                                       2014 IL 115635



                                  IN THE
                             SUPREME COURT
                                    OF
                           THE STATE OF ILLINOIS



                            (Docket Nos. 115635, 115645 cons.)

       THE PEOPLE ex rel. LISA MADIGAN, Attorney General of Illinois, Appellee,
                          v. JON BURGE, et al., Appellants.


                                  Opinion filed July 3, 2014.



        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 (735 ILCS 5/3-101 et seq. (West 2012)). The appellate
     court reversed, holding that the circuit court had concurrent, original jurisdiction with
     the Board to determine whether Burge’s benefits should be terminated. 2012 IL App
     (1st) 112842. For the reasons that follow, we reverse the judgment of the appellate
     court and affirm the judgment of the circuit court.



¶3                                     BACKGROUND

¶4       Jon Burge was a Chicago police officer from approximately 1970 to 1993. During a
     portion of that time, he served as supervisor of the violent crimes unit detectives in
     Area Two, a geographical division of the Chicago Police Department. In 1997, Burge
     applied to the Board for pension benefits from the Policemen’s Annuity and Benefit
     Fund of Chicago (the Fund). See 40 ILCS 5/5-101 (West 2012) (authorizing the
     creation of a policemen’s annuity and benefit fund). The Board awarded the benefits.

¶5       In 2003, a federal civil rights lawsuit was filed in which the plaintiff alleged that he
     was physically tortured and abused by police officers under Burge’s command at Area
     Two. Although the plaintiff did not accuse Burge personally of abusing him, the
     plaintiff did allege that Burge was aware of a pattern of torture and abuse being
     conducted by police officers in Area Two and that Burge had participated in such
     practices. In response to written interrogatories in the lawsuit, Burge denied under oath
     having any knowledge of, or participation in, the torture or abuse of persons in the
     custody of the Chicago Police Department.

¶6       In 2008, Burge was indicted by a federal grand jury on one felony count of perjury
     (18 U.S.C. § 1621(1) (2006)), and two felony counts of obstruction of justice (18
     U.S.C. § 1512(c)(2) (2006)), for making false statements in his responses to the
     interrogatories. In 2010, Burge was convicted by a jury on all three counts and was
     sentenced to four and one-half years’ imprisonment. His convictions were affirmed on
     appeal. United States v. Burge, 711 F.3d 803 (7th Cir. 2013). Burge’s conduct in the
     civil lawsuit is the only criminal activity for which he has been convicted. Burge has
     not been indicted or convicted for conduct which occurred while he was still serving on
     the Chicago Police Department.

¶7      In January 2011, the Board held a hearing to determine whether, under section
     5-227 of the Illinois Pension Code (40 ILCS 5/5-227 (West 2010)), Burge’s pension
     benefits should be terminated because of his federal felony convictions. Section 5-227

                                              -2-
     states, in relevant part, that “[n]one of the benefits provided for in this Article shall be
     paid to any person who is convicted of any felony relating to or arising out of or in
     connection with his service as a policeman.” At the hearing, Burge maintained that his
     felony convictions related solely to the giving of false testimony in a civil lawsuit filed
     several years after his retirement from the police force and, therefore, did not justify
     terminating his pension benefits.

¶8       At the conclusion of the hearing, a motion was made by a Board member to
     terminate Burge’s pension benefits. The Board is composed of eight trustees, four of
     whom are appointed by the mayor of Chicago, and four of whom are current or former
     police officers elected by police officer participants in the Fund. See 40 ILCS 5/5-178
     (West 2012). The Board divided 4 to 4 on the question of whether Burge’s felony
     convictions for perjury and obstruction of justice in the civil lawsuit related to, arose
     out of, or were connected with his employment as a Chicago police officer. The four
     city-appointed trustees voted in favor of the motion to terminate benefits, while the
     four officer-elected trustees voted against the motion. The Board concluded that
     because “the motion was not passed,” “Burge was allowed to continue to receive his
     monthly pension benefits.” The Board issued a written decision to that effect on
     January 31, 2011. No administrative review was sought from this decision.

