{ "id": 2871427, "name": "ELIZABETH TONER, Plaintiff-Appellee, v. THE RETIREMENT BOARD OF THE POLICEMEN'S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO, Defendant-Appellant", "name_abbreviation": "Toner v. Retirement Board of Policemen's Annuity & Benefit Fund", "decision_date": "1994-02-24", "docket_number": "No. 1-92-2507", "first_page": "67", "last_page": "73", "citations": [ { "type": "official", "cite": "259 Ill. App. 3d 67" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "596 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 795", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5210420 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0795-01" ] }, { "cite": "538 N.E.2d 859", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 385", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2620684 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0385-01" ] }, { "cite": "447 N.E.2d 394", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ill. 2d 211", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111336 ], "weight": 3, "pin_cites": [ { "page": "216" }, { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0211-01" ] }, { "cite": "485 N.E.2d 1076", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. 2d 143", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3127156 ], "weight": 2, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0143-01" ] }, { "cite": "504 N.E.2d 84", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "115 Ill. 2d 337", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3179946 ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0337-01" ] }, { "cite": "143 Ill. App. 3d 465", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5667898 ], "pin_cites": [ { "page": "473" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/143/0465-01" ] }, { "cite": "165 Ill. App. 3d 235", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3614371 ], "pin_cites": [ { "page": "247" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/165/0235-01" ] }, { "cite": "191 Ill. App. 3d 769", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2510539 ], "weight": 2, "pin_cites": [ { "page": "774" }, { "page": "774" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/191/0769-01" ] } ], "analysis": { "cardinality": 606, "char_count": 14924, "ocr_confidence": 0.795, "pagerank": { "raw": 8.284883708853718e-08, "percentile": 0.47921095013647513 }, "sha256": "08d35008e8e4ce5a8b3f7b36bc08358b0de66e24201d29e092d55f4a0b30795d", "simhash": "1:dd3740dd687c2c4d", "word_count": 2511 }, "last_updated": "2023-07-14T17:15:39.062040+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ELIZABETH TONER, Plaintiff-Appellee, v. THE RETIREMENT BOARD OF THE POLICEMEN\u2019S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOFFMAN\ndelivered the opinion of the court:\nThe plaintiff, Elizabeth Toner (plaintiff), brought this action in the circuit court of Cook County under the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 \u2014 101 et seq.) seeking review of the decision of the defendant, the Retirement Board of the Policemen\u2019s Annuity and Benefit Fund of the City of Chicago (Board), which fixed the pension benefits to which she became entitled upon the death of her husband, John C. Toner (Toner), a retired Chicago police officer. The circuit court reversed the decision of the Board and found that the plaintiff was entitled to an additional $27,955.87 in pension benefits for the period from August 17, 1987, through January 1, 1991. The Board has appealed, and for the following reasons, we affirm the decision of the circuit court.\nBACKGROUND\nThe facts giving rise to this action are not in dispute. Toner was born on December 9, 1922. He was appointed to the Chicago police department in 1947 and became a participant in the policemen\u2019s annuity and benefit fund. (See Ill. Rev. Stat. 1987, ch. 1081/2, par. 5 \u2014 101 et seq.) On December 9, 1985, while still employed as an active policeman by the City of Chicago, Toner attained age 63. Pursuant to the provisions of the Illinois Pension Code (the Pension Code or Code) then in effect, Toner\u2019s \"age and service annuity\u201d benefits as a participant in the fund were fixed as of the date that he attained age 63 even though he continued to be employed as an active policeman. (111. Rev. Stat. 1985, ch. 1081/2, par. 5 \u2014 128.) On April 30, 1986, Toner retired from the police department and began to receive annuity benefits from the fund; on August 17, 1987, Toner died leaving the plaintiff as his surviving spouse.