Opinion filed August 27, 2015 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2015
GEORGE VRAKAS, DAVID J. ADAMS, ) Appeal from the Circuit Court RONALD ADAMS, ROSE ALBANO, ) of the 12th Judicial Circuit, DOREICE ALEXANDER, ) Will County, Illinois. APRIL ARAMBASICH, ROBERT D. BAIKIE, ) KAREN M. BAKER, TERENCE A. BERGIN, ) CHERYL L. BEVERLY, JANETTE E. BISHOP,) PATRICIA JEAN BLACKWELL, ) JOSEPH DEE BRANNON, RICHARD BREEN,) STEVEN G. BROOKS, LARRY B. BROWN, ) ANDRE CARTER, LATASHA CHANDLER, ) BRYAN E. CHESTER, ) DEBORAH COLEMAN, JOHN M. DISERA, ) RICHARD L. EARTLY, ) DANIEL J. FLANNERY, JAMES J. FRANC, ) JULIUS J. GAMBINO, ) BARBARA S. GORDON, ) MARY BRIDGET GRAHAM, ) JOSEPH M. GROZIK, MICHAEL HARKINS, ) RONALD HICKS, RAYMOND E. HOCH, ) JEFF JOHNSON, PATRICK JONES, ) CHARLES E KAVANAUGH JR., ) ADRIENNE D. KNAZZE, ) KATHERINE L. KNICKREHM, ) GARY D. KOCA, RICKY KURTH, ) PAMELA R. LOGGINS, DANIEL LOPEZ, ) JAMES R. LUNA JR., GINA MAROTTA, ) ROY MARTIN, JAMES DAVID MAXWELL, ) SHANNON L. MCALYNN, ) MICHELLE M. MOFFETT, ) JOHN T. NEWBERRY, MICHAEL J. OLINO, ) RANDY L. OWENS, RENAE PARKER, ) KIMBERLY PASSEHL, SONI B. PEARSON, )
TIMOTHY J. QUIGLEY, DALE SANTERELLI,) JANETTE SHIPERAK, ) GREGORY A. SICINSKI, ) KEVIN M. SPENCER, STUART K. TAYLOR, ) LISA TICHY, LOUAAI AHMAD TOMALIEH,) TRESSIE VANCE, SIRVEEA WARD, ) SCOTT A. WEIFFENBACH, ) MICHAEL A. WHITE, ) Appeal No. 3-14-0424 CHRISTOPHER WILHELMI, ) Circuit No. 09-L-960 MARY ZARAGOZA ) ) Plaintiffs-Appellants, ) ) v. ) ) COUNTY OF WILL, ILLINOIS; WILL ) COUNTY SHERIFF'S OFFICE; PAUL ) KAUPAS, Will County Sheriff, ) The Honorable ) John Anderson, Defendants-Appellees. ) Judge, presiding. ) _____________________________________________________________________________
PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Carter and O'Brien concurred in the judgment and opinion. _____________________________________________________________________________
OPINION
¶1 The plaintiffs, 66 individuals employed full-time as correctional deputies, sergeants, and
lieutenants, filed a civil action against the defendants, Will County, the Will County sheriff's
office, and Will County sheriff Paul J. Kaupas (collectively, Will County), seeking compensation
for an alleged impairment of pension benefits. The circuit court granted summary judgment in
favor of Will County, and the plaintiffs appealed. On appeal, the plaintiffs assert numerous
reasons why the circuit court erred when it granted summary judgment in favor of Will County,
including their belief that they have been statutorily qualified for the pension benefits since the
dates of their hires. We affirm in part, reverse in part, and remand with directions. ¶2 FACTS *3 ¶3 On November 10, 2009, the plaintiffs sued Will County1 for an alleged impairment of
pension benefits. The complaint alleged, inter alia, that some of the plaintiffs were reclassified
into the Sheriff's Law Enforcement Employees pension plan (SLEP) (40 ILCS 5/7-142.1 (West
2008)) on December 1, 2005, and some were reclassified into SLEP on December 1, 2006, but
that all of the plaintiffs should have been accruing SLEP benefits prior to those dates. Counts I
and II of the complaint alleged a pecuniary loss and sought, inter alia, an order requiring Will
County to purchase pension credits for the plaintiffs. Count III of the complaint alleged that the
pension contributions were "wages" under the Attorneys Fees in Wage Actions Act (705 ILCS
225/1 et seq. (West 2008)) such that the plaintiffs were also entitled to attorney fees. ¶4 During pretrial matters, the parties filed factual stipulations with the circuit court.
