                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                       Marconi v. City of Joliet, 2013 IL App (3d) 110865




Appellate Court            MICHAEL MARCONI, JAMES LUKANCIC, JAMES VANCINA and
Caption                    DAVID CONNER, Plaintiffs-Appellees, v. THE CITY OF JOLIET, an
                           Illinois Municipal Corporation, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-11-0865


Filed                      May 2, 2013


Held                       The trial court erred in considering a case challenging a reduction of the
(Note: This syllabus       retirement health insurance benefits promised to plaintiffs upon their
constitutes no part of     retirement under the pension protection clause of the Illinois Constitution
the opinion of the court   without first attempting to resolve the matter on nonconstitutional
but has been prepared      grounds; therefore, the trial court’s decision for plaintiffs was reversed
by the Reporter of         and the cause was remanded for a determination as to whether plaintiffs
Decisions for the          had a vested right to the promised benefits, and the pension protection
convenience of the         clause should be addressed only if no vested rights are found.
reader.)


Decision Under             Appeal from the Circuit Court of Will County, No. 10-MR-165; the Hon.
Review                     Barbara Petrungaro, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                  Jeffrey Plyman (argued), Assistant Corporation Counsel, of Joliet, for
Appeal                      appellant.

                            Theodore J. Jarz (argued), of Lucas & Jarz, LLC, of Joliet, and Timothy
                            J. Witczak, of Law Offices of Beau B. Brindley, of Chicago, for
                            appellees.

                            James J. Powers and Melissa A. Schilling, both of Clark Baird Smith
                            LLP, of Rosemont, and Brian Day, Ashley Niebur, and Roger Huebner,
                            all of Illinois Municipal League, of Springfield, amici curiae.


Panel                       JUSTICE HOLDRIDGE delivered the judgment of the court, with
                            opinion.
                            Justices Lytton and O’Brien concurred in the judgment and opinion.




                                              OPINION

¶1           The plaintiffs, Michael Marconi, James Vancina, and David Conner, retired Joliet
        firefighters, and James Lukancic, a retired Joliet police officer, sued their former employer,
        the City of Joliet (the City), seeking declaratory and injunctive relief and monetary damages
        in response to the City’s decision to reduce some of the retirement health benefits it promised
        each of the plaintiffs at the time of his retirement. The plaintiffs and the City filed opposing
        motions for summary judgment. The circuit court ruled that the changes imposed by the City
        violated article XII, section 5, of the Constitution of the State of Illinois of 1970 (Ill. Const.
        1970, art. XIII, § 5) (the pension protection clause). Accordingly, the court granted the
        plaintiffs’ motion for summary judgment and denied the City’s motion for summary
        judgment. The court ordered the City to reinstate the health benefits promised to each
        plaintiff at the time of his retirement, enjoined the City from unilaterally implementing any
        future changes to the plaintiffs’ health benefits, and ordered the City to pay money damages.
        The City appealed.

¶2                                             FACTS
¶3           The plaintiffs are former employees of the City’s police or fire department. Each plaintiff
        retired on or before July 3, 2008.1 During their employment, the plaintiffs were members of

                1
                Marconi retired July 21, 2003; Vancina retired April 25, 2003; Conner retired March 1,
        2004, and Lukancic retired July 3, 2008.

                                                   -2-
     unions that had negotiated collective bargaining agreements with the City.2 These agreements
     established the terms and conditions of employment for active employees, including health
     insurance and other employment benefits that the City agreed to pay to active employees.
¶4        The agreements also provided for certain retirement benefits that the City agreed to pay
     to eligible retired employees, including health insurance benefits. For example, each
     agreement provided that an eligible retiree and his or her eligible dependents would receive
     “Hospitalization and Major Medical Benefits.” Each agreement provided that the City “shall
     bear the costs” of these benefits for the retirees, but that the retirees “shall bear the costs of
     these benefits, i.e. pay the monthly premium charges, for eligible dependents.” It is
     undisputed that, at the time of his retirement, each of the plaintiffs was eligible and entitled
     to receive these health care benefits from the City under the terms of his collective bargaining
     agreement.
¶5        Each agreement provided that payment of any and all retiree health benefits “shall be
     made solely in accordance with and subject to the terms, conditions, and provisions of the
     Plan Documents (Employees Benefit Plan No. 15083 and Group Policy No. 47942) which
     are on file in the Office of the City Clerk.” Each agreement also provided that “[e]ach
     covered employee shall receive a booklet describing the coverages provided under the Group
     Life and Hospitalization, Dental and Long Term Disability plans.”
¶6        None of the agreements required retirees to pay any deductible amounts for health care
     expenses paid to “in-plan” providers. However, retirees were required to make modest
     copayments for prescription drugs.3 Specifically, the employee benefits booklets provided
     to the plaintiffs indicate that: (1) Marconi, Vancina, and Conner were required to pay $3 per
     prescription drug (unless such drugs were ordered by mail, in which case there was no
     copayment); and (2) Lukancic was required to pay $5 per prescription for generic drugs, $10
     per prescription for brand name drugs for which there was no generic available, and $35 for
     brand name drugs for which there was a generic available.
¶7        Each of the agreements had a limited term as specified in an express durational provision.
¶8        In 2009, after each of the plaintiffs had retired and was receiving health care benefits


             2
              Marconi, Vancina, and Conner were members of the Joliet Fire Officers, Local 2369, IAFF
     AFL-CIO, which negotiated a collective bargaining agreement with the City that was in effect from
     1999 through 2003. Marconi and Vancina retired while that agreement was in effect. Conner retired
     under a subsequent collective bargaining agreement that was in effect from 2004 through 2011.
     Lukancic was a member of the Illinois Fraternal Order of Police (Joliet Police Supervisors
     Association), which negotiated a collective bargaining agreement with the City that was in effect
     from 2001 to 2004. Lukancic retired under that agreement.
             3
               The collective bargaining agreement under which plaintiff Conner retired expressly
     included a “Prescription Drug Benefit.” The agreements under which the other three plaintiffs retired
     did not include such an express provision. However, the plaintiffs’ employee benefits booklets
     indicated that each plaintiff was entitled to a prescription drug benefit subject to various copayment
     levels. The City does not deny that each of the claimants was receiving a prescription drug benefit
     after he retired.

