Hooker v. Retirement Board of the Firemen's Annuity and Benefit Fund , 2012 IL App (1st) 111625 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Hooker v. Retirement Board of the Firemen’s Annuity & Benefit Fund,
2012 IL App (1st) 111625Appellate Court DANIEL HOOKER, as Special Representative/Heir, and JUNE E.
Caption MURPHY, Individually and on Behalf of All Other Persons Similarly
Situated, Plaintiffs-Appellants, v. RETIREMENT BOARD OF THE
FIREMEN’S ANNUITY AND BENEFIT FUND OF CHICAGO,
Defendant-Appellee.
District & No. First District, Third Division
Docket No. 1-11-1625
Filed May 9, 2012
Rehearing denied July 12, 2012
Modified on denial of July 18, 2012
rehearing
Held In an action by two widows of firefighters seeking a declaratory judgment
(Note: This syllabus that the defendant retirement board had to include duty availability pay
constitutes no part of in the current salary attached to the applicable positions in calculating the
the opinion of the court widows’ annuities under section 6-140 of the Pension Code and the
but has been prepared certification of the class of similarly situated widows, the trial court’s
by the Reporter of entry of summary judgment for the retirement board as to the calculation
Decisions for the of the annuities and the court’s denial of class certification were reversed
convenience of the and the cause was remanded, since section 6-111 of the Pension Code
reader.)
required the inclusion of the duty availability pay in the current salary
attached to all firefighter positions, including the positions attained by the
widows’ husbands, in calculating the annuities and the proposed class
met the statutory criteria for class certification.
Decision Under Appeal from the Circuit Court of Cook County, No. 03-CH-02268; the
Review Hon. Sebastian T. Patti, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Martin O. Holland, of Evergreen Park, for appellants.
Appeal
Burke Burns & Pinelli, Ltd., of Chicago (Mary Patricia Burns, Vincent
D. Pinelli, and Madeleine S. Podesta, of counsel), for appellee.
Panel JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Presiding Justice Steele and Justice Salone concurred in the judgment and
opinion.
OPINION
¶1 In this case we must interpret sections 6-111 and 6-140 of the Illinois Pension Code
(Code) (40 ILCS 5/6-111, 6-140 (West 2008)). Two widows of firefighters sued the
Retirement Board of the Firemen’s Annuity and Benefit Fund (Board) for a judgment
declaring that the Board must include duty availability pay (DAP) in the current salary
attached to the applicable positions for purposes of calculating the widows’ annuities under
section 6-140 of the Code. The widows sought certification of the class of all similarly
situated widows. The trial court granted the Board summary judgment on the complaint, but
it refused to certify the class. On the widows’ appeal, we hold that section 6-111 requires the
inclusion of DAP in the current salary attached to all firefighter positions, including the
positions attained by the widows’ husbands, for purposes of calculating annuities under
section 6-140. We also find that the trial court abused its discretion when it refused to certify
the proposed class. Therefore, we reverse and remand for further proceedings in accord with
this opinion.
¶2 BACKGROUND
¶3 James Murphy began working for the Chicago fire department in 1966. In 1985, he
suffered a stroke while responding to a fire. The Board awarded James a duty disability
benefit under section 6-151 of the Code (Ill. Rev. Stat. 1985, ch. 108½, ¶ 6-151 (now see 40
ILCS 5/6-151 (West 2008))). James died in 1998. His widow, June Murphy, filed a claim
with the Board for benefits. The Board awarded June the widow’s minimum annuity. See 40
ILCS 5/6-141.1 (West 2000).
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¶4 Michael Hooker began working for the Chicago fire department in 1967. He suffered a
debilitating injury while working for the fire department in 1988. The Board awarded him
a duty disability benefit. Michael died in 2000. Michael’s widow, Elaine Hooker, applied to
the Board for benefits. The Board awarded Elaine the widow’s minimum annuity.
