THE PEOPLE ex rel. LISA MADIGAN, Attorney General of Illinois, Appellee, v. JON BURGE et al., Appellants.
115635, 115645 cons.
Supreme Court of Illinois
July 3, 2014
September 23, 2014
2014 IL 115635
Illinois Official Reports
Supreme Court
People ex rel. Madigan v. Burge, 2014 IL 115635
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
A pension board which awarded benefits to a retired policeman in 1997 had exclusive original jurisdiction, under a 1972 statute, to terminate them for commission of an employment-related felony; but, where it did not do so, the Attorney General‘s circuit court action to do so by enjoining a violation of the Pension Code under a less specific 1982 statute was properly dismissed for lack of subject-matter jurisdiction.
Decision Under Review
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Rita M. Novak, Judge, presiding.
Judgment
Appellate court judgment reversed.
Circuit court judgment affirmed.
Counsel on Appeal
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.
Justices
JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Thomas, Karmeier, and Theis concurred in the judgment and opinion. Chief Justice Garman dissented, with opinion, joined by Justice Kilbride. Justice Freeman dissented, with opinion.
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 (
¶ 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
¶ 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 (
¶ 7 In January 2011, the Board held a hearing to determine whether, under section 5-227 of the Illinois Pension Code (
¶ 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
¶ 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.”
¶ 10 Burge, and the Board and trustees, subsequently filed motions to dismiss the complaint under section 2-619 of the Code of Civil Procedure (
¶ 11 In a written order, the circuit court noted that section 5-189 of the Pension
¶ 12 In addition, the circuit court observed that, under 5-228 of the Pension Code (
¶ 13 The Attorney General appealed the dismissal and the appellate court reversed. 2012 IL App (1st) 112842. 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 Attorney General‘s complaint. Id. ¶ 25.
¶ 14 After reaching this conclusion, the appellate court then observed that when the circuit court and an administrative agency have concurrent jurisdiction, the circuit court may, under the doctrine of primary jurisdiction, stay judicial proceedings and permit the administrative agency to first address the issue and bring its expertise to bear on the matter in dispute. Id. ¶ 26 (citing Village of Itasca v. Village of Lisle, 352 Ill. App. 3d 847, 853 (2004)). Because the Board in this case had already addressed the termination of Burge‘s pension benefits at the time the Attorney General‘s complaint was filed, the appellate court treated the Board‘s adjudication of the matter, in effect, as an exercise of primary jurisdiction.
¶ 15 Continuing, the appellate court then pointed to section 5-182 of the Pension Code (
¶ 16 Burge, and the Board and its trustees, filed petitions for leave to appeal in this court. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). The petitions were granted and the cases consolidated for review.
¶ 17 ANALYSIS
¶ 18 At issue before us is whether the circuit court properly dismissed the Attorney General‘s complaint pursuant to section 2-619 of the Code of Civil Procedure (
¶ 19 Subject-matter jurisdiction refers to a tribunal‘s “power to hear and determine cases of the general class to which the proceeding in question belongs.” (Internal quotation marks omitted.) Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 27. The Illinois Constitution of 1970 gives original jurisdiction to the circuit courts over all justiciable matters except where this court has exclusive and original jurisdiction relating to the redistricting of the General Assembly and the ability of the Governor to serve or resume office. Id. However, this court has held that the General Assembly may confer exclusive original jurisdiction on an administrative body when it enacts a “comprehensive statutory administrative scheme” that “explicitly” vests original jurisdiction in the administrative agency. Id. Whether the legislature has done so is a question of statutory interpretation. Id.
¶ 20 Defendants contend there is an explicit statement from the General Assembly vesting exclusive, original jurisdiction with the Board when a claim is made that a police officer‘s pension benefits should be terminated because of a felony conviction. That statement, according to defendants, is found in section 5-189 of the Pension Code, which states that the Board shall have the power:
To authorize payments. To authorize the payment of any annuity, pension, or benefit granted under this Article or under any other Act relating to police pensions, heretofore in effect in the city which has been superseded by this Article; to increase, reduce, or suspend any such annuity, pension, or benefit whenever any part thereof was secured or granted or the amount thereof fixed, as the result of misrepresentation, fraud, or error; provided, the annuitant, pensioner or beneficiary concerned shall be notified
and given an opportunity to be heard concerning such proposed action. The 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.
40 ILCS 5/5-189 (West 2012).
¶ 21 Defendants acknowledge, as they must, that not all legal challenges to “matters relating to or affecting the fund” fall within the exclusive jurisdiction of the Board. For example, as this court has explained, an administrative agency, such as the board of trustees of a retirement system, is a creature of statute and, as such, has only the authority that is conferred upon it by law. Alvarado v. Industrial Comm‘n, 216 Ill. 2d 547, 553 (2005); Rossler v. Morton Grove Police Pension Board, 178 Ill. App. 3d 769, 773 (1989). Consequently, when a retirement board acts in a manner which is not merely erroneous but which exceeds the “inherent power” of the board granted to it under the Pension Code, the board is said to act without “jurisdiction.” Newkirk v. Bigard, 109 Ill. 2d 28, 36 (1985). Such actions of a board are “void” and may be attacked at any time, in any court, either directly or collaterally. Business & Professional People for the Public Interest v. Illinois Commerce Comm‘n, 136 Ill. 2d 192, 243-44 (1989); Genius v. County of Cook, 2011 IL 110239, ¶ 25; see also, e.g., Landfill, Inc. v. Pollution Control Board, 74 Ill. 2d 541, 550 (1978) (an administrative rule may be challenged on its face in the circuit court on the grounds of being unauthorized by the enabling legislation). Thus, under long-standing law, a circuit court has jurisdiction to consider a complaint that the Board is exceeding its “inherent authority” under the Pension Code and its actions are void, even though the matter raised in the complaint may “relate to” or “affect” the Fund. Defendants do not dispute that an action by the Board which is beyond its “inherent authority” constitutes a “violation” of the Pension Code and may be challenged under section 1-115.
