NO. 4-05-0765 Filed 8/9/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
ROGER T. RUSSELL, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Sangamon County ROD R. BLAGOJEVICH, Governor of the ) No. 04MR514 State of Illinois; BRIAN HAMER, ) Director, Illinois Department of ) Revenue; JACK LAVIN, Director, ) Illinois Department of Commerce and ) Economic Opportunity; and DANIEL W. ) Honorable HYNES, Comptroller of the State of ) John W. Belz, Illinois, ) Judge Presiding. Defendants-Appellees. _________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
Plaintiff, Roger T. Russell, the former State's Attor-
ney of Boone County, appeals the trial court's dismissal of his
mandamus petition against defendants, Rod R. Blagojevich, Gover-
nor of the State of Illinois; Brian Hamer, Director of the
Department of Revenue; Jack Lavin, Director of the Illinois
Department of Commerce and Economic Development; and Daniel W.
Hynes, Comptroller of the State of Illinois. We affirm.
I. BACKGROUND
The Illinois Constitution provides that a State's
Attorney shall be elected in each county for four-year terms and
that "[h]is salary shall be provided by law." Ill. Const. 1970,
art. VI, '19. Section 4-2001(a) of the Counties Code (55 ILCS
5/4-2001(a) (West 2004)) provides "[t]he State shall furnish 66
2/3% of the total annual compensation to be paid to each state's
attorney in Illinois based on the salary in effect on December 31, 1988, and 100% of the increases in salary taking effect after
December 31, 1988." Other than Cook County, the salary to each
State's Attorney shall be "in counties of 30,000 or more inhabit-
ants, $65,500 until December 31, 1988, $80,000 until June 30,
1994, and $96,837 thereafter or as set by the Compensation Review
Board, whichever is greater." 55 ILCS 5/4-2001(a)(4) (West
2004).
The Compensation Review Act (Act) created the Compensa-
tion Review Board (Board) (25 ILCS 120/1 through 6 (West 2004)), which determines the salaries and salary increases due various
government officials, including State's Attorneys (25 ILCS 120/4
(West 2004)). The Board then periodically reevaluates these
salaries and makes adjustments, which are submitted in a report
to the General Assembly. 25 ILCS 120/4 (West 2004). See Quinn
v. Donnewald, 107 Ill. 2d 179, 183-84, 483 N.E.2d 216, 218-19
(1985) (describing Compensation Review Act and Compensation
Review Board).
In 1990, the Board submitted a report to the General
Assembly setting the specific salaries for various governmental
officials and determining each of the salaries were to include
cost-of-living adjustments (COLAs). The General Assembly adopted
Senate Joint Resolution 192, which, while reducing the salaries
set by the Board, approved the COLAs.
In 2002, the Board submitted its report for the fiscal
year 2003, which determined that public officials would receive a
3.8% COLA. In response, the General Assembly passed Public Act
- 2 - 92-607 (Pub. Act 92-607, '5, eff. June 28, 2002 (2002 Ill. Laws
1333)), which provided that state officials whose salaries were
determined by the Board were "prohibited from receiving and shall
not receive any increase in compensation based on a cost of
living adjustment, as authorized by Senate Joint Resolution 192
of the 86th General Assembly, for or during the fiscal year
beginning July 1, 2002." 25 ILCS 120/5.5 (West 2004). Based on
the legislation, none of the positions affected received a COLA
during the 2003 fiscal year. In May 2004, the Illinois Supreme Court held Public Act 92-607 void ab initio in Jorgensen v.
Blagojevich, 211 Ill. 2d 286, 811 N.E.2d 652 (2004).
Plaintiff was elected State's Attorney of Boone County,
which has a population greater than 30,000, and held the position
from February 11, 1987, until July 30, 2004. His salary for
fiscal year 2002 was $134,091. On July 26, 2004, plaintiff sent
a letter to Jack Lavin and Brian Hamer requesting his COLA and
back salary that had been denied by Public Act 92-607. Specifi-
cally, the letter pointed out that Public Act 92-607 had been
found void ab initio in Jorgensen and requested: $5,095.49 for
July 1, 2002, through June 30, 2003; $5,238.16 for July 1 2003,
through June 30, 2004; and an incremental amount to be determined
for July 1, 2004, through July 30, 2004. The letter pointed out
that plaintiff would be retiring his position effective July 30,
2004, and his pension would be based on his salary at that time,
which would be $146,948 with the COLA and $141,569 without it.
