Hooker v. Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago

2013 IL 114811

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 114811)

DANIEL HOOKER et al., Appellees, v. THE RETIREMENT

BOARD OF THE FIREMEN’S ANNUITY AND BENEFIT FUND

OF CHICAGO, Appellant.

Opinion filed December 19, 2013.

JUSTICE BURKE delivered the judgment of the court, with

opinion.

Chief Justice Garman and Justices Freeman, Thomas, and

Karmeier concurred in the judgment and opinion.

Justice Theis dissented, with opinion, joined by Justice Kilbride.

OPINION

¶1 Section 6-140(a) of the Illinois Pension Code (40 ILCS 5/6-140

(West 2008)) defines the terms of the annuity available to a widow of

a fireman whose death was the result of a performance of an act of

duty. The primary issue presented in this case is whether a form of

fireman’s compensation known as “duty availability pay” must be

included in the calculation of that annuity, even if the fireman never

received such compensation while working as a firefighter. The

appellate court concluded that it must. 2012 IL App (1st) 111625. For

the reasons that follow, we reverse.

¶2 Background

¶3 Plaintiffs Elaine Hooker and June Murphy were married to

Chicago firefighters. Elaine’s husband, Michael Hooker, joined the

Chicago fire department in 1967. He suffered a duty-related injury

and was awarded a duty disability benefit in 1989. Michael died in

2000. June’s husband, James Murphy, joined the Chicago fire

department in 1966. He also suffered a duty-related injury and was

awarded a duty disability benefit in 1985. James died in 1998.

¶4 Following the deaths of their husbands, plaintiffs were both

granted an ordinary widow’s pension by the defendant, the

Retirement Board of the Firemen’s Annuity and Retirement Benefit

Fund of Chicago (Board), pursuant to section 6-141.1 of the Pension

Code (40 ILCS 5/6-141.1 (West 2008)). In February of 2003,

plaintiffs filed a complaint for administrative review of that decision

in the circuit court of Cook County.

¶5 In their complaint, plaintiffs alleged that they were entitled, under

section 6-140(a) of the Pension Code (40 ILCS 5/6-140(a) (West

2008)), to the annuity which is awarded to the widow of a fireman

who died in the line of duty. Relying on Bertucci v. Retirement Board

of the Firemen’s Annuity & Benefit Fund, 351 Ill. App. 3d 368

(2004), the circuit court entered an agreed order that plaintiffs were

entitled to the section 6-140(a) annuity because their husbands’ duty-

related injuries were permanent and had prevented them from ever

returning to active duty. The cause was then remanded to the Board

for a calculation of benefits due to plaintiffs. The Board awarded

plaintiffs section 6-140(a) benefits retroactive to the date of the

Bertucci decision.

¶6 In September of 2006, the circuit court granted plaintiffs leave to

file a three-count, first amended complaint. Count I of the complaint

sought administrative review of the Board’s decision on remand and

alleged that plaintiffs were entitled to benefits retroactive to the date

of their husbands’ deaths, rather than the date of the Bertucci

decision. Count II sought certification of the class of all widows

similarly situated.

¶7 Count III raised a different matter. In this count, plaintiffs alleged

that the calculation of their widow’s annuity under section 6-140(a)

had to include a type of fireman’s compensation known as duty

availability pay. Plaintiffs acknowledged that duty availability pay

was not in existence at the time their husbands were firemen and that

neither husband had received such compensation while employed by

the Chicago fire department. Nevertheless, plaintiffs maintained that

the Board was required to include duty availability pay in the

calculation of the annuities which they received under section 6-

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140(a). Count III also sought certification of the class of all widows

who were receiving section 6-140(a) annuities but had not had duty

availability pay included in the determination of their benefits.

