First American Bank v. Henry

Docket No. 109711.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

FIRST AMERICAN BANK CORPORATION et al., Appellants, v.

GWEN HENRY, Du Page County Treasurer and ex officio Du Page

County Collector, Appellee (The Forest Preserve District of Du Page

County, Intervenor-Appellee).

Opinion filed January 21, 2011.

JUSTICE THEIS delivered the judgment of the court, with

opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

The issue in this case is whether the Forest Preserve District of Du

Page County (the District) was required by section 7–171 of the

Illinois Pension Code (40 ILCS 5/7–171 (West 2008)) to enact an

appropriation ordinance for its contribution to the Illinois Municipal

Retirement Fund (IMRF) before it enacted a levy ordinance to raise

revenue that would, in part, cover this contribution. The circuit court

of Du Page County entered summary judgment in favor of the

District, and the appellate court affirmed. For the reasons that follow,

we also affirm.

BACKGROUND

The IMRF was established by the Illinois General Assembly in

1939 and began operating in 1941 as a public pension program for

five municipalities. Today, the fund administers $22.3 billion in assets

for nearly 275,000 current and former employees of 2,950 local

government entities across the state. 1 Each municipality pays its own

employees’ disability, retirement, and death benefits into its own

account, pursuant to a contribution rate determined by independent

actuaries based upon the employees’ salaries, ages, and years of

service. Every June, the Retirement Fund Board notifies each

municipality of the preliminary contribution rate, and every November

of the final contribution rate, for the following year.2 Then each

municipality must raise revenue to support its contribution.

In June 1999, the District received an “Advance IMRF

Contribution Notice,” and in November 1999, it received an “Official

Notice of Illinois Municipal Retirement Fund Contribution Rate for

Calendar Year 2000.” On November 16, 1999, the District passed a

levy ordinance, which included $981,511 for its contribution to the

IMRF for the following year. On June 20, 2000, the District passed a

appropriation ordinance, which included $1,102,628 for its

contribution to the IMRF and referred to the November 16, 1999,

levy ordinance.

On November 15, 2000, First American Bank Corporation and

three other companies (the plaintiffs) filed a tax objection, contending

that the District lacked authority to levy for its IMRF contribution

before it appropriated for it because section 7–171(b)(1) of the

Pension Code limits the tax to the “amount appropriated.” See 40

ILCS 5/7–171(b)(1) (West 2008). In July 2008, the District was

granted leave to intervene in the case, and the parties agreed that any

final order in this case would govern the plaintiffs’ tax objections for

1

The IMRF does not cover employees of the City of Chicago or Cook

County. See 40 ILCS 5/7–132(A)(a) (West 2008).

2

IMRF employer rates are on a “two-year lag.” See

http://www.imrf.org/info/press_room/IMRF_101.htm. For example,

information from 1998 was sent to actuaries in 1999, and they used that

information to calculate contribution rates for 2000.

-2-

1999-2006. The District then filed a motion for summary judgment,

arguing that it acted within its authority under section 7–171 and

sections 13.1 and 13.3 of the Downstate Forest Preserve District Act.

See 70 ILCS 805/13.1, 13.3 (West 2008). The trial court concluded

that section 7–171(b)(1) sets a ceiling on, but not a timetable for, the

IMRF levy, and entered summary judgment in favor of the District.

The plaintiffs appealed.

The appellate court affirmed. 397 Ill. App. 3d 301. The appellate

court agreed with the plaintiffs that section 7–171(b)(1) gives

municipalities the authority to levy taxes for IMRF contributions. Id.

at 304. The appellate court, however, disagreed with the plaintiffs that

section 7–171(b)(1) requires municipalities to appropriate first and

levy second. Id. at 305. Such an interpretation, stated the appellate

court, goes beyond the statutory language:

“While the use of the phrase ‘the amount appropriated’ may

certainly be interpreted to refer to the amount ‘already

appropriated’ or ‘previously appropriated’ for a contribution

to the Fund, it is equally possible to read it as meaning the

amount ‘subsequently appropriated’ or ‘eventually

appropriated’ for such a contribution. The mere use of the

term ‘appropriated’ does not signify a preference for either of

these interpretations, and nothing about the language quoted

indicates that the legislature intended to impose a timing

sequence mandating that a municipality adopt an appropriation

ordinance before it adopts its levying ordinance. Rather than

imposing a timing requirement, the plain language of this

provision imposes a limit on the amount that may be levied: a

municipality may not levy taxes that would exceed the amount

appropriated for its contribution to the Fund. This restriction

prevents a municipality from accumulating excess funds at the

expense of the taxpayer. There is no hint of any other purpose

intended by the legislature in enacting this provision.”

(Emphasis in original.) Id. at 305.

The appellate court further stated that section 7–171(e) contains

a provision permitting municipalities to refer to other statutes in

establishing procedures for levying and collecting taxes for IMRF

contributions. Id. at 308. Here, the general taxes for the District are

levied and collected pursuant to sections 13.1 and 13.3 of the

-3-

Downstate Forest Preserve District Act. Id. at 308. Because the

District complied with that statute, the trial court did not err in

entering summary judgment in its favor. Id. at 309.

This court allowed the plaintiffs’ petition for leave to appeal. Ill.

S. Ct. R. 315 (eff. Feb. 26, 2010). Our standard of review is de novo.

See DesPain v. City of Collinsville, 382 Ill. App. 3d 572, 577 (2008)

(holding that statutory interpretation issues and summary judgment

rulings are both reviewed de novo).

ANALYSIS

To resolve the issue in this case, we must construe section 7–171

of the Pension Code. The cardinal rule of statutory construction is to

ascertain and give effect to the legislature’s intent, and the plain

language of the statute is the best indication of that intent. Acme

Markets, Inc. v. Callanan, 236 Ill. 2d 29, 37-38 (2009). When the

language is unambiguous, the statute must be applied as written.

DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). Additionally, the

entire statute must be read as a whole, considering all relevant parts.

Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990).

Section 7–171 governs “finance” and “taxes” and provides:

“(a) Each municipality other than a school district shall

appropriate an amount sufficient to provide for the current

municipality contributions required by Section 7–172 of this

Article, for the fiscal year for which the appropriation is made

and all amounts due for municipal contributions for previous

years. ***

(b) For the purpose of providing monies for municipality

contributions, beginning for the year in which a municipality

is included in this fund:

(1) A municipality other than a school district may levy

a tax which shall not exceed the amount appropriated for

municipal contributions.

***

(e) Such tax shall be levied and collected in like manner,

with the general taxes of the municipality and shall be in

addition to all other taxes which the municipality is now or

-4-

may hereafter be authorized to levy upon all taxable property

therein ***.” 40 ILCS 5/7–171 (West 2008).

In this appeal, the plaintiffs argue that the phrase “amount

appropriated” in section 7–171(b)(1) unambiguously limits levies for

IMRF contributions to past, not future, appropriations. The plaintiffs

offer a short grammar lesson. Adding “-ed” to the root of a verb

creates the simple past tense form of the verb. When the past tense

form of a verb modifies a noun, the verb becomes a past participle,

and use of the past participle connotes action in the past. The past

tense of the verb “appropriate” is “appropriated.” Accordingly, the

plaintiffs contend, an “amount appropriated” is an amount

appropriated in the past. The plaintiffs contend that the legislature

used this phrase in section 7–171(b)(1) to set not only a quantitative

limit on IMRF levies, but also a temporal one. That is, the plaintiffs

assert that the legislature implicitly directed municipalities to

appropriate first and levy second for their contributions to the fund.

We agree with the plaintiffs that section 7–171(b)(1), when read

in isolation, seems to indicate that the appropriation must precede the

levy. But we must consider section 7–171 in its entirety, and interpret

section 7–171(b)(1) in its context. As the appellate court noted,

section 7–171(e) states that IMRF taxes “shall be levied and collected

in like manner, with the general taxes of the municipality.” 40 ILCS

5/7–171(e) (West 2008). The general taxes of the District are levied

and collected under the Downstate Forest Preserve District Act.

