Did Maine's new constitutional protection for the Maine State Retirement System also protect the separate Maine Judicial Retirement System from legislative deappropriations?

Plain-English summary

In December 1991, the Legislature passed an appropriation bill that deappropriated funds previously appropriated to the Judicial Department for contributions to the Maine Judicial Retirement System. The MSRS Board of Trustees, through Executive Director Claude Perrier, asked AG Michael Carpenter whether this violated the November 1991 amendment to Article IX, § 18 of the Maine Constitution, which prohibits the diversion or deappropriation of funds appropriated to the Maine State Retirement System.

The AG answered no. The Maine Judicial Retirement System (MJRS) is a separate legal entity from the Maine State Retirement System (MSRS). The constitutional amendment refers only to MSRS, and that reference does not sweep in MJRS.

The historical reasoning has three steps.

Step 1: in 1962, when the original Article IX, § 18 was enacted, the MSRS was a corporation governed by a board of trustees. R.S. ch. 63-A, § 2 (Supp. 1963), enacted by P.L. 1955, ch. 417, § 1. Supreme Judicial Court and Superior Court members were specifically excluded from MSRS membership by the statutory definition of "employee" (R.S. ch. 63-A, § 1 (Supp. 1963)). Their retirement benefits were provided separately in the judicial statutes. When District Courts were created in 1961, district court judges were also excluded from MSRS (R.S. ch. 108-A, § 9 (Supp. 1963)).

Step 2: the 1964 recodification of state statutes preserved that separation. 5 M.R.S.A. § 1001(10) (1964) still excluded judges from MSRS, and judicial retirement benefits continued to be covered separately in 4 M.R.S.A. §§ 5, 103 and 157 (1964).

Step 3: the Maine Judicial Retirement System itself was not created until 1983. P.L. 1983, ch. 853, § C, 15, codified at 4 M.R.S.A. §§ 1202 and 1231. The Legislature created MJRS as a separate corporation with a separate board of trustees, although those trustees would be the same persons as the MSRS Board.

So when voters approved the November 1991 amendment referencing "the Maine State Retirement System," they were not referring to MJRS. MJRS did not exist as a separate corporation until 1983, and judges had never been MSRS members. The constitutional protection does not reach MJRS.

This means the Legislature's December 1991 deappropriation of funds from the Judicial Department for MJRS contributions does not violate Article IX, § 18.

The opinion closes by stating that it supersedes a November 19, 1991 letter on the same question from Deputy Attorney General Cabanne Howard to Senator Ruth S. Foster. This 92-1 opinion is the Department's controlling view.

The opinion's holding is narrow: the new explicit anti-deappropriation rule in Article IX, § 18 does not apply to the Maine Judicial Retirement System. It does not opine on any other source of protection for judicial pensions.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the Maine Judicial Retirement System?

A separate retirement system for Maine judges, created by the Legislature in 1983 (P.L. 1983, ch. 853, § C, 15). MJRS is a separate corporation from the Maine State Retirement System, although the trustees are the same persons.

Why does the distinction matter?

Because the November 1991 constitutional amendment that prohibits diverting or deappropriating MSRS funds refers specifically to the Maine State Retirement System. If MJRS is a separate system, the amendment does not cover it.

Were judges ever in MSRS?

No. Supreme Judicial Court and Superior Court members were excluded from MSRS membership from the beginning. When District Courts were created in 1961, district judges were also excluded. Their retirement benefits were always handled separately under the judicial statutes.

Then how were judges getting retirement benefits before 1983?

Through the judicial statutes themselves, which were carried forward from the 1954 revision (R.S. ch. 103, § 5 and ch. 106, § 3) and into the 1964 recodification (4 M.R.S.A. §§ 5, 103, 157). The 1983 creation of MJRS as a separate corporation consolidated and modernized that approach.

Did this opinion say judges' retirement rights are unprotected?

No. The opinion decided one narrow question: the explicit anti-deappropriation sentence added to Article IX, § 18 in November 1991 refers to the Maine State Retirement System and does not reach the separate Maine Judicial Retirement System. It did not address whether any other doctrine protects judicial pensions, and it did not decide whether the older "successor system" language of § 18 reaches MJRS.

Background and statutory framework

The constitutional text:

• Original 1962 Article IX, § 18: "All of the assets, and proceeds or income therefrom, of the Maine State Retirement System or any successor system and all contributions and payments made to the system to provide for retirement and related benefits shall be held, invested or disbursed as in trust for the exclusive purpose of providing for such benefits and shall not be encumbered for, or diverted to, other purposes."
• November 1991 added sentence: "The funds appropriated by the Legislature for the Maine State Retirement System are assets of the system and may not be diverted or deappropriated by any subsequent action."

