Professional Documents
Culture Documents
108184
IN THE
SUPREME COURT OF ILLINOIS
BRIEF OF DEFENDANTS-APPELLANTS
LISA MADIGAN
Attorney General
State of Illinois
MICHAEL A. SCODRO
Solicitor General
Section 2-156 of the Illinois Pension Code, which pertains to the General
Assembly Retirement System (“the System”), provides that “[n]one of the benefits
herein provided for shall be paid to any person who is convicted of any felony
40 ILCS 5/2-156 (2008). The System’s Board of Trustees applied that provision to
terminate all pension benefits of George Ryan, Sr., because his federal convictions
for racketeering, mail fraud, making false statements, filing false tax returns, and
other offenses were based on his conduct during his service to the State while a
member of the System.1 The Board rejected Ryan’s argument that he should only
have to forfeit those benefits relating to his service as Secretary of State and
The circuit court upheld the Board’s decision, but the appellate court
reversed, holding that the phrase “for the period of service in such office” from the
1
The current members of the Board of Trustees are: Sen. James Clayborne
(Chairman), Rep. Mark Beaubien, Jr. (Vice Chairman), Sen. Don Harmon, Sen.
William Brady, Rep. Kevin A. McCarthy, Rep. Dan Reitz, and former Rep. Philip
Collins (retired member). Members Beaubien, McCarthy, and Reitz were
appointed after Ryan filed his complaint and are substituted as defendants pursuant
to section 2-1008(d) of the Code of Civil Procedure (735 ILCS 5/2-1008(d)
(2008)).
ISSUE PRESENTED FOR REVIEW
convicted of felonies relating to, arising out of, and in connection with his service
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STATUTES INVOLVED
member.
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STATEMENT OF FACTS
A. Background
Ryan, who was born on March 24, 1934, was appointed to fill a vacant seat
(“S.R.”) C. 49, 283). He was subsequently elected and re-elected to the County
Board, serving from 1966 to 1972, including a two-year period as Chairman from
representative for the Kankakee area (id.). He was re-elected four times and
The System sent Ryan a letter in January 1973 to acquaint him with the
pension plan available to members of the General Assembly (S.R. C. 51). The
elected otherwise (id.). Ryan did not opt out and, in fact, requested the Illinois
county supervisor from that fund to The System (S.R. C. 52). In March of 1973,
the IMRF sent the System a check for $996.80, representing Ryan’s contributions,
interest, and credits earned from February 1967 through January 1973 (id.). In
April of 1973, the System notified Ryan that he owed a balance of $6,608.89 to
establish 5.9 years of credit associated with the transfer from IMRF (S.R. C. 54).
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He submitted the payment in May of 1981 (S.R. C. 57).
was re-elected Governor (S.R. C. 283). Both Thompson and Ryan won re-election
in 1986 (id.).
In 1990, Ryan was elected to a four-year term as Secretary of State and was
re-elected to a second term in November 1994, serving through early January 1999
(id.). Ryan was elected Governor in November 1998 and served in that position
January 2003, when his term as Governor ended (S.R. C. 49-50). His yearly salary
was $150,691 at the time (S.R. C. 49). Based on his entitlement to the maximum
of 85% of his final salary, the System computed his monthly retirement benefit as
A federal grand jury indicted Ryan in December 2003 on felony charges for
indictment alleged that Ryan engaged “in a scheme to defraud the People of the
State of Illinois and the State of Illinois of money, property, and the intangible
right to the honest services of defendant RYAN, in his capacity as a state official”
(S.R. C. 133). The conduct described in the indictment occurred when Ryan was
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Secretary of State and Governor and resulted in, among other things, “hundreds of
United States v. Warner, 498 F.3d 666, 675 (7th Cir. 2007).
On April 17, 2006, a jury found Ryan guilty on all counts. Id. at 674. The
district court set aside the jury’s verdict with respect to two mail fraud counts,
entered judgment against Ryan on the remaining counts, and sentenced him to 78
months in prison. Id.; see generally United States v. Warner, No. 02 CR 506-1,
2006 WL 2583722 (N.D. Ill. Sept. 7, 2006). Ryan appealed to the United States
Court of Appeals for the Seventh Circuit, which affirmed the convictions. Warner,
498 F.3d at 678-705. The United States Supreme Court denied certiorari. See 128
System, sought the opinion of Illinois Attorney General Lisa Madigan regarding
whether the felony convictions precluded Ryan from continuing to receive his
accordance with the law that (1) Ryan forfeited all of his pension benefits because
his felony convictions arose out of and in connection with his service as Secretary
of State and Governor, (2) his pension should cease as of the date of his
convictions, and (3) he was entitled to a full refund of his contributions to the
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System, including those associated with the credits transferred from the IMRF
(S.R. C. 214-38).