¶8 The circuit court stayed proceedings on plaintiffs’ amended

complaint. Thereafter, in December of 2007, the court vacated the

Board’s decision from the original order on remand, and directed the

Board to pay plaintiffs benefits retroactive to the date of the death of

each plaintiff’s spouse. The Board appealed that decision and the

appellate court affirmed. See Hooker v. Retirement Board of the

Firemen’s Annuity & Benefit Fund, 391 Ill. App. 3d 129 (2009). The

Board subsequently awarded benefits to plaintiffs retroactive to the

deaths of their husbands, as well as prejudgment and postjudgment

interest.

¶9 Proceedings then went forward on plaintiffs’ amended complaint.

Because plaintiffs had been paid benefits retroactive to the date of

their husbands’ deaths, as well as interest, the circuit court concluded

that count I of plaintiffs’ complaint had been fully resolved and was

moot. The court therefore dismissed count I.

¶ 10 With respect to count II, the court noted that plaintiffs, the named

representatives of the putative class, no longer had a valid cause of

action. Citing to Wheatley v. Board of Education of Township High

School District 205, 99 Ill. 2d 481 (1984), the court determined that,

for this reason, dismissal was required. See id. at 486 (where the

claims of the named representatives “have been resolved, they are not

proper parties who would fairly and adequately protect the interest of

the class they purport to represent”).

¶ 11 On count III, the parties filed cross-motions for summary

judgment. Following argument, the court denied plaintiffs’ motion,

granted the Board’s motion, and declined to certify the class.

Plaintiffs then appealed the grant of the Board’s motion for summary

judgment. The appellate court reversed. 2012 IL App (1st) 111625.

¶ 12 The appellate court concluded that under the language of section

6-111(i) of the Pension Code (40 ILCS 5/6-111(i) (West 2008)), the

Board was required to include duty availability pay in the calculation

of an annuity awarded pursuant to section 6-140(a), even if duty

availability pay was not received by the fireman. The appellate court

also concluded that class certification was appropriate. The appellate

court therefore reversed the judgment of the circuit court and

remanded the cause to the circuit court for calculation of the

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appropriate award of annuities. We granted the Board’s petition for

leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

¶ 13 Analysis

¶ 14 The Board’s Appeal

¶ 15 Summary judgment may be granted when “the pleadings,

depositions, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.”

735 ILCS 5/2-1005(c) (West 2010). The interpretation of a statute,

such as the Pension Code, is a matter of law and thus presents a

matter that is appropriate for summary judgment. Village of Chatham,

Illinois v. County of Sangamon, Illinois, 216 Ill. 2d 402, 433 (2005).

Issues of statutory interpretation and summary judgment rulings are

reviewed de novo. First American Bank Corp. v. Henry, 239 Ill. 2d

511, 515 (2011).

¶ 16 Section 6-140 of the Pension Code defines the terms of the

annuities received by plaintiffs. That provision states, in relevant part:

“The annuity for the widow of a fireman whose death results

from the performance of an act or acts of duty shall be an

amount equal to 50% of the current annual salary attached to

the classified position to which the fireman was certified at

the time of his death and 75% thereof after December 31,

1972.” 40 ILCS 5/6-140(a) (West 2008).

Under section 6-140(a), the annuity is calculated based on “the

current annual salary attached to the classified position to which the

fireman was certified at the time of his death.” Id. This means that the

amount of the annuity does not depend on the deceased fireman’s

actual salary at any time during his career. The amount of the annuity

is instead “flexible, changing to reflect salary changes in the fire

department.” Kozak v. Retirement Board of Firemen’s Annuity &

Benefit Fund, 95 Ill. 2d 211, 215 (1983). Thus, for example, if the fire

department increases the current pay for firemen at the position which

the decedent had attained at the time of his death, the annuity under

section 6-140 will increase, even though the decedent himself never

received the increased pay.