Neither Lavin nor Hamer responded to plaintiff.
- 3 - On July 27, 2004, plaintiff delivered a similar letter
to Sylvia E. Schroeder, the Boone County clerk and recorder, and
Carolynn G. Knox, the Boone County treasurer and collector. In
response to plaintiff's letter, Schroeder and Knox submitted
affidavits. Schroeder stated that she had received no communica-
tion from anyone in state government confirming that Boone County
would be reimbursed for the increase. She indicated that she
would appropriate the COLA as soon as she received confirmation
that Boone County was entitled to reimbursement from the State of Illinois. According to Knox, she receives forms from the state
with preprinted amounts of reimbursement and had not received any
forms with the increase demanded by plaintiff. Knox, similar to
Schroeder, indicated a willingness to pay the COLA to plaintiff
but had received no communication from anyone in state government
that Boone County would be reimbursed for the increase.
In December 2004, plaintiff filed the instant complaint for mandamus. Plaintiff requested an order of mandamus, direct-
ing (1) Hamer and Lavin to issue vouchers to Boone County to
reflect the 3.8% COLA of fiscal year 2003 and all subsequent
increases in the State's Attorney's salary, and (2) Hynes to pay
to Boone County from the Illinois State Treasury the amounts
reflecting the 3.8% COLA for fiscal year 2003 and all subsequent
increases upon Boone County's submission of the vouchers. On
March 3, 2005, defendants filed a motion to dismiss pursuant to
section 2-615 of the Code of Civil Procedure (Code) (735 ILCS
5/2-615 (West 2004)). On August 17, 2005, the trial court
- 4 - granted defendants' motion, finding the holding in Jorgensen was
only as to judges and that the unconstitutional portion of Public
Act 92-607 was severable from the remainder. This appeal fol-
lowed.
II. ANALYSIS
A. Standard of Review
A motion to dismiss under section 2-615 of the Code
tests the legal sufficiency of the complaint. Lee v. Findley,
359 Ill. App. 3d 1130, 1134, 835 N.E.2d 985, 988 (2005). In
reviewing a section 2-615 dismissal, we must decide whether the
allegations, when construed in the light most favorable to the
plaintiff, are sufficient to establish a cause of action upon
which relief may be granted. Bajwa v. Metropolitan Life Insur- ance Co., 208 Ill. 2d 414, 421, 804 N.E.2d 519, 525 (2004). We
review de novo a trial court's dismissal of a petition for
mandamus. Lee, 359 Ill. App. 3d at 1134, 835 N.E.2d at 988.
B. Mandamus
"Mandamus is appropriate relief only where a petitioner can
demonstrate a clear right to the requested relief, the
respondent's clear duty to act, and the respondent's clear
authority to comply with the terms of the writ. [Citation.] The
party requesting a writ of mandamus bears the burden of
demonstrating a clear right to the relief desired." Romero
v. O'Sullivan, 302 Ill. App. 3d 1031, 1034,
707 N.E.2d 986, 988 (1999).
- 5 - "[M]andamus is available only when the plaintiff has set forth every material fact needed
to prove that he has a clear, legal right and is entitled to the performance of the act he
seeks to compel." Mason v. Snyder, 332 Ill. App. 3d 834, 840, 774 N.E.2d 457, 461
(2002).
1. Right to Relief
a. Jorgensen
The Illinois Constitution provides "Judges shall
receive salaries provided by law which shall not be diminished to
take effect during their terms of office. All salaries and such
expenses as may be provided by law shall be paid by the State
***." Ill. Const. 1970, art. VI, '14. In Jorgensen, 211 Ill. 2d
at 287, 811 N.E.2d at 654, the supreme court considered "whether
the General Assembly and the Governor violated the Illinois
Constitution when they attempted to eliminate the cost-of-living
adjustments to judicial salaries provided by law for the 2003 and
2004 fiscal years." The legislature had attempted to suspend the
COLA for judges during the fiscal year 2003 by passing Public Act
92-607, and Governor Blagojevich used a reduction veto to remove
the COLA from the budget for fiscal year 2004. Jorgensen, 211
Ill. 2d at 289-91, 811 N.E.2d at 655-56. However, the supreme
court found that Senate Joint Resolution 192 made COLAs a vested
component of judicial salaries as of 1990. Jorgensen, 211 Ill.
