Hooker v. Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago , 378 Ill. Dec. 416 ( 2013 )

2013 IL 114811
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 114811)
DANIEL HOOKER et al., Appellees, v. THE RETIREMENT
BOARD OF THE FIREMEN’S ANNUITY AND BENEFIT FUND
OF CHICAGO, Appellant.
Opinion filed December 19, 2013.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Thomas, and
Karmeier concurred in the judgment and opinion.
Justice Theis dissented, with opinion, joined by Justice Kilbride.
OPINION
¶1 Section 6-140(a) of the Illinois Pension Code (40 ILCS 5/6-140
(West 2008)) defines the terms of the annuity available to a widow of
a fireman whose death was the result of a performance of an act of
duty. The primary issue presented in this case is whether a form of
fireman’s compensation known as “duty availability pay” must be
included in the calculation of that annuity, even if the fireman never
received such compensation while working as a firefighter. The
appellate court concluded that it must. 2012 IL App (1st) 111625. For
the reasons that follow, we reverse.
¶2 Background
¶3 Plaintiffs Elaine Hooker and June Murphy were married to
Chicago firefighters. Elaine’s husband, Michael Hooker, joined the
Chicago fire department in 1967. He suffered a duty-related injury
and was awarded a duty disability benefit in 1989. Michael died in
2000. June’s husband, James Murphy, joined the Chicago fire
department in 1966. He also suffered a duty-related injury and was
awarded a duty disability benefit in 1985. James died in 1998.
¶4 Following the deaths of their husbands, plaintiffs were both
granted an ordinary widow’s pension by the defendant, the
Retirement Board of the Firemen’s Annuity and Retirement Benefit
Fund of Chicago (Board), pursuant to section 6-141.1 of the Pension
Code (40 ILCS 5/6-141.1 (West 2008)). In February of 2003,
plaintiffs filed a complaint for administrative review of that decision
in the circuit court of Cook County.
¶5 In their complaint, plaintiffs alleged that they were entitled, under
section 6-140(a) of the Pension Code (40 ILCS 5/6-140(a) (West
2008)), to the annuity which is awarded to the widow of a fireman
who died in the line of duty. Relying on Bertucci v. Retirement Board
of the Firemen’s Annuity & Benefit Fund, 351 Ill. App. 3d 368
(2004), the circuit court entered an agreed order that plaintiffs were
entitled to the section 6-140(a) annuity because their husbands’ duty-
related injuries were permanent and had prevented them from ever
returning to active duty. The cause was then remanded to the Board
for a calculation of benefits due to plaintiffs. The Board awarded
plaintiffs section 6-140(a) benefits retroactive to the date of the
Bertucci decision.
¶6 In September of 2006, the circuit court granted plaintiffs leave to
file a three-count, first amended complaint. Count I of the complaint
sought administrative review of the Board’s decision on remand and
alleged that plaintiffs were entitled to benefits retroactive to the date
of their husbands’ deaths, rather than the date of the Bertucci
decision. Count II sought certification of the class of all widows
similarly situated.
¶7 Count III raised a different matter. In this count, plaintiffs alleged
that the calculation of their widow’s annuity under section 6-140(a)
had to include a type of fireman’s compensation known as duty
availability pay. Plaintiffs acknowledged that duty availability pay
was not in existence at the time their husbands were firemen and that
neither husband had received such compensation while employed by
the Chicago fire department. Nevertheless, plaintiffs maintained that
the Board was required to include duty availability pay in the
calculation of the annuities which they received under section 6-
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140(a). Count III also sought certification of the class of all widows
who were receiving section 6-140(a) annuities but had not had duty
availability pay included in the determination of their benefits.
¶8 The circuit court stayed proceedings on plaintiffs’ amended
complaint. Thereafter, in December of 2007, the court vacated the
Board’s decision from the original order on remand, and directed the
Board to pay plaintiffs benefits retroactive to the date of the death of
each plaintiff’s spouse. The Board appealed that decision and the
appellate court affirmed. See Hooker v. Retirement Board of the
Firemen’s Annuity & Benefit Fund, 391 Ill. App. 3d 129 (2009). The
Board subsequently awarded benefits to plaintiffs retroactive to the
deaths of their husbands, as well as prejudgment and postjudgment
interest.
¶9 Proceedings then went forward on plaintiffs’ amended complaint.
Because plaintiffs had been paid benefits retroactive to the date of
their husbands’ deaths, as well as interest, the circuit court concluded
that count I of plaintiffs’ complaint had been fully resolved and was
moot. The court therefore dismissed count I.
