NO. 4-05-0765 Filed 8/9/06 

 IN THE APPELLATE COURT 

 OF ILLINOIS 

 FOURTH DISTRICT 

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. 

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Appeal from 

Circuit Court of 

Sangamon County 

No. 04MR514 

Honorable 

John W. Belz, 

Judge Presiding. 

_________________________________________________________________ 

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 
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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, 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. 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. 
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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 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 
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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 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, 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, 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). 
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"[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 
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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 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, 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 resolution 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. 
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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 circumstances is insufficient to establish facial invalidity; a statute 

is facially unconstitutional only if the statute is constitutional 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 challenge 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 plaintiff succeeds in an as-applied claim, he may enjoin the objectionable 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 prohibition on diminishment of judicial salaries, there are no judges in 

Illinois to whom section 5.5 could be validly applied. Accordingly, insofar as Public Act 92-607 applies to judges, it is void 
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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 singlesubject 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 
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as to plaintiff. 

b. Constitutionality of Public Act 92-607 

With Respect to State's Attorneys 

Plaintiff argues that Public Act 92-607 is unconstitutional 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 appointed 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). 
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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 officials not county officers under the language of the constitution). 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 declaring 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. 
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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 established a clear right to relief, dismissal of his mandamus petition 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 payment. 15 ILCS 405/9(b) (West 2002). In most 

instances the requisite authority is found in 
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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 authorization 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-
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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 Governor'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 
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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 Constitution 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.