2d at 307, 811 N.E.2d at 664. The court found that because the
COLAs were vested, the legislature and the Governor violated
- 6 - article VI, section 14, by trying to prevent the judges from
receiving them. Jorgensen, 211 Ill. 2d at 307-08, 811 N.E.2d at
664-65. In so concluding, the supreme court stated: "Because we
agree with the circuit court that Public Act 92-607 is unconsti-
tutional, and because it is unconstitutional in its entirety, the
statute has no force or effect. It is void ab initio. It is as
if the law had never been passed." Jorgensen, 211 Ill. 2d at
309, 811 N.E.2d at 665-66. Further, in Perlstein v. Wolk, 218
Ill. 2d 448, 459, 844 N.E.2d 923, 929 (2006), the supreme court
stated that in Jorgensen, "we held Public Act 92-607, which suspended the 2003 COLA, constitutionally infirm and void ab
initio." However, the court rejected Jorgensen as precedent on
the issue in Perlstein--whether to strictly apply the void ab
initio doctrine--stating "Jorgensen does not aid in our resolu-
tion of this issue." Perlstein, 218 Ill. 2d at 459, 844 N.E.2d
at 929.
Plaintiff argues that Jorgensen's holding is clear that
Public Act 92-607 is unconstitutional and that, because it is
unconstitutional in its entirety, he is entitled to his COLA.
Defendants respond that Public Act 92-607 was only declared
unconstitutional as applied to judges in Jorgensen, the supreme court's use of "in its entirety" and "ab initio" was dicta, and
that the unconstitutional portion is severable from the rest of
the act.
To successfully facially challenge a statute, one must
establish the statute's invalidity under any set of facts.
- 7 - People v. Garvin, 219 Ill. 2d 104, 117, 847 N.E.2d 82, 89 (2006).
The fact that a statute may operate invalidly under some circum-
stances is insufficient to establish facial invalidity; a statute
is facially unconstitutional only if the statute is constitu-
tional under no set of circumstances. Hill v. Cowan, 202 Ill. 2d
151, 157, 781 N.E.2d 1065, 1069 (2002). So long as a situation
exists where a statute could be validly applied, a facial chal-
lenge must fail. Hill, 202 Ill. 2d at 157, 781 N.E.2d at 1069.
An "as applied" challenge requires a plaintiff to show
the statute violates the constitution as it applies to him.
Garvin, 219 Ill. 2d at 117, 847 N.E.2d at 89. "[I]f the plain-
tiff succeeds in an as-applied claim, he may enjoin the objec-
tionable enforcement of the statute only against himself, while a
successful facial attack voids the statute in its entirety and in
all applications." Lamar Whiteco Outdoor Corp. v. City of West
Chicago, 355 Ill. App. 3d 352, 365, 823 N.E.2d 610, 621 (2005).
Public Act 92-607 specifically provided judges were
prohibited from receiving and shall not receive any increase in
compensation based on a cost-of-living adjustment, as authorized
by Senate Joint Resolution 192 for or during the fiscal year
beginning July 1, 2002. The plaintiffs in Jorgensen were a class consisting of all Illinois judges. Jorgensen, 211 Ill. 2d at
293, 811 N.E.2d at 657. In light of the constitution's prohibi-
tion on diminishment of judicial salaries, there are no judges in
Illinois to whom section 5.5 could be validly applied. Accord-
ingly, insofar as Public Act 92-607 applies to judges, it is void
- 8 - in all applications.
The constitutionality of the remainder of the act was
not at issue before the court in Jorgensen. Moreover, statutes
are presumed to be constitutional. General Motors Corp. v. Motor
Vehicle Review Board, 361 Ill. App. 3d 271, 281, 836 N.E.2d 903,
912 (2005). For the court to declare Public Act 92-607 void as
to all positions listed, not just judges, would be akin to
throwing out the baby with the bath water. We see no reason the
supreme court would have intended such a result, given the issue
before it in Jorgensen. Public Act 92-607 did not violate the
single-subject rule. See Johnson v. Edgar, 176 Ill. 2d 499, 680
N.E.2d 1372 (1997) (when an act is found to violate the single-
subject rule, it must be struck in its entirety). Our reading of
Jorgensen is that Public Act 92-607 is unconstitutional and void
ab initio as to judges.
