ELECTRONICALLY FILED .

6/1/2017 2:44PM
2017-CH-07762
CALENDAR: 03
PAGE 1 of 15
CIRCUIT COURT OF
IN THE CIRCUIT COURT OF COOK COUNTY LLI~ COUNTY, ILLINOIS
' ~:'CtiANCERY DIVISION
COUNTY DEPARTMENT, CHANCERY DIV SIO~LERK DOROTHY BROWN

MICHAEL NOLAND, in his official capacity as )

a former member of the Illinois Senate, )
)
Plaintiff, ) Case No.:
)
v. )
)
SUSAN MENDOZA, in her official capacity as )
Comptroller of the State of Illinois,
)
)
Defendant.
)

COMPLAINT FOR A DECLARATORY

JUDGMENT AND A WRIT OF MANDAMUS

Plaintiff, Michael Noland, suing in his official capacity as a former member of the Illinois

Senate, by and through his attorney Michael J. Scotti III, Special Assistant Attorney General, and

Roetzel & Andress LPA, and for his Complaint against Susan Mendoza, in her official capacity

as Comptroller ofthe State of Illinois, states as follows:

NATURE OF THE ACTION

1. Plaintiff, Michael Noland ("Noland"), suing in his official capacity as a former

member of the Illinois Senate, was a member of the Illinois Senate from 2007 to 20 l 7.

2. The Illinois Constitution prohibits mid-term manipulation of state legislators'

salaries for personal or political gain. The Illinois Constitution of 1970 expressly - and

unequivocally- prohibits any "changes" to the salaries of legislators during their terms of office.

Ill. Const. 1970, art. IV, 11.

3. In violation of this clear constitutional mandate, the Illinois General Assembly

passed eight different bills between 2009 and 2016 that changed Noland's salary by eliminating

mid-term Noland's Cost-of-Living Adjustments ("COLA").

 4. The Illinois General Assembly also violated this clear constitutional mandate by

passing five different bills between 2009 and 2016 that changed Noland's salary by imposing

mid-term furlough days that reduced his pay.

5. Noland therefore seeks in this action: (i) a declaration that the bills imposing

furlough days mid-term violate the Illinois Constitution; (ii) a declaration that the bills

eliminating COLAs mid-term violate the Illinois Constitution; (iii) an order enjoining

Comptroller Mendoza from enforcing these unconstitutional bills; and (iv) issuance of a writ of

mandamus ordering Comptroller Mendoza to remedy those constitutional violations by paying

,,~~,. -~,-----,,, Noland and all others impacted by the unconstitutional conduct the salaries to which they are

entitled.

JURISDICTION AND VENUE

6. Jurisdiction is proper pursuant to Section 2-701 of the Illinois Code of Civil

Procedure, 735 ILCS 5/2-701, because an actual controversy exists between Plaintiff and

Defendant involving the application of the Illinois Constitution of 1970.

I 7. Venue is proper in this judicial district pursuant to 735 ILCS 5/2-101 because the

______ ) Comptroller maintains a governmental office in Cook County. Further, the impact of the

unlawful conduct this Complaint challenges has occurred within this judicial district, as well as

throughout Illinois.

PARTIES

8. Plaintiff, Noland, was a duly elected member of the Illinois Senate representing

the 22nd District from 2007 to January of 2017.

9. Defendant, Susan Mendoza, is the Comptroller of the State of Illinois. Article V,

Section 17 of the Illinois Constitution provides that "the Comptroller, in accordance with the

2
law, shall maintain the State's central fiscal accounts and order payments into and out of the

funds held by the Treasurer." As Comptroller, Mendoza is responsible for payment of the

compensation due to members of the General Assembly. Comptroller Mendoza is sued in her

official capacity only.

ILLINOIS SUPREME COURT RULE 19

10. This Complaint challenges the constitutionality ofprovisions ofthe Illinois Code.

Accordingly, Plaintiffs will provide notice of this Complaint to the State pursuant to Illinois

Supreme Court Rule 19.

RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS

11. Article IV, 11 of the Illinois Constitution of 1970 provides:

SECTION 11. COMPENSATION AND ALLOWANCES

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.

