State lawmakers who voted to reject pay raises violated the law, judge rules

Two former lawmakers seek back pay, likely opening legal door for others

SPRINGFIELD — Every lawmaker who served in the General Assembly between 2009 and 2018 might be entitled to back pay, a Cook County judge decided. Former governors and other state office holders might also qualify for lost wages.

Circuit Court Judge Franklin Valderrama ruled legislators violated the state’s governing document by approving laws that froze cost-of-living increases and implemented furlough days for themselves and state office holders for nearly a decade.

It was unconstitutional, he decided, because the laws altered wages during terms for which the lawmakers were elected.

The ruling, which could be an unexpected drag on the state’s finances, is a victory for two former senators — Democrats Michael Noland, from Elgin, and James Clayborne, Jr., from Belleville — who sued the state seeking lost wages.

“The purpose of the lawsuit we filed was to protect and vindicate the independence of each legislator of the General Assembly,” Noland and Clayborne said in a statement. “… It is our hope that the Circuit Court decision will be followed and the impacted legislators will be paid what they are due.”

The statement was distributed by their attorney, Michael Scotti III from the Chicago-based firm Roetzell & Andress. Noland is now a judge in Kane County and Clayborne is an attorney.

Their case could be consequential. While Valderrama did not order Comptroller Susana Mendoza to issue back pay to the former senators, he did leave the option for Noland and Clayborne to take further action to seek state funds.

Potentially, those lost wages could be paid out to all members of the General Assembly who were affected by the statutes the judge deemed unconstitutional — the cost-of-living freeze, effective from July 2009 through June 2018, and the furlough days, effective from 2009 through 2013, according to the ruling issued July 2.

And because lawmakers’ pensions are calculated based on salary, any distribution of back pay would impact pension benefits as well, said Kent Redfield, emeritus professor of political science at the University of Illinois Springfield.

“(The case) perfectly illustrates why voters don’t trust politicians,” Mendoza said in a statement. “… This is another sad week for Illinois taxpayers.”

A lawmaker’s base-pay had been $67,836, until it rose by $1,600 at the beginning of this month after the first cost-of-living increase since 2008 went into effect.

The lawsuit could also impact former governors and constitutional officers.

“I think if you read the Executive Article the same way the trial judge reads the Legislative Article (of the Constitution), every statewide elected officer will also be entitled to this money,” said Charlie Wheeler said, director of the Public Affairs Reporting program at the University of Illinois Springfield and a former bureau chief for the Chicago Sun-Times.

Valderrama based his ruling on a section of the state’s governing document that mandates “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.” Similar language exists for those in the executive branch.

When members of the General Assembly voted over the past decade to prevent cost-of-living increases from taking effect, it also affected the wages of the governor, lieutenant governor, attorney general, secretary of state, comptroller and treasurer.

Ann Lousin, a constitutional law professor at the John Marshall Law School in Chicago who helped write Illinois’ governing document, said a legal door could be left open for former constitutional officers to seek back pay as well.

Cost of living adjustments were the genesis of an impartial panel of 12 volunteers, called the Compensation Review Board, created in 1984 to advise on salary increases.

“It rose out of the Legislature’s political difficulty of setting its own salary,” Redfield said. “They tried to, to a certain extent, hide behind the Compensation Review Board.”

Legislators abolished it in 2009, but preserved one of its recommendations — an annual, automatic cost-of-living wage increase at the rate of inflation.

Noland and Clayborne voted to freeze the cost-of-living bump in 2012. At the time, Noland said in a caucus statement that because “most working families in Illinois are not seeing raises this year … we shouldn’t either.” Clayborne called “rejecting this pay raise … the right thing to do.”

But Valderrama ruled that preventing those wage adjustments from taking effect was unconstitutional.

“It is undisputed that the effect of the statutes was to alter or change the salaries of the members of the General Assembly during their term in office,” he wrote in the opinion.

That same rationale applies to the mandatory furlough days legislators instituted for four years — a kind of “political theater,” Redfield said, wherein members of the General Assembly mandated they take self-imposed leaves of absence to cut costs.

Lousin said it is possible for members of the General Assembly to forgo their cost-of-living adjustments while adhering to the confines of Illinois’ Constitution.

“They could pass a resolution asking each member of their caucuses to voluntarily give up the COLAs by returning the money back to the state,” she said. “It would be constitutional because it’s not a statute compelling them, but instead the heads of the caucuses asking their members to return what would be the COLAs as a donation back to the state.”

The key, Julie Roin said, would be for legislators not to pass a statute mandating members take action that is effective in the middle of the term to which they are elected. Roin is a professor at the University of Chicago Law School.

Officials at Attorney General Kwame Raoul’s office have until Aug. 2 to decide how they want to respond to Valderrama’s ruling. A spokesperson said, “We are reviewing the decision.”

“I strongly oppose Noland’s shameless money-grab and will fight it, either through an appeal, or in this court as the remaining counts proceed,” Mendoza said in a statement. “We will work with Attorney General Kwame Raoul’s office to review this week’s ruling and our legal options.”

The judge’s ruling was on only some of the counts included in the lawsuit. The next hearing in the case is scheduled for Aug. 7.