¶ 17 Plaintiffs allege that, in addition to basing the annuity under

section 6-140(a) on the salary attached to “the classified position to

which the fireman was certified at the time of his death,” the annuity

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must also be calculated using a type of compensation known as “duty

availability pay.” According to the parties, duty availability pay was

created in the early 1990s pursuant to a collective-bargaining

agreement between the firefighters’ union and the City of Chicago. It

is currently paid on a quarterly basis and is generally intended to

compensate firefighters for being available for duty. For a number of

years after it was created, duty availability pay was not included in the

calculation of benefits under the Pension Code and, specifically, was

not included in the Code’s definition of “salary.”

¶ 18 In 2004, the Pension Code’s treatment of duty availability pay

changed when section 6-111 of the Code was amended to provide as

follows:

“[T]he salary of a fireman *** shall include any duty

availability pay received by the fireman *** and references in

this Article to the salary attached to or appropriated for the

permanent assigned position or classified career service rank,

grade, or position of the fireman shall be deemed to include

that duty availability pay.” 40 ILCS 5/6-111(i) (West 2008).

Relying on this provision, plaintiffs maintain that duty availability

pay must be included within the meaning of the word “salary” in

section 6-140(a). Plaintiffs emphasize the word “deem” in section 6-

111(i) and argue that “the statutory words ‘deemed to include’

specifically reject” the idea that duty availability pay must be received

by the fireman in order to be included in the calculation of the annuity

under section 6-140(a). Thus, according to plaintiffs, even though

their husbands did not receive duty availability pay, and section 6-

111(i) was not amended until after their deaths, duty availability pay

must still be included in the calculation of their annuities. We

disagree.

¶ 19 Plaintiffs fail to read section 6-111(i) in its entirety. Section 6-

111(i) states that references to the salary attached to the position of a

fireman “shall be deemed to include that duty availability pay.” The

word “that” refers back to the previous language of section 6-111(i)

which states that “salary” includes duty availability pay that has been

“received by the fireman.” Thus, section 6-111(i) simply states that

references elsewhere in the Pension Code to the word “salary” shall

be treated as including duty availability pay received by the fireman.

¶ 20 The appellate court held that section 6-111(i) “clarifies” that

references to the word “salary” must include duty availability pay

even if such pay was never received by the fireman but the court

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provided no explanation as to why the phrase “that duty availability

pay” should refer to anything other than “duty availability pay

received by the fireman.” Indeed, the appellate court effectively added

language to the statute by reading section 6-111(i) as stating that the

word “salary” shall include duty availability pay, “even if it was not

received by the fireman.” This is inappropriate. See, e.g., People v.

Woodard, 175 Ill. 2d 435, 443 (1997) (“the court is not free to depart

from the plain language and meaning of the statute by reading into it

exceptions, limitations, or conditions that the legislature did not

express”).

¶ 21 Further, we note that the appellate court’s interpretation of section

6-111(i) can lead to anomalous results. Duty availability pay is a form

of compensation but it is not salary. Unlike salary, which will always

exist so long as there are firefighters, it is possible that duty

availability pay may not be included in a particular collective-

bargaining agreement. Should that be the case, and if we read section

6-111(i) as stating that the word “salary” must include duty

availability pay even when it has not been received by the fireman, it

would lead to an anomalous situation where individuals such as

plaintiffs would have duty availability pay included in the calculation

of their annuities under section 6-140(a) even though their husbands

did not receive duty availability pay and no current firefighter is

receiving it. We do not think the legislature intended such a result.

¶ 22 Plaintiffs also rely on Collins v. Retirement Board of the

Policemen’s Annuity & Benefit Fund—City of Chicago, 334 Ill. App.

3d 909 (2002). In that case, the appellate court held that a statutory

provision which increased the amount of salary on which a police

officer’s pension is based by including a duty availability allowance

applied to a police officer who had retired while on duty disability

and, therefore, that the officer could take advantage of the provision

by retroactively contributing the appropriate employee contribution

to the pension fund. Because Collins interpreted provisions of the

Pension Code other than those at issue here, the case is inapposite.

