please the court my name is keith carlson and one of the attorneys that represents the result police pension board in this matter essentially the issue here is to determine what the meaning of section five slash three desh one one two a of the illinois pension code means we assert that it means that surviving spouses disabled children minor children dependent parents receive cost of living adjustments in their survivor pensions it's important to note is this court has held for a long time that pension statutes are to be liberally construed in favor of the beneficiaries that are to be benefited by the statutes in this case the beneficiaries are surviving spouses of dead police officers have not defined a term or process is the decisions of federal courts specifically in a ressa federal courts are useful guide of interpreting the illinois law when it is comparable the term pension is and gave us term at best as a quote from a northern district of illinois case one hundred fifty five a few years before this portion of the pension code was enacted and it's heard versus illinois bell now when interpret it in the pension code again we are to look to reciprocal similar provisions and when dealing with whether or not the term pension or pension benefits includes colas almost uniformly the seventh circuit has held that inherent in pension benefits are cola in the case of hickey versus chicago truck drivers helpers and warehouse workers the seventh circuit wrote cola is an essential element of the normal retirement benefit the call it ensures that the retirement benefits will not diminish in real value over time  provides the additional retirement income each month that is necessary to maintain the value of the retirement benefits continuing but he co wrote the cola was inseparably tied so the monthly benefit is a means of maintaining the real value actually appealing about saying that this house should be in the same position as the officer and that would include cold but if indeed the statutes ambiguous and we look through other areas of the pension code were they specifically provided or all those would be you know one aid that we could use and if we look at one one four point one and i admit it applies only to a neural classes all that into our analysis of what the legislature meant as well just how much i think that's an excellent question three point one three one one four point one d i think is the specific portion you're talking about it was addressed in opposing the opponents brief i think what they're talking about there is exactly he says a very narrow class of people but actually i think that states respectfully the exact opposite of what you're saying that when the legislature means to exclude cost of living adjustments it specifically will write that which is exactly what it did and three point one one four point one d so what we're serving is that if it were to say that that surviving spouses would not be entitled to cost of living adjustments it would specifically state that makes it a better question because if you look through a pension code the legislature very clearly provides for goals for surviving spouses and i'm sure we're going to hear from opposing counsel that when it comes to provide very easy to put it in there will be true if you were to accept or think of the notion of the pension code that was written as one hamas genus unit that was not separately negotiated argued for amended in totally separate and discreet manner article three article four and articles five and six which is the downstate police and fire and the chicago police and fire have been treated almost as its own discrete section of the pension code and to try to compare it to teachers pensions highway workers pensions and other public employee pensions doesn't seem to really meant make a lot of sense because you're kind of comparing apples and oranges in addition to that i think that because in certain circumstances the legislature has chosen to specifically exclude cost of living adjustments in some circumstances and more expressly than they may have in this circumstance grant cost of living adjustments that actually cuts in favor of the notion that it's ambiguous and then again we go back to these in this course just as common actually i would assert that with three with regard to the use of the term generous it's also important not the police officers and firefighters in illinois pay a higher percentage than any other municipal employees except for i believe the chicago teachers employees so that's also part of the reason that those surviving spouses of police officers are getting benefits that have been paid more for by employees than other municipal or state employees if any part of it and you and he were indicated to percentage that's devised by the pension scheme that says that each officer will contribute a certain amount i believe it's nine point one percent or nine point nine one percent and with that amount it does not say that certain amount is for spousal benefits certain amount is for dependent children certain amount is for handicapped children certain amount is for dependent parents it doesn't break down that way what it states is that to be able to be entitled to the benefits under the under the pension statute but they must contribute that amount so you know there is no specific separate contribution where if your married you have to contribute a larger amount if that was your question i'm sorry it was ok to follow up on chief justice this gerald question are there  pension funds that were mentioned by as it were the statute as indicated contributions for spouses oh i don't know to tell you the truth i only work on article three an article for fun so my knowledge of the teachers case but the reason may have been and i'm only speculating i read it wasn't in the legislature at the time i don't i'm not familiar with the transcripts of committee reports or anything like that but my understanding may be that it may be to encourage disabled pensioners to then convert to a traditional retirement pension would be one reason that they may have done that  definition that used the term fixed however if you look at the webster's two thousand and three edition it's refers to a pension as a regular payment function waggles as a periodical allowance black's law from one nine hundred ninety which is also the definition  was relied upon in defining the term pension in the in re the marriage of david which states that a retirement benefit paid regularly normally monthly with the amount of such base generally on a length of employment and amount of wages and salary of the pension if the legislature were to want to make this clear it would have used the term fixed it would have stated that the sum payable to the pensioner is fix it