¶ 22 Defendants further acknowledge, as again they must, that section 1-115, which is largely identical to parts of section 502(a) of the federal Employment Retirement Income Security Act of 1974 (ERISA), Pub. L. No. 93-406, 88 Stat. 829, 891, was enacted primarily to authorize actions in the circuit court which allege that pension fund fiduciaries, such as the trustees of a retirement board, have breached a fiduciary duty set forth in the Pension Code. A legal challenge alleging that the trustees of a retirement board have breached a fiduciary duty cannot be brought before the board itself since “no man who has a personal interest in the subject matter of [a] decision in a case may sit in judgment on that case.” In re Heirich, 10 Ill. 2d 357, 384 (1956); Girot v. Keith, 212 Ill. 2d 372, 380 (2004). Defendants therefore do not dispute that an allegation that the trustees of the Board have breached a fiduciary duty by, for example, making fraudulent investments, is properly brought in the circuit court under section 1-115 even though it may “relate to” or “affect” the Fund.
¶ 23 Given these qualifications, defendants assert that what falls exclusively within the original jurisdiction of the Board under section 1-189 are ordinary adjudications related to or affecting the Fund. Or, stated otherwise, actions which come within the exclusive, original jurisdiction of the Board are those which require
¶ 24 Defendants contend that deciding whether to terminate Burge‘s pension benefits requires the application of an existing Pension Code provision to the particular facts of his case and is, therefore, an ordinary adjudication related to the Fund. Defendants further emphasize that, under the plain language of section 5-189, the Board‘s jurisdiction to conduct such adjudications is “exclusive” rather than concurrent with the circuit court. Thus, according to defendants, original jurisdiction to determine whether Burge‘s pension benefits should be terminated is vested exclusively in the Board pursuant to section 5-189.
¶ 25 Like the circuit court, defendants also note that under section 5-228 of the Pension Code (
¶ 26 As she did in the circuit court, the Attorney General, in response, points to section 1-115 of the Pension Code, which provides:
A civil action may be brought by the Attorney General or by a participant, beneficiary or fiduciary in order to:
(a) Obtain appropriate relief under Section 1-114 of this Code;
(b) Enjoin any act or practice which violates any provision of this Code; or
(c) Obtain other appropriate equitable relief to redress any such violation or to enforce any such provision.
40 ILCS 5/1-115 (West 2012).
¶ 27 The Attorney General does not disagree with defendants that applying section 5-227 to the facts of Burge‘s case to determine whether his pension benefits should be terminated constitutes an ordinary adjudicative proceeding related to or affecting the Fund. Nor does the Attorney General disagree with defendants that the Board has jurisdiction over such adjudications. Where the Attorney General parts company with defendants is with their assertion that the Board‘s original jurisdiction under section 5-189 is exclusive. According to the Attorney General, section 1-115 grants the circuit court concurrent, original jurisdiction over ordinary adjudications related to or affecting the Fund.
¶ 28 In support, the Attorney General emphasizes the breadth of section 1-115, noting that it applies to “any” act or practice which violates “any” provision of the Pension Code. That criterion is met, the Attorney General maintains, by her claim that the payment of pension benefits to Burge violates section 5-227 of the Pension Code. The Attorney General also notes that section 1-115 was enacted by the General Assembly in 1982, 10 years after section 5-189 was amended in 1972 to provide for exclusive, original jurisdiction
¶ 29 Continuing with her argument, the Attorney General does not dispute that, because the Board had already addressed the termination of Burge‘s pension benefits at the time her complaint was filed, the Board effectively exercised primary jurisdiction over the matter. See generally People v. NL Industries, 152 Ill. 2d 82, 94-96 (1992) (discussing primary jurisdiction). However, unlike the appellate court below, which determined that no deference was due the Board‘s decision because it stemmed from a tie vote, the Attorney General asserts that no deference is due to the Board in this instance because she was not a party to the Board‘s proceeding addressing whether to terminate Burge‘s pension benefits. For this reason, according to the Attorney General, she “cannot be bound by the outcome of that proceeding under preclusion principles.” In sum, the Attorney General maintains that the circuit court has concurrent original jurisdiction over ordinary adjudications related to or affecting the Fund, and that her office, a participant, a beneficiary or a fiduciary may file an action at any time in the circuit court under section 1-115 to adjudicate whether a police officer‘s pension benefits should be terminated, reinstated or adjusted, so long as the filer of the action was not a party in a previous proceeding before the Board on the same matter. Therefore, the Attorney General contends, the circuit court improperly dismissed her complaint in this case. We disagree.
¶ 30 As the Attorney General notes, section 1-115 is a broadly worded provision, covering “any” act or practice which violates “any” provision of the Pension Code. Section 5-189, in contrast, does not possess the same breadth. Section 5-189 confers original jurisdiction on the Board only for ordinary adjudications related to or affecting the Fund. Other original actions, such as those alleging that the trustees of the Board have breached a fiduciary duty set forth in the Pension Code by, for example, making fraudulent investments, may be brought in the circuit court under section 1-115, but not before the Board under section 5-189. Moreover, the Board‘s original jurisdiction is limited to matters “relating to or affecting the fund.” Any violation of a Pension Code provision which is not related to the fund may be challenged in an original action in the circuit court under section 1-115, but not before the Board under section 5-189. In short then, section 5-189 is the more specific provision than section 1-115.
