city and county contributions; state district court judge salaries continue to be paid from that fund.
Citizens watching judicial branch funding
If you wonder why district judges in Arkansas appear in two budget pictures (the state's and the local government's), the answer is the cost-sharing rule passed during the 2007 pilot program. The Arkansas Constitution allows it, but does not mandate it. Whether to continue cost-sharing, increase the local share, or shift fully to state funding is a policy choice the legislature can make.
Common questions
What is a "state district court" versus a "local district court"?
Arkansas has both. State district courts are funded under the post-2007 framework, with state-set salaries and the cost-sharing arrangement at issue here. Local district courts are different and operate on a separate funding model. The opinion focuses only on state district court judges.
Why did the General Assembly create state district courts in the first place?
Amendment 80 established district courts as "trial courts of limited jurisdiction" but did not require the state to fund them. The General Assembly created a pilot program in 2007 (Act 663) to test what a state-level district court would look like. The pilot was successful, and the legislature gradually expanded it statewide, redesignating the pilots as state district courts.
Where does the Constitutional Officers Fund get its money?
A combination of state general revenue and city and county contributions, per A.C.A. § 16-17-1106(b). The fund itself was established in 1987 (Act 945) and predates Amendment 94. Amendment 94 references the fund but does not specify how it must be replenished.
Could a court strike down § 16-17-1106(b) as unconstitutional?
The AG says no, and the analysis is that § 16-17-1106(b) is consistent with both Amendments 80 and 94. The rule under Martin v. Kohls is that statutes are presumed constitutional, and the party challenging bears the burden of proving a "clear incompatibility" between the statute and the constitution. The AG sees no such incompatibility.
Does Amendment 94 protect district judges' salaries from being reduced?
The amendment requires that salaries be set by the independent citizens commission and not be subject to General Assembly appropriation. Whether and how that interacts with reductions or the source of payment goes beyond what this opinion addresses.
What is the independent citizens commission?
Amendment 94 created a citizens commission to set salaries for district court judges and other state constitutional officers, and to be free of legislative interference. The commission's salary determinations bind the state, and salaries are paid from the Constitutional Officers Fund.
Why is the AG's reading of "intent" so narrow?
Arkansas Supreme Court doctrine is that intent is found in the plain meaning of the constitutional text, and "intent" beyond the plain meaning is irrelevant unless the language is ambiguous. Trotter Ford and Wilson, both 2024 Arkansas Supreme Court decisions cited in the opinion, confirm this textualist approach.
Background and statutory framework
Amendment 80. Restructured Arkansas's judiciary in 2000 into a three-tiered unified system. Created district courts as "trial courts of limited jurisdiction" (Ark. Const. amend. 80, § 7(A)). Silent on funding.
Amendment 94. Passed in 2014. Created an independent citizens commission to set salaries for district court judges and other officers (Ark. Const. art. 19, § 31(b)(1), (d)). Required payment from the Constitutional Officers Fund, free of legislative appropriation (§ 31(e)(1)). Did not specify how the fund must be replenished.
Pilot program. Act 663 of 2007 created the first state-funded district court judgeships. Cities, towns, and counties contributed to the Constitutional Officers Fund for these judges.
Statewide expansion. A.C.A. §§ 16-17-1101 to -1112 codifies the redesignation of pilot state district courts as full state district courts, expanding the model statewide.
Cost-sharing rule. A.C.A. § 16-17-1106(b)(1)(A) requires counties, cities, and towns with a state district court judgeship to pay an amount equal to their proportionate share of one-half (1/2) of the FY 2009 base salary. Section 16-17-1106(b)(2) allows alternative cost-sharing agreements in writing.
Constitutional Officers Fund history. Created by Act 945 of 1987, § 3. Before Amendment 94, district court judge salaries were already drawn from this fund (Act 633 of 2007, § 2). Cities and counties were already contributing to the fund. Amendment 94 in 2014 did not alter the funding sources.
Constitutional supremacy. When the constitution and a statute conflict, the constitution controls (Bd. of Trs. v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988) (Arkansas Supreme Court)). But statutes are presumed constitutional, and the challenger must show "clear incompatibility" (Martin v. Kohls, 2014 Ark. 427, 444 S.W.3d 844 (Arkansas Supreme Court)).
Textualist interpretation. Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002) (Arkansas Supreme Court), and Bailey v. Abington, 201 Ark. 1072, 148 S.W.2d 176 (1941) (Arkansas Supreme Court), still govern: courts "ascertain the plain meaning of the words used" and effectuate the intent of the people in passing a measure based on the language itself. Trotter Ford (2024 Ark. 31) and Wilson (2024 Ark. 25), both Arkansas Supreme Court decisions, confirm.
