People v. Burge

2014 IL 115635

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket Nos. 115635, 115645 cons.)

THE PEOPLE ex rel. LISA MADIGAN, Attorney General of Illinois, Appellee,

v. JON BURGE, et al., Appellants.

Opinion filed July 3, 2014.

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). 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

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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, theAttorney

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 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.

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¶ 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

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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.

¶ 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.

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¶ 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 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.

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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:

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(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 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, ten 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

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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 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

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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

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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

re-adjudicate 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 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

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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.

¶ 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

- 13 -

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 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.

- 14 -

¶ 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 non-participant 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 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.

- 15 -

¶ 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.

¶ 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).

- 16 -

¶ 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 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

- 17 -

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

- 18 -

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 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

- 19 -

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 nothing 1 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.

¶ 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 1-101.1 2 and ERISA section 3. 3 The

definitions are nearly identical. Public Act 82-960 also brought Pension Code section

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).

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).

- 20 -

1-109, defining the duties of fiduciaries, into an even closer match with ERISA section

404 4 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;

(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

4

29 U.S.C. § 1104 (2012).

- 21 -

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

5

Pension Code section 1-114 was, like section 1-115 and the “fiduciary” definition, added by Public

Act 82-960.

6

To the extent there is a distinction between ERISA section 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.

- 22 -

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).

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

- 23 -

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 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

- 24 -

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 section 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 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

7

Like sections 1-114 and 1-115 and the definition for “fiduciary,” this language was added by Public

Act 82-960.

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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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

non-participant 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 non-participant 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

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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 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

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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. 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

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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

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

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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

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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).

¶ 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:

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“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.

¶ 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.

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¶ 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 an adequate remedy is not provided elsewhere.

See Varity Corp. v. Howe, 516 U.S. 489, 510, 512 (1996).

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¶ 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 a 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 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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