The Attorney General concluded that Ryan forfeited all of his pension
benefits, not just those that accrued while he served as Secretary of State and
Governor, based on section 2-156 of the Pension Code (40 ILCS 5/2-156), which
states that “[n]one of the benefits herein provided for shall be paid to any person
his or her service as a member” (S.R. C. 223-31). The Attorney General stated that
“the plain language of section 2-156 mandates the forfeiture of all pension benefits
provided for by the System where a nexus exists between the felony conviction
and the participant’s official duties, regardless of whether the participant held
In the opinion of the Attorney General, the trigger for forfeiture is the
service while a member (id.). The Attorney General also stated that her opinion
was consistent with case law interpreting similar pension forfeiture provisions as
circumstances (S.R. C. 225-31 (citing Taddeo v. Bd. of Trustees of the Ill. Mun.
Ret. Fund, 216 Ill. 2d 590 (2005); Wells v. Bd. of Trustees of the Ill. Mun. Ret.
Fund, 361 Ill. App. 3d 716 (2nd Dist. 2005), appeal denied, 217 Ill. 2d 627 (2006);
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Grever v. Bd. of Trustees of the Ill. Mun. Ret. Fund, 353 Ill. App. 3d 263 (2nd
On September 19, 2006, Executive Secretary Blair informed Ryan that his
pension, health, dental, vision, and life insurance benefits would be suspended
under the group health plan, Ryan’s wife, Lura Lynn, had the option of purchasing
COBRA benefits (id.). Blair informed Ryan that he or his representative could
present his case at the Board of Trustee’s November 15, 2006 meeting (id.).
C. 254-63). He did not dispute that his pension benefits earned as Secretary of
State and Governor should have terminated because his felony convictions related
Lieutenant Governor because his conduct leading to the felony convictions was
unrelated to his service in those positions (S.R. C. 257-62). Ryan also argued that
the IMRF credits that he earned for service on the Kankakee County Board were
arguments at the November 15, 2006 Board meeting (S.R. C. 267-68, 293-98).
2
Ryan did not pursue this argument in the appellate court.
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ratified a decision prepared by the System’s staff that terminated all of Ryan’s
(S.R. C. 282-92; App. at A21-A31), the Board found that the plain language of the
because “the trigger for forfeiture under Section 2-156 is the existence of a
connection between the felony conviction and the participant’s service to the State
while a member” (S.R. C. 287). The Board reasoned that had the General
limitation, but it did not (id.). Additionally, the Board agreed with the Attorney
total forfeiture of pension benefits (Taddeo, Wells, and Grever) and concluded that
its decision was consistent with those cases (S.R. C. 287-89). According to the
Board, all of Ryan’s pension benefits accrued while he was in the service of one
employer – the State of Illinois – and, therefore, his felony convictions mandated
the forfeiture of his entire pension (S.R. C. 289). The System notified Ryan that he
App. at A32).
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decision (C. 3-10). He later filed a motion for summary judgment, to which the
May 31, 2007, affirming the Board’s decision in all respects (C. 103-13; App. at
The appellate court reversed, holding that Ryan forfeited only that part of
his pension related to his service as Governor and Secretary of State. Ryan v. Bd.
of Trustees of the Gen. Assembly Ret. Sys., 388 Ill. App. 3d 161 (1st Dist. 2009)
(App. at A1-A9). The court relied on the definition of “member” to find that “the
service as a member’ must be linked to the ‘the [sic] period of service in such
office.’” Ryan, 388 Ill. App. 3d at 168 (App. at A8). The appellate court also
concluded that Taddeo and Grever mandated reversal and that Wells was
distinguishable because the felony forfeiture provision at issue there uses the
applicable to Ryan uses the phrase “service as a member,” which, in the court’s
view, “limits the scope to a specific office held.” Ryan, 388 Ill. App. 3d at 167-68
(App. at A7-A8).
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ARGUMENT
The Board Of Trustees Correctly Concluded That Ryan Forfeited All Of His
Pension Benefits Because His Felony Convictions Related To, Arose Out Of,
And Were Connected With His Service To The State While A Member Of
The System.