¶9       On February 7, 2011, one week after the Board had issued its decision, theAttorney
     General, on behalf of the State of Illinois, filed the complaint at issue in this case,
     naming as defendants Burge, the Board, and the individual trustees of the Board in their
     official capacities. The complaint was brought pursuant to section 1-115 of the Pension
     Code. That provision authorizes the Attorney General to bring a civil action to
     “[e]njoin any act or practice which violates any provision of this Code” or “[o]btain
     other appropriate equitable relief to redress any such violation or to enforce any such
     provision.” 40 ILCS 5/1-115 (West 2012). In her complaint, the Attorney General
     alleged that “[b]y continuing to pay public pension benefits to Jon Burge following
     three felony convictions relating to, arising out of, and in connection with his service as
     a police officer, Defendant Board and Defendant Trustees are violating Section 227 of
     Article 5 of the Illinois Pension Code.” The complaint did not allege any other
     violations of the Pension Code or wrongful conduct by the Board or its trustees. The
     complaint sought a preliminary and permanent injunction ordering the Board to cease
     all payments to Burge and an order requiring Burge to repay any benefits received
     since his convictions.



                                              -3-
¶ 10       Burge, and the Board and trustees, subsequently filed motions to dismiss the
       complaint under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619
       (West 2012)). Defendants alleged in their motions that the circuit court lacked subject
       matter jurisdiction to consider the Attorney General’s complaint. The circuit court
       agreed.

¶ 11       In a written order, the circuit court noted that section 5-189 of the Pension Code (40
       ILCS 5/5-189 (West 2012)), states in pertinent part that “[t]he Board shall have
       exclusive original jurisdiction in all matters relating to or affecting the fund, including,
       in addition to all other matters, all claims for annuities, pensions, benefits or refunds.”
       The circuit court further noted that, while the statutory prohibition against providing
       pension benefits to a person convicted of a felony relating to, arising out of, or in
       connection with his service as a policeman is absolute, “in each individual case, the
       statutory standard will have to be applied to discrete facts and circumstances.” The
       circuit court concluded that this was a “quintessential adjudicative function” which
       section 5-189 conferred exclusively on the Board.

¶ 12       In addition, the circuit court observed that, under 5-228 of the Pension Code (40
       ILCS 5/5-228 (West 2012)), final administrative decisions of the Board are subject to
       judicial review for error solely as provided by the Administrative Review Law. Such
       review is exclusive and alternate methods of direct review or collateral attack are not
       permitted. See, e.g., Emerald Casino, Inc. v. Illinois Gaming Board, 366 Ill. App. 3d
       622, 625 (2006). The circuit court concluded that the Board had rendered a final
       administrative decision when it ruled on the motion to terminate Burge’s pension
       benefits. The circuit court then reasoned that the Attorney General’s complaint would
       present to the court “the same issue that the Board decided” but would do so outside the
       confines of the Administrative Review Law. Thus, in the view of the circuit court, the
       complaint was an impermissible collateral attack on the Board’s decision. The circuit
       court therefore dismissed the Attorney General’s complaint for lack of subject matter
       jurisdiction.

¶ 13      The Attorney General appealed the dismissal and the appellate court reversed. 2012
       IL App (1st) 112842. 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

                                                -4-
               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
       (40 ILCS 5/5-182 (West 2012)), which provides that “no pension, annuity, or benefit
       shall be allowed or granted and no money shall be paid out of the fund unless ordered
       by a vote of the majority of the members of the board.” The court concluded that the
       Board violated this section when it determined that a tie vote meant that Burge was
       allowed to continue to receive his monthly pension benefits. Based on this violation,
       the appellate court reasoned that the Board’s decision to continue Burge’s benefits was
       “voidable” (2012 IL App (1st) 112842, ¶ 30), and the circuit court was not required to
       give the Board’s exercise of primary jurisdiction any deference. The appellate court
       therefore reinstated the Attorney General’s complaint and remanded the cause to the
       circuit court to determine, as an original matter, whether Burge’s felony convictions
       related to, arose out of, or were connected with his service as a police officer in
       violation of section 5-227.

¶ 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.




                                                 -5-
¶ 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 (735
       ILCS 5/2-619 (West 2012)). A motion to dismiss under section 2-619 admits the legal
       sufficiency of the plaintiff’s complaint, but asserts an affirmative matter which defeats
       the claim. In this case, the asserted affirmative matter is a lack of subject matter
       jurisdiction (735 ILCS 5/2-619(a)(1) (West 2012)). Our review of a dismissal under
       section 2-619 is de novo. King v. First Capital Financial Services Corp., 215 Ill. 2d 1,
       12 (2005).

¶ 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.