¶ 31 “[I]t is a commonplace of statutory construction” that when two conflicting statutes cover the same subject, “the specific governs the general.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384-85 (1992) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987)). “[T]he law is settled that [h]owever inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment.” (Internal quotation marks omitted.) Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228 (1957). “The general/specific canon is perhaps most frequently applied to statutes in which a general permission or prohibition is contradicted by a specific prohibition or permission. To eliminate the contradiction, the specific provision is construed as an exception to the general one.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012). Here, the broad language of section 1-115, which states that “any” violation of a Pension Code provision may be challenged in circuit court, is in conflict with section 5-189, which provides that ordinary adjudications related to or affecting the Fund are within the “exclusive,” original jurisdiction of the Board. Accordingly, to eliminate this contradiction, the specific provision, section 5-189, must be construed as an exception to the general provision, section 1-115.
¶ 32 Citing the canon which holds that when two statutes are in conflict the one which was enacted later should prevail (see, e.g., Village of Chatham, Illinois v. County of Sangamon, Illinois, 216 Ill. 2d 402, 431 (2005)), the Attorney General maintains that section 1-115, as the more recently enacted provision, should be given precedence over section 5-189. Justice Freeman, in dissent, adopts a similar position. Infra ¶ 88 (Freeman, J., dissenting). However, the canon that the specific governs the general holds true “‘regardless of the priority of enactment.’ ” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976) (quoting Morton v. Mancari, 417 U.S. 535, 550-51 (1974)); 82 C.J.S. Statutes § 482 (2010) (“The more specific of two statutes dealing with a common subject matter generally will prevail whether it has been passed before or after the more general statute.”). Indeed, because repeals by implication are disfavored, the canon that the specific governs the general applies with special force where, as here, the earlier provision is specific and the later, general provision makes no mention of the earlier provision. As this court has stated, “a later statute general in its terms and not expressly repealing the prior special statute will ordinarily not affect the special provisions of the earlier statute.” People ex rel. Atwell Printing & Binding Co. v. Board of Commissioners, 345 Ill. 172, 178 (1931); Morton, 417 U.S. at 549-51. Section 1-115 does not expressly repeal section 5-189 or, indeed, even mention the provision. We decline to hold that the exclusive, original jurisdiction of the Board to hear ordinary adjudications related to or affecting the Fund has been repealed by implication.
¶ 33 And it is apparent why the General Assembly would exclude ordinary adjudications related to the Fund from the broad reach of section 1-115 as the Attorney General proposes. Section 1-115 does not limit the right to bring a cause of action solely to the Attorney General. Rather, it permits any “participant, beneficiary or fiduciary” to file a civil action to enjoin a violation of the Pension Code. Under the Attorney General‘s reasoning, a participant in the Fund who loses a benefits decision before the Board could file an administrative appeal in the circuit court, while at the same time, another participant who disagreed with the Board‘s determination could file a separate, original action under section 1-115. According to the
¶ 34 The Attorney General asserts that any legal or fiscal uncertainty that might arise from permitting actions such as this one to go forward as an original action under section 1-115 is merely speculative. But that is a determination for the legislature. For our purposes here, it is enough that we can discern a rational policy reason why the legislature would confer exclusive, original jurisdiction on the Board over ordinary adjudications related to or affecting the Fund. Accordingly, there is no justification for us to depart from well-established rules of statutory interpretation.
¶ 35 The Attorney General‘s complaint faces an additional problem. Section 5-228 of the Pension Code provides in pertinent part that the Administrative Review Law “govern[s] all proceedings for the judicial review of final administrative decisions of the retirement board provided for under this Article.”
¶ 36 In this case, the Board rendered a final “administrative decision” when it ruled on the motion to terminate Burge‘s pension benefits. The Attorney General‘s complaint does not seek administrative review of the Board‘s decision but, instead, asserts only that jurisdiction in the circuit court is proper under section 1-115. Further, as the circuit court noted, consideration of the Attorney General‘s complaint would require the court to determine whether Burge‘s felony convictions related to, arose out of, or were in connection with his service as a police officer—the same issue addressed by the Board. Thus, to allow the Attorney General‘s complaint to proceed, we would have to conclude that section 1-115 not only repealed the exclusive, original jurisdiction of the Board under section 5-189, but also implicitly repealed the exclusive application of the Administrative Review Law under section 5-228. We decline to so hold. See, e.g., People ex rel. Dickey v. Southern Ry. Co., 17 Ill. 2d 550, 555 (1959) (for an act to repeal an earlier one by implication, there must be “such total and manifest repugnance that the two cannot stand together”).
¶ 38 Preventing significant violations of the Pension Code and ensuring the fiscal integrity of the Fund are important goals. To that end, certain challenges to actions taken by a retirement board have been authorized both within the context of administrative review and without. The circuit court, for example, may consider at any time a claim that a retirement board‘s decision was so seriously in error that the board exceeded its inherent authority and rendered a void decision. See, e.g., Alvarado, 216 Ill. 2d at 553-54; Rossler, 178 Ill. App. 3d at 773. Similarly, a claim may be brought in circuit court that a pension board rule asserting administrative authority is not authorized under the Pension Code. See, e.g., Landfill, Inc., 74 Ill. 2d at 550. Fiduciary breaches, including, for example, fraudulent or corrupt decisions by the trustees of a retirement board, may also be challenged in circuit court. See
¶ 39 None of the foregoing situations, however, are at issue in this case. The Attorney General‘s complaint does not seek review of an administrative decision which improperly diminished, or threatened to diminish, the Fund; the complaint does not allege a fiduciary breach by any member of the Board; and the complaint does not allege that the decision of the Board was beyond its inherent authority and therefore void. Indeed, the complaint contains no allegations that the fiscal integrity of the Fund has been harmed by the Board‘s decision, or that the pension benefits of other participants in the Fund have been placed at risk. Instead, the complaint alleges only that the Board‘s
¶ 40 Chief Justice Garman, in dissent, raises an argument not made by the Attorney General. Chief Justice Garman contends that the Attorney General‘s complaint should be read as alleging that the four officer-elected trustees of the Board violated their fiduciary duty to act “solely in the interest of the participants and beneficiaries” of the Fund (
¶ 41 Chief Justice Garman reasons, however, that if the circuit court should determine that Burge committed a felony related to, arising out of, or connected with his employment as a Chicago police officer, then Burge would not be a lawful participant in the Fund. And, paying benefits to someone who is not a member of the Fund is a breach of a trustee‘s fiduciary duty of loyalty to the Fund‘s participants. Infra ¶ 69 (Garman, C.J., dissenting) (to the extent a retirement board pays benefits to “a person declared to be a nonparticipant under the Pension Code” it fails to act solely in the interest of the Fund participants and beneficiaries). In other words, according to Chief Justice Garman, if the circuit court should determine that a Board trustee, although acting in good faith, made an error in legal reasoning in concluding that Burge should retain his pension benefits, that fact, in itself, will constitute a breach of the trustee‘s fiduciary duty of loyalty to the Fund participants. We cannot agree with this reasoning.
