Case Information
*1
IN THE SUPREME COURT OF
THE STATE OF ILLINOIS (Docket No. 127239) MICHAEL NOLAND et al ., Appellees and Cross-Appellants, v. SUSANA A. MENDOZA, in Her Official Capacity as Comptroller of the State of Illinois, Appellant and Cross-Appellee.
Opinion filed September 22, 2022. JUSTICE NEVILLE delivered the judgment of the court, with opinion. Chief Justice Anne M. Burke and Justices Theis, Michael J. Burke, Overstreet, and Carter concurred in the judgment and opinion.
Justice Holder White took no part in the decision.
OPINION
Michael Noland and James Clayborne (collectively, plaintiffs) are former
members of the General Assembly who voted for a series of laws that reduced legislators’ salaries (Salary Reduction Laws). After leaving office, plaintiffs filed *2 an action alleging that the reductions violated article IV, section 11, of the Illinois Constitution (Legislative Salary Clause) (Ill. Const. 1970, art. IV, § 11). Plaintiffs were seeking a writ of mandamus compelling defendant, Susan A. Mendoza, the Comptroller of the State of Illinois, to pay them and all affected legislators their disputed salaries. Defendant asserted the affirmative defenses of waiver, , and violation of the statute of limitations. The parties filed cross-motions for summary judgment, and the Cook County circuit court found that the affirmative defenses of laches and waiver failed as a matter of law and that the statute of limitations defense lacked merit. The court also found that, although plaintiffs were entitled to relief for themselves, they could not obtain relief on behalf of nonparty legislators. The court found that the laws at issue were facially unconstitutional and entered partial summary judgment for plaintiffs, ruling that they were entitled to mandamus relief against defendant on their claims seeking payment of their disputed salaries. The court then made findings under Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006), and defendant appealed. Because the circuit court’s judgment invalidated a statute of the State of Illinois, the appeal was taken directly to this court pursuant to Illinois Supreme Court Rule 302 (eff. Oct. 4, 2011). For the reasons that follow, we reverse the judgment of the circuit court. I. BACKGROUND The following facts are undisputed. Under the Compensation Review Act
(Compensation Act) (25 ILCS 120/1 et seq. (West 2008)), the Compensation Review Board recommends salaries for various state officials, including members of the General Assembly. In 1990, the board recommended that the salaries of various state officials, including members of the General Assembly, be subject to annual cost-of-living adjustments (COLAs). And the General Assembly approved that recommendation. Following the severe recession that began in 2007, the General Assembly
passed a series of laws that reduced its members’ salaries by eliminating the COLAs and requiring all legislators to take unpaid furlough days. The initial Salary Reduction Laws were enacted into law in 2009, after being passed by the vote of at least three-fifths of the members elected to each house of the General Assembly. A. Salary Reduction Laws The General Assembly enacted Public Act 96-800 (eff. Oct. 30, 2009), which eliminated the COLAs that legislators were entitled to for the fiscal year running from July 1, 2009, to June 30, 2010. The COLA-elimination law provided, in relevant part, that members of the General Assembly were prohibited from receiving
“any increase in compensation that would otherwise apply 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, 2009.” 25 ILCS 120/5.6 (West 2010) (added by Pub. Act 96-800, § 35 (eff. Oct. 30, 2009)).
In each of the following years through 2019, the General Assembly passed similar laws, eliminating COLA increases for its members. [1] In addition to the suspension of the COLAs, the General Assembly enacted Public Act 96-45 (eff. July 15, 2009), which mandated that members of the General Assembly were required to forfeit 12 days of compensation for the fiscal year July 1, 2009, to June 30, 2010. The law mandating that legislators take furlough days provided in relevant part:
“During the fiscal year beginning on July 1, 2009, every member of the General Assembly is required to forfeit 12 days of compensation. The State Comptroller shall deduct the equivalent of 1/261 of the annual compensation of each member from the compensation of that member in each month of the fiscal [1] The Public Acts suspending COLAs and the corresponding amendments to the Compensation Act are as follows: Pub. Act 96-958, § 35-5 (eff. July 1, 2010); Pub. Act 97-71, § 10 (eff. June 30, 2011); Pub. Act 97-718, § 10 (eff. June 29, 2012); Pub. Act 98-30, § 10 (eff. June 24, 2013); Pub. Act 98-682, § 60 (eff. June 30, 2014); Pub. Act 99-355, § 10 (eff. Aug. 13, 2015); Pub. Act 99-523, art. 5, § 5-8 (eff. June 30, 2016); Pub. Act 100-25, § 10 (eff. July 26, 2017); Pub. Act 100-587, § 70- 10 (eff. June 4, 2018).
year.” 25 ILCS 115/1.5 (West 2010) (added by Pub. Act 96-45, § 5-26 (eff. July 15, 2009)).