\nThe plaintiff filed a claim with the Board for the widow\u2019s annuity under the Pension Code. (See Ill. Rev. Stat. 1987, ch. 1081/2, par. 5 \u2014 134 et seq.) After considering the plaintiff\u2019s claim, the Board applied the maximum widow\u2019s annuity under sections 5 \u2014 136 and 5 \u2014 148 of the Code (Ill. Rev. Stat. 1987, ch. 1081/2, pars. 5 \u2014 136, 5 \u2014 148) and awarded the plaintiff $500 per month.\nThe plaintiff sought administrative review of that decision in the circuit court contending that the Board incorrectly fixed the monthly annuity. The plaintiff contended that her annuity should have been calculated pursuant to section 5 \u2014 136.1(c) of the Pension Code (111. Rev. Stat. 1987, ch. 1081/2, par. 5 \u2014 136.1(c)).\nThe circuit court agreed and found that the plaintiff\u2019s widow\u2019s annuity should have been calculated under section 5 \u2014 136.1(c). The court reversed the Board\u2019s decision and determined that the Board owed the plaintiff $27,955.87 for the deficiency in the payments made to her from August 17, 1987, the date of Toner\u2019s death, through January 1, 1991, the effective date of a subsequent amendment to section 5 \u2014 136.1 which required the Board to recalculate the plaintiff\u2019s annuity (see Ill. Rev. Stat. 1991, ch. 1081/2, par. 5 \u2014 136.1(e)). The Board now appeals.\nOPINION\nWe are called upon here to construe the meaning and applicability of section 5 \u2014 136.1 of the Pension Code (Ill. Rev. Stat. 1985, ch. 1081/2, par. 5 \u2014 136.1), as it relates to the plaintiff\u2019s particular circumstances. The relevant portion of the statute became effective January 1, 1986, and reads as follows:\n\"(a) Notwithstanding the other provisions of this Article, the widow of a policeman who retires on or after January 1,1986, and subsequently dies while receiving a retirement annuity *** may in lieu of any other widow\u2019s annuity have the amount of widow\u2019s annuity calculated in accordance with this Section.\n(c) If the deceased policeman was receiving a retirement annuity at the time of his death, the widow\u2019s annuity shall he equal to 40% of the policeman\u2019s annuity at the time of the policeman\u2019s death. This annuity shall not be limited to the maximum dollar amount in effect for widows\u2019 annuities at the time of the policeman\u2019s death or retirement.\u201d (Emphasis added.) Ill. Rev. Stat. 1985, ch. 1081/2, pars. 5 \u2014 136.1(a), (c).\nSection 5 \u2014 136.1(c) was amended again in 1987 to increase the widow\u2019s annuity from 40% of the policeman\u2019s annuity at the time of his death to 50% of that amount after December 31, 1987. (Ill. Rev. Stat. 1987, ch. 1081/2, par. 5 \u2014 136.1.) However, because the Board does not contest the circuit court\u2019s numerical calculations, we focus our analysis on whether the 1985 amendment to the Code which added section 5 \u2014 136.1 in the first instance is applicable to the plaintiff.\nIn urging reversal of the circuit court, the Board argues that because Toner\u2019s pension benefits were fixed when he attained age 63 on December 9, 1985, the plaintiff\u2019s widow\u2019s annuity was also fixed at a maximum of $500 per month as of that date. As such, section 5 \u2014 136.1 of the Pension Code, which became effective on January 1, 1986, does not apply to the calculation of the plaintiff\u2019s widow\u2019s annuity for the period from August 17, 1987, through January 1, 1991. The Board argues that it was not until the effective date of a subsequent amendment to section 5 \u2014 136.1 (Ill. Rev. Stat. 1991, ch. 1081/2, par. 5 \u2014 136.1(e)), on January 1, 1991, that the plaintiff became entitled to an annuity in excess of the maximum of $500 per month as provided in section 5 \u2014 136 of the Code in effect on December 9, 1985, the date her widow\u2019s annuity was fixed. In support of its argument, the Board contends that the amendment to the Code which introduced section 5 \u2014 136.1 was not made specifically retroactive to benefits that were fixed prior to its effective date of January 1, 1986, and by reason of section 1 \u2014 103.1 of the Code (Ill. Rev. Stat. 1987, ch. 1081/2, par. 1 \u2014 103.1), section 5 \u2014 136.1 applied prospectively to annuitants whose benefits became fixed after its initial effective date. We disagree for several reasons.