¶ 42 Further, under section 1-114 of the Pension Code, fiduciaries are personally liable to the pension fund for losses resulting from a breach of fiduciary duty.
¶ 43 Finally, we note that the appellate court‘s conclusion that the Board violated section 5-182 of the Pension Code when it permitted Burge‘s pension benefits to continue following a tie vote could be read as providing a separate basis, by itself, for filing a complaint alleging a violation of the Pension Code under section 1-115. However, this, too, would be incorrect. Section 5-182 of the Pension Code is violated when a pension, annuity or benefit is approved
¶ 44 CONCLUSION
¶ 45 This opinion should not be read, in any way, as diminishing the seriousness of Burge‘s actions while a supervisor at Area Two, or the seriousness of police misconduct in general. As noted, the question in this appeal is limited solely to who decides whether a police officer‘s pension benefits should be terminated when he commits a felony. On this issue, the legislative intent is clear. The decision lies within the exclusive, original jurisdiction of the Board under section 5-189. Accordingly, the judgment of the appellate court is reversed and the judgment of the circuit court dismissing the Attorney General‘s complaint is affirmed.
¶ 46 Appellate court judgment reversed.
¶ 47 Circuit court judgment affirmed.
¶ 48 CHIEF JUSTICE GARMAN, dissenting:
¶ 49 The majority resolves this case with the statutory canon that the specific controls the general, but it disregards some absurd results that follow. The majority makes untenable distinctions between fiduciary duties and renders certain types of breach unremediable under the Illinois Pension Code. Looking to legislative intent and examining the overall structure of the Pension Code also undermines the majority‘s conclusion that one section is more specific and should govern. I thus respectfully dissent.
¶ 50 The court faces two broadly worded statutory provisions in apparent conflict. The Attorney General (the State) contends payments to convicted felon Jon Burge violate section 5-227 of the Illinois Pension Code, and that the State can challenge those payments in the circuit court under section 1-115.
¶ 51 Read plainly, each provision threatens to invade and overwhelm the other. Section 1-115 makes no distinction between the Attorney General, participants, beneficiaries, and fiduciaries in granting them the ability to seek relief in the circuit court.
¶ 52 But the majority opinion does not avoid absurd results so much as it tries to temper one set of them.
¶ 53 Most troubling, the majority makes an arbitrary distinction between types of fiduciary breaches and renders the meaning of a fiduciary breach unclear. The natural outcome of the majority‘s reasoning that section 5-189 is more specific than section 1-115 is that jurisdiction under section 1-115 must give way whenever a matter relates to or affects the fund. Section 5-189, granting the Board “exclusive, original jurisdiction,” would govern irrespective of whether the act “relating to or affecting the fund” is considered a fiduciary breach by the Board itself. The majority‘s reasoning on specificity would give the Board jurisdiction to adjudicate its own fiduciary breaches, leaving section 1-115 with nothing to do. Apparently recognizing that this resolution is untenable, the majority states that “[f]iduciary breaches, including, for example, fraudulent or corrupt decisions by the trustees of a retirement board, may also be challenged in circuit court” under section 1-115. Supra ¶ 38. Neither the defendants’ concession nor the majority‘s finding on this point comports at all with the majority‘s reasoning that the specific controls the general. But to prevent the absurdity of the Board having jurisdiction over its own fiduciary breaches, the majority draws a neat line between “ordinary adjudications related to or affecting the Fund” and fiduciary breaches. Supra ¶ 30. Implicit in this reasoning is the notion that one act cannot simultaneously be an “ordinary adjudication” and a fiduciary breach remediable by section 1-115. Id.
¶ 54 Yet the majority also ignores that trustees under the Pension Code have fiduciary duties beyond loyalty, including to diversify investments unless it is prudent not to do so (
¶ 55 Next, this arbitrary distinction between “bad intent” fiduciary breaches and the others appears to allow the Board to make a consistently erroneous interpretation of Illinois law without facing any challenge, so long as that erroneous interpretation favors a putative participant or beneficiary. Nothing in the record indicates one participant is permitted to intervene in another‘s hearing. Likewise, “administrative review is limited to parties of record before the administrative agencies and then only when their rights, duties or privileges are adversely affected by the decision.” Board of Education of Roxana Community School District No. 1 v. Pollution Control Board, 2013 IL 115473, ¶ 20 (citing Williams v. Department of Labor, 76 Ill. 2d 72, 78 (1979)). No party has both opportunity and incentive to challenge an erroneous grant of benefits. As a result, the Board has the first and final word when it decides to grant benefits. This resolution allows the Board to ignore decisions of this court. I express no opinion as to the propriety of the Board‘s deadlock decision on the question of defendant Jon Burge‘s benefits, and I stress that the Board‘s underlying decision is not before us. But under the majority‘s view, the Board could, in a hearing to terminate benefits under section 5-227, simply decline to follow Devoney v. Retirement Board of the Policemen‘s Annuity & Benefit Fund, 199 Ill. 2d 414 (2002) (holding a police officer‘s felony mail fraud conviction related to his work as an officer, when he struck up friendship with co-felon while working as a police officer). No party would have both incentive and ability to challenge the Board‘s error. So long as the Board awards benefits, its errors will now go unchallenged.
