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02/24/94 ELIZABETH TONER v. RETIREMENT BOARD

February 24, 1994

ELIZABETH TONER, PLAINTIFF-APPELLEE,
v.
THE RETIREMENT BOARD OF THE POLICEMEN'S ANNUITY & BENEFIT FUND OF THE CITY OF CHICAGO, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MONICA D. REYNOLDS, JUDGE PRESIDING.

Released for Publication April 19, 1994.

Hoffman, Cahill, Johnson

The opinion of the court was delivered by: Hoffman

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Elizabeth Toner (plaintiff), brought this action in the circuit court of Cook County under the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3-101 et seq.) seeking review of the decision of the defendant, the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (Board), which fixed the pension benefits to which she became entitled upon the death of her husband, John C. Toner (Toner), a retired Chicago police officer. The circuit court reversed the decision of the Board and found that the plaintiff was entitled to an additional $27,955.87 in pension benefits for the period from August 17, 1987 through January 1, 1991. The Board has appealed and for the following reasons, we affirm the decision of the circuit court.

BACKGROUND

The facts giving rise to this action are not in dispute. Toner was born on December 9, 1922. He was appointed to the Chicago Police Department in 1947 and became a participant in the policemen's annuity and benefit fund. (See Ill. Rev. Stat. 1987, ch. 108 1/2, par. 5-101 et seq.) On December 9, 1985, while still employed as an active policeman by the City of Chicago, Toner attained age 63. Pursuant to the provisions of the Illinois Pension Code (the Pension Code) then in effect, Toner's "age and service annuity" benefits as a participant in the fund were fixed as of the date that he attained age 63 even though he continued to be employed as an active policeman. (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 5-128.) On April 30, 1986, Toner retired from the police department and began to receive annuity benefits from the fund; on August 17, 1987, Toner died leaving the plaintiff as his surviving spouse.

The plaintiff filed a claim with the Board for the widow's annuity under the Pension Code. (See Ill. Rev. Stat. 1987, ch. 108 1/2, par. 5-134 et seq.) After considering the plaintiff's claim, the Board applied the maximum widow's annuity under sections 5-136 and 5-148 of the code (Ill. Rev. Stat. 1987, ch. 108 1/2, pars. 5-136, 5-148), and awarded the plaintiff $500 per month.

The plaintiff sought administrative review of that decision in the circuit court contending that the Board incorrectly fixed the monthly annuity. The plaintiff contended that her annuity should have been calculated pursuant to section 5-136.1(c) of the Pension Code (Ill. Rev. Stat. 1987, ch. 108 1/2, par. 5-136.1(c)).

The circuit court agreed and found that the plaintiff's widow's annuity should have been calculated under section 5-136.1(c). The court reversed the Board's decision and determined that the Board owed the plaintiff $27,955.87 for the deficiency in the payments made to her from August 17, 1987, the date of Toner's death, through January 1, 1991, the effective date of a subsequent amendment to section 5-136.1 which required the Board to recalculate the plaintiff's annuity (see Ill. Rev. Stat. 1991, ch. 108 1/2, par. 5-136.1(e)). The Board now appeals.

We are called upon here to construe the meaning and applicability of section 5-136.1 of the Pension Code (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 5-136.1), as it relates to the plaintiff's particular circumstances. The relevant portion of the statute became effective January 1, 1986, and reads as follows:

"(a) Notwithstanding the other provisions of this Article, the widow of a policeman who retires on or after January 1, 1986, and subsequently dies while receiving a retirement annuity * * * may in lieu of any other widow's annuity have the amount of widow's annuity calculated in accordance with this Section.

(c) If the deceased policeman was receiving a retirement annuity at the time of his death, the widow's annuity shall be equal to 40% of the policeman's annuity at the time of the policeman's death. This annuity shall not be limited to the maximum dollar amount in effect for widow's annuities at the time of the policeman's death or retirement." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 108 1/2, pars. 5-136.1(a), (c).

Section 5-136.1(c) was amended again in 1987 to increase the widow's annuity from 40% of the policeman's annuity at the time of his death to 50% of that amount after December 31, 1987. (Ill. Rev. Stat. 1987, ch. 108 1/2, par. 5-136.1.) However, because the Board does not contest the circuit court's numerical calculations, we focus our analysis on whether the 1985 ...


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