SPRINGFIELD — Illinois’ chief fiscal officer has a “clear duty” to pay lost wages to all members of the General Assembly affected by two statutes a Cook County judge ruled were unconstitutional, the attorney for two former Democratic state senators wrote in a court filing.

One law freezing cost-of-living increases and another implementing furlough days violated Illinois’ governing document because they altered legislators’ wages during terms for which they were elected, Circuit Court Judge Franklin Valderrama decided in July.

Now, two former lawmakers who voted in favor of both statutes — Michael Noland, of Elgin; and James Clayborne, Jr., of Belleville — are asking the judge to compel Comptroller Susana Mendoza to issue back pay. If successful, the order could cost Illinois just less than $13 million.

Noland is now a judge in Kane County. Clayborne is a privately-practicing lawyer.

Michael Scotti III, their attorney from the Chicago-based firm Roetzell & Andress, sent a letter in late July asking the comptroller to begin releasing payments. It went unanswered, he wrote in a court document.

In the letter, he argued that because the two laws were deemed to violate Illinois’ Constitution, “the comptroller is obligated to pay the members of the General Assembly during the relevant years, including [Noland and Clayborne], the salary unconstitutionally withheld for the furlough days and the COLAs.”

The former was effective from 2009-13 and the latter from July 2009 through June 2018.

A legislator’s base pay was $67,836 until this year, when the General Assembly allowed the first cost-of-living increase to go into effect since 2008. That salary increased by $1,600.

The attorney general’s office argued in a court document last month, in part, Mendoza should not have to pay Noland, Clayborne or any other lawmaker back pay because next fiscal year’s budgeting process is complete and no funding has been allocated for that expense.

“Contrary to statements that have been made in the press, the comptroller can — and in fact is obligated to — make these payments regardless of whether the General Assembly has specifically appropriated money for this purpose,” according to the letter Scotti sent.

The state also is arguing Noland and Clayborne’s voting history — each “voted repeatedly in support” of the pay freezes and furlough days, according to court documents — absolves Mendoza of the need to pay the former legislators.

The two supported the laws Valderrama ruled were unconstitutional “fourteen separate times over the course of nine years,” the document states.

“I think the arguments have just begun over whether legislators can make big election-year speeches about voting to turn down a raise, issue re-election news releases touting their selflessness in turning down a raise; then years later shamelessly file a lawsuit to force taxpayers to retroactively pay them $10 million for raises they turned down to get re-elected,” Mendoza said in an emailed statement. “These hypocrites don’t deserve a penny.”

The next court hearing is scheduled for Oct. 15.

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