                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




        Gutraj v. Board of Trustees of the Police Pension Fund, 2013 IL App (2d) 121163




Appellate Court            CONRAD GUTRAJ, Plaintiff-Appellee, v. THE BOARD OF
Caption                    TRUSTEES OF THE POLICE PENSION FUND OF THE VILLAGE OF
                           GRAYSLAKE, ILLINOIS, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-12-1163


Filed                      June 28, 2013


Held                       The appellate court upheld the trial court’s order that plaintiff, a police
(Note: This syllabus       officer awarded a “line of duty” disability pension pursuant to section 3-
constitutes no part of     114.1 of the Pension Code, was entitled to annual 3% pension increases
the opinion of the court   under both section 3-111.1(c) and 3-114.1(d).
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Lake County, No. 12-MR-350; the Hon.
Review                     Diane E. Winter, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Jeffrey A. Goodloe, of Puchalski Goodloe Marzullo, LLP, of Libertyville,
Appeal                     for appellant.

                           James L. Dobrovolny, of Dobrovolny Law Offices, of Urbana, for
                           appellee.


Panel                      JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                           Justices McLaren and Birkett concurred in the judgment and opinion.




                                             OPINION

¶1           Defendant, the Board of Trustees of the Police Pension Fund of the Village of Grayslake,
        Illinois, appeals from an order of the circuit court of Lake County ruling that plaintiff,
        Conrad Gutraj, is entitled to pension increases under both section 3-111.1(c) and section 3-
        114.1(d) of the Illinois Pension Code (Code) (40 ILCS 5/3-111.1(c), 3-114.1(d) (West
        2012)). We affirm.

¶2                                        BACKGROUND
¶3          On March 5, 2012, plaintiff filed a complaint for mandamus and declaratory relief (see
        735 ILCS 5/2-701 (West 2012) (“[t]he court may, in cases of actual controversy, make
        binding declarations of rights”)), arising out of the following undisputed facts. Plaintiff
        became a police officer for the Village of Grayslake on July 1, 1975. On the same date, he
        joined the Grayslake police pension fund. On April 12, 2000, plaintiff suffered a heart attack
        while performing his duties as a police officer. As a result of his heart attack, plaintiff was
        no longer able to work as a policeman and was suspended from police service on September
        19, 2000. On October 14, 2000, defendant awarded plaintiff, who was 49 years old, a “line
        of duty” disability pension pursuant to section 3-114.1 of the Code. In accordance with the
        provisions of the Code then in effect, plaintiff’s pension was 65% of his salary as of his last
        day of service.
¶4          In 2001, plaintiff availed himself of a recent amendment to section 3-114.1 of the Code,
        which allowed for an annual noncompounded 3% increase to his pension, provided that he
        met certain conditions. On March 4, 2011, plaintiff turned 60 years of age. On October 10,
        2011, plaintiff demanded an additional 3% increase pursuant to section 3-111.1(c) of the
        Code, which provided that the monthly pension of a police officer who is retired on disability
        shall increase, in January of the year following the year of attaining age 60, by 3% of the
        original pension for each year that he or she received pension payments, and for an additional
        3% increase in each January thereafter. Defendant contends that it did not formally deny


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     plaintiff’s request for the increase under section 3-111.1(c). Nevertheless, defendant agrees
     that there is a controversy within the meaning of section 2-701 of the Code of Civil
     Procedure.
¶5        The parties filed cross-motions for summary judgment on the issue of whether plaintiff
     was entitled to a 3% increase under both sections of the Code. On September 26, 2012, the
     trial court ruled in a memorandum opinion and order that mandamus was inappropriate
     because plaintiff’s averment that defendant rejected his request was made on information and
     belief complaint, the trial court held that plaintiff was entitled to increases under both
     sections of the Code. Defendant appealed the trial court’s ruling on the declaratory judgment
     count.