Section 2-157 of the Illinois Pension Code provides that judicial review of
the Administrative Review Law (ARL). 40 ILCS 5/2-157 (2008). Under the
the reviewing court to be prima facie true and correct. 735 ILCS 5/3-110 (2008).
This Court reviews the decision of the agency, not the appellate court. Sangamon
County Sheriff’s Dep’t v. Ill. Human Rights Comm’n, 233 Ill. 2d 125, No. 105517,
The facts are not in dispute; rather, the issue involves the proper
novo because the case presents a question of law. Roselle Police Pension Bd. v.
Vill. of Roselle, 232 Ill. 2d 546, 552 (2009); Shields v. Judges’ Ret. Sys., 204 Ill.
relief will be denied if he fails to sustain that burden. Wade v. City of N. Chicago
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Statutory construction requires courts to ascertain and give effect to the
intent of the legislature. Wade, 226 Ill. 2d at 509; Shields, 204 Ill. 2d at 493. The
plain language of the statute is the most reliable indicator of that intent. Roselle,
232 Ill. 2d at 552. If an ambiguity exists, extrinsic aids, such as legislative history,
may be examined. County of DuPage v. Ill. Labor Relations Bd., 231 Ill. 2d 593,
604 (2008).
charged with administering. Roselle, 232 Ill. 2d at 559; Abrahamson v. Ill. Dep’t
of Prof’l Regulation, 153 Ill. 2d 76, 98 (1992). That interpretation is based on the
B. Statutory scheme
retirement annuities and other benefits for members of the General Assembly,
certain other elected officials, and their beneficiaries. 40 ILCS 5/2-101 (2008).
The System’s funds and property form a trust that is separate from all other
entities. Id.
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this State including persons who enter military service while a member of the
Secretary of State, Treasurer, Comptroller, and Attorney General for the period of
“Service” means “the period beginning on the day when a person first
became a member, and ending on the date under consideration, excluding all
includes the total period of time for which the participant is elected as a member or
officer, even though he or she does not complete the term because of death,
required for the entire period of office have been made by or on behalf of the
The felony forfeiture provision states that “[n]one of the benefits herein
provided for shall be paid to any person who is convicted of any felony relating to
3
On October 1, 1975, when Public Act 79-959 took effect, the Governor,
Lieutenant Governor, Secretary of State, Treasurer, Comptroller, and Attorney
General became members of the System. 1975 Ill. Laws 2882, 2883; Ill. Rev. Stat
ch. 108 1/2, par. 14-143 (1975). Prior to that date, those officers were members of
the State Employees’ Retirement System. See Ill.Rev. Stat. ch. 108 1/2, par. 14-
143 (1973).
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156 (2008) (App. at A37). With only minor differences, the Pension Code
contains identical felony forfeiture provisions for each of the various pension
funds and systems. See, e.g., 40 ILCS 5/3-147 (2008) (Police Pension Fund); 40
The Board correctly determined that Ryan forfeited all of his retirement
benefits even though he committed the crimes that led to his felony convictions
while he held the offices of Secretary of State and Governor. The Board’s
decision is based on the plain language of the felony forfeiture provision, which
states that “[n]one of the benefits herein provided for shall be paid to any person
intent of the legislature. Wade, 226 Ill. 2d at 509; Shields, 204 Ill. 2d at 493. The
plain language of the statute is the most reliable indicator of the legislature’s
intent, and where statutory language is clear, it must be applied as written. See
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liability for sexual harassment); Shields, 204 Ill. 2d at 494 (statutory reference to
contributions).
The Board correctly found that “the plain language of Section 2-156
mandates the forfeiture of all Retirement Annuity provided by the System where a
nexus exists between the felony conviction and the participant’s official duties,
regardless of whether the participant held distinct offices or positions with the
State.” (C. 287). Thus, because Ryan’s felonies were connected with his service
to the State while a member of the System, application of the plain language was
triggered and Ryan was entitled to “[n]one of the benefits” that otherwise would
(see, e.g., Shields, 204 Ill. 2d at 494), this canon of construction has its bounds
(Mattis v. State Univ. Ret. Sys., 212 Ill. 2d 58, 76 (2004)). If legislative intent is
obvious from the language used, “that intention must be made effective, and the
judiciary will not be warranted in giving the act a meaning not expressed in it.”
Robbins v. Bd. of Trustees of the Carbondale Police Pension Fund, 177 Ill. 2d 533,
545 (1997). Thus, the liberal construction canon does not prevail over the plain
The felony provision mandates the forfeiture of all benefits that Ryan
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earned as a “member,” meaning benefits that accrued from his service for the State
in any of the listed positions, not just those directly related to his criminal conduct.
