Appendix — Stillo v. Illinois State Retirement Systems

INDEX TO APPENDIX

APP.

PAGE

Opinion of the Illinois Appellate Court,

First Judicial District, May 21,1999 ........... 1

Order of the Circuit Court of Cook

County, Illinois, entered November

i EA a nea che ERS Es Rie eat hae: 19

Order of the Appellate Court of Illinois,

First District, Sixth Division, entered

ee BE I hs i ee Se oo ee. 20

Denial of petition for leave to appeal by

the Supreme Court of Illinois, dated

SP Bi SI 6h von os bos Cae oh 21

App. 1

SIXTH DIVISION

May 21, 1999

IN THE

ILLINOIS APPELLATE COURT

FIRST JUDICIAL DISTRICT

No. 1-97-4630

ADAM N. STILLO and ) Appeal from the

FLORENCE F. STILLO, ) Circuit Court of

) Cook County.

Plaintiffs-Appellants, )

v. )

)

)

STATE RETIREMENT SYSTEMS, )

JUDGES’ RETIREMENT SYSTEM )

OF ILLINOIS, ) Honorable

) Jobn K. Madden,

Defendant-Appellee. ) Judge Presiding.

JUSTICE BUCKLEY delivered the opinion of the court:

Plaintiffs, Adam N. Stillo (Stillo) and his wife, Florence

F. Stillo, appeal a decision by the Board of Trustees of

the Judges’ Retirement System of Illinois (the Board)

that terminated all of Stillo’s pension benefits on the

basis of Stillo’s conviction and subsequent sentencing on

two felony charges arising out of acts committed during

his employment as a circuit court judge. Mrs. Stillo re-

ceived health insurance benefits because of Stillo’s mem-

bership in the Judges’ Retirement Systems of Illinois (the

System) and was the primary beneficiary of his pension

benefits. The System also terminated her benefits. The

App. 2

circuit court of Cook County denied plaintiffs’ petition for

administrative roview, and this timely appeal followed.

On appeal, plaintiffs first contend that they were en-

titled to a presuspension hearing before their pension

benefits were suspended and, second, that their pension

benefits should not have been terminated prior to the

exhaustion of Stillo’s appeal of his criminal conviction.

The System’s claim for repayment of $4,483.42 paid to

Stillo for the period July 11, 1994, to July 31, 1994, has

not been raised on appeal or on a cross-appeal. For the

reasons set forth below, we affirm the judgment of the

circuit court.

BACKGROUND

In 1964, Stillo was appointed a magistrate for the cir-

cuit court of Cook County and became a participant in

the System. At the time of his retirement on August l,

1988, Stillo was serving as a circuit judge in the criminal

division of the circuit court of Cook County. His monthly

pension benefit at the time of retirement was in excess of

$5,000.

In 1991, a federal grand jury indicted Stillo on charges

of racketeering and extortion conspiracy. The charges

arose out of bribery and extortion Stillo allegedly en-

gaged in from 1976 to 1987. On July 29, 1993, at the con-

clusion of a jury trial in the United States District Court

for the Northern District of Illinois, Stillo was found

guilty on both counts of the indictment. Then, on July 11,

1994, the district court entered judgment on the convic-

tions and sentenced Stillo to four years in prison. See

United States v. Stillo, 57 F.3d 553, 556 (7th Cir. 1995).

“1h aan naar mae EEN eT NNT TTT nee eS sewn

App. 3

Stillo appealed to the United States Court of Appeals for

the Seventh Circuit, which affirmed the conviction on

June 9, 1995. Stillo, 57 F.3d 553. The United States Su-

preme Court subsequently denied Stillo’s petition for writ

of certiorari. Stillo v. United States, 516 U.S. 945, 133

L.Ed.2d 306, 116 S.Ct. 383 (1995).

In a letter to Stillo dated January 19, 1994, Rudy J.

