*1 sentencing to the provisions of the robbery armed stat ute is therefore and premature, motion have those provisions declared unconstitutional should have been by denied circuit Nevertheless, court. reasons set Garcia, v. my special forth in People concurrence in 403, 2d at the armed robbery charges against longer Blanco are no viable. the wake of this court’s Walden, v. People rulings 199 Ill. (2002), 2d 392 People v. Devenny, 199 Ill. (2002), and in the exercise of this supervisory court’s authority, matter should therefore be remanded to the circuit directions portion information charging Blanco armed robbery dismissed. joins
JUSTICE KILBRIDE in this special concur- rence.
(No. 91468. WILLIAM DEVONEY, Appellant, v. THE RETIRE-
MENT BOARD OF THE POLICEMEN’S ANNU- ITY AND BENEFIT FUND FOR THE CITY OF CHICAGO, Appellee.
Opinion April Rehearing May denied 2002. filed 2002. *2 J., part. took no McMORROW KILBRIDE, J., dissenting. by FREEMAN, J., joined Pleines, Chicago, appellant. of for
Thomas J. Kugler, Chicago, appellee.
David R. opinion delivered the CHIEF JUSTICE HARRISON of the court: lieutenant, Chicago police Devoney, a former
William from charges arising fraud of federal mail was convicted Allstate Insur- in a to defraud participation scheme convic- Devoney’s The us whether ance. issue before or in connec- or out of tion, “relat[ed] [arose] felony, to render him so as policeman” tion his service as a with benefits under section police pension for his ineligible (40 ILCS the Illinois Pension Code 5—227 of 5/5 —227 1998)). of the Policemen’s The Retirement Board (the City Chicago Benefit Fund of Annuity and Board) Retirement answered this question the affir mative and denied pension. On administra review, tive circuit court Cook County affirmed the Retirement Board’s The appellate decision. court subse quently affirmed the judgment, circuit court’s with one justice dissenting. 321 Ill. App. granted 3d 1. We De voney appeal. leave 177 Ill. 2d R. 315. For the reasons follow, we now affirm. Devoney served on Chicago police force for more years, than 34 eventually attaining the rank of lieuten- ant. In October a federal grand jury indicted him along 23 other on persons charges conspir- acy to commit resigned insurance fraud. Devoney from police department following month. He then agreement entered into a written plea the United Attorney’s States office under which he pleaded guilty to one of mail fraud, felony, count violation 18 U.S.C. § 1341 court accepted Devoney’s federal plea ultimately sentenced him to 16 months’ incarcera- years tion and 3 of supervised release and ordered him to *3 pay in $42,000 plus restitution the amount of a $50 special assessment. gave
The Devoney’s circumstances which rise to originated his from with David Bal- friendship log, Jr., one of his in prosecu- codefendants the federal Ballog tion. is a career living by criminal who made his filing Devoney fraudulent insurance claims. first met Bal- in him log early Ballog the 1980s hired to install a when Ballog Devoney concrete patio. po- was aware that was a lice officer. He cultivated his friendship Devoney with because he believed such a aid him in friendship would the he dealing legal problems frequently faced. at home and Devoney’s slipped wife fell Following injury, Ballog broke her ankle. the and De- Raimondi, voney conspired Ballog’s with Matt one of as- sociates, defraud insurance to Raimondi’s homeowner’s actually Devoney’s wife had by claiming carrier as a result of Rai- at Raimondi’s home injured herself ultimately netted a The negligence. mondi’s scheme insurer, from which $70,000 cash Raimondi’s settlement Ballog. Negotiations Raimondi and Devoney split with by Ballog, who were conducted leading to the settlement De- as the brother of to the insurer represented himself assistance of De- also involved the voney’s They wife. adjusters regarding personally spoke who voney, claim. force, resigned from the he was Devoney
At the time guilty, pension. pleaded entitled to receive a After pension to benefits. began Retirement Board withhold to have the Devoney subsequently applied benefits of The Board conducted a series restored. Retirement on of hearings application, administrative the last month, place following took in June of 1998. The which re- denying the Retirement Board issued a final decision Devoney’s pursuant instatement benefits to section (40 of the Pension Code ILCS 5—227 5/5 —227 1998)), which provides: provided for this Article shall
“None benefits any felony relat- who is paid person convicted as ing arising of or in with his service out connection policeman.” administrative review of the Retire- Devoney sought Board’s circuit court. He was ment decision denial successful. The circuit court affirmed Board’s Devoney’s application restoration the circuit court’s court affirmed appellate benefits. from appeal leave judgment, granted and we court. judgment appellate Here, litigation, dispositive as this throughout Devoney’s pension is whether reinstatement question section 5—227 of denied under properly benefits Any his felony Pension Code on conviction. based *4 receiving officer from disqualify conviction will 418
