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Winokur v. Bakalis

OPINION FILED MAY 30, 1980.

MARSHALL E. WINOKUR, PLAINTIFF-APPELLANT,

v.

MICHAEL J. BAKALIS ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This appeal arises out of a taxpayer's suit challenging the constitutionality of two State statutes involving increases in the salaries payable to the members of the 81st General Assembly and seeking an injunction enjoining the disbursement of public funds for payment of the salaries. The trial court upheld the constitutionality of the statutes and dismissed the action. The sole issue on review is whether article IV, section 11 of the Illinois Constitution of 1970 prohibits a change in legislative salaries from taking effect during a legislative term for which the members have been elected, but have not taken office, as of the date of passage of the law. We affirm the judgment of the trial court. The facts relevant to this issue follow.

On November 7, 1978, a general election was held to elect the members of the 81st General Assembly. The term of office of that body commenced on January 10, 1979. On November 30, 1978, a bill designated as Public Act 80-1470 *fn1 was passed by the 80th General Assembly, which amended chapter 63, section 14 of the Illinois Revised Statutes by increasing the salaries of the members of the 81st General Assembly, and all subsequent General Assemblies in the amount of $8,000 per year. On January 8, 1979, another bill designated as Public Act 80-4th S.S. — 1 *fn2 was enacted which further amended chapter 63, section 14 of the Illinois Revised Statutes by reducing the previously approved legislative salary increase to the extent of $3,000 during the first year of the term of the 81st General Assembly.

Thereafter, plaintiff, Marshall E. Winokur, filed a taxpayer's suit against defendants Michael J. Bakalis, Comptroller of the State of Illinois, and Donald R. Smith, Treasurer of the State of Illinois, challenging the constitutionality of the statutes in question. The complaint alleged, in essence, that the statutes are unconstitutional as violative of article IV, section 11 of the Illinois Constitution of 1970 which provides as follows:

"A member [of the General Assembly] 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."

Plaintiff prayed for: (1) a permanent injunction enjoining the disbursement of public funds for payment of the salaries; (2) a temporary injunction ordering the sequestration of those funds in a separate interest-bearing account to be held under the jurisdiction of the court during the pendency of this litigation; and (3) an award for costs of suit and attorneys' fees.

In response, defendants filed a motion to dismiss and a memorandum in support thereof asserting that (1) the statutes are valid and constitutional as a matter of law; (2) the class action is unnecessary and inappropriate in this case since a judgment for plaintiff will result in a binding judgment on defendants regardless of whether a class exists; (3) the creation of a fund is inappropriate, unnecessary, and beyond the power of the court to grant; and (4) the State of Illinois is immune from an award of costs and attorneys' fees.

In addition, several members of the 80th General Assembly *fn3 joined as amici curiae in support of the validity of the challenged legislation. They argued that the statutes are constitutional based on: (1) the explicit language of the Constitution; (2) the history of the constitutional convention and of prior Illinois Constitutions; (3) case law; (4) principles adopted throughout the United States; and (5) public policy.

Subsequent to the filing of various reply memoranda by all parties, the trial court granted defendants' motion to dismiss and upheld the constitutionality of the statutes under article IV, section 11 of the Illinois Constitution of 1970. Plaintiff appeals that judgment.

OPINION

Initially, we must determine whether the cause of action is moot since a portion of the funds that constitute the injunctive relief prayed for has been spent and therefore no longer available. In his complaint, plaintiff prayed for an injunction enjoining the disbursement of public funds for payment of the legislative salaries in question. During oral argument, both plaintiff and defendant conceded the issue of mootness as to the appropriation made prior to June 30, 1979; however, they argued that the current appropriation can still be challenged. On the other hand, amici curiae asserted that the cause of action is moot since the past as well as current appropriations have been spent, and because plaintiff failed to attack the specific appropriation in his pleadings. We disagree.

"A case can become moot when, pending the decision on appeal, events occur which render it impossible for the reviewing court to grant effectual relief to either party." (Bluthardt v. Breslin (1979), 74 Ill.2d 246, 250, 384 N.E.2d 1309, 1311.) Upon careful examination of the arguments presented by all parties, we believe that the unavailability of the appropriations made prior to June 30, 1979, does not render moot this action since the current appropriation can still be challenged. Nor does the absence of a specific designation in the pleadings have any bearing on this issue. We find, therefore, that this cause of action is not moot since there remain funds available for the granting of effectual relief to the parties.

Next, we must determine whether article IV, section 11 of the Illinois Constitution of 1970 prohibits a change in legislative salaries from taking effect during a term for which the members have been elected, but have not taken office, as of the date of passage of the law. Plaintiff contends that based upon the plain meaning of the statute, a general election must intervene between the adoption of the law increasing salaries and the date upon which it takes effect. Defendants and amici curiae argue that the plain meaning of the statute is to merely prohibit the law increasing salaries from taking effect during the term in which it is enacted; consequently, an intervening election is not required. We accept this interpretation of the statute.

In support of their position, defendants and amici rely heavily upon the case of Foreman v. People ex rel. McEwen (1904), 209 Ill. 567, 71 N.E. 35, wherein a claim was made for additional compensation by relator, a circuit court judge who was elected to fill the vacancy in a six-year term of office which began in November 1899 and expired in December 1905. At the time of his election in November 1902, the salary of the judge of the court was $7,000 per year. Relator argued that he was entitled to an additional $3,000, so as to make his salary equal to $10,000, by virtue of an act in force July 1, 1901, which provided as follows:

"`That the judges of the circuit and superior courts> of Cook county hereafter to be elected shall each be paid by the said county, in addition to the salaries which may be paid to them from the State treasury, such further compensation as will make their respective salaries amount to the ...


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