Kink, Jr., manager of the System, informed Stillo that, in

accordance with Illinois law (40 ILCS 5/18-163 (West

1994)), all benefit payments made to a member or an-

nuitant must cease upon entry of judgment on a convic-

tion and sentencing for a felony when the offense arose

out of acts committed during the performance of official

duties as a judge. Plaintiffs responded to Kink’s letter on

July 20, 1994, by filing a complaint for declaratory

judgment and injunctive relief, and requesting the court

to enjoin any termination of benefits until such time as

a “full due process hearing” could be held. On July 26,

1994, Michael L. Mory, executive secretary of the Sys-

tem, notified Stillo that a hearing before the Board had

been scheduled for August 26, 1994. The System paid

Stillo his benefits through July of 1994 but suspended

benefit payments for August 1994. Due to the scheduling

of the Board’s hearing, the circuit court dismissed Stillo’s

complaint for declaratory and injunctive relief.

Following the August 26 hearing, the Board entered a

decision and order terminating all of plaintiffs’ benefits

as of July 11, 1994 (the date of sentencing in the district

court), and directed the System to take the necessary

steps to recover an overpayment of benefits of $4,483.42

for the period of July 11, 1994, through July 31, 1994.

The Board’s decision was based on section 18-163 of the

App. 4

Illinois Pension Code (the Pension Code), which provides

in relevant part: “None of the benefits herein provided

shall be paid to any person who is convicted of any felony

relating to or arising out of or in connection with his or

her service as a judge ***.” 40 ILCS 5/18-163 (West

1994). The decision was served on the plaintiffs on Sep-

tember 28, 1994.

The Board found that “conviction of either a state or

federal felony, so long as that felony arose out of or in

connection with one’s employment,” is sufficient to cause

a forfeiture of pension benefits under the Pension Code.

The Board also determined that while it is true that

termination of benefits under section 18-163 of the Pen-

sion Code should not occur without a prior hearing, a

hearing was provided in the instant case on August 26,

1994. Finally, the Board concluded that the System prop-

erly terminated plaintiffs’ benefits, even though Stillo’s

appeal from the criminal conviction and sentence was

still pending, because both Illinois and federal law state

that pronouncement of a sentence constitutes a final

judgment in a criminal proceeding. See People v. Allen,

71 Ill.2d 378, 381 (1978); 18 U.S.C. § 3582(b) (1994).

On October 28, 1994, plaintiffs filed a complaint in the

circuit court of Cook County seeking administrative

review of the Board’s decision. Plaintiffs’ complaint al-

leged that the Board’s decision was contrary to both the

applicable law and the facts of the case for the following

reasons: (1) plaintiffs were entitled to notice and an

opportunity for a hearing; (2) the System extinguished

plaintiffs’ property rights in pension benefits; (3) com-

mencement of an appeal from Stillo’s criminal conviction

stayed termination of the pension benefits; (4) termina-

App. 5

tion of plaintiffs’ rights was a violation of due process;

and (5) plaintiffs are owed $83,938.22 in previous contri-

butions to the System. The circuit court of Cook County

denied this petition for administrative review on Novem-

ber 24, 1997. The instant appeal raises a question of first

impression and asks this court to determine whether

section 18-163 of the Pension Code requires the Board to

hold a hearing before benefits are suspended and, also,

whether the System may terminate a participant’s bene-

fits before the participant exhausts all appeals from a

criminal conviction.

ANALYSIS

I. STANDARD OF REVIEW

Section 18-164 of the Pension Code provides that ju-

dicial review of final decisions of the Board of the retire-

ment system is governed by the provisions of the Admin-

istrative Review Law (Review Law) (735 ILCS 5/3-110

(West 1994)). 40 ILCS 5/18-164 (West 1994). Under the

Review Law, findings and conclusions of fact shall be

held by the reviewing court to be prima facie true and

correct. 735 ILCS 5/3-110 (West 1994). Factual findings

and conclusions will not be disturbed on review unless

they are against the manifest weight of the evidence. City

of Belvidere v. Illinois State Labor Relations Board, 181

Tll.2d 191, 205 (1998).

Conclusions of law by an agency are not entitled to the

same deference on review as is accorded to the agency’s

factual findings and conclusions. Review of an adminis-

trative agency’s legal conclusions is de nove. Branson v.

Department of Revenue, 168 Ill.2d 247, 254 (1995). Thus,

App. 6

while conclusions of law are not entitled to the same

deference on review as is accorded to an agency’s factual

findings and conclusions, substantial weight and defer-

ence are given to an interpretation of a statute by an

agency that is charged with administering the statute

because an agency makes informed judgments based on

its experience and expertise. Abrahamson v. Illinois De-

partment of Professional Regulation, 153 Ill.2d 76, 88

(1992).

