Marconi v. Chicago Heights Police Pension Board

JUSTICE FITZGERALD, dissenting:

The majority opinion reverses the appellate court and upholds the Board’s decision denying plaintiff a disability pension. Because the majority opinion is based on the faulty premise that the appellate court misread the record in this case, and because the majority opinion fails to address the threshold issue raised on appeal, I dissent.

During the appellate court’s discussion of the background of this case, the court summarized the medical evidence considered by the Board, including Dr. Harris’ report. 361 Ill. App. 3d at 9-14. Later, in its analysis of the issues, the appellate court concluded that “all of the mental health professionals, including Dr. Harris, agreed that at the time of his removal from active duty [plaintiff] was suffering from a psychiatric impairment that rendered him unable to function as a police officer.” 361 Ill. App. 3d at 17-18. According to the majority opinion, the appellate court misread Dr. Harris’ report by failing to place a certain passage from that report in the “proper positional context.” 225 Ill. 2d at 538.1 disagree.

Although Dr. Harris’ report made plain his view that plaintiff was not currently disabled, his report also repeatedly acknowledged plaintiff’s past psychiatric disorder and disability. Dr. Harris stated:

“Given that [plaintiff] had a clear psychiatric disturbance warranting time off from work, he had a full year of paid disability. This time off resulted in the reduction of his angry feelings toward the chief. It was the threat to the chief that prompted the medical leave from work. He has had sufficient time to recover from the acute problems he experienced in July-September 1996. He is no longer suffering from a psychiatric disability.

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Officer Marconi is not presently and has not been suffering (at least since 1016/97) from a psychiatric disorder interfering with his functioning.

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The psychiatric impairment that resulted in medical leave from work ended as far back as, and most likely well before 10/6/97.” (Emphases added.)

In addition, Dr. Harris’ stated diagnosis was “Major Depressive Disorder, Single Episode, in Remission.” This diagnosis, together with the foregoing passages, clearly support the appellate court’s reading of Dr. Harris’ report. If the appellate court is to be reversed, it must be on some other basis.

The majority asserts that I am “confused” and have “lost sight” of the fact that “it is the decision of the administrative agency — here, the Board — that is under review, not the determination of the appellate court.” (Emphases in original.) 225 Ill. 2d at 539. I am fully cognizant of the decision this court has been called upon to review. What is confusing, however, is the difference between the majority’s analysis of the case and its analysis of my dissent. According to the majority opinion, the majority may scrutinize the appellate court’s reading of the record in this case as part of its review of the Board’s decision (225 Ill. 2d at 539-40), but I am precluded from conducting the same analysis and reaching a contrary conclusion.

In any event, even if I agreed with the majority that the appellate court misread Dr. Harris’ report, I would nonetheless dissent because the majority fails to consider the threshold issue in this case, namely, whether the Board could properly consider evidence of plaintiffs current medical condition, as opposed to evidence of his condition at the time he was removed from active duty or at the time he applied for a disability pension. Relying on Hahn v. Police Pension Fund, 138 Ill. App. 3d 206 (1985), the appellate court concluded that plaintiff’s medical condition at or near the time of his removal from active duty was the only relevant medical evidence the Board should consider in making its initial determination of eligibility for a disability pension. Evidence of plaintiffs condition at a later date, which may indicate he improved with therapy, is inappropriate for consideration at the initial eligibility determination. Rather, such evidence is properly considered as part of the statutory process to verify continuing eligibility. 361 Ill. App. 3d at 17. The appellate court concluded that, under the authority of Hahn, the Board’s denial of plaintiffs application for a disability pension was clearly erroneous in light of the medical evidence speaking to plaintiffs condition “at the time of his removal from active duty.” 361 Ill. App. 3d at 18. The majority overlooks this part of the appellate court opinion, notwithstanding the Board’s argument before this court that it should not be restricted in the medical evidence it may review. Indeed, the Board urges this court to overrule Hahn.

Significantly, the appellate court’s determination that the Board may only consider evidence relevant to plaintiffs medical condition at the time of his removal from active duty, and that the evidence here supported a finding of disability, compelled the appellate court to consider the Board’s alternative argument for affirming the denial of a disability pension — plaintiff’s failure to submit three certificates of disability from Board-appointed physicians, pursuant to section 3 — 115 of the Illinois Pension Code (40 ILCS 5/3 — 115 (West 2002)). After considering this issue, the appellate court held the statute unconstitutional as applied to plaintiff. 361 Ill. App. 3d at 29.

Although consideration of the Hahn issue by this court would not necessarily result in the court’s consideration of the constitutional issue, the failure to consider the Hahn issue does remove any possibility of reaching the constitutional question. I would address the Hahn issue that the Board raises on appeal and let our disposition of that issue dictate the direction the rest of the opinion should take. By failing to address this issue, the lower courts are left to wonder whether Hahn has been overruled by this court sub silentio or simply ignored.

For these reasons, I dissent.