The General Assembly did not limit application of the felony forfeiture provision
to any particular state office or position and did not make each listed elected office
forfeiture. Rather, as the Board concluded, based on the plain language of the
statute, it is clear that no benefits provided by the System are to be paid where a
nexus exists between the felony conviction and the member’s official duties,
regardless of the particular positions or offices that were held at the time of the
The Board correctly found that the termination of all of Ryan’s pension
benefits was consistent with other decisions that have examined whether a felony
The decision in Wells v. Bd. of Trustees of the Ill. Mun. Ret. Fund, 361 Ill.
App. 3d 716 (2nd Dist. 2005), appeal denied, 217 Ill. 2d 627 (2006), is directly on
point. There, Wells was employed by the Village of Antioch from 1974 through
director of the public works department; and village administrator. Id. at 718. He
was convicted of felonies relating to his position as village administrator, and the
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IMRF Board terminated all of his pension benefits. Id. at 718-19. The appellate
court affirmed the Board’s decision and rejected Wells’ argument that he should
have to forfeit only those benefits related to the village administrator position. Id.
at 721-23.
The Wells court concluded that the term “service as an employee” in section
7-219 of the Pension Code (40 ILCS 5/7-219) did not limit the application of the
statute to particular positions held within the scope of one’s service to a single
employer. 361 Ill. App. 3d at 721-23. According to the court, if the legislature
had intended the statute to operate as Wells suggested, “it could have easily written
‘related to one’s job’ or ‘related to one’s position[,]’” but it did not. Id. at 722.
Also, the court found that plaintiff’s view of the statute would be difficult to apply
where one employer is involved, because the employee may not have been in a
situation to commit the felony had it not been for the earlier positions he held with
that same employer. Id. Thus, the court concluded, “section 7-219 applies to
particular positions held by the employee during the employment.” Id. at 723.
The Wells rationale and result apply directly to Ryan’s situation. The
various offices that Ryan held over the years were all part of one pension fund, and
his service was all for one governmental entity, the State of Illinois. Like the
plaintiff in Wells, Ryan held various positions in the service of a single entity. As
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the Board correctly concluded in accordance with Wells, the key factor “rests on
Like the plaintiff in Wells, Ryan must forfeit all of the benefits he earned
as a member of the System, despite the fact that those benefits accrued from
service to a single governmental entity where a nexus exists between the felony
conviction and any of the public official’s duties to that entity, regardless of the
The Board also examined two additional cases – Taddeo v. Bd. of Trustees
of the Ill. Mun. Ret. Fund, 216 Ill. 2d 590 (2005), and Grever v. Bd. of Trustees of
the Ill. Mun. Ret. Fund, 353 Ill. App. 3d 263 (2nd Dist. 2004), appeal denied, 217
Ill. 2d 561 (2005) – but correctly concluded that they did not require a different
result.
separate municipalities forfeited his right to all of his pension benefits with both
employers when he was convicted of a felony relating to only one of the positions.
216 Ill. 2d at 595-600. Taddeo, a Proviso Township supervisor from 1969 through
1999 and mayor of Melrose Park from 1972 until 1997, was convicted of felonies
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based on crimes he committed as mayor during the period from 1988 to 1994. Id.
at 592.
This Court held that Taddeo forfeited the benefits that accrued when he was
employed by Melrose Park but not those related to his employment with Proviso
Township. Id. at 596-600. The decision was based on the fact that Taddeo
worked for “two separate participating municipalities” in the IMRF. Id. at 598.
Noting that sections 7-203 and 7-204 of the IMRF (40 ILCS 5/7-203, 7-204) treat
court stated that Taddeo “in essence, earned two completely separate pensions –
one for his service as township supervisor, and one for his service as mayor” of
Melrose Park. Taddeo, 216 Ill. 2d at 598. Because two employers were involved
and because there was no nexus between the criminal conduct and Taddeo’s
services as Proviso Township supervisor, he did not have to forfeit the pension
benefits associated with that employer. Id. The citizens of Proviso Township
suffered no breach of the public trust and Taddeo’s Proviso pension therefore
remained intact.
supervisor from 1981 to 2001; Lake County Board member from 1990 to 2000;
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and Forest Preserve District commissioner from 1990 to 2000. Id. at 264. He was
convicted of felonies relating solely to his township supervisor position. Id. The
appellate court concluded that Grever should forfeit only those pension benefits
of benefits earned only from that particular employment relationship.” Id. at 267.