¶ 10 With respect to count II, the court noted that plaintiffs, the named
representatives of the putative class, no longer had a valid cause of
action. Citing to Wheatley v. Board of Education of Township High
School District 205, 99 Ill. 2d 481 (1984), the court determined that,
for this reason, dismissal was required. See id. at 486 (where the
claims of the named representatives “have been resolved, they are not
proper parties who would fairly and adequately protect the interest of
the class they purport to represent”).
¶ 11 On count III, the parties filed cross-motions for summary
judgment. Following argument, the court denied plaintiffs’ motion,
granted the Board’s motion, and declined to certify the class.
Plaintiffs then appealed the grant of the Board’s motion for summary
judgment. The appellate court reversed. 2012 IL App (1st) 111625.
¶ 12 The appellate court concluded that under the language of section
6-111(i) of the Pension Code (40 ILCS 5/6-111(i) (West 2008)), the
Board was required to include duty availability pay in the calculation
of an annuity awarded pursuant to section 6-140(a), even if duty
availability pay was not received by the fireman. The appellate court
also concluded that class certification was appropriate. The appellate
court therefore reversed the judgment of the circuit court and
remanded the cause to the circuit court for calculation of the
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appropriate award of annuities. We granted the Board’s petition for
leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
¶ 13 Analysis
¶ 14 The Board’s Appeal
¶ 15 Summary judgment may be granted when “the pleadings,
depositions, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.”
735 ILCS 5/2-1005(c) (West 2010). The interpretation of a statute,
such as the Pension Code, is a matter of law and thus presents a
matter that is appropriate for summary judgment. Village of Chatham,
Illinois v. County of Sangamon, Illinois, 216 Ill. 2d 402, 433 (2005).
Issues of statutory interpretation and summary judgment rulings are
reviewed de novo. First American Bank Corp. v. Henry, 239 Ill. 2d
511, 515 (2011).
¶ 16 Section 6-140 of the Pension Code defines the terms of the
annuities received by plaintiffs. That provision states, in relevant part:
“The annuity for the widow of a fireman whose death results
from the performance of an act or acts of duty shall be an
amount equal to 50% of the current annual salary attached to
the classified position to which the fireman was certified at
the time of his death and 75% thereof after December 31,
1972.” 40 ILCS 5/6-140(a) (West 2008).
Under section 6-140(a), the annuity is calculated based on “the
current annual salary attached to the classified position to which the
fireman was certified at the time of his death.” Id. This means that the
amount of the annuity does not depend on the deceased fireman’s
actual salary at any time during his career. The amount of the annuity
is instead “flexible, changing to reflect salary changes in the fire
department.” Kozak v. Retirement Board of Firemen’s Annuity &
Benefit Fund, 95 Ill. 2d 211, 215 (1983). Thus, for example, if the fire
department increases the current pay for firemen at the position which
the decedent had attained at the time of his death, the annuity under
section 6-140 will increase, even though the decedent himself never
received the increased pay.
¶ 17 Plaintiffs allege that, in addition to basing the annuity under
section 6-140(a) on the salary attached to “the classified position to
which the fireman was certified at the time of his death,” the annuity
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must also be calculated using a type of compensation known as “duty
availability pay.” According to the parties, duty availability pay was
created in the early 1990s pursuant to a collective-bargaining
agreement between the firefighters’ union and the City of Chicago. It
is currently paid on a quarterly basis and is generally intended to
compensate firefighters for being available for duty. For a number of
years after it was created, duty availability pay was not included in the
calculation of benefits under the Pension Code and, specifically, was
not included in the Code’s definition of “salary.”
¶ 18 In 2004, the Pension Code’s treatment of duty availability pay
changed when section 6-111 of the Code was amended to provide as
follows:
“[T]he salary of a fireman *** shall include any duty
availability pay received by the fireman *** and references in
this Article to the salary attached to or appropriated for the
permanent assigned position or classified career service rank,
grade, or position of the fireman shall be deemed to include
that duty availability pay.” 40 ILCS 5/6-111(i) (West 2008).
Relying on this provision, plaintiffs maintain that duty availability
pay must be included within the meaning of the word “salary” in
section 6-140(a). Plaintiffs emphasize the word “deem” in section 6-
111(i) and argue that “the statutory words ‘deemed to include’
specifically reject” the idea that duty availability pay must be received
by the fireman in order to be included in the calculation of the annuity
under section 6-140(a). Thus, according to plaintiffs, even though
their husbands did not receive duty availability pay, and section 6-
111(i) was not amended until after their deaths, duty availability pay
must still be included in the calculation of their annuities. We
disagree.