¶6                                          ANALYSIS
¶7        We first address plaintiff’s motion to strike defendant’s brief, or portions thereof, which
     we ordered taken with the case. Plaintiff contends that certain charts included in defendant’s
     statement of facts are matters outside the record. To the contrary, the charts merely illustrate
     the record facts. Plaintiff also objects to defendant’s use of the acronym “COLA,” contending
     that the term has a “negative connotation in today’s highly charged discussion regarding
     public pensions.” Plaintiff is concerned that the term “COLA” will prejudice us against him.
     This court is able to separate political hyperbole, which plaintiff unnecessarily interjected
     into the discussion by filing the motion, from reasoned arguments. Defendant’s brief in its
     entirety presents the latter. Accordingly, the motion to strike is denied.
¶8        We turn now to the merits. The issue before us is whether the pension increases, provided
     by two different sections of the Code, are mutually exclusive. The resolution of the issue
     requires us to engage in statutory construction. The primary rule of statutory construction is
     to ascertain and give effect to the legislature’s intent and meaning. Brucker v. Mercola, 227
     Ill. 2d 502, 513 (2008). The language of the statute is the best indication of legislative intent,
     and, where it is clear and unambiguous, there is no need to resort to other aids of
     construction. Brucker, 227 Ill. 2d at 513. However, if the language used in the statute is
     susceptible to more than one equally reasonable interpretation, the court can look to extrinsic
     sources to determine the legislative intent. Brucker, 227 Ill. 2d at 513-14. All provisions of
     a statute are viewed as a whole, and we interpret all words and phrases in light of other
     relevant provisions. Brucker, 227 Ill. 2d at 514. “Each word, clause and sentence of the
     statute, if possible, must be given reasonable meaning and not rendered superfluous.”
     Brucker, 227 Ill. 2d at 514. “Where the language is clear, the statute cannot be revised to
     include exceptions, limitations, or conditions that the legislature did not express.” People v.
     Davis, 2012 IL App (2d) 100934, ¶ 14. When the legislature uses certain language in one part
     of a statute and different language in another part, we assume that different meanings were
     intended. Davis, 2012 IL App (2d) 100934, ¶ 15. Statutory construction is a question of law,
     which we review de novo. Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d
     546, 552 (2009).
¶9        Here, the parties dispute the interpretation of two provisions in article 3 of the Code.
     Subsection (c) of section 3-111.1 provides as follows:


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                “(c) The monthly pension of a police officer who retires on disability or is retired for
           disability shall be increased in January of the year following the year of attaining age 60,
           by 3% of the original grant of pension for each year he or she received pension payments.
           In each January thereafter, the police officer shall receive an additional increase of 3%
           of the original pension.” 40 ILCS 5/3-111.1(c) (West 2012).
       Section 3-114.1 provides, in relevant part, as follows:
                “(a) If a police officer as the result of sickness, accident or injury incurred in or
           resulting from the performance of an act of duty, is found to be physically or mentally
           disabled for service in the police department, so as to render necessary his or her
           suspension or retirement from the police service, the police officer shall be entitled to a
           disability retirement pension equal to the greatest of (1) 65% of the salary attached to the
           rank on the police force held by the officer at the date of suspension of duty or
           retirement, (2) the retirement pension that the police officer would be eligible to receive
           if he or she retired (but not including any automatic annual increase in that retirement
           pension), or (3) the pension provided under subsection (d), if applicable.
                                                  ***
                (d) A disabled police officer who (1) is receiving a pension under this Section on the
           effective date of this amendatory Act of the 91st General Assembly, (2) files with the
           Fund, within 30 days after that effective date and annually thereafter while the pension
           remains payable, a written application for the benefits of this subsection, including an
           affidavit stating that the applicant has not earned any income from gainful employment
           during the most recently concluded tax year and a copy of his or her most recent Illinois
           income tax return, (3) has service credit in the Fund for at least 7 years of active duty,
           and (4) has been receiving the pension under this Section for a period which, when added
           to the officer’s total service credit in the Fund, equals at least 20 years, shall be eligible
           to receive an annual noncompounded increase in his or her pension under this Section,
           equal to 3% of the original pension.” 40 ILCS 5/3-114.1 (West 2012).
       Public Act 91-939 (eff. Feb. 1, 2001) amended section 3-114.1 by adding subsections (a)
       through (d). In subsection (a), the legislature inserted the language “equal to the greatest,”
       following the words “the police officer shall be entitled to a disability retirement pension.”
       The amendment then designated as item (1) the provision that the officer was entitled to 65%
       of the salary attached to the rank held at the date of suspension of duty or retirement and
       added items (2) and (3) pertaining to the election of pension options; it also added subsection
       (d) pertaining to increases to current pension obligations.
¶ 10       The trial court held that section 3-111.1(c) and section 3-114.1(d) unambiguously provide
       for separate annual 3% increases to the pension benefits of disabled police officers who meet
       separate and narrowly tailored prerequisites. The court found that the sections are not
       mutually exclusive and that both benefits apply to a qualifying pension beneficiary. The court
       recognized that no appellate court has addressed this issue. In resolving the dispute, the court
       employed the analytical approach used by our supreme court in Roselle. In Roselle, the
       statute was silent as to whether the spouse of a deceased police officer was entitled to receive
       annual increases on the line-of-duty pension awarded to her following her husband’s death.