didn't choose to do that there are many different terms for your definitions of the word pension and again i don't think that a court in one nine hundred fifty five was being unreasonable when it said at best the term pension is ambiguous we  that i don't believe the part of financial and professional regulation division of insurance or at the time the department of insurance ever issued a formal advisory opinion in this case although we have is iraq's of a newsletter we have no idea who wrote that newsletter we have no idea if it was an attorney we have no idea what the status was we know that was in a division of insurance newsletter however we do not have anything that indicates that this was a formal advisory opinion as it is thought of under the statute as such there should be no deference given to the division of insurances interpretation as a stated in an unsubstantiated newsletter if we look at illinois courts in other contacts as they dealt with the term pension in rain the marriage of david i think provides an excellent insight into how illinois courts have traditionally dealt with the notion of what the term pension means the second district in two thousand and six decided that case and what happened in that case was that he husband had the husband had a pension the court in its to cree describe discuss or otherwise order that wife was entitled to the subsequent supplemental benefits or any early retirement subsidy or that she would share in any cost of living adjustment made to husband's pension benefits the court responded to that argument by writing obviously the argument presupposes that these items are not already subsumed within the definition of pension itself the questions start we presented therefore is what this pension mean in david the court held the ordinary meaning of the word pension includes quote all benefits that are afforded to a pensioner including cost of living adjustments now certainly you can say that the pension board is being on reasonable when it reaches the same interpretation of the term pension as the second district did by saying that inherent in the term pension is cost of living adjustments which all the cost of living adjustments do is try to maintain judges to have their cost of living adjustments but that was an unconstitutional diminution of their salaries we assert that it's no different when you do it to widows widowers surviving children dependent there are a series of public policy arguments that were raised by amicus in this case there are a series of arguments obviously regarding the ambiguity or lack of ambiguity of the statute we surge in the end but these were benefits that were paid for by these police officers the police officers do a very very dangerous job in the state of illinois as well as other parts of the country and that while doing those dangerous jobs these officers should not have in the back of their minds whether or not their families are going to be properly taken care of when they're out doing that dangerous job as such i ask you take that into consideration as well and the final thing i would like to know is that the illinois municipal league it filed an amicus brief in this case filled with tons of financial what we did we would assert propaganda it's important to notice just the chief justice fitzgerald noted in the last case none of that information was ever included in the record it was never vetted there's never been a demonstration that any of the financial impact information actually shows that there's a statistically significant financial impact on pension plans anywhere if the court were to interpret this and finally there is no evidence to show that actua article three and article four pension funds are not taking these cost of living adjustments into account in the end i truly appreciate your time and i hope that you find never have one and certainly  colas meaning that it is the right to the pension that is the amount of money plus the annual three percent increase is the practical response but just scream and i think you x you actually have framed the issue that yes they stepped into the shoes of that pension recipient and they continue to be able to maintain the value of that pension i think you phrased that way that any of you would it refers to the right rather than  correct if then that's our alternative argument certainly is that if you were even if you were to find this unambiguous that the traditional interpretation of the term pension is not a fixed sum rather it is the right to be able to receive a benefit and that the term benefit is a changing notion based upon the augmentation with the annual three percent  i don't believe that it would be fixed at the time of the date of his death because the term then is still not read to be supposed flew us even if you do that because the cost of living adjustments are inherent in the term pension that but however let's say after the pensioner dies and the surviving spouse is collecting let's say that the legislature went back and augmented the benefits to a police officers they would not get that increase unless it were specifically included would be the one interpretation of the word then why wouldn't be included the second reason that the word then would not be suppressed louison would not fix the some at that time is that article three are not entitled to receive cost of living adjustments until they hit the age of fifty five or sixty if they're disabled and so if you had a disabled pensioner die before the age of sixty or before they converted to a regular retirement pension potentially that may lead to a person not being able to receive cost of living adjustments in either of those circumstances it would but did again you'd be entitled to the right and that the song that constitutes the right would still not be fixed and it would still be consistent my name is erika thomas and i'm here today representing the village of roselle i come before the court this morning not advocating for the reduction of benefits for a widow of a police officer as  but rather advocating for interpretation of forty i all c s five slash three gosh one one two and that will ultimately benefit all the participants of the pros out police pension fund by assuring that the assets of the find are distributed as intended by the illinois general assembly although the of how it has urged this court to find that section three dash one one two and a is ambiguous i would argue that there is no ambiguity and the wording of section three dash one one two a very clearly awarded survivors of downstate police officers the fixed pension amount that the police officer was receiving at the time of his or her death with no additional cost of living increases the illinois general assembly has demonstrated throughout the