Section 13.1 of that statute governs forest preserve district tax

levies and states:

“After the first Monday in October and by the first

Monday in December in each year, the board shall levy the

general taxes for the District by general categories for the next

fiscal year. ***

***

All such taxes and rates are exclusive of the taxes required

for the payment of the principal of and interest on bonds, and

exclusive of taxes levied for employees’ annuity and benefit

purposes.” 70 ILCS 805/13.1 (West 2008).

Section 13.3, titled “Fiscal year; appropriation ordinance,” states:

Ҥ13.3. (a) The board of each forest preserve district

-5-

organized under this Act shall fix a fiscal year for the district.

The board shall, within or before the first quarter of each fiscal

year, adopt an annual appropriation ordinance appropriating

such sums of money as may be required to defray all necessary

expenses and liabilities of the District to be paid or incurred

during the fiscal year.

(b) The failure of the board to adopt an annual

appropriation ordinance or to otherwise comply with the

provisions of this Section shall not affect the validity of any

tax levy of the forest preserve district. The annual

appropriation ordinance for any fiscal year need not be

intended or required to be in support of or in relation to any

tax levy made during that fiscal year.” 70 ILCS 805/13.3

(West 2008).

Thus, for fiscal year beginning July 1, 2000, the District was

required to pass a levy ordinance between early October and early

December 1999, and an appropriation ordinance no later than

September 30, 2000. The Downstate Forest Preserve District Act

clearly allows the municipalities it governs to levy first and appropriate

second. The plaintiffs concede this point in their reply brief: “[T]here

is no doubt that for general purposes (i.e., excepting bond retirement

and pension purposes) a downstate forest preserve district is

mandated by sections 13.1 and 13.3 of the [Downstate Forest

Preserve District Act] to levy before the start of the ‘next fiscal year’

and, much later, to appropriate for expenses of the next fiscal year.”

What the plaintiffs fail to grasp is that there is no exception. Though

section 13.1 of the Downstate Forest Preserve Act provides that taxes

under the Act do not include taxes for IMRF contributions, it simply

recognizes the fact that “[t]he Illinois Municipal Retirement Fund Act

[citation] is a complete statutory enactment to provide for annuities

and benefits to municipal employees,” and a municipality must look to

that statute for authority to levy in support of its contribution to the

fund. People ex rel. Krapf v. Hayes, 13 Ill. 2d 143, 152 (1958).

Pursuant to section 7–171(e), municipalities must levy and collect

taxes to support their IMRF contributions in the same way that they

levy and collect their general taxes. Thus, the same statute–the

Downstate Forest Preserve Act–controls the timing of both the

District’s IMRF levy and its general tax levy, and permits the levy to

-6-

precede an appropriation.

The plaintiffs attempt to explain away section 7–171(e) by arguing

that “levied and collected in like manner, with the general taxes of the

municipality” is a term of art which means, simply, collected. They

quote and rely upon People ex rel. Kelly v. Baltimore & Ohio R.R.

Co., 376 Ill. 393 (1941). In Kelly, voters authorized a tax in support

of a township library pursuant to section 10 of “the act relating to

libraries” (see Ill. Rev. Stat. 1939, ch. 81, par. 10), and that tax was

later extended without further action by the township’s corporate

authorities. In determining whether the tax could be extended, we

noted that, prior to 1931, only voters, not the corporate authorities,

could levy the tax. We stated:

“When the decision in the case of People v. Illinois

Central Railroad Co.[, 240 Ill. 426 (1909),] was made, the

only provision of section 10 referring to the manner in which

the tax should be levied was the provision that a majority of

the voters at the ‘annual election’ in such town should vote in

favor of the tax by rate, which rate was required to be

specified in the notice of the election. It then provided further

that upon such vote being cast the tax so authorized ‘shall be

levied and collected in like manner with other general taxes’

of a town.