                                               -6-
                  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,

                                                -7-
       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 the resolution of disputed
       facts and the application of existing Pension Code provisions to fact-specific
       circumstances. See, e.g., E&E Hauling, Inc. v. Pollution Control Board, 116 Ill. App.
       3d 586, 598 (1983) (an adjudicative proceeding is one “ ‘designed to adjudicate
       disputed facts in particular cases’ ” (quoting United Wales v. Florida East Coast Ry.
       Co., 410 U.S. 224, 245 (1973))).

¶ 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 (40 ILCS 5/5-228 (West 2012), final administrative decisions made by the Board
       are reviewed for error solely under the Administrative Review Law. In this case, the
       Attorney General’s complaint alleged that the Board’s continued payment of pension
       benefits to Burge, after the motion to terminate the benefits failed, was erroneous.
       However, that challenge was made outside the provisions of the Administrative
       Review Law. Therefore, according to defendants, the circuit court properly determined
       that the Attorney General’s complaint was an impermissible collateral attack on the
       Board’s decision and that the court lacked jurisdiction to hear the Attorney General’s
       complaint.

¶ 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:

                                               -8-
                          (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, ten years after section 5-189 was amended in 1972 to provide for exclusive,
       original jurisdiction in the Board. From this, the Attorney General asserts that section
       1-115 “takes precedence” over section 5-189, with the consequence that section 1-115
       “gives circuit courts concurrent jurisdiction over claims by the Attorney General to
       enjoin a violation of the Pension Code even if the Board also has jurisdiction to
       adjudicate the same question.” In other words, in the view of the Attorney General, the
       General Assembly repealed the “exclusive” jurisdiction provided to the Board under
       section 5-189 when it enacted section 1-115. Thus, the Attorney General maintains that
       when a police officer is convicted of a felony offense, the issue of whether his pension
       benefits should be terminated may be pursued either in the circuit court, in an action
       filed by the Attorney General, a participant, a beneficiary or a fiduciary, or in an action
       before the Board.

¶ 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
                                                -9-
       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
                                              - 10 -
       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. ___, ___, 132 S. Ct. 2065, 2071 (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
                                               - 11 -
       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 Attorney General, the
       court in the latter action would not be required to give the Board’s determination any
       deference, thus creating two simultaneous, potentially conflicting actions in the circuit
       court. Further, section 1-115 contains no specific time limit on the filing of such an
       action. If each of the groups listed in section 1-115 were allowed to adjudicate or
       re-adjudicate every grant, denial or adjustment of pension benefits made by the Board
       at any time, as the Attorney General contends, tremendous instability would be injected
       into the Fund. As the circuit court below aptly noted, “[a]dministering a pension fund
       with so much instability and uncertainty is not just inconvenient, it is unworkable.”

¶ 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.” 40 ILCS 5/5-228 (West 2012).
       Section 3-101 of the Code of Civil Procedure defines an “administrative decision” as
       “any decision, order or determination of any administrative agency rendered in a
       particular case, which affects the legal rights, duties or privileges of parties and which
       terminates the proceedings before the administrative agency.” 735 ILCS 5/3-101 (West
       2012). When the Administrative Review Law is applicable to an administrative
       agency, it provides the sole method of reviewing an agency decision. See, e.g.,
       Emerald Casino, Inc. v. Illinois Gaming Board, 366 Ill. App. 3d 622, 625 (2006); Ardt
       v. Illinois Department of Professional Regulation, 154 Ill. 2d 138, 148 (1992) (“The
       legislature enacted the Administrative Review Law in order to provide a simple single
       review from specified administrative decisions.”)

¶ 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
                                               - 12 -
       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”).

¶ 37       The Attorney General asserts, however, that when the Board is presented with the
       question of whether pension benefits should be terminated, as it was in this case, “there
       is no participation by any party opposed to” the continuation of benefits and “there is
       therefore no real opportunity for review of a decision approving that expenditure.”
       Because of “the heightened risk of an effectively unreviewable administrative
       decision” which could “result in a significant violation of the Pension Code, at
       potentially great cost to the public,” the Attorney General maintains that complaints
       such as the one at issue here should be permitted under section 1-115.

