the next case are called the docket is agenda number eighteen case number one one zero zero one two and one one zero one nine eight gaffney versus the board of trustees of the oral and fire protection district mr chief justice fellow justices good morning my name is thomas a dude i represent the plaintiffs in these two consolidated appeals may it please the court and counsel there are two issues  in this in this case the first is one of statutory interpretation as to whether or not firefighters who are catastrophic and we injured in live fire realistic training scenarios are to be paid health insurance premiums on their behalf and behalf of their families under the provisions of the public safety employee benefits act under provision that says that the premiums are but are to be paid when a catastrophic injury occurs when a firefighter is injured when he is well responding to what he reasonably believes to be an emergency a second issue in the gaffney case because w ere to consolidate appeals lieutenant lemon s and firefighter gaffney the issue and mr gaffney is whether procedure really in his particular case  procedure is legal under section twenty of the same stand should the parties have have spent hundreds of pages outlining the new wants of facts of these two cases but the reality here is that both firefighters were injured while they were performing tasks under highly structured emergency scenarios an officer lemon that lieutenant lemmon esus case he was performing duties which were recreating a fire scene where a fatality occurred in phoenix arizona in a supermarket fire officer firefighter  gaffney's situation was somewhat more generalized but in mr gaffney's situation there was an act of actual fire there was actually smoke in the building and the hazard that eventually led to his disability was argument advice to the court we are not arguing that every training scenario that firefighters and cajun fall under the purview of reasonable belief that they're there submitting to an emergency what i'm saying is when the training scenario is work a straight in a way to create a sense of urgency to create unforeseen and unforeseeable circumstances and place these firefighters in positions of physical and health risks those training exercises become emergency situations and are covered by section ten b of the statute i can envision training that goes on where firefighters practice tying various types of not so i can envision a tabletop training sessions i can envision routine maintenance that would not trigger the application of this situation but these circumstances were extreme and most importantly the firefighters in terms of their reasonable apprehension of what they were facing were under strict orders to treat these scenarios as being real life emergency situations i don't want to put too much emphasis on that in fact that was the case but by their very nature the purpose of these exercises is to create an emergency to improve firefighters skills when other community emergencies occur so that they can perform their duties in a and a highly competent fashion the fact that these particular firefighters were expressly told you are that you are to consider this to be an emergency is extremely significant but even if they expressly told that the nature of these scenarios is that they create emergency situations then objective test or something since i think it's subjective and in whose mind in firefighter and it's a subjective test and i think that the question would be whether the the subjective perception of the firefighter is reasonable you know i'm thinking of the case were a pilot is in a simulator right and i don't think that's the same as this well let me ask the question then yes you're tell me why i didn't think you think it's the same as this but i know you have a simulation and they're put in a simulator they're going to they're being told you're going to encounter emergency situations you know the plane might be subject to a crash i mean the hundred races i would imagine they go through it but do they enter the simulator with the idea that it's an emergency situation you know i would say probably the answer there is no tsunami question is why is this different because a pilot in a simulator is not exposed to physical risk the question of simulator isn't real be the extra annele hazards that the pilot is exposed to is purely virtual in these cases both of these firefighters were exposed to intense physical risk firefighter gaffney was in a burning structure there was smoke in the structure he was responding to an actual awara he responded with lights and such and sirens operating and as just discord in the dissenting opinion pointed out firefighter gaffney's injury was really not part of the training scenario the training scenario was that he was to rescue a victim on level two and proceed to level three to extinguish the fire his fire hose became entangled in a piece of furniture that he didn't know about this was unforeseen that see the argument that the opponents make continuously here is some how these firefighters knew what to expect they had no idea they had a general idea what to expect but the particular hazards they were not aware of firefighter gaffney's hang up if his home was was separate and independent from the training exercise in and of itself he didn't know what but the hang up was so to answer your question your  honor i did somewhat going to a tangent but to answer your question directly your pilots would not be exposed to those kinds of physical hazards and in fact was exposed to no physical hazards of any kind i like t you know about this in my opinion there isn't a question and the gaffe may case we in the gaffney case the hapless argument is quite interesting because they their their response to representation by the lawyer in the presence of the full board because i raised this issue and i raised this issue because this isn't the only case i've handled by and there's a i have a whole plethora of these where i'm faced with these quote administrat hearings where the quote village manager is going to give me a quote impartial hearing and so i'm very sensitive to this and in the presence of the full board it was said on two separate occasions this is not a formal hearing under any legislation there was no mention at that time of any ordinance and there was no mention that there would be any sort of administrative decision that would be subject to deference under the writ of certiorari procedure reasonably believed to be an emergency you know is it reasonable to and again the whole simulator right here is this isn't this a simulation of an emergency is it rea reasonable for the officer to to think of this is an emergency when he's going going to a site smoke or not to rescue a dummy i mean is there a an emergency situation that reasonable to say that this is an emergency situation i'm going to rescue a dummy because my answer to that is is yes on two levels ok it's yes as far as i'm concerned in terms of common sense and it is certainly yes as far as the definition of the term emergency that both parties have briefed extensively to this court be the international dictionary definition of emergency has been ad nauseum quoted to this court by that an emergency is something that requires c i wrote this down i want to say it correctly that it is the performance of duties that need to be done urgently and there is a need for immediate action and is absolutely true in both of these cases it's true because he they want ward to do what we're gently immediately and with prompt attention but with with a person their past alarm going off my client is told that the victim could be running out of the air he has to get in there immediately rescue the victim poem from the building and of course the person who's running this test never bothered to tell my client that none of the alrighty were rapidly intervention teams who actually performed this activity were ever successful in removing the victim but certainly mr lemon s and mr gaffney were operating that's the purpose that the whole party that's what they were doing let me this is not a situation where we're where everyone was told you know guys this is just a don't take this too seriously you know this is just pretend and the reason that we have to have a situation if we do that  let's say there's exercise being in one building with the smoke and the dummy yes the fire fighters on him say go ahead we've got this very exercise go in there and rescue that dummy right there's a need to rescue the dummy and the fire starts in the building next door with a real person in it i mean can you perceive the dispatcher saying the training exercise we have an emergency you know again we are right but absolutely from your standpoint sure that happens let's say there's a fire going on and one building and there's a fire across town it's very common for the dispatcher to remove equipment from one's location a dispatcher to another and and to enlist mutual aid i understand that in the example you gave to me the the danger to the property and