¶ 56 Finally, the majority reaches its conclusion on specificity despite ample evidence that section 5-189 is not at all specific. It instead appears to employ a mere boilerplate phrase used by the legislature in drafting seven articles of the Pension Code, providing that the “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.”
¶ 57 Rather than allowing one section to prevent operation of the other, this court should try to harmonize the two provisions, if possible. Hartney Fuel Oil Co. v. Hamer, 2013 IL 115130, ¶ 25. Given the conflict in language between sections 1-115 and 5-189, this court should look to the legislative history of the later-enacted section 1-115 to determine what impact the legislature intended it would have on existing provisions. Public Act 82-960 (eff. Aug. 25, 1982) added section 1-115 to the Pension Code, and it amended Pension Code section 1-109 to change the Board and similar entities from having “trustees” to having “fiduciaries.” The legislative debates indicate an intent to broaden fiduciaries’ investment authority to the “prudent man” standard, in hopes of increasing fund investment yields and stimulating the economy. 82d Ill. Gen. Assem., Senate Proceedings, June 29, 1982, at 41-42 (statements of Senator Collins). The legislature explicitly adopted this standard from the federal Employee Retirement Income Security Act (ERISA) (Pub. L. No. 93-406, 88 Stat. 891 (1974)) and debated whether Illinois‘s implementation of it could provide sufficient and comparable protection to ERISA. 82d Ill. Gen. Assem., Senate Proceedings, June 29, 1982, at 39-40 (statements of Senator D‘Arco). Beyond the debates, there is striking overlap of language between the definitions of “fiduciary,” “party in interest,” and “investment manager” added to Pension Code section 1-101.12 and ERISA section 3.3 The
¶ 58 The legislature did more than simply borrow ERISA‘s fiduciary standards. It also borrowed ERISA‘s enforcement provision. Pension Code section 1-115 appears under the caption “Civil Enforcement” and provides:
“A civil action may be brought by the Attorney General or by a participant, beneficiary or fiduciary in order to:
(a) Obtain appropriate relief under Section 1-114 of this Code;
(b) Enjoin any act or practice which violates any provision of this Code; or
(c) Obtain other appropriate equitable relief to redress any such violation or to enforce any such provision.”
40 ILCS 5/1-115 (West 2012).
¶ 59 As the State has noted, Pension Code section 1-115 is nearly identical to certain portions of ERISA section 502, codified at
“(a) Persons empowered to bring a civil action
A civil action may be brought—
***
(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title;
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan;
***
(5) except as otherwise provided in subsection (b) of this section, by the Secretary (A) to enjoin any act or practice which violates any provision of this subchapter, or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this subchapter[.]”
29 U.S.C. § 1132 (2012).
¶ 60 With minor variances in wording and structure, the Illinois legislature apparently took its enforcement provision directly from ERISA. ERISA section 502 allows the Secretary of Labor or any participant, beneficiary, or fiduciary to bring an action for relief under ERISA section 1109, which requires a breaching fiduciary to make the plan whole. Pension Code section 1-115 allows the Attorney General or any participant, beneficiary, or fiduciary to bring an action for relief under Pension Code section 1-114, which requires a breaching fiduciary to make the plan whole. The wording of the ERISA section 1109 and Pension Code section 1-114 provisions is similarly nearly identical.5
¶ 61 ERISA section 502 additionally provides that the Secretary of Labor or any participant, beneficiary, or fiduciary can bring a civil action “to enjoin any act or practice which violates any provision of this subchapter,” or for “other appropriate equitable relief” “to redress such violation” or “to enforce any provision of this subchapter.”
¶ 62 The legislative debates likewise reveal that the legislature intended for the Attorney General to be responsible for oversight and enforcement of fiduciary duties:
“Under the prudent man rule comes under the definition of the fiduciary and the trustees making what . . . the investment in what is the best, safe, best producing under the fiduciary authority, and if they make a bad investment, then the Attorney General can recover damages for that individual‘s bad investment into the pension fund, so the pension fund doesn‘t suffer a loss.” (Emphasis added.) 82d Ill. Gen. Assem., Senate Proceedings, June 29, 1982, at 41 (statements of Senator Davidson).
The legislature thus explicitly contemplated the Attorney General would be involved in enforcing the fiduciary duties of pension boards. The legislature also contemplated that these challenges for breaches of fiduciary duty would take place not before a pension board itself, but in court. Prompted with a hypothetical on a fiduciary making a mortgage investment in real estate that turned out badly, and an inquiry as to whether that fiduciary would face personal liability, Senator Davidson said the fiduciary would be liable only if he breached the fiduciary rules. Senator Donnewald replied, “That, of course, is subject to a suit and for the . . . for the courts to decide. You don‘t really know that until it‘s decided.” 82d Ill. Gen. Assem., Senate Proceedings, June 29, 1982, at 44 (statements of Senator Donnewald). Senator Egan replied, in part, that Illinois law would be brought “into line [with] the prudent man standard as is set out in the ERISA congressional legislation, and it is subject to judicial determination in each and every state *** *** It‘s subject to judicial review.” 82d Ill. Gen. Assem., Senate Proceedings, June 29, 1982, at 44 (statements of Senator Egan).