¶5 Both June and Elaine thought the Code entitled them to the annuities for widows of
firemen who died in the line of duty. See 40 ILCS 5/6-140 (West 2000). They filed a
complaint for administrative review of their awards of the minimum annuity. The trial court,
following Bertucci v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 351 Ill.
App. 3d 368 (2004), entered a judgment requiring the Board to award June and Elaine the
line-of-duty death benefits prescribed in section 6-140 of the Code. See 40 ILCS 5/6-140
(West 2000). The Board made the benefits retroactive to the date the appellate court
published Bertucci.
¶6 In 2004, the General Assembly adopted Public Act 93-654, which amended the Code to
expand the reach of the Code and to increase some of the benefits available under the Code.
Pub. Act 93-654 (eff. Jan. 1, 2004). The Code, as amended, required the Board to include
DAP in the salaries of some employees for purposes of the pension and annuity calculations.
June and Elaine interpreted the amendment to increase their benefits. They also believed the
Code required the Board to award the line-of-duty retroactively to the dates their husbands
died. June and Elaine amended their complaint for administrative review to seek further
review for the Board’s revised decision, asking for the increased line-of-duty benefits from
the dates of their husbands’ deaths, and not at the date of the Bertucci decision.
¶7 They also sought, in a second count of their amended complaint, a judgment declaring
that the Board miscalculated the benefits when it did not include DAP in the calculation of
their annuities, with the addition of DAP to increase the annuities starting on the effective
date of Public Act 93-654. They asked leave to bring the claim in the second count, related
to DAP, as a class action.
¶8 June and Elaine defined the proposed class as:
“all surviving spouses (widows) of Chicago firefighters who:
a. were determined by the Board to be permanently and duty disabled under
section 6-151 and 6-151.1 of the Code as a result of injuries or illnesses received in
the course of their duties so as to be unable to return to active duty prior to their
death; and,
b. died *** prior to reaching the age of retirement.”
They added a further qualification, that the class members must have the right to receive
benefits pursuant to section 6-140 of the Code. They presented to the court a list of more than
100 widows who, according to June and Elaine, met the criteria for inclusion in the proposed
class. They claimed that the Board systematically denied all class members part of the
annuities owed to the class members, because the Board did not include DAP in the
calculation of the annuities.
¶9 The trial court permitted June and Elaine to file the amended complaint, but the court
stayed proceedings on the class action claim pending resolution of the first count. The court
reversed the Board’s decision limiting June’s and Elaine’s benefits, and ordered the Board
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to pay June and Elaine benefits prescribed by section 6-140 of the Code retroactively to the
dates of their spouses’ deaths. The Board appealed and this court affirmed the decision.
Hooker v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 391 Ill. App. 3d 129(2009).
¶ 10 On remand, the Board paid June and Elaine benefits under section 6-140, but it did not
include DAP in its calculation of the amount due under that section. The Board argued that
the Code required no adjustment to the annuities for DAP because James and Michael never
received DAP. The trial court denied June and Elaine’s motion to certify the class, and the
court granted the Board’s motion for summary judgment on the complaint. June and Elaine
now appeal.
¶ 11 ANALYSIS
¶ 12 Duty Availability Pay
¶ 13 This case turns on the interpretation of a statute, and thus it presents a question of law
that we review de novo. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,
503 (2000). We must ascertain and give effect to the legislature’s intent. Michigan Avenue,
191 Ill. 2d at 503-04. To do so we look first to the plain and ordinary meaning of the
statutory language, viewing all provisions of the statute as a whole and interpreting each
section of the statute in light of other relevant statutory provisions. Michigan Avenue, 191
Ill. 2d at 504.
¶ 14 In Public Act 93-654, the legislature modified the calculation of pensions and annuities
for firefighters and their families. Some sections of the Code make payments to the
firefighters and their families depend on the amount the firefighters received in salary when
they worked as firefighters. See, e.g., 40 ILCS 5/6-123 (West 2008) (annuity based on salary
firefighter received one year prior to retirement); 40 ILCS 5/6-124.1 (West 2008) (annuity
based on average salary for 10-year period plus a percentage of salary earned in other years).