Citations
- Ark. Const. amend. 80, § 7(A) (district courts as trial courts of limited jurisdiction)
- Ark. Const. art. 19, § 31(b)(1), (d), (e)(1) (Amendment 94 independent citizens commission and Constitutional Officers Fund)
- A.C.A. §§ 16-17-1101 to -1112 (state district courts)
- A.C.A. § 16-17-1104(b) (salaries from Constitutional Officers Fund)
- A.C.A. § 16-17-1106(b)(1)(A), (b)(2) (cost-sharing rule and alternative agreements)
- Act 945 of 1987, § 3 (creating Constitutional Officers Fund)
- Act 663 of 2007, § 2 (state district court pilot program)
- Ark. Dep't of Fin. & Admin. v. Trotter Ford, Inc., 2024 Ark. 31, 685 S.W.3d 889 (textualist interpretation)
- Dep't of Fin. & Admin. v. Wilson, 2024 Ark. 25, 684 S.W.3d 575
- Bd. of Trs. v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988) (constitutional supremacy)
- Martin v. Kohls, 2014 Ark. 427, 444 S.W.3d 844 (presumption of constitutionality)
- Love v. Hill, 297 Ark. 96, 759 S.W.2d 550 (1988) (avoidance of unconstitutional readings)
- Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002)
- Bailey v. Abington, 201 Ark. 1072, 148 S.W.2d 176 (1941)
- Martin v. Humphrey, 2018 Ark. 295, 558 S.W.3d 370
Source
Original opinion text
Opinion No. 2023-122
May 3, 2024
The Honorable Lanny Fite
State Representative
3324 Highway 5
Benton, Arkansas 72019
Dear Representative Fite:
I am writing in response to your request for my opinion on how state district-court judges are funded. You have asked 17 questions, which I set out below and address in the order posed. The questions are different ways to ask whether it is unconstitutional for cities and counties to be statutorily required to contribute money toward the payment of salaries for state district court judges. As I explain below, these required contributions are not unconstitutional, nor are they constitutionally required. Therefore, the question whether cities and counties should be required to continue making these payments is a policy matter that is entirely up to the legislature.
Question 1:
a) Is the state required to pay the salaries of Arkansas district judges under Amendment 80 and Amendment 94 to the Arkansas Constitution?
Amendments 80 and 94 do not require the state to be solely responsible for funding the salaries of state district-court judges. Amendment 80 is silent about funding the salaries of district-court judges, and while Amendment 94 requires district-court judges to be paid from the Constitutional Officers Fund, it does not require that fund to be replenished by state revenue alone.
When Amendment 80 to the Arkansas Constitution was passed in November 2000, it restructured the judiciary in Arkansas, creating a three-tiered unified court system. In doing so, it established district courts as "trial courts of limited jurisdiction." Amendment 80 does not require the state to fund the district court system. Consequently, the General Assembly established a pilot program creating a limited number of state-funded, state district-court judgeships. Upon the pilot program's success, the General Assembly redesignated the "pilot state district courts" as "state district courts" and incrementally established state-funded, state district courts for the entire state.
Before Amendment 94, the district-court judges' salaries were drawn from the Constitutional Officers Fund, which was established in 1987. In fact, counties, towns, and cities have been contributing to the Constitutional Officers Fund for district-judge salaries since the pilot program. This was the landscape when Amendment 94 was adopted in November 2014: state district court judges' salaries were already being paid with money appropriated from the Constitutional Officers' Fund, and counties, cities, and towns with a state district court judgeship were already required by statute to pay into the Constitutional Officers Fund "an amount equal to [their] proportionate share of one-half (1/2) of the base salary established by law for state fiscal year 2009 for that district's state district court judge."
Amendment 94 created, among other things, an independent citizens commission for the purposes of setting salaries of district-court judges and a list of other officers. Under Amendment 94, these salaries are not subject to appropriation by the General Assembly, and they must be paid from the Constitutional Officers Fund or its successor fund in an amount determined by the commission.
Amendment 94 does not, however, create the Constitutional Officers Fund or specify how the Constitutional Officers Fund should be replenished. What's more, the Constitutional Officers Fund included counties', towns', and cities' contributions for district-court judges at the time Amendment 94 was ratified. Therefore, one cannot conclude that Amendment 94 silently made the state solely responsible for funding district-court judges' salaries simply because it requires district court judges' salaries to be paid from the Constitutional Officers Fund. Such an interpretation would be contrary to the text of Amendment 94, which does not specify how the Constitutional Officers Fund should be replenished, and contrary to the relevant history, which shows that counties, towns, and cities have always contributed to the Constitutional Officers Fund for district-judge salaries.
b) If so, is Arkansas Code § 16-17-1106(b) unconstitutional and unenforceable to the extent that it requires counties and cities to pay a portion of district judge salaries?
Because the answer to Question 1(a) is "no," this question is moot.
c) Is the word "pay" under Amendment 94 of the Arkansas Constitution or Arkansas Code § 16-17-1106(b) ambiguous?
I do not believe the text of Amendment 94 or A.C.A. § 16-17-1106(b) is ambiguous. To the extent this question is premised on Amendment 80 or Amendment 94 requiring the state alone to fund the salaries of district-court judges, the question is moot because, as explained above, those amendments do not require the state alone to replenish the Constitutional Officers Fund.