¶ 23 Pursuant to the plain language of section 6-111(i), only duty

availability pay received by the fireman is included in the salary

calculation under section 6-140(a). In this case, there is no dispute

that plaintiffs’ husbands did not receive duty availability pay.

Accordingly, the appellate court erred in concluding that summary

judgment should be granted plaintiffs. We reverse the judgment of the

appellate court with respect to count III of plaintiffs’ complaint and

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affirm the judgment of the circuit court granting summary judgment

to the Board.

¶ 24 The appellate court also concluded that class certification was

proper with respect to count III of plaintiffs’ complaint. 2012 IL App

(1st) 111625, ¶¶ 22-33. However, because we have determined that

plaintiffs do not have a valid cause of action under count III, it

necessarily follows that class certification is inappropriate. See, e.g.,

Schlessinger v. Olsen, 86 Ill. 2d 314, 318 (1981) (“no class action can

proceed unless a cause of action is stated”). We therefore reverse that

portion of the appellate court’s judgment which determined that class

certification of count III was appropriate.

¶ 25 Cross-Appeal

¶ 26 Plaintiff Elaine Hooker died in September 2010. In the circuit

court, Elaine’s son, Daniel Hooker, was substituted as special

representative and the case continued. Subsequently, while plaintiffs’

case was before the appellate court, Daniel asked the appellate court

to consider a new issue, specifically, whether a collective-bargaining

agreement between the City of Chicago and the firefighters’ union

which accorded retroactive benefits to firefighters applied to the final

determination of Elaine’s benefits, even though the collective-

bargaining agreement was not ratified until after her death. The

appellate court declined to reach this issue because it had not been

raised in the circuit court. 2012 IL App (1st) 111625, ¶¶ 35-36.

¶ 27 In a cross-appeal, Daniel asks this court to reverse the judgment

of the appellate court and address the merits of the issue. At the same

time, however, Daniel has informed this court that, following the

appellate court’s decision, a separate lawsuit was filed in the circuit

court which alleged that the new collective-bargaining agreement

applied to Elaine; that the circuit court ruled against Elaine’s estate;

and that the matter is now pending in the appellate court. Because a

separate lawsuit has been filed and the matter is currently being

litigated, we decline to reach the merits of the applicability of the new

collective-bargaining agreement. We therefore affirm that portion of

the appellate court judgment which declined to reach this issue.

¶ 28 Finally, both plaintiffs and the Board have filed motions to strike

portions of their opponents’ briefs. Both motions are denied.

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¶ 29 Conclusion

¶ 30 For the foregoing reasons, the judgment of the appellate court is

reversed in part and affirmed in part. The judgment of the circuit

court is affirmed.

¶ 31 Appellate court judgment reversed in part and affirmed in part.

¶ 32 Circuit court judgment affirmed.

¶ 33 JUSTICE THEIS, dissenting:

¶ 34 I respectfully dissent from the majority opinion because I believe

the opinion departs from the plain language of the Pension Code.

Based upon the plain language of the Code, the Board was required

to include duty availability pay as part of the “current annual salary”

in calculating a widow’s duty-related annuity.

¶ 35 It is undisputed that since 1992, the collective-bargaining

agreement between the City of Chicago and the Chicago Firefighters

Union, Local 2, has included compensation known as “duty

availability pay” for all firemen, except certain employees assigned

to platoon duty. The payment amounts are the same for all employees

covered by the labor contract and have increased with every contract

year. For example, in 2004, under the then-existing collective-

bargaining agreement, a fireman received $680 per quarter in duty

availability pay regardless of rank and grade. In 2012, that amount

was increased to $805 per quarter for all ranks and grades. It is further

undisputed that between 1994 and 2004, duty availability pay was not

included in the calculation of a fireman’s salary under the Pension

Code. However, in 2004, the Pension Code was amended to include

duty availability pay in calculating a fireman’s salary. 40 ILCS 5/6-

111(i) (West 2004).

