People ex rel. Madigan v. Burge , 2014 IL 115635 ( 2014 )

Illinois Official Reports
Supreme Court
People ex rel. Madigan v. Burge, 2014 IL 115635
Caption in Supreme THE PEOPLE ex rel. LISA MADIGAN, Attorney General of Illinois,
Court: Appellee, v. JON BURGE et al., Appellants.
Docket Nos. 115635, 115645 cons.
Filed July 3, 2014
Rehearing denied September 23, 2014
Held A pension board which awarded benefits to a retired policeman in
(Note: This syllabus 1997 had exclusive original jurisdiction, under a 1972 statute, to
constitutes no part of the terminate them for commission of an employment-related felony; but,
opinion of the court but where it did not do so, the Attorney General’s circuit court action to do
has been prepared by the so by enjoining a violation of the Pension Code under a less specific
Reporter of Decisions 1982 statute was properly dismissed for lack of subject-matter
for the convenience of jurisdiction.
the reader.)
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon. Rita
M. Novak, Judge, presiding.
Judgment Appellate court judgment reversed.
Circuit court judgment affirmed.
Counsel on Michael H. Moirano and Claire Gorman Kenny, of Nisen & Elliott,
Appeal LLC, of Chicago, for appellant Jon Burge.
David R. Kugler, of Chicago, for appellant Retirement Board of the
Policemen’s Annuity and Benefit Fund of the City of Chicago et al.
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro
and Carolyn E. Shapiro, Solicitors General, and Richard S. Huszagh,
Assistant Attorney General, of Chicago, of counsel), for appellee.
Justices JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices Thomas, Karmeier, and Theis concurred in the judgment and
opinion.
Chief Justice Garman dissented, with opinion, joined by Justice
Kilbride.
Justice Freeman dissented, with opinion.
OPINION
¶1 This case presents a question regarding the termination of pension benefits being received
by defendant Jon Burge, a former Chicago police supervisor who was convicted of committing
perjury in a civil lawsuit after he denied having any knowledge of suspects being tortured in
the police unit under his command. What is at issue, however, is not whether Burge, or any
similarly situated police officer, is legally entitled to continue receiving pension benefits.
Rather, the narrow question we must answer here is who decides whether the pension benefits
should be terminated.
¶2 The circuit court of Cook County held that deciding whether to terminate Burge’s pension
benefits was a “quintessential adjudicative function” which rested exclusively within the
original jurisdiction of defendant Retirement Board of the Policemen’s Annuity and Benefit
Fund of Chicago (the Board), subject to review under the Administrative Review Law (735
ILCS 5/3-101 et seq. (West 2012)). The appellate court reversed, holding that the circuit court
had concurrent, original jurisdiction with the Board to determine whether Burge’s benefits
should be terminated. 2012 IL App (1st) 112842. For the reasons that follow, we reverse the
judgment of the appellate court and affirm the judgment of the circuit court.
¶3 BACKGROUND
¶4 Jon Burge was a Chicago police officer from approximately 1970 to 1993. During a portion
of that time, he served as supervisor of the violent crimes unit detectives in Area Two, a
geographical division of the Chicago police department. In 1997, Burge applied to the Board
for pension benefits from the Policemen’s Annuity and Benefit Fund of Chicago (the Fund).
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See 40 ILCS 5/5-101 (West 2012) (authorizing the creation of a policemen’s annuity and
benefit fund). The Board awarded the benefits.
¶5 In 2003, a federal civil rights lawsuit was filed in which the plaintiff alleged that he was
physically tortured and abused by police officers under Burge’s command at Area Two.
Although the plaintiff did not accuse Burge personally of abusing him, the plaintiff did allege
that Burge was aware of a pattern of torture and abuse being conducted by police officers in
Area Two and that Burge had participated in such practices. In response to written
interrogatories in the lawsuit, Burge denied under oath having any knowledge of, or
participation in, the torture or abuse of persons in the custody of the Chicago police
department.
¶6 In 2008, Burge was indicted by a federal grand jury on one felony count of perjury (18
U.S.C. § 1621(1) (2006)), and two felony counts of obstruction of justice (18 U.S.C.
§ 1512(c)(2) (2006)), for making false statements in his responses to the interrogatories. In
2010, Burge was convicted by a jury on all three counts and was sentenced to four and one-half
years’ imprisonment. His convictions were affirmed on appeal. United States v. Burge, 711
F.3d 803 (7th Cir. 2013). Burge’s conduct in the civil lawsuit is the only criminal activity for
which he has been convicted. Burge has not been indicted or convicted for conduct which
occurred while he was still serving on the Chicago police department.
¶7 In January 2011, the Board held a hearing to determine whether, under section 5-227 of the
Illinois Pension Code (40 ILCS 5/5-227 (West 2010)), Burge’s pension benefits should be
terminated because of his federal felony convictions. Section 5-227 states, in relevant part, that
“[n]one of the benefits provided for in this Article shall be paid to any person who is convicted
of any felony relating to or arising out of or in connection with his service as a policeman.” At
the hearing, Burge maintained that his felony convictions related solely to the giving of false
testimony in a civil lawsuit filed several years after his retirement from the police force and,
therefore, did not justify terminating his pension benefits.
¶8 At the conclusion of the hearing, a motion was made by a Board member to terminate
Burge’s pension benefits. The Board is composed of eight trustees, four of whom are
appointed by the mayor of Chicago, and four of whom are current or former police officers
elected by police officer participants in the Fund. See 40 ILCS 5/5-178 (West 2012). The
Board divided 4 to 4 on the question of whether Burge’s felony convictions for perjury and
obstruction of justice in the civil lawsuit related to, arose out of, or were connected with his
employment as a Chicago police officer. The four city-appointed trustees voted in favor of the
motion to terminate benefits, while the four officer-elected trustees voted against the motion.
The Board concluded that because “the motion was not passed,” “Burge was allowed to
continue to receive his monthly pension benefits.” The Board issued a written decision to that
effect on January 31, 2011. No administrative review was sought from this decision.
¶9 On February 7, 2011, one week after the Board had issued its decision, the Attorney
General, on behalf of the State of Illinois, filed the complaint at issue in this case, naming as
defendants Burge, the Board, and the individual trustees of the Board in their official
capacities. The complaint was brought pursuant to section 1-115 of the Pension Code. That
provision authorizes the Attorney General to bring a civil action to “[e]njoin any act or practice
which violates any provision of this Code” or “[o]btain other appropriate equitable relief to
redress any such violation or to enforce any such provision.” 40 ILCS 5/1-115 (West 2012). In
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her complaint, the Attorney General alleged that “[b]y continuing to pay public pension
benefits to Jon Burge following three felony convictions relating to, arising out of, and in
connection with his service as a police officer, Defendant Board and Defendant Trustees are
violating Section 227 of Article 5 of the Illinois Pension Code.” The complaint did not allege
any other violations of the Pension Code or wrongful conduct by the Board or its trustees. The
complaint sought a preliminary and permanent injunction ordering the Board to cease all
payments to Burge and an order requiring Burge to repay any benefits received since his
convictions.
¶ 10 Burge, and the Board and trustees, subsequently filed motions to dismiss the complaint
under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)).
Defendants alleged in their motions that the circuit court lacked subject-matter jurisdiction to
consider the Attorney General’s complaint. The circuit court agreed.
¶ 11 In a written order, the circuit court noted that section 5-189 of the Pension Code (40 ILCS
5/5-189 (West 2012)), states in pertinent part that “[t]he Board shall have exclusive original
jurisdiction in all matters relating to or affecting the fund, including, in addition to all other
matters, all claims for annuities, pensions, benefits or refunds.” The circuit court further noted
that, while the statutory prohibition against providing pension benefits to a person convicted of
a felony relating to, arising out of, or in connection with his service as a policeman is absolute,
“in each individual case, the statutory standard will have to be applied to discrete facts and
circumstances.” The circuit court concluded that this was a “quintessential adjudicative
function” which section 5-189 conferred exclusively on the Board.
¶ 12 In addition, the circuit court observed that, under 5-228 of the Pension Code (40 ILCS
5/5-228 (West 2012)), final administrative decisions of the Board are subject to judicial review
for error solely as provided by the Administrative Review Law. Such review is exclusive and
alternate methods of direct review or collateral attack are not permitted. See, e.g., Emerald
Casino, Inc. v. Illinois Gaming Board, 366 Ill. App. 3d 622, 625 (2006). The circuit court
concluded that the Board had rendered a final administrative decision when it ruled on the
motion to terminate Burge’s pension benefits. The circuit court then reasoned that the Attorney
General’s complaint would present to the court “the same issue that the Board decided” but
would do so outside the confines of the Administrative Review Law. Thus, in the view of the
circuit court, the complaint was an impermissible collateral attack on the Board’s decision. The
circuit court therefore dismissed the Attorney General’s complaint for lack of subject-matter
jurisdiction.
¶ 13 The Attorney General appealed the dismissal and the appellate court reversed. 2012 IL
App (1st) 112842. The appellate court stated:
“Viewing the statute as a whole, we find no explicit language in the statute
expressing a legislative intent to divest circuit courts of the subject matter jurisdiction
to hear civil actions brought by the Attorney General under section 1-115(b) of the
Pension Code. As a result, we find that the circuit court erred in interpreting section
5-189 of the Pension Code as divesting it of the subject matter jurisdiction to address
the Attorney General’s claims. We find that section 1-115(b) gives the circuit court
concurrent subject matter jurisdiction with the Pension Board to hear the disputed
pension issues presented in the Attorney General’s complaint.” Id. ¶ 25.
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¶ 14 After reaching this conclusion, the appellate court then observed that when the circuit court
and an administrative agency have concurrent jurisdiction, the circuit court may, under the
doctrine of primary jurisdiction, stay judicial proceedings and permit the administrative
agency to first address the issue and bring its expertise to bear on the matter in dispute. Id. ¶ 26
(citing Village of Itasca v. Village of Lisle, 352 Ill. App. 3d 847, 853 (2004)). Because the
Board in this case had already addressed the termination of Burge’s pension benefits at the
time the Attorney General’s complaint was filed, the appellate court treated the Board’s
adjudication of the matter, in effect, as an exercise of primary jurisdiction.