Plaintiffs do not question the merits of the System’s

decision to terminate benefits under section 18-163 of

the Pension Code. Rather, their arguments focus on the

Board’s conclusion that the System did not violate plain-

tiffs’ due process rights by either suspending benefits

before a hearing was held or by terminating benefits

prior to resolution of Stillo’s appeal from his criminal

conviction. We find that the Board’s decision was based

on legal conclusions and will be reviewed de novo.

II. PROCEDURAL DUE PROCESS

Plaintiffs first contend that the pension and its atten-

dant benefits were improperly suspended in violation of

federal and state due process rights. The System, on the

other hand, argues that there was no due process viola-

tion under the terms of section 18-163 of the Pension

Code (40 ILCS 5/18-163 (West 1994)), because notice was

provided to plaintiffs that benefits would terminate upon

entry of judgment on the conviction and sentence; the

System tendered notice to plaintiffs before the benefits

were suspended and a hearing was held by the Board

before the benefits were terminated. We agree with the

System.

— Ee

App. 7

A. Section 18-163 of the Pension Code

It is well settled in Illinois that public employee pen-

sions are a matter of contractual right. Moore v. Board of

Trustees of the Sanitary District Employees’ & Trustees’

Annuity & Benefit Fund, 157 Ill.App.3d 158, 163, 510

N.E.2d 87, 91 (1987). However, the state legislature has

the power to take action to deter felonious conduct in

public employment by affecting the pension rights of

public employees convicted of a work-related felony.

Moore, 157 Ill.App.3d at 163, 510 N.E.2d at 91. Individ-

ual who have accepted public employment are deemed to

have accepted the terms and conditions of pension rights

prior to their employment. Moore, 157 Ill.App.3d at 163,

510 N.E.2d at 91.

Section 18-163 of the Pension Code illustrates these

principles and provides as follows:

“Felony conviction. None of the benefits herein

provided shall be paid to any person who is

convicted of any felony relating to or arising out

of or in connection with his or her service as a

judge.

This section shall not operate to impair any

contract or vested right acquired before July 9,

1955 under any law or laws continued in this

Article, nor to preclude the right to a refund.

All participants entering service subsequent to

July 9, 1955 are deemed to have consented to the

provisions of this Section as a condition of partici-

pation.” 40 ILCS 5/18-163 (West 1994).

The underlying purpose of this felony forfeiture provision

is to “discourage official malfeasance by denying the

public servant convicted of unfaithfulness to his trust the

App. 8

retirement benefits to which he otherwise would have

been entitled.” Kerner v. State Employees’ Retirement

System, 72 Ill.2d 507, 513 (1978).

The facts in the record show that Stillo was convicted

in federal court on July 29, 1993, and sentenced to serve

four years in prison on July 11, 1994. His appeal from

the conviction and sentence was denied by the United

States Court of Appeals for the Seventh Circuit on June

9, 1995. United States v. Stillo, 57 F.3d 553. The record

also reflects that Stillo received a letter from the System

on January 19, 1994. This letter informed Stillo that his

conviction would serve to terminate his retirement bene-

fits. Then, on July 26, 1994, he received another letter

from the System. This time the System notified Stillo

that a hearing concerning termination of his benefits was

scheduled for August 26, 1994. The notice stated that the

“focus of this hearing will determine the applicability and

effect of Section 18-163 of the Retirement Act as it

applies to felony convictions against you as set forth in

the sentencing order dated July 11, 1994.” Prior to the

August 26 hearing, Stillo received his full pension bene-

fits for July 1994, but the pension check for August 1994

was suspended pending the hearing and a final decision

by the Board.

It is undisputed in this case that section 18-163 oper-

ates to terminate pension benefits for pension partici-

pants who are convicted of felonies arising out of acts

committed during performance of official duties. 40 ILCS

5/18-163 (West 1994). Therefore, since it is clear that

Stillo became a participant after July 9, 1955, the Pen-

sion Code terminated the plaintiffs’ benefits as of the

date his sentence was imposed, July 11, 1994. Accord-

App. 9

ingly, we proceed to the issue of the notice required when

such benefits are suspended and/or terminated.