12. Article V, 17 of the Illinois Constitution of 1970 provides:

SECTION 17. COMPTROLLER- DUTIES

The Comptroller, in accordance with law, shall maintain the State's central fiscal
accounts, and order payments into and out of the funds held by the Treasurer.

13. Section 1 of the General Assembly Compensation Act, 25 ILCS 115/1, provides

in relevant part that legislators' salaries shall be paid in "12 equal monthly installments."

14. In 1990, the Compensation Review Act (25 ILCS 120/1, et seq.) conferred upon

the Compensation Review Board the authority to determine compensation for, among others, the

members of the Illinois General Assembly. The Compensation Review Board submitted in 1990

a report to the General Assembly providing for automatic COLA increases for legislators. On

July 13, 1990, the 86th General Assembly adopted Senate Joint Resolution 192. In accordance

3
with the provisions of the Compensation Review Act, Senate Joint Resolution 192 approved

providing a COLA salary adjustment on July l of each year for certain public officials, including

members ofthe General Assembly.

FACTUAL BACKGROUND

I. Noland's Terms of Office.

15. Article 4, 2(a) of the of the Illinois Constitution of 1970 provides for staggered

elections for state senators, with each Senate district electing its members to serve two four-year

terms and one two-year term each decade.

16. Noland was elected to three successive terms as Illinois Senator, as follows: a

four-year term from January 2007 to January 2011, a two-year term from January 2011 to

January 2013, and a four-year term from January 2013 to January 2017. Noland did not run for

reelection to the Illinois Senate in 2016 and is no longer a member ofthe General Assembly.

II. The General Assembly Unconstitutionally Changed Noland's Salary by Eliminating

His COLA.

17. On July 13, 1990, the 86th General Assembly adopted Senate Joint Resolution

192. That resolution approved, inter alia, providing a COLA salary adjustment on July I of each

year for public officials, including members of the General Assembly. As provided by law

pursuant to Senate Joint Resolution 192, Noland was entitled to the COLA payment as part of his

salary as a member of the legislature for the entire duration of his service.

18. Noland only received the COLA salary payment to which he was entitled from

July of2007 through June of2009.

19. The reason Noland received no further COLA salary payments was because in

2009 the Illinois General Assembly passed the first of a series of Public Acts that changed

Noland's salary by eliminating the COLA mid-term.

4
 20. In 2009, the General Assembly enacted Public Act 96-800 (codified in relevant

part at 25 ILCS 120/5.6), which eliminated the COLA that Noland and the other affected persons

were entided to for the fiscal year running from July 1, 2009 to June 30, 2010.

21. Public Act 96-800 states in relevant part:

FY 10 COLA's prohibited. Notwithstanding any former or current provision of this

Act, any other law, any report of the Compensation Review Board, or any resolution
of the General Assembly to the contrary, members of the General Assembly, State's
attorneys, other than the county supplement, the elected constitutional officers of
State government, and certain appointed officers of State government, including
members of State departments, agencies, boards, and commissions whose annual
compensation was recommended or determined by the Compensation Review Board,
are prohibited from receiving and shall not receive 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. That cost of living adjustment shall apply again in the fiscal
year beginning July 1, 2010 and thereafter.
(Source: P.A. 96-800, eff. 10-30-09.)

22. Public Act 96-800, which was enacted in 2009 and eliminated the COLA for the

fiscal year beginning July 1, 2009, made a change in Noland's salary that took effect

immediately and entirely within Noland's four-year term of office running from January 2007 to

January 20 11.

23. Public Act 96-800 therefore violates Article IV, Section 11 of the Illinois

Constitution because it changed Noland's salary during the term for which he was elected.

24. Every year from 2010 through 2016, the Illinois General Assembly passed a bill

eliminating the COLA salary payment for a one-year period for each successive fiscal year.

These bills were essentially the same as Public Act 96-800, except for changing the fiscal year

for which the COLA elimination would apply, and except that certain of the bills did not contain

a last sentence similar to that of Public Act 96-800. (Attached as Exhibits A through H and

5
 incorporated herein is the relevant text of each of the Public Acts that unconstitutionally

eliminated Noland's COLA.)