¶ 15 Continuing, the appellate court then pointed to section 5-182 of the Pension Code (40 ILCS
5/5-182 (West 2012)), which provides that “no pension, annuity, or benefit shall be allowed or
granted and no money shall be paid out of the fund unless ordered by a vote of the majority of
the members of the board.” The court concluded that the Board violated this section when it
determined that a tie vote meant that Burge was allowed to continue to receive his monthly
pension benefits. Based on this violation, the appellate court reasoned that the Board’s decision
to continue Burge’s benefits was “voidable” (2012 IL App (1st) 112842, ¶ 30), and the circuit
court was not required to give the Board’s exercise of primary jurisdiction any deference. The
appellate court therefore reinstated the Attorney General’s complaint and remanded the cause
to the circuit court to determine, as an original matter, whether Burge’s felony convictions
related to, arose out of, or were connected with his service as a police officer in violation of
section 5-227.
¶ 16 Burge, and the Board and its trustees, filed petitions for leave to appeal in this court. Ill. S.
Ct. R. 315 (eff. Feb. 26, 2010). The petitions were granted and the cases consolidated for
review.
¶ 17 ANALYSIS
¶ 18 At issue before us is whether the circuit court properly dismissed the Attorney General’s
complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West
2012)). A motion to dismiss under section 2-619 admits the legal sufficiency of the plaintiff’s
complaint, but asserts an affirmative matter which defeats the claim. In this case, the asserted
affirmative matter is a lack of subject-matter jurisdiction (735 ILCS 5/2-619(a)(1) (West
2012)). Our review of a dismissal under section 2-619 is de novo. King v. First Capital
Financial Services Corp., 215 Ill. 2d 1, 12 (2005).
¶ 19 Subject-matter jurisdiction refers to a tribunal’s “power to hear and determine cases of the
general class to which the proceeding in question belongs.” (Internal quotation marks omitted.)
Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 27. The Illinois
Constitution of 1970 gives original jurisdiction to the circuit courts over all justiciable matters
except where this court has exclusive and original jurisdiction relating to the redistricting of
the General Assembly and the ability of the Governor to serve or resume office. Id. However,
this court has held that the General Assembly may confer exclusive original jurisdiction on an
administrative body when it enacts a “comprehensive statutory administrative scheme” that
“explicitly” vests original jurisdiction in the administrative agency. Id. Whether the legislature
has done so is a question of statutory interpretation. Id.
¶ 20 Defendants contend there is an explicit statement from the General Assembly vesting
exclusive, original jurisdiction with the Board when a claim is made that a police officer’s
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pension benefits should be terminated because of a felony conviction. That statement,
according to defendants, is found in section 5-189 of the Pension Code, which states that the
Board shall have the power:
“To authorize payments. To authorize the payment of any annuity, pension, or benefit
granted under this Article or under any other Act relating to police pensions, heretofore
in effect in the city which has been superseded by this Article; to increase, reduce, or
suspend any such annuity, pension, or benefit whenever any part thereof was secured or
granted or the amount thereof fixed, as the result of misrepresentation, fraud, or error;
provided, the annuitant, pensioner or beneficiary concerned shall be notified and given
an opportunity to be heard concerning such proposed action.
The Board shall have exclusive original jurisdiction in all matters relating to or
affecting the fund, including, in addition to all other matters, all claims for annuities,
pensions, benefits or refunds.” 40 ILCS 5/5-189 (West 2012).
¶ 21 Defendants acknowledge, as they must, that not all legal challenges to “matters relating to
or affecting the fund” fall within the exclusive jurisdiction of the Board. For example, as this
court has explained, an administrative agency, such as the board of trustees of a retirement
system, is a creature of statute and, as such, has only the authority that is conferred upon it by
law. Alvarado v. Industrial Comm’n, 216 Ill. 2d 547, 553 (2005); Rossler v. Morton Grove
Police Pension Board, 178 Ill. App. 3d 769, 773 (1989). Consequently, when a retirement
board acts in a manner which is not merely erroneous but which exceeds the “inherent power”
of the board granted to it under the Pension Code, the board is said to act without
“jurisdiction.” Newkirk v. Bigard, 109 Ill. 2d 28, 36 (1985). Such actions of a board are “void”
and may be attacked at any time, in any court, either directly or collaterally. Business &
Professional People for the Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192,
243-44 (1989); Genius v. County of Cook, 2011 IL 110239, ¶ 25; see also, e.g., Landfill, Inc. v.
Pollution Control Board, 74 Ill. 2d 541, 550 (1978) (an administrative rule may be challenged
on its face in the circuit court on the grounds of being unauthorized by the enabling
legislation). Thus, under long-standing law, a circuit court has jurisdiction to consider a
complaint that the Board is exceeding its “inherent authority” under the Pension Code and its
actions are void, even though the matter raised in the complaint may “relate to” or “affect” the
Fund. Defendants do not dispute that an action by the Board which is beyond its “inherent
authority” constitutes a “violation” of the Pension Code and may be challenged under section
1-115.
¶ 22 Defendants further acknowledge, as again they must, that section 1-115, which is largely
identical to parts of section 502(a) of the federal Employment Retirement Income Security Act
of 1974 (ERISA), Pub. L. No. 93-406, 88 Stat. 829, 891, was enacted primarily to authorize
actions in the circuit court which allege that pension fund fiduciaries, such as the trustees of a
retirement board, have breached a fiduciary duty set forth in the Pension Code. A legal
challenge alleging that the trustees of a retirement board have breached a fiduciary duty cannot
be brought before the board itself since “no man who has a personal interest in the subject
matter of [a] decision in a case may sit in judgment on that case.” In re Heirich, 10 Ill. 2d 357,
384 (1956); Girot v. Keith, 212 Ill. 2d 372, 380 (2004). Defendants therefore do not dispute
that an allegation that the trustees of the Board have breached a fiduciary duty by, for example,
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making fraudulent investments, is properly brought in the circuit court under section 1-115
even though it may “relate to” or “affect” the Fund.
¶ 23 Given these qualifications, defendants assert that what falls exclusively within the original
jurisdiction of the Board under section 1-189 are ordinary adjudications related to or affecting
the Fund. Or, stated otherwise, actions which come within the exclusive, original jurisdiction
of the Board are those which require the resolution of disputed facts and the application of
existing Pension Code provisions to fact-specific circumstances. See, e.g., E&E Hauling, Inc.
v. Pollution Control Board, 116 Ill. App. 3d 586, 598 (1983) (an adjudicative proceeding is
one “ ‘designed to adjudicate disputed facts in particular cases’ ” (quoting United Wales v.
Florida East Coast Ry. Co., 410 U.S. 224, 245 (1973))).
¶ 24 Defendants contend that deciding whether to terminate Burge’s pension benefits requires
the application of an existing Pension Code provision to the particular facts of his case and is,
therefore, an ordinary adjudication related to the Fund. Defendants further emphasize that,
under the plain language of section 5-189, the Board’s jurisdiction to conduct such
adjudications is “exclusive” rather than concurrent with the circuit court. Thus, according to
defendants, original jurisdiction to determine whether Burge’s pension benefits should be
terminated is vested exclusively in the Board pursuant to section 5-189.
¶ 25 Like the circuit court, defendants also note that under section 5-228 of the Pension Code
(40 ILCS 5/5-228 (West 2012)), final administrative decisions made by the Board are
reviewed for error solely under the Administrative Review Law. In this case, the Attorney
General’s complaint alleged that the Board’s continued payment of pension benefits to Burge,
after the motion to terminate the benefits failed, was erroneous. However, that challenge was
made outside the provisions of the Administrative Review Law. Therefore, according to
defendants, the circuit court properly determined that the Attorney General’s complaint was an
impermissible collateral attack on the Board’s decision and that the court lacked jurisdiction to
hear the Attorney General’s complaint.
¶ 26 As she did in the circuit court, the Attorney General, in response, points to section 1-115 of
the Pension Code, which provides:
“A civil action may be brought by the Attorney General or by a participant, beneficiary
or fiduciary in order to:
(a) Obtain appropriate relief under Section 1-114 of this Code;
(b) Enjoin any act or practice which violates any provision of this Code; or
(c) Obtain other appropriate equitable relief to redress any such violation or to
enforce any such provision.” 40 ILCS 5/1-115 (West 2012).
¶ 27 The Attorney General does not disagree with defendants that applying section 5-227 to the
facts of Burge’s case to determine whether his pension benefits should be terminated
constitutes an ordinary adjudicative proceeding related to or affecting the Fund. Nor does the
Attorney General disagree with defendants that the Board has jurisdiction over such
adjudications. Where the Attorney General parts company with defendants is with their
assertion that the Board’s original jurisdiction under section 5-189 is exclusive. According to
the Attorney General, section 1-115 grants the circuit court concurrent, original jurisdiction
over ordinary adjudications related to or affecting the Fund.
¶ 28 In support, the Attorney General emphasizes the breadth of section 1-115, noting that it
applies to “any” act or practice which violates “any” provision of the Pension Code. That
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criterion is met, the Attorney General maintains, by her claim that the payment of pension
benefits to Burge violates section 5-227 of the Pension Code. The Attorney General also notes
that section 1-115 was enacted by the General Assembly in 1982, 10 years after section 5-189
was amended in 1972 to provide for exclusive, original jurisdiction in the Board. From this, the
Attorney General asserts that section 1-115 “takes precedence” over section 5-189, with the
consequence that section 1-115 “gives circuit courts concurrent jurisdiction over claims by the
Attorney General to enjoin a violation of the Pension Code even if the Board also has
jurisdiction to adjudicate the same question.” In other words, in the view of the Attorney
General, the General Assembly repealed the “exclusive” jurisdiction provided to the Board
under section 5-189 when it enacted section 1-115. Thus, the Attorney General maintains that
when a police officer is convicted of a felony offense, the issue of whether his pension benefits
should be terminated may be pursued either in the circuit court, in an action filed by the
Attorney General, a participant, a beneficiary or a fiduciary, or in an action before the Board.