Under the reasoning of Taddeo and Grever, pension benefits are not
forfeited to the extent they are earned in the service of a governmental employer
different from the one to which the officer’s felony convictions relate. Thus,
Wells held that a felony conviction results in a forfeiture of all benefits when the
employee is in service to one employer, regardless of the positions held. 361 Ill.
App. 3d at 722. And the Taddeo and Grever decisions also rested on the explicit
The Board’s decision is consistent with these cases because Ryan belonged
to one retirement system in service to the State of Illinois – the sole employer
participating in the System. Nothing in the portion of the Code governing the
System either implicitly or explicitly treats the various elected offices as separate
entities for the purpose of pension credits or payments or for forfeiture of benefits
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E. Public policy considerations support the Board’s termination of all of
Ryan’s pension benefits.
Not only is the Board’s decision consistent with the plain language of the
Code and relevant case law, but it also advances important public policy aims.
The felony forfeiture provisions “have been enacted pursuant to the legislature’s
power ‘to deter felonious conduct in public employment by affecting the pension
Bd. of the Policemen’s Annuity & Benefit Fund, 199 Ill. 2d 414, 418 (2002)
(quoting Stillo v. State Ret. Sys., 305 Ill. App. 3d 1003, 1007 (1st Dist. 1999)).
public servant convicted of breach of the trust the retirement benefits to which he
otherwise would have been entitled. Kerner v. State Employees’ Ret. Sys., 72 Ill.
service from government officials. Id. A forfeiture provision also protects public
funds and preserves respect for government service. See MacLean v. State Bd. of
Ret., 733 N.E.2d 1053, 1063 (Mass. 2000); see also 40 ILCS 5/2-124 (2008) (State
appropriates funds to contribute to the System); 40 ILCS 5/2-125 (2008) (State has
benefits is the only outcome consistent with these consistent with the policies
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Each time Ryan was elected to any of the various positions, he remained at
all times within the purview of the System and the applicable statutory provisions,
accepted not only the benefits of the System, but the mandate that his pension
would be lost if he were convicted of felonies related to his service to the State as a
member of the System. He cannot now complain that forfeiture is unjust or unfair.
No unfairness exists where the General Assembly gave notice to Ryan when he
was first elected to that body that future abuses of the public trust in the form of
State Remployees’ Ret. Bd., 626 A.2d 158, 160 (Pa. 1993).4 He began his second
term of office in 1982, retired in 1984, and then assumed status as a senior judge.
senior judge. The pension board terminated his entire pension as of the date of his
conviction, and he appealed. One of his arguments was that only the benefits that
4
The Pennsylvania statute reads: “Notwithstanding any other provision of
law, no public official or public employee . . . shall be entitled to receive any
retirement or other benefit or payment of any kind . . . if such public official or
public employee is convicted or pleads guilty or no defense to any crime related to
public office or public employment.” Pa. Cons. Stat. § 1313(1) (2007).
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The Pennsylvania Supreme Court rejected this argument for reasons that
The Shiomos court concluded that the forfeiture of all benefits was a just
Id. at 163.
This Court recognizes that a public official has an obligation to carry out
the public trust honorably and in good faith. People v. Barr, 83 Ill. 2d 191, 210
(1980). Ryan knew when he became a member of the System in 1972 that he
would forfeit his pension if he were convicted of a felony related to his service as a
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member. There surely is no unfairness in applying that long-standing provision to
The appellate court offered essentially two reasons for reversing the
Board’s decision. First, it went beyond the plain language and read a limitation on
the felony forfeiture provision into the phrase “for the period of service in such
office” in the definition of “member.” Second, the court rejected the Board’s
conclusion that its decision was consistent with Taddeo, Grever, and Wells. The
The court focused on the phrase “for the period of service in such office” in
the definition of “member” to conclude that Ryan must forfeit only those benefits
that accrued while he was Governor and Secretary of State, the positions he held
when he committed his crimes. Ryan, 388 Ill. App. 3d at 168. According to the
appellate court, this phrase narrows the scope of the word “member,” which in turn
As shown above, the Board’s decision was based on the plain language of
the felony forfeiture provision. The appellate court departed from that plain
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language by reading a limitation into the provision that the legislature did not
intend. Section 2-156 clearly states that none of the benefits shall be paid when a
felony conviction relates to, arises out of, or is connected with the person’s service
as a member. 40 ILCS 5/2-156 (2008). But nothing in section 2-156 or any other
provision of the Code limits the forfeiture to those specific offices held while the
crimes were committed. See Madison Two Assoc. v. Pappas, 227 Ill. 2d 474, 494
(2008) (court may not read into a law limitations not intended by legislature).