¶ 63 In sum, the legislature deliberately and explicitly imported ERISA‘s fiduciary duties and copied its enforcement provision almost exactly. In doing so, it indicated that the Attorney General would provide oversight of fiduciary duties and would pursue remedies in the circuit court, where it was alleged a fiduciary failed to meet his or her duty. This presents a close parallel to enforcement by the Secretary of Labor in federal courts under ERISA.
¶ 64 Federal courts interpreting ERISA section 502 have confronted essentially the same question we confront today: how to provide for civil enforcement while also respecting legislative intent that benefits decisions pass through the administrative process first. A reasonable method to effectuate the legislature‘s intent in resolving the conflict between sections 5-189 and 1-115, then, is to look to how federal law addresses jurisdiction under ERISA section 502. ERISA generally requires plan participants to exhaust all administrative remedies before pursuing a remedy in federal
¶ 65 Federal courts have held that ERISA subsections 502(a)(2)-(a)(3) and (a)(5) can be used only for equitable remedies, as opposed to remedies at law. See, e.g., Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204, 209-19 (2002) (discussing at length the distinction between legal remedies and equitable remedies under ERISA). Such suits are not subject to the requirement that a participant exhaust administrative appeals before seeking redress in the courts. LaRue, 552 U.S. at 258-59 (Roberts, C.J., concurring in part and concurring in the judgment, joined by Kennedy, J.). This is particularly true where the remedy sought does not accrue to an individual‘s benefit, but instead to the plan as a whole. See Smith v. Sydnor, 184 F.3d 356 (4th Cir. 1999) (finding no requirement to exhaust administrative appeals where participant sued for recovery for fiduciary breach on behalf of the plan). This preserves Congress‘s goal that benefit plans be administrable, while effecting Congress‘s intent that there be enforcement in the courts for fiduciary violations of ERISA. See Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 146 (1985) (describing the “six carefully integrated civil enforcement provisions found in § 502(a)” as part of “ERISA‘s interlocking, interrelated, and interdependent remedial scheme, which is in turn part of a ‘comprehensive and reticulated statute‘” (quoting Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 361 (1980))).
¶ 66 Importantly, Illinois‘s civil enforcement provision is drawn from ERISA subsections 502(a)(2)-(a)(3) and (a)(5). Pension Code section 1-115 does not bear similarity to ERISA subsection 502(a)(1)(B), which a plan participant may use to recover benefits due. A claim under Pension Code section 1-115 would not face the administrative exhaustion requirement if brought under ERISA subsections 502(a)(2)-(a)(3) or (a)(5). This comports with the underlying purpose of the two statutes: to enforce fiduciary duties against fiduciaries. It is difficult to conceive that the legislature intended that, where the Attorney General brought an enforcement action against a fiduciary that would have an effect on the fund, the complaint would be subject to the exclusive original jurisdiction of the Board. See
¶ 67 Having reviewed the federal courts’ careful balance between participants seeking review of a benefits decision and the broad language of ERISA subsections 502(a)(2)-(a)(3) and (a)(5), I conclude Illinois courts would best give effect to the legislature‘s intent to selectively incorporate ERISA by striking the same balance. Looking to ERISA to harmonize these provisions also eliminates the concern that allowing civil enforcement under Pension Code section 1-115 would cause it to swallow the Board‘s jurisdiction under section 5-189. It would also avoid a repeal by implication, which the majority seeks to avoid. Supra ¶ 36. Instead, striking this balance would simply open a board‘s ordinary adjudications to collateral attack under the terms of section 1-115, where the action may constitute fiduciary breach. Accordingly, if a cause of action is cognizable under ERISA subsections 502(a)(2)-(a)(3) and (a)(5), it should be cognizable under Illinois‘s identical provision in Pension Code section 1-115. The question, then, is whether payments in violation of Pension Code section 5-227 would be cognizable as a failure of fiduciary duty under ERISA subsections 502(a)(2)-(a)(3) and (a)(5). I conclude they would.
¶ 68 Pension Code section 1-109 provides that a fiduciary shall discharge his duties “solely in the interest of the participants and beneficiaries,”7 that he shall carry out his duties “[w]ith the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character with like aims,”8 and that he shall do so “[i]n accordance with the provisions of the Article of the Pension Code governing the retirement system or pension fund.”9
¶ 69 To the extent a pension board pays benefits to a person declared to be a nonparticipant under the Pension Code, it fails to act “solely in the interest of participants and beneficiaries” under ERISA cases. Such transfers of plan assets without an obligation to pay or without receiving fair market value for them constitute a breach of fiduciary duty. See, e.g., Reich v. Compton, 57 F.3d 270, 290-91 (3d Cir. 1995) (plaintiffs stated a claim for breach of duty of loyalty where trustees sold a promissory note at well below its accounting value, to serve plan sponsor‘s interest rather than participants‘); Marshall v. Cuevas, 1 Empl. Benefits Cas. (BNA) 1580 (D.P.R. 1979) (trustees making gratuitous payments to widow of former trustee failed to administer solely in the interest of participants and beneficiaries). The fiduciary duty of prudence is not limited to the context of making investment decisions; it
¶ 70 The first form of relief sought by the State here is an injunction against further payments to Jon Burge. The State has alleged he is a felon, with that felony “relating to or arising out of or in connection with his service as a policeman.”
sum certain and its finding of personal liability against participant exceeded scope of equitable remedies under ERISA subsection 502(a)(3)). Pension Code section 1-115, like ERISA subsections 502(a)(2)-(a)(3) and (a)(5), authorizes equitable relief, not legal relief.
