Stiftel v. Malarkey

TUNNELL, Justice Ad Litem,

for the majority:

This is an appeal from a judgment of the Court of Chancery,1 denying plaintiffs, who are all our Superior Court judges, the in-junctive and monetary relief they seek against the State. Plaintiffs claim that since June 30, 1975, under the provisions of Senate Bill No. 395, as amended by Senate Amendment No. 3 (amending 29 Del.C. by adding a new § 6532, hereinafter called the “C.O.L.A.” law), they have been' and are entitled to certain cost of living upward adjustments to their salaries, corresponding with the percentage increases in the cost of living index maintained by the federal government for the Philadelphia region.

The operative provision of subsection (a) of that new section is in these words:

“All employees of the State shall be paid a salary supplement. . . . ”

The threshold question, then, is whether plaintiffs are “employees” within the meaning of that statute. Subsection (c) of that same section, worded as it then was, defined the word “employee,” for the purposes of that section, thus:

“(c) For purposes of this section, an ‘employee’ is defined as one who works the regularly scheduled full-time hours of the employing agency or at least 30 or more hours per week or 130 hours per month *11(with allowable interruptions) throughout the year and is compensated with a regular State pay check.”

Plaintiffs, through their counsel, urge that this statutory definition includes them. A stipulation filed with the Register establishes that plaintiffs satisfy the stated work minimums, are paid by regular state pay checks and are not getting the supplements to which application of the formula would appear to entitle them. The State, however, through the Attorney General’s office, contends that judges are excluded from these benefits because they are “public officers,” not “employees.” While one cannot be certain, in the absence of litigation, whether some persons are or are not “officers”, the parties agree that plaintiffs are officers. Having considered the matter, we are compelled to conclude that while it is true that not all the State’s employees are officers, yet, for the purposes of Section 1 of this statute at least, all its officers, including plaintiffs, are employees.

A statute can define its terms as the lawmakers see fit in order to make clear what is intended. Fox v. Standard Oil Company of New Jersey, 294 U.S. 87, 55 S.Ct. 333, 79 L.Ed. 780 (1935); Mt. Pleasant Cab Company v. Rhode Island Unemployment Compensation Board, 73 R.I. 7, 53 A.2d 485 (1947); Cedar Rapids Community School District v. Parr, 227 N.W.2d 486 (Iowa 1975); IBM v. Brown, 167 Conn. 123, 355 A.2d 236 (1974); and 1A Sutherland, Statutory Construction (4th Ed.), § 20.08, at 59 and § 27.02, at 310. This is no more than a basic principle of draftsmanship applicable to any form of writing.

Unlike the several cases cited by the State, in which the statute contained no definition at all, or where the meaning was delineated merely by saying that a certain word of broad meaning shall be read to “include” specific groups or concepts within its parameters, the statute here reviewed undertakes to “define” who is referred to as an “employee.” The State urges that from general language usage, which it contends is clear and uniform, we should recognize that officers are a group distinct from employees, so that the statutory definition is meant, not to define, but merely to limit the scope of, the word “employee.” Thus, the State, in effect, would supplement the statutory definition and emasculate the meaning of the word “defined” by asking us to read the statute as if these underlined words had been injected into it:

“. . .an employee is defined as one who, being an employee, works . ..”

If we were to accept the State’s interpretation of this definition, we should be forced to the conclusion that, notwithstanding the General Assembly's statement that it was defining “employee,” it used circular lan-j guage and in fact failed to define it at all. The statute seems to us to be clear, leaving no room for judicial interpretation.

In deference to those who press the contrary view, however, we now also examine those indicia which might be relevant if the legislation were ambiguous.

First, we look at the legislative history, to see whether the legislators were advised that “employees” did not or could not include officers. There we see that Secretary of Finance Malarkey, the draftsman of the Bill, drew it at the direction of the Governor’s Task Force, which he chaired. After it was introduced in the General Assembly, he explained the bill and answered questions on the floor of each house about its meaning and effect, being the only person to do so. Nowhere does it appear that it was ever suggested that public officers were not included. Indeed, the opposite appears.