¶ 19 Plaintiffs fail to read section 6-111(i) in its entirety. Section 6-
111(i) states that references to the salary attached to the position of a
fireman “shall be deemed to include that duty availability pay.” The
word “that” refers back to the previous language of section 6-111(i)
which states that “salary” includes duty availability pay that has been
“received by the fireman.” Thus, section 6-111(i) simply states that
references elsewhere in the Pension Code to the word “salary” shall
be treated as including duty availability pay received by the fireman.
¶ 20 The appellate court held that section 6-111(i) “clarifies” that
references to the word “salary” must include duty availability pay
even if such pay was never received by the fireman but the court
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provided no explanation as to why the phrase “that duty availability
pay” should refer to anything other than “duty availability pay
received by the fireman.” Indeed, the appellate court effectively added
language to the statute by reading section 6-111(i) as stating that the
word “salary” shall include duty availability pay, “even if it was not
received by the fireman.” This is inappropriate. See, e.g., People v.
Woodard, 175 Ill. 2d 435, 443 (1997) (“the court is not free to depart
from the plain language and meaning of the statute by reading into it
exceptions, limitations, or conditions that the legislature did not
express”).
¶ 21 Further, we note that the appellate court’s interpretation of section
6-111(i) can lead to anomalous results. Duty availability pay is a form
of compensation but it is not salary. Unlike salary, which will always
exist so long as there are firefighters, it is possible that duty
availability pay may not be included in a particular collective-
bargaining agreement. Should that be the case, and if we read section
6-111(i) as stating that the word “salary” must include duty
availability pay even when it has not been received by the fireman, it
would lead to an anomalous situation where individuals such as
plaintiffs would have duty availability pay included in the calculation
of their annuities under section 6-140(a) even though their husbands
did not receive duty availability pay and no current firefighter is
receiving it. We do not think the legislature intended such a result.
¶ 22 Plaintiffs also rely on Collins v. Retirement Board of the
Policemen’s Annuity & Benefit Fund—City of Chicago, 334 Ill. App.
3d 909 (2002). In that case, the appellate court held that a statutory
provision which increased the amount of salary on which a police
officer’s pension is based by including a duty availability allowance
applied to a police officer who had retired while on duty disability
and, therefore, that the officer could take advantage of the provision
by retroactively contributing the appropriate employee contribution
to the pension fund. Because Collins interpreted provisions of the
Pension Code other than those at issue here, the case is inapposite.
¶ 23 Pursuant to the plain language of section 6-111(i), only duty
availability pay received by the fireman is included in the salary
calculation under section 6-140(a). In this case, there is no dispute
that plaintiffs’ husbands did not receive duty availability pay.
Accordingly, the appellate court erred in concluding that summary
judgment should be granted plaintiffs. We reverse the judgment of the
appellate court with respect to count III of plaintiffs’ complaint and
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affirm the judgment of the circuit court granting summary judgment
to the Board.
¶ 24 The appellate court also concluded that class certification was
proper with respect to count III of plaintiffs’ complaint. 2012 IL App
(1st) 111625, ¶¶ 22-33. However, because we have determined that
plaintiffs do not have a valid cause of action under count III, it
necessarily follows that class certification is inappropriate. See, e.g.,
Schlessinger v. Olsen, 86 Ill. 2d 314, 318 (1981) (“no class action can
proceed unless a cause of action is stated”). We therefore reverse that
portion of the appellate court’s judgment which determined that class
certification of count III was appropriate.
¶ 25 Cross-Appeal
¶ 26 Plaintiff Elaine Hooker died in September 2010. In the circuit
court, Elaine’s son, Daniel Hooker, was substituted as special
representative and the case continued. Subsequently, while plaintiffs’
case was before the appellate court, Daniel asked the appellate court
to consider a new issue, specifically, whether a collective-bargaining
agreement between the City of Chicago and the firefighters’ union
which accorded retroactive benefits to firefighters applied to the final
determination of Elaine’s benefits, even though the collective-
bargaining agreement was not ratified until after her death. The
appellate court declined to reach this issue because it had not been
raised in the circuit court. 2012 IL App (1st) 111625, ¶¶ 35-36.
¶ 27 In a cross-appeal, Daniel asks this court to reverse the judgment
of the appellate court and address the merits of the issue. At the same
time, however, Daniel has informed this court that, following the
appellate court’s decision, a separate lawsuit was filed in the circuit
court which alleged that the new collective-bargaining agreement
applied to Elaine; that the circuit court ruled against Elaine’s estate;
and that the matter is now pending in the appellate court. Because a
separate lawsuit has been filed and the matter is currently being
litigated, we decline to reach the merits of the applicability of the new
collective-bargaining agreement. We therefore affirm that portion of
the appellate court judgment which declined to reach this issue.