Question 2: Is it reasonable to conclude that the intent of Amendment 80 and Amendment 94 of the Arkansas Constitution (and the intent of the voters) sought to create:
a) An independent state judiciary with salaries?
b) Set by an independent commission?
c) Paid by the State of Arkansas general revenues (without appropriation)?
d) Without control or interference by the General Assembly?
e) Does Amendment 94 reference or authorize payment of the salaries of the state district court judges from a different funding source, such as the general revenues of local governments, cities, and counties?
f) Does reference to payment of salaries of the state constitutional officers, district court judges' salaries, from the state constitutional officers fund, adopted by the voters under Amendment 94, imply funding from the state?
"[I]ntent" beyond "the plain meaning of the language used" is irrelevant, unless the language is ambiguous. Looking at the text, Amendment 80 and Amendment 94 cumulatively create an independent unified judiciary with the salaries of justices and judges set by an independent commission. These salaries are not subject to appropriation by the General Assembly and must be paid from the Constitutional Officers Fund. But, as explained above, there is no requirement for the fund to be replenished by state general revenue alone.
Amendment 94 does not reference state district-court judges' salaries being paid from any source other that the Constitutional Officers Fund. When Amendment 94 was passed, the fund was composed of state general revenue and city and county general revenues that were deposited into the fund, as required by A.C.A. § 16-17-1106(b). Amendment 94 did not alter these funding sources.
Question 3:
a) Is the continued payment of salaries of state district court judges by cities and counties under Arkansas Code § 16-17-1106(b) contemplated, authorized, or consistent with Amendment 94, Article 19, § 31 of the Arkansas Constitution?
b) Is it consistent with the spirit or intent of Amendment 94, Article 19, § 31 of the Arkansas Constitution?
c) Would a court conclude that continued payment of salaries of state district court judges by cities and counties under Arkansas Code § 16-17-1106(b) violates Amendment 94 or the spirit or intent of Amendment 94?
For reasons fully explained above, it is my opinion that the continued partial payment of state district-court judges' salaries by cities and counties under A.C.A. § 16-17-1106(b) does not conflict with the text of Amendment 94, Article 19, § 31 of the Arkansas Constitution. I cannot definitively say how a court would rule if presented with this question, but for the reasons stated, I do not believe a court would find that A.C.A. § 16-17-1106 violates Amendment 94.
As for the "spirit" and "intent" of Amendment 94 and A.C.A. § 16-17-1106(b), courts "will not search for… intent" beyond "the plain meaning of the language used," unless the language is ambiguous. As explained above, neither Amendment 94 nor A.C.A. § 16-17-1106(b) is ambiguous.
Question 4: In interpreting the Arkansas Constitution, does the law of the State of Arkansas remain as follows:
a) That the courts must ascertain the plain meaning of the words used?
b) That the goal is to effectuate the intent of the people in passing the measure, "keep[ing] in mind the object sought to be accomplished by [an amendment's] adoption, and the evils, if any, sought to be prevented or remedied"?
c) If there is a conflict between Arkansas Code § 16-17-1106(b) contemplated, authorized, or consistent with Amendment 94, Article 19, § 31 of the Arkansas Constitution, which law controls?
Both of the cases you cite remain good law. In more recent cases, the Arkansas Supreme Court has confirmed that, although interpretation is aimed at effecting the intent of the adopters of the provision, that intent is determined by "the plain meaning of the language used." As explained above, I believe that A.C.A. § 16-17-1106(b) is consistent with the text of Amendment 94.
If the Arkansas Constitution and a state statute conflict, the Constitution controls. But laws passed by the General Assembly are presumed to be constitutional, and the party challenging the legislation bears the burden of proving otherwise. The Arkansas Supreme Court has held that an act will be struck down "only when there is a clear incompatibility between the act and the constitution." In accordance with this presumption, if it is possible to construe an act so that it will pass the test of constitutionality, the courts not only may, but should and will, do so.
Question 5:
a) If Amendment 94 was adopted first, would a subsequent Act adopted by the General Assembly containing the text of Arkansas Code § 16-17-1106(b) be constitutional?
b) If so, how would the continued compliance and enforcement of Arkansas Code § 16-17-1106(b) occur or transpire?
I take your question to be asking whether A.C.A. § 16-17-1106(b) would be constitutional if its and Amendment 94's enactment dates were switched.
Switching the order of ratification and enactment would not change the analysis. As explained above, the text of Amendment 94 does not identify how the Constitutional Officers Fund should be replenished. It is the text that controls. That is no less true if Amendment 94 was passed before the General Assembly implemented the cost-sharing approach.
But, as explained above, these are not the facts. When Amendment 94 was passed, the Constitutional Officers Fund was composed of state general revenue and city and county general revenues. Thus, text and history support the permissibility of the cost-sharing approach.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General