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Robert Lopez Cepero v. Illinois State Board of Investment

March 5, 2013

ROBERT LOPEZ CEPERO,
PLAINTIFF-APPELLANT,
v.
ILLINOIS STATE BOARD OF INVESTMENT, AN ADMINISTRATIVE AGENCY OF THE STATE OF ILLINOIS;
WILLIAM R. ATWOOD, EXECUTIVE DIRECTOR OF THE ILLINOIS STATE BOARD OF INVESTMENT;
KATHERINE A. SPINATO, DEPUTY DIRECTOR OF THE ILLINOIS STATE BOARD OF INVESTMENT; JOHN
W. CASEY, FRED MONTGOMERY, THOMAS E. HOFFMAN, AND MICHELE BUSH, MEMBERS OF THE EXECUTIVE COMMITTEE OF THE ILLINOIS STATE BOARD OF INVESTMENT; LINSEY SCHOEMEL, HEARING OFFICER OF THE ILLINOIS STATE BOARD OF INVESTMENT; THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES, AN ADMINISTRATIVE AGENCY OF THE STATE OF ILLINOIS; JAMES P. SLEDGE, DIRECTOR OF THE DEPARTMENT OF CENTRAL ) MANAGEMENT SERVICES; KIM BLOCK, ASSISTANT DIVISION MANAGER DEFERRED COMPENSATION STAFF OF THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES; AND JASON )MUSGRAVE, EXECUTIVE SECRETARY DEFERRED COMPENSATION HARDSHIP COMMITTEE OF THE DEPARTMENT OF CENTRAL ) MANAGEMENT SERVICES, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 11 CH 20189 Honorable Rita Mary Novak, Judge Presiding.

The opinion of the court was delivered by: Justice Simon

JUSTICE SIMON delivered the judgment of the court, with opinion. Harris, P.J., and Quinn, J., concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Robert Cepero appeals from an order of the circuit court of Cook County affirming the decision of the Illinois State Board of Investment (Board) to deny his request for a hardship withdrawal from his deferred compensation account. On appeal, plaintiff contends that the denials of his hardship withdrawal request by the Board and the Deferred Compensation Hardship Committee (Committee) are clearly erroneous in light of overwhelming evidence that he was experiencing a financial hardship as the consequence of an unforeseeable emergency at the time. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On January 12, 2011, plaintiff filed a hardship withdrawal request for the balance of his deferred compensation account, totaling $104,007.82, due to an unforeseeable emergency. Plaintiff asserted that his wife, Elizabeth, was pregnant with triplets as a result of a successful in vitro fertilization (IVF) and had reached her twenty-second week of pregnancy. Due to the medical complications of such a pregnancy, Elizabeth was required to go on unpaid medical leave no later than January 20, 2011, and likely could not return to work until December 19, 2011, resulting in $113,972.91 in lost wages. Plaintiff maintained that the triplet pregnancy was unforeseeable because he and Elizabeth had a long history of infertility and repeated failed IVF attempts over the past decade and that the pregnancy caused a financial emergency due to the combination of Elizabeth's lost wages and the additional costs of caring for the triplets, including necessary 24-hour child care assistance and modifications to plaintiff's loft condominium. On February 3, 2011, the Committee denied plaintiff's request for a hardship distribution because Elizabeth had not yet lost any income and requested that plaintiff notify it when Elizabeth began her leave of absence.

¶ 4 On February 24, 2011, plaintiff filed a hardship withdrawal request for the balance of his deferred compensation account for a down payment on a home. Plaintiff asserted that the purchase of the home was necessitated by the impending birth of the triplets because his current condominium had an open floor plan and only one bedroom with four walls, the condo could not be modified to include a second bedroom with four walls, his request to construct a temporary bedroom had been rejected by the condo association, and the size of his family would exceed the design capacity of the condo upon the birth of the triplets. Plaintiff maintained that he did not have sufficient funds to purchase a home and that the need to buy a new home was caused by unforeseeable circumstances arising from events beyond his control. Plaintiff also maintained that the maximum occupancy of his condominium was three and that no reasonable person could have anticipated the birth of triplets because the odds against such a pregnancy were 784-to-1 and it was unlikely that the IVF attempt would be successful where multiple prior IVF attempts had failed. On March 17, 2011, the Committee denied plaintiff's request for a hardship distribution, finding that his situation did not meet the criteria for an unforeseeable emergency and noting that the purchase of a home did not qualify as such an emergency.