¶ 28 Finally, both plaintiffs and the Board have filed motions to strike
portions of their opponents’ briefs. Both motions are denied.
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¶ 29 Conclusion
¶ 30 For the foregoing reasons, the judgment of the appellate court is
reversed in part and affirmed in part. The judgment of the circuit
court is affirmed.
¶ 31 Appellate court judgment reversed in part and affirmed in part.
¶ 32 Circuit court judgment affirmed.
¶ 33 JUSTICE THEIS, dissenting:
¶ 34 I respectfully dissent from the majority opinion because I believe
the opinion departs from the plain language of the Pension Code.
Based upon the plain language of the Code, the Board was required
to include duty availability pay as part of the “current annual salary”
in calculating a widow’s duty-related annuity.
¶ 35 It is undisputed that since 1992, the collective-bargaining
agreement between the City of Chicago and the Chicago Firefighters
Union, Local 2, has included compensation known as “duty
availability pay” for all firemen, except certain employees assigned
to platoon duty. The payment amounts are the same for all employees
covered by the labor contract and have increased with every contract
year. For example, in 2004, under the then-existing collective-
bargaining agreement, a fireman received $680 per quarter in duty
availability pay regardless of rank and grade. In 2012, that amount
was increased to $805 per quarter for all ranks and grades. It is further
undisputed that between 1994 and 2004, duty availability pay was not
included in the calculation of a fireman’s salary under the Pension
Code. However, in 2004, the Pension Code was amended to include
duty availability pay in calculating a fireman’s salary. 40 ILCS 5/6-
111(i) (West 2004).
¶ 36 The Board maintains that the widows’ duty-related annuity does
not include duty availability pay because their husbands did not
receive this compensation prior to their deaths. The widows disagree,
arguing that under the unambiguous language of sections 6-140(a)
and 6-111(i) of the Pension Code, their annuity is not based upon
their husbands’ salary but, rather, is based on the current salary for the
positions their husbands attained as firefighters, and that the current
salary for those positions includes duty availability pay. Therefore,
they argue the Board miscalculated their annuities by failing to
include the duty availability pay in that calculation.
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¶ 37 As expressed by the majority, the central issue in this case turns
on the interpretation of the Pension Code. The principles guiding our
review are familiar. The primary objective of statutory construction
is to ascertain and give effect to the legislature’s intent. Chicago
Teachers Union, Local No. 1 v. Board of Education of the City of
Chicago, 2012 IL 112566, ¶ 15. The most reliable indicator of
legislative intent is the language of the statute, given its plain and
ordinary meaning. Roselle Police Pension Board v. Village of Roselle,
232 Ill. 2d 546, 552 (2009). “[O]ne of the fundamental principles of
statutory construction is to view all of the provisions of a statute as a
whole. [Citation.] Words and phrases should not be construed in
isolation, but interpreted in light of other relevant portions of the
statute so that, if possible, no term is rendered superfluous or
meaningless.” Land v. Board of Education of the City of Chicago,
202 Ill. 2d 414, 422 (2002).
¶ 38 We must consider the relevant statutory provisions with these
guiding principles in mind. Section 6-140(a) of the Pension Code
provides in pertinent part:
“The annuity for the widow of a fireman whose death results
from the performance of an act or acts of duty shall be an
amount equal to 50% of the current annual salary attached to
the classified position to which the fireman was certified at
the time of his death and 75% thereof after December 31,
1972.” (Emphasis added.) 40 ILCS 5/6-140(a) (West 2008).
This court long ago construed the words “current annual salary” to
plainly mean that the annuity was based upon the current salary of a
fireman and was flexible, increasing with the changes in their salaries
as provided for under the applicable budget appropriations. Kozak v.
Retirement Board of the Firemen’s Annuity & Benefit Fund, 95 Ill. 2d
211, 215 (1983). As noted by the majority, this court expressly
rejected the notion that the “current” salary meant that the annuity
was based upon the deceased fireman’s salary at the time of his death.
Id. at 216. This court also stated that the General Assembly “was
cognizant of the increased expense of the type of open-ended and
fluctuating public pension benefit it was adopting.” Id. at 218.
¶ 39 Thus, in Kozak, we recognized that widows might receive benefits
greater than their husbands’ salaries at the time of their deaths
(Kozak, 95 Ill. 2d at 220 (“the fact that the legislature treats widows
of firefighters killed in the line of duty more generously than the
beneficiaries of other pension statutes is neither absurd nor
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impossible to understand”)), and recognized that the amount of the
annuity is not dependent upon the deceased firefighter’s salary but,
rather, upon the “current annual salary attached to the classified
position to which the fireman was certified at the time of his death.”