                                                  -3-
       from the City, the City entered into negotiations with each of its employees’ unions to
       negotiate changes in its self-insured group health insurance plan. Because the claimants were
       retired at that time, they were no longer members of any of the unions negotiating with the
       City. The negotiations resulted in a new 2010 agreement covering all of the City’s
       employees. Although the new agreement was negotiated by the City and the employee
       unions–which represented only active employees–the City unilaterally applied the new
       agreement to all current City retirees and their dependents.4
¶9          The new 2010 agreement purported to make certain changes to the health care benefits
       of both active employees and retirees. For example, the new agreement imposed a $250-per-
       year individual deductible and a $500-per-year family deductible. In addition, the new
       agreement increased the generic prescription drug copay to $8 and the brand name
       prescription drug copay to $15 for active employees and retirees.
¶ 10        However, not all of the changes made to the health care benefits of active employees
       were applied to retirees. For example, although the new agreement imposed a new $50-per-
       paycheck premium deduction for active employees, it did not do so for retirees. Instead, it
       exempted retirees from paying health insurance premiums, thereby continuing the City’s
       current practice, for a period of seven years. Moreover, the new agreement froze the monthly
       premium payments for the dependents of retirees at their current levels for the next seven
       years. Specifically, the new agreement capped monthly premiums at $118.20 per month for
       the spouses of retirees, and $59.10 for other dependents of retirees.
¶ 11        Three of the four collective bargaining agreements at issue in this case (Marconi’s,
       Vancina’s, and Lukancic’s) expired before the City began negotiating the new 2010
       agreement. The durational clause in Conner’s agreement provided that the agreement
       remained in effect until December 31, 2011 “and shall be automatically renewed from year
       to year thereafter unless either party shall notify the other party in writing sixty (60) days
       prior to December 31, 2011 that it desires to modify th[e] Agreement.” In addition, article
       XXI of Conner’s agreement, addressing the “Group Insurance Program”(which includes the
       sections addressing retirement health care benefits), contained a “Reopener” provision which
       stated: “[f]rom time to time during the term of this Agreement, upon ten (10) days written
       notice to the Union the City may reopen this Agreement for negotiations with the Union with
       respect to any benefit provided pursuant to this Article for calendar year 2008, 2009, 2010
       and/or 2011.”
¶ 12        The plaintiffs sought an injunction to stop the City from imposing the new deductibles
       and increases in prescription drug copays on them. The plaintiffs argued that these proposed
       changes to their contractual retirement benefits violated the pension protection clause of the
       Illinois Constitution. That clause provides:
                “Membership in any pension or retirement system of the State, any unit of local
            government or school district, or any agency or instrumentality thereof, shall be an
            enforceable contractual relationship, the benefits of which shall not be diminished or


               4
                The City also applied the new agreement to all of its full-time active employees, including
       those not represented by a union.

                                                   -4-
           impaired.” Ill. Const. 1970, art. XIII, § 5.
       The plaintiffs argued that the new deductibles and copayments imposed by the City violated
       this provision because they “diminished or impaired” the health care benefits to which the
       plaintiffs were contractually entitled at the time of their retirement.
¶ 13       The parties filed cross-motions for summary judgment. The circuit court granted the
       plaintiffs’ motion for summary judgment and denied the City’s motion. As a matter of first
       impression, the circuit court held that the health care benefits at issue in this case are
       “benefits of [a] pension and retirement system,” and therefore protected under the pension
       protection clause. In a subsequent order, the court held that the City’s actions in imposing
       new deductibles and increasing prescription drug copayments “diminish[ed] or impair[ed]”
       these benefits in violation of the pension protection clause. The City appealed.
¶ 14       The parties’ initial briefs on appeal addressed only the constitutional issue decided by the
       circuit court. After oral argument, we directed the parties to file supplemental briefs
       addressing the following additional questions: (1) whether the City had a contractual
       obligation to continue to provide the retirement health insurance benefits that it promised
       each plaintiff at the time of his retirement; and (2) if so, whether the City breached that
       obligation. The parties timely filed supplemental issues addressing these questions.

¶ 15                                         ANALYSIS
¶ 16        As noted above, the circuit court decided this case on constitutional grounds, and the
       parties’ initial appellate briefs addressed only the constitutional question of whether the
       City’s changes to the plaintiffs’ retirement health benefits violated the pension protection
       clause of the Illinois Constitution. However, we must avoid the adjudication of constitutional
       questions when a case can be decided on other grounds. See, e.g., Innovative Modular
       Solutions v. Hazel Crest School District 152.5, 2012 IL 112052, ¶ 38; People v. Vesey, 2011
       IL App (3d) 090570; see also People v. Jackson, 2013 IL 113986, ¶ 14 (“courts will address
       constitutional issues only as a last resort, relying whenever possible on nonconstitutional
       grounds to decide cases”). Moreover, under Supreme Court Rule 366(a)(5), we have the
       discretionary authority to “enter any judgment and make any order that ought to have been
       given or made, and make any other and further orders and grant any relief.” Ill. S. Ct. R.
       366(a)(5) (eff. Feb. 1, 1994). This includes the authority to order supplemental briefing and
       to decide the case on an issue that was not initially raised by the parties or addressed by the
       circuit court. See, e.g., Mid-Century Insurance Co. v. Founders Insurance Co., 404 Ill. App.
       3d 961, 966 (2010) (“[U]nder Rule 366 [citation], a reviewing court may, in the exercise of
       its responsibility for a just result, ignore consideration of waiver and decide a case on
       grounds not properly raised or not raised at all by the parties.” (Internal quotation marks
       omitted.)).
¶ 17        Accordingly, before considering the constitutional issue raised by the parties, we must
       first determine whether the case can be decided on nonconstitutional grounds. We will
       therefore begin our analysis by examining the question that the parties addressed in their
       supplemental briefs, i.e., whether the City had a contractual obligation to continue to provide
       the retirement health insurance benefits it promised each plaintiff at the time of his retirement