Other sections of the Code make the payments to the firefighters and their families depend
only on the “current annual *** salary attached to the classified *** position” the firefighter
had attained before his death or retirement. 40 ILCS 5/6-148 (West 2008).
¶ 15 Section 6-111 of the Code, as amended, provides:
“(i) Beginning on the effective date of this amendatory Act *** [Public Act 93-654]
(and for any period prior to that date for which contributions have been paid under
subsection (j) of this Section), the salary of a fireman, as calculated for any purpose under
this Article, shall include any duty availability pay received by the fireman ***, and
references in this Article to the salary attached to or appropriated for the permanent
assigned position or classified career service rank, grade, or position of the fireman shall
be deemed to include that duty availability pay.
(j) An active or former fireman who received duty availability pay at any time after
December 31, 1994 and before the effective date of this amendatory Act *** who ***
retired during that period *** may elect to have that duty availability pay included in the
calculation of his or her salary for any portion of that period for which the pay was
received, by applying in writing and paying to the Fund, before January 1, 2006, the
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corresponding employee contribution, without interest.
***
In the case of an active or former fireman who (i) dies before January 1, 2006 without
making an election under this subsection and (ii) was eligible to make an election under
this subsection at the time of death (or would have been eligible had the death occurred
after the effective date of this amendatory Act), any surviving spouse, child, or parent of
the fireman who is eligible to receive a benefit under this Article based on the fireman’s
salary may make that election and pay the required contribution on behalf of the deceased
fireman. ***
Any duty availability pay for which the corresponding employee contribution has not
been paid shall not be included in the calculation of salary.” 40 ILCS 5/6-111(i), (j)
(West 2008).
¶ 16 Section 6-140, which applies to June, Elaine, and all members of the proposed class,
provides:
“The annuity for the widow of a fireman whose death results from the performance of
an act or acts of duty shall be an amount equal to 50% of the current annual salary
attached to the classified position to which the fireman was certified at the time of his
death and 75% thereof after December 31, 1972.” 40 ILCS 5/6-140(a) (West 2008).
The section makes the amount of the annuity depend not on the deceased firefighter’s salary
at any time; rather, the annuity depends on “the current annual salary attached to the
classified position to which the fireman was certified at the time of his death.” 40 ILCS 5/6-
140(a) (West 2008). The amount of the widow’s annuity increases whenever the fire
department increases the pay for firefighters at the decedent’s pay grade, even though the
decedent never received the increased pay. Kozak v. Retirement Board of Firemen’s Annuity
& Benefit Fund, 95 Ill. 2d 211, 215 (1983). Section 6-111(i) clarifies that “references in this
Article to the salary attached to or appropriated for the permanent assigned position or
classified career service rank, grade, or position of the fireman shall be deemed to include
that duty availability pay.” 40 ILCS 5/6-111(i) (West 2008). Thus, the Code provides that the
Board must include DAP in the salary attached to the positions Michael and James attained
before their injuries. 40 ILCS 5/6-111, 6-140 (West 2008).
¶ 17 The Board contends that it cannot include DAP in the calculation of June’s and Elaine’s
annuities, because section 6-111(i) provides only that “the salary of a fireman, as calculated
for any purpose under this Article, shall include any duty availability pay received by the
fireman.” 40 ILCS 5/6-111(i) (West 2008). According to the Board, since James and Michael
never received any DAP, the Board must not include DAP in calculation of their salaries.
Moreover, even if they had received DAP, the Board could include that amount in the
calculation of their salaries only if they or their widows made the appropriate election under
section 6-111(j). James, Michael, June and Elaine made no such election.
¶ 18 We agree with the Board that for any calculation based on the salaries James and Michael
received, the Board should not include duty availability pay in the calculation. However, the
legislature expressly chose to make the annuity in section 6-140 depend on “the current
annual salary attached to the classified position to which the fireman was certified at the time
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of his death,” and not on the salary the fireman received. 40 ILCS 5/6-140(a) (West 2008).