¶ 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 v.
       Industrial Comm’n, 216 Ill. 2d 547, 553-54 (2005); Rossler v. Morton Grove Police
       Pension Board, 178 Ill. App. 3d 769, 773 (1989). 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. v. Pollution Control Board,
       74 Ill. 2d 541, 550 (1978). Fiduciary breaches, including, for example, fraudulent or
       corrupt decisions by the trustees of a retirement board, may also be challenged in
       circuit court. See 40 ILCS 5/1-115 (West 2012). In addition, our appellate court has
       recognized that, in certain circumstances, a governmental entity which was not a party
       before a pension board proceeding may contest a retirement board’s administrative
       decision when it would result in the diminution of a pension fund. Karfs v. City of
       Belleville, 329 Ill. App. 3d 1198 (2002); see also Board of Education of the City of
                                              - 13 -
       Chicago v. Board of Trustees of the Public Schools Teachers’ Pension & Retirement
       Fund, 395 Ill. App. 3d 735 (2009) (“systemic miscalculations” by a pension board are
       not administrative decisions and may be challenged outside the Administrative Review
       Law). These avenues for legal challenge to the actions of a pension board exist in
       addition to general civil and criminal oversight, including criminal provisions found in
       the Pension Code itself (see, e.g., 40 ILCS 5/1-125 (West 2012) (misdemeanor offense
       for trustee to accept gift from person seeking action from a retirement board), and
       regulatory oversight provided by the Department of Insurance (see 40 ILCS 5/1A-101
       et seq. (West 2012) (charging the Department of Insurance with examining and
       investigating pension funds created under the Pension Code)).

¶ 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 continued payment of pension benefits to Burge following the ruling
       on the motion to terminate those benefits was individualized error in this case. What the
       Attorney General is seeking then, through the filing of her complaint, is the authority to
       contest every administrative decision made by the Board, however limited in scope or
       effect, and to do so outside the confines of the Administrative Review Law. This would
       be a fundamental change in the workings of the Pension Code. This is not something
       we have authority to recognize absent express repeal of section 5-228 by the General
       Assembly.

¶ 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 (40 ILCS 5/1-109 (West 2012)), when they voted against the motion to terminate
       Burge’s pension benefits. For this reason, according to Chief Justice Garman, the
       complaint should be permitted to go forward under section 1-115. This is so even
       though the complaint does not mention the term “fiduciary,” does not cite to any
       statutory fiduciary duty, and does not contain any allegations of bad faith, self-dealing
       or any similar wrongdoing on the part of any of the trustees.
                                                - 14 -
¶ 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 non-participant 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       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. 40 ILCS 5/1-114
       (West 2012). Thus, the import of Chief Justice Garman’s reasoning is that a retirement
       board trustee who makes a good faith legal error in adjudicating a benefits decision will
       be personally obligated to reimburse the pension fund for that error. Understandably,
       the Attorney General has not made this argument, which if accepted, would likely
       mean that no person would be willing to serve as a retirement board trustee. We are
       confident this is not what the General Assembly intended. We therefore decline to sua
       sponte recast the Attorney General’s complaint as alleging a breach of fiduciary duty
       by any of the trustees of the Board.

¶ 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 by less than a majority of the Board. 40
       ILCS 5/5-182 (West 2012). The Board’s tie vote in this case did not approve or grant a
       pension benefit for Burge. The pension benefits Burge had been receiving were
       approved in 1997, long before the Board’s vote was taken in January 2011. No
       statutory provision prohibits the continuation of pension benefits when a motion to
       terminate those benefits fails to garner a majority of votes on the Board.




                                                - 15 -
¶ 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. 40 ILCS 5/5-227, 1-115 (West
       2012). The Board and Burge counter that section 5-189 of the Pension Code gives the
       Board “exclusive original jurisdiction in all matters relating to or affecting the fund.”
       As such, section 1-115 cannot grant an opportunity for review to the Attorney General,
       participants, beneficiaries, and fiduciaries, without destroying the application of the
       Administrative Review Law as mandated by section 5-228. See 40 ILCS 5/5-189,
       5-228 (West 2012).