In the lower house, Mr. Malarkey was questioned by the members. He was asked, for example, what the total annual cost of the C.O.L.A. bill would be if the cost of living index were to rise 10% within one year, and he answered. There was much discussion of the prospective costs. Mr. Dryden, the State’s Budget Director at the time, testified at the trial below that he is the person who made, or supervised the making of, the calculations which were passed on to the Governor’s Task Force and then to the General Assembly, estimating *12these costs, and that adjustments to all of the salaries of all the State’s officers,2 including the judiciary, were included in those calculations.

Representative Riddings had this exchange with the Secretary:

“Q. Riddings: I see. Is there any group that, in particular, that are excluded in this?
“A. The legislators, sir. [Laughter]
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“A. . . . and in answer to a previous question, sir, the State Police are covered by the cost-of-living portion of the bill.
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“Q. Riddings: Would you direct my attention to what section of this bill is this covered under, I could not establish. .
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“A. It’s § 1 sir. I don’t have a copy of the bill but I’m sure it’s § 1, sir. Section 1 effects (sic) every State employee who is defined as one who works the regular scheduled full-time hours; an employee who works there at least 30 or more hours per week or 130 hours per month.”

In the Senate the questioning of Mr. Malarkey was very extensive. Among the more pertinent passages are these exchanges with Senators Manning and Berndt:

“Question: Manning: Mr. President. You say all employees of the State of Delaware. I hope that this does not apply to the General Assembly or does it? “Answer: One second please, Senator. An employee definition is here, Senator, I think probably leaves you all out. Works the regularly scheduled full-time hours of the employing agency or at least 30 or more hours per week or 130 hours per month with allowable exemptions . compensated with a regular pay check. I’m not sure how many hours you put in Senator.”
* % sfi # # fjs
“Question: Berndt: This does nothing for secretaries and division heads and agency heads then?
“Answer: The only thing it allows, Senator two things. One they will get whatever increases in the ’76 budget, if there was (sic) one granted. And two, they will get the cost-of-living supplement if there was (sic) one which starts April 1st sir.”

In light of the stipulation mentioned above and this and other discussions, showing that division heads and cabinet secretaries — including Mr. Malarkey himself— were said to be within the coverage of the bill, and that legislators are excluded only by reason of the work requirements in the definition, there is no basis for a conclusion that the General Assembly intended to exclude any appointed officials who come within its definition. Even to attempt such an exercise in mind reading would accord less respect to the General Assembly than is its due.

Another indication of the meaning of “employees” appears in this very statute, though not in the section to which the statutory definition applies:

“Section 2(c) The pay plan for employees of the Judicial Branch other than the State Judiciary shall be increased by 8%.” (Italics added).

And in 50 Del.L., c. 51, § 6, dealing with the Family Court, this language appears:

“Judges and all other employees of the Court are employees of the State . . .” (Italics added).

At oral argument, counsel could think of no distinction pertinent to. the status of employees and officers which would set judges of the Family Court apart from the judges of the Superior Court. Nor can we in that sense. If the judges of the Family Court are employees, it would appear that plaintiffs are equally so. See also the following Delaware statutes, in which the matter is variously dealt with: 29 Del.C. *13§ 6340(a), implicitly including public officers within “employees,” for otherwise the Budget Director could not make up a complete State budget; 29 Del.C., Chapter 55, by definition including within the employee class all public officers other than judges, who were already covered by Chap. 56; 29 Del.C. § 5853, by definition including certain designated officers and excluding others from the scope of “employees”; and 29 Del.C. § 5701(1), a statute somewhat like the one here under review, in which “employee” is defined as including officers of the State and any political subdivision thereof.

We must give credence, at least as instances of general usage, to these examples from our own statutes, and it, therefore, appears that, at the very least, Delaware’s “general usage” of these terms is not clear and uniform. This statute needed a definition of its coverage, and the definition supplied includes officers who meet the stated criteria. And for a wide variety of treatments in other jurisdictions see 14 Words and Phrases, Employee, under the subcaption “Public Officers,” at 758-775. See also 30 C.J.S., Employee, at 672.