                                                 -5-
       and, if so, whether the City breached that obligation by unilaterally reducing those benefits.
       In other words, we will attempt to determine whether each plaintiff has a vested right to
       receive the specific health care benefits promised in the collective bargaining agreement
       under which he retired, thereby barring the City from unilaterally reducing such benefits after
       his retirement. If the plaintiffs have such vested rights, the City’s imposition of new
       deductibles and higher copayments for prescription drugs is unlawful as applied to them. See
       Kulins v. Malco, a Microdot Co., 121 Ill. App. 3d 520, 527 (1984) (a vested contractual right
       survives modification or termination of the agreement and may not be modified or eliminated
       by such modification or termination). If not, the plaintiffs’ contractual entitlement to the
       specific benefits provided in their collective bargaining agreements expired when those
       agreements terminated, and no principle of contract law would bar the City from reducing
       those benefits after the plaintiffs retired. Only in that event would we have to address
       whether the City’s reduction of these benefits violated the pension protection clause of the
       Illinois Constitution.
¶ 18        We admittedly are addressing herein an issue that was not raised before the circuit court,
       but we are doing so in order to determine whether this case may be decided on
       nonconstitutional grounds. Though a reviewing court “should not normally search the record
       for unargued and unbriefed reasons to reverse a trial court judgment” and should “refrain
       from addressing [unbriefed issues] when it would have the effect of transforming the court’s
       role from that of jurist to advocate,” we are not doing so here. (Emphasis and internal
       quotation marks omitted.) People v. Givens, 237 Ill. 2d 311, 323-24 (2010). Instead, we are
       correcting the circuit court’s decision to decide a constitutional issue without first
       determining whether the case could be decided on other grounds. See Givens, 237 Ill. 2d at
       325 (ruling that a reviewing court has the power to raise unbriefed issues “when a clear and
       obvious error exists in the trial court proceedings”); Innovative Modular Solutions, 2012 IL
       112052, ¶ 38 (“courts should avoid constitutional questions when a case can be decided on
       other grounds”). We are also restricting the parties from constructing a constitutional claim
       out of what appears to be a simple contractual dispute. Parties should not heedlessly (and
       needlessly) drive trial courts into constitutional canyons. Nor should reviewing courts decide
       cases on constitutional grounds merely because the parties have failed to raise obvious
       alternative arguments that could obviate any constitutional issue.
¶ 19        Before addressing the merits of the contract issues addressed in the parties’ supplemental
       briefs, we must determine which jurisdiction’s law governs our analysis. We must also
       decide whether to apply a legal presumption in favor of vesting, as some other jurisdictions
       have done. We address these issues in turn.

¶ 20                                      A. Choice of Law
¶ 21       In Haake v. Board of Education for Glenbard Township High School District 87, 399 Ill.
       App. 3d 121 (2010), the First District of our Appellate Court addressed the question whether
       a public school board could decrease the health insurance benefits provided to retirees under
       certain collective bargaining agreements after the expiration of those agreements. That court
       held that, as the resolution of this issue involved the interpretation of collective bargaining


                                                -6-
       agreements, the plaintiffs’ state-law claims for breach of contract were preempted by section
       301 of the federal Labor Management Relations Act (29 U.S.C. § 185 et seq. (2000))
       (LMRA). Haake, 399 Ill. App. 3d at 127 (“ ‘[I]f the resolution of a state-law claim depends
       upon the meaning of a collective-bargaining agreement, the application of state law *** is
       pre-empted and federal labor-law principles *** must be employed to resolve the dispute.’ ”
       (quoting Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988))).
       Accordingly, in deciding the substantive issues raised by the parties, the court relied
       primarily upon federal cases interpreting the LMRA. Haake, 399 Ill. App. 3d at 128.
       Although the court found that the defendant had forfeited any preemption argument, it
       nevertheless concluded that “the interests of justice and the development of a sound body of
       precedent require[d] the application of federal common law.” Id.
¶ 22       We disagree with the Haake court’s choice-of-law analysis. Although state-law claims
       for breach of a collective bargaining agreement by a private employer are generally
       preempted by federal labor law, the federal act does not apply where the employer is “any
       State or political subdivision thereof.” 29 U.S.C. § 152(2) (2000).5 Here, the plaintiffs’
       employer was the City of Joliet–a political subdivision of the State of Illinois. Thus, any
       claim involving the interpretation of the plaintiffs’ collective bargaining agreements arises
       under Illinois law, not federal law. See, e.g., Navlet v. Port of Seattle, 194 P.3d 221, 227
       (Wash. 2008) (en banc) (applying Washington law instead of federal law in determining
       whether retired public employees had a vested right to lifetime health care benefits under a
       collective bargaining agreement between their former union and the Port of Seattle). We
       believe the Haake court erred by concluding that the plaintiffs’ claims for breach of contract,
       which were brought by Illinois public employees against their public employer, were
       governed by federal common law. We thus apply Illinois law in interpreting the collective
       bargaining agreements at issue in this case and in determining whether the City breached
       those agreements.