In each of the following years through 2014, the General Assembly passed similar laws, mandating furlough days for its members. [2]
¶ 8 Noland, who served in the Illinois Senate from January 2007 until January
2017, was a cosponsor of the laws and routinely voted for them. Declaring his support for the laws, Noland publicly stated that “most working families in Illinois are not seeing raises” and “the least we can do is cut our own pay.” B. Complaint and Other Court Filings Several months after leaving office in 2017, Noland filed this action alleging that the Salary Reduction Laws violated the Legislative Salary Clause of the Illinois Constitution. Article IV, section 11, of the Illinois Constitution provides:
“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.” Ill. Const. 1970, art. IV, § 11. Noland sued in his “official capacity as a former member of the Illinois Senate”
and requested similar relief for other members of the General Assembly who had not joined the suit as plaintiffs. He named Comptroller Susana A. Mendoza as defendant. Defendant moved to dismiss the action, asserting that Noland lacked standing
to seek relief in his “official capacity” as a former senator. The circuit court agreed, stating: “plaintiff, in our case, cannot bring this case in his official capacity. He no longer is a member of the Illinois Senate. And as such, he cannot sue as a public official or represent the Senate.”
[2] The Public Acts imposing furlough days and the corresponding amendments to the General Assembly Compensation Act are as follows: Pub. Act 96-958, § 5-10 (eff. July 1, 2010); Pub. Act 97-71, § 5 (eff. June 30, 2011); Pub. Act 97-718, § 5 (eff. June 29, 2012); Pub. Act 98-30, § 5 (eff. June 24, 2013).
¶ 13 With leave of court, Noland filed an amended complaint in which he sued in
his individual capacity and added as a plaintiff James Clayborne—who was still serving in the Senate but had announced that he would not seek reelection—both in his individual capacity and in his official capacity as a member of the Illinois Senate. Counts I to IV of the amended complaint sought a declaratory judgment that the Salary Reduction Laws suspending COLAs mid-term and imposing unpaid furlough days for Noland and Clayborne violated the Legislative Salary Clause, were facially unconstitutional, and were void ab initio . Counts V and VI sought mandamus relief requiring defendant to pay their disputed salaries and an order requiring defendant to make these payments to plaintiffs and all other members of the General Assembly affected by the Salary Reduction Laws.
¶ 14 Defendant moved to dismiss the action, arguing that the Legislative Salary
Clause only prohibited increases, ss reductions, in legislators’ salaries. The circuit court denied the motion and ordered defendant to file an answer. Defendant answered, denying plaintiffs were entitled to a declaratory judgment or mandamus relief. She further alleged as an affirmative defense that Clayborne—who was not running for reelection and whose term of office would soon expire—lacked standing to sue in his official capacity. Plaintiffs moved for partial summary judgment on their claims for declaratory
relief (counts I to IV). Defendant filed a cross-motion for summary judgment on all claims. C. Circuit Court Proceedings After briefing, the circuit court granted defendant’s motion to the extent that it
challenged Clayborne’s standing to sue in his official capacity. The court also granted plaintiffs’ motion for partial summary judgment on Counts I to IV, holding that the Legislative Salary Clause prohibits mid-term changes, whether decreases or increases, in legislators’ salaries during their terms in office. The court held that plaintiffs’ constitutional challenge to the Salary Reduction
Laws could not be an as-applied challenge because the court had “not held an evidentiary hearing” and, therefore, found the laws were “facially unconstitutional.” Counts V and VI were still unresolved.