¶ 71 I would not hold, however, that the legislature intended to give the Attorney General or other listed parties carte blanche to relitigate every award of benefits made by the Pension Board. The legislature, in enacting the Pension Code, outlined that pension boards should be given substantial deference in making benefits decisions, and I find nothing in the legislative history of section 1-115 indicating that this deference was meant to end. The State‘s claim concerns a benefits decision made by the Board, and a trial court should review that decision in accordance with the deference prescribed by the Pension Code. Accord Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (holding, in ERISA section 502(a)(1) action, that plan trustees are to be given deference in their interpretations of the plan where the plan grants trustees the power to construe plan provisions). Rather than being guided by an ERISA plan, the Board is guided by the Pension Code. Under the Pension Code, the Board has been granted deference in the form of the Administrative Review Law applying to its administrative decisions, including benefits decisions.
¶ 72 The majority opinion purports to answer “who decides whether the pension benefits should be terminated.” The majority‘s decision is much broader than that—the majority decides that benefit decisions by the Board are immune to challenge by the Attorney General. The inevitable additional consequence is that the Board‘s decisions favoring a participant or beneficiary are immune to challenge by anyone at any time, no matter how erroneous they might be, so long as those decisions are not disloyal.
¶ 73 The majority addresses some of the points raised in this dissent. For example, the majority rejects the notion that the circuit court could view a pension board‘s payments to a nonparticipant as a breach of the duty of loyalty. Supra ¶ 41. Yet the majority declines entirely to address the discussion of how payments to Burge might constitute a breach of the duty of prudence, or the duty to obey the Pension Code.
¶ 74 The majority also calls up a specter of no one being willing to serve on pension boards, if trustees might become personally obligated to reimburse the pension fund for an honest error. Supra ¶ 42. But the legislature has already addressed that fear. Section 1-107 allows pension boards to indemnify for conduct constituting simple negligence.
¶ 75 The majority opinion makes much of the State‘s complaint not characterizing payments to Burge as a fiduciary breach. I disagree that the complaint does not state the basis of a complaint for fiduciary breach. The complaint states 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,” and asks for injunctive relief requiring the Board “to comply with Section 5-227.” Section 1-109 is not mentioned in the complaint, but it imposes upon the Board a fiduciary duty to administer “[i]n accordance with the provisions of the Article of the Pension Code governing the retirement system or pension fund.”
¶ 76 I do not take issue with the majority opinion‘s review of the appellate court‘s analysis of Pension Code section 5-182.
¶ 77 The Attorney General sought here to bring an enforcement action under Pension Code section 1-115, claiming that payments to Jon Burge violated section 5-227. Because such claims are cognizable under the federal model for Pension Code section 1-115, they should be cognizable under Pension Code section 1-115. This result carries out the legislative intent that participants, beneficiaries, fiduciaries, and the Attorney General have a role in ensuring pension boards live up to their fiduciary duties. I would reject the State‘s offered explanation of concurrent jurisdiction as allowing too broad a range of claims. Limiting Pension Code section 1-115 to those claims cognizable under ERISA subsections 502(a)(2)-(a)(3) and (a)(5) also avoids writing administrative review out of the statute or compromising the Board‘s “exclusive original jurisdiction” over decisions relating to the fund. It is only where a decision by the Board can be characterized as a failure of fiduciary duty remediable by ERISA subsections 502(a)(2)-(a)(3) or (a)(5) that the Board‘s exclusive original jurisdiction and requirement of administrative review would give way. In those situations, the listed persons could bring an action in the circuit court. Even then, the Board‘s benefits decisions should still receive deference as prescribed in section 5-228.
¶ 78 I agree with the majority‘s conclusion that the impact on fiscal certainty of the fund “is a determination for the legislature,” (supra ¶ 34)—but I believe the legislature has already spoken. The legislature intended that section 1-115 provide for enforcement, in circuit court, of fiduciary responsibilities. To do so, it borrowed ERISA‘s fiduciary roles and its fiduciary enforcement mechanism. Reading either Pension Code section 1-115 or section 5-189 too broadly creates irreconcilable conflicts in the Pension Code. The majority opinion makes no attempt to harmonize the two sections. In doing so, it misses legislative history that fairly conclusively
¶ 79 JUSTICE KILBRIDE joins in this dissent.
¶ 80 JUSTICE FREEMAN, dissenting:
¶ 81 The majority holds that Illinois circuit courts lack jurisdiction to enjoin a violation of section 5-227 of the Illinois Pension Code (Pension Code), where the alleged violation results from a decision relating to a claimant‘s entitlement to pension benefits. I disagree and would find that circuit courts have concurrent jurisdiction over such claims where the Retirement Board of the Policemen‘s Annuity and Benefit Fund of Chicago also has authority to address the same matter. Therefore, I respectfully dissent.
¶ 82 As observed by the majority, “[s]ubject matter jurisdiction refers to the court‘s power to hear and determine cases of the general class to which the proceeding in question belongs. [Citation.]” (Internal quotation marks omitted.) Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 27. Except in certain particular circumstances, circuit courts “have original jurisdiction of all justiciable matters.”
¶ 83 The primary goal of statutory construction is to ascertain and give effect to the intent of the legislature. Hooker v. Retirement Board of the Firemen‘s Annuity & Benefit Fund, 2013 IL 114811, ¶ 37; Jahn v. Troy Fire Protection District, 163 Ill. 2d 275, 282 (1994). The best evidence of this intent is the language of the statute, which must be given its plain and ordinary meaning. Hooker, 2013 IL 114811, ¶ 37. The court should not depart from the plain meaning of a statutory provision by reading into it exceptions, limitations, or conditions that the legislature did not include. Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012, ¶ 56; U.S. Bank National Ass‘n v. Clark, 216 Ill. 2d 334, 346 (2005). Also, the court may not rewrite statutory language so it conforms to the judiciary‘s view of orderliness and public policy. Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d 546, 557-58 (2009).