¶ 19 Next, the Board claims that section 6-142 of the Code bars June and Elaine from having
the Board include DAP in the calculation of their annuities. Section 6-142 provides:
“If the widow of a fireman who died before January 16, 2004 becomes eligible for
a widow’s annuity because of Public Act 93-654, the annuity shall begin to accrue on the
date of application for the annuity, but in no event sooner than January 16, 2004.” 40
ILCS 5/6-142 (West 2008).
The Board argues that it cannot recalculate the annuities for June and Elaine because neither
applied for annuities after the amendment to the Code. Both applied for their annuities when
their husbands died, years before the amendment took effect.
¶ 20 Section 6-142 by its own terms applies only to widows who became eligible for widows’
annuities because of the amendments in Public Act 93-654. Both June and Elaine qualified
for widows’ annuities prior to the amendment. The Board presents no case, statute or
regulation to support its claim that the section requires a new application from every widow
entitled to an increase in her annuity because of the amendment. In view of the plain
language of the section, we must reject the Board’s argument. See Michigan Avenue, 191 Ill.
2d at 504.
¶ 21 Applying the unambiguous language of sections 6-111(i) and 6-140, we find that the
Board must pay June and Elaine annuities based on the current salaries for the positions their
husbands attained as firefighters, and those current salaries must include DAP. We reverse
the judgment of the trial court and remand for calculation of the appropriate award of
annuities.
¶ 22 Class Certification
¶ 23 June and Elaine also appeal from the denial of their motion to certify the class of more
than 100 similarly situated widows who are eligible for benefits under section 6-140 of the
Code and whose husbands had duty-related disabilities and who died before reaching
retirement age. The Board contends that the trial court could not certify the class because the
Administrative Review Law (735 ILCS 5/3-101 to 3-113 (West 2008)) does not permit class
actions in administrative review. See People ex rel. Thompson v. Property Tax Appeal
Board, 22 Ill. App. 3d 316, 319 (1974).
¶ 24 On this issue, we adopt the reasoning of the trial court, which relied on the decision in
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). The Board of Education
court held:
“A systemic miscalculation falls outside the definition of an ‘administrative decision’
under the review law. It is not a ‘decision, order or determination of any administrative
agency rendered in a particular case,’ but a ‘rule[ ], regulation[ ], standard[ ], or
statement[ ] of policy.’ ” Board of Education, 395 Ill. App. 3d at 744 (quoting 735 ILCS
5/3-101 (West 2006)).
¶ 25 Here, too, the Board systematically miscalculated the annuities due to the class members
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by excluding DAP from the calculation. June and Elaine seek a declaratory judgment
clarifying the meaning of the amendatory act, not review of a formal administrative decision
concerning that act. Therefore, the Administrative Review Law does not require dismissal
of the motion for class certification.
¶ 26 This court will not reverse the trial court’s decision on a motion for class certification
unless the trial court abused its discretion or applied impermissible legal criteria. Gordon v.
Boden, 224 Ill. App. 3d 195, 199-200 (1991). “However, ‘[a] trial court’s discretion in
deciding whether to certify a class action is not unlimited and is bounded by and must be
exercised within the framework of the civil procedure rule governing class actions.’ ” Avery
v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 126 (2005) (quoting 4 Alba
Conte & Herbert B. Newberg, Newberg on Class Actions § 13:62, at 475 (4th ed. 2002)).
¶ 27 Section 2-801 of the Code of Civil Procedure prescribes the legal criteria a court must
consider when reviewing a motion for class certification:
“An action may be maintained as a class action in any court of this State and a party
may sue or be sued as a representative party of the class only if the court finds:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions
predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the
class.
(4) The class action is an appropriate method for the fair and efficient adjudication
of the controversy.” 735 ILCS 5/2-801 (West 2000).
¶ 28 With more than 100 members, the class meets the numerosity requirement. See Wood
River Area Development Corp. v. Germania Federal Savings & Loan Ass’n, 198 Ill. App.