The court’s analysis also runs afoul of the principles announced by this
Court in Shields, which involved the meaning of the word “refund” in the context
felony conviction. 204 Ill. 2d at 492. In determining the amount of the refund, the
pension board looked to another section of the statute and determined that the
sum of annuity payments made prior to the conviction. Id. This Court rejected
that decision, based on statutory construction principles that the appellate court
ignored here.
reliance on any other statutory provision. Id. at 496-97. The Shields court would
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not presume that the legislature intended to limit the pension provision because it
Id. at 497.
consistent with the principles announced in Shields, but the appellate court’s
improperly limited the scope of that provision by looking to the meaning of the
phrase “for the period of service in such office” in the definition of “member.”
Even assuming for the sake of argument that the phrase “service as a
construing the phrase as a limitation on the felony forfeiture provision. The court
this State including persons who enter military service while a member of the
service in such office.” 40 ILCS 5/2-105 (2008). From there it looked to the
phrase “period of service in such office” and concluded that it “was drafted in the
singular and, thus, limits the scope to a specific office held.” Ryan, 388 Ill. App.
3d at 168. The court then stated that “[w]hen this definition is read alongside
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section 2-156, we find that the felony conviction ‘relating to or arising out of or in
connection with his or her service as a member’ must be linked to the ‘the [sic]
the court’s conclusion, the phrase “for the period of service in such office” simply
felony forfeiture provision. Indeed, section 2-110(A) states that “‘service’ means
the period beginning on the day a person first became a member, and ending on the
(2008). This definition makes clear that the General Assembly treats membership
in the System as an undivided whole, regardless of the various offices held, with
breaks in membership only for periods when the state official does not hold any
qualifying office.
total period of time for which the participant is elected as a member or officer,
even though he or she does not complete the term because of death, resignation,
under this Article for such entire period of office have been made by or on behalf
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phrase “for the period of service in such office” in the definition of “member”
simply defines eligibility and the period of time that is credited toward
membership in the System. It makes plain that a state elected official is a member
of the System for the entire term of his elected office, so long as the necessary
contributions are made. Thus, an elected official who leaves office early will
continue to be a “member” for the entire elected period, provided he makes the
necessary contributions. Accordingly, the phrase “for the period of service in such
office” defines the period of membership or eligibility in the System, but in no way
for the duration of their elected terms, regardless of whether they leave office
early, System members are unique among pension fund participants. In contrast,
(2008). And, most “employees” do not become members of SERS until they have
Because members of the System are officials elected to fill a specific term
of office, their membership is not defined by receipt of a salary, and they have no
qualifying period before they become members. The General Assembly has
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provided state elected officials the opportunity to remain members of the System,
even if they leave office early, so long as they make the necessary contributions for
the entire period of office. Because of this unique aspect of the System, as
compared to other pension funds, the legislature needed to insert the phrase “for
the period of service in such office” in the definition of the word “member.”
The appellate court’s attempt to ascribe a meaning to the phrase and read it
was not the legislative intent. Had the General Assembly wanted the phrase “for
the period of service in such office” to limit the felony forfeiture provision, as the
appellate court held, it would have added that language directly to the provision,
DuPage, 231 Ill. 2d at 604. And the history cannot be squared with the appellate
court’s decision here. The transfer of the constitutional offices from SERS to the
System in October 1975 had its origins in House Bill 2784, which eventually
became Public Act 79-959 (see infra p. 13, n.3). Senator Egan offered an
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highest paid officer of the General Assembly. Number
three, it provides for the transfer and validation of
credit for the officers elected and number four, it
provides for the termination of their participation in the
[SERS].
Senate, 79th Ill. Gen. Assem., 80th Leg. Day, p. 99 (June 25, 1975) (Sen. Egan).
Other statements reflected that the “real reason” the constitutional offices were
being transferred was to obtain a larger pension (Id., p. 103 (June 25, 1975) (Sen.
Smith)) because they “presently don’t have a plan that’s sufficient for them.” (Id.,
p. 116 (June 25, 1975) (Sen. Newhouse)). Although there was some resistance in
the Senate (e.g., “[I]f they want to join the Legislative Pension Plan they should
run for the Legislature.” (Id., p. 101 (June 25, 1975) (Sen. Savickas)); “What is the
need for this compromise? Do they not now have a pension system of their own?”
