People ex rel. Madigan v. Burge

• Decision Date: 03 July 2014
• Docket Number: 115645.,Nos. 115635,s. 115635
• Citation: 18 N.E.3d 14
• Parties: The PEOPLE ex rel. Lisa MADIGAN, Attorney General of Illinois, Appellee, v. Jon BURGE, et al., Appellants.
• Court: Illinois Supreme Court

18 N.E.3d 14

The PEOPLE ex rel. Lisa MADIGAN, Attorney General of Illinois, Appellee

v.Jon BURGE, et al., Appellants.

Nos. 115635

115645.

Supreme Court of Illinois.

July 3, 2014.

Rehearing Denied Sept. 23, 2014.

Michael H. Moirano and Claire Gorman Kenny, of Nisen & Elliott, LLC, of Chicago, for appellant Jon Burge.

David R. Kugler, of Chicago, for appellant Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago et al.

Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro and Carolyn E. Shapiro, Solicitors General, and Richard S. Huszagh, Assistant Attorney General, of Chicago, of counsel), for appellee.

OPINION

Justice BURKE delivered the judgment of the court, with 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, 367 Ill.Dec. 330, 981 N.E.2d 1058. 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 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, the Attorney 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.

¶ 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, 304 Ill.Dec. 262, 852 N.E.2d 512 (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, 367 Ill.Dec. 330, 981 N.E.2d 1058. 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 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

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