Among the stipulations were agreements that the plaintiffs were considered "sworn personnel"
by the Merit Commission of the sheriff's office, that the Merit Commission had jurisdiction over
the plaintiffs, and that the duties of the plaintiffs substantially overlapped with SLEP-eligible
deputies. ¶5 Among the numerous documents filed with the circuit court were copies of certain
collective bargaining agreements (CBAs). Under these CBAs, some of the plaintiffs were
included in SLEP as of December 1, 2005, and some plaintiffs were included in SLEP as of
December 1 2006. In exchange for their inclusion into SLEP, the plaintiffs (through their union
representatives) agreed to a reduction in wage increases for a certain period of time. ¶6 Also filed with the circuit court were copies of all of the plaintiffs' written oaths, which
were executed on either December 1, 2005, or December 1, 2006. An affidavit from Kaupas
1 The original complaint named 58 plaintiffs, but amendments to the complaint increased the total to 66 and
also added the Illinois Municipal Retirement Fund as a defendant.
stated that he had been the Will County sheriff since 2002, and that he administered the deputy
oath to all of the plaintiffs on or around either December 1, 2005, or December 1, 2006.
However, his affidavit also stated the following: "[t]here were several Plaintiffs whom had,
unbeknownst to me, been appointed and sworn as deputies by prior Sheriffs, but whom I had no
knowledge sufficient to form a belief that they had previously become eligible for membership in
the SLEP pension fund." Included in the record are copies of deputy oaths for the following four
plaintiffs: Ronald D. Adams (June 30, 1986), Terence A. Bergin (October 31, 2001), Deborah
Coleman (December 21, 1987), and Christopher Wilhelmi (January 14, 1985). ¶7 During pretrial matters, in December 2013, Will County filed a motion for summary
judgment, which it revised in March 2014. In support of its motion, Will County argued that: (1)
the Illinois Constitution did not per se create any enforceable contractual right for the plaintiffs;
(2) under the applicable statutory provisions of the Illinois Pension Code (40 ILCS 5/1-101 et
seq. (West 2008)) and the Counties Code (55 ILCS 5/1-1001 et seq. (West 2008)), the plaintiffs
did not meet the requirements of SLEP until December 1, 2005, or December 1, 2006, and
therefore they have no contractual claim for SLEP benefits prior to those dates; (3) certain CBAs
controlled the plaintiffs' SLEP rights and precluded the claims the plaintiffs were making; (4) the
plaintiffs never made SLEP contributions prior to the 2005 and 2006 dates, so they had no
constitutional right to SLEP benefits before those dates; (5) by entering into the CBAs, the
plaintiffs waived any right to SLEP benefits before those 2005 and 2006 dates; (6) the plaintiffs'
claims were barred by either laches or applicable statutes of limitation, or both; (7) granting the
plaintiffs' requested relief would constitute amendments of the SLEP law and the Counties Code,
which was a violation of separation of powers; and (8) count III should be dismissed because
Will County never failed or refused to pay any "wages," which they were under no obligation to
do anyway. ¶8 Will County appended numerous documents to its motion for summary judgment. Two
of these documents were: (1) a 1973 letter from the executive director of the Illinois Municipal
Retirement Fund (IMRF) relating to membership in the then-newly created SLEP fund; and (2)
what appeared to be a portion of a handbook on IMRF sheriff's law enforcement personnel,
which was last revised in 1994, that detailed SLEP coverage requirements (collectively, the
IMRF documents). An affidavit was submitted by IMRF's general counsel stating that the IMRF
documents were submitted to the plaintiffs on December 3, 2013. ¶9 On May 6, 2014, the circuit court heard arguments on Will County's motion for summary
judgment, as well as a cross-motion for summary judgment orally made by the plaintiffs. At the
outset of the hearing, the court stated:
"If I grant the motion, it will probably just be a one-page
order because, if you appeal it, it is de novo review. It really
doesn't matter why I make the decision that I do. The Appellate
Court is not going to care, I don't think, because it is de novo
review." 2
2 The trial court is quite simply wrong. While it is true that our review of a motion granting summary
judgment is de novo, it is not true that "[t]he Appellate Court is not going to care" how the trial court reached its
decision. This case was filed in November 2009 and the written decision issued in May 2014. The trial court
presided over the litigation for 4½ years and its reasoning for awarding summary judgment, while not determinative,
could add to this court's understanding of the issues. In addition, the parties were left without a clear explanation of
why they had won or lost. Significantly, the parties were deprived of a focus for their arguments on appeal. They
At the close of the hearing, the court took the matter under advisement and
reiterated:
"As I said, I am going to issue a ruling by mail. If I grant
summary judgment, it is just going to be a one-page order. Again,
if there is an appeal, the standard of review on appeal, on a
summary judgment motion, it is de novo. So it really isn't going to
much matter I think my reasons for granting summary judgment."