pension code the cost of living increases to surviving spouses are worded by specific statutory language in the villages brief we noted ten other public pension systems that specifically an unequivocal leave provide for cost of living increases for surviving spouses it is notable that not one of these public pension systems provides the surviving spouse one hundred percent of the amount that the pensioner had been receiving each system provides a pension for a surviving spouse that is reduced by as much as half of the amount that the pensioner had been receiving so yes many of these other  ventures systems that referring to have the same language title they do not have the same language and i would argue to this court that the word ban is not necessary because they have  fourteen point one of a disabled surviving spouse that they are not entitled to cost of living and i think that should be read in harmony that the legislature did not intend to award cost of living increases to any survivors but they wanted to specifically indicated in three fourteen point one it's unreasonable to read that the legislature would specifically denied cost of living increases to surviving spouses of presumably the most financially needy  pension benefits and then grant them to everyone else it's it doesn't make any sense so i would argue that it was simply clarifying language although the appalling to argues in its reply brief that the other statutes that i had referred to had to be amended by the legislature to specifically add the cost of living increases this argument tends to support the villages position that the surviving spouse benefits must be enhanced only with specific language in the statute additionally as mr carlson points out and now says that this issue cannot be complete without consideration of articles four five and six of the illinois pension code which govern down state fire down state police or excuse me downstate fire chicago police and chicago fire pension funds articles four five and six do not contain language granting cost of living increases to surviving spouses but they do provide one hundred percent survivor pensions these sections of the pension code are arguably more similar to article three and therefore instructive to this court and the general's time glee's intent concerning cost of living increases for spouses you know counsel has a made an argument that this where it should look to some federal cases specifically arista cases in defining the term pension and would argue that a first of all this or is not bound by those federal cases and i would also argue that those cases are inapplicable to the facts that issue before this court for a number of reasons first of all the roosevelt police pension fund is exempt from the rest requirements because it is a government plan there are no analogous provisions in a risk that they deal with cost of living increases for surviving spouse benefits the barrington case that  council refers to in his brief referred to a risk of provisions and federal case law for guidance however it only referred to it because it was considering the prudent person standard for pension fund trustees which the language the arista language is identical to the illinois language the banking case did not in any way shape or form extend this analysis beyond the reasonable person standard further arista cases defining  pension are now the applicable to the case they are because they are looking at each in particular area each specific pension plan the wording of each specific pension plan to determine what the word pension means with regards to that plan this is a statutory driven plan that is before the court it's not an individual plan document additional additionally none of the cases that are cited by counsel deal with  definition of pension concerning survivor benefits with regards to the language in three fourteen point one i would argue that it is it is significant that the legislature did in fact include it in there i would argue that this demonstrates the legislature very clearly knows how to add this language and discuss these particular issues when it feels the need to do so the fact that the language is not in three dash one when to a i indicates it's very  clear purpose not to grant cost of living benefits based upon a review of the entire pension code it is apparent that the illinois general assembly uses specific language to work cost of living increases to surviving spouses the failure to include this language can only reasonably be interpreted to mean one thing that article three does not provide cost of living increases for spouses survivors although the appellant argues that this court should give deference to the board's interpretation of section three dash one one two a i would remind the court date issues of law in administrative review cases are reviewed to know of zero however if this court is going to defer to to any administrative agencies interpretation of section three dash one one to a it should refer to the advisory opinion of the illinois department of financial and professional regulation on th should be given substantial weight by the individual pension funds however the board not only failed to give the department's opinion substantial weight if they fail to give it any weight and deliberately roll to the contrary is there anything besides the court as you review the facts of the solar case you will note that the issue in sola rose because the department of insurance was conducting an audit on the roosevelt police pension fund at that time and determined day it improperly was providing cost of living increases to surviving spouses at which time the the village attempted to cease those cost of living increases the department made it very clear to the rosella police tension fine at that time that it was it was of the opinion that cost of living increases for the surviving spouses who were not entitled to cost of living increases they've been through litigation before and at that time the department of insurance gave us the sick opinion to the to the roosevelt police pension and they have since issued this siren under it under its  letterhead and under the the directors name and the siren is identical to the opinion that it gave the find back in two thousand and three although certainly article three pension funds have interpretive authority the public pension divisions of opinion on this exact issue should have been given deference by the board further if the court allows each article three in for a pension fund to disregard an opinion from an agency charged with advise and pension funds there will be a wide ranging in consistency across the over six hundred pension funds in the state to be clear this court is not bound by the department interpretation of