(Id., p. 105 (June 25, 1975) (Sen. Wooten)); “[I]f [SERS] is not good enough for
our officials, then, obviously, [SERS] is not [] good for the common employees.”
(Id., p. 116 (June 25, 1975) (Sen. Savickas))), the amendment passed (Senate, 79th
Ill. Gen. Assem., 81st Leg. Day, p. 314 (June 26, 1975).
When the bill returned to the House, Representative Telscer explained that
official may receive cannot be higher than the salary of the highest paid officer in
the System, and that . . . after two years as an officer, the officers have the option
. . . to pay in another two years to receive the four years credit[.]” House of
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Representatives, 79th Ill. Gen. Assem., 101st Leg. Day, p. 108 (June 28, 1975)
(Rep. Telcser). The House voted 124 to 4 in favor of the amendment. Id.
As the legislative discussions make clear, the reason for the transfer of the
constitutional officers from SERS to the System was to upgrade their pensions,
certainly not to protect them from application of the felony forfeiture provision.
The legislative debates not only show that the appellate court’s conclusion was
wrong, but they also point out the weakness in Ryan’s position. In arguments
made to the circuit court, Ryan found it significant that the constitutional officers
were moved from SERS to the System because that “suggests strongly that these
are separate and distinct offices and have to be treated as such.” (R. Vol 2, at 10).
But there was absolutely no mention of section 2-156 in the debates and no
suggestion that the transfer created separate memberships for purposes of limiting
the application of the felony forfeiture provision. If, as Ryan believed, the transfer
mentioned by someone during the debates on the bill. Yet there was never any
suggestion that the amendment had either that purpose or effect. Thus, given that
these debates establish that the appellate court erred in holding that the legislature
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2. The appellate court erred in finding that Taddeo and Grever
required reversal of the Board’s decision and that Wells was
distinguishable.
As previously shown, the Board correctly found that the termination of all
of Ryan’s pension benefits was not inconsistent with Taddeo, Grever, and Wells.
On the other hand, the appellate court determined that Taddeo and Grever dictated
reversal and that Wells was distinguishable. The appellate court erred.
The court stated that the Taddeo and Grever decisions mandated reversal of
the Board’s decision because those courts construed “the pension disqualification
statutes liberally in favor of the pensioner and only found disqualification of the
pension when a connection was found between the felony conviction and the
pensioner’s employment.” Ryan, 388 Ill. App. 3d at 167. The appellate court also
found that the Taddeo court merely “considered” the fact that the employee had
earned a pension from two separate municipalities and focused instead on the
On the contrary, the Taddeo decision was heavily influenced by the fact that
the plaintiff was employed by two separate municipalities and that municipalities
are treated as separate entities under the IMRF. 216 Ill. 2d at 598. The court
stated that section 7-203 of the IMRF provides that “‘separate reserves shall be
administer all benefits provided herein, and to segregate accurately the separate
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liabilities of each participating municipality and its instrumentalities, or of any
The court also recognized that section 7-204 of the IMRF provides that
are treated as separate entities, this Court found that Taddeo’s pension was
severable for purposes of the felony forfeiture provision. The Grever decision also
was influenced by the fact that the “individual earns benefits from several
The point of these cases is that, for the IMRF, since each municipality
contributes to the pension fund for its own employees, the breach of the public
trust and the forfeiture of benefits relate back to the individual contributing
municipality. For the System, contributions are made by only one entity – the State
(see 40 ILCS 5/2-124 (2008) (“The State shall make contributions to the
System[.]”)), and the official malfeasance and the resulting forfeiture relate to the
State as a whole. Through his felonious conduct while in service to the citizens of
Illinois, Ryan knowingly placed at risk all of the pension benefits he had earned
and to which he otherwise would have been entitled. Accordingly, because his
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service throughout his membership in the System was to one entity and not
multiple contributing employers like the plaintiffs in Taddeo and Grever, the State
should not have to provide him with any pension. The very people whose trust
Ryan betrayed for personal gain should not now be required to fund his retirement.