25. Below is a chart that sets forth each of the relevant statutes that eliminated

Noland's COLA, each statute's effective dates, and whether the change in Noland's salary

occurred entirely within one of his terms in office, or whether it fell for six months within an old

term of office and for six month in a new term of office.

STATUTE EFFECTIVE NOLAND'S MID-TERM EFFECT

DATES TERM(S)
IN OFFICE
-~ ----,
25 ILCS 120/5.6 7/1/09-6/30/10 Jan. 2007 - Jan. 20 11 Mid-Term Change During
Existing 4 Year Term
: (P.A. 96-800)
i
0
[.lJ
-l ! 25 ILCS 120/5.7 711/10- 6/30111 Jan. 2007 -Jan. 20 II; Mid-Term Change For
U:~N i The First 6 Months;
>-~IQII) (P.A. 96-0958) Jan.20I1-Jan.2013
-l;r---.
-l r-- ..... Second Six Months Part
< .. cr
uN::t-.o
o of a New Term in Office
:z!::y[.l.J.
o=r--o.
~s~~~ 25 ILCS I20/5.8 7/1/Il- 6/30/12 Jan. 20 II -Jan. 20 I3 Mid-Term Change During
f-\a Existing 2 Year Term
u
[.lJ . (P.A. 97-007I)
-l
[.lJ
I

: 25 ILCS 120/5.9 7/1/I2- 6/30/13 Jan. 2011- Jan. 20I3; Mid-Term Change For
Jan. 2013- Jan. 20I7 The First 6 Months;
(P.A. 97-07I8)
Second Six Months Part
of a New Term in Office

25 ILCS 120/6.1 7/1/13-6/30114 Jan. 20I3- Jan. 20I7 Mid-Term Change During
(P.A. 98-0030) Existing 4 Year Term

25 ILCS 120/6.2 7/I/I4- 6/30/I5 Jan. 20I3- Jan. 20I7 Mid-Term Change During
Existing 4 Year Term
(P.A. 98-0682)

25 ILCS 120/6.3 7/1/15-6/30/16 Jan. 20I3- Jan. 20I7 Mid-Term Change During
(P.A. 99-0355) Existing 4 Year Term

25 ILCS 120/6.4 7/1/16-6/30/17 Jan. 2013 -Jan. 2017 Mid-Term Change For
(P.A. 99-0523) The First 6 Months

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 26. As the chart above shows, the COLA eliminations for fiscal years 2010, 2012,

2014, 2015, and 2016 fell entirely within one term for which Noland was elected. The COLA

elimination for fiscal year 2017 only effected Noland for his last six months in office, from July

of2016 to January of2017.

27. The COLA eliminations for fiscal years 2011 and 2013 fell for six months within

Noland's old term of office and for six month in a new term of office for Noland. However,

because the relevant statutes (25 ILCS 120/5.7 and 25 ILCS 120/5.9) unconstitutionally change

Noland's salary, they are void ab initio in their entirety. Thus, Noland is entitled to receive his

- ------ , full COLA increases for fiscal years 2011 and 2013.

28. Noland is therefore entitled to receive his full COLA salary adjustments for the

period from July of2009 to January of2017.

lll. The General Assembly Unconstitutionally Changed Noland's Salary by Mandating

Unpaid Furlough Days.

29. In 2009, the General Assembly enacted Public Act 96-45 (codified in relevant

part at 25 ILCS 115/1.5), which mandated that Noland and every other member of the General

' Assembly were required to forfeit 12 days of compensation for the fiscal year running from July

1, 2009 to June 30, 2010.

30. Public Act 96-45 states in relevant part:

Fiscal year 2010 compensation. During the fiscal year beginning on July I, 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 year. For
purposes of this Section, annual compensation includes compensation paid to each
member by the State for one year of service pursuant to Section 1, except any payments
made for mileage and allowances for travel and meals. The forfeiture required by this
Section is not considered a change in salary and shall not impact pension or other benefits
provided to members of the General Assembly.
(Source: P.A. 96-45, eff. 7-15-09.)