B. Notice

F'sintiffs contend that the United States Supreme

Court's decision in Mathews (Mathews v. Eldridge, 424

U.S. 319, 47 L.Ed.2d 18, 96 S. Ct. 893 (1976)) required

the System to hold a hearing before suspending plaintiffs’

benefits for the month of August of 1994. We reject this

contention.

We recognize that it is firmly established in Illinois

that administrative proceedings must conform to the

constitutional requirements of due process of law. Wendl

v. Moline Police Pension Board, 96 Ill.App.3d 482, 486,

421 N.E.2d 584, 587 (1981). While the essence of proce-

dural due process is meaningful notice and meaningful

opportunity to be heard (Wend, 96 Il].App.3d at 486, 421

N.E.2d at 587; Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652 (1950)), due

process is a flexible concept and specific procedural re-

quirements with respect to notice and opportunity to be

heard vary, depending upon the character of the rights

affected and the degree of the deprivation. Wendl, 96

[ll.App.3d at 486, 421 N.E.2d at 587. As a result, “some

kind of hearing” is required before an owner is “finally”

deprived of his or her property interest. Wolff v. McDon-

nell, 418 U.S. 539, 557-58, 41 L.Ed.2d 935, 952, 94 S.Ct.

2963, 2975 (1974). This reasoning was extended to bene-

fits that are a matter of statutory entitlement in Gold-

berg v. Kelly, 397 U.S. 254, 261-64, 25 L.Ed.2d 287, 295-

97, 90 S.Ct. 1011, 1016-19 (1970).

App. 10

Identification of the “specific dictates” of due process

requires consideration of three factors: (1) the private

interest that will be affected by the government’s action;

(2) the risk of an erroneous deprivation of that interest

through the procedures used and the probable value, if

any, of additional procedures; and (3) the government’s

interest, including the function involved and the fiscal

and administrative burdens that the additional proce-

dural requirement would entail. Mathews, 424 U.S. at

335, 47 L.Ed.2d at 33, 96 S.Ct. at 903.

First, plaintiffs’ interest was the full and uninterrupted

receipt of pension benefits. The record reflects that plain-

tiffs’ benefits were paid in full through July 1994 and

were only suspended for the month of August 1994 pend-

ing the outcome of the August 26 Board hearing. Had the

Board concluded after the hearing that benefits should

not cease, the benefits would have been reinstated and

paid in full, including August 1994. The suspension of

benefits occurred only during the month in which the

hearing was held and the Board ultimately decided to

terminate plaintiffs’ benefits. Thus, plaintiffs’ interest in

receiving benefits was only affected for August 1994, the

month in which the Board hearing was held.

Second, the risk of erroneous deprivation is minimal

under the Pension Code. Section 18-163 clearly provides

that conviction of a felony relating to government service

will result in the termination of pension benefits. 40

ILCS 5/18-163 (West 1994). This provision offers a fair

and reliable means of administrating pension benefits.

The procedures followed by the System in this case do

not support a need for additional procedural safeguards.

When the System wrote Stillo in January 1994 and in-

App. 11

formed him that his benefits would be paid until the date

of his sentencing and then cease, the System was operat-

ing under the assumption that sentencing would occur in

March of 1994. However, Stillo’s sentencing was moved

to July 11, 1994, and the System continued payment of

benefits through the end of July 1994. Then, on July 26,

1994, piaintiffs received notice of the Board’s hearing

scheduled to determine whether benefit payments would

terminate. According to these facts and the procedures

the System employed, we find that there was no risk of

an erroneous deprivation of plaintiffs’ benefits.

Finally, Mathews requires us to consider the interests

of the public. This factor involves an examination of the

relevant fiscal and administrative burdens, and also a

determination as to when judicial procedures must be

imposed upon administrative action to assure fairness.

Mathews, 424 U.S. at 347, 47 L.Ed.2d at 40, 96 S.Ct. at

909. The overriding governmental and public interest in

section 18-163 is protecting the fiscal integrity of the

public pension system and discouraging illegal activities

by public employees. See, e.g., Kerner, 72 Ill.2d at 513.

The System’s decision to suspend payment of benefits

after notice of a scheduled termination hearing was

mailed, and only for the month in which the hearing was

held, does not violate the public’s interest or general

notions of fairness.