¶ 29 Continuing with her argument, the Attorney General does not dispute that, because the
Board had already addressed the termination of Burge’s pension benefits at the time her
complaint was filed, the Board effectively exercised primary jurisdiction over the matter. See
generally People v. NL Industries, 152 Ill. 2d 82, 94-96 (1992) (discussing primary
jurisdiction). However, unlike the appellate court below, which determined that no deference
was due the Board’s decision because it stemmed from a tie vote, the Attorney General asserts
that no deference is due to the Board in this instance because she was not a party to the Board’s
proceeding addressing whether to terminate Burge’s pension benefits. For this reason,
according to the Attorney General, she “cannot be bound by the outcome of that proceeding
under preclusion principles.” In sum, the Attorney General maintains that the circuit court has
concurrent original jurisdiction over ordinary adjudications related to or affecting the Fund,
and that her office, a participant, a beneficiary or a fiduciary may file an action at any time in
the circuit court under section 1-115 to adjudicate whether a police officer’s pension benefits
should be terminated, reinstated or adjusted, so long as the filer of the action was not a party in
a previous proceeding before the Board on the same matter. Therefore, the Attorney General
contends, the circuit court improperly dismissed her complaint in this case. We disagree.
¶ 30 As the Attorney General notes, section 1-115 is a broadly worded provision, covering
“any” act or practice which violates “any” provision of the Pension Code. Section 5-189, in
contrast, does not possess the same breadth. Section 5-189 confers original jurisdiction on the
Board only for ordinary adjudications related to or affecting the Fund. Other original actions,
such as those alleging that the trustees of the Board have breached a fiduciary duty set forth in
the Pension Code by, for example, making fraudulent investments, may be brought in the
circuit court under section 1-115, but not before the Board under section 5-189. Moreover, the
Board’s original jurisdiction is limited to matters “relating to or affecting the fund.” Any
violation of a Pension Code provision which is not related to the fund may be challenged in an
original action in the circuit court under section 1-115, but not before the Board under section
5-189. In short then, section 5-189 is the more specific provision than section 1-115.
¶ 31 “[I]t is a commonplace of statutory construction” that when two conflicting statutes cover
the same subject, “the specific governs the general.” Morales v. Trans World Airlines, Inc.,
504 U.S. 374, 384-85 (1992) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,
445 (1987)). “[T]he law is settled that [h]owever inclusive may be the general language of a
statute, it will not be held to apply to a matter specifically dealt with in another part of the same
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enactment.” (Internal quotation marks omitted.) Fourco Glass Co. v. Transmirra Products
Corp., 353 U.S. 222, 228 (1957). “The general/specific canon is perhaps most frequently
applied to statutes in which a general permission or prohibition is contradicted by a specific
prohibition or permission. To eliminate the contradiction, the specific provision is construed as
an exception to the general one.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566
U.S. ___, ___, 132 S. Ct. 2065, 2071 (2012). Here, the broad language of section 1-115, which
states that “any” violation of a Pension Code provision may be challenged in circuit court, is in
conflict with section 5-189, which provides that ordinary adjudications related to or affecting
the Fund are within the “exclusive,” original jurisdiction of the Board. Accordingly, to
eliminate this contradiction, the specific provision, section 5-189, must be construed as an
exception to the general provision, section 1-115.
¶ 32 Citing the canon which holds that when two statutes are in conflict the one which was
enacted later should prevail (see, e.g., Village of Chatham, Illinois v. County of Sangamon,
Illinois, 216 Ill. 2d 402, 431 (2005)), the Attorney General maintains that section 1-115, as the
more recently enacted provision, should be given precedence over section 5-189. Justice
Freeman, in dissent, adopts a similar position. Infra ¶ 88 (Freeman, J., dissenting). However,
the canon that the specific governs the general holds true “ ‘regardless of the priority of
enactment.’ ” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976) (quoting Morton v.
Mancari, 417 U.S. 535, 550-51 (1974)); 82 C.J.S. Statutes § 482 (2010) (“The more specific of
two statutes dealing with a common subject matter generally will prevail whether it has been
passed before or after the more general statute.”). Indeed, because repeals by implication are
disfavored, the canon that the specific governs the general applies with special force where, as
here, the earlier provision is specific and the later, general provision makes no mention of the
earlier provision. As this court has stated, “a later statute general in its terms and not expressly
repealing the prior special statute will ordinarily not affect the special provisions of the earlier
statute.” People ex rel. Atwell Printing & Binding Co. v. Board of Commissioners, 345 Ill. 172,
178 (1931); Morton, 417 U.S. at 549-51. Section 1-115 does not expressly repeal section 5-189
or, indeed, even mention the provision. We decline to hold that the exclusive, original
jurisdiction of the Board to hear ordinary adjudications related to or affecting the Fund has
been repealed by implication.
¶ 33 And it is apparent why the General Assembly would exclude ordinary adjudications related
to the Fund from the broad reach of section 1-115 as the Attorney General proposes. Section
1-115 does not limit the right to bring a cause of action solely to the Attorney General. Rather,
it permits any “participant, beneficiary or fiduciary” to file a civil action to enjoin a violation of
the Pension Code. Under the Attorney General’s reasoning, a participant in the Fund who loses
a benefits decision before the Board could file an administrative appeal in the circuit court,
while at the same time, another participant who disagreed with the Board’s determination
could file a separate, original action under section 1-115. According to the Attorney General,
the court in the latter action would not be required to give the Board’s determination any
deference, thus creating two simultaneous, potentially conflicting actions in the circuit court.
Further, section 1-115 contains no specific time limit on the filing of such an action. If each of
the groups listed in section 1-115 were allowed to adjudicate or readjudicate every grant,
denial or adjustment of pension benefits made by the Board at any time, as the Attorney
General contends, tremendous instability would be injected into the Fund. As the circuit court
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below aptly noted, “[a]dministering a pension fund with so much instability and uncertainty is
not just inconvenient, it is unworkable.”
¶ 34 The Attorney General asserts that any legal or fiscal uncertainty that might arise from
permitting actions such as this one to go forward as an original action under section 1-115 is
merely speculative. But that is a determination for the legislature. For our purposes here, it is
enough that we can discern a rational policy reason why the legislature would confer exclusive,
original jurisdiction on the Board over ordinary adjudications related to or affecting the Fund.
Accordingly, there is no justification for us to depart from well-established rules of statutory
interpretation.
¶ 35 The Attorney General’s complaint faces an additional problem. Section 5-228 of the
Pension Code provides in pertinent part that the Administrative Review Law “govern[s] all
proceedings for the judicial review of final administrative decisions of the retirement board
provided for under this Article.” 40 ILCS 5/5-228 (West 2012). Section 3-101 of the Code of
Civil Procedure defines an “administrative decision” as “any decision, order or determination
of any administrative agency rendered in a particular case, which affects the legal rights, duties
or privileges of parties and which terminates the proceedings before the administrative
agency.” 735 ILCS 5/3-101 (West 2012). When the Administrative Review Law is applicable
to an administrative agency, it provides the sole method of reviewing an agency decision. See,
e.g., Emerald Casino, Inc. v. Illinois Gaming Board, 366 Ill. App. 3d 622, 625 (2006); Ardt v.
Illinois Department of Professional Regulation, 154 Ill. 2d 138, 148 (1992) (“The legislature
enacted the Administrative Review Law in order to provide a simple single review from
specified administrative decisions.”).
¶ 36 In this case, the Board rendered a final “administrative decision” when it ruled on the
motion to terminate Burge’s pension benefits. The Attorney General’s complaint does not seek
administrative review of the Board’s decision but, instead, asserts only that jurisdiction in the
circuit court is proper under section 1-115. Further, as the circuit court noted, consideration of
the Attorney General’s complaint would require the court to determine whether Burge’s felony
convictions related to, arose out of, or were in connection with his service as a police
officer—the same issue addressed by the Board. Thus, to allow the Attorney General’s
complaint to proceed, we would have to conclude that section 1-115 not only repealed the
exclusive, original jurisdiction of the Board under section 5-189, but also implicitly repealed
the exclusive application of the Administrative Review Law under section 5-228. We decline
to so hold. See, e.g., People ex rel. Dickey v. Southern Ry. Co., 17 Ill. 2d 550, 555 (1959) (for
an act to repeal an earlier one by implication, there must be “such total and manifest
repugnance that the two cannot stand together”).
¶ 37 The Attorney General asserts, however, that when the Board is presented with the question
of whether pension benefits should be terminated, as it was in this case, “there is no
participation by any party opposed to” the continuation of benefits and “there is therefore no
real opportunity for review of a decision approving that expenditure.” Because of “the
heightened risk of an effectively unreviewable administrative decision” which could “result in
a significant violation of the Pension Code, at potentially great cost to the public,” the Attorney
General maintains that complaints such as the one at issue here should be permitted under
section 1-115.
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¶ 38 Preventing significant violations of the Pension Code and ensuring the fiscal integrity of
the Fund are important goals. To that end, certain challenges to actions taken by a retirement
board have been authorized both within the context of administrative review and without. The
circuit court, for example, may consider at any time a claim that a retirement board’s decision
was so seriously in error that the board exceeded its inherent authority and rendered a void
decision. See, e.g., Alvarado v. Industrial Comm’n, 216 Ill. 2d 547, 553-54 (2005); Rossler v.
Morton Grove Police Pension Board, 178 Ill. App. 3d 769, 773 (1989). Similarly, a claim may
be brought in circuit court that a pension board rule asserting administrative authority is not
authorized under the Pension Code. See, e.g., Landfill, Inc. v. Pollution Control Board, 74 Ill.
