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The People Ex Rel. Lisa Madigan v. Jon Burge

November 30, 2012

THE PEOPLE EX REL. LISA MADIGAN,
PLAINTIFF-APPELLANT,
v.
JON BURGE, IN HIS INDIVIDUAL CAPACITY, THE RETIREMENT BOARD OF THE POLICEMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, AND MICHAEL A. CONWAY, KENNETH A. HAUSER, MICHAEL J. LAZZARO, STEVEN J. LUX, JAMES P. MALONEY, STEPHANIE D. NEELY, GENE R. SAFFOLD, MICHAEL K. SHIELDS,
IN THEIR OFFICIAL CAPACITIES AS TRUSTEES OF THE POLICEMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO,
RITA M. NOVAK,
DEFENDANTS-APPELLEES. )



Appeal from the Attorney General State of Illinois, Circuit Court of Cook County. 11 CH 04366 Honorable Judge Presiding.

The opinion of the court was delivered by: Justice Hall

JUSTICE HALL delivered the judgment of the court, with opinion. Justice Gordon concurred in the judgment and opinion.

Justice Garcia specially concurred, with opinion.

OPINION

¶ 1 The Illinois Attorney General appeals from an order of the circuit court dismissing her complaint against defendants-appellees the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago, its board of trustees (Pension Board), and Jon Burge, a retired Chicago police officer. In the complaint, the Attorney General, acting on behalf of the People of the State of Illinois, sought declaratory and injunctive relief seeking to enjoin the Pension Board from making ongoing pension payments to Burge in light of his felony convictions. For the reasons that follow, we reverse and remand the matter to the circuit court for further proceedings.

¶ 2 Burge was a Chicago police officer from 1970 to 1993. During his tenure with the Chicago police department, Burge held the ranks of detective, sergeant, and eventually lieutenant, supervising detectives in the violent crime units in Area Two and Area Three. Burge is widely believed to have sanctioned and participated in the physical abuse and torture of arrestees in order to obtain confessions.

¶ 3 On June 28, 2010, following a jury trial, Burge was convicted of two counts of obstruction of justice in violation of 18 U.S.C. § 1512(c)(2), and one count of perjury in violation of 18 U.S.C. § 1621(1). The felony convictions were based upon charges brought by the federal government against Burge alleging that he gave false representations and answers to written interrogatories in civil litigation regarding his knowledge of or participation in the torture and abuse of suspects in his custody when he was employed by the Chicago police department. See United States v. Burge, No. 08 CR 846, 2011 WL 167230 (N.D. Ill. Jan. 19, 2011); United States v. Burge, No. 08 CR 846, 2011 WL 13471 (N.D. Ill. Jan. 3, 2011).

¶ 4 On January 21, 2011, Burge was sentenced to 54 months in prison. See Tillman v. Burge, 813 F. Supp. 2d 946, 955 (N.D. Ill. 2011). Burge began receiving pension benefits in 1997 and continues to receive pension benefits of approximately $3,000 per month.

¶ 5 The Pension Board subsequently held an evidentiary hearing to determine if section 5-227 of the Illinois Pension Code (Pension Code) (40 ILCS 5/5-227 (West 2010)) applied to cause Burge to forfeit his ongoing pension payments in light of his felony convictions. Section 5-227 of the Pension Code 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." 40 ILCS 5/5-227 (West 2010).

¶ 6 At the hearing, counsel for Burge argued that Burge's pension benefits were not forfeited under section 5-227 of the Pension Code because his felony convictions were not related to his conduct as a police officer but, rather, were related to giving false testimony in response to written interrogatories in a civil suit filed years after he retired from the Chicago police department. At the conclusion of the hearing, a Pension Board trustee made a motion to terminate Burge's monthly pension benefits on the ground that his felony convictions were connected to his service as a police officer as provided for in section 5-227 of the Pension Code. The motion was properly seconded and a vote was taken.

¶ 7 The Pension Board was comprised of eight trustees: four appointed by the City of Chicago and four elected by police officer participants in the pension fund. See 40 ILCS 5/5-178, 5-179 (West 2010). The Pension Board split 4 to 4 on the question as to whether Burge's felony convictions related to, arose out of, or were connected with his employment as a Chicago police officer. The four city-appointed trustees all voted to terminate the benefits, while the four officer-elected trustees all voted to continue the payments. The Pension Board concluded that the tie vote meant that "Burge was allowed to continue to receive his monthly pension benefits." The Pension Board issued its written administrative decision on January 31, 2011.

¶ 8 On February 7, 2011, the Attorney General filed the complaint at issue, alleging that the Pension Board's decision to allow Burge to continue to receive his monthly pension payments violated section 5-227 of the Pension Code. The Attorney General sought a preliminary and permanent injunction ordering the Pension Board to cease all pension payments to Burge, and an order requiring him to repay any benefits paid to him since his felony convictions. The Attorney General brought the complaint pursuant to section 1-115(b) of the Pension Code, which authorizes the Attorney General or a participant, beneficiary or fiduciary, to bring a civil action to enjoin any act or practice which violates any provision of the Pension Code. 40 ILCS 5/1-115(b) (West 2010).

¶ 9 In response, the Pension Board filed a motion to dismiss the complaint pursuant to sections 2-619(a)(1) and (a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(1), (a)(9) (West 2010)), alleging that the circuit court lacked subject matter jurisdiction over the complaint because the Pension Board's final administrative decision was reviewable only under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2008)), and that the Attorney General never filed an action to review the decision under that law.

¶ 10 Burge filed a motion to dismiss the complaint pursuant to section 2-619(a)(5) of the Code, along with supporting memorandum. He argued that the circuit court lacked subject matter jurisdiction over the complaint because the Pension Board's final administrative decision was reviewable only under the Administrative Review Law and that the Attorney General failed to file an action to review the decision within the 35-day limit of section 3-103 of the Administrative Review Law. This section of the Administrative Review Law provides in relevant part that "[e]very action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision." 735 ILCS 5/3-103 (West 2008).

¶ 11 On September 2, 2011, the circuit court issued a memorandum decision and order dismissing the Attorney General's complaint pursuant to section 2-619(a)(1) of the Code. The circuit court determined that section 1-115 of the Pension Code did not vest it with subject matter jurisdiction to rule on the merits of the Attorney General's complaint where section 5-189 of the Pension Code (40 ILCS 5/5-189 (West 2010))*fn1 vested the Board with exclusive original jurisdiction in all matters relating to or affecting the pension fund and section 5-228 of the Pension Code (40 ILCS ...


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