¶ 19 Following the ruling, defendant moved for leave to file an amended pleading
asserting the affirmative defenses of laches , waiver, and violation of the statute of limitations. Plaintiffs opposed the motion, arguing inter alia that such an amendment would be “futile” because none of these defenses were legally “viable.” The circuit court permitted defendant to file an amended answer and ruled that she could assert the defense that plaintiffs’ claims were barred by the statute of limitations, but waiver and could not be asserted. The court determined that the defenses of and waiver were legally insufficient. Thereafter, defendant filed an amended affirmative defense raising violation of
the statute of limitations. To avoid any forfeiture, the pleading noted that the defenses of laches and waiver were omitted only because the court disallowed them. The parties filed cross-motions for summary judgment on plaintiffs’ mandamus
claims, counts V and VI. First, the court found that the Salary Reduction Laws were “facially unconstitutional” and therefore “void ab initio .” Second, the court found that defendant’s statute of limitations defense lacked merit because plaintiffs’ mandamus counts did not become “ripe” until the court first declared the Salary Reduction Laws unconstitutional. Third, the court found that plaintiffs were entitled to relief for themselves because they were seeking redress in their individual capacities, but they could not obtain relief on behalf of nonparty legislators. Therefore, the court granted plaintiffs’ motion for summary judgment, in part, finding that they were entitled to a judgment against defendant on their mandamus counts seeking payment of their salaries, and the court ordered defendant to pay plaintiffs’ salaries that were withheld under the Salary Reduction Laws in the amounts of $71,507.43 for Noland and $104,412.93 for Clayborne. Finally, the court incorporated its orders in a final judgment that included a finding under Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006). Defendant filed a timely notice of direct appeal to this Court. Ill. S. Ct. R. 302
(eff. Oct. 4, 2011). Plaintiffs timely filed a cross-appeal regarding the circuit court’s judgment denying relief for nonparty legislators. Ill. S. Ct. R. 303 (eff. July 1, 2017). II. ANALYSIS Defendant argues that the Salary Reduction Laws validly apply to legislative
terms beginning after any of the laws took effect; thus, they were constitutional as applied. Defendant also contends that the circuit court erred in denying the application of her affirmative defenses of , waiver, and violation of the statute of limitations. Defendant specifically maintains that plaintiffs’ claims under the Legislative Salary Clause for payments of public funds to them are not claims to enforce public rights but rather private rights subject to affirmative defenses. In addressing plaintiffs’ claim for cross-relief, defendant maintains that the circuit court correctly held that plaintiffs may not obtain a judgment that grants relief in favor of nonparty legislators. Plaintiffs respond that the circuit court correctly held that the Salary Reduction
Laws were unconstitutional because they violated the Legislative Salary Clause of the Illinois Constitution. Ill. Const. 1970, art. IV, § 11. Plaintiffs contend that there is no set of circumstances where defendant could comply with the Salary Reduction Laws, agreeing with the circuit court that they are facially unconstitutional. Plaintiffs maintain that the circuit court correctly held that the defenses of laches and waiver were unavailable to defendant against plaintiffs’ public right to their salaries as set by law. Plaintiffs also maintain that the circuit court did not err when it granted partial summary judgment because they did not violate the statute of limitations, as their mandamus claim accrued after the circuit court found the Salary Reduction Laws unconstitutional. In requesting cross-relief, plaintiffs contend that the circuit court erred in holding that they could not obtain relief on behalf of nonparty legislators. Finally, plaintiffs argue that, because they are seeking to enforce a public right that protects the right of the people of Illinois to a legislature free from improper influence, they have standing to seek as an element of relief that defendant comply with the Illinois Constitution and pay all affected members of the General Assembly their disputed salaries. See id. A. Constitutional Claim
¶ 28 Here, the parties urge us to address the merits of plaintiffs’ constitutional claim.
We acknowledge this court’s long-standing rule that cases should be decided on
nonconstitutional grounds whenever possible and that we reach constitutional
issues only as a last resort.
In re E.H.
, 224 Ill. 2d 172, 178 (2006). Courts must
avoid reaching constitutional issues unless necessary to decide a case.
Id.
;
People
v. Hampton
,
insufficient as a matter of law is reviewed
de novo
.
In re S.L.
,
litigant whose unreasonable delay in raising that claim has prejudiced the opposing
party.
Tully v. State
,
¶ 33 Two elements are necessary for the application of : (1) “ ‘lack of due
diligence by the party asserting the claim’ ” and (2) “ ‘prejudice to the opposing party.’ ” Id. (quoting Van Milligan v. Board of Fire & Police Commissioners , 158 Ill. 2d 85, 89 (1994)). Whether applies depends on the facts of each case. Id. ¶ 34 1. Plaintiffs’ Lack of Due Diligence a. Plaintiffs Assert a Private Right Plaintiffs argue that they are suing to establish a public right and that this court
should compel defendant to comply with the Legislative Salary Clause of the Illinois Constitution (Ill. Const. 1970, art. IV, § 11) and pay them their disputed salaries. Plaintiffs assert that a public officer’s right to his salary is not an individual right but rather a public right that attaches to the office and belongs to the citizens of Illinois. Plaintiffs contend that a public officeholder’s right to compensation is not based on any personal or contractual rights but rather a constitutional right and that they as individuals cannot forfeit, waive, or gift this right by affirmative action or by delay in seeking to enforce it. We disagree. Plaintiffs rely on People ex rel. Northrup v. City Council of Chicago , 308 Ill.