¶ 23                                  B. Vesting Presumption
¶ 24       Before turning to the merits, we must determine whether the contractual issues in this
       case should be governed by a presumption in favor of (or against) the vesting of retirement
       benefits under a collective bargaining agreement. Some courts have applied a presumption
       against the vesting of such benefits. In Bidlack v. Wheelabrator Corp., 993 F.2d 603, 607
       (7th Cir. 1993), the court ruled that courts should presume that an employer’s obligation to

               5
               See Davenport v. Washington Education Ass’n, 551 U.S. 177, 181 (2007) (“The National
       Labor Relations Act leaves States free to regulate their labor relationships with their public
       employees.”); D’Acquisto v. Washington, 640 F. Supp. 594, 624 (N.D. Ill. 1986) (holding that claims
       brought by Chicago police officers against the City of Chicago and other city officials were not
       preempted by the LMRA even though they involved the interpretation of collective bargaining
       agreements because “municipal governments, as arms of the state, are not employers under the Labor
       Management Relations Act and so are not covered by it”); see also Navlet v. Port of Seattle, 194 P.3d
       221, 227 (Wash. 2008) (en banc); Harris v. City of Chicago, 665 F. Supp. 2d 935, 959 (N.D. Ill.
       2009).

                                                   -7-
       pay health benefits under a collective bargaining agreement ceases upon the expiration of the
       agreement. It noted, however, that this presumption may be rebutted by contractual language
       or by extrinsic evidence showing that the parties intended the benefits to survive the
       expiration of the agreement. Id. at 607-10. Similarly, in International Union, United
       Automobile, Aerospace & Agricultural Implement Workers of America, U.A.W. v. Skinner
       Engine Co., 188 F.3d 130, 138-39 (3d Cir. 1999), the court ruled that the retiree bears the
       burden of proving that the employer intended the benefits to vest and that “an employer’s
       commitment to vest such benefits is not to be inferred lightly and must be stated in clear and
       express language.”
¶ 25       However, in Roth v. City of Glendale, 2000 WI 100, 237 Wis. 2d 173, 614 N.W.2d 467,
       the Supreme Court of Wisconsin applied a presumption in favor of vesting retirement health
       care benefits. In Roth, the plaintiffs were retired employees of the City of Glendale,
       Wisconsin. The terms and conditions of the plaintiffs’ employment were embodied in a
       series of collective bargaining agreements, each of which expired after a term of one to three
       years. The collective bargaining agreements in force at the time of each plaintiff’s retirement
       provided that the City of Glendale would pay the entire cost of the retirees’ health insurance
       premiums. Roth, 2000 WI 100, ¶ 8, 237 Wis. 2d 173, 614 N.W.2d 467. However, after the
       plaintiffs retired, the City of Glendale began requiring its retirees to pay a portion of their
       insurance premiums. Id. The retirees sued the City of Glendale for breach of contract,
       claiming a vested right to fully paid health insurance benefits under the collective bargaining
       agreements in force at the time of their respective retirements. Id. The circuit court applied
       Senn v. United Dominion Industries, Inc., 951 F.2d 806, 814-16 (7th Cir. 1992), which
       employed a presumption that health care benefits established by collective bargaining
       agreements do not survive the expiration of such agreements. It denied the plaintiffs’ motion
       for summary judgment and granted summary judgment to the City of Glendale on that basis.
       Roth, 2000 WI 100, ¶ 10, 237 Wis. 2d 173, 614 N.W.2d 467.
¶ 26       The Supreme Court of Wisconsin reversed. In interpreting the plaintiffs’ collective
       bargaining agreements, the court applied a presumption that health benefits promised in a
       collective bargaining agreement vest unless: (1) the language of the agreement suggests
       otherwise; or (2) the agreement is ambiguous and extrinsic evidence demonstrates that the
       parties did not intend the benefits to vest. Id. ¶ 23. The court reasoned that this presumption
       “comports with a more far-reaching understanding of the context in which retiree benefits
       arise and serves to fulfill the legitimate expectations of employees who have bargained for
       those benefits.” (Internal quotation marks omitted.) Id. ¶ 26. In support of this conclusion,
       the court noted that employers offer employment benefits to attract and maintain personnel,
       and that “[t]he employer’s promise of such benefits is an inducement to provide services for
       that particular employer to the exclusion of other employment opportunities.” Id. ¶ 27. It also
       noted that bargained-for benefits are “deferred compensation for past services rendered,” not
       mere “gratuities handed to the employee.” Id. ¶ 28. Thus, the court concluded that treating
       such benefits as if they were mere gratuities which could be reduced or eliminated by the
       employer after an employee retires would frustrate the legitimate expectations of retirees. As
       the court put it:
           “If employees trade off present wages for benefits upon retirement, they expect assurance