Plaintiffs further argue that since the Illinois Appellate

Court in Wendi held that police officers receiving disabil-

ity pensions retained a property right in pension benefits

that could not be terminated without meaningful notice

(Wendl, 96 Ill.App.3d at 486-87, 421 N.E.2d at 587), and

that in Moore v. Board of Trustees, 157 Ill.App.3d 158,

App. 12

510 N.E.2d 87 (1987), the appellate court ruled that a

Metropolitan Sanitary District employee convicted of a

felony connected to his employment had annuity benefits

terminated without a hearing, Stillo’s pension and its

attendant benefits could not be suspended without no-

tice, an opportunity to be heard, or a hearing. Plaintiffs

state that Wendl and Moore require us to find that any

notice that the System offered would have only been

effective as to dates after a hearing, not before.

We find that neither Wendl nor Moore requires us to

reverse the Board’s decision. In Wendl, the court ruled

that the pension board gave inadequate notice of a hear-

ing where the plaintiffs’ disability benefits were termi-

nated. Wendl, 96 Ill.App.3d at 488, 421 N.E.2d at 588.

The notice at issue in Wendl failed to indicate, or even

suggest, that the Board might possibly terminate the

plaintiffs’ benefits. Wendl, 96 Ill.App.3d at 488, 421 N.E.

2d at 588. In the instant case, however, the notice issued

by the System on July 26, 1994, clearly stated that a

hearing would be held August 26, 1994, to determine

whether benefits would be terminated under section

18-163 of the Pension Code. As a result, plaintiffs had

adequate notice as to the purpose of the hearing and,

therefore, according to the Wendl court’s reasoning, the

notice was sufficient.

In Moore, the Board of Trustees of the Sanitary District

Employees’ and Trustees’ Annuity and Benefit Fund

notified the plaintiff (Moore) that his pension benefits

had been terminated at a board meeting because of a

felony conviction related to performance of his work

duties. Moore never received advance notice of this ter-

mination. This court ruled that “(i]t is clear as a matter

App. 13

of due process *** that the board erred in not providing

Mr. Moore with notice and an opportunity to be heard

before the termination of his benefits.” Moore, 157 Il.

App.3d at 166, 510 N.E.2d at 93. The court continued by

stating that “[i]t is, however, not necessary, as stated

above, that the board conduct a full hearing concerning

the underlying felony conviction itself.” Moore, 157 I].

App.3d at 166, 510 N.E.2d at 93.

Based on the record before us in the instant case,

plaintiffs did receive notice prior to the hearing in which

the Board would decide whether their benefits would

terminate under the Pension Code. Prior to the hearing

regarding termination of benefits, the System merely

suspended plaintiffs’ benefits for the month of August

pending the outcome of the hearing. Unlike in Moore,

plaintiffs’ benefits were not suspended without a hearing,

and the System sent notice of the hearing one month in

advance. If plaintiffs had prevailed at the hearing, their

full benefits would have resumed and they would have

received the August payment in full. Thus, plaintiffs had

an opportunity to contest the System’s decision to ter-

minate benefits on August 26, 1994, and still received

benefits through the time when notice was tendered. Ac-

cordingly, we decline plaintiffs’ invitation to follow Wendl

and Moore.’

' The Stillos’ reply brief states that Wendl and Moore are

essential to our analysis because “those decisions hold that

pension benefits, being property rights, require the termina-

tion of those rights to be based upon cause and cannot be

arbitrarily extinguished without a hearing,” and “a hearing for

termination of such pension benefits is required.” As noted in

(continued...)

App. 14

It is important to note the System does not deny that

due process is a necessary component to the termination

of pension benefits, but instead argues that Kerner v.

State Employees’ Retirement System, 53 Ill.App.3d 747,

368 N.E.2d 1118 (1977), aff'd, 72 Il.2d 507 (1978),

should guide our analysis on this issue. In Kerner, ex-

Governor Otto Kerner joined the retirement system in

1965. Following his 1968 resignation as Governor to

accept appointment as a federal judge, he received pen-

sion checks. Then, in April 1973, Kerner was convicted of

felonies in federal court. Pursuant to section 14-199 of

the Pension Code (Ill. Rev. Stat. 1975, ch. 108-1/2, par.