¶ 84 When two statutes relate to the same subject and cannot be construed harmoniously, courts are guided by general rules of statutory construction to resolve the conflict. Village of Chatham, Illinois v. County of Sangamon, Illinois, 216 Ill. 2d 402, 431 (2005); Williams v. Illinois State Scholarship Comm‘n, 139 Ill. 2d 24, 57 (1990). Specific statutory provisions will control over general provisions on the same subject. Village of Chatham, 216 Ill. 2d at 431; Williams, 139 Ill. 2d at 57. However, a more specific statute does not control where it appears that the legislature intended that a general provision would be controlling. Village of Chatham, 216 Ill. 2d at 432; see also Stone v. Department of Employment Security Board of Review, 151 Ill. 2d 257, 266 (1992); 2B Norman J. Singer, Sutherland on Statutory Construction § 51.05, at 174 (5th ed. 1992). Also, where two statutes conflict, the more recent takes precedence over the earlier because it constitutes the later expression of legislative intent. Village of Chatham, 216 Ill. 2d at 431; Jahn, 163 Ill. 2d at 282.
¶ 85 The resolution of this appeal depends upon the statutory construction of section 5-189 and section 1-115 of the Pension Code. Section 5-189, which was enacted in 1963, provides that the Board has the power to authorize the payment of any annuity, pension, or benefit granted under the Policemen‘s Annuity and Benefit Fund, as well as the power to increase, reduce, or suspend any such annuity, pension, or benefit where any portion thereof was granted as the result of misrepresentation, fraud, or error, provided the annuitant, pensioner or beneficiary is given notice and an opportunity to be heard regarding such action.
¶ 86 In 1982, the legislature enacted section 1-115, which created a mechanism for civil enforcement of the terms of the Pension Code. The language of section 1-115 provides as follows:
“A civil action may be brought by the Attorney General or by a participant, beneficiary or fiduciary in order to:
(a) Obtain appropriate relief under Section 1-114 of this Code;
(b) Enjoin any act or practice which violates any provision of this Code; or
(c) Obtain other appropriate equitable relief to redress any such violation or to enforce any such provision.”
40 ILCS 5/1-115 (West 2012).
¶ 87 Under section 5-189, the Board has exclusive original jurisdiction over all matters relating to or affecting the Fund. Yet, section 1-115 vests the circuit courts with jurisdiction to address claims seeking to enjoin any act or practice that violates any provision of the Pension Code, provided the claim is brought by the Attorney General or by a participant, beneficiary, or fiduciary of the Fund. Section 1-115 contains no words of limitation or condition that would preclude the filing of such an action where the alleged violation relates to or affects the Fund.
¶ 88 I would employ another established canon of statutory construction requiring that the more recent statute takes precedence over the earlier provision, as it represents the later expression of legislative intent. Village of Chatham, 216 Ill. 2d at 431; Jahn, 163 Ill. 2d at 282. I believe that application of this rule goes further in promoting the clear intent of the legislature, the underlying purpose of section 1-115, and the preservation of the public fisc.
¶ 89 The clear and unambiguous language of section 1-115(b) grants the circuit courts jurisdiction over claims seeking to enjoin “any act or practice” that “violates any provision” of the Pension Code.
¶ 90 This conclusion is supported by the legislative history. As noted above, section 5-189 was amended in 1972 to provide that the Board has “exclusive original jurisdiction” in all matters relating to or affecting the fund, including claims for annuities, pensions, benefits or refunds.
¶ 91 The obvious purpose of section 1-115 is to provide a mechanism by which an act or practice by the Board that results in a violation of the Pension Code may be remedied. Because Board proceedings are non-adversarial, a decision in favor of a claimant is not subject to challenge or administrative review. In light of the fact that there is no adverse party who can challenge a favorable decision, practices and decisions that violate the terms of the Pension Code, to the possible detriment to the public or other fund participants and beneficiaries, could persist with no method of review. Section 1-115 provides a means to correct such a decision or practice. The plain and natural meaning of section 1-115 permits the filing of an action by the Attorney General or a plan participant, beneficiary, or fiduciary to enjoin any act or practice that violates any provision of the Pension Code. Accordingly, circuit courts have concurrent jurisdiction over claims to stop a violation of the Pension Code even when the Board also has jurisdiction over the same matter. This interpretation of section 1-115(b) does not negate section 5-189 in its entirety because a person seeking to collect benefits from the Fund must pursue the Board‘s administrative claim process and then proceed with administrative review if those benefits are denied.
¶ 92 Moreover, the terms of section 1-115 are substantially similar to portions of section 502(a) of the Employment Retirement Income Security Act of 1974 (ERISA) (
¶ 93 In my view, the legislature enacted section 1-115 to provide an important remedy that serves to protect public funds by granting the circuit courts concurrent jurisdiction to hear civil actions to enjoin acts or practices that violate the terms of the Pension Code. The interpretation adopted by the majority departs from the plain language of section 1-115 by reading into it conditions that preclude the filing of such an action where that alleged violation results from an adjudicatory decision by the Board. I cannot agree that this result is what the legislature intended.
¶ 94 Notwithstanding the views expressed above, I agree with the majority‘s conclusion that the appellate court erred in concluding that the Board violated section 5-182 of the Pension Code when it determined that the tie vote required the continuation of defendant Burge‘s pension payments.
¶ 95 I disagree with the majority‘s holding that the circuit court lacked jurisdiction to address the Attorney General‘s complaint seeking to enjoin the payment of pension benefits in violation of section 5-227 of the Pension Code. I would affirm the judgment of the appellate court, which ordered that the cause be remanded to the circuit court for further proceedings on the Attorney General‘s complaint. Accordingly, I respectfully dissent.