FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEY FOR APPELLEE:

STEPHEN R. BUSCHMANN    THEODORE F. SMITH, JR.
Buschmann Carr & Shanks    Smith & Todd
Indianapolis, Indiana    Anderson, Indiana

     IN THE COURT OF APPEALS OF INDIANA

TIPTON COUNTY, INDIANA, acting by              )
and through its several officers and bodies,        )
to-wit, the Tipton County Council, collectively     )
and by its individual elected members; the          )
Board of Commissioners, collectively and by         )
its individual elected members of the Tipton        )
County Auditor, as that office has been and         )
currently and hereafter will be filled by an        )
elected officer,                                    )
                                                    )
Appellant-Defendant,                                )
                                                    )
vs.                                                 )    No. 48A02-9912-CV-810
                                                    )
STATE OF INDIANA ON THE                             )
RELATION OF DANE P. NASH,                           )
                                                    )
Appellee-Plaintiff.                                 )

    APPEAL FROM THE MADISON CIRCUIT COURT
    The Honorable Carl VanDorn, Senior Judge
    Cause No. 48C01-9809-CP-534

    June 21, 2000

    OPINION - FOR PUBLICATION

SHARPNACK, Chief Judge

    Tipton County appeals the trial court’s grant of partial summary judgment in favor of Judge Dane P. Nash, who is acting as a relator on behalf of the State. The county raises one issue, which we restate as whether the trial court erred when it determined that Tipton County violated the Indiana Constitution by ending its voluntary supplemental wage payments to Judge Nash. Judge Nash raises one issue on cross-appeal, which we restate as whether the trial court erred when it determined that Judge Nash is not entitled to liquidated damages and attorney fees. We affirm in part and reverse in part.
    The relevant facts follow. On January 1, 1991, Judge Nash began serving a six-year term of office as a circuit court judge in Tipton County. As a circuit court judge, Judge Nash’s salary was paid in part by the State and in part by Tipton County from 1991 until July 1995. Furthermore, from 1991 until July 1995, the county voluntarily paid Judge Nash a supplemental wage in addition to its state-mandated salary obligations. On May 5, 1995, the General Assembly enacted, and the Governor signed into law, an act that amended the judicial pay statute. Broadly speaking, the amendments provided, inter alia, that counties were no longer required to pay a salary to their trial judges because the State was assuming sole responsibility for their salaries. However, if counties chose to continue providing voluntary supplemental wages to their trial judges, the counties could not pay them more than $5,000 per year. The amendments took effect on July 1, 1995.
    In September 1994, Tipton County budgeted $4,400 for voluntary supplemental wages to be paid to Judge Nash in 1995. At the time that the amendments to the judicial pay statute took effect on July 1, 1995, the county had already paid him $2,219.89 in supplemental wages for the year. After the amendments took effect, Tipton County stopped paying voluntary supplemental wages to Judge Nash. He did not receive any supplemental payments from July 1, 1995, through all of 1996.
    On September 25, 1998, Judge Nash filed a petition for writ of mandamus and damages against Tipton County in which he sought to compel Tipton County to pay him the unpaid supplemental wages. He also sought liquidated damages and attorneys’ fees. Thereafter, the county filed a motion for summary judgment, and Judge Nash filed a motion for partial summary judgment on the question of the payment of wages. The trial court granted Judge Nash’s motion and ordered the county to pay him $6,600 for the supplemental wages. In addition, the trial court granted Tipton County’s motion in part and denied Judge Nash’s claims for liquidated damages and attorneys’ fees.

    (b) Beginning July 1, 1995, an appropriation made under this section may not exceed five thousand dollars ($5,000) for each judge or full-time prosecuting attorney in any calendar year.”

I.C. § 36-2-5-14. Ind. Code § 36-3-6-3, provides, in relevant part:
“(a) A legislative body shall, by ordinance or resolution, fix the annual compensation of all appointed officers, deputies, and employees under its jurisdiction.

RILEY, Judge, dissenting in part and concurring in part.

I respectfully dissent as to Issue I and concur in result on Issue II.

(R. 223).
I agree with the trial court. Additionally, case law has recognized that the voluntary supplement paid by the county is additional compensation separate from what is paid by the State. See Loos, 416 N.E.2d at 875 and Mance, 652 N.E.2d at 537. Also, there are other indicators that Judge Nash received separate compensation from the State and county. First, as discussed, there are two separate statutes, one setting the State salary minimum for circuit court judges, and one allowing the county to pay an additional supplement in addition to the amount already received from the State. Further, the county supplement is not considered part of the Judge’s salary in determining retirement benefits and for calculating State life insurance premiums. See Mance, 652 N.E.2d at 537; and Ind. Code § 33-13-121-7(d). Additionally, counties are required to pay their share of Social Security and Medicare taxes when they pay supplemental wages to the trial judges. Ind. Code § 33-13-12-7.1(c). All of these factors lead to the conclusion that Judge Nash received separate compensation from the State and county.
The majority relies in part on this court’s decision in Olszewski, 226 Ind. 639, 82 N.E.2d 256. However, Olszewski does not concern whether a reduction in county supplemental pay to trial judges during their term in office is constitutional under Art. VII, § 19 of the Indiana Constitution. In Olszewski, the issue was whether Lake County would be required to pay a county supplement that would result in Lake County judges receiving total pay from the State and county in excess of the total salary limit set by State statute. Id. at 641-642, 82 N.E.2d at 257. Here, even if Tipton County continued to pay Judge Nash the voluntary county supplement it had previously paid, there was no concern that Judge Nash would receive income in excess of $90,000, which at that time was the total maximum amount a trial judge was allowed to receive annually under State statute. See footnote
The majority concludes that the legislative history of the 1995 amendments to the judicial pay statutes demonstrate an intent to create one unified salary for trial judges. However, as the majority notes, the 1995 amendment to the judicial pay statutes were intended to end large disparities in judicial pay between counties by limiting the amount paid by the counties to $5,000. However, that does not mean that the legislature intended to create one salary. Instead, it is clear that these statutes allow judges to receive separate compensation from two sources, the State and the county, and provide for maximum amounts to be received from each.
Because I would conclude that the pay received by Judge Nash from the county is separate compensation than the pay he receives from the State, I would further conclude that Tipton County’s reduction of Judge Nash’s compensation during his term violated Article 7, § 19 of the Indiana Constitution. As set forth in the majority’s opinion, this provision prohibits a reduction in a circuit court judge’s compensation while in office. The purpose of this provision “is to preserve the independence of the working judiciary in such a clear and unmistakeable manner as to entirely rule out conflict and argument on the point.” Board of Trustees of the Public Employees’ Retirement Fund v. Hill, 472 N.E.2d 204, 209 (Ind. 1985). By reducing the compensation paid to Judge Nash during his term of office in violation of Article 7, § 19 of the Indiana Constitution, Tipton County was allowed to interfere with the independence of the working judiciary. Thus, as to this Issue I, I would affirm the trial court’s grant of partial summary judgment in favor of Judge Nash.