The State cites Judge, now Justice, McNeilly’s opinion in Wharton v. Everett, Del.Super., 229 A.2d 492, 494 (1967), as supposedly holding that the expression “employees” excludes officers. That case, however, does not support the State’s view because the statute before Judge McNeilly contained no definition of “employees,” and he made clear that legislation could have clarified the meaning.

Still further indications that officers of the State, including plaintiffs, were meant to be swept into the category of employees for the purposes of this statute appear from the fact, which we shall later review in some depth, that the General Assembly subsequently attempted to remove from the statute’s coverage “all elected and appointed officials.” It is a respected canon of statutory construction that a legislature is presumed to mean what it says, so that if it alters a statute, it is presumed to be making a change, rather than merely saying correctly what had been intended, but badly said, in the first place. The burden of establishing that no change was made in the law, as in overcoming other presumptions, rests upon the party contending that no change was intended by an amendment, and that none was made, whether intended or not. Wilkerson v. Cropper, Del.Super. in banc, 171 A. 191 (1933); Kennedy v. Truss, Del.Super., 13 A.2d 431 (1940); and Daniel D. Rappa, Inc. v. Engelhardt, Del.Supr., 256 A.2d 744, 746 (1969).

These considerations, taken separately and then together, make it clear than on July 1, 1975, a cost of living adjustment (C.O.L.A.) law was enacted which at that time gave the benefit of the potential increase to all who worked for the State3 if they were within the parameters laid down in the statute.

We turn now to consider what, if any, was the thrust of the amendments above referred to, which were enacted on the 1st of July, 1976, and on the 3rd of August, 1976, respectively.

The first of these amendatory statutes is cited as House Bill No. 1274, as amended by House Amendment No. 1. It contains the following language:

“(d) Amend Chapter 65, Title 29, Section 6532(a), Delaware Code, by inserting immediately after the word ‘State’ and before the word ‘shall’ as the same appear in said section the following:
“ ‘, except elected and appointed officials,’ ”

There is no hint in the statute that this amendment was intended otherwise than as a change in the law, which, as stated above, is what a court must presume in the absence of a clear indication to the contrary.

Also, if we insert the amendatory wording into Section 6532(a), we see yet another indication that the General Assembly in fact deemed the word “employees” to include officers, for that amendment adjusts *14the statute to read in pertinent part as follows:

“All employees of the State, except elected and appointed officials, shall be paid a salary supplement . . . ”

The language of this amendment clearly reinforces the conclusion that the Legislature understood officials to be employees.

Subsequently, on August 3rd, 1976, this amendment was revised to read in pertinent part as follows:

“Section 1. Amend Section 6532(a), Title 29, Delaware Code, by striking the words ‘except elected and appointed officials,’ after the word ‘State’ and before the word ‘shall’ of said subsection and substituting in lieu thereof the following words:
“ ‘, except elected officials, the judiciary, cabinet secretaries and members of boards and commissions,’ ”.

This second amendment included the same revealing feature as the first amendment, for, again inserting the amendatory patch, the statute was thereby changed to read:

“All employees of the State, except elected officials, the judiciary, cabinet secretaries and members of boards and commissions, shall be paid a salary supplement . . . ”

Defendants point out as helpful to their side that the Attorney General, in an opinion dated March 29, 1976, asserted the view — which his office has sought to uphold in this litigation — that the term “employee” in the original Act was not meant to include “officers”, but he recommended legislation to make the point clear. He also stated, following the case law,4 that “officers” is a vague term, and he recommended legislation to clarify its scope.

There is ample authority that administrative rulings based on experience and specialized knowledge should be respected by the Courts. See, e. g., Daniel D. Rappa v. Engelhardt, supra, at 746; 2A Sutherland, Statutory Construction, (4th ed.), § 4905. And in certain cases this rule has been applied to Attorney Generals’ opinions, especially where those opinions have been published and have stood unchallenged for a substantial length of time, presumably being relied upon by the public in the meantime. 2A Sutherland, Statutory Construction, (4th ed.), § 49.05, at n.22; Mitchell v. Register of Wills for Baltimore City, 227 Md. 305, 176 A.2d 763, 766 (1962). In this instance, however, the critical knowledge is of the English language, a field in which the ten plaintiffs, their learned counsel, and we ourselves are also expected to be competent. Indeed, that is true of everyone in this case, on either side. In this particular instance, therefore, we feel that we are paying the maximum respect to the General Assembly by not weighting our view in favor of counsel for either side, confining ourselves to the wording which the legislature actually chose, and not embarking upon speculation as to what may or may not have been in the members’ minds, but which, for whatever reason, they did not say.