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       Roselle, 232 Ill. 2d at 548-49, 554. In resolving that issue, our supreme court looked to other
       provisions in the Code in which the legislature had authorized such increases to survivors.
       Roselle, 232 Ill. 2d at 556. “These provisions clearly demonstrate that the legislature knew
       exactly how to authorize such annual increases when it intended to do so.” Roselle, 232 Ill.
       2d at 556. Because the legislature failed to provide, with equal clarity, for annual increases
       in pension benefits awarded to survivors of police officers who had been granted line-of-duty
       pensions, the supreme court concluded that no such annual increases were authorized.
       Roselle, 232 Ill. 2d at 556-57. Here, in utilizing Roselle’s analytical approach, the trial court
       reasoned that, because the legislature included language in other parts of the Code making
       certain benefits mutually exclusive but failed to do so in sections 3-111.1(c) and 3-114.1(d),
       the legislature did not intend mutual exclusivity. The trial court observed that the legislature
       “knew exactly how” to draft language that granted one pension benefit increase in lieu of
       another pension benefit increase. Additionally, the trial court reasoned that construing the
       sections as mutually exclusive would render one section or the other superfluous.
¶ 11       Defendant distinguishes Roselle, saying that, unlike in Roselle, here plaintiff did not
       apply for a benefit that was not authorized by statute. However, the trial court used Roselle
       not because it was factually similar to our case but because it provided an appropriate
       analytical framework.
¶ 12       Defendant contends that the absence of “mutually exclusive” language renders both
       sections 3-111.1(c) and 3-114.1(d) ambiguous, requiring an analysis under Nowak v. City of
       Country Club Hills, 2011 IL 111838. Nowak involved interpretation of section 10(a) of the
       Public Safety Employee Benefits Act (820 ILCS 320/10(a) (West 2006)), which provided
       that an employer must pay the entire health insurance premium for an injured police officer
       and his family when the officer suffers a catastrophic injury in the line of duty. Nowak, 2011
       IL 111838, ¶ 1. Section 10(a)’s silence as to when an employer’s obligation to pay the
       insurance premium attached led to two reasonable interpretations: that the obligation attached
       either on the date the officer suffered the injury or on the date the officer was awarded a line-
       of-duty pension. Nowak, 2011 IL 111838, ¶ 12. Thus, section 10(a) was ambiguous, and the
       court resorted to canons of construction. Nowak, 2011 IL 111838, ¶ 13.
¶ 13       In contrast, section 3-111.1(c) and section 3-114.1(d) of the Code are unambiguous.
       Neither section is susceptible to two or more reasonable interpretations. They clearly bestow
       two different benefits that have different criteria. Under section 3-114.1(d), a disabled
       pensioner not otherwise gainfully employed receives a noncompounded 3% increase. Under
       section 3-111.1(c), all pensioners receive a compounded 3% increase after turning 60. The
       absence of “mutually exclusive” language is not silence on the issue here, because the two
       sections clearly and unambiguously talk about different things. If we were to decide that
       plaintiff is entitled to only one increase, we would fail to give effect to both sections.
       Moreover, where the legislature has not chosen one over the other, this court cannot make
       that choice.
¶ 14       Under the guise that the legislature left a silence that we must fill, defendant really is
       asking us to read a limitation into sections 3-111.1(c) and 3-114.1(d) that is not there,
       namely, that the increase granted by section 3-114.1(d) is in lieu of the increase granted by
       section 3-111.1(c). As the petitioner did in Illinois Bell Telephone Co. v. Illinois Commerce