                                               - 16 -
¶ 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. 40 ILCS
       5/1-115 (West 2012). Section 5-228 requires a participant or beneficiary to challenge a
       denial of benefits through administrative review. 40 ILCS 5/5-228 (West 2012). A
       broad reading of section 1-115, as offered by the State, could allow an artfully pleading
       participant or beneficiary to bypass administrative review altogether. A broad reading
       also tends to remove “exclusive” from the Board’s “exclusive original jurisdiction”
       under section 5-189. 40 ILCS 5/5-189 (West 2012). Yet section 5-189 read literally
       could give the Board exclusive jurisdiction over its own fiduciary breaches. Section
       1-114 requires a breaching fiduciary to make the fund whole. 40 ILCS 5/1-114 (West
       2012). Section 5-189’s grant of “exclusive original jurisdiction in all matters relating to
       or affecting the fund” could be read so broadly as to give the Board jurisdiction over a
       breach requiring reimbursement and “relating to [and] affecting the fund.” It would be
       absurd to allow artful pleading to evade administrative review, but also absurd to give
       the board jurisdiction over its own alleged shortcomings. In interpreting a statute, we
       presume the legislature did not intend absurd results. In re Andrew B., 237 Ill. 2d 340,
       348 (2010).

¶ 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
                                               - 17 -
       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 (40 ILCS 5/1-109(c) (West 2012)), to administer with “the care, skill, prudence and
       diligence” of a prudent person under similar circumstances (40 ILCS 5/1-109(b) (West
       2012)), and to administer in “accordance with the provisions of the Article of the
       Pension Code governing the retirement system or pension fund.” 40 ILCS 5/1-109(d)
       (West 2012). The majority opinion apparently does not consider failures of these duties
       to be fiduciary breaches, and indeed the majority cannot reach its result if such
       fiduciary breaches are properly remediable under section 1-115. The State’s complaint
       alleged that the Board’s members were violating the Pension Code by paying benefits
       to Burge. Such an act would be, at minimum, a breach of the duty to administer in
       “accordance with the provisions of the Article of the Pension Code governing the
       retirement system or pension fund.” It appears that the majority has determined that
       fiduciary breaches of “bad intent”—breaches of loyalty, fraud, self-dealing, and the
       like—are the only fiduciary breaches to be addressed by section 1-115. Supra ¶ 38.
       (providing that “fraudulent or corrupt decisions” may still be challenged in circuit
       court); id. ¶ 40 (arguing a lack of “allegations of bad faith, self-dealing or any similar
       wrongdoing” in the State’s complaint). There is no basis in the statute or our case law
       for such a distinction. This distinction also conflicts with the legislative history
       discussed below. And if this erroneous distinction is not drawn, payments to a felon
       police officer could be cognizable either as a breach of the duty to obey the Pension
       Code or as a breach of the duty of prudence, meaning the majority would not reach its
       result.

¶ 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
                                                - 18 -
       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.” 40 ILCS 5/5-189 (West 2012). If that language is more
       specific than the civil enforcement language in section 1-115, substantially identical
       provisions in six other articles are also more specific than section 1-115. See 40 ILCS
       5/6-185 (West 2012) (same provision for firefighters in cities over 500,000 population,
       with one change to capitalization); 40 ILCS 5/8-203 (West 2012) (substantially
       identical provision for municipal employees and officials in cities over 500,000
       population: “The board shall have exclusive original jurisdiction in all matters relating
       to the fund, including, in addition to all other matters, all claims for annuities, pensions,
       benefits or refunds.”); 40 ILCS 5/9-196 (West 2012) (same provision as in article 8,
       this one for county employees and officers in counties over three million people); 40
       ILCS 5/10-102, 10-103 (West 2012) (incorporating article 9 by reference, for forest
       preserve district employees); 40 ILCS 5/11-192 (West 2012) (same provision as in
       article 5, for laborers and retirement board employees of cities over 500,000 people);
       40 ILCS 5/12-162 (West 2012) (substantially identical provision for park and
       retirement board employees in cities over 500,000 people: “To have exclusive original
       jurisdiction in all matters relating to or affecting the fund, including, in addition to all
       other matters, all claims for annuities, benefits or refunds under this Article.”). Article
       13 contains a similar, though less expansive, provision. 40 ILCS 5/13-706(e) (West
       2012) (“The Board shall have exclusive original jurisdiction in all matters of claims for
       annuities, benefits and refunds.”). Yet the majority concludes this seven-time repetition

                                                - 19 -
       of the same words was, in each instance, an intentional and more specific grant of
       power than the fiduciary enforcement provision yet to come. Under the majority’s
       interpretation, section 1-115 has very little enforcement role left to play when
       juxtaposed against “exclusive original jurisdiction,” so the majority thus concludes the
       legislature intended section 1-115 to mean little or nothing 1 when applied to seven
       articles of the Pension Code. This cannot be reconciled with the legislative history. One
       could more easily find that section 1-115, pertaining to the circuit court enforcement of
       fiduciary duties, is more specific than the pervasive authority over investment and
       benefits decisions granted to the Board in section 5-189.