40 ILCS 5/6-140(a) (West 2008). This construction has been
consistently upheld since 1983, and the legislature is presumed to be
aware of judicial decisions interpreting this legislation. Cripe v.
Leiter, 184 Ill. 2d 185, 197-98 (1998). Notably, the Pension Code has
been amended several times since 1983 (see Pub. Act 92-50, § 5 (eff.
July 12, 2001); Pub. Act 93-654, § 5 (eff. Jan. 16, 2004)), and the
legislature has not altered the language of this statute in response to
this court’s holding.
¶ 40 To determine whether the current annual salary of a fireman
includes duty availability pay, we must consider the Pension Code’s
definition of “salary.” Under the statute, “salary” is defined as the
“actual amount of the annual salary attached to the permanent career
service rank held by the fireman.” 40 ILCS 5/6-111(d) (West 2008).
In 2004, the General Assembly expanded on that definition as
follows:
“the salary of a fireman, as calculated for any purpose under
this Article, shall include any duty availability pay received by
the fireman (i) pursuant to a collective bargaining agreement
***, and references in this Article to the salary attached to or
appropriated for the permanent assigned position or classified
career service rank, grade, or position of the fireman shall be
deemed to include that duty availability pay.” (Emphasis
added.) 40 ILCS 5/6-111(i) (West 2008).
Thus, under the Pension Code, prior to 2004, duty availability pay
was not included in the calculation of salary for any purposes under
the Pension Code. However, as of 2004, the legislature has
determined that the salary of a fireman, as calculated for any purpose,
including a widow’s annuity under section 6-140, includes that duty
availability pay received by the fireman pursuant to a collective-
bargaining agreement. 40 ILCS 5/6-111(i) (West 2008).
¶ 41 It is at this point that the majority abandons our rules of statutory
construction. Rather than harmonizing the two relevant statutory
provisions, the majority assumes that we are considering a widow’s
husband’s salary. If we were calculating the widows’ husbands’
salary then I would agree with the majority that duty availability pay
was not received by them and, therefore, would not be included in the
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calculation of their salary. Nevertheless, in the context of calculating
a section 6-140 widow’s duty-related annuity, as explained, the salary
is based on the currently employed firefighter who has attained the
same position as the widow’s husband. Accordingly, the reference to
“the salary of a fireman” in section 6-111(i) is not a reference to the
widow’s husband’s salary but, rather, a currently employed fireman.
¶ 42 Reading the plain language of the Pension Code, and reading the
two statutory provisions in harmony as we must, for purposes of
calculating the widow’s annuity under section 6-140, the current
annual salary of a fireman includes that duty availability pay received
by the fireman under the applicable collective-bargaining agreement.
Whether these particular widows’ husbands received duty availability
pay is of no consequence. By failing to read sections 6-111(i) and 6-
140 as a whole, the majority erroneously concludes that the
legislature intended that the widows’ duty-related annuity calculation
be based on whether their husbands received the compensation as part
of their salary.
¶ 43 Additionally, the majority’s opinion inexplicably omits critical
language in section 6-111(i) which expands the definition of salary
“as calculated for any purpose,” under the Pension Code. (Emphasis
added.) 40 ILCS 5/6-111(i) (West 2008). As we have previously
recognized, the legislature knows how to express a limiting intent
where it so desires. The failure to do so in this statute evinces that it
did not have such intent with respect to the widow’s annuity under
section 6-140. We cannot read that language out of the statute. The
majority’s construction also renders the meaning of “current” in
section 6-140 superfluous, in direct conflict with the principle that we
aim to construe a statute such that no term is rendered meaningless
(Land, 202 Ill. 2d at 402), and is in direct conflict with our long-
standing decision in Kozak.
¶ 44 Moreover, contrary to the majority opinion, under the plain
language of the statute there is no anomaly presented. If the
collective-bargaining agreement no longer provides for duty
availability pay in the future, then based on the express language of
section 6-111(i), duty availability pay will not be included in the
calculation of the current annual salary of a fireman because it will
not have been received by the fireman under the applicable collective-
bargaining agreement. 40 ILCS 5/6-111(i) (West 2008). Rather, the
anomaly is created by the majority’s construction as nothing in the
statute supports a multitiered system for section 6-140 widows’
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annuities based on whether certain compensation was received by
their husbands.
¶ 45 For all of these reasons, I would hold that based upon the plain
language of the Pension Code, the Board was required to include duty
availability pay as part of the “current annual salary” in calculating
the widows’ duty related annuity.
¶ 46 JUSTICE KILBRIDE joins in this dissent.
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