                                                -8-
            that these benefits will continue into the future. [Citation.] They do not expect their
            earned benefits to be whittled away, subject to the contingencies of future negotiations.
            [Citation.]” Id.
       The court further reasoned that “[r]etirement benefits are essentially ‘status’ benefits that
       carry with them an inference that they continue as long as the prerequisite status is
       maintained and the beneficiary remains a retiree.” Id.
¶ 27        The court also addressed several equitable considerations that weighed in favor of a
       vesting presumption. First, the court noted the unfairness of allowing an employer to offer
       retirement benefits as an inducement to employment and, after an employee has accepted
       employment under such circumstances and satisfied all the contractual conditions entitling
       him to such benefits, disregard or modify its contractual obligations. The court stated that
       permitting employers to do this absent some indication that the parties intended to limit the
       benefits to a fixed term would “def[y] *** equitable principles” and “render[ ] the promise
       of retirement benefits illusory.” Id. ¶ 32. In addition, the court acknowledged that “many
       retirees live solely on their retirement benefits,” and that “[r]etirees with fixed incomes are
       generally ill-prepared to meet additional financial obligations that were unanticipated and
       that may be incrementally modified without notice.” Id. ¶ 33. Accordingly, the court
       concluded that “[a] presumption in favor of vesting that may be rebutted only by contrary
       indication in the language of the agreement or extrinsic evidence safeguards retirees from
       potential economic devastation.” Id. ¶ 34.
¶ 28         The court further reasoned that the realities of the collective bargaining process for
       retiree benefits strongly supported a vesting presumption. It noted that unions are “not
       obligated to represent [retirees’] interests for the purposes of bargaining for continued
       benefits.” Id. ¶ 35. Indeed, it observed that such bargaining “may create conflicts of interests
       between the retirees and the current union employees.” Id. Quoting the United States
       Supreme Court’s decision in Allied Chemical & Alkali Workers of America v. Pittsburgh
       Plate Glass Co., 404 U.S. 157, 173 (1971), the court found:
            “ ‘Pensioners’ interests extend only to retirement benefits, to the exclusion of wage rates,
            hours, working conditions, and all other terms of active employment. Incorporation of
            such a limited-purpose constituency in the bargaining unit would create the potential for
            severe internal conflicts that would impair the unit’s ability to function and would disrupt
            the processes of collective bargaining. Moreover, the risk cannot be overlooked that
            union representatives on occasion might see fit to bargain for improved wages or other
            conditions favoring active employees at the expense of retirees’ benefits.’ ” (Internal
            quotation marks omitted.) Roth, 2000 WI 100, ¶ 35, 237 Wis. 2d 173, 614 N.W.2d 467.
       Accordingly, the court concluded that a presumption in favor of vesting retirement benefits
       absent contrary indication “serves to protect the voiceless in the subsequent negotiating
       process.” Id. ¶ 36. Without such a presumption, “unions that are negotiating on behalf of
       current employees may unilaterally bargain away contractual promises made to retirees,
       thereby frustrating the expectations of employees who have earned retirement benefits by
       providing past services.” Id.
¶ 29        We find the Roth court’s reasoning persuasive. Unless the contractual language or


                                                 -9-
       extrinsic evidence clearly shows otherwise, retirement health care benefits promised under
       a collective bargaining agreement are not mere gratuities that may be unilaterally reduced or
       eliminated by the employer after an employee has earned them. The promise of health
       insurance benefits at retirement may induce an employee to accept a job and to work for the
       requisite number of years in order to become eligible for such benefits. See, e.g., Poole v.
       City of Waterbury, 831 A.2d 211, 223 (Conn. 2003). This provides a substantial benefit to
       the employer. Accordingly, once an employee becomes eligible for health insurance benefits
       and retires under the agreement, the right to receive the benefits vests, and the employer must
       provide the benefits as promised in the agreement. See generally Kulins, 121 Ill. App. 3d at
       525-27; Lawrence v. Board of Education of School District 189, 152 Ill. App. 3d 187, 197-
       201 (1987).
¶ 30        Moreover, fundamental fairness requires a presumption in favor of vesting. When the
       promise of retirement health benefits induces an employee to work for an employer until he
       becomes eligible for such benefits, this inducement may prevent him from finding alternative
       ways to prepare for retirement, either by finding other employment with higher wages or
       benefits or by negotiating with the employer for higher wages in lieu of retirement benefits
       so that he can start his own personal retirement account. See, e.g., Navlet, 194 P.3d at 237.
       Such an employee may be put in an untenable position when his employer unilaterally
       withdraws or diminishes his benefits after the employee has retired. See generally Poole, 831
       A.2d at 224. He may be forced to incur a “substantial financial burden for which [he] had not
       planned at a time when it is least affordable.” Id.; see also Law Enforcement Labor Services,
       Inc. v. County of Mower, 483 N.W.2d 696, 701 (Minn. 1992).
¶ 31        Further, a vesting presumption protects retirees from the vagaries of a collective
       bargaining process that no longer represents their interests. As the Roth court correctly noted,
       when negotiating a new collective bargaining agreement, unions represent only the interests
       of active employees, not employees who have already retired. Roth, 2000 WI 100, ¶ 35, 237
       Wis. 2d 173, 614 N.W.2d 467; see also Allied Chemical, 404 U.S. at 173; Carnock v. City
       of Decatur, 253 Ill. App. 3d 892, 899 (1993) (“a union has no obligation to represent retirees,
       who are outside the collective-bargaining unit”). Accordingly, unions have every incentive
       to bargain for conditions that would benefit active employees at the expense of retirees. See
       Allied Chemical, 404 U.S. at 173. For example, a union might agree with an employer to
       raise the wages of active employees in exchange for a reduction in retiree health care
       benefits. As noted, retirees have no voice in the collective bargaining process after they have
       retired and are therefore powerless to prevent their former union and their former employer
       from reaching such an agreement. The only protections that retirees have are the contractual
       rights conferred by the collective bargaining agreements under which they retired. Moreover,
       retirees are more vulnerable to reductions in their expected benefits than are active
       employees because they are less able to recoup the loss by earning additional wages or
       benefits. Thus, unless the language of the collective bargaining agreement or some other
       evidence suggests that the parties did not intend for retirement health benefits to survive the
       expiration of the agreement, courts should presume that such benefits have vested.
¶ 32        The City contends, however, that sections 367f and 367g of the Illinois Insurance Code
       (215 ILCS 5/367f, 367g (West 2010)) “suggest[ ] that a rule of decision in support of vesting

