Russell v. Blagojevich

• Decision Date: 09 August 2006
• Docket Number: No. 4-05-0765.,4-05-0765.
• Citation: 853 N.E.2d 920
• Parties: Roger T. RUSSELL, Plaintiff-Appellant, v. Rod R. BLAGOJEVICH, Governor of the State of Illinois; Brian Hamer, Director, Illinois Department of Revenue; Jack Lavin, Director, Illinois Department of Commerce and Economic Opportunity; and Daniel W. Hynes, Comptroller of the State of Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

853 N.E.2d 920

Roger T. RUSSELL, Plaintiff-Appellant, v. Rod R. BLAGOJEVICH, Governor of the State of Illinois; Brian Hamer, Director, Illinois Department of Revenue; Jack Lavin, Director, Illinois Department of Commerce and Economic Opportunity; and Daniel W. Hynes, Comptroller of the State of Illinois, Defendants-Appellees.

No. 4-05-0765.

Appellate Court of Illinois, Fourth District.

August 9, 2006.

Justice MYERSCOUGH delivered the opinion of the court:

Plaintiff, Roger T. Russell, the former State's Attorney of Boone County, appeals the trial court's dismissal of his mandamus petition against defendants, Rod R. Blagojevich, Governor 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 inhabitants, $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 Compensation 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, 90 Ill. Dec. 898, 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 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, 285 Ill.Dec. 165, 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. Specifically, 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.

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 communication 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, directing (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 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 followed.

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, 296 Ill.Dec. 632, 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 Insurance Co., 208 Ill.2d 414, 421, 281 Ill.Dec. 554, 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, 296 Ill.Dec. 632, 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, 236 Ill.Dec. 648, 707 N.E.2d 986, 988 (1999).

"[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, 266 Ill. Dec. 351, 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, 285 Ill.Dec. 165, 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, 285 Ill.Dec. 165, 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, 285 Ill.Dec. 165, 811 N.E.2d at 664. The court found that because the COLAs were vested, the legislature and the Governor violated article VI, section 14, by trying to prevent the judges from receiving them. Jorgensen, 211 Ill.2d at 307-08, 285 Ill. Dec. 165, 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 unconstitutional, 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, 285 Ill.Dec. 165, 811 N.E.2d at 665-66. Further, in Perlstein v. Wolk, 218 Ill.2d 448, 459, 300 Ill.Dec. 480, 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 resolution of this issue." Perlstein, 218 Ill.2d at 459, 300 Ill.Dec. 480, 844 N.E.2d at 929.

Plaintiff argues that Jorgensen's...