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 31. Pursuant to Public Act 96-45, the Comptroller reduced Noland's salary for fiscal

year 20 I 0 by twelve days of compensation.

32. Public Act 96-45, which was enacted in 2009 and mandated 12 furlough days for

the fiscal year beginning July 1, 2009, made a change in Noland's salary that took effect entirely

within Noland's four-year term of office running from January 2007 to January 2011.

33. Contrary to the General Assembly's self-serving statement that "forfeiture

required by this Section is not considered a change in salary", the requirement for Noland to give

up 12 days of compensation did change his salary for each of the years this requirement was in

place.

34. Public Act 96-45 therefore violates Article IV, Section 11 of the Illinois

Constitution because it changed Noland's salary during the term for which he was elected.

35. Every year from 2009 through 2013, the Illinois General Assembly passed a bill

mandating either six or twelve furlough days for Noland and every other member of the General

. Assembly for a one year period for each successive fiscal year. (Attached as Exhibit I and Exs.
i
i B through E and incorporated herein is the relevant text of each of the Public Acts that
I

----) unconstitutionally mandated furlough days for Noland.)

36. Below is a chart that sets forth each of the relevant statutes that wrongfully

mandated furlough days for Noland, each statute's effective dates, the number of furlough days

that were mandated, and whether the change in Noland's salary occurred entirely within one of

his terms in office, or whether it fell for six months within an old term of office and for six

month in a new term of office.

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 STATUTE EFFECTIVE NOLAND'S NUMBER OF MID-TERM
DATES TERM(S) FURLOUGH EFFECT
IN OFFICE DAYS
25 ILCS 115/1.5 711109- 6/30/10 Jan. 2007 - Jan. 2011 12 days- One Mid-Term
(P.A. 96-0045) Per Month for Change During
the Fiscal Year Existing 4 Year
Term
25 ILCS 115/1.6 7/l/1 0- 6/30/11 Jan. 2007- Jan. 2011 6 Days-One Mid-Term
(P.A. 96-0958) Per Month for Change During
the First Six Existing 4 Year
Months of the Term
Fiscal Year
25 ILCS 115/1.7 7/1111 - 6/30/12 Jan. 2011- Jan. 2013 12 Days- One Mid-Term
(P .A. 97-0071) Per Month for Change During
the Fiscal Year Existing 2 Year
,,
Term
25 ILCS 115/1.8 7/l/12- 6/30113 Jan. 2011- Jan. 2013 6Days-One Mid-Term
i (P.A. 97-0718) Per Month for Change During
the First Six Existing 2 Year
Months of the Term
: Fiscal Year
I 25 ILCS 115/1.9 7/1/13-6/13/14 Jan. 2013- Jan. 2017 12 Days- One Mid-Term
, (P.A. 98-0030) Per Month for Change During
the Fiscal Year Existing 4 Year
I
Term

37. As the chart above shows, the mandated furlough days for fiscal years 2010

through 2014 fell entirely within one term for which Noland was elected. Noland is therefore

entitled to receive the compensation that he was required to forfeit due to the furlough days.

38. Between 2009 and 2014, the Comptroller wrongfully reduced Noland's salary by

forty-eight days of compensation, in violation of Article IV, Section 11 of the Illinois

Constitution.

39. Noland is entitled to receive reimbursement of the forty-eight days of

compensation that was wrongfully withheld from 2009 to 2014.

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 COUNT I
Declaratory Judgment- Violation of the Illinois Constitution
By Eliminating the COLA Payments

40. Noland re-asserts andre-alleges paragraphs I through 39 as if fully recited herein.

41. This Court should declare that the Comptroller's actions in withholding Noland's

COLA increases from July of 2009 to January of 2017 constitute a violation of the Illinois

Constitution.

42. The Illinois Constitution provides that 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.

43. COLA increases for legislators are established "as provided by law" by Senate

Joint Resolution 192 and the General Assembly Compensation Act, 25 ILCS 115/I, et seq.