                                                -10-
       is inappropriate.” Those sections provide insurance continuance privileges for retired
       firefighters and police officers. Section 367f provides, in relevant part:
                “No policy of group accident and health insurance under which firemen employed
           by a municipality are insured for their individual benefit shall be issued or delivered in
           this State to any municipality unless such group policy provides for the election of
           continued group insurance coverage for the retirement or disability period of each
           fireman who is insured under the provisions of the group policy on the day immediately
           preceding the day on which the retirement or disability period of such fireman begins. So
           long as any required premiums for continued group insurance coverage are paid in
           accordance with the provisions of the group policy, an election made pursuant to this
           Section shall provide continued group insurance coverage for a fireman throughout the
           retirement or disability period of the fireman ***. Continued group insurance coverage
           shall be provided in accordance with this Section at the same premium rate from time to
           time charged for equivalent coverage provided under the group policy with respect to
           covered firemen whose retirement or disability period has not begun, and no distinction
           or discrimination in the amount or rate of premiums or in any waiver of premium or other
           benefit provision shall be made between continued group insurance coverage elected
           pursuant to this Section and equivalent coverage provided to firemen under the group
           policy other than pursuant to the provisions of this Section; provided that no municipality
           shall be required by reason of any provision of this Section to pay any group insurance
           premium other than one that may be negotiated in a collective bargaining agreement.”
           215 ILCS 5/367f (West 2010).6
       Section 367g grants the identical privileges to retired policemen.
¶ 33       The City notes that sections 367f and 367g require that continued health insurance
       coverage be provided to retired firemen and policemen “at the same premium rate” for
       “equivalent coverage” provided to active employees, and that “no distinction in premiums,
       waiver of premiums, or other benefit provisions be made.” According to the City, these
       provisions mandate that retirees be treated in the same manner as active employees, which
       is precisely what the City has done in this case with respect to the increased deductibles and
       copayments. The City argues that, if we find that the plaintiffs’ retirement benefits have
       vested, then the plaintiffs will be entitled to receive benefits which are greater than those
       currently received by active employees. The City suggests that this result would be
       “inappropriate” under sections 367f and 367g.


               6
                 Section 367f also provides that “In the event that a municipality makes a program of
       accident, health, hospital or medical benefits available to its firemen through self-insurance, ***
       whether the cost of such benefits is borne by the municipality or the firemen or both, such firemen
       and their surviving spouses shall have the same right to elect continued coverage under such program
       of benefits as they would have if such benefits were provided by a policy of group accident and
       health insurance. In such cases, *** the statement of election shall be sent to the municipality; and
       references to the required premium shall refer to that portion of the cost of such benefits which is
       not borne by the municipality, either voluntarily or pursuant to the provisions of a collective
       bargaining agreement.” 215 ILCS 5/367f (West 2010).

                                                  -11-
¶ 34       We disagree. In our view, the application of a vesting presumption would not be in
       tension with the purpose of section 367f or section 367g. “In construing the meaning of a
       statute, the primary objective of this court is to ascertain and give effect to the intention of
       the legislature.” Metzger v. DaRosa, 209 Ill. 2d 30, 34 (2004). “The plain language of the
       statute is the best indicator of the legislature’s intent.” Id. at 34-35. “When the statute’s
       language is clear, it will be given effect without resort to other aids of statutory
       construction.” Id. at 35. “If the language of a statute is ambiguous, [a reviewing court may
       consider] extrinsic aids of statutory construction, including legislative history and well-
       established rules of construction.” Poris v. Lake Holiday Property Owners Ass’n, 2013 IL
       113907, ¶ 47.
¶ 35       The legislature’s intent in enacting sections 367f and 367g is clear from the plain
       language of those provisions. Those statutes require municipalities to give their retired
       firefighters and policemen the option of “elect[ing]” the same insurance coverage the
       municipalities offer to their active employees. They do not require retired firemen or
       policemen to elect such equivalent coverage. Moreover, nothing in either statute suggests that
       employees who are already contractually entitled to receive greater insurance benefits than
       current active employees must surrender their contractual rights. Nor does either statute
       purport to override vested rights provided in a collective bargaining agreement. In other
       words, sections 367f and 367g establish a floor for retiree health insurance coverage, not a
       ceiling. The statutes merely seek to ensure that retired firefighters and policemen have access
       to coverage that is at least equal to that provided to active employees. The statutes
       accomplish this goal by creating a statutory right to such equivalent coverage.7 However, if
       a retiree already has vested rights to greater health insurance benefits through some other
       source (such as a collective bargaining agreement), nothing in either statute purports to
       abrogate or diminish such rights.
¶ 36       The City also urges us not to apply the vesting presumption applied in Roth because Roth
       announced a policy preference of the Wisconsin Supreme Court that is “in open opposition
       to Seventh Circuit jurisprudence.” The City contends that “developing State labor law that
       openly rejects federal labor law within the same jurisdiction is not appropriate.” However,
       contrary to the City’s assertion, we are not required to apply Seventh Circuit decisions or any
       other federal common law to resolve the state-law contract issues presented in this case. As
       noted above, the LMRA does not preempt state-law claims for the breach of collective
       bargaining agreements by a municipal employer. 29 U.S.C. § 152(2) (2000). Moreover, most


               7
                 There is support for this proposition in the legislative history of section 367f. During the
       third reading of the bill in the Illinois House of Representatives, Representative Stuffle, one of the
       bill’s sponsors, stated: “[the bill] provides for the continued inclusion of municipal firemen where
       there are already in place group insurance health plans in the municipalities. Currently, those people
       are covered at the option of the cities. This Bill provides that they will be covered if those insurance
       policies are now in force.” 83d Ill. Gen. Assem., House Proceedings, Apr. 7, 1983, at 67 (statements
       of Representative Stuffle). Thus, although we find sections 367f and 367g to be unambiguous
       (rendering consideration of the statutes’ legislative history unnecessary), this history supports our
       interpretation of the statute.