¶ 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 1-101.1 2 and ERISA section 3. 3 The
       definitions are nearly identical. Public Act 82-960 also brought Pension Code section


           1
              The majority does not provide any examples of fiduciary breaches that could be addressed by the
       circuit court, aside from “fraudulent” or “corrupt” ones. Given the paucity of the record from the Board
       in this case, it is unclear how a circuit court would, as a threshold matter, evaluate whether a board’s
       actions were fraudulent or corrupt before deciding if it had subject-matter jurisdiction. It also suggests
       the duty of prudence and the duty to obey the Pension Code are statutorily imposed but effectively
       unenforceable. 40 ILCS 5/1-109 (West 2012).
            2
              These definitions have been amended slightly and are now spread across 40 ILCS 5/1-101.2 to
       1-101.4 (West 2010).
            3
              29 U.S.C. § 1002(21)(A), (14)(A)-(I), (38)(A)-(C) (2012).
                                                      - 20 -
       1-109, defining the duties of fiduciaries, into an even closer match with ERISA section
       404 4 than it previously was.

¶ 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 29 U.S.C. § 1132 (2012) and titled “Civil
       Enforcement.” ERISA section 502 provides:

                     “(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

          4
              29 U.S.C. § 1104 (2012).
                                                   - 21 -
                             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.” 29 U.S.C. § 1132 (2012). Pension Code section 1-115 allows the Attorney
       General or any participant, beneficiary, or fiduciary to bring a civil action to “[e]njoin
       any act or practice which violates any provision of this Code” or to “[o]btain other
       appropriate equitable relief to redress any such violation or to enforce any such
       provision.” 6 40 ILCS 5/1-115(b), (c) (West 2012). Thus, we can see that the legislature
       wrote ERISA fiduciary standards and ERISA fiduciary enforcement into Illinois law
       with the same public act.

¶ 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
           5
             Pension Code section 1-114 was, like section 1-115 and the “fiduciary” definition, added by Public
       Act 82-960.
           6
             To the extent there is a distinction between ERISA section 502(a)(2)-(a)(3), (a)(5) and Pension
       Code section 1-115, it is that ERISA section 502 additionally allows participants, beneficiaries, and
       fiduciaries to seek redress for violations of an ERISA plan as well as applicable law. As the Board’s
       determinations are governed by the Pension Code rather than an ERISA plan, any distinction is
       immaterial here.
                                                     - 22 -
              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
       court. LaRue v. DeWolff, Boberg & Associates, Inc., 552 U.S. 248 (2008). The
       Supreme Court’s analysis of ERISA section 502 has accordingly been sensitive to
       distinguishing between those cases which must proceed through administrative review
       and those which may proceed directly to court. Id. at 258-59 (Roberts, C.J., concurring
                                               - 23 -
       in part and concurring in the judgment, joined by Kennedy, J.) (“The significance of the
       distinction between a § 502(a)(1)(B) claim and one under § 502(a)(2) is not merely a
       matter of picking the right provision to cite in the complaint. Allowing a § 502(a)(1)(B)
       action to be recast as one under § 502(a)(2) might permit plaintiffs to circumvent
       safeguards for plan administrators that have developed under § 502(a)(1)(B). Among
       these safeguards is the requirement, recognized by almost all the Courts of Appeals,
       [citation], that a participant exhaust the administrative remedies mandated by ERISA
       § 503, 29 U.S.C. § 1133, before filing suit under § 502(a)(1)(B). Equally significant,
       this Court has held that ERISA plans may grant administrators and fiduciaries
       discretion in determining benefit eligibility and the meaning of plan terms, decisions
       that courts may review only for an abuse of discretion.”).

¶ 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
                                               - 24 -
       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 40 ILCS 5/5-189 (West
       2012) (“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.”).

¶ 67        Having reviewed the federal courts’ careful balance between participants seeking
       review of a benefits decision and the broad language of ERISA section 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 40 ILCS 5/1-109 (West 2012).
       Section 5-227 provides, in relevant part, that “[n]one of the benefits provided for in this
       Article shall be paid to any person who is convicted of any felony relating to or arising


           7
              Like sections 1-114 and 1-115 and the definition for “fiduciary,” this language was added by Public
       Act 82-960.
            8
              This language also appears in 29 U.S.C. § 1104(a)(1)(B) (2012), which is part of ERISA section
       404.
            9
              This provision, likewise, is nearly identical to fiduciary duties under ERISA section 404. 29 U.S.C.
       § 1104(a)(1)(D) (2012).
                                                      - 25 -
       out of or in connection with his service as a policeman.” 40 ILCS 5/5-227 (West 2012).
       The section 1-109 duty provisions largely parallel provisions of ERISA.