44. Comptroller violated Article IV, Section 11 of the Illinois Constitution of I970 by

withholding Noland's COLA salary adjustments for the period from July of 2009 to January of

' 2017.

WHEREFORE, Plaintiff, Michael Noland, respectfully requests that this Court enter an

--~-------" Order:
(a) Declaring that lllinois statues 25 ILCS 120/5.6, 25 ILCS I20/5.7, 25 ILCS

120/5.8, 25 ILCS 120/5.9, 25 ILCS I20/6.l, 25 ILCS 120/6.2, 25 ILCS 120/6.3,

and 25 ILCS 120/6.4 violate Article IV, Section II of the Illinois Constitution of

1970 and are therefore void ab initio with respect to all members of the General

Assembly who had their COLA salary adjustments withheld during their terms of

office;

(b) Declaring that Comptroller's actions in withholding Noland's COLA salary

adjustments for the period from July of 2009 to January of 2017 pursuant to 25
IO
 ILCS 120/5.6, 25 ILCS 120/5.7, 25 ILCS 120/5.8, 25 ILCS 120/5.9, 25 ILCS

120/6.1, 25 ILCS 120/6.2, 25 ILCS 120/6.3, and 25 ILCS 120/6.4 changed

Noland's salary in violation of Article IV, Section 11 of the Illinois Constitution

of 1970;

(c) Declaring that Comptroller's actions in withholding payment of COLA salary

adjustments to all other members of the Illinois General Assembly for the period

of July of2009 to January of2017 pursuant to 25 ILCS 120/5.6,25 ILCS 120/5.7,

25 ILCS 120/5.8, 25 ILCS 120/5.9, 25 ILCS 120/6.1, 25 ILCS 120/6.2, 25 ILCS

120/6.3, and 25 ILCS 120/6.4 changed their salary in violation of Article IV,

Section 11 of the Illinois Constitution of 1970;

(d) Enjoining the Comptroller from enforcing these unconstitutional statutes; and

(e) Granting such further relief as is just and equitable.

COUNT II
Declaratory Judgment- Violation of the Illinois Constitution
By Withholding Payment for the Furlough Days

45. Noland re-asserts andre-alleges paragraphs 1 through 44 as if fully recited herein.

46. This Court should declare that the Comptroller's actions in withholding forty-

eight days of compensation from Noland from 2009 to 2014 constitute a violation of the Illinois

Constitution.

47. The Illinois Constitution provides that 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.

48. Comptroller violated Article IV, Section 11 of the Illinois Constitution of 1970 by

withholding forty-eight days of compensation from Noland from 2009 to 2014.

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 WHEREFORE, Plaintiff, Michael Noland, respectfully requests that this Court enter an

Order:

(a) Declaring that Illinois statues 25 ILCS 115/1.5, 25 ILCS 115/1.6, 25 ILCS

115/1.7,25 ILCS 115/1.8, and 25 ILCS 115/1.9 violate Article IV, Section 11 of

the Illinois Constitution of 1970 and are therefore void ab initio;

(b) Declaring that Comptroller's actions in withholding forty-eight days of

compensation from Noland from 2009 to 2014 changed Noland's salary in

violation of Article IV, Section 11 of the Illinois Constitution of 1970;

(c) Declaring that Comptroller's actions in withholding from all other members of the

General Assembly payment for furlough days that were imposed mid-term

changed the salary of all of these other members of the General Assembly in

violation of Article IV, Section 11 of the Illinois Constitution of 1970;

(d) Enjoining the Comptroller from enforcing these unconstitutional statutes; and

(e) Granting such further relief as is just and equitable.

COUNT III
Petition for a Writ of Mandamus Based on the Comptroller's
Violation ofthe Illinois Constitution By Failing to Make the COLA Payments

49. Noland re-asserts andre-alleges paragraphs 1 through 48 as if fully recited herein.

50. Noland is entitled to relief pursuant to the Illinois Constitution and Senate Joint

Resolution 192, which mandate that Noland and all the other members of the General Assembly

are entitled to a COLA that cannot be changed mid-term.

51. The Comptroller has a duty to make payments to Noland and other members of

the General Assembly that include the COLAs.

