White v. City of Aurora , 323 Ill. App. 3d 733 ( 2001 )

JUSTICE O’MALLEY,

dissenting:

Given that pension statutes must be liberally construed in favor of the rights of the pensioner {Johnson, 114 Ill. 2d at 521), I am unable to distinguish Johnson and I would uphold the circuit court’s decision reversing the Board’s denial of line of duty benefits to plaintiff.

There are two factual differences between this case and Johnson. First, as the majority’s recitation of facts makes clear, White was acting in response to orders from superiors and in Johnson the officer was acting in response to a request from a citizen. Second, the officer in Johnson was crossing the street to deal with a traffic accident as opposed to a parking violation. I find these distinctions inadequate to distinguish the rationale of Johnson. Johnson noted that, while performing their duties, police officers perform many acts that are similar to those involved in civilian occupations. Thus, under Johnson, the majority’s point that “many civilians exit automobiles” to issue parking citations is not dispositive. 323 Ill. App. 3d at 736. In fact, as to exiting automobiles, Johnson said:

“Police officers assigned to duties that involve protection of the public discharge those duties by performing acts which are similar to those involved in many civilian occupations. Driving an automobile, entering a building, walking up stairs, and even crossing the street are activities common to many occupations, be it policeman or plumber.

There can be little question, police officers assigned to duties that involve protection of the public discharge their responsibilities by performing acts which are similar to those involved in many civilian occupations. The crux is the capacity in which the police officer is acting.” Johnson, 114 Ill. 2d at 521-22.

The fact that civilians sometimes issue parking citations also is not dispositive. Civilians routinely are employed by police departments to direct traffic (as was the officer in Johnson), issue parking and other citations, fill out accident reports, and guard prisoners, to name just a few of the functions performed by both police officers and civilians.

The officer in Johnson was assigned to traffic-control duty at a street corner. My conclusion is that if the officer in Johnson had slipped while directing traffic, rather than walking across the street to assist a citizen regarding a traffic accident, the supreme court still would have held that the officer was entitled to a line of duty pension. Under the majority’s reasoning here, the officer would not be entitled to a line of duty pension if he had been assigned by his employer to direct traffic, because police departments sometimes employ civilians to direct traffic. But he would be entitled to a line of duty pension if he was directing traffic after being alerted to a traffic jam by a citizen.

My reading of Johnson is that it held that, even though the officer was only walking across the street in response to a citizen’s request regarding a traffic accident, the officer nevertheless “must have his attention and energies directed towards being prepared to deal with any eventuality.” Johnson, 114 Ill. 2d at 522. I see that observation by Johnson regarding the nature of police duties to hold true regardless of whether the officer is engaged in the seemingly mundane task of walking across the street to investigate a traffic accident or getting out of his squad car to enforce the parking laws. Nor should it matter whether the officer is acting pursuant to direction from his supervisor, at the request of a citizen, or on his own initiative. As Johnson quoted with approval:

“ ‘A policeman is actually engaged in the performance of his duty for the protection of life and property whenever he is carrying out the official orders or requirements of his office. Whether he be patrolling, investigating, or directing traffic, the policeman is the veiy essence of and should stand as a symbol of the protector of life and property.’ (Blanchard v. New Orleans Police Department (La. App. 1968), 210 So. 2d 585, 588.)” Johnson, 114 Ill. 2d at 523.

The majority asserts that I am focusing “on the fact that White was following orders by writing tickets, rather than focusing on the nature of the act.” 323 Ill. App. 3d at 737. That is the same criticism lodged by Justice Ryan in his dissent in Johnson. “The majority seems to tie the ‘act of duty’ standard to the nature of the work to which the policeman is assigned, and not to the nature of the work in which he was engaged when injured.” Johnson, 114 Ill. 2d at 524 (Ryan, J., dissenting, joined by Miller, J.). As Johnson said, the crux is the capacity in which the officer is acting, and Johnson makes clear that we are not to determine that capacity by assessing the dangerousness of the task or the routine nature of the particular physical acts undertaken to perform the task. “We do not find anything in the statute or in its legislative history to support the [pension board’s] strained construction that the term ‘special risk’ only encompasses ‘inherently dangerous’ activities.” Johnson, 114 Ill. 2d at 521. As indicated in the quote above, Johnson finds that an officer on patrol is acting in his capacity as “protector of life and property.” The point I take from Johnson is that an officer does not stop patrolling and being on the alert “to deal with any eventuality” when he is enforcing the traffic laws.

Instead of following Johnson, the majority follows Morgan, 172 Ill. App. 3d 273, and relies on Morgan when it contends that I fail to distinguish between “on duty” and “act of duty.” Morgan based its holding on the fact it was dealing with an officer who slipped out of a chair while inside a police station filling out a report, as distinguished from Johnson, which, Morgan observed, dealt with the duties of a “traffic patrolman.” Morgan, 172 Ill. App. 3d at 276. Because Johnson failed to mention any “on duty—act of duty” distinction, Morgan cited Justice Ryan’s dissenting opinion in Johnson to explain the distinction. Morgan, 172 Ill. App. 3d at 277, citing Johnson, 114 Ill. 2d at 525 (Ryan, J., dissenting, joined by Miller, J.). Significantly, despite citing Morgan, the majority here ignores the Ryan dissent that Morgan relied on with emphasis: “Justice Ryan noted that under the majority opinion ‘almost all policemen, excepting those engaged in clerical duties, who are injured at work will be entitled to the enhanced pension.’ ” (Emphasis added by Morgan.) Morgan, 172 Ill. App. 3d at 277, quoting Johnson, 114 Ill. 2d at 525 (Ryan, J., dissenting, joined by Miller, J.). Morgan was then confronted with exactly the case—one involving clerical duties—that Ryan said the Johnson majority would exclude from receiving an enhanced pension.

Indeed, under the rationale of Morgan, the plaintiff here is much more similarly situated to the officer in Johnson. They were both out on the street acting as “traffic patrolmen” rather than in a station “performing clerical duties.” Thus, contrary to the majority’s statement that my views would invalidate Morgan and result in enhanced pensions for all officers injured while on duty, I agree with Morgan that Justice Ryan’s dissent is instructive on the question of the distinction between “act of duty” and “on duty.”

My basic problem with the majority is that, in light of the very broad language in Johnson, the majority opinion here draws too fine a distinction. It will require pension boards to attempt to determine whether civilians ever, sometimes, or frequently issue parking citations, direct traffic, or fill out traffic accident reports and whether an officer was acting in response to an order from a supervisor, at the request of a citizen, or on his own initiative. In light of the very broad language of Johnson, such fine, and, in my view, arbitrary, distinctions are inappropriate. In accordance with the rationale of Johnson and the principle that pension statutes are to be construed liberally in favor of the pensioner, pension boards should resolve such fine distinctions in favor of the pensioner.

As Johnson said, the crux is the capacity in which the officer is acting. The officer in this case was enforcing the law. Granted, it was a mundane task, but, given what the officer in Johnson was doing and the strong language of Johnson, I am compelled to dissent.