                                                    -12-
       of the federal cases which apply an inference against the vesting of retirement health care
       benefits address claims in which the Employment Retirement Income Security Act of 1974
       (ERISA) (29 U.S.C. § 1001 et seq. (2000)) is at issue. See, e.g., Skinner Engine, 188 F.3d
       at 139; see also Poole, 831 A.2d at 221. ERISA requires the vesting of pension rights, but
       does not require the vesting of health or other “welfare benefits” for retirees. Sullivan v.
       CUNA Mutual Insurance Society, 649 F.3d 553, 555 (7th Cir. 2011); In re Visteon Corp.,
       612 F.3d 210, 232 (3d Cir. 2010). Several federal courts have concluded that this fact
       supports a presumption against the vesting of retirement healthcare benefits. See, e.g.,
       Skinner Engine, 188 F.3d at 139 (“Because vesting of welfare plan benefits constitutes an
       extra-ERISA commitment, an employer’s commitment to vest such benefits is not to be
       inferred lightly and must be stated in clear and express language.”); Poole, 831 A.2d at 222
       (“The courts imposing a presumption against vesting base that approach largely on their
       construction of ERISA-drawing an adverse inference from Congress’ decision to require
       vesting for pension rights, but not to include a comparable requirement for welfare benefits.”
       (Emphases omitted.)).8 These cases are inapposite because ERISA does not apply to
       government-sponsored and government-funded benefit plans for municipal employees like
       the health benefit plan at issue in this case. See 29 U.S.C. §§ 1002(32), 1003(b) (2000); see
       also Poole, 831 A.2d at 221. Thus, any inference against vesting implied by ERISA has no
       application in this case.9
¶ 37       In addition, not all federal courts follow the Seventh Circuit’s presumption against the

               8
                See also Sengpiel v. B.F. Goodrich Co., 970 F. Supp. 1322, 1337 (N.D. Ohio 1997)
       (“Courts may not casually infer the existence of vesting; doing so would undercut Congress’
       considered decision that, while pension benefits are strictly regulated and guaranteed, welfare
       benefits have no such protection.”), aff’d, 156 F.3d 660 (6th Cir. 1998), cert. denied, 526 U.S. 1016
       (1999); Adams v. Avondale Industries, Inc., 905 F.2d 943, 947 (6th Cir. 1990) (cautioning that in
       determining scope and extent of employers’ obligations under welfare benefit plans, courts should
       avoid undermining Congress’ “considered decision that welfare benefit plans not be subject to a
       vesting requirement”); see also In re Unisys Corp. Retiree Medical Benefit “ERISA” Litigation, 58
       F.3d 896, 902 (3d Cir. 1995); Gable v. Sweetheart Cup Co., 35 F.3d 851, 855 (4th Cir. 1994);
       Navlet, 194 P.3d at 227, 233 n.13.
               9
                 The City argues that a similar inference against vesting is implied by the pension protection
       clause of the Illinois Constitution (Ill. Const. 1970, art. XIII, § 5). Specifically, the City notes that
       the pension protection clause “provides that public employee pension rights vest at the time of entry
       into the pension plan,” but “there is no obligation that Illinois municipalities provide health
       insurance to its employees.” We disagree. Even assuming arguendo that the pension protection
       clause does not protect health care benefits (a question that we do not decide here), that fact would
       not support any inference against vesting in this case. The protections afforded by a constitutional
       provision do not determine contractual rights under a collective bargaining agreement. Put another
       way, the fact that the vesting of health care benefits is not constitutionally required does not mean
       that the parties cannot agree to vest those rights by contract. The City does not and cannot argue that
       the pension protection clause somehow precludes parties from making such contractual agreements.
       Nor has it identified any cases suggesting that the pension protection clause creates a presumption
       against the vesting of such benefits through collective bargaining agreements.

                                                    -13-
       vesting of retirement health care benefits. For example, the Sixth Circuit has ruled that, when
       the parties contract for benefits which accrue upon achievement of retiree status, “there is an
       inference that the parties likely intended those benefits to continue as long as the beneficiary
       remains a retiree.” International Union, United Automobile, Aerospace, & Agricultural
       Implement Workers of America v. Yard-Man, Inc., 716 F.2d 1476, 1482 (6th Cir. 1983); see
       also International Union, United Automobile, Aerospace & Agricultural Implement Workers
       of America v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999). Although this so-
       called “Yard-Man inference” does not rise to the level of a legal presumption and does not
       shift the burden of proof to the employer (Yolton v. El Paso Tennessee Pipeline Co., 435
       F.3d 571, 579 (6th Cir. 2006)), it provides an additional inference in favor of vesting where
       the contract language or other evidence supports that conclusion (id.). This represents a less
       jaundiced approach to the vesting of retirement health care benefits than the approach taken
       by the Seventh Circuit. See Bidlack, 993 F.2d at 613 (Cudahy, J., concurring in the judgment,
       joined by Ripple and Rovner, JJ.) (noting difference between the Bidlack majority’s approach
       and the approach taken in Yard-Man). When there is a split of authority between the Seventh
       Circuit and another federal circuit on an issue of federal law that has not been resolved by
       the United States Supreme Court, we are not required to follow the Seventh Circuit decision.
       Ramette v. AT&T Corp., 351 Ill. App. 3d 73, 83 (2004). Rather, we may apply whichever
       decision we find to be “more reasonable and logical.” Id. Thus, even if we were to apply
       federal common law in deciding the contract issues presented in this case, we would not
       necessarily employ the Seventh Circuit’s antivesting presumption.
¶ 38       Accordingly, we rule that the plaintiffs’ collective bargaining agreements should be
       interpreted in light of a presumption in favor of the vesting of retirement health care benefits,
       as in Roth. We will therefore presume that such benefits vest unless: (1) the language of the
       collective bargaining agreements unambiguously suggests otherwise; or (2) if the contract
       language is ambiguous, extrinsic evidence suggests that the parties did not intend the benefits
       to vest.