¶ 36 The Board maintains that the widows’ duty-related annuity does

not include duty availability pay because their husbands did not

receive this compensation prior to their deaths. The widows disagree,

arguing that under the unambiguous language of sections 6-140(a)

and 6-111(i) of the Pension Code, their annuity is not based upon

their husbands’ salary but, rather, is based on the current salary for the

positions their husbands attained as firefighters, and that the current

salary for those positions includes duty availability pay. Therefore,

they argue the Board miscalculated their annuities by failing to

include the duty availability pay in that calculation.

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¶ 37 As expressed by the majority, the central issue in this case turns

on the interpretation of the Pension Code. The principles guiding our

review are familiar. The primary objective of statutory construction

is to ascertain and give effect to the legislature’s intent. Chicago

Teachers Union, Local No. 1 v. Board of Education of the City of

Chicago, 2012 IL 112566, ¶ 15. The most reliable indicator of

legislative intent is the language of the statute, given its plain and

ordinary meaning. Roselle Police Pension Board v. Village of Roselle,

232 Ill. 2d 546, 552 (2009). “[O]ne of the fundamental principles of

statutory construction is to view all of the provisions of a statute as a

whole. [Citation.] Words and phrases should not be construed in

isolation, but interpreted in light of other relevant portions of the

statute so that, if possible, no term is rendered superfluous or

meaningless.” Land v. Board of Education of the City of Chicago,

202 Ill. 2d 414, 422 (2002).

¶ 38 We must consider the relevant statutory provisions with these

guiding principles in mind. Section 6-140(a) of the Pension Code

provides in pertinent part:

“The annuity for the widow of a fireman whose death results

from the performance of an act or acts of duty shall be an

amount equal to 50% of the current annual salary attached to

the classified position to which the fireman was certified at

the time of his death and 75% thereof after December 31,

1972.” (Emphasis added.) 40 ILCS 5/6-140(a) (West 2008).

This court long ago construed the words “current annual salary” to

plainly mean that the annuity was based upon the current salary of a

fireman and was flexible, increasing with the changes in their salaries

as provided for under the applicable budget appropriations. Kozak v.

Retirement Board of the Firemen’s Annuity & Benefit Fund, 95 Ill. 2d

211, 215 (1983). As noted by the majority, this court expressly

rejected the notion that the “current” salary meant that the annuity

was based upon the deceased fireman’s salary at the time of his death.

Id. at 216. This court also stated that the General Assembly “was

cognizant of the increased expense of the type of open-ended and

fluctuating public pension benefit it was adopting.” Id. at 218.

¶ 39 Thus, in Kozak, we recognized that widows might receive benefits

greater than their husbands’ salaries at the time of their deaths

(Kozak, 95 Ill. 2d at 220 (“the fact that the legislature treats widows

of firefighters killed in the line of duty more generously than the

beneficiaries of other pension statutes is neither absurd nor

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impossible to understand”)), and recognized that the amount of the

annuity is not dependent upon the deceased firefighter’s salary but,

rather, upon the “current annual salary attached to the classified

position to which the fireman was certified at the time of his death.”

40 ILCS 5/6-140(a) (West 2008). This construction has been

consistently upheld since 1983, and the legislature is presumed to be

aware of judicial decisions interpreting this legislation. Cripe v.

Leiter, 184 Ill. 2d 185, 197-98 (1998). Notably, the Pension Code has

been amended several times since 1983 (see Pub. Act 92-50, § 5 (eff.

July 12, 2001); Pub. Act 93-654, § 5 (eff. Jan. 16, 2004)), and the

legislature has not altered the language of this statute in response to

this court’s holding.

¶ 40 To determine whether the current annual salary of a fireman

includes duty availability pay, we must consider the Pension Code’s

definition of “salary.” Under the statute, “salary” is defined as the

“actual amount of the annual salary attached to the permanent career

service rank held by the fireman.” 40 ILCS 5/6-111(d) (West 2008).