\nWhile it is true that Toner\u2019s age and service annuity was fixed as of his 63rd birthday pursuant to section 5 \u2014 128 of the Code, it is not true that the plaintiff\u2019s widow\u2019s annuity was also fixed on that date. For purposes of article 5 of the Pension Code, Toner was a \"future entrant\u201d; that is, a person employed by the City of Chicago as a policeman after January 1, 1922. (See Ill. Rev. Stat. 1985, ch. 1081/2, pars. 5 \u2014 111, 5 \u2014 107.) Section 5 \u2014 136 specifically provides that a widow\u2019s annuity for the wife of a future entrant shall be fixed as of the date of the policeman\u2019s death or withdrawal from service, whichever occurs first. (Ill. Rev. Stat. 1985, ch. 1081/2, par. 5 \u2014 136.) \"Withdrawal from service\u201d is defined under the Code as the discharge or resignation of a policeman. (Ill. Rev. Stat. 1985, ch. 1081/2, par. 5 \u2014 116.) Toner resigned from the police department on April 30, 1986, and under section 5 \u2014 136, it was on that date that the plaintiffs widow\u2019s annuity was fixed. The Board has failed to cite any provision in article 5 of the Pension Code, nor can we find any, that fixes a widow\u2019s annuity as of the date that the police officer\u2019s age and service annuity is fixed. If, as the Board argues, section 5 \u2014 136.1 of the Code applies only to those persons whose widow\u2019s annuity is fixed after its effective date, January 1, 1986, then the plaintiff satisfies the condition; but we need not approach the construction of section 5 \u2014 136.1 through this type of analysis.\nThe cardinal rule of statutory construction is to ascertain the intent of the legislature. (Stewart v. Industrial Comm\u2019n (1987), 115 Ill. 2d 337, 504 N.E.2d 84.) Courts should look first to the language of the statute itself as the best indication of the intent of the drafters. (County of DuPage v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076.) The words of the statute are to be given their ordinary and popularly understood meaning. (Kozak v. Retirement Board (1983), 95 Ill. 2d 211, 447 N.E.2d 394.) When the language chosen by the legislature is clear and unambiguous, the statute must be enforced as enacted and the court will not resort to outside sources to construe its meaning. County of Du Page, 109 Ill. 2d at 151.\nWith the exception of section 1 \u2014 103.1, each of the sections that the Board relies on to support its argument that section 5 \u2014 136.1 does not apply to the plaintiff appears in article 5 of the Pension Code; however, section 5 \u2014 136.1 begins with the phrase \"Notwithstanding the other provisions of this Article.\u201d (Ill. Rev. Stat. 1985, ch. 1081/2, par. 5 \u2014 136.1(a).) \"Notwithstanding\u201d is defined as \"in spite of.\u201d (Webster\u2019s Third New International Dictionary 1545 (1986).) By its clear language, section 5 \u2014 136.1 is an exception to all other provisions of article 5 and controls over any other section of that article containing conflicting provisions. (See American Family Insurance Co. v. Village Pontiac-GMC, Inc. (1989), 182 Ill. App. 3d 385, 538 N.E.2d 859.) Therefore, the Board\u2019s reliance on those sections in article 5 is misplaced.\nThe Board\u2019s reliance on section 1 \u2014 103.1 of the Pension Code is also unavailing. That section provides: \"Amendments to this Code *** shall be applicable only to persons who, on or after the effective date thereof, are in service as an employee under the retirement system or pension fund covered by the Article which is amended, unless the amendatory Act specifies otherwise.\u201d (Ill. Rev. Stat. 1987, ch. 1081/2, par. 1 \u2014 103.1.) The plaintiff in this case was never an employee under the pension fund covered under article 5; her deceased husband was. While section 1 \u2014 103.1 governs the application of amendments to article 5 as they relate to the police officers themselves, nothing in the language of that section refers to its applicability to amendments affecting the rights of nonemployee beneficiaries such as the plaintiff.\nWe are not confronted by an ambiguity in the statute at issue and need not look to subsequent amendments in an effort to determine its meaning, as the Board urges. The language of section 5 \u2014 136.1 is clear and unambiguous on its face and the plaintiff satisfies each of the stated requirements for its application. She is the widow of a police officer who retired after January 1, 1986, and died while he was receiving a retirement annuity; as a result, she was entitled to have her annuity calculated in accordance with section 5 \u2014 136.1(c) of the Pension Code. There is no exception stated in the statute for the widow of a police officer whose benefits were fixed prior to January 1, 1986. The legislature could have provided for the exception urged by the Board, but it did not do so. We cannot now alter the plain language of this statute under the guise of judicial construction and incorporate such an exception into it. We cannot restrict or enlarge upon the plain meaning of an unambiguous statute. Kozak, 95 Ill. 2d at 216.