12
 52. The Comptroller's duty to issue the payments is both non-discretionary, because it

is mandated by the Illinois Constitution and by state law, and ministerial. The Comptroller's

failure to make these payments is in violation ofthe Illinois Constitution and state Jaw.

WHEREFORE, Plaintiff, Michael Noland, respectfully requests the following relief:

(a) That this Court declare that Comptroller has the nondiscretionary duty under the

Illinois Constitution and state law to make the COLA payments to Noland and to

all other members of the Illinois General Assembly whose COLAs were

eliminated mid-term; that Noland and all other members of the Illinois General

Assembly whose COLAs were eliminated mid-term had a clear right to be paid

the COLAs as provided under the Illinois Constitution and state law; and that the

Comptroller had the duty under the Illinois Constitution and state law to comply

with the requested relief;

(b) That this Court enter a Writ of Mandamus ordering and directing the Comptroller

to pay Noland - and all the other members of the Illinois General Assembly

whose COLAs were eliminated mid-term- the COLAs which have been withheld

and to which they are entitled under the Illinois Constitution and state law;

(c) That this Court declare that Comptroller must inform Noland and all other

members of the Illinois General Assembly whose COLAs were eliminated mid-

term that they can choose to opt out of payments of the withheld COLAs, thereby

donating all or some of the withheld COLA payments back to the State of Illinois;

and

(d) That this Court order such other and further relief as the Court shall deem just.

13
 COUNT IV
Petition for a Write of Mandamus Based on the
Comptroller's Withholding Payment for the Furlough Days

53. Noland re-asserts andre-alleges paragraphs 1 through 53 as if fully recited herein.

54. Noland is entitled to relief pursuant to the Illinois Constitution and the General

Assembly Compensation Act, which mandate that Noland and the other members of the General

Assembly are entitled to a salary that cannot be changed mid-term.

55. The Comptroller has a duty to make payments to Noland and other members of

the General Assembly that include payment for the mid-term furlough days that were imposed.

56. The Comptroller's duty to issue the payments is both non-discretionary, because it

is mandated by the Illinois Constitution and by state law, and ministerial. The Comptroller's

failure to make these payments is in violation of the Illinois Constitution and state law.

WHEREFORE, Plaintiff, Michael Noland, respectfully request the following relief:

(a) That this Court declare that Comptroller has the nondiscretionary duty under the

Illinois Constitution and state law to make payments to Noland and to all other

members of the Illinois General Assembly who had furlough days imposed mid-

term; that Noland and all other members of the Illinois General Assembly who

had furlough days imposed mid-term had a clear right to be paid for the furlough

days as provided under the Illinois Constitution and state law; and that the

Comptroller had the duty under the Illinois Constitution and state law to comply

with the requested relief;

(b) That this Court enter a Writ of Mandamus ordering and directing the Comptroller

to pay Noland - and all the other members of the Illinois General Assembly who

14
 had furlough days imposed mid-term -the payments for the furlough days, which

they are entitled to under the Illinois Constitution and state law;

(c) That this Court declare that Comptroller must inform Noland and all other

members of the Illinois General Assembly who had furlough days imposed mid-

term that they can choose to opt out of payments for the furlough days, thereby

donating some or all of the payments for the furlough days back to the State of

Illinois; and

(d) That this Court order such other and further relief as the Court shall deem just.

Respectfully submitted,
Michael Noland

By: s/ Michael J. Scotti III

One ofHis Attorneys

Michael J. Scotti III

Special Assistant Attorney General
ROETZEL & ANDRESS LPA
20 South Clark Street, Suite 300
Chicago, IL 60603
Phone: (312) 580-1200
Fax: (312) 580-1201
[email protected]

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NOLAND MICHAEL v. SUSAN MENDOZA, COMPTROLLE, Docket No. 2017-CH-07762 (Ill. Cir. Ct. June 01, 2017), Court Docket

General Information

Court Illinois Circuit Court, Cook County, Chancery Division

Docket Number 2017-CH-07762

Status OPEN

2017 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
// PAGE 16