On May 12, 2014, the circuit court issued a written decision in which it granted Will County's
motion for summary judgment and denied the plaintiffs' cross-motion for summary judgment.
With regard to counts I and II of the complaint, the court stated that it was granting summary
judgment "for the reasons identified" in Will County's summary judgment motion. With regard
to count III, the court construed Will County's argument for dismissal as a request for summary
judgment. The plaintiffs appealed. ¶ 10 ANALYSIS ¶ 11 On appeal, the plaintiffs assert numerous reasons why the circuit court erred when it
granted summary judgment in favor of Will County; in essence, their brief reads like a reply to
Will County's summary judgment motion. Included in the plaintiffs' brief is their belief that they
statutorily qualified for SLEP benefits before the December 2005 and 2006 dates of their formal
inclusion into SLEP. ¶ 12 Summary judgment is appropriate "if the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
were instead forced to submit briefs that were essentially mirrors of their summary judgment memoranda filed in the
trial court.
that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West
2008). The materials reviewed when determining whether summary judgment should be granted
are to be viewed in the light most favorable to the nonmoving party. Clark Investments, Inc. v.
Airstream, Inc., 399 Ill. App. 3d 209, 212-13 (2010). We review a circuit court's grant of
summary judgment de novo. Hall v. Henn, 208 Ill. 2d 325, 328 (2003). ¶ 13 Article 7 of the Pension Code provides for the IMRF, which serves as the pension system
for municipal employees, including county employees. 40 ILCS 5/7-101 to 7-224 (West 2008).
General pension benefits are contained in section 7-142 (40 ILCS 5/7-142 (West 2008)), and
increased pension benefits for "[s]heriff's law enforcement employees" are contained in section
7-142.1 (40 ILCS 5/7-142.1 (West 2008)). A "sheriff's law enforcement employee" is defined, in
relevant part, as "[a] county sheriff and all deputies, other than special deputies, employed on a
full time basis in the office of the sheriff." 40 ILCS 5/7-109.3(a)(1) (West 2008). ¶ 14 Certain provisions of the Counties Code also operate to further define sheriff's law
enforcement employees. Pursuant to section 3-6008 of the Counties Code, "[e]ach sheriff may
appoint one or more deputies, not exceeding the number allowed by the county board of his or
her county." 55 ILCS 5/3-6008 (West 2008). The Counties Code further requires that such
appointments be in writing (55 ILCS 5/3-6009 (West 2008)), and that "[e]ach deputy shall,
before entering upon the duties of his or her office, take and subscribe an oath or affirmation, in
like form as is required of sheriffs, which shall be filed in the office of the county clerk" (55
ILCS 5/3-6010 (West 2008)). Sheriffs are required to take a specific oath: "[h]e or she shall also,
before entering upon the duties of his or her office, take and subscribe the oath or affirmation
prescribed by Section 3 of Article XIII of the Constitution, which shall be filed in the office of
the county clerk of his or her county." 55 ILCS 5/3-6004 (West 2008); Ill. Const. 1970, I. C. 13,
§ 3 (requiring the following oath: " 'I do solemnly swear (affirm) that I will support the
Constitution of the United States, and the Constitution of the State of Illinois, and that I will
faithfully discharge the duties of the office of ................ to the best of my ability' "). ¶ 15 This oath was taken and signed by all 66 plaintiffs on either December 1, 2005 or
December 1, 2006. The record also reflects at least four of the plaintiffs met the requirements to
be included in SLEP prior to the 2005 and 2006 dates. The appropriate oaths had been taken by
the following four plaintiffs prior to the 2005 and 2006 dates: Ronald D. Adams (June 30, 1986),
Terence A. Bergin (October 31, 2001), Deborah Coleman (December 21, 1987), and Christopher
Wilhelmi (January 14, 1985). Because these four plaintiffs met the requirements to be included
in SLEP prior to the 2005 and 2006 dates, we hold that summary judgment was improperly
granted against them. ¶ 16 We also note that Will County states in its brief that six of the plaintiffs had in fact been
sworn in as deputies by prior sheriffs. However, neither Will County nor the plaintiffs identified
these other two plaintiffs. Assuming there are two other plaintiffs who took the appropriate oath
prior to the 2005 and 2006 dates, we hold that summary judgment was improperly granted