Moreover, the few facts which are before us fail to support any claim that the amendment of July 1, 1976, was intended by the General Assembly as an act of deference to the Attorney General, seeking to follow his legal opinion. We have before us no indication that the members of the General Assembly were even aware of the Attorney General’s opinion. And if they were aware that the Attorney General had said that “employees” probably did not include “officers”, they certainly did not favor that reading, for they again chose language carrying a plain inference to the contrary— “All employees of the State, except elected and appointed officials, . . . ”

And the second recommendation of the Attorney General — to specify the scope of the uncertain word “officers” — was ignored. The word “officials” in the expression “except elected and appointed offi*15cials” seems to us to be the equivalent of the word “officers”.

Finally, there was no statutory language or accompanying synopsis even suggesting that the intent of the first amendment was to clarify anything. Only the synopsis of the second amendment said that, and it said it was clarifying the first amendment, not the original Act. Again, it seems to us that we respect the General Assembly most when we heed what it said, not trying to read minds to the contrary.

What is the legal effect of this attempted curtailment of compensation?

In the absence of some constitutional restraint, a state may add to or subtract from the compensation of its employees as it may from time to time see fit. The case of Grant v. Nellius, 377 A.2d 354, decided by this Court on July 27,1977, deals somewhat with the provision in the federal constitution which forbids impairment of the obligation of contract, that case being concerned with non-officer employees only. The plaintiffs in this case, however, invoke Article XV, § 4, of our State constitution, which applies to public officers. It reads as follows:

Ҥ 4. Extension of term of public officer; diminution of salary or emoluments.
“Section 4. No law shall extend the term of any public officer or diminish his salary or emoluments after his election or appointment.”

Such a provision has been enacted, not just in Delaware, but fairly widely, and many states go even further and have provisions in their constitutions similar to the one we have with respect to our Governor (Article III, § 7), forbidding either an upward or downward change in compensation during an incumbent’s term of office. 63 Am.Jur.2d, Public Officers and Employees § 369, at 852; 67 C.J.S. Officers § 95, at 342.

Constitutional provisions such as ours are designed not merely to safeguard the officials concerned, but, more importantly, in doing so, to protect the public from having to deal with officials who might treat them unfairly out of the dread of such personal disfavor as could result in a salary cut or the loss of some cherished emolument, i. e., to preserve the independence of those officers. Du Pont v. Green, Del.Super., 195 A. 273, 275 (1937); 67 C.J.S. Officers § 95 at 344; 63 Am.Jur.2d, Public Officers and Employees § 370, at 853.

Incidentally, it. is immaterial in this connection whether the cut which such an official might fear would be of the salary or emoluments applicable at the commencement of his term or provided later. The potential duress would be the same in either case. Booth v. United States, 291 U.S. 339, 54 S.Ct. 379, 78 L.Ed. 836 (1934); 48 C.J.S. Judges § 36, at 997. The State concedes the point, and properly so, in view of the unanimity of the authorities.

This constitutional restraint has been held in Delaware, as elsewhere, to be “inexorable,” to admit of no exceptions and offer no opportunity for evasion. Barr v. Blackstone, Del.Super., 13 A.2d 449 (1940). It was framed and adopted in 1897 by representatives of the people of this State, and nothing short of a constitutional amendment can override it.

It was urged that it would be possible for the General Assembly to add to a salary an “extra” of some sort, perhaps called an “adjustment,” and then later take it away, without running afoul of this constitutional barrier. The immediate purpose underlying our constitutional provision, i. e., shielding an officer from duress, would apply as well to a threat of removing a salary adjustment as the salary itself. We see no importance to the name by which a salary increment might be called, for if it were not an outright increase in the salary, it would be at least an “emolument.” “Emoluments” have been broadly defined in this State as “the profit arising from office or employment; that which is received as compensation for services, or which is annexed to the possession of office as salary, fees and perquisites; advantage; gain, public or private.” Barr v. Blackstone, supra, 113 A.2d at 451. This is in harmony with the law elsewhere. 67 C.J.S. Officers § 95, at *16350. Thus, such emoluments, once conferred, cannot be taken away from a public officer of this State prior to the expiration of his term.

