                           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


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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.


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            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


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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.




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