We think the decision in *** Illinois Central Railroad ***

was correct in holding that the vote in the election, as the

statute then read, constituted the levy of the tax voted without

any further act by the township. Under that decision, the

phrase last above quoted should be read as though the word

‘levied’ was followed by a comma, and that the words ‘in like

manner with other general taxes’ refer only to the collection

and not to the levy of the tax.” (Emphasis added.) Kelly, 376

Ill. at 395-96.

After 1931, when the statute was amended, the corporate authorities

could levy this tax. Kelly, 376 Ill. at 396. “By the provisions of other

statutes,” the corporate authorities were “the electors” at the annual

township meeting. Kelly, 376 Ill. at 396, citing Ill. Rev. Stat. 1939, ch.

139, par. 39. Thus, we concluded, the electors have a duty “to

determine, annually, the amount needed for the current year and to

levy the same *** in the same manner that taxes for other ***

-7-

purposes are levied.” Kelly, 376 Ill. at 398.

This holding is consistent with our holding in People ex rel.

Schlaeger v. Jarmuth, 398 Ill. 66 (1947). In Jarmuth, a taxpayer

objected to a tax levied under section 11 of the act establishing the

City of Chicago’s Municipal Employees’ Annuity and Benefit Fund

(see Ill. Rev. Stat. 1941, ch. 24, par. 1054), arguing that that statute

vested the power to tax in the fund’s Retirement Board, and not the

corporate authorities of the city. The statute provided that a tax to

support the fund must be “levied and collected in like manner with the

general taxes” of the city. In construing that language, we did not

mention Kelly, but we held that taxes for the fund must be levied in

“the manner in which the general taxes of the city are levied by the

corporate authorities of the city.” Jarmuth, 398 Ill. at 71.

Consequently, we referred to another statute–section 16–1 of the

Revised Cities and Villages Act–to determine how the city’s general

taxes were levied. Jarmuth, 398 Ill. at 71, quoting Ill. Rev. Stat. 1945,

ch. 24, par. 16–1. Notably, section 16–1 stated that no tax could be

levied unless an appropriation had been made. Jarmuth, 398 Ill. at 71.

Here, there is no corresponding limitation. Like the act

establishing the city’s annuity and benefit fund, section 7–171(e)

instructs municipalities to levy and collect taxes to support their

retirement fund contributions in the same manner in which they levy

and collect their general taxes. But unlike section 16–1 of the Revised

Cities and Villages Act, section 13.3 of the Downstate Forest Preserve

District Act does not prohibit a levy without an appropriation. Instead,

it states that the failure to adopt an appropriation ordinance does not

invalidate any levy ordinance.

The plaintiffs’ argument, as the appellate court here noted, distills

down to a policy argument that municipalities should appropriate first

and levy second. We are aware of the merits of such a procedure, but

we are also aware of the difficulties inherent in the long-range

financial forecasting that would be necessary if the District were

forced to appropriate well before its fiscal year begins. Cf. In re

Application of the County Collector of Du Page County for Judgment

for Taxes for the Year 1993, 187 Ill. 2d 326, 334-35 (1999) (detailing

the problems that schools districts would face under such a

requirement). Indeed, the District’s levy here was $121,117 less than

its ultimate appropriation more than seven months later, despite the

-8-

fact that it received a purportedly accurate contribution rate from the

Retirement Fund Board. Certainly this problem is not unique to forest

preserve districts, but the statutes establishing other special districts

are not before us here.

“The power to determine when a budget ordinance shall be

passed, and the order of passage as between levy and budget

ordinances, rests exclusively with the General Assembly.” People ex

rel. Rockwell v. Chicago, Burlington & Quincy R.R. Co., 386 Ill. 114,

117 (1944). Here, we hold that the legislature allowed the District to

pass a levy ordinance before it passed an appropriation ordinance. The

District had authority for its IMRF levy, and the trial court correctly

entered summary judgment in favor of the District.

CONCLUSION

For the reasons that we have stated, the judgment of the appellate

court is affirmed.

Affirmed.

-9-