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Shanahan v. Policemen's Annuity & Benefit Fund

OPINION FILED OCTOBER 21, 1976.

ROBERT SHANAHAN ET AL., PLAINTIFFS-APPELLANTS,

v.

POLICEMEN'S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the Circuit Court of Cook County affirming a decision by the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (Board) denying the applications of plaintiffs Robert Shanahan and Howard Goodrich for pensions.

The facts are not in dispute. Plaintiffs are both former members of the Chicago Police Department. Plaintiff Shanahan entered service on February 11, 1946, and plaintiff Goodrich on April 14, 1950. During their service as policemen, in accordance with the provisions of the Policemen's Annuity and Benefit Fund Act (Ill. Rev. Stat. 1971, ch. 108 1/2, pars. 5-101 to 5-229) (hereinafter Policemen's Annuity Act), certain deductions were made from their salaries and transferred to the Benefit Fund; in addition, certain contributions were made by the city in behalf of future beneficiaries.

On July 5, 1972, both plaintiffs were convicted of the Federal felony offense of perjury for having given false testimony before a Federal grand jury. (18 U.S.C. § 1623 (1970).) However, at the time, perjury was a misdemeanor under Illinois law. *fn1 Both officers were sentenced to two years' probation and both immediately resigned from the police force and filed applications for pensions with the Board.

On September 25, 1972, the Board denied the claims of both plaintiffs, relying upon section 5-227 of the Policemen's Annuity Act (Ill. Rev. Stat. 1971, ch. 108 1/2, par. 5-227), which precludes payment to a person convicted of any felony relating to or arising out of or in connection with his service as a policeman. Plaintiffs filed a timely complaint pursuant to the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, pars. 264 et seq.). Following a hearing, the trial court entered an order affirming the decision of the Board from which plaintiffs appeal. The right of plaintiffs to a refund of their respective contributions to the fund is not disputed. They admit that the perjury convictions were "service connected."

On appeal plaintiffs contend (1) that the words "convicted of any felony" as used in section 5-227 of the Policemen's Annuity Act were not intended to include a conviction of perjury under Federal law for the purpose of the denial of pension benefits; (2) that the denial of plaintiffs' pension rights based on section 5-227 violates article XIII, section 5, of the Illinois Constitution; *fn2 (3) that the use of section 5-227 to deny plaintiffs' pensions for conviction of a felony in a Federal court violates the due process and equal protection provisions of both the United States Constitution (U.S. Const., amend. XIV) and the Illinois Constitution (Ill. Const. 1970, art. I, § 2); and (4) that the denial of plaintiffs' pensions violates article I, section 11, of the Illinois Constitution which provides in part: "No conviction shall work corruption of blood or forfeiture of estate."

The threshold issue before this court upon which plaintiffs' case rests is whether section 5-227 of the Policemen's Annuity Act is applicable to deny their pension claims. We hold that the section does not apply to policemen who entered service prior to July 11, 1955. Since both plaintiffs were members of the police department prior to that date, the section does not operate to bar the pension claims in the instant case. It is therefore unnecessary to reach the other contentions raised by plaintiffs.

When plaintiffs first became members of the Chicago Police Department the only provision relating to loss of pension benefits for reason of a felony conviction provided: "Whenever any person who shall have received any benefit under this Act shall be convicted of a felony * * * such policeman shall receive no further pension allowance or benefit under this Act." (Ill. Rev. Stat. 1953, ch. 24, par. 910.) (Emphasis added.)

Clearly, this provision applied only to officers who were convicted of a felony after they had already been receiving benefits of some kind. It was not until July 11, 1955 that a predecessor of section 5-227 was enacted, which provided in pertinent part:

"Notwithstanding any other provision of this Act, none of the benefits herein provided for 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.

All future entrants shall be deemed to have consented to the provisions of this Section as a condition of coverage." (Ill. Rev. Stat. 1955, ch. 24, par. 945a.) (Emphasis added.)

In 1961, a new Policemen's Annuity and Benefit Fund Act was enacted (Ill. Rev. Stat. 1961, ch. 24, pars. 10-7-1 to 10-7-72). It included section 10-7-3 (par. 10-7-3) which contained the above former provisions with minor changes in wording. Finally, in 1963, the Illinois Pension Code (Ill. Rev. Stat. 1963, ch. 108 1/2, pars. 1-101 to 23-103) was enacted, which specifically repealed numerous enactments which had covered the same subject matter (par. 23-102). Section 5-227 of the present Policemen's Annuity Act replaced section 10-7-3 of the 1961 Act and is the statutory provision at issue here. As finally amended in 1969, it provides:

"None 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.

None of the benefits provided for in this Article shall be paid to any person who is convicted of any felony while in ...


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