¶ 69       To the extent a pension board pays benefits to a person declared to be a
       non-participant 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 extends to
       plan administration. See Brock v. Robbins, 830 F.2d 640, 646-48 (7th Cir. 1987)
       (explaining how imprudent administration of a benefits plan leads to dissipation of plan
       assets). The duty of care is derived from trust law and includes “determining who is in
       fact a plan participant.” Central States, Southeast & Southwest Areas Pension Fund v.
       Central Transport, Inc., 472 U.S. 559, 572 (1985). Fiduciaries likewise have a duty to
       preserve plan assets to satisfy both future and present claims, and to “take impartial
       account of the interests of all beneficiaries.” Varity Corp. v. Howe, 516 U.S. 489, 514
       (1996). Payments to a non-participant without any obligation to pay would dissipate
       plan assets. Failure to properly determine who is a plan participant would produce the
       same result. Accordingly, payments to a person erroneously deemed a participant
       would be cognizable as a breach of the duty of prudence under ERISA.

¶ 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.” 40 ILCS 5/5-227
       (West 2012). Accordingly, in the State’s view, Burge is not properly a pension
       recipient, and payments to him violate the Pension Code. Cessation of payments to
       Burge would prevent further dissipation of the fund; any recovery of amounts already
       paid to him would bolster the fund. The State’s claim against the Board falls squarely
       within the field of ERISA subsections 502(a)(2)-(a)(3) and (a)(5) enforcement, and
       accordingly should be permitted under Pension Code section 1-115. It should be
       permitted to proceed in the circuit court, without application of any requirement for
       administrative exhaustion. Finally, regarding the Attorney General’s claim for
       repayment of benefits wrongly paid to Burge, such an action is cognizable under
                                              - 26 -
       ERISA section 502—but only to the extent such funds are identifiable and traceable.
       North American Coal Corp. v. Roth, 395 F.3d 916, 917 (8th Cir. 2005) (noting that
       district court’s award of restitution of a 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. 40 ILCS 5/5-228 (West 2012).
       Where courts review administrative decisions, factual findings are reviewed as to
       whether they are against the manifest weight of the evidence. Provena Covenant
       Medical Center v. Department of Revenue, 236 Ill. 2d 368, 386-87 (2010). Pure
       questions of law are reviewed de novo. Id. at 387. On a mixed question of law and fact,
       the determination of an administrative agency is reviewed for clear error. Id. Where the
       Attorney General, a participant, a beneficiary, or a fiduciary brings a challenge that
       states a claim for a fiduciary breach arising from a benefits decision, the pension
       board’s benefits decision is to be presumed correct. Even where a challenger has
       alleged that a benefits decision violates some provision of the Pension Code or other
       fiduciary duty, such a challenger would still face a high bar to survive a motion for
       dismissal or summary judgment. Where, as here, the decision to be reviewed is a
       deadlock on whether to terminate, a court would essentially review for clear error the
       Board’s tie-vote determination that Burge’s benefits would continue.

¶ 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
                                             - 27 -
       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. 40 ILCS 5/1-109
       (West 2012). The majority’s disregard of these duties, while allowing for challenges
       for disloyalty, creates an artificial distinction without tether to the statute. Trustees can
       breach fiduciary duty without self-dealing or disloyalty, yet the majority opinion offers
       no avenue for a court to review such breaches.

¶ 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.
       40 ILCS 5/1-107 (West 2012). It likewise provides that a board may not indemnify
       trustees for “wilful misconduct and gross negligence.” Id. The legislature, by outlining
       how much indemnification boards may offer, clearly contemplated that trustees might
       be subject to suit for errors—it included section 1-107 to prevent the exact problem the
       majority claims will occur if sections 1-114 and 1-115 are given their plain meaning.
       The majority effectively creates an enhanced mental state requirement for section
       1-114—“bad faith, self-dealing or *** similar wrongdoing.” Supra ¶ 40. Further, the
       majority’s inclusion of ‘bad intent’ fiduciary breaches under section 1-115 and
       exclusion of prudence and Pension Code breaches implicitly provides that Board
       fiduciaries are now immunized to challenge for even gross negligence, a breach for
       which section 1-107 would not even permit indemnification. For fear of making
       sections 1-114 and 1-115 too stringent against fiduciaries, the majority hinders those
       sections from holding fiduciaries accountable under seven chapters of the Pension
       Code.

