Maloney v. State Employee's Retirement Sys., 1-05-3027.

• Decision Date: 28 July 2006
• Docket Number: No. 1-05-3027.,1-05-3027.
• Parties: Thomas MALONEY, Plaintiff-Appellee, v. STATE EMPLOYEE'S RETIREMENT SYSTEM OF ILLINOIS, Judges' Retirement System of Illinois, Robert V. Knox, Executive Secretary of the Judges' Retirement System of Illinois, The Board of Trustees of the Judges' Retirement System of Illinois, Lisa Madigan, Attorney General of Illinois, and Rudy J. Kink, Deputy Director, Judges' Retirement System, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

853 N.E.2d 811

Thomas MALONEY, Plaintiff-Appellee, v. STATE EMPLOYEE'S RETIREMENT SYSTEM OF ILLINOIS, Judges' Retirement System of Illinois, Robert V. Knox, Executive Secretary of the Judges' Retirement System of Illinois, The Board of Trustees of the Judges' Retirement System of Illinois, Lisa Madigan, Attorney General of Illinois, and Rudy J. Kink, Deputy Director, Judges' Retirement System, Defendants-Appellants.

No. 1-05-3027.

Appellate Court of Illinois, First District, Fifth Division.

July 28, 2006.

State of Illinois, Attorney General, Chicago (Jan E. Hughes, of counsel), for Appellant.

Collins & Bargione, Chicago (George B. Collins, James J. Lessmeister, Theresa M. Gronkiewicz, of counsel), for Appellee.

Justice SHEILA M. O'BRIEN delivered the opinion of the court:

Defendants appeal the order of the circuit court requiring the Board of Trustees of the Judges' Retirement System of Illinois (the Board) to refund plaintiff's, Thomas Maloney's, contributions to the Judges' Retirement System of Illinois (the System). Defendants contend that plaintiff waived his claim for a refund. We reverse.

Plaintiff was a judge in the circuit court of Cook County from 1977 until he retired in 1990. In 1993, he was convicted on charges of racketeering, racketeering conspiracy, extortion under color of official right, and obstruction of justice arising from activities during his tenure as a judge. On July 21, 1994, the district court sentenced plaintiff to 189 months in federal prison, where he remains today.

In August 1994, the Board voted to terminate plaintiff's pension benefits pursuant to section 18-163 of the Illinois Pension Code (40 ILCS 5/18-163 (West 1994)), which requires that all benefit payments cease upon a member's conviction and sentencing for a felony arising out of acts committed during the performance of the member's official duties. The Board also determined that since plaintiff had received a check for the full month of July 1994, there was an overpayment in the amount of $1,378.12 for the period from July 21, 1994 (the date of sentencing), through July 31, 1994. The Board directed the System to collect the overpayment.

In November 1994, and in March and April 1995, the manager of the System, Rudy Kink, sent plaintiff letters asking him to return the overpayment to the System. In May 1995, plaintiff responded that he had appealed his conviction and asked the System to hold its repayment demand in abeyance. Mr. Kink agreed and asked plaintiff to advise the System every six months of the status of his appeal.

In December 1995, plaintiff notified Mr. Kink that the United States Court of Appeals for the Seventh Circuit had affirmed his convictions, but that he planned to file a petition for rehearing. In May 1996 plaintiff notified Mr. Kink that the rehearing petition had been denied and that he planned to ask the United States Supreme Court to hear his case. In October 1996, plaintiff informed Mr. Kink that the United States Supreme Court denied his petition for a writ of certiorari. In December 1999, plaintiff informed Mr. Kink that the United States Court of Appeals for the Seventh Circuit had further denied him relief. Between December 1999 and June 2003, plaintiff and Mr. Kink corresponded several times regarding the overpayment.

On June 19, 2003, plaintiff wrote a letter to Mr. Kink asking for a refund of his contributions to the System pursuant to the Illinois Supreme Court decision in Shields v. Judges' Retirement System of Illinois, 204 Ill.2d 488, 274 Ill.Dec. 424, 791 N.E.2d 516 (2003). In Shields, the supreme court held that a former judge whose pension benefits had been terminated following a felony conviction was entitled to a full refund of all contributions he made to the System.