3d 445, 450 (1990). The Board does not challenge June’s and Elaine’s ability to fairly and
adequately protect the interests of the class.
¶ 29 “ ‘A common question may be shown when the claims of the individual class members
are based upon the common application of a statute or when the members are aggrieved by
the same or similar conduct [citation] or a pattern of conduct [citations].’ ” Clark v. TAP
Pharmaceutical Products, Inc., 343 Ill. App. 3d 538, 548 (2003) (quoting Avery v. State
Farm Mutual Automobile Insurance Co., 321 Ill. App. 3d 269, 280 (2001), aff’d in part &
rev’d in part, 216 Ill. 2d 100 (2005)). All of the class members need a resolution of the
question of whether the Board must include DAP in the calculation of the class members’
annuities under section 6-140. Because none of the class members complains here about any
benefits other than section 6-140 annuities, and they maintain only that the Board should
include DAP in the “current annual salary attached to the classified position to which the
fireman was certified at the time of his death,” the common question apparently
predominates over any questions affecting individual members of the class.
¶ 30 The Board contends that each class member presents an individual question about how
much DAP the firefighters received before retiring, but we have already held that section 6-
140 annuities depend on only the salary assigned to the position the firefighter held at the
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time of his injury, and not on the salary (or DAP) the firefighter received.
¶ 31 The trial court found a class action inappropriate because each widow will need a
separate determination of the amount of benefits she received and the amount the Board must
pay. June and Elaine contend that most members of the class will receive exactly the same
amount because of the inclusion of DAP in the annuity calculation. In support of their motion
for summary judgment, they presented to the trial court a copy of the City of Chicago’s
contract with the Chicago Fire Fighters Union for 2007 through 2012. According to the
contract, all firefighters earned DAP of $730 per quarter from January 2006 through January
2011, and the DAP for all firefighters increased to $755 per quarter during 2011, and to $805
per quarter during 2012. Under section 6-140, the Board should pay each widow an annuity
of 75% of the amount of the current salary for the position the firefighter attained before his
debilitating injury. 40 ILCS 5/6-140(a) (West 2008). For all class members, the Board has
already made a preliminary calculation of annuities, only omitting the contractually fixed
DAP. Thus, every living class member entitled to benefits before 2006 should receive an
additional $547.50 (.75 × $730) per quarter for January 2006 until January 2011, plus
$566.25 (.75 × $755) per quarter for 2011, plus $603.75 (.75 × $805) per quarter for 2012.
The individual calculations depend on the dates the firefighters died only if they died after
the effective date of Public Act 93-654.
¶ 32 “[A] class action will not be defeated solely because of some factual variations among
class members’ grievances.” Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th Cir.
1980), quoted in Clark, 343 Ill. App. 3d at 548. The minor variations here do not
predominate over the common question. Under the circumstances of this case, where a
contract fixes the amount of DAP and the statute fixes the calculation of the annuity based
on the inclusion of DAP, we find that the class action can serve as an efficient vehicle for
resolving the common question concerning the amount of the widows’ annuities.
¶ 33 Thus, June and Elaine have shown that the proposed class meets all four of the statutory
criteria for class certification. We hold that the trial court erred when it denied class
certification for the firefighters’ widows who met the criteria for inclusion in the proposed
class. See Purcell & Wardrope Chartered v. Hertz Corp., 175 Ill. App. 3d 1069, 1077-79
(1988).
¶ 34 Abatement
¶ 35 Elaine died on September 20, 2010. Elaine’s attorney asks us to decide whether her death
abates her entitlement to section 6-140 retroactive benefits. The Board contends that we lack
jurisdiction to decide the issue because the trial court never considered the issue. See
Sylvester v. Chicago Park District, 179 Ill. 2d 500, 507 (1997).