section three dash one went to a but it may be given persuasive weight and is another factor that should be considered in this case and it certainly should have been considered by the board the states if this court is to interpret the language of section three dash one when to a as the appellant argue as there would been there would have been no need to include the the word then should yes it is your honor which i i i did present some waiver argument in our brief i'm not going to spend much time on it here because i'm aware that th can regardless of the waiver at the lower levels can certainly choose to to consider the arguments however you're right the board did in fact both the trial court appellate level argue that the word then was the key word in this phraseology however in its brief before this court it's now saying ok well will will except the the definition of the word then is the second district has has suggested but now it's the term pension this second district never had an opportunity to review any of this argument about the word pension and there are no illinois illinois cases that define the word pension and as i've indicated before at the risk the cases that that the appellant has suggested i would are  not applicable their federal cases they are concerning individual specific plan documents that are not anywhere near comparable to the statutory animals that you have before you so with regards to the definition of pension then we're left with a definition or the common use of the common commonly accepted definition of the word pension and to look at the black's law dictionary and quite frankly although counsel cited on a whole bunch of dictionary definitions and it's brief and went and looked at some of those definitions most of that the definitions indicate that it is a fixed monthly or a regularly paid benefit so the term fax does frequently found in the common definition dictionary definition of that term and that is where the  and the answer was there is no ambiguity that i i understand that that's your position there's no ambiguity you look at the point of reading of the statute but if there is an ambiguity and we go to other statutory construction aides i thought the question was how do we determine between in one fourteen there's an indication specifically that there is no cola as it relates to the provision that we're dealing with here counsel says well you know there's a difference between the the pensions of one fourteen you look at that and say well if they meant it and in the provision it issue here they would have said the same thing they said one fourteen they would have said  i would argue the easy way to to to approach that is is the most simple common sense way when the legislature wants to enhance a benefit it will certainly state that now this pre fourteen point one it is a bit of it is a bit of a different animal than what we're dealing with because it's concerning disability cost cost of living increases to a the line of duty just ability of police officer now that officer would not normally be entitled to a cost of living increase the officer has to make a specific application saying that he is not able to generate any other source of income among other things and so it is a so i would argue that the legislature is honed in and is giving  before he or she is entitled to is giving them a cost of living increase i had a time and for that particular reason it wanted to make crystal clear that although we're giving you this extra benefit it doesn't extend to your spouse now as i indicated these are presumably the most financially needy persons it it does not make any common sense to read that these particular spouses would not be entitled to cost of living increases where as all of the other spouses should be entitled to cost of living increases like i said i it was it was a specific defined area that the legislature wanted to make crystal clear it's not too it's not in my opinion it's not to be read in conjunction with three dash one one two a that well everybody else gets and so we're just we're just going to make sure that these guys don't that's absolutely not how it should be read it was just the legislature making crystal he was yes he was and i believe he i believe p received them for approximately nine years before his death from a public policy standpoint the villages interpretation of section three dash one one two a make sense it's easy to be sympathetic to the surviving spouses of police officers however it cannot be ignored that article three provides significant significant pension benefits to survivors of police officers and that they receive one hundred percent of the pension that their deceased spouse had been receiving other than articles four or five and six no other surviving spouses of public employees in illinois receive one hundred percent of the pensioners benefit language there where the legislature specifically said no colas would abide and that we should look at other pension funds to where the legislature knew how to include the cola they did so i would you  d simply that in the exact same article when they meant to exclude cola's they said so and that if there was no need to clarify as  opposing counsel argued than i am you know if you felt that there is a need to clarify i think the village feels that way then it also implies that there's an ambiguity there one fourteen point one sets forth a specific way for an officer make an application and to show that i think that in and that's an annual application so it has to make the application has to sort of that he is not employed any place else correct could there be an argument that that's what it's directed say officer correct three dish one one four point one i believe also is an act in two thousand and one so i don't think that officer would have been eligible to apply under that first of all second absolutely i think that you have the nail right on the head there when you state that this is a different benefit then we are even talking about here it is not a normal retirement benefit it is a benefit that was changed to help disabled officers before the attain the age of sixty which is the other way that officers can start getting a cost of living adjustments if they are on a traditional disability pension go to the age of sixty as opposed to fifty five hundred traditional retirement pension in those circumstances also to read the statute as the village proposes that you do it states that you must conservatively construe the pension code against beneficiaries asking for a vast change and what this cour longstanding position regarding that is is that pension codes are to be liberally construed in the favor of beneficiaries and in this circumstance when the legislature chose to address call us in article