¶ 5 Plaintiff appealed that decision to the Board and alleged that the Committee incorrectly determined that the purchase of a home does not qualify as an unforeseeable emergency and that such an emergency existed in this case where Elizabeth's pregnancy with triplets and plaintiff's inability to modify his condominium to accommodate the triplets were unforeseeable. On April 26, 2011, a hearing was conducted on plaintiff's appeal, and the hearing officer then prepared a report of its findings of fact based on plaintiff's testimony and other evidence presented at the hearing.

¶ 6 In that report, the hearing officer related that Elizabeth gave birth to premature triplets in April 2011, the children were in the process of being released from the hospital, and Elizabeth had been diagnosed with a heart condition that limited her mobility and required the hiring of a nanny, which would cost about $4,000 per month. Plaintiff lived with Elizabeth and their four year-old daughter in a condominium, which had an open floor plan and contained one bedroom with four walls and a lofted master bedroom. Plaintiff put his residence on the market in December 2010 in anticipation of the birth of the triplets, but was unable to secure a purchaser or renter for the unit. Plaintiff retained an architect to modify the condominium to accommodate the triplets, but on January 28, 2011, the architect told plaintiff that he could not design such a modification in compliance with the Chicago building code. Plaintiff sought permission from the condo association to construct a temporary bedroom in his unit, but on February 18, 2011, that request was denied. Plaintiff contacted his current mortgage provider and learned that he would likely be required to provide a lender with at least 25% of the purchase price of a new home as a down payment. Plaintiff was unable to rent suitable housing because he did not have access to sufficient funds absent the rental or sale of his current residence and the health risks associated with premature babies required that he reside near Northwestern Hospital and avoid subjecting the triplets to multiple moves.

¶ 7 On May 9, 2011, the Board denied plaintiff's request for a hardship withdrawal to purchase a home, finding that while certain circumstances may warrant a distribution to purchase a home, this case did not constitute an unforeseeable emergency. The Board found that it was not unforeseeable that an IVF would result in multiple pregnancies and that although plaintiff had experienced many failed IVF attempts in the past, the use of IVF and the resulting pregnancy were not beyond plaintiff's control. The Board also found that Elizabeth's medical condition constituted an unforeseeable emergency, but determined that a distribution could not be granted "until either a loss of income or unreimbursed medical expense is incurred."

¶ 8 On June 26, 2011, plaintiff filed a petition for a writ of certiorari with the circuit court alleging that the Board's decision was against the manifest weight of the evidence and contrary to fact and law and asking for judgment in his favor. On February 16, 2012, the court conducted a hearing on the petition and affirmed the Board's decision, finding that it was not unforeseeable that an IVF might result in a pregnancy with triplets and that the addition of even a single child to plaintiff's residence would have caused difficulty for plaintiff's family due to the small size of his condominium.

¶ 9 ANALYSIS

ΒΆ 10 On appeal, plaintiff contends that the decisions of the Board and the Committee to deny his hardship withdrawal request are clearly erroneous in light of overwhelming evidence that he was experiencing a severe financial hardship as the consequence of an unforeseeable emergency at the time of his request. The standards of review under a common law writ of certiorari are essentially the same as those under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)). Hanrahan v. Williams, 174 Ill. 2d 268, 272 (1996). On administrative review, an appellate court reviews the final decision of the administrative agency, and not the decision of the circuit court. Nichols v. Chicago Transit Authority Hardship Committee, 338 Ill. App. 3d 829, 831 (2003). The applicable standard of review to apply on review of ...


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