¶ 36 “[A] reviewing court has a duty to consider its jurisdiction sua sponte.” Circle
Management, LLC v. Olivier, 378 Ill. App. 3d 601, 607 (2007). This court lacks jurisdiction
to decide an appeal if the parties no longer face an actual controversy, as when events make
it impossible for this court to render effective relief to the appealing party. Circle
Management, 378 Ill. App. 3d at 607. This court has jurisdiction to consider whether Elaine’s
death makes her appeal moot. However, neither party has suggested that her death moots the
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appeal, and we see no reason to believe that her death would make her appeal moot. We will
not extend our review of our jurisdiction to review an issue that the trial court never
addressed, where the issue does not appear to moot the appeal, and where neither party
argues that the issue moots the appeal. If the Board fails to pay Elaine’s estate the benefits
it withheld from Elaine while she lived, the statutory process for challenging the Board’s
refusal to pay benefits it owes should suffice.
¶ 37 Common Fund
¶ 38 Finally, the attorney who represents June and Elaine asks us to find that the common fund
doctrine applies. The trial court never reached the issue because it found the Board not liable
for the payments June and Elaine sought. See Brooks v. Midas-International Corp., 47 Ill.
App. 3d 266, 273 (1977) (liability creates common fund). We direct the parties to litigate this
issue on remand.
¶ 39 Petition for Rehearing
¶ 40 In its petition for rehearing, the Board argues that the legislature meant for the firefighters
to fully fund the annuities out of their contributions. According to the Board, the legislature
failed to fund the award to widows of annuities that reflect DAP as part of current annual
salary for their deceased spouses’ positions. The Board asks us to interpret section 6-111(i)
as though it said that whenever the article refers to the salary attached to a position, the salary
shall be calculated as the current annual salary for the position without DAP, plus any DAP
the firefighter actually received, as long as the firefighter made appropriate contributions to
the pension fund to reflect the DAP he actually received.
¶ 41 Instead of writing the legislation the Board would have preferred, the legislature provided
that “references in this Article to the salary attached to or appropriated for the permanent
assigned position or classified career service rank, grade, or position of the fireman shall be
deemed to include that duty availability pay.” 40 ILCS 5/6-111(i) (West 2008). This court
has authority to interpret the statute the legislature enacted, but it lacks the power to amend
the statute. Henrich v. Libertyville High School, 186 Ill. 2d 381, 394 (1998). “The
responsibility for the justice or wisdom of legislation rests upon the legislature.” Henrich,
186 Ill. 2d at 394. The Board must address its arguments for revision of the statute to the
legislature, not the courts.
¶ 42 CONCLUSION
¶ 43 The Pension Code makes the widows’ annuity specified in section 6-140 depend on the
pay for firefighters currently working in the same classification their spouses attained before
their injuries, and not on the pay their spouses actually received. 40 ILCS 5/6-140(a) (West
2008). Section 6-111(i), as amended, requires the Board to include duty availability pay in
the salary for firefighters currently working. 40 ILCS 5/6-111(i) (West 2008). Therefore, the
Board must include duty availability pay in its calculation of widows’ annuities under section
6-140 of the Code. 40 ILCS 5/6-140(a) (West 2008).
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¶ 44 Next, for the class of widows entitled to section 6-140 annuities, for whom the Board
refused to include DAP in the calculation of annuities, we find that questions of law
predominate over individual questions for determining errors in the Board’s calculation of
their annuities because of the refusal to include DAP in those calculations. The proposed
class meets the numerosity requirement, and a class action should serve as an efficient means
of resolving the issue. The Administrative Review Law does not preclude a class action to
correct the Board’s systematic miscalculation of the annuities owed to the class members.
Thus, we reverse the trial court’s decision to deny class certification to the class June and
Elaine proposed for a class action suit against the Board for a judgment declaring the rights
established in sections 6-140 and 6-111(i) of the Code.
¶ 45 We will not extend our jurisdiction to consider whether Elaine’s death abates her
entitlement to benefits, where the trial court never considered the issue and where neither
party suggests that Elaine’s death moots her appeal. We reverse the judgment of the trial
court and remand for further proceedings in accord with this opinion.
¶ 46 Reversed and remanded.
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