benefits under the Pension Code when the takes place while the officer receiving disability Devoney, however, benefits. disability on at the time of his conviction. Accordingly, an require- additional ment applied. Code, Under Pension only he could disqualified from receiving benefits if felony was one “relating or arising out of or in connection with” his (West 1998). policeman. service as a 40 ILCS 5/5 —227 The requirement that the conviction relate arise out of or in connection with a person’s police- service as a man unique is not to law enforcement. Identical provi- (40 govern sions Assembly members General ILCS (West 1998)), participants the Illinois Munic- 5/2 —156 (40 (West ipal 1998)), Retirement Fund ILCS 5/7 —219 those in Officers’, Of- Municipal Employees’, (40 ficials’ Annuity and Benefit Fund ILCS 5/8 —251 (West (40 1998)), (West county employees ILCS 5/9 —235 1998)), employees under the Laborers’ and Retirement (40 Board Employees’ and Benefit Fund ILCS (West (40 1998)), sanitary employees district 5/11 —230 (West (40 ILCS 1998)), employees state ILCS 5/13 —807 (West (40 (West 1998)), judges ILCS 5/14 —149 5/18—163 1998)), (see, and others e.g., 40 ILCS 5/16 —199 1998)).
These have provisions been enacted to the pursuant legislature’s power “to deter in public felonious conduct by affecting employment rights public em ployees convicted of a felony.” work-related See Stillo v. State Ill. Systems, Retirement 3d (1999). Their is to purpose “discourage official malfea by denying public sance servant convicted of unfaith fulness to his trust the retirement benefits which otherwise would have been entitled.” Kerner v. State Employees’ System, Retirement are general describing statutes how employee’s public conviction must to an pertain service *5 trig- disqualification will be benefit the before ways gered, they The not be otherwise. could but exploited governmental illicit for offices can be which purposes greater specific- and varied that are diverse so impossible. ity would pension disqualification applying statutes, the
When pivotal inquiry including a is 227, the whether section 5— wrongdo employee’s criminal nexus exists between ing performance Di See of his official duties. and Annuity & Policemen’s Fiore v. Retirement Board appel App. 3d The Fund, Benefit requirement opined satis that the was late court nexus Devoney’s participation in the in this fied case because duty report activity to crime his unlawful violated sworn persons engaged 321 Ill. and arrest in criminal conduct. justice dissenting appellate at The 10. squared argued, however, that this rationale cannot be provisions that Code. We believe Pension dissenting justice’s are well founded. concerns report Although duty to and arrest criminals a crime policeman, arise from an officer’s as a breach does service duty disqualification triggers a not what for is plain unambiguous language pension. Under the and triggers disqualification is what the existence felony and a connection the actual conviction between policeman. the officer’s as a service important The distinction is because two sets duty report events, and and breach of the to arrest felony, equivalent. of a are not Whether an of- duty may arrest to have to ficer be deemed breached having report dependent a committed not on his policeman. felony associated with service as underlying duty may be breached where the offense felony, personally in its not a the officerwas not involved nothing commission, to do or the offense had whatever policeman. with the fact that he was Correspondingly, felony an officer’s commission of a automatically duty wiUnot constitute breach of his to report and arrest. If an officer who has committed a immediately felony surrenders to authorities and con- example, duty crime, to the fesses no breach of the report arrest and can be said to have occurred. Admittedly, apt felonious officers are not voluntarily surrender and confess their crimes. As a practical activity matter, their criminal will be ac- companied by duty report. a breach of their to arrest and duty report The fact that a breach to arrest and normally felony will follow an officer’s commission aof “relat[ed] mean, however, does that the itself *6 [arose] to or of or in out connection his service as a policeman” meaning within the of section 5—227 of the Pension Code. Whether a nexus exists between the of- policeman as a ficer’s service and the crime committing separate inquiry. convicted of ais statutory requisite If the nexus could be established solely duty based on the felonious officer’sbreach of his report, appellate majority sug- to arrest and as the court gests, felony every by police committed a officer would ineligible pension, regardless him render for a of the nature of the offense or the circumstances under which interpretation it was committed. Such an the law yield indistinguishable would a standard from the one applicable felony where the officer a committed while receiving disability requirement benefits. The that the felony “relat[ed] [arose] be one which is of or in out policeman” connection with service as a would have independent practical purposes, no effect. For all it would be read out of the statute. panel appellate