This view is supported by the analysis in Jorgensen,
where the supreme court relied on article VI, section 14, in
finding Public Act 92-607 unconstitutional. That section of the
constitution does not apply to the other officers listed in
section 5.5. In fact, the court stated "the prohibition against
diminishment of judicial salaries and the doctrine of separation
of powers place judicial salaries in a qualitatively different
legal posture than salaries paid to other state officers and
employees." Jorgensen, 211 Ill. 2d at 308-09, 811 N.E.2d at 665.
The court did not discuss any other elected officers in its
analysis and did not declare Public Act 92-607 unconstitutional
- 9 - as to plaintiff.
b. Constitutionality of Public Act 92-607 With Respect to State's Attorneys
Plaintiff argues that Public Act 92-607 is unconstitu-
tional as it applies to a State's Attorney's salary. We disagree
and are aware of no constitutional provision prohibiting the
legislature from diminishing the salary of a State's Attorney.
The Illinois Constitution does prohibit changes to the salary of
a legislator during the term for which he has been elected. See
Ill. Const. 1970, art. IV, '11 ("A member shall receive a salary
and allowances as provided by law, but changes in the salary of a
member shall not take effect during the term for which he has
been elected"). Similarly, article V, section 21, provides that
changes in the salaries of executive officers "elected or ap-
pointed for stated terms shall not take effect during the stated
terms." Ill. Const. 1970, art. V, '21. However, the supreme
court has held that State's Attorneys are not constitutionally
prohibited from receiving salary increases during their terms of
office. Ingemunson v. Hedges, 133 Ill. 2d 364, 365, 549 N.E.2d 1269, 1269 (1990). In reaching this conclusion, the court found
that State's Attorneys were not subject to the salary raise
prohibition in article V, section 21. Ingemunson, 133 Ill. 2d at
367, 549 N.E.2d at 1270. The court did not consider whether
State's Attorney's salaries could be decreased during their terms
of office. Ingemunson, 133 Ill. 2d at 373, 549 N.E.2d at 1273,
(Miller, J., specially concurring).
- 10 - When the drafters intended for a particular salary not
to be subject to change mid-term, that intent appears in the
article creating the position. As further evidence, article VII,
section 9, provides: "An increase or decrease in the salary of
an elected officer of any unit of local government shall not take
effect during the term for which that officer is elected." Ill.
Const. 1970, art. VII, '9(b); see Ingemunson, 133 Ill. 2d at 369,
549 N.E.2d at 1271, citing Hoyne v. Danisch, 264 Ill. 467, 470-
72, 106 N.E. 341, 343 (1914) (State's Attorneys are state offi-
cials not county officers under the language of the constitu-
tion). However, clerks and other nonjudicial officers are
treated similarly to State's Attorneys with respect to salary.
See Ill. Const. 1970, art. VI, '18(c) ("The salaries of clerks
and other non-judicial officers shall be as provided by law").
State's Attorneys clearly do not stand in the same shoes as
executive, legislative, judicial, or local officers with respect
to salary.
This case places us in the dubious position of declar-
ing that plaintiff's salary may be decreased during his term of
office, while the supreme court has declared our own salaries
cannot be. However, we must agree with defendants that, had the
drafters of the constitution intended to prohibit increases and
decreases in the salary of State's Attorneys, the drafters would
have done so in the section creating State's Attorneys as they
have done with executive officials, legislators, judges, and
local officers.
- 11 - 2. Duty and Authority To Act
"'Mandamus is an extraordinary remedy to enforce, as a
matter of right, "the performance of official duties by a public
officer where no exercise of discretion on his part is
involved."'" Lee, 359 Ill. App. 3d at 1133, 835 N.E.2d at 987,
quoting Lewis E. v. Spagnolo, 186 Ill. 2d 198, 229, 710 N.E.2d
198, 813 (1999), quoting Madden v. Cronson, 114 Ill. 2d 504, 514,
501 N.E.2d 1267, 1272 (1986). As stated, in addition to proving
a clear right to the relief requested, a defendant must prove the
clear duty of the public official to act and the clear authority of the public official to
comply with the writ. Romero, 302 Ill. App. 3d at 1034, 707 N.E.2d at
988; Lee, 359 Ill. App. 3d at 1133, 835 N.E.2d at 987.
