When it comes to interpreting the law on salaries of law clerks, Arkansas Supreme Court Chief Justice Dan Kemp and Court of Appeals Chief Judge Rita Gruber have a difference of opinion.
Kemp said he was "a little bit" surprised when Gruber sent a letter to the Legislature's Joint Budget Committee's co-chairmen in February asking for more spending authority to boost the salaries of the Court of Appeals' 24 law clerks.
Her letter cited the substantial pay raises granted to the Supreme Court's law clerks at the start of this year.
"They could have very easily contacted me and inquired about it," Kemp said in a recent interview.
Gruber said she didn't feel that she needed to contact Kemp about her letter.
"We haven't in the past. We followed the same procedure we have in the past," she said in an interview last week.
Gruber said she found out about the Supreme Court clerks' pay raises on the Arkansas transparency website, which has salaries of state employees.
She also said state law requires law clerks to be paid the same for the state Court of Appeals and state Supreme Court.
The law clerks' duties include going through briefs filed in legal cases and preparing memos to judges explaining the cases, the standard of review and recommendations on how the cases should be disposed of, she said.
PLEA TO LAWMAKERS
In her Feb. 24 letter to Sen. Larry Teague, D-Nashville, and Rep. Lane Jean, R-Magnolia, Gruber said the Arkansas Court of Appeals sought changes to its fiscal 2021 appropriation under Arkansas Code Annotated 16-12-108 (f) (1), which reads: "Law clerks for the Court of Appeals shall receive the same salaries as Supreme Court law clerks."
"We have learned recently through the use of Arkansas Transparency site that the Supreme Court has awarded significant raises to its law clerks," Gruber wrote in her Feb. 24 letter. "Effective January 2020, annual salaries for the 14 Supreme Court law clerks now range between $85,000 and $101,000.
"By contrast, current salaries for the 24 Court of Appeals law clerks range between approximately $70,000 and approximately $83,000," she said in her letter. "Consequently, salaries for the Court of Appeals law clerks are considerably lower than their Supreme Court counterparts, contrary to the dictates of section 16-12-108 (f) (1)."
The Appeals Court asked that its appropriation for salaries be increased by $500,039 to $3.6 million and the appropriation for personal services matching be increased by $160,012 to $1.1 million, Gruber wrote. Fiscal 2021 starts July 1.
This includes smaller raises for three staff attorneys and the chief staff attorney who traditionally make more than the law clerks.
In last month's fiscal legislative session, most of the Joint Budget Committee's members raised their hands to show that they wanted the Appeals Court to withdraw its request in light of the state Department of Finance and Administration cutting the general revenue forecasts for fiscal 2020 and fiscal 2021.
The forecasts were cut because of the economic impact of the coronavirus pandemic. The first case was announced March 11, after Gruber wrote to lawmakers.
"We made this request back in February, which was ... a very different time financially for the state and for the country, so our court understands that this may not be feasible at this time," Appeals Court Chief Staff Attorney Anne Solomon told lawmakers last month.
"But it was a request we made back when our financial state in Arkansas was much different and, because of the statute that requires parity among our employees at the Supreme Court [and the Appeals Court], we thought it was appropriate in February to bring it up," she said.
Jean told Solomon: "I don't believe you have the votes today."
DIFFERENT OPINIONS
Kemp said in a recent interview that the Supreme Court interprets Arkansas Code Annotated 16-12-108 (f) (1) to mean that the law clerks at the Supreme Court and Court of Appeals have the same pay range.
"So the justices believe it satisfies the law," he said. "That has been our understanding."
Nobody has questioned that "unless it is the Court of Appeals," Kemp said.
Gruber said, "I read the law exactly as it says."
"The way the Court of Appeals has interpreted it as far as the law clerks is they make the same salaries," she said.
Kemp said the Supreme Court formed a committee to compare its employees' salaries with those in the executive branch and the attorney general's office after some justices lost longtime law clerks in recent years for higher-paying jobs.
For example, he said he lost Raina Weaver as a law clerk in his office in September for an executive branch job with an opportunity for higher pay and retirement benefits.
Weaver's salary was $76,403 a year on Sept. 20 when she left the Supreme Court position, according to state records.
Weaver is now making $80,242 a year as a human resources administrator at the Department of Energy and Environment, said Donnally Davis, a spokesman for the department. The salary range for her post is from $69,776 to $101,175 a year, Davis said.
Asked about her departure, Weaver said Wednesday in an email, "I have no information to provide."
SALARY UPDATES
Kemp said the Supreme Court created a tiered system for advancement among its law clerks based on their experience level and he hopes the system provides an incentive for them to stay put instead of looking elsewhere.
In a letter dated Dec. 6 to Supreme Court Clerk Stacey Pectol, Kemp said the high court updated salaries for staff members in each justice's chambers "in an effort to bring uniformity and predictability to salary increases and to incentivize employees to obtain relevant experience to better serve the court and the citizens of Arkansas."
The Supreme Court, under Act 897 of 2019, has implemented a new salary schedule for attorneys and administrative assistants that is comparable to that in the attorney general's office, he wrote in his letter.
Under the schedule, the salary for entry-level law clerks is $85,000 a year.
The pay for level one law clerks with five years of accredited legal experience is $90,000 a year, according to Kemp's letter.
Level two clerks with 10 years of accredited legal experience is $95,000 a year, and the salary for level three law clerks with 15 years of accredited legal experience is $101,175 a year.
Accredited legal experience includes clerk experience with the state Supreme Court, state Court of Appeals, U.S. district courts and U.S. Court of Appeals, he said.
The Court of Appeals' highest-paid clerk is Patricia Luppen at $82,961 a year. Next is William Scott at $80,681 a year, while the lowest-paid clerk is Shanon Shull at $69,776 a year, according to state records.
Luppen is the most experienced law clerk with more than 20 years of experience, and she plans to retire at the end of this year, while Shull is a former administrative assistant and the least experienced clerk, Gruber said. The salaries are "basically set by the Legislature" based on experience and the number of years as a law clerk, she said.
Gruber said the Court of Appeals sees law clerks depart from time to time.
But Court of Appeals' judges don't have a lot of turnover among their law clerks, and there is more turnover among the judges than the law clerks, she said.
"We have a number of law clerks that have been with some judge for a very long period of time," Gruber said.
She said she plans to submit a similar request for fiscal 2022 when the Legislature meets again in the 2021 regular session.
That's "because the Legislature decided years ago to make the decision [that] the law clerks make the same salaries at the Court of Appeals and the Supreme Court," Gruber said. "The law is what it says."
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