App. 284 (1941), for the proposition that their disputed salary is a public right protected by law, to which they are entitled. We find their reliance on Northrup misplaced. In Northrup , plaintiffs, who were serving as aldermen, sought the issuance of a
writ of mandamus to compel the City of Chicago (City) to pay salary amounts that were withheld between 1932 and 1935 because of salary reduction ordinances enacted by the city council. Id. at 285. The plaintiffs argued that, as elected officers, the ordinances resulted in mid-term salary reductions that violated the public right to their salary as set by law and the public policy of the State. Id. Numerous plaintiffs had voted in favor of the ordinances, and each of the plaintiffs accepted the reduced salary payments in monthly installments during the entire period from 1932 to 1935. Id. at 286-87. The plaintiffs waited several years after the first *10 ordinance was passed to file suit. Id. The City asserted the following as defenses: laches , the statute of limitations, and that the withheld salaries were a gift by the plaintiffs to the City. Id. at 287. The court rejected the City’s defenses as unavailable, as they were contrary to the constitution, and issued the writ of mandamus . Id. at 287-88. First, in the case at bar, the flaw in plaintiffs’ argument is that they are suing in
their individual capacity and not in an official capacity as former members of the
Illinois Senate. A claim by a former public official seeking payment of
compensation from public funds is the assertion of a private right to protect a
personal entitlement, not a public right on behalf of the people or for the benefit of
the people collectively.
Murphy v. City of Park Ridge
, 298 Ill. 66, 72 (1921)
(finding that the petitioner, who filed in his individual name and not in the name of
the people, sought to enforce a private right); 4 William Blackstone, Commentaries
*7 (defining public rights as those rights held collectively by the community).
Plaintiffs filed in their individual names and not in the name of the people of
Illinois, and they sued for the payment of public funds to themselves. Thus, the
public has no interest in the collection of plaintiffs’ private claims. See
Spokeo, Inc.
v. Robins
,
subject to stringent rules governing public budgets, present a compelling case for
applying the equitable defense of . In
Tillman
, this court determined that lack
of diligence encompassed the petitioner’s 2-year and 16-year delays in bringing his
taxpayer actions to restrain the disbursement of public funds, while having notice
and knowledge of defendants’ conduct and the opportunity to file suit. 2021 IL
126387, ¶¶ 26-27. In
Monson v. County of Grundy
,
time-barred, just as any other claim.
Block v. North Dakota ex rel. Board of
University & School Lands
,
capacity, have slept on their rights, and we will not come to the aid of such complainants. See Tillman , 2021 IL 126387, ¶ 25; Tully , 143 Ill. 2d at 432. Plaintiffs’ lack of due diligence in bringing their private claims supports application of . Consequently, we find that plaintiffs are estopped from bringing their *12 claims seeking payment of their salaries excluded by the Salary Reduction Laws because of their unreasonable delay in pursuing the action. Finally, to the extent that Northrup suggests that laches cannot be a viable defense regarding a constitutional claim for a public official’s salary, it is now overruled.
¶ 43 b. Plaintiffs’ Acceptance of a Reduced Salary Is
Not Against Public Policy and Precludes Recovery
Plaintiffs, relying on
Galpin v. City of Chicago
,
v. Continental & Commercial National Bank of Chicago
, 305 Ill. 265 (1922),
contend that this court has determined that the reduction of a public official’s salary
mid-term is against public policy and void. We do not believe these cases support
plaintiffs’ position.