2d 541, 550 (1978). Fiduciary breaches, including, for example, fraudulent or corrupt
decisions by the trustees of a retirement board, may also be challenged in circuit court. See 40
ILCS 5/1-115 (West 2012). In addition, our appellate court has recognized that, in certain
circumstances, a governmental entity which was not a party before a pension board proceeding
may contest a retirement board’s administrative decision when it would result in the
diminution of a pension fund. Karfs v. City of Belleville, 329 Ill. App. 3d 1198 (2002); see also
Board of Education of the City of Chicago v. Board of Trustees of the Public Schools
Teachers’ Pension & Retirement Fund, 395 Ill. App. 3d 735 (2009) (“systemic
miscalculations” by a pension board are not administrative decisions and may be challenged
outside the Administrative Review Law). These avenues for legal challenge to the actions of a
pension board exist in addition to general civil and criminal oversight, including criminal
provisions found in the Pension Code itself (see, e.g., 40 ILCS 5/1-125 (West 2012)
(misdemeanor offense for trustee to accept gift from person seeking action from a retirement
board), and regulatory oversight provided by the Department of Insurance (see 40 ILCS
5/1A-101 et seq. (West 2012) (charging the Department of Insurance with examining and
investigating pension funds created under the Pension Code)).
¶ 39 None of the foregoing situations, however, are at issue in this case. The Attorney General’s
complaint does not seek review of an administrative decision which improperly diminished, or
threatened to diminish, the Fund; the complaint does not allege a fiduciary breach by any
member of the Board; and the complaint does not allege that the decision of the Board was
beyond its inherent authority and therefore void. Indeed, the complaint contains no allegations
that the fiscal integrity of the Fund has been harmed by the Board’s decision, or that the
pension benefits of other participants in the Fund have been placed at risk. Instead, the
complaint alleges only that the Board’s continued payment of pension benefits to Burge
following the ruling on the motion to terminate those benefits was individualized error in this
case. What the Attorney General is seeking then, through the filing of her complaint, is the
authority to contest every administrative decision made by the Board, however limited in
scope or effect, and to do so outside the confines of the Administrative Review Law. This
would be a fundamental change in the workings of the Pension Code. This is not something we
have authority to recognize absent express repeal of section 5-228 by the General Assembly.
¶ 40 Chief Justice Garman, in dissent, raises an argument not made by the Attorney General.
Chief Justice Garman contends that the Attorney General’s complaint should be read as
alleging that the four officer-elected trustees of the Board violated their fiduciary duty to act
“solely in the interest of the participants and beneficiaries” of the Fund (40 ILCS 5/1-109
(West 2012)), when they voted against the motion to terminate Burge’s pension benefits. For
this reason, according to Chief Justice Garman, the complaint should be permitted to go
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forward under section 1-115. This is so even though the complaint does not mention the term
“fiduciary,” does not cite to any statutory fiduciary duty, and does not contain any allegations
of bad faith, self-dealing or any similar wrongdoing on the part of any of the trustees.
¶ 41 Chief Justice Garman reasons, however, that if the circuit court should determine that
Burge committed a felony related to, arising out of, or connected with his employment as a
Chicago police officer, then Burge would not be a lawful participant in the Fund. And, paying
benefits to someone who is not a member of the Fund is a breach of a trustee’s fiduciary duty of
loyalty to the Fund’s participants. Infra ¶ 69 (Garman, C.J., dissenting) (to the extent a
retirement board pays benefits to “a person declared to be a nonparticipant under the Pension
Code” it fails to act solely in the interest of the Fund participants and beneficiaries). In other
words, according to Chief Justice Garman, if the circuit court should determine that a Board
trustee, although acting in good faith, made an error in legal reasoning in concluding that
Burge should retain his pension benefits, that fact, in itself, will constitute a breach of the
trustee’s fiduciary duty of loyalty to the Fund participants. We cannot agree with this
reasoning.
¶ 42 Further, under section 1-114 of the Pension Code, fiduciaries are personally liable to the
pension fund for losses resulting from a breach of fiduciary duty. 40 ILCS 5/1-114 (West
2012). Thus, the import of Chief Justice Garman’s reasoning is that a retirement board trustee
who makes a good faith legal error in adjudicating a benefits decision will be personally
obligated to reimburse the pension fund for that error. Understandably, the Attorney General
has not made this argument, which if accepted, would likely mean that no person would be
willing to serve as a retirement board trustee. We are confident this is not what the General
Assembly intended. We therefore decline to sua sponte recast the Attorney General’s
complaint as alleging a breach of fiduciary duty by any of the trustees of the Board.
¶ 43 Finally, we note that the appellate court’s conclusion that the Board violated section 5-182
of the Pension Code when it permitted Burge’s pension benefits to continue following a tie
vote could be read as providing a separate basis, by itself, for filing a complaint alleging a
violation of the Pension Code under section 1-115. However, this, too, would be incorrect.
Section 5-182 of the Pension Code is violated when a pension, annuity or benefit is approved
by less than a majority of the Board. 40 ILCS 5/5-182 (West 2012). The Board’s tie vote in this
case did not approve or grant a pension benefit for Burge. The pension benefits Burge had been
receiving were approved in 1997, long before the Board’s vote was taken in January 2011. No
statutory provision prohibits the continuation of pension benefits when a motion to terminate
those benefits fails to garner a majority of votes on the Board.
¶ 44 CONCLUSION
¶ 45 This opinion should not be read, in any way, as diminishing the seriousness of Burge’s
actions while a supervisor at Area Two, or the seriousness of police misconduct in general. As
noted, the question in this appeal is limited solely to who decides whether a police officer’s
pension benefits should be terminated when he commits a felony. On this issue, the legislative
intent is clear. The decision lies within the exclusive, original jurisdiction of the Board under
section 5-189. Accordingly, the judgment of the appellate court is reversed and the judgment
of the circuit court dismissing the Attorney General’s complaint is affirmed.
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¶ 46 Appellate court judgment reversed.
¶ 47 Circuit court judgment affirmed.
¶ 48 CHIEF JUSTICE GARMAN, dissenting:
¶ 49 The majority resolves this case with the statutory canon that the specific controls the
general, but it disregards some absurd results that follow. The majority makes untenable
distinctions between fiduciary duties and renders certain types of breach unremediable under
the Illinois Pension Code. Looking to legislative intent and examining the overall structure of
the Pension Code also undermines the majority’s conclusion that one section is more specific
and should govern. I thus respectfully dissent.
¶ 50 The court faces two broadly worded statutory provisions in apparent conflict. The Attorney
General (the State) contends payments to convicted felon Jon Burge violate section 5-227 of
the Illinois Pension Code, and that the State can challenge those payments in the circuit court
under section 1-115. 40 ILCS 5/5-227, 1-115 (West 2012). The Board and Burge counter that
section 5-189 of the Pension Code gives the Board “exclusive original jurisdiction in all
matters relating to or affecting the fund.” As such, section 1-115 cannot grant an opportunity
for review to the Attorney General, participants, beneficiaries, and fiduciaries, without
destroying the application of the Administrative Review Law as mandated by section 5-228.
See 40 ILCS 5/5-189, 5-228 (West 2012).
¶ 51 Read plainly, each provision threatens to invade and overwhelm the other. Section 1-115
makes no distinction between the Attorney General, participants, beneficiaries, and fiduciaries
in granting them the ability to seek relief in the circuit court. 40 ILCS 5/1-115 (West 2012).
Section 5-228 requires a participant or beneficiary to challenge a denial of benefits through
administrative review. 40 ILCS 5/5-228 (West 2012). A broad reading of section 1-115, as
offered by the State, could allow an artfully pleading participant or beneficiary to bypass
administrative review altogether. A broad reading also tends to remove “exclusive” from the
Board’s “exclusive original jurisdiction” under section 5-189. 40 ILCS 5/5-189 (West 2012).
Yet section 5-189 read literally could give the Board exclusive jurisdiction over its own
fiduciary breaches. Section 1-114 requires a breaching fiduciary to make the fund whole. 40
ILCS 5/1-114 (West 2012). Section 5-189’s grant of “exclusive original jurisdiction in all
matters relating to or affecting the fund” could be read so broadly as to give the Board
jurisdiction over a breach requiring reimbursement and “relating to [and] affecting the fund.” It
would be absurd to allow artful pleading to evade administrative review, but also absurd to
give the Board jurisdiction over its own alleged shortcomings. In interpreting a statute, we
presume the legislature did not intend absurd results. In re Andrew B., 237 Ill. 2d 340, 348
(2010).
¶ 52 But the majority opinion does not avoid absurd results so much as it tries to temper one set
of them.
¶ 53 Most troubling, the majority makes an arbitrary distinction between types of fiduciary
breaches and renders the meaning of a fiduciary breach unclear. The natural outcome of the
majority’s reasoning that section 5-189 is more specific than section 1-115 is that jurisdiction
under section 1-115 must give way whenever a matter relates to or affects the fund. Section
5-189, granting the Board “exclusive, original jurisdiction,” would govern irrespective of
whether the act “relating to or affecting the fund” is considered a fiduciary breach by the Board
- 13 -
itself. The majority’s reasoning on specificity would give the Board jurisdiction to adjudicate
its own fiduciary breaches, leaving section 1-115 with nothing to do. Apparently recognizing
that this resolution is untenable, the majority states that “[f]iduciary breaches, including, for
example, fraudulent or corrupt decisions by the trustees of a retirement board, may also be
challenged in circuit court” under section 1-115. Supra ¶ 38. Neither the defendants’
concession nor the majority’s finding on this point comports at all with the majority’s
reasoning that the specific controls the general. But to prevent the absurdity of the Board
having jurisdiction over its own fiduciary breaches, the majority draws a neat line between
“ordinary adjudications related to or affecting the Fund” and fiduciary breaches. Supra ¶ 30.
Implicit in this reasoning is the notion that one act cannot simultaneously be an “ordinary
adjudication” and a fiduciary breach remediable by section 1-115. Id.