¶ 39               C. Whether the Plaintiffs’ Retirement Health Benefits Vested
¶ 40        We now turn to the merits of the question addressed in the parties’ supplemental briefs,
       i.e., whether each plaintiff has a vested right to receive the specific health care benefits
       promised in the collective bargaining agreement under which he retired. When interpreting
       collective bargaining agreements, as with other contracts, our objective is to ascertain and
       give effect to the intent of the contracting parties. City of Rockford v. Unit Six of the
       Policemen’s Benevolent & Protective Ass’n, 351 Ill. App. 3d 252, 257 (2004). The best
       indication of the parties’ intent is the plain language of the contract. Id. If the plain language
       of the agreement is ambiguous, extrinsic evidence may be introduced to aid in its
       interpretation. Lewis v. Board of Education of North Clay Community Unit School District
       No. 25, 181 Ill. App. 3d 689, 701 (1989). As noted above, unless the language of the
       collective bargaining agreements or extrinsic evidence shows that the parties did not intend
       the health benefits at issue to vest, we will presume that the parties intended these benefits
       to survive the expiration of the collective bargaining agreements.


                                                 -14-
¶ 41        The record is not sufficiently developed for us to decide this issue. As noted above, each
       of the plaintiffs’ collective bargaining agreements provided that “[p]ayment of any and all
       retiree health benefits shall be made solely in accordance with and subject to the terms,
       conditions, and provisions of the Plan Documents (Employees Benefit Plan No. 15083 and
       Group Policy No. 47942) which are on file in the Office of the City Clerk.” The Plan
       Documents referenced in these provisions are not in the record. A review of the Plan
       Documents might help us to decide dispositive issues, such as whether the parties intended
       the retirees to have vested rights to certain specific benefit levels, and whether the contractual
       term “Hospitalization and Major Medical Benefits” was meant to include deductibles or
       copayments for prescription drugs. Moreover, we cannot determine whether the City violated
       any terms, conditions, or provisions of the Plan Documents without reviewing those
       documents.
¶ 42        Further, because this case was argued before the circuit court solely on the constitutional
       issue, the parties have not had an opportunity to present all of the extrinsic evidence that
       might be relevant to the vesting issue. For example, the parties might want to present
       additional evidence of their course of conduct after each claimant retired, such as evidence
       that the City continued to pay the particular benefit levels it had promised the retirees or,
       alternatively, that plaintiffs paid higher deductibles or prescription drug copayments than
       they were paying at the time of their retirement. Although there is some such evidence in the
       record, neither party has had a chance to present all of the relevant extrinsic evidence
       supporting its case.
¶ 43        Accordingly, it would be premature for us to decide the contract issue. Given the
       undeveloped state of the record, we are not in a position to apply a vesting presumption
       because we do not yet know whether the contract is ambiguous on the issue of vesting or, if
       so, whether the extrinsic evidence (taken as a whole) suggests that the parties did not intend
       the benefits at issue to vest. We must therefore remand the matter to the circuit court so that
       the parties may present additional evidence and the court may determine whether the
       plaintiffs have a vested right to the retirement health benefits at issue. See Roth, 2000 WI
       100, ¶¶ 39-40, 237 Wis. 2d 173, 614 N.W.2d 467 (remanding the cause to the circuit court
       where the record was “sparse,” “undeveloped,” and “incomplete,” thereby precluding the
       Wisconsin Supreme Court from applying a vesting presumption and deciding the matter).10




               10
                  In remanding this case for a determination on the contract issue, we are not acting as an
       “advocate” for either party. See Givens, 237 Ill. 2d at 323. We are ordering the parties to present
       evidence and argument on the contract issues to the circuit court and directing the circuit court to
       rule on those issues. It should be noted the parties were given an opportunity to brief the contract
       issues, and we are remanding only after reviewing their briefs on those issues. In deciding the case,
       the circuit court will have the benefit of the parties’ evidence and argument as to the contract issues.
       In sum, we are ordering the parties to present evidence and argument before the circuit court so that
       it may consider all alternative nonconstitutional bases.

                                                    -15-
¶ 44                                      CONCLUSION
¶ 45       Before deciding this case under the pension protection clause of the Illinois Constitution,
       the circuit court should have first determined whether it could be decided on
       nonconstitutional grounds. The contractual issue discussed above must be considered before
       any constitutional issues may be decided. Thus, pursuant to the constitutional avoidance
       doctrine and Supreme Court Rule 366(a)(5), we reverse and remand so that the circuit court
       may take additional evidence and determine whether each plaintiff has a vested right to
       receive the specific health care benefits promised in the collective bargaining agreement
       under which he retired. After considering all of the evidence relevant to this question, the
       court shall apply a presumption in favor of vesting as described in the foregoing opinion
       unless: (1) the language of the collective bargaining agreements unambiguously shows that
       the parties did not intend the benefits to vest; or (2) if the contract language is ambiguous,
       extrinsic evidence suggests that the parties did not intend the benefits to vest. Only if the
       circuit court finds no vested contractual rights should it address whether the benefits at issue
       are protected under the pension protection clause.

¶ 46      Reversed and remanded.




                                                -16-