The question thus now arises whether an increase of salary or emoluments by application of a standing formula is legally any different from a routine increase in salary—of which there have in the past been many—which merely calls for adding a specified number of dollars per pay period. It is argued that a formula supplement like the one in this case is a “future” promise which can be revoked with impunity, whereas a stated salary increase would be legally different. We fail to see the basis for such a distinction. All salary increases, which, once granted, must be paid until the end of the payee’s term, as is the case with public officers of our State, are commitments for the future.

We find very little help in the few cases which are yet in the books dealing with the rising cost of living. See, e. g., Matthews v. Allen, 360 S.W.2d 135 (Ky.1962). But there is a species of formula which has been tested over several decades in several other states whose constitutions forbid increases as well as decreases, and it has generally been held that arithmetical applications of a pre-legislated formula, resulting in changes in the numbers of annual dollars, are not constitutionally forbidden, i. e., the salary is not altered in the eyes of the law, provided the formula itself remains unchanged.

In the case of State of Ohio ex rel. Mack v. Guckenburger, 139 Ohio St. 273, 39 N.E.2d 840, 845 (1942), 139 A.L.R. 728 (annotation on the point commencing at 737), the law of various states having clauses in their constitutions forbidding increases as well as decreases in pay was reviewed. Ohio thus joined the roster of states5 whose highest courts had already adopted the rule that changes in compensation generated under a fixed formula are not increases or decreases for purposes of constitutional restriction. Subsequently, other states followed those precedents, including Nebraska [Hamilton v. Foster, et al., 155 Neb. 89, 50 N.W.2d 542 (1951)]; Montana [Shubat v. Montana, 157 Mont. 143, 484 P.2d 278 (1971)]; and Illinois [Brissenden v. Howlett, 30 Ill.2d 247, 195 N.E.2d 625 (1964)]. Contra, Commonwealth ex rel. Woodring v. Walter, 274 Pa. 553, 118 A. 510, 512 (1922); State ex rel. Maltbie v. Will, 54 Wash. 453, 103 P. 479 (1909); and Guthrie v. Board of Comm’rs of Converse County, 7 Wyo. 95, 50 P. 229 (1897). Doubtless there are other decisions agreeing with the majority, and it is noticeable that one of our leading legal encyclopedias mentions only the rule which we call the “majority” rule, without reference to the possibility of any other. 48 C.J.S. Judges § 36 at 997.

The application of this analogy to our case is clear. The view adopted by the overwhelming majority of states which have considered the question, and all we are aware of who have done so in the last half century, is that a formula in the eyes of the law is analogous to the conventional form of an increase in salary level. We so hold. The C.O.L.A. law, including its formula, was duly enacted in 1975; when it was enacted, it was applicable to many public officers, including judges, and the efforts in 1976 to take these increments away were forbidden by Article XV, § 4, of Delaware’s constitution.6

What, then, is the legal status of a statute which has attempted, as our two 1976 amendatory statutes did, unconstitutionally to decrease the salary of a public officer? Are such statutes totally void and of no effect?

Before attempting to answer this question, we should also notice a second question of the same sort. The State has argued that the original enactment is void *17if it is read as plaintiffs read it, since this would cause the Governor’s salary to be increased during his term, such increases being constitutionally forbidden by Article III, § 7. It is a fact that Governor Trib-bitt’s salary was within the sweep of the language used by the statute. Thus, the increase of the governor’s salary, called for in 1975, and the decrease of plaintiffs’ compensation, called for in 1976, both run afoul of constitutional prohibitions.

Our General Assembly has enacted a law, which appears as 1 Del.C. § 308, which aids us in respect to both instances. It reads thus:

Ҥ 308. Severability of provisions.
“If any provision of this Code or amendments hereto, or the application thereof to any person, thing or circumstances is held invalid, such invalidity shall not affect the provisions or application of this Code or such amendments that can be given effect without the invalid provisions or application, and to this end the provisions of this Code and such amendments are declared to be severable. (1 Del.C. 1953, § 308).”