¶ 54 Yet the majority also ignores that trustees under the Pension Code have fiduciary duties
beyond loyalty, including to diversify investments unless it is prudent not to do so (40 ILCS
5/1-109(c) (West 2012)), to administer with “the care, skill, prudence and diligence” of a
prudent person under similar circumstances (40 ILCS 5/1-109(b) (West 2012)), and to
administer in “accordance with the provisions of the Article of the Pension Code governing the
retirement system or pension fund.” 40 ILCS 5/1-109(d) (West 2012). The majority opinion
apparently does not consider failures of these duties to be fiduciary breaches, and indeed the
majority cannot reach its result if such fiduciary breaches are properly remediable under
section 1-115. The State’s complaint alleged that the Board’s members were violating the
Pension Code by paying benefits to Burge. Such an act would be, at minimum, a breach of the
duty to administer in “accordance with the provisions of the Article of the Pension Code
governing the retirement system or pension fund.” It appears that the majority has determined
that fiduciary breaches of “bad intent”—breaches of loyalty, fraud, self-dealing, and the
like—are the only fiduciary breaches to be addressed by section 1-115. Supra ¶ 38. (providing
that “fraudulent or corrupt decisions” may still be challenged in circuit court); id. ¶ 40 (arguing
a lack of “allegations of bad faith, self-dealing or any similar wrongdoing” in the State’s
complaint). There is no basis in the statute or our case law for such a distinction. This
distinction also conflicts with the legislative history discussed below. And if this erroneous
distinction is not drawn, payments to a felon police officer could be cognizable either as a
breach of the duty to obey the Pension Code or as a breach of the duty of prudence, meaning
the majority would not reach its result.
¶ 55 Next, this arbitrary distinction between “bad intent” fiduciary breaches and the others
appears to allow the Board to make a consistently erroneous interpretation of Illinois law
without facing any challenge, so long as that erroneous interpretation favors a putative
participant or beneficiary. Nothing in the record indicates one participant is permitted to
intervene in another’s hearing. Likewise, “administrative review is limited to parties of record
before the administrative agencies and then only when their rights, duties or privileges are
adversely affected by the decision.” Board of Education of Roxana Community School District
No. 1 v. Pollution Control Board, 2013 IL 115473, ¶ 20 (citing Williams v. Department of
Labor, 76 Ill. 2d 72, 78 (1979)). No party has both opportunity and incentive to challenge an
erroneous grant of benefits. As a result, the Board has the first and final word when it decides
to grant benefits. This resolution allows the Board to ignore decisions of this court. I express no
opinion as to the propriety of the Board’s deadlock decision on the question of defendant Jon
Burge’s benefits, and I stress that the Board’s underlying decision is not before us. But under
- 14 -
the majority’s view, the Board could, in a hearing to terminate benefits under section 5-227,
simply decline to follow Devoney v. Retirement Board of the Policemen’s Annuity & Benefit
Fund, 199 Ill. 2d 414 (2002) (holding a police officer’s felony mail fraud conviction related to
his work as an officer, when he struck up friendship with co-felon while working as a police
officer). No party would have both incentive and ability to challenge the Board’s error. So long
as the Board awards benefits, its errors will now go unchallenged.
¶ 56 Finally, the majority reaches its conclusion on specificity despite ample evidence that
section 5-189 is not at all specific. It instead appears to employ a mere boilerplate phrase used
by the legislature in drafting seven articles of the Pension Code, providing that the “Board shall
have exclusive original jurisdiction in all matters relating to or affecting the fund, including, in
addition to all other matters, all claims for annuities, pensions, benefits or refunds.” 40 ILCS
5/5-189 (West 2012). If that language is more specific than the civil enforcement language in
section 1-115, substantially identical provisions in six other articles are also more specific than
section 1-115. See 40 ILCS 5/6-185 (West 2012) (same provision for firefighters in cities over
500,000 population, with one change to capitalization); 40 ILCS 5/8-203 (West 2012)
(substantially identical provision for municipal employees and officials in cities over 500,000
population: “The board shall have exclusive original jurisdiction in all matters relating to the
fund, including, in addition to all other matters, all claims for annuities, pensions, benefits or
refunds.”); 40 ILCS 5/9-196 (West 2012) (same provision as in article 8, this one for county
employees and officers in counties over three million people); 40 ILCS 5/10-102, 10-103
(West 2012) (incorporating article 9 by reference, for forest preserve district employees); 40
ILCS 5/11-192 (West 2012) (same provision as in article 5, for laborers and retirement board
employees of cities over 500,000 people); 40 ILCS 5/12-162 (West 2012) (substantially
identical provision for park and retirement board employees in cities over 500,000 people: “To
have exclusive original jurisdiction in all matters relating to or affecting the fund, including, in
addition to all other matters, all claims for annuities, benefits or refunds under this Article.”).
Article 13 contains a similar, though less expansive, provision. 40 ILCS 5/13-706(e) (West
2012) (“The Board shall have exclusive original jurisdiction in all matters of claims for
annuities, benefits and refunds.”). Yet the majority concludes this seven-time repetition of the
same words was, in each instance, an intentional and more specific grant of power than the
fiduciary enforcement provision yet to come. Under the majority’s interpretation, section
1-115 has very little enforcement role left to play when juxtaposed against “exclusive original
jurisdiction,” so the majority thus concludes the legislature intended section 1-115 to mean
little or nothing1 when applied to seven articles of the Pension Code. This cannot be reconciled
with the legislative history. One could more easily find that section 1-115, pertaining to the
circuit court enforcement of fiduciary duties, is more specific than the pervasive authority over
investment and benefits decisions granted to the Board in section 5-189.
1
The majority does not provide any examples of fiduciary breaches that could be addressed by the
circuit court, aside from “fraudulent” or “corrupt” ones. Given the paucity of the record from the Board
in this case, it is unclear how a circuit court would, as a threshold matter, evaluate whether a board’s
actions were fraudulent or corrupt before deciding if it had subject-matter jurisdiction. It also suggests
the duty of prudence and the duty to obey the Pension Code are statutorily imposed but effectively
unenforceable. 40 ILCS 5/1-109 (West 2012).
- 15 -
¶ 57 Rather than allowing one section to prevent operation of the other, this court should try to
harmonize the two provisions, if possible. Hartney Fuel Oil Co. v. Hamer, 2013 IL 115130,
¶ 25. Given the conflict in language between sections 1-115 and 5-189, this court should look
to the legislative history of the later-enacted section 1-115 to determine what impact the
legislature intended it would have on existing provisions. Public Act 82-960 (eff. Aug. 25,
1982) added section 1-115 to the Pension Code, and it amended Pension Code section 1-109 to
change the Board and similar entities from having “trustees” to having “fiduciaries.” The
legislative debates indicate an intent to broaden fiduciaries’ investment authority to the
“prudent man” standard, in hopes of increasing fund investment yields and stimulating the
economy. 82d Ill. Gen. Assem., Senate Proceedings, June 29, 1982, at 41-42 (statements of
Senator Collins). The legislature explicitly adopted this standard from the federal Employee
Retirement Income Security Act (ERISA) (Pub. L. No. 93-406, 88 Stat. 891 (1974)) and
debated whether Illinois’s implementation of it could provide sufficient and comparable
protection to ERISA. 82d Ill. Gen. Assem., Senate Proceedings, June 29, 1982, at 39-40
(statements of Senator D’Arco). Beyond the debates, there is striking overlap of language
between the definitions of “fiduciary,” “party in interest,” and “investment manager” added to
Pension Code section 1-101.12 and ERISA section 3.3 The definitions are nearly identical.
Public Act 82-960 also brought Pension Code section 1-109, defining the duties of fiduciaries,
into an even closer match with ERISA section 4044 than it previously was.
¶ 58 The legislature did more than simply borrow ERISA’s fiduciary standards. It also
borrowed ERISA’s enforcement provision. Pension Code section 1-115 appears under the
caption “Civil Enforcement” and provides:
“A civil action may be brought by the Attorney General or by a participant, beneficiary
or fiduciary in order to:
(a) Obtain appropriate relief under Section 1-114 of this Code;
(b) Enjoin any act or practice which violates any provision of this Code; or
(c) Obtain other appropriate equitable relief to redress any such violation or to
enforce any such provision.” 40 ILCS 5/1-115 (West 2012).
¶ 59 As the State has noted, Pension Code section 1-115 is nearly identical to certain portions of
ERISA section 502, codified at 29 U.S.C. § 1132 (2012) and titled “Civil Enforcement.”
ERISA section 502 provides:
“(a) Persons empowered to bring a civil action
A civil action may be brought—
***
(2) by the Secretary, or by a participant, beneficiary or fiduciary for
appropriate relief under section 1109 of this title;
2
These definitions have been amended slightly and are now spread across 40 ILCS 5/1-101.2 to
1-101.4 (West 2010).
3
29 U.S.C. §§ 1002(21)(A), (14)(A)-(I), (38)(A)-(C) (2012).
4
29 U.S.C. § 1104 (2012).
- 16 -
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or
practice which violates any provision of this subchapter or the terms of the plan,
or (B) to obtain other appropriate equitable relief (i) to redress such violations
or (ii) to enforce any provisions of this subchapter or the terms of the plan;
***
(5) except as otherwise provided in subsection (b) of this section, by the
Secretary (A) to enjoin any act or practice which violates any provision of this
subchapter, or (B) to obtain other appropriate equitable relief (i) to redress such
violation or (ii) to enforce any provision of this subchapter[.]” 29 U.S.C. § 1132
(2012).
¶ 60 With minor variances in wording and structure, the Illinois legislature apparently took its
enforcement provision directly from ERISA. ERISA section 502 allows the Secretary of Labor
or any participant, beneficiary, or fiduciary to bring an action for relief under ERISA section
1109, which requires a breaching fiduciary to make the plan whole. Pension Code section
1-115 allows the Attorney General or any participant, beneficiary, or fiduciary to bring an
action for relief under Pension Code section 1-114, which requires a breaching fiduciary to
make the plan whole. The wording of the ERISA section 1109 and Pension Code section 1-114
provisions is similarly nearly identical.5
¶ 61 ERISA section 502 additionally provides that the Secretary of Labor or any participant,
beneficiary, or fiduciary can bring a civil action “to enjoin any act or practice which violates
any provision of this subchapter,” or for “other appropriate equitable relief” “to redress such
violation” or “to enforce any provision of this subchapter.” 29 U.S.C. § 1132 (2012). Pension
Code section 1-115 allows the Attorney General or any participant, beneficiary, or fiduciary to
bring a civil action to “[e]njoin any act or practice which violates any provision of this Code”
or to “[o]btain other appropriate equitable relief to redress any such violation or to enforce any
such provision.”6 40 ILCS 5/1-115(b), (c) (West 2012). Thus, we can see that the legislature
wrote ERISA fiduciary standards and ERISA fiduciary enforcement into Illinois law with the
same public act.