Mr. Kink then wrote a memorandum to the Board, detailing plaintiff's request for a refund of his contributions to the System. Mr. Kink noted that plaintiff had received $162,340.08 in benefits and made contributions in the amount of $72,854.78. Mr. Kink also noted that plaintiff did not request a refund of his contributions when he appealed his pension termination to the Board. Additionally, Mr. Kink stated that there was no indication of any court review after the Board terminated plaintiff's benefits.

At its regular meeting on August 1, 2003, the Board referred plaintiff's request for a refund to the Illinois Attorney General for review in light of the Shields decision.

In September 2004, Senior Assistant Attorney General and Chief of the Opinions Bureau, Lynn Patton, sent Mr. Kink an informal opinion stating in relevant part:

"[Plaintiff] retired from the bench in 1990 and began receiving benefits from the System immediately thereafter. In 1994, [plaintiff] was convicted of a service-related felony. The [Board] conducted a hearing on August 26, 1994, and entered an order terminating [plaintiff's] benefits effective July 21, 1994, the date upon which he was sentenced. Because the retirement benefits received by [plaintiff] prior to termination exceeded the amount of his contributions to the System, no refund was ordered. According to the written decision and order of the Board, [plaintiff] was provided with notice of the hearing, but did not appear or file any document contesting the termination of his benefits. Further, there is evidence that a copy of the decision was received by [plaintiff] by mail on or about October 3, 1994.

An action to review the decision of an administrative agency must be initiated pursuant to the provisions of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2002)) within 35 days from the date that a copy of the decision sought to be reviewed was served upon a party affected by the decision. 735 ILCS 5/3-103 (West 2002). Unless a review of an administrative decision is sought within the time and manner provided in the Administrative Review Law, parties to an administrative proceeding are barred from obtaining judicial review of the decision. 735 ILCS 5/3-102 (West 2002); Dopp v. Village of Northbrook, 257 Ill.App.3d 820, 824, 196 Ill. Dec. 387, 630 N.E.2d 84 (1993). There is no indication that [plaintiff] availed himself of the statutory procedure for reviewing the correctness of the administrative decision, including the Board's determination that no refund was due. It appears, therefore, that [plaintiff] has waived his right to challenge the decision."

At its annual meeting on October 29, 2004, the Board voted to deny plaintiff's request for a refund of contributions because he failed to file an appeal within the 35-day time frame set forth in the Administrative Review Law. In a letter dated November 3, 2004, Mr. Kink informed plaintiff of the Board's final administrative decision denying his request for a refund of his contributions and of his right to have the decision reviewed in the circuit court.

On November 23, 2004, plaintiff filed a complaint for administrative review. He sought a judgment for $72,854.78, the total amount he paid into the System, plus costs. On May 25, 2005, the circuit court entered an order in favor of plaintiff, requiring the Board to refund plaintiff his contributions into the System. Defendants filed a motion to reconsider. The circuit court denied the motion, but stayed its decision pending appeal. Defendants then filed this timely appeal.

Section 18-164 of the Illinois Pension Code (40 ILCS 5/18-164 (West 1994)) provides that the Administrative Review Law governs judicial review of final decisions of the Board. On appeal, we review the Board's decision rather than the circuit court's determination. Village of Oak Park v. Village of Oak Park Firefighters Pension Board, 362 Ill.App.3d 357, 365, 298 Ill.Dec. 235, 839 N.E.2d 558 (2005). Because the relevant facts of plaintiff's case were not in dispute before the Board, review is de novo. Stillo v. State Retirement Systems, ___ Ill.App.3d ___, 304 Ill.Dec. 266, 652 N.E.2d 516 (2006).

The Board contends that plaintiff waived review of his request for a refund by failing to file a timely complaint for administrative review within 35 days of service of the Board's August 1994 decision terminating plaintiff's pension benefits. Plaintiff counters that the Board's August 1994 decision terminated only his pension benefits but did not terminate his right to a refund of his own contributions to the System. Plaintiff contends that the issue of a refund of his own contributions to the System was never...