In 2004, the General Assembly expanded on that definition as

follows:

“the salary of a fireman, as calculated for any purpose under

this Article, shall include any duty availability pay received by

the fireman (i) pursuant to a collective bargaining agreement

***, and references in this Article to the salary attached to or

appropriated for the permanent assigned position or classified

career service rank, grade, or position of the fireman shall be

deemed to include that duty availability pay.” (Emphasis

added.) 40 ILCS 5/6-111(i) (West 2008).

Thus, under the Pension Code, prior to 2004, duty availability pay

was not included in the calculation of salary for any purposes under

the Pension Code. However, as of 2004, the legislature has

determined that the salary of a fireman, as calculated for any purpose,

including a widow’s annuity under section 6-140, includes that duty

availability pay received by the fireman pursuant to a collective-

bargaining agreement. 40 ILCS 5/6-111(i) (West 2008).

¶ 41 It is at this point that the majority abandons our rules of statutory

construction. Rather than harmonizing the two relevant statutory

provisions, the majority assumes that we are considering a widow’s

husband’s salary. If we were calculating the widows’ husbands’

salary then I would agree with the majority that duty availability pay

was not received by them and, therefore, would not be included in the

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calculation of their salary. Nevertheless, in the context of calculating

a section 6-140 widow’s duty-related annuity, as explained, the salary

is based on the currently employed firefighter who has attained the

same position as the widow’s husband. Accordingly, the reference to

“the salary of a fireman” in section 6-111(i) is not a reference to the

widow’s husband’s salary but, rather, a currently employed fireman.

¶ 42 Reading the plain language of the Pension Code, and reading the

two statutory provisions in harmony as we must, for purposes of

calculating the widow’s annuity under section 6-140, the current

annual salary of a fireman includes that duty availability pay received

by the fireman under the applicable collective-bargaining agreement.

Whether these particular widows’ husbands received duty availability

pay is of no consequence. By failing to read sections 6-111(i) and 6-

140 as a whole, the majority erroneously concludes that the

legislature intended that the widows’ duty-related annuity calculation

be based on whether their husbands received the compensation as part

of their salary.

¶ 43 Additionally, the majority’s opinion inexplicably omits critical

language in section 6-111(i) which expands the definition of salary

“as calculated for any purpose,” under the Pension Code. (Emphasis

added.) 40 ILCS 5/6-111(i) (West 2008). As we have previously

recognized, the legislature knows how to express a limiting intent

where it so desires. The failure to do so in this statute evinces that it

did not have such intent with respect to the widow’s annuity under

section 6-140. We cannot read that language out of the statute. The

majority’s construction also renders the meaning of “current” in

section 6-140 superfluous, in direct conflict with the principle that we

aim to construe a statute such that no term is rendered meaningless

(Land, 202 Ill. 2d at 402), and is in direct conflict with our long-

standing decision in Kozak.

¶ 44 Moreover, contrary to the majority opinion, under the plain

language of the statute there is no anomaly presented. If the

collective-bargaining agreement no longer provides for duty

availability pay in the future, then based on the express language of

section 6-111(i), duty availability pay will not be included in the

calculation of the current annual salary of a fireman because it will

not have been received by the fireman under the applicable collective-

bargaining agreement. 40 ILCS 5/6-111(i) (West 2008). Rather, the

anomaly is created by the majority’s construction as nothing in the

statute supports a multitiered system for section 6-140 widows’

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annuities based on whether certain compensation was received by

their husbands.

¶ 45 For all of these reasons, I would hold that based upon the plain

language of the Pension Code, the Board was required to include duty

availability pay as part of the “current annual salary” in calculating

the widows’ duty related annuity.

¶ 46 JUSTICE KILBRIDE joins in this dissent.

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