¶ 62 The legislative debates likewise reveal that the legislature intended for the Attorney
General to be responsible for oversight and enforcement of fiduciary duties:
“Under the prudent man rule comes under the definition of the fiduciary and the
trustees making what … the investment in what is the best, safe, best producing under
the fiduciary authority, and if they make a bad investment, then the Attorney General
can recover damages for that individual’s bad investment into the pension fund, so the
pension fund doesn’t suffer a loss.” (Emphasis added.) 82d Ill. Gen. Assem., Senate
Proceedings, June 29, 1982, at 41 (statements of Senator Davidson).
Pension Code section 1-114 was, like section 1-115 and the “fiduciary” definition, added by
5
Public Act 82-960.
6
To the extent there is a distinction between ERISA subsections 502(a)(2)-(a)(3), (a)(5) and
Pension Code section 1-115, it is that ERISA section 502 additionally allows participants, beneficiaries,
and fiduciaries to seek redress for violations of an ERISA plan as well as applicable law. As the Board’s
determinations are governed by the Pension Code rather than an ERISA plan, any distinction is
immaterial here.
- 17 -
The legislature thus explicitly contemplated the Attorney General would be involved in
enforcing the fiduciary duties of pension boards. The legislature also contemplated that these
challenges for breaches of fiduciary duty would take place not before a pension board itself,
but in court. Prompted with a hypothetical on a fiduciary making a mortgage investment in real
estate that turned out badly, and an inquiry as to whether that fiduciary would face personal
liability, Senator Davidson said the fiduciary would be liable only if he breached the fiduciary
rules. Senator Donnewald replied, “That, of course, is subject to a suit and for the … for the
courts to decide. You don’t really know that until it’s decided.” 82d Ill. Gen. Assem., Senate
Proceedings, June 29, 1982, at 44 (statements of Senator Donnewald). Senator Egan replied, in
part, that Illinois law would be brought “into line [with] the prudent man standard as is set out
in the ERISA congressional legislation, and it is subject to judicial determination in each and
every state ***. *** It’s subject to judicial review.” 82d Ill. Gen. Assem., Senate Proceedings,
June 29, 1982, at 44 (statements of Senator Egan).
¶ 63 In sum, the legislature deliberately and explicitly imported ERISA’s fiduciary duties and
copied its enforcement provision almost exactly. In doing so, it indicated that the Attorney
General would provide oversight of fiduciary duties and would pursue remedies in the circuit
court, where it was alleged a fiduciary failed to meet his or her duty. This presents a close
parallel to enforcement by the Secretary of Labor in federal courts under ERISA.
¶ 64 Federal courts interpreting ERISA section 502 have confronted essentially the same
question we confront today: how to provide for civil enforcement while also respecting
legislative intent that benefits decisions pass through the administrative process first. A
reasonable method to effectuate the legislature’s intent in resolving the conflict between
sections 5-189 and 1-115, then, is to look to how federal law addresses jurisdiction under
ERISA section 502. ERISA generally requires plan participants to exhaust all administrative
remedies before pursuing a remedy in federal court. LaRue v. DeWolff, Boberg & Associates,
Inc., 552 U.S. 248 (2008). The Supreme Court’s analysis of ERISA section 502 has
accordingly been sensitive to distinguishing between those cases which must proceed through
administrative review and those which may proceed directly to court. Id. at 258-59 (Roberts,
C.J., concurring in part and concurring in the judgment, joined by Kennedy, J.) (“The
significance of the distinction between a § 502(a)(1)(B) claim and one under § 502(a)(2) is not
merely a matter of picking the right provision to cite in the complaint. Allowing a
§ 502(a)(1)(B) action to be recast as one under § 502(a)(2) might permit plaintiffs to
circumvent safeguards for plan administrators that have developed under § 502(a)(1)(B).
Among these safeguards is the requirement, recognized by almost all the Courts of Appeals,
[citation], that a participant exhaust the administrative remedies mandated by ERISA § 503, 29
U.S.C. § 1133, before filing suit under § 502(a)(1)(B). Equally significant, this Court has held
that ERISA plans may grant administrators and fiduciaries discretion in determining benefit
eligibility and the meaning of plan terms, decisions that courts may review only for an abuse of
discretion.”).
¶ 65 Federal courts have held that ERISA subsections 502(a)(2)-(a)(3) and (a)(5) can be used
only for equitable remedies, as opposed to remedies at law. See, e.g., Great-West Life &
Annuity Insurance Co. v. Knudson, 534 U.S. 204, 209-19 (2002) (discussing at length the
distinction between legal remedies and equitable remedies under ERISA). Such suits are not
subject to the requirement that a participant exhaust administrative appeals before seeking
redress in the courts. LaRue, 552 U.S. at 258-59 (Roberts, C.J., concurring in part and
- 18 -
concurring in the judgment, joined by Kennedy, J.). This is particularly true where the remedy
sought does not accrue to an individual’s benefit, but instead to the plan as a whole. See Smith
v. Sydnor, 184 F.3d 356 (4th Cir. 1999) (finding no requirement to exhaust administrative
appeals where participant sued for recovery for fiduciary breach on behalf of the plan). This
preserves Congress’s goal that benefit plans be administrable, while effecting Congress’s
intent that there be enforcement in the courts for fiduciary violations of ERISA. See
Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 146 (1985) (describing the
“six carefully integrated civil enforcement provisions found in § 502(a)” as part of “ERISA’s
interlocking, interrelated, and interdependent remedial scheme, which is in turn part of a
‘comprehensive and reticulated statute’ ” (quoting Nachman Corp. v. Pension Benefit
Guaranty Corp., 446 U.S. 359, 361 (1980))).
¶ 66 Importantly, Illinois’s civil enforcement provision is drawn from ERISA subsections
502(a)(2)-(a)(3) and (a)(5). Pension Code section 1-115 does not bear similarity to ERISA
subsection 502(a)(1)(B), which a plan participant may use to recover benefits due. A claim
under Pension Code section 1-115 would not face the administrative exhaustion requirement if
brought under ERISA subsections 502(a)(2)-(a)(3) or (a)(5). This comports with the
underlying purpose of the two statutes: to enforce fiduciary duties against fiduciaries. It is
difficult to conceive that the legislature intended that, where the Attorney General brought an
enforcement action against a fiduciary that would have an effect on the fund, the complaint
would be subject to the exclusive original jurisdiction of the Board. See 40 ILCS 5/5-189
(West 2012) (“The Board shall have exclusive original jurisdiction in all matters relating to or
affecting the fund, including, in addition to all other matters, all claims for annuities, pensions,
benefits or refunds.”).
¶ 67 Having reviewed the federal courts’ careful balance between participants seeking review
of a benefits decision and the broad language of ERISA subsections 502(a)(2)-(a)(3) and
(a)(5), I conclude Illinois courts would best give effect to the legislature’s intent to selectively
incorporate ERISA by striking the same balance. Looking to ERISA to harmonize these
provisions also eliminates the concern that allowing civil enforcement under Pension Code
section 1-115 would cause it to swallow the Board’s jurisdiction under section 5-189. It would
also avoid a repeal by implication, which the majority seeks to avoid. Supra ¶ 36. Instead,
striking this balance would simply open a board’s ordinary adjudications to collateral attack
under the terms of section 1-115, where the action may constitute fiduciary breach.
Accordingly, if a cause of action is cognizable under ERISA subsections 502(a)(2)-(a)(3) and
(a)(5), it should be cognizable under Illinois’s identical provision in Pension Code section
1-115. The question, then, is whether payments in violation of Pension Code section 5-227
would be cognizable as a failure of fiduciary duty under ERISA subsections 502(a)(2)-(a)(3)
and (a)(5). I conclude they would.
¶ 68 Pension Code section 1-109 provides that a fiduciary shall discharge his duties “solely in
the interest of the participants and beneficiaries,”7 that he shall carry out his duties “[w]ith the
care, skill, prudence and diligence under the circumstances then prevailing that a prudent man
acting in a like capacity and familiar with such matters would use in the conduct of an
7
Like sections 1-114 and 1-115 and the definition for “fiduciary,” this language was added by
Public Act 82-960.
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enterprise of a like character with like aims,”8 and that he shall do so “[i]n accordance with the
provisions of the Article of the Pension Code governing the retirement system or pension
fund.”9 40 ILCS 5/1-109 (West 2012). Section 5-227 provides, in relevant part, that “[n]one of
the benefits provided for in this Article shall be paid to any person who is convicted of any
felony relating to or arising out of or in connection with his service as a policeman.” 40 ILCS
5/5-227 (West 2012). The section 1-109 duty provisions largely parallel provisions of ERISA.
¶ 69 To the extent a pension board pays benefits to a person declared to be a nonparticipant
under the Pension Code, it fails to act “solely in the interest of participants and beneficiaries”
under ERISA cases. Such transfers of plan assets without an obligation to pay or without
receiving fair market value for them constitute a breach of fiduciary duty. See, e.g., Reich v.
Compton, 57 F.3d 270, 290-91 (3d Cir. 1995) (plaintiffs stated a claim for breach of duty of
loyalty where trustees sold a promissory note at well below its accounting value, to serve plan
sponsor’s interest rather than participants’); Marshall v. Cuevas, 1 Empl. Benefits Cas. (BNA)
1580 (D.P.R. 1979) (trustees making gratuitous payments to widow of former trustee failed to
administer solely in the interest of participants and beneficiaries). The fiduciary duty of
prudence is not limited to the context of making investment decisions; it extends to plan
administration. See Brock v. Robbins, 830 F.2d 640, 646-48 (7th Cir. 1987) (explaining how
imprudent administration of a benefits plan leads to dissipation of plan assets). The duty of
care is derived from trust law and includes “determining who is in fact a plan participant.”
Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472
U.S. 559, 572 (1985). Fiduciaries likewise have a duty to preserve plan assets to satisfy both
future and present claims, and to “take impartial account of the interests of all beneficiaries.”
Varity Corp. v. Howe, 516 U.S. 489, 514 (1996). Payments to a nonparticipant without any
obligation to pay would dissipate plan assets. Failure to properly determine who is a plan
participant would produce the same result. Accordingly, payments to a person erroneously
deemed a participant would be cognizable as a breach of the duty of prudence under ERISA.
¶ 70 The first form of relief sought by the State here is an injunction against further payments to
Jon Burge. The State has alleged he is a felon, with that felony “relating to or arising out of or
in connection with his service as a policeman.” 40 ILCS 5/5-227 (West 2012). Accordingly, in
the State’s view, Burge is not properly a pension recipient, and payments to him violate the
Pension Code. Cessation of payments to Burge would prevent further dissipation of the fund;
any recovery of amounts already paid to him would bolster the fund. The State’s claim against
the Board falls squarely within the field of ERISA subsections 502(a)(2)-(a)(3) and (a)(5)
enforcement, and accordingly should be permitted under Pension Code section 1-115. It
should be permitted to proceed in the circuit court, without application of any requirement for
administrative exhaustion. Finally, regarding the Attorney General’s claim for repayment of
benefits wrongly paid to Burge, such an action is cognizable under ERISA section 502—but
only to the extent such funds are identifiable and traceable. North American Coal Corp. v.
Roth, 395 F.3d 916, 917 (8th Cir. 2005) (noting that district court’s award of restitution of a
8
This language also appears in 29 U.S.C. § 1104(a)(1)(B) (2012), which is part of ERISA section
404.
9
This provision, likewise, is nearly identical to fiduciary duties under ERISA section 404. 29
U.S.C. § 1104(a)(1)(D) (2012).
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sum certain and its finding of personal liability against participant exceeded scope of equitable
remedies under ERISA subsection 502(a)(3)). Pension Code section 1-115, like ERISA
subsections 502(a)(2)-(a)(3) and (a)(5), authorizes equitable relief, not legal relief.
¶ 71 I would not hold, however, that the legislature intended to give the Attorney General or
other listed parties carte blanche to relitigate every award of benefits made by the Pension
Board. The legislature, in enacting the Pension Code, outlined that pension boards should be
given substantial deference in making benefits decisions, and I find nothing in the legislative
history of section 1-115 indicating that this deference was meant to end. The State’s claim
concerns a benefits decision made by the Board, and a trial court should review that decision in
accordance with the deference prescribed by the Pension Code. Accord Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (holding, in ERISA section 502(a)(1) action,
that plan trustees are to be given deference in their interpretations of the plan where the plan
grants trustees the power to construe plan provisions). Rather than being guided by an ERISA
plan, the Board is guided by the Pension Code. Under the Pension Code, the Board has been
granted deference in the form of the Administrative Review Law applying to its administrative
decisions, including benefits decisions. 40 ILCS 5/5-228 (West 2012). Where courts review
administrative decisions, factual findings are reviewed as to whether they are against the
manifest weight of the evidence. Provena Covenant Medical Center v. Department of
Revenue, 236 Ill. 2d 368, 386-87 (2010). Pure questions of law are reviewed de novo. Id. at
387. On a mixed question of law and fact, the determination of an administrative agency is
reviewed for clear error. Id. Where the Attorney General, a participant, a beneficiary, or a
fiduciary brings a challenge that states a claim for a fiduciary breach arising from a benefits
decision, the pension board’s benefits decision is to be presumed correct. Even where a
challenger has alleged that a benefits decision violates some provision of the Pension Code or
other fiduciary duty, such a challenger would still face a high bar to survive a motion for
dismissal or summary judgment. Where, as here, the decision to be reviewed is a deadlock on
whether to terminate, a court would essentially review for clear error the Board’s tie-vote
determination that Burge’s benefits would continue.
¶ 72 The majority opinion purports to answer “who decides whether the pension benefits should
be terminated.” The majority’s decision is much broader than that—the majority decides that
benefit decisions by the Board are immune to challenge by the Attorney General. The
inevitable additional consequence is that the Board’s decisions favoring a participant or
beneficiary are immune to challenge by anyone at any time, no matter how erroneous they
might be, so long as those decisions are not disloyal.
¶ 73 The majority addresses some of the points raised in this dissent. For example, the majority
rejects the notion that the circuit court could view a pension board’s payments to a
nonparticipant as a breach of the duty of loyalty. Supra ¶ 41. Yet the majority declines entirely
to address the discussion of how payments to Burge might constitute a breach of the duty of
prudence, or the duty to obey the Pension Code. 40 ILCS 5/1-109 (West 2012). The majority’s
disregard of these duties, while allowing for challenges for disloyalty, creates an artificial
distinction without tether to the statute. Trustees can breach fiduciary duty without self-dealing
or disloyalty, yet the majority opinion offers no avenue for a court to review such breaches.
¶ 74 The majority also calls up a specter of no one being willing to serve on pension boards, if
trustees might become personally obligated to reimburse the pension fund for an honest error.
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Supra ¶ 42. But the legislature has already addressed that fear. Section 1-107 allows pension
boards to indemnify for conduct constituting simple negligence. 40 ILCS 5/1-107 (West
2012). It likewise provides that a board may not indemnify trustees for “wilful misconduct and
gross negligence.” Id. The legislature, by outlining how much indemnification boards may
offer, clearly contemplated that trustees might be subject to suit for errors—it included section
1-107 to prevent the exact problem the majority claims will occur if sections 1-114 and 1-115
are given their plain meaning. The majority effectively creates an enhanced mental state
requirement for section 1-114—“bad faith, self-dealing or *** similar wrongdoing.” Supra
¶ 40. Further, the majority’s inclusion of “ ‘bad intent’ ” fiduciary breaches under section
1-115 and exclusion of prudence and Pension Code breaches implicitly provides that Board
fiduciaries are now immunized to challenge for even gross negligence, a breach for which
section 1-107 would not even permit indemnification. For fear of making sections 1-114 and
1-115 too stringent against fiduciaries, the majority hinders those sections from holding
fiduciaries accountable under seven chapters of the Pension Code.
¶ 75 The majority opinion makes much of the State’s complaint not characterizing payments to
Burge as a fiduciary breach. I disagree that the complaint does not state the basis of a complaint
for fiduciary breach. The complaint states that “[b]y continuing to pay public pension benefits
to Jon Burge following three felony convictions relating to, arising out of, and in connection
with his service as a police officer, Defendant Board and Defendant Trustees are violating
Section 227 of Article 5 of the Illinois Pension Code,” and asks for injunctive relief requiring
the Board “to comply with Section 5-227.” Section 1-109 is not mentioned in the complaint,
but it imposes upon the Board a fiduciary duty to administer “[i]n accordance with the
provisions of the Article of the Pension Code governing the retirement system or pension
fund.” 40 ILCS 5/1-109(d) (West 2012). The complaint both alleges a violation of the Pension
Code and asks for an injunction requiring the Board to comply with the Code. The Board has a
fiduciary duty to administer in accordance with the Code. It is no stretch to find the State has,
in its brief complaint, alleged the basis for a breach of fiduciary duty. The majority’s resolution
suggests a rote allegation of fiduciary disloyalty in the complaint would have granted the
circuit court subject-matter jurisdiction. Yet a similar allegation of fiduciary imprudence or the
already-present allegation of a fiduciary violating the Pension Code would not suffice. I cannot
agree with this reasoning.
¶ 76 I do not take issue with the majority opinion’s review of the appellate court’s analysis of
Pension Code section 5-182.
¶ 77 The Attorney General sought here to bring an enforcement action under Pension Code
section 1-115, claiming that payments to Jon Burge violated section 5-227. Because such
claims are cognizable under the federal model for Pension Code section 1-115, they should be
cognizable under Pension Code section 1-115. This result carries out the legislative intent that
participants, beneficiaries, fiduciaries, and the Attorney General have a role in ensuring
pension boards live up to their fiduciary duties. I would reject the State’s offered explanation
of concurrent jurisdiction as allowing too broad a range of claims. Limiting Pension Code
section 1-115 to those claims cognizable under ERISA subsections 502(a)(2)-(a)(3) and (a)(5)
also avoids writing administrative review out of the statute or compromising the Board’s
“exclusive original jurisdiction” over decisions relating to the fund. It is only where a decision
by the Board can be characterized as a failure of fiduciary duty remediable by ERISA
subsections 502(a)(2)-(a)(3) or (a)(5) that the Board’s exclusive original jurisdiction and
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requirement of administrative review would give way. In those situations, the listed persons
could bring an action in the circuit court. Even then, the Board’s benefits decisions should still
receive deference as prescribed in section 5-228.
¶ 78 I agree with the majority’s conclusion that the impact on fiscal certainty of the fund “is a
determination for the legislature,” (supra ¶ 34)—but I believe the legislature has already
spoken. The legislature intended that section 1-115 provide for enforcement, in circuit court, of
fiduciary responsibilities. To do so, it borrowed ERISA’s fiduciary roles and its fiduciary
enforcement mechanism. Reading either Pension Code section 1-115 or section 5-189 too
broadly creates irreconcilable conflicts in the Pension Code. The majority opinion makes no
attempt to harmonize the two sections. In doing so, it misses legislative history that fairly
conclusively signals the legislature’s intent. I respectfully dissent.
¶ 79 JUSTICE KILBRIDE joins in this dissent.
¶ 80 JUSTICE FREEMAN, dissenting:
¶ 81 The majority holds that Illinois circuit courts lack jurisdiction to enjoin a violation of
section 5-227 of the Illinois Pension Code (Pension Code), where the alleged violation results
from a decision relating to a claimant’s entitlement to pension benefits. I disagree and would
find that circuit courts have concurrent jurisdiction over such claims where the Retirement
Board of the Policemen’s Annuity and Benefit Fund of Chicago also has authority to address
the same matter. Therefore, I respectfully dissent.