14-199), his monthly pension allowances were terminated

by the retirement system because of his convictions, and

he filed a demand for resumption of benefits in October

1975.2 The Board denied Kerner’s benefits in May 1976,

the circuit court reversed the Board, and the appellate

court reversed the circuit court and reinstated the

Board’s decision. Kerner, 53 Ill.App.3d at 755, 368 N.E.2d

at 1123-24. Relevant to the instant case, both the appel-

late court and the supreme court rejected Kerner’s claim

that he had been denied due process under either the

Illinois or United States Constitution by the retirement

system’s termination of benefits. However, neither case

provided any analysis of the due process issue. Therefore,

while Kerner presents a factually similar case and con-

firms the statutory authority to terminate benefits, we

(...continued)

this opinion, the record shows that plaintiffs’ benefits were not

terminated until after the August 26, 1994, hearing.

2 This statutory provisions is almost identical to section 18-

163.

App. 15

rely on traditional due process analysis to clarify the

standard for due process in pension benefit termination

cases.

As noted above, the Mathews test for due process does

not require that we find the System violated plaintiffs’

due process rights. After Stillo’s conviction in the district

court, the System continued to pay his full retirement

benefits. It was only after the district court pronounced

Stillo’s sentence on July 11, 1994, that the System noti-

fied him that it would conduct proceedings devoted to

determining whether his benefits would terminate. But

before actually terminating the benefits, the System noti-

fied Stillo that a termination hearing was scheduled for

August 26, 1994, and only the benefit payments for Au-

gust of 1994 were suspended pending the Board’s de-

cision after the hearing. Therefore, we hold that the

System may, pursuant to enforcement of section 18-163,

suspend benefits pending a hearing on the issue, as long

as notice is provided and a hearing is conducted by the

Board before finally terminating retirement benefits.

This rule does not violate established due process rights

and allows for efficient enforcement of the policies set

forth in the Pension Code.

C. Exhaustion of Appeals

Next, plaintiffs contend that the System should have

been prohibited from extinguishing pension benefits until

completion of all appeals from Stillo’s criminal conviction.

We disagree.

As used in the Pension Code, the phrase “convicted of

a felony” has been interpreted to mean the date upon

App. 16

which a court enters judgment and imposes a sentence on

the conviction. Allen, 71 Ill.2d at 381; People ex rel.

Wright v. Board of Trustees of the Teachers’ Retirement

System, 157 Ill.App.3d 573, 579, 510 N.E.2d 1283, 1287

(1987).

In People ex rel. Keenan v. McGuane, 13 [l.2d 520, 523-

24 (1958), the Illinois Supreme Court addressed the issue

of whether an appeal of a criminal conviction stayed a

provision in the Election Code (Ill. Rev. Stat. 1957, ch.

38, par. 587) that stated “[e]lvery elected office shall be-

come vacant on the happening of *** [h]is conviction of

an infamous crime.” The court found that the office of

Cook County assessor became vacant after the then-

assessor's conviction and sentencing on charges of federal

tax evasion. Keenan, 13 Ill.2d at 525. The assessor then

argued that the pendency of his appeal before the United

States Court of Appeals for the Seventh Circuit stayed

the finality of his conviction. The supreme court rejected

this argument, finding that after a conviction, “the pre-

sumption of innocence which, up to that time, had per-

sisted in favor of the defendant, no longer prevails, and

that the law thereafter presumes that the proceedings

have been regular and that the defendant is guilty.”

Keenan, 13 [11.2d at 536. In fact, the court stated that it

found “no merit in petitioner’s contention that pendency

of his appeal stays the finality of his conviction.” Keenan,

13 [l.2d at 537.

Plaintiffs rely on Supreme Court Rule 761(d\(2) in sup-

port of their argument that their benefits should not

have been extinguished while Stillo appealed his criminal

conviction. 134 Il.2d R. 761(d)2). We find that this re-

liance is misplaced.

App. 17

Supreme Court Rule 761(d)(2) provides, in part, that

when an attorney has been convicted of a crime involving

fraud or moral turpitude, a hearing shall be conducted

before the hearing board of the ARDC; however, if the

attorney has appealed the conviction, the hearing shall

be delayed until completion of the appellate process,

unless the attorney -requests otherwise. 134 IIl.2d R.

761(d2). This rule provides that, if an attorney is con-

victed of a crime involving fraud or moral turpitude, the

administrator of the ARDC shall file a petition with the

Illinois Supreme Court alleging relevant facts and re-

questing that the attorney be suspended from the prac-

tice of law. See 134 IIl.2d R. 761(b). After considering the

petition, the supreme court may order a suspension.