The appellate court below failed to recognize both the importance of the
statutory scheme to the reasoning in Taddeo and Grever and the significant
differences between the IMRF statute and the portion of the Code pertaining to the
System (or any other public pension system). As the Board correctly concluded,
its decision to terminate Ryan’s entire pension was consistent with Taddeo “in that
all pensions from the same employer, despite different positions held with that
employer and despite the misconduct in a single such position with that employer,
are forfeited.” (S.R. C. 289). Here, there was but one employer – the State of
Illinois – and, according to Taddeo, that is the relevant fact in applying the felony
forfeiture provision to all of the pension benefits. The Board’s decision represents
Regarding Wells, the appellate court found that the case was distinguishable
employee,’ [and] section 2-156 applies to ‘service as a member.’” Ryan, 353 Ill.
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pension rather than a pension fund “member” subject to a substantively identical
forfeiture provision.
This Court should not attach any significance to the use of different phrases
in the various pension forfeiture provisions beyond the General Assembly’s need
to use terms that best describe the shared characteristics of the members of each
fund. For example, in the IMRF and SERS felony forfeiture provisions,
“employee” is used to describe those who receive earnings as payment for the
one who “[r]eceives earnings as payment for the performance of personal services
“[a]ny person employed by a Department who receives salary for personal services
the Judges’ Retirement System applies to “service of a judge” (40 ILCS 5/18-163
(2008)), the provision relating to the Teachers’ Retirement System uses the phrase
System’s felony forfeiture section not to narrow the application of the provision,
but to best describe the participants, all of whom hold elected offices established
by the Illinois Constitution and, therefore, do not neatly fit within the term
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“employee.” See Ill. Const. arts. IV, V. In fact, unlike most other parts of the
Pension Code, that portion relating to the System does not use or define the words
“employer” or “employee” at all, and such terms in the context of the System
the legislature’s use of the term “member” to describe participants in the System,
Had the General Assembly intended to treat each of the member offices in
the System as a separate entity, it easily could have included such a limitation in
the statute, as it did in the IMRF. See 40 ILCS 5/7-204 (2008) (each municipality
“shall be treated as an independent unit within the fund”). It made no such express
or implied limitation. Reading the statute as a whole, which this Court must do
(see Ultsch v. Ill. Mun. Ret. Fund, 226 Ill. 2d 169, 181 (2007)), it is clear that the
period of service to the people of the Illinois during which the officeholder is
bound by both the System’s benefits and its obligations, including the felony
forfeiture provision.
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with his service as a member. Because Ryan’s felony convictions related to
conduct he committed while he was a member of the System in service to the State
of Illinois, he forfeited his entire pension. The appellate court’s decision in Ryan’s
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CONCLUSION
General Assembly Retirement System and the individual Members of the Board,
respectfully request that this Honorable Court affirm the Board’s decision
terminating all of George Ryan’s pension benefits based on his felony convictions
Respectfully submitted,
LISA MADIGAN
Attorney General
State of Illinois
MICHAEL A. SCODRO
Solicitor General
JAN E. HUGHES
Assistant Attorney General
100 W. Randolph St., 12th Floor
Chicago, Illinois 60601
(312) 814-2129
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CERTIFICATE OF COMPLIANCE
I certify that this brief conforms to the requirements of Rule 341(a) and (b).
The length of this brief, excluding the pages containing the Rule 341(d) cover, the
Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of
compliance, the certificate of service, and those matters to be appended to the brief
JAN E. HUGHES
Assistant Attorney General
APPENDIX
TABLE OF CONTENTS TO THE APPENDIX
2. Circuit Court Memorandum Opinion, entered May 31, 2007 . . A10 – A20
PROOF OF SERVICE
The undersigned, being first duly sworn upon oath, deposes and states that
three copies of the foregoing Brief of the Defendants-Appellants were served upon
the below-named party by depositing such copies in the United States mail at 100
Kyle P. De Jong
Winston & Strawn LLP
35 West Wacker Drive
Chicago, IL 60601
NOTARY PUBLIC
No. 108184
IN THE
SUPREME COURT OF ILLINOIS
PLEASE TAKE NOTICE that I filed the original and twenty copies of the Brief of the
Defendants-Appellants with the Clerk of the Supreme Court, Supreme Court Building, 200 E.
Capitol Ave., Springfield, Illinois, 62701, by depositing the same in the U.S. mail at 100 West
Randolph Street, Chicago, Illinois, with proper postage prepaid, before 5:00 p.m. on July 2,
2009. Three copies of that Brief are hereby served upon you.
LISA MADIGAN
Attorney General
State of Illinois
By:
JAN E. HUGHES
Assistant Attorney General
100 W. Randolph St., 12th Floor
Chicago, Illinois 60601
(312)-814-2129