against them. ¶ 17 The record reflects that the rest of the plaintiffs did not meet the oath requirement until
they were sworn in as deputies by the sheriff on December 1, 2005, and December 1, 2006. See
Roche v. County of Lake, 205 Ill. App. 3d 102, 114-15 (1990) (noting the specific oath
requirement and holding that the plaintiffs in that case were "entitled to participate in the sheriff's
pension plan from the time they were employed full-time by the sheriff's office and sworn as
deputies"). While we acknowledge that the evidence indicated that these plaintiffs performed
many of the same work duties as sworn deputies, that fact is not enough to supersede the
statutory oath requirement. Because these plaintiffs did not meet the requirements to be included
in SLEP until the 2005 and 2006 dates, we hold that the circuit court properly granted summary
judgment against them and in favor of Will County. 3 ¶ 18 On remand, we direct the circuit court to conduct further proceedings for the four
plaintiffs who in fact qualified for inclusion into SLEP prior to the 2005 and 2006 dates, as well
as for identification of the two other plaintiffs who may have taken the appropriate oath before
the 2005 and 2006 dates. For these four to six plaintiffs, summary judgment was improperly
granted. Further, we believe the record on appeal does not contain enough information for us to
determine whether there is any reasonable basis on which those four to six plaintiffs could be
prohibited from recovery despite their qualifications for inclusion into SLEP prior to the 2005
and 2006 dates. Accordingly, the parties should be afforded the opportunity to litigate those
questions before the circuit court on remand, including whether the plaintiffs are entitled to
attorney fees for those four to six plaintiffs in connection with their claim in count III of the
complaint. ¶ 19 Lastly, we acknowledge that the plaintiffs have also argued on appeal that Will County's
partial reliance on the IMRF documents in support of its arguments was misplaced. First, the
plaintiffs contend that the circuit court should have stricken these documents pursuant to
Supreme Court Rule 219(c) because they were not produced until Will County filed its original
motion for summary judgment in December 2013. However, the plaintiffs have not developed
this argument in their brief and have therefore forfeited this first contention. Ill. S. Ct. R.
341(h)(7) (eff. July 1, 2008). Moreover, even without the forfeiture, there is nothing in the
3 We also note that there is nothing in the record to indicate that the sheriff intentionally withheld the oaths
from these plaintiffs or otherwise acted to exclude eligible individuals from receiving SLEP benefits.
record to suggest that Will County committed any discovery violation with regard to the
disclosure of the IMRF documents. ¶ 20 Second, the plaintiffs contend that IMRF documents were not adopted in compliance
with the provisions of the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West
2008)) and therefore should carry no weight or require any deference. In response, Will County
argues that the IMRF is not a body politic and corporate of the State and is not subject to the
Administrative Procedure Act (see 5 ILCS 100/1-20 (West); 40 ILCS 5/22-402 (West 2008);
Guse v. Board of Trustees of the Public School Teachers' Pension & Retirement Fund of
Chicago, 203 Ill. App. 3d, 111, 114-20 (1990) (discussing whether the defendant was a body
politic and corporate of the State)). However, the parties' arguments in this regard are conclusory
and undeveloped. In addition, there is nothing in the record to indicate that the circuit court
relied on these documents in arriving at its decision—a fact alluded to by the plaintiffs in their
brief on appeal. Further, given the circuit court's decision not to rule on any specific arguments
made by either parties, we do not know whether the court considered these documents or relied
upon them, or whether the court agreed with the plaintiffs that the documents could not be
considered. On remand, should Will County again use the IMRF documents in support of its
argument against SLEP benefits for the four to six plaintiffs, the parties should again be afforded
the opportunity to argue their respective positions on the IMRF documents. ¶ 21 CONCLUSION ¶ 22 The judgment of the circuit court of Will County is affirmed in part and reversed in part,
and the cause is remanded with directions. ¶ 23 Affirmed in part and reversed in part. ¶ 24 Cause remanded with directions.