¶ 82 As observed by the majority, “[s]ubject matter jurisdiction refers to the court’s power to
hear and determine cases of the general class to which the proceeding in question belongs.
[Citation.]” (Internal quotation marks omitted.) Crossroads Ford Truck Sales, Inc. v. Sterling
Truck Corp., 2011 IL 111611, ¶ 27. Except in certain particular circumstances, circuit courts
“have original jurisdiction of all justiciable matters.” Ill. Const. 1970, art. VI, § 9; see also
People v. NL Industries, 152 Ill. 2d 82, 96 (1992). The legislature cannot preclude or limit the
jurisdiction of the circuit courts, except where it enacts a comprehensive statutory scheme that
creates rights having no common law counterpart and explicitly vests original jurisdiction in an
administrative agency. Crossroads Ford Truck Sales, Inc., 2011 IL 111611, ¶ 27; NL
Industries, 152 Ill. 2d at 96-97. The determination of whether jurisdiction over a particular
matter is exclusive in the administrative agency or is concurrent in the circuit courts is a
question of statutory interpretation. Crossroads Ford Truck Sales, Inc., 2011 IL 111611, ¶ 27.
¶ 83 The primary goal of statutory construction is to ascertain and give effect to the intent of the
legislature. Hooker v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 2013 IL
114811, ¶ 37; Jahn v. Troy Fire Protection District, 163 Ill. 2d 275, 282 (1994). The best
evidence of this intent is the language of the statute, which must be given its plain and ordinary
meaning. Hooker, 2013 IL 114811, ¶ 37. The court should not depart from the plain meaning
of a statutory provision by reading into it exceptions, limitations, or conditions that the
legislature did not include. Gaffney v. Board of Trustees of the Orland Fire Protection District,
2012 IL 110012, ¶ 56; U.S. Bank National Ass’n v. Clark, 216 Ill. 2d 334, 346 (2005). Also, the
court may not rewrite statutory language so it conforms to the judiciary’s view of orderliness
and public policy. Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d 546, 557-58
(2009).
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¶ 84 When two statutes relate to the same subject and cannot be construed harmoniously, courts
are guided by general rules of statutory construction to resolve the conflict. Village of
Chatham, Illinois v. County of Sangamon, Illinois, 216 Ill. 2d 402, 431 (2005); Williams v.
Illinois State Scholarship Comm’n, 139 Ill. 2d 24, 57 (1990). Specific statutory provisions will
control over general provisions on the same subject. Village of Chatham, 216 Ill. 2d at 431;
Williams, 139 Ill. 2d at 57. However, a more specific statute does not control where it appears
that the legislature intended that a general provision would be controlling. Village of Chatham,
216 Ill. 2d at 432; see also Stone v. Department of Employment Security Board of Review, 151
Ill. 2d 257, 266 (1992); 2B Norman J. Singer, Sutherland on Statutory Construction § 51.05, at
174 (5th ed. 1992). Also, where two statutes conflict, the more recent takes precedence over
the earlier because it constitutes the later expression of legislative intent. Village of Chatham,
216 Ill. 2d at 431; Jahn, 163 Ill. 2d at 282.
¶ 85 The resolution of this appeal depends upon the statutory construction of section 5-189 and
section 1-115 of the Pension Code. Section 5-189, which was enacted in 1963, provides that
the Board has the power to authorize the payment of any annuity, pension, or benefit granted
under the Policemen’s Annuity and Benefit Fund, as well as the power to increase, reduce, or
suspend any such annuity, pension, or benefit where any portion thereof was granted as the
result of misrepresentation, fraud, or error, provided the annuitant, pensioner or beneficiary is
given notice and an opportunity to be heard regarding such action. 40 ILCS 5/5-189 (West
2012). This section was amended in 1972 to further provide that “[t]he Board shall have
exclusive original jurisdiction in all matters relating to or affecting the fund, including, in
addition to all other matters, all claims for annuities, pensions, benefits or refunds.” Id.
¶ 86 In 1982, the legislature enacted section 1-115, which created a mechanism for civil
enforcement of the terms of the Pension Code. The language of section 1-115 provides as
follows:
“A civil action may be brought by the Attorney General or by a participant, beneficiary
or fiduciary in order to:
(a) Obtain appropriate relief under Section 1-114 of this Code;
(b) Enjoin any act or practice which violates any provision of this Code; or
(c) Obtain other appropriate equitable relief to redress any such violation or to
enforce any such provision.” 40 ILCS 5/1-115 (West 2012).
¶ 87 Under section 5-189, the Board has exclusive original jurisdiction over all matters relating
to or affecting the Fund. Yet, section 1-115 vests the circuit courts with jurisdiction to address
claims seeking to enjoin any act or practice that violates any provision of the Pension Code,
provided the claim is brought by the Attorney General or by a participant, beneficiary, or
fiduciary of the Fund. Section 1-115 contains no words of limitation or condition that would
preclude the filing of such an action where the alleged violation relates to or affects the Fund.
40 ILCS 5/1-115(b) (West 2012). Thus, sections 1-115 and 5-189 of the Pension Code are in
direct conflict. In this circumstance, we are tasked with interpreting them in a manner that best
gives effect to the intent of the legislature. In so doing, the majority relies on the common rule
of statutory construction that a specific provision controls over a general one. Supra ¶ 31.
However, this approach essentially nullifies the express language of section 1-115 with regard
to matters that relate to or affect the Fund.
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¶ 88 I would employ another established canon of statutory construction requiring that the more
recent statute takes precedence over the earlier provision, as it represents the later expression
of legislative intent. Village of Chatham, 216 Ill. 2d at 431; Jahn, 163 Ill. 2d at 282. I believe
that application of this rule goes further in promoting the clear intent of the legislature, the
underlying purpose of section 1-115, and the preservation of the public fisc.
¶ 89 The clear and unambiguous language of section 1-115(b) grants the circuit courts
jurisdiction over claims seeking to enjoin “any act or practice” that “violates any provision” of
the Pension Code. 40 ILCS 5/1-115(b) (West 2012). By adopting this comprehensive
language, without restriction, the legislature evinced its intent to permit the filing of a civil
action based on a broad range of conduct or decisions that may constitute a violation of a
provision of the Code, even where the alleged violation results from a Board adjudication
regarding pension benefits.
¶ 90 This conclusion is supported by the legislative history. As noted above, section 5-189 was
amended in 1972 to provide that the Board has “exclusive original jurisdiction” in all matters
relating to or affecting the fund, including claims for annuities, pensions, benefits or refunds.
40 ILCS 5/5-189 (West 2012). This provision was in effect for a decade before the General
Assembly took deliberate action to create the civil enforcement provision in section 1-115 in
1982. Because section 1-115(b) constitutes the later expression of legislative intent, it should
control to the extent that it conflicts with section 5-189. See generally U.S. Bank National
Ass’n, 216 Ill. 2d at 344-50; see also Village of Chatham, 216 Ill. 2d at 431; Jahn, 163 Ill. 2d at
282; Williams, 139 Ill. 2d at 58.
¶ 91 The obvious purpose of section 1-115 is to provide a mechanism by which an act or
practice by the Board that results in a violation of the Pension Code may be remedied. Because
Board proceedings are non-adversarial, a decision in favor of a claimant is not subject to
challenge or administrative review. In light of the fact that there is no adverse party who can
challenge a favorable decision, practices and decisions that violate the terms of the Pension
Code, to the possible detriment to the public or other fund participants and beneficiaries, could
persist with no method of review. Section 1-115 provides a means to correct such a decision or
practice. The plain and natural meaning of section 1-115 permits the filing of an action by the
Attorney General or a plan participant, beneficiary, or fiduciary to enjoin any act or practice
that violates any provision of the Pension Code. Accordingly, circuit courts have concurrent
jurisdiction over claims to stop a violation of the Pension Code even when the Board also has
jurisdiction over the same matter. This interpretation of section 1-115(b) does not negate
section 5-189 in its entirety because a person seeking to collect benefits from the Fund must
pursue the Board’s administrative claim process and then proceed with administrative review
if those benefits are denied.
¶ 92 Moreover, the terms of section 1-115 are substantially similar to portions of section 502(a)
of the Employment Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1132(a)
(2006)), which permit the filing of a civil action by the Secretary of Labor or persons with an
interest in the subject retirement plan to enforce the terms of the ERISA statute and of the
retirement plan. Compare 29 U.S.C. §§ 1132(a)(3)(A), (5)(A) (2006), with 40 ILCS
5/1-115(b) (West 2012). The “broad” language in those “catchall” provisions has been
interpreted as creating a means of obtaining equitable relief for violations of the statute, where
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an adequate remedy is not provided elsewhere. See Varity Corp. v. Howe, 516 U.S. 489, 510,
512 (1996).
¶ 93 In my view, the legislature enacted section 1-115 to provide an important remedy that
serves to protect public funds by granting the circuit courts concurrent jurisdiction to hear civil
actions to enjoin acts or practices that violate the terms of the Pension Code. The interpretation
adopted by the majority departs from the plain language of section 1-115 by reading into it
conditions that preclude the filing of such an action where that alleged violation results from an
adjudicatory decision by the Board. I cannot agree that this result is what the legislature
intended.
¶ 94 Notwithstanding the views expressed above, I agree with the majority’s conclusion that the
appellate court erred in concluding that the Board violated section 5-182 of the Pension Code
when it determined that the tie vote required the continuation of defendant Burge’s pension
payments.
¶ 95 I disagree with the majority’s holding that the circuit court lacked jurisdiction to address
the Attorney General’s complaint seeking to enjoin the payment of pension benefits in
violation of section 5-227 of the Pension Code. I would affirm the judgment of the appellate
court, which ordered that the cause be remanded to the circuit court for further proceedings on
the Attorney General’s complaint. Accordingly, I respectfully dissent.
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