The historical statutory citations:

• R.S. ch. 63-A, § 1 (Supp. 1963), enacted by P.L. 1955, ch. 417, § 1 (MSRS definition of "employee" excluded Supreme Judicial Court and Superior Court members).
• R.S. ch. 63-A, § 2 (Supp. 1963) (MSRS corporate structure and board).
• R.S. ch. 103, § 5 and ch. 106, § 3 (1954) (separate judicial retirement benefits).
• R.S. ch. 108-A, § 9 (Supp. 1963), enacted by P.L. 1961, ch. 386, § 9 (District Court judges separately covered).
• 5 M.R.S.A. § 1001(10) (1964) (recodification, judges still excluded).
• 4 M.R.S.A. §§ 5, 103, 157 (1964) (separate judicial retirement statutes).
• 5 M.R.S.A. §§ 17101(4), 17102 (1989/Supp. 1991) (current MSRS corporate structure).
• 4 M.R.S.A. §§ 1202 (1989), 1231 (Supp. 1991), enacted by P.L. 1983, ch. 853, § C, 15 (MJRS as separate corporation, shared trustees).

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1992/ag_19920210a.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

MICHAEL E. CARPENTER, ATTORNEY GENERAL
STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

February 10, 1992

Claude R. Perrier, Executive Director
Maine State Retirement System
State House Station 46
Augusta, Maine 04333

Dear Mr. Perrier:

On behalf of the Board of Trustees of the Maine State Retirement System, you have requested an opinion from this Department as to whether, in light of a recent amendment to Article IX, Section 18 of the Maine Constitution prohibiting the deappropriation of appropriations made to the Maine State Retirement System, the Legislature may deappropriate funds previously appropriated to the Maine Judicial Retirement System. Specifically, during the special session in December, 1991, the Legislature enacted an appropriation bill which resulted in a deappropriation of funds previously appropriated to the Judicial Department to be expended for contributions to the Maine Judicial Retirement System. For the reasons set forth below, it is the opinion of this Department that the Maine Judicial Retirement System is a separate system from the Maine State Retirement System and therefore, the constitutional language does not prohibit the deappropriation of appropriations made to the Maine Judicial Retirement System.

The original version of Article IX, Section 18 became effective on November 21, 1962 and provided as follows:

All of the assets, and proceeds or income therefrom, of the Maine State Retirement System or any successor system and all contributions and payments made to the system to provide for retirement and related benefits shall be held, invested or disbursed as in trust for the exclusive purpose of providing for such benefits and shall not be encumbered for, or diverted to, other purposes.

Me. Const. art. IX, § 18. The provision was amended by referendum in November, 1991, which resulted in the addition of the following language:

The funds appropriated by the Legislature for the Maine State Retirement System are assets of the system and may not be diverted or deappropriated by any subsequent action.

Clearly the recent amendment to section 18 refers only to funds of the Maine State Retirement System. Thus, in order to determine what is meant by the "Maine State Retirement System," it is necessary to examine what that term encompassed when it was included as part of section 18, when it was enacted in 1962.

In 1962, the "Maine State Retirement System" possessed "the powers and privileges of a corporation", and was governed by a board of trustees. R.S. ch. 63-A, § 2 (Supp. 1963), enacted by P.L. 1955, ch. 417, § 1. Although the statutes governing the system have been revised, the corporate structure of the system has not changed. 5 M.R.S.A. § 17101(4) (1989) and § 17102 (Supp. 1991). Members of the Supreme Judicial Court and Superior Court were not members of the Maine State Retirement System at that time but were specifically excluded from membership as a result of the statutory definition of "employee". R.S. ch. 63-A, § 1 (Supp. 1963), enacted by P.L. 1955, ch. 417, § 1. Retirement benefits for retired members of these judicial bodies historically had been provided for separately in the statute governing the judiciary. R.S. ch. 103, § 5 and ch. 106, § 3 (1954). When the District Court system was created in 1961, district court judges were also excluded from the retirement system and, for purposes of retirement benefits, were treated the same as other members of the judiciary. R.S. ch. 108-A, § 9 (Supp. 1963), enacted by P.L. 1961, ch. 386, § 9. Thus, in 1962, members of the judiciary were not included in the Maine State Retirement System.

When the state statutes were recodified in 1964, members of the judiciary continued to be excluded from membership in the Maine State Retirement System and benefits to retired judges continued to be covered separately by the statute governing the judiciary. 5 M.R.S.A. § 1001(10) (1964) and 4 M.R.S.A. §§ 5, 103 and 157 (1964). The Maine Judicial Retirement System, which covers all members of the judiciary, was not created until 1983, at which time the Legislature created a separate corporation with a separate board of trustees, although the members of the board would be the same persons as the Board of Trustees of the Maine State Retirement System. 4 M.R.S.A. §§ 1202 (1989) and 1231 (Supp. 1991), enacted by P.L. 1983, ch. 853, § C, 15.

Because members of the judiciary were not part of the Maine State Retirement System when Article IX, Section 18 became effective in 1962, and because the Maine Judicial Retirement System was subsequently created as a separate corporation, the reference to the Maine State Retirement System in the amendment to Article IX, Section 18 enacted in 1991 cannot be regarded as encompassing the Maine Judicial Retirement System. Therefore, the deappropriation by the Legislature of funds appropriated to the Maine Judicial Retirement System does not violate the constitutional provision.

This letter supersedes the advice contained in a letter from Cabanne Howard, Deputy Attorney General, to Senator Ruth S. Foster, dated November 19, 1991.

Sincerely,
MICHAEL E. CARPENTER
Attorney General