A different of the court addressed a similar issue in Cullen v. Retirement Board App. Fund, & Policeman’s Ill. 3d Benefit police In that case a officer was convicted young fatally degree man shot a after he first murder for following eyes At the altercation. a traffic between duty, not in off the officer was murder time driving police car. He never uniform, not and was attempt policeman, not did himself as identified service revolver. arrest, an and did use his make Following conviction, the officer’s Retirement The Board his retirement benefits. Board terminated always are sworn to officers reasoned uphold because policemen by take defini- law, is, action performance official That tion, of their duties. within being so, this here deemed to have been murder must be performance of official committed within the officer’s duty. rejected analysis. appellate Based on this language held the court that section contemplates “clearly the existence of situations 5—227 officer could commit a unrelated where App. at Cullen, duties.” 271 Ill. 3d his law enforcement Assembly 1109. Had the General not intended to make distinction, reasoned, this the court it not have would language employed paragraphs the first two different simply Instead, it of the statute. have “one would written denying any felony paragraph all benefits conviction.” Cullen, at 1109.
Having conclusion, this on to reached court went statutory nondisability hold that the standard for cases *7 view, not met. In the court’s there was “no evidence was demonstrating [the officer’s] criminal actions were any way or in in related to or out of connection arose Chicago police Cullen, 271 with his service as a officer.” App. judgment Ill. 3d at 1109. It therefore reversed the the circuit and the cause instruc of court remanded tions to reinstate the officer’s benefits. approach subsequently The taken in was fol- Cullen by appellate v. lowed court in Siwek Retirement 422
Board the Policemen’s & Fund, 324 Benefit (2001). Siwek, Cullen, the court Ill. 3d App. 820 as in rejected the notion that violation the officer’s oath or statutory duty provides the requisite nexus between his conviction and his service as a police officer under Cullen, the court Echoing Pension Code. analysis wrote:
“Every police time a felony officer is convicted of a he has violated his police oath of office. When a officer is convicted crime, of a violated obey. has the law he has to sworn alone, fact of conviction, cannot, The standing plain meaning within the paragraph one of section 227, enough deprive police pension. to officer of his 5— To so hold something would be rewrite the we Siwek, are not to do.” authorized 3d at 828- 29. agree
We with these cases and therefore likewise reject the notion that violation oath or officer’s statutory duty provides the requisite nexus between his his service as a officer under Pension Code. conclusion, however, That not does end inquiry. our
Our function as reviewing is to determine whether the lower courts reached the correct result. given by reasons a lower court or for its decision on findings which a decision are if is based not material Managers See Board of the judgment is correct. Dominion Plaza One Condominium Ass’n 1-A No. v. Bank, N.A., Chase Manhattan Ill. App.
(1983). judgment may ground A be sustained upon any the record. Bell v. Louisville & Nashville by warranted Co., R.R. 106 Ill. 2d
The federal indictment under which does charged identify police officer, proof not him as a employment necessary as a officer was not guilt, Chicago’s establish and his association with police department plea mentioned his written agreement Attorney. with the United States purposes For *8 federal governing liability under of criminal took, his official status not the action mattered what of police status as Devoney’s Although he acted. when obstruc involving incident prior to germane ficer was at federal court by the was considered justice that tion of his to wholly unrelated incident was sentencing, that in a not, itself, result did in this case and culpability cor court Accordingly, appellate as felony conviction. to De irrelevant the incident was recognized, rectly 5—227. 321 under section rights voney’s pension at 6. the cir- believe that said, we nevertheless being That that the of- establish surrounding crime cumstances officer. police work as Devoney’s related to fense was the conditions disposition, in this indicated earlier As originated from Devoney’s to gave rise which Ballog Ballog, Jr. with codefendant David friendship his Ballog Devoney because relationship his cultivated to have advantageous it criminal who considered was a connections. Ballog. unsuspecting or about Devoney was naive their attorney, Board’s of the Retirement In the words behest, Ballog’s At “long unsavory.” relationship was Bal- force for position used his on Devoney had protracted period over a variety ways in a log’s benefit circumstances, there was these upon of time. Based finding Board’s for the Retirement ample ground a Police Officer fact that was “but for the or in a rank,” position not have been high he “would [which to defraud in the scheme participate selected to conviction].” led to his scheme Devoney’s participation
Because enforce- as a law of his status product defraud was by sec- required the nexus official, ment believe that we (40 ILCS of the Pension Code tion 5—227 5/5 —227 1998)) felony conviction Devoney’s present.