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       Comm’n, 362 Ill. App. 3d 652, 660 (2005), defendant here is inferring a limitation from other
       parts of the Code. The court in Illinois Bell rejected that approach, holding that where a
       provision, standing alone, is crystal clear, “no other section or part of the act may be applied
       to create doubt.” Illinois Bell, 362 Ill. App. 3d at 660. “Thus, we should normally assume
       that whenever the legislature intended a limitation, it expressed that limitation; conversely,
       if the limitation is absent from the text, the legislature presumably did not intend the
       limitation.” Illinois Bell, 362 Ill. App. 3d at 660. “[If] the legislature uses certain words in
       one instance and different words in another, it intends different results.” (Internal quotation
       marks omitted.) Illinois Bell, 362 Ill. App. 3d at 661.
¶ 15        Here, for example, the legislature specifically provided in section 3-111.1(e) that the
       increases granted by that provision are in lieu of the increases granted by section 3-111.1(a).
       So, when the legislature did not use similar language in section 3-111.1(c), we can presume
       that it intended a different result. In other words, the legislature knew how to express that one
       increase is in lieu of another. See Illinois Bell, 362 Ill. App. 3d at 661; see also Davis, 2012
       IL App (2d) 100934, ¶ 17 (“[I]t is apparent that the legislature chose not to include a mental
       state for the ‘without authority’ element, evidenced by the fact that the legislature specifically
       included the mental state of knowledge for the other two elements. Had the legislature
       intended to apply a mental state to the ‘without authority’ element, it certainly had the know-
       how and ability to do so.”); People v. Fort, 373 Ill. App. 3d 882, 887 (2007) (“[T]he
       legislature has demonstrated it knows how to make the $5-per-day credit inapplicable to a
       special fund.”); People v. Staton, 248 Ill. App. 3d 799, 803-04 (1993) (“The legislature has
       demonstrated that it knows how to make the general requirements of the Vehicle Code
       applicable to snowmobiles when it wants to.”).
¶ 16        Defendant contends that giving plaintiff both increases leads to an absurd result in that
       pensioners disabled in the line of duty who are covered by section 3-114.1(d) are few and
       would become an elite class. To the contrary, the result is not unjust or absurd. The
       legislature chose to give a 3% increase before age 60 to disabled pensioners who cannot
       obtain other gainful employment. Then, after turning 60, all disabled pensioners receive a 3%
       increase regardless of employment status. The two increases fulfill two different purposes.
       It is not our province to assess the wisdom of legislative objectives. In re Marriage of
       Semmler, 107 Ill. 2d 130, 138 (1985).
¶ 17        Alternatively, defendant argues that section 3-114.1(d) unambiguously creates its own
       pension, which plaintiff elected in lieu of any other benefits. We reject this argument. Section
       3-114.1(a) provides that a police officer retired on disability may choose the greatest of
       options (1), (2), and (3). Subsection (d) is simply a method of computing option (3). The
       pension is still the pension granted by subsection (a).

¶ 18                                     CONCLUSION
¶ 19       For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 20       Affirmed.


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