Since Rule 761 stays a final ARDC hearing during the

appeals process, and plaintiffs’ benefits were terminated

prior to completion of Stillo’s appeal from his criminal

conviction, we must decide whether we want to extend

application of the procedures employed in ARDC’s dis-

ciplinary actions to administrative actions involving

public employee retirement benefits. We find that the

language of section 18-163 does not support expanding

the coverage of the reasoning used in Rule 761.

Section 18-163 stated in certain terms that any person

convicted of any felony related to his service as a judge

will lose his pension benefits. 40 ILCS 5/18-163 (West

1996). If we were to apply the procedures set forth in

Rule 761, we would nullify the plain language of sec-

tion 18-163 and call into question the supreme court’s

well-reasoned decision in Keenan. Such drastic action is

not warranted. Therefore, we should leave Rule 761 to

ARDC’s disciplinary matters and follow the clear dictates

App. 18

of the Pension Code. Accordingly, under the Pension

Code, the System may proceed to terminate benefits in

accordance with due process once the participant has

been convicted of a felony and sentenced.°

CONCLUSION

For the aforementioned reasons, we affirm the decision

of the circuit court.

Affirmed.

Zwick and Quinn, JJ., concur.

3 The Stillos cite Levine v. Kling, 123 F.3d 580 (7th Cir. 1990),

for the proposition that the System could not proceed with

benefit termination procedures until Stillo exhausted his ap-

peals. Levine specifically dealt with a person convicted of using

interstate commerce to commit murder and his efforts to bring

a legal malpractice action against his appellate defense at-

torney. The seventh circuit held that under Illinois law the

client, who had not made a successful collateral attack on his

conviction, could not maintain an action for legal malpractice

against appellate defense counsel. However, the court made

clear that if the client succeeded in getting his conviction over-

turned, he could bring a new malpractice suit. Levine, 123

F.3d at 583. Therefore, Levine only supports a conclusion that

had Stillo had his conviction reversed by the court of appeals,

he could have had his benefits restored. Levine stands for

nothing more.

App. 19

IN THE CIRCUIT COURT OF

COOK COUNTY, ILLINOIS

Adam and Florence Stillo, )

Plaintiffs, )

Vv. ) No. 94 CH 9756

)

)

)

State Retirement System,

Defendant.

ORDER

This matter coming to be heard on plaintiffs’ complaint

for administrative review, all briefs being filed, the at-

torneys being present and the Court being fully advised

on the premises:

IT IS HEREBY ORDERED THAT:

Plaintiffs’ petition for administrative review is denied.

Atty No. 99000

Name Iain Johnston

Attorney for Defendant

Address 100 W. Randolph St.

City/Zip Chicago IL 60601

Telephone (312) 814-3654

November 24, 1997

ENTER:

/s/ John K. Madden

Judge Judge’s No.

App. 20

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT - SIXTH DIVISION

ADAM N. STILLO and

FLORENCE F. STILLO,

)

)

)

Plaintiffs-Appellants, )

v. ) No. 1-97-4630

)

STATE RETIREMENT SYSTEMS, )

JUDGES’ RETIREMENT SYSTEM _)

OF ILLINOIS, )

)

)

Defendant-Appellee.

ORDER

This cause coming to be heard on the Petition for

Rehearing filed by Plaintiffs-Appellants on June 11,

1999, and pursuant with Supreme Court Rule 367;

IT IS HEREBY ORDERED that the Petition for Re-

hearing is DENIED.

ORDER ENTERED /s/ Robert Chapman Buckley

July 19, 1999 Justice

Appellate Court,

First District /s/ Morton Zwick

Justice

/s/ Patrick J. Quinn

Justice

App. 21

88117

SUPREME COURT OF ILLINOIS

CLERK OF THE COURT

SUPREME COURT BUILDING

SPRINGFIELD, ILLINOIS 62701

(217) 782-2035

December 1, 1999

Mr. Stanley H. Jakala

Attorney at Law

3219 S. Maple Ave.

Berwyn, IL 60402

No. 88117- Adam N. Stillo et al., petitioners, v. State

Retirement Systems, etc., respondent.

Leave to appeal, Appellate Court, First

District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate

Court on December 23, 1999.