federal court was of or “relat[ed] [arose] out in con- nection a policeman” service as so as render him ineligible police pension benefits. ILCS (West 1998). appellate court was therefore 5/5 —227 correct in affirming judgment circuit *9 which confirmed the Retirement Board’s deny- decision Devoney’s ing claim for pension benefits. reasons,
For foregoing the the of the judgment appel- late court affirmed. is
Affirmed. JUSTICE took no the part McMORROW in consider- ation or of decision this case. FREEMAN,
JUSTICE dissenting: The issue in this is case whether has benefits, pursuant forfeited his to section 5—227 (40 of the Illinois Pension Code ILCS 5/5 —227 1998)), because of his mail fraud. The ma- jority affirmative, in finding answers the a connection be- Devoney’s tween status as a officer and his convic- tion for mail fraud. I majority Because believe the has 227, misconstrued the nexus requirement section I 5— dissent. respectfully
DISCUSSION in provides part: Section 5—227 “None the provided benefits for in this Article shall paid person any felony is convicted who relat- ing arising out of or in connection his service with as (West 1998). policeman.” 40 ILCS 5/5—227 fraud, felony. mail Devoney stands convicted of See 18 (1994). § U.S.C. 1341 here whether the question is mail related out of fraud to or arose or connection Devoney’s service as a officer.
In the of a the interpreting language primary goal of court is effect to the give this to ascertain
425
District,
Zion Park
Barnett v.
legislature.
intention
(1996).
court must seek
378,
This
Ill. 2d
388
171
in the
language
from the
used
intent
legislative
primarily
(2001);
96,103
Ill. 2d
Yang City Chicago,
v.
195
statute.
Barnett,
language
111.2d at 388. Where
171
function
only legitimate
unambiguous,
statute
by
as enacted
is to enforce
the law
this court
School, 186 Ill.
High
v. Libertyville
Henrich
legislature.
Sheahen,
v.
Taxpayers
Certain
45
381,
(1998);
2d
391
(1970). There is no rule of
75, 84, 256
2d
N.E.2d
this court to de
which authorizes
statutory construction
the plain
did not mean what
legislature
clare that
Henrich,
Devoney Ballog. about unsuspecting was not naive or attorney, their rela- of the Retirement Board’s the words behest, Ballog’s De- ‘long unsavory.’ At tionship was Ballog’s voney position police had used his on the force for ways protracted period variety benefit in a over circumstances, ample upon there was time. Based these finding that ‘but for ground for the Retirement Board’s rank,’ high Officer of fact that was a Police partici- or selected to position not have been in a ‘would [which led to his convic- pate in the scheme to defraud tion].’ Devoney’s
Because participation in the scheme to product defraud was the of his status as a law enforcement official, we believe that required by nexus section 5—227 of the Pension Code present.” [citation] was Ill. 2d at 423.
I disagree.
First, I note that the majority does not provide sup- port for the assertion that had “Devoney used posi- tion on force for BaUog’s benefit in a variety ways over a protracted period of time.” Perhaps ma- jority is referring to the district finding court’s that De- voney had interfered with the investigation of a sexual assault aUegedly perpetrated by Ballog’s one of relatives. However, Devoney charged was not any wrongdoing in connection with the investigation of the sexual as- sault. As the appellate court observed:
“[Devoney] had charged not been with or any convicted of felony related to obstructing justice regarding the sexual case, assault and thus language of section 5—227 precludes us from considering this conduct in determining [Devoney] whether has pension forfeited his benefits. Therefore, [Devoney’s] conduct in obstructing justice in the sexual assault case is irrelevant to our analysis of whether [Devoney] has forfeited his benefits under section 5—227.” 321 Ill. 6.
Perhaps the majority referring to some other conduct. Without more information regarding the nature of the involved, I, one, conduct find it difficult to conclude that the requisite nexus exists.