The word “application” in this quotation is pertinent. Applying the C.O.L.A. statute to a governor in office at the time of enactment would be an unconstitutional “application,” just as efforts to take away salary increments from sitting judges are. Therefore, the enactment of such laws as ours will not apply to the Governor or any judge then in office until expiration of their respective terms.7 Incidentally, we have included the governor in this discussion, not because we think the Governor is within the reach of the lawsuit, but because the Governor’s pay was used in an effort to establish that the 1975 statute is unconstitutional. It fails of that purpose.

And this aid to interpretation, 1 Del.C. § 308, supplied by the General Assembly, is confirmed by the treatment which the courts and legal scholars have given the same sort of problem, here and elsewhere. In State ex rel. Green v. Isaacs, supra, a part of an act was held unconstitutional because of Article XV, § 4, and a part was held constitutional. What was left after discarding the unconstitutional portions was, as in the case of our statute, capable of being given effect alone as an enforceable concept and therefore “severable,” so the Court held the remainder of the statute constitutional. Numerous quotations from decisions in other states appear in that opinion, some of which explain the problem and its solution with considerable particularity. Green was followed in State ex rel. Morford v. Emerson, Del.Super., 10 A.2d 515 (1939), aff’d 14 A.2d 378 (1940). And see 2 Sutherland, Statutory Construction (4th Ed.), § 44.04, at 341-343; §§ 44.08, 44.09 and 44.18.

Still another argument used by the State is that, since the constitution necessarily applies to individual public officers during their terms of office (46 Am.Jur.2d, Judges § 67, at 139), rather than to any class or group of officers, plaintiffs’ interpretation would produce an “anomalous” result. This refers to the fact that certain people now serving in public offices, including some judges other than plaintiffs, would not' get the benefit of the C.O.L.A. law, while others, whose terms began before July 1, 1976, are still within the protection of the constitutional provision, including all these plaintiffs, and would receive those benefits. This doubtlessly does work an “anomaly.” Yet this results from merely applying the constitutional and statutory law as written, and the removal of such an anomaly is not among the prerogatives of the judiciary. It is a problem for the lawmakers to consider, and, if they do not like the anomaly, to make whatever change they consider desirable, remembering always that reductions in the pay of public officers during their respective ongoing terms require an amendment to the constitution. 67 C.J.S. Officers § 95, at 345-346.

*18For the courts to assume that the members of the legislature were unacquainted with the State’s constitution and laws, and did not know the meaning of the words in the statutes they enacted, and then for the courts, under the guise óf interpretation, to do over those laws in order to achieve less awkward applications or what they consider a better public policy, would be for the courts simply to take over the prerogatives of the legislature. In our view, retaining the judiciary’s proper and more limited role is of vital importance to our form of government.

Our conclusion, therefore, is that the judgment below must be reversed and the case remanded for further proceedings consistent with this opinion.

. The Vice-Chancellor declined to disqualify himself, as his opinion states, in order to provide plaintiffs a trial court forum. It should be noted, however, that his decision was against his self-interest. His opinion below is reported at 378 A.2d 133 (1977).

. Certain computer people, who may or may not be public officers, were omitted, but the effect of that omission is insignificant and immaterial.

. Except the sitting Governor,' to whom we shall refer later.

. See, e. g., State ex rel. Biggs v. Corley, Del.Super.Ct. in banc, 172 A.2d 415, 419.

. In this enumeration Oklahoma appears to have been overlooked [Drolte v. Board of County Comm’rs of Ellis County, 176 Okl. 622, 56 P.2d 800 (1936)].

. Since all these plaintiffs are constitutional officers, it is not necessary to consider the status of statutory officers, as was done in State ex rel. Green v. Isaacs, Del.Super., 171 A. 627, 630 (1934).

. The date for determining which terms are ongoing would differ as between the Governor and the judges. For the Governor the determining date would be June 30, 1975, the date of enactment of the statute increasing compensation; and for the judges, July 1, 1976, the date of enactment of the first statute attempting curtailment.