Defendants claim that, even if plaintiff has estab-
lished a clear right to relief, dismissal of his mandamus peti-
tion was proper because he showed no clear duty or authority on
the part of any of defendants to comply with the writ. Reduced
to its essence, defendants' claim is that with no appropriation
from the General Assembly, they cannot pay plaintiff his COLA.
We agree.
The State Comptroller Act provides that an obligation
or expenditure must be
"'pursuant to law and authorized' before the
Comptroller may draw a warrant for its pay-
ment. 15 ILCS 405/9(b) (West 2002). In most
instances the requisite authority is found in
- 12 - statutory enactments supported by relevant
appropriations. Other types of 'obligational
or expenditure authority,' however, will also
suffice. See 15 ILCS 405/9(b), (c) (West
2002)." Jorgensen, 211 Ill. 2d at 311-12,
811 N.E.2d at 667.
In Board of Trustees of Community College District No. 508 v. Burris, 118
Ill. 2d 465, 515 N.E.2d 1244 (1987), the supreme court held that the Comptroller
appropriately refused to reimburse plaintiff for funds it had expended for veterans'
scholarships, because the General Assembly did not make an appropriation for the
payment despite the fact the State Mandates Act (Ill. Rev. Stat. 1983, ch. 85, pars. 2201
through 2210) required the reimbursement. The court noted that the amounts
appropriated for veterans' scholarships by the General Assembly had been reduced by
the Governor and the legislature did not restore them. Burris, 118 Ill. 2d at 478-79, 515
N.E.2d at 1250. The court found that for the Comptroller to pay the amounts, he would
be able to "'override' the action of the legislature and the Governor in making these
reductions in an appropriations bill, creating obvious problems under the separation of
powers doctrine." Burris, 118 Ill. 2d at 479, 515 N.E.2d at 1250.
However, in Jorgensen, the supreme court gave authori-
zation by court order to the Comptroller to issue warrants drawn
on the treasury of the State of Illinois to pay the judges. In
so doing, the court observed, "'[w]here a statute categorically
commands the performance of an act, so much money as is necessary
to obey the command may be disbursed without any explicit appro-
- 13 - priation.'" Jorgensen, 211 Ill. 2d at 314, 811 N.E.2d at 668,
quoting Antle v. Tuchbreiter, 414 Ill. 571, 581, 111 N.E.2d 836,
841 (1953). The Jorgensen court did not share the Burris court's
separation-of-powers concerns--that the Comptroller would, in
effect, be unilaterally overriding the legislature's and Gover-
nor's actions by issuing the warrants drawn on the treasury. The
court observed to the contrary:
"That situation is not before us here. The Comptroller
is not being asked to draw warrants without authorization.
We hereby give him authorization by court order. That order
is issued pursuant to the inherent right of the courts to order
payment of judicial salaries which the state was required by
our constitution to make, a situation not presented or
addressed by Burris. The distinction is critical. As we have
just noted, the circumstances in Burris were such that
compelling the comptroller to act would have created
separation of powers problems. In this case, by contrast,
compelling him to draw the warrants for the FY2003 COLA is
necessary to prevent the separation of powers doctrine from
being violated." Jorgensen, 211 Ill. 2d at 315, 811 N.E.2d at
669.
In the instant case, as in Burris and unlike Jorgensen,
there is no constitutional prohibition to the diminishment of a
State's Attorney's salary. Further, if the Comptroller were to
- 14 - make the payments as plaintiff requests, he would, as was the
case in Burris, "override" the action of the General Assembly
without a constitutional mandate.
Because article VI, section 16, of the Illinois Consti-
tution contains no prohibition against increases or decreases in
a State's Attorneys' salary, Public Act 92-607's denial of a COLA
to plaintiff is not unconstitutional. Further, because plaintiff
has failed to demonstrate a clear right to the relief he requests
and the defendants' clear duty to act, he has failed to state a
claim for mandamus. III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
TURNER, P.J., and KNECHT, J., concur.
- 15 -