Second, and importantly, more the majority adopts a “but for” standard for the forfeiture of benefits. The assumption is that Devoney’s “but for” status as a officer, Ballog would not have selected him to par- ticipate in the scheme. The problem with such an as- sumption generality is the of its application crime *11 involving participation of the police officer and an- other individual. The participation of the police officer in a crime that is unconnected to police his work on the of- police connected to his status as a always force can be always said that an individ- example, ficer. For it can be later a officer and obtains gets police ual who to know not have ap- in a crime would participation the officer’s officer. police the officer but for his status as proached for” cannot Moreover, majority’s “but standard of the statute. The plain language be reconciled to the provides: first of section 5—227 paragraph for in Article provided “None of the benefits this shall paid any person any felony is relat- be who convicted as ing arising out of or in connection with his service (West 1998). policeman.” ILCS 5/5—227 in v. Retirement appellate As the court observed Cullen Fund, & Board the Policeman’s Benefit (1995): Ill. App. 3d clearly contemplates “the statute the existence of situa- felony tions where a officer could commit a unre- lated to his law enforcement duties.” contrast, paragraph the second of section 5—227 provides: provided
“None benefits for in this Article shall paid any person any felony who is convicted while receipt disability benefits.” 40 ILCS 5/5—227 1998).
Thus, in the of a recipient disability benefits, case to, of, conviction need not relate or arise out recipient’s service to the state. The conviction of felony ground is sufficient for disqualification.
If a police employment provide officer’s status can the requisite nexus between the crime and the officer’s state, service to the there a situation will never be where officer can commit a unrelated to his law Perforce, requirement enforcement duties. the nexus rendered superfluous. legislature simply could have language used similar to that found in the second paragraph making section the commission of 5— “any felony” ground for disqualification. appellate
As the stated Cullen: *12 “Surely, legislature if the had wanted the paragraph first of section way 5—227 to read in the the Board wishes tous it, interpret it language could have used the same or simi language lar to that which it in the used second paragraph. Moreover, if the Assembly General did not employ wish to a different standard for denying disability benefits from pension benefits, why that of did it simply write one paragraph denying all any felony benefits for instead of writing separate two paragraphs that draw Cullen, distinctions?” 271 Ill. 3d at 1109. This court liberty is not at to construe the statute in way such a as to render any part of it superfluous. Syl Comm’n, vester v. Industrial Ill. 2d difficulty The the majority’s “but for” standard magnified is when it applied to other participants pension plan. state’s As the majority notes: requirement
“The
that the conviction relate to or arise
out of or in connection
a person’s
police
service
aas
man
unique
is not
provisions
law enforcement. Identical
govern members of the
Assembly [citation],
General
participants
in the
Municipal
Illinois
Retirement Fund
[citation], those in the Municipal Employees’, Officers’,
***
[citation],
and Officials’
and Benefit Fund
[citation],
employees
judges [citation],
state
and others
[citation].”
If, for a member of example, Assembly the General is ap- crime, proached say about a a scheme to defraud a carrier, insurance homeowner’s could it ever be said there was no connection between the scheme to defraud the in- surance carrier and the status of the member of the Gen- Assembly? eral I believe the conclusion would follow that but for the individual’s status as a member of the Gen- “ Assembly eral ‘he would not in a or position have been ” selected to in the to defraud.’ participate scheme Employment status always provide would the nexus be- tween the crime and the person’s service to the state.
CONCLUSION The for” majority adopts “but standard equates employment an individual’s status to his service requires only state, to the a nexus between employment individual’s conviction and the status. requirement However,the nexus of section 5—227 entails employ- more than a connection between the individual’s ment status and the so, conviction. Were it not legislature simply provided could have that benefits paid felony. would not be individual convicted of a majority’s interpretation of section 5—227 renders superfluous provision the additional that the relate to or arise out of inor connection with the individual’s *13 service to the state. It also does not reflect the intent of legislature. province legislature
It is the
laws;
to enact
it is
province
of this court to construe the laws as enacted.
legislative powers; may
This court has no
it
not enact or
enlarge
amend statutes. This court cannot restrict or
meaning
unambiguous
responsibility
of an
statute. The
justice
legislation
upon
for the
or wisdom of
rests
legislature.
People
Henrich,
394;
186 Ill. 2d at
ex rel.
(1950).
Roan v. Wilson,
122,
JUSTICE KILBRIDE in this dissent.