In
Galpin
,
promise, which he kept after his election, to pay certain money due him back to the county. After he died, his estate sued to recover the amount ceded to the county. Id. The court rejected an estoppel defense, finding that it was “contrary to public policy for candidates to attempt to attain such office by promises made to the electors to perform the duties of the office for any other or different compensation than that fixed by law.” (Emphasis added.) Id. The court determined that such promises, being illegal, cannot be enforced. Id. In Pitsch , 305 Ill. at 270-71, a notary public agreed to accept for his official
services something different from that provided by statute. The amount to which the notary public was entitled was received by the bank, and the amount belonged to the notary, yet the bank retained the greater part of the money received. Id. at 270. The court observed that every person for whom such services are rendered is entitled to receive them at the same price. Id. at 271. The court determined that a private contract whereby a public officer whose compensation is fixed by statute agrees to accept for his official services something different from that provided by statute is contrary to public policy and void. Id. at 272. We find plaintiffs’ reliance on Galpin and Pitsch misplaced. Galpin and Pitsch
involved two litigants who were public officers who made promises to accept less money than they were entitled to receive by statute. The courts found the promises *13 made by the public officials to accept less salary than they were entitled to receive by statute to be contrary to public policy and, therefore, illegal and unenforceable. In this case, two legislators brought lawsuits, in their individual capacity, to recover their salaries that were reduced by two public laws, one that suspended the legislators’ COLAs and one that mandated that the legislators take furlough days. The public laws reducing the legislators’ salaries were never found to be unconstitutional and remain in effect. Therefore, the legislators’ lawsuit was not barred because they attempted to enforce an illegal and unenforceable promise but by because of their delay in bringing their lawsuit. Further, laches is a recognized defense against claims alleging underpayment
of public salaries established by law. In
Deasey v. City of Chicago
,
found that the doctrine of estoppel by was applicable to the plaintiffs’ claims
for back pay. For several years, from 1935 to 1939, the plaintiffs accepted the
reduced pay as fixed by the board of commissioners without protest.
Id.
at 759. The
court reasoned that the plaintiffs permitted the city to spend the funds for other
purposes while neglecting to timely file their claims for a year or more.
Id.
The
court held that to permit the plaintiffs to now recover would impose a hardship on
*14
the city and its affairs, as the plaintiffs had not proceeded with due diligence and
had permitted an unreasonable delay to elapse before asserting their claims.
Id.
In
Pratts v. City of Duluth
,
“ ‘it has frequently been held that the agreement of an officer or employee, in time of economic depression or other emergency, to accept a deduction, or to donate or contribute part of his salary to the city, is valid, and is not against public policy, and precludes any recovery of the amount so deducted or contributed. This has been said to be true notwithstanding a statute prohibiting reduction of salaries during the term of office.’ ” Id. at 790 (quoting 2 Eugene McQuillin, The Law of Municipal Corporations § 542, at 332 (2d rev. ed. 1939)).
The court concluded that an agreement to receive a reduction in salary upon the
suggestion of the council is not an agreement contrary to public policy and
constituted an estoppel.
Id.
;
Glaser v. City of Burlington
,
endorsed, voted for, publicly touted their sponsorship of, and acquiesced to the
reduction in their statutory salaries. Indeed, they may have benefitted in their
reelection endeavors in part, based on their championing of this position of a
decrease in salary for the benefit of the public good of the State of Illinois in a time
of monetary need. The public was misled by these plaintiffs when, soon after
retiring from office or indicating an intention not to run for retention, plaintiffs filed
this lawsuit claiming that defendant was not allowed to implement a change in their
salary and that defendant must pay them the amounts of the reductions in their
salaries that occurred over an eight-year period of time. See
Deasey
,
readily apparent from the record, in that it is undisputed that plaintiffs waited to file
their action until eight years elapsed following enactment of the fiscal 2010 Salary
Reduction Laws and all subsequent enactments. See
Tillman
,
of plaintiffs’ delay in filing the action.
Tillman
,
agreed to, acquiesced in, and voted for the Salary Reduction Laws, plaintiffs cannot now be allowed to challenge the reductions in their salaries during their previous *17 terms in office. We find that the defense of laches bars plaintiffs’ mandamus counts for their disputed salaries. Because bars plaintiffs’ mandamus counts, we do not need to reach the circuit court’s findings that the affirmative defenses of waiver and statute of limitations lacked merit or that plaintiffs’ request for cross-relief on behalf of the nonparty legislators lacked merit. Further, we vacate the circuit court’s orders finding that the Legislative Salary Clause prohibits mid-term changes in legislators’ salaries during their terms in office, finding the Salary Reduction Laws unconstitutional, and granting plaintiffs’ mandamus relief in the amounts of $71,507.43 for Noland and $104,412.93 for Clayborne. Judgment is entered for the defendant. Circuit court judgment reversed in part and vacated in part. JUSTICE HOLDER WHITE took no part in the consideration or decision of
this case.