\nThe Board also argues that its interpretation of the statute in issue is entitled to deference. However, the construction of a statute is question of law and, while the factual findings of an administrative agency are considered prima facie correct, its conclusions of law are not accorded the same deference. Mitchell v. Department of Revenue (1992), 230 Ill. App. 3d 795, 596 N.E.2d 31.\nFurther, our supreme court has recognized that pension laws are beneficial in nature and should be liberally construed in favor of those intended to be benefited. (Kozak, 95 Ill. 2d at 217.) We believe that our construction of section 5 \u2014 136.1 in this case is in keeping with that admonition.\nFor these reasons, we affirm the decision of the circuit court.\nAffirmed.\nCAHILL, P.J., concurs.", "type": "majority", "author": "JUSTICE HOFFMAN" }, { "text": "JUSTICE JOHNSON,\ndissenting:\nI am unable to join with the majority in upholding the judgment of the trial court. I believe that both the majority and the trial court failed to give due consideration to the decision made by the Retirement Board of the Policemen\u2019s Annuity and Benefit Fund of the City of Chicago (the Board).\nUndoubtedly, administrative agencies possess authority to interpret statutory provisions when making their decisions and determinations. (Illinois Federation of Teachers v. Board of Trustees (1989), 191 Ill. App. 3d 769, 774.) While a reviewing court is not bound by the agency\u2019s interpretation, it must give great weight to the agency\u2019s construction of the statute. (Peoples Gas Light & Coke Co. v. Illinois Commerce Comm\u2019n (1987), 165 Ill. App. 3d 235, 247.) Deference should be given to the agency\u2019s interpretation unless such interpretation is clearly erroneous, arbitrary, or unreasonable. (Board of Trustees, 191 Ill. App. 3d at 774.) In the present case, I remain unpersuaded that the agency\u2019s interpretation of the statutory provisions involved here was clearly erroneous so as to warrant reversal.\nAs correctly noted by the majority, the preliminary question is whether section 5 \u2014 136.1 of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 1081/2, par. 5 \u2014 136.1) (the Code) applies to plaintiff. However, the majority incorrectly concludes it does, despite the fact that plaintiff\u2019s widow\u2019s annuity had already been \"fixed\u201d prior to the effective date of section 5 \u2014 136.1.\nThe record reveals that pursuant to section 5 \u2014 128 of the Code, Mr. Toner\u2019s annuity was fixed on December 5, 1985, when he reached 63 years of age. On that same date, plaintiff was granted an annuity, i.e., her widow\u2019s benefits were fixed, and no further contributions were made to the annuity fund on behalf of Mr. Toner. The Board made this determination based on the statutory provisions in effect at the time of Mr. Toner\u2019s 63rd birthday. See Ill. Rev. Stat. 1985, ch. 1081/2, pars. 5 \u2014 128, 5 \u2014 136, 5 \u2014 143, 5 \u2014 148, 5 \u2014 169, 5 \u2014 170 (all of which focus on the fixing of benefits as of the date the employee reaches age 63).\nSection 5 \u2014 136.1 did not become effective until January 1, 1986, after plaintiff's benefits had already been fixed. Hence, section 5 \u2014 136.1 did not apply to plaintiff because the legislature did not make it retroactive to benefits which had become fixed prior to its effective date. Statutes may not be given retroactive application unless the legislature expressly intended such a result. Kapsalis v. Board of Fire & Police Commissioners (1986), 143 Ill. App. 3d 465, 473.\nBased on the facts and law in effect at the time, the Board determined that plaintiff\u2019s annuity was fixed on December 5, 1985. I cannot say that the Board\u2019s determination was clearly arbitrary or erroneous. Therefore, I would reverse the judgment of the circuit court of Cook County.", "type": "dissent", "author": "JUSTICE JOHNSON," } ], "attorneys": [ "David R. Kugler, of Chicago, for appellant.", "Ahern & Maloney, of Skokie (Edward M. Maloney, of counsel), for appellee." ], "corrections": "", "head_matter": "ELIZABETH TONER, Plaintiff-Appellee, v. THE RETIREMENT BOARD OF THE POLICEMEN\u2019S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1 \u2014 92\u20142507\nOpinion filed February 24, 1994.\nJOHNSON, J., dissenting.\nDavid R. Kugler, of Chicago, for appellant.\nAhern & Maloney, of Skokie (Edward M. Maloney, of counsel), for appellee." }, "file_name": "0067-01", "first_page_order": 85, "last_page_order": 91 }