¶ 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
                                                - 28 -
       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.” 40 ILCS 5/1-109(d)
       (West 2012). The complaint both alleges a violation of the Pension Code and asks for
       an injunction requiring the Board to comply with the Code. The Board has a fiduciary
       duty to administer in accordance with the Code. It is no stretch to find the State has, in
       its brief complaint, alleged the basis for a breach of fiduciary duty. The majority’s
       resolution suggests a rote allegation of fiduciary disloyalty in the complaint would
       have granted the circuit court subject-matter jurisdiction. Yet a similar allegation of
       fiduciary imprudence or the already-present allegation of a fiduciary violating the
       Pension Code would not suffice. I cannot agree with this reasoning.

¶ 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
                                               - 29 -
       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 signals the legislature’s intent. I
       respectfully dissent.

¶ 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.” Ill. Const. 1970, art. VI, § 9; see also People v. NL Industries, 152 Ill. 2d 82,
       96 (1992). The legislature cannot preclude or limit the jurisdiction of the circuit courts,
       except where it enacts a comprehensive statutory scheme that creates rights having no
       common law counterpart and explicitly vests original jurisdiction in an administrative
       agency. Crossroads Ford Truck Sales, Inc., 2011 IL 111611, ¶ 27; NL Industries, 152
       Ill. 2d at 96-97. The determination of whether jurisdiction over a particular matter is
       exclusive in the administrative agency or is concurrent in the circuit courts is a question
       of statutory interpretation. Crossroads Ford Truck Sales, Inc., 2011 IL 111611, ¶ 27.

¶ 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

                                               - 30 -
       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. 40 ILCS 5/5-189 (West 2012). This section was
       amended in 1972 to further provide that “[t]he Board shall have exclusive original
       jurisdiction in all matters relating to or affecting the fund, including, in addition to all
       other matters, all claims for annuities, pensions, benefits or refunds.” Id.

¶ 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:


                                                - 31 -
              “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. 40 ILCS 5/1-115(b) (West 2012).
       Thus, sections 1-115 and 5-189 of the Pension Code are in direct conflict. In this
       circumstance, we are tasked with interpreting them in a manner that best gives effect to
       the intent of the legislature. In so doing, the majority relies on the common rule of
       statutory construction that a specific provision controls over a general one. Supra ¶ 31.
       However, this approach essentially nullifies the express language of section 1-115 with
       regard to matters that relate to or affect 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. 40 ILCS 5/1-115(b) (West 2012). By adopting this
       comprehensive language, without restriction, the legislature evinced its intent to permit
       the filing of a civil action based on a broad range of conduct or decisions that may
       constitute a violation of a provision of the Code, even where the alleged violation
       results from a Board adjudication regarding pension benefits.


                                               - 32 -
¶ 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. 40 ILCS 5/5-189 (West 2012). This provision
       was in effect for a decade before the General Assembly took deliberate action to create
       the civil enforcement provision in section 1-115 in 1982. Because section 1-115(b)
       constitutes the later expression of legislative intent, it should control to the extent that it
       conflicts with section 5-189. See generally U.S. Bank National Ass’n, 216 Ill. 2d at
       344-50; see also Village of Chatham, 216 Ill. 2d at 431; Jahn, 163 Ill. 2d at 282;
       Williams, 139 Ill. 2d at 58.

¶ 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) (29
       U.S.C. § 1132(a) (2006)), which permit the filing of a civil action by the Secretary of
       Labor or persons with an interest in the subject retirement plan to enforce the terms of
       the ERISA statute and of the retirement plan. Compare 29 U.S.C. § 1132(a)(3)(A),
       (5)(A) (2006), with 40 ILCS 5/1-115(b) (West 2012). The “broad” language in those
       “catchall” provisions has been interpreted as creating a means of obtaining equitable
       relief for violations of the statute, where an adequate remedy is not provided elsewhere.
       See Varity Corp. v. Howe, 516 U.S. 489, 510, 512 (1996).

                                                 - 33 -
¶ 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 a 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 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.




                                               - 34 -