three when it did not want a surviving spouse to receive a benefit it expressly stated as such it was girls and remember the phrase is a little bit different news time is urgent it really but with respect to one four to one of the other aides or statutory construction is the court come up with an interpretation that would result in an absurdity and although she didn't specifically reference there she did say why would the legislature specifically not allow kohl is for the decision you know the disabled the ones that probably are in most need of it how do you address that or again because you're dealing with a whole different class of people you're dealing with a class of people who are receiving cost of living adjustments both for traditionally they had been able to i believe in two thousand and one when it was changed so my assertion would be that that would be maybe you know again i don't have a legislative history potentially it's because they're receiving them early potentially i because it's in a way the actual areally dealing with those those problems it may also be that statistically their spouses may be younger and more likely to return to a workforce than the spouses who are from a more traditional pension plan as in fish and in three d actual money too if we look at the villages argument in essence what they're saying is that you freeze is the sum of benefits as of the date of death inherent in that argument is a concession a logical concession that the village concedes that within the term pension is included the term kolo because there's no that you can grant the colas that officer durkee had earned the nine previous years and freeze it at that time unless the term pension includes cola as the only way that that can occur otherwise the village would have to argue that we're going to have to give the widow ms herky a reduction in benefits which was the very first thing the village noted when they got up in front of you they're not asking for a reduction in benefits they believe that it's a free which means that inherent is in the term pension comes colas so now we're back to arguing about what the word venice and from the beginning we've stated that the officers widow or widower steps into the you officer had not attained the age of fifty five on a traditional pension retirement pension or the age of sixty at that point they know heck they did not have a vested right to a cost of living adjustment so if the officer who was retired died before attaining that age before they were entitled to a cost of living adjustment at that point the spouse may not be entitled to one meaning that the word then still means something in addition to if there were an augmentation of retirement benefits that post date the survivor suspension those augment asians may not take effect unless specifically addressed by the legislature when those augmentations were implemented of those interpretations lead to a liberal construction in favor of the beneficiary make the word then still have actual meaning and again is consistent with both the village and our contention that the word pension includes as justice freeman framed the issue we're talking about the benefit not some fixed sum of money that cost of living adjustments are there to allow people to maintain the value of their pension to be able to adjust to the rigors of a very an economy and that that's essential to be able to deal with them now in some of the villages briefs as well as i think of some of the conversation today we talk about how the surviving spouses receive one hundred percent and i think in the briefs the village actually states well you know this is a pension that used to support two people not only supports one but you know from a practical standpoint the mortgage doesn't get cut in half when your spouse dies the old you're taking your position is that what i'm saying is that if you do find three point one one four point one three dash one one four point one does provide some sort of insight then it should definitely be read the exact opposite of what they're asserting i think that if you either three days from one to what we're talking about is a totally different set of benefits but if you are convinced that you need to look at external outside of sections outside of three dash one one two for additional authority of use as a guide when illinois courts and now the side now in addition to that they state the village argues that there is no provision for colas written into a recession well there's no provision for cola in this particular  section other than the word pension and when interpret ing the pension the term pension or pension benefits under rissa courts if you do you uniformly in the seventh circuit at least held but that inherently includes cost of living adjustment those cases involve survivors no but it does it does involve the definition of the term pension and again i think this is very similar to in re the marriage of david where it states that inherent in that term is pension that is not ancillary it subsumed within it that when you use the term pension you're not talking about a fixed sum of money rather you're talking about a benefit spouses of line of duty disability pensioners and exemplifies the intent of the legislature to fix the retirement benefit to those received at the time of the officers one fourteen states quote if a police officer on disability pension dies was still disabled the disability pension shall continue to be paid to his or her survivors in the sequence provided in section three dish one one two now they use of that to say this is their last line of this paragraph by referring to section three days one one two it is clear that the survivor continues to receive the line of duty disability pension the officer received at the time of his or her death they seem to be saying since there is a reference to one one two and since one one four specifically excludes call of benefits that it's consistent through indicate that one one two must not include the way that i read that is that for lack of a better term it swimming upstream three days one one two does not incorporate three dash one one four point one three point one three dash one one four point one makes reference to three dash one one two so benefits paid under three dash one one two i would then three dash one one two they do not incorporate anywhere three dash one one four point one what it does say is that if you get benefits from three dish one one four point one you will be paid  three days from one to however then you incorporate d which saves that survivors will not get cost of living adjustments but to read it to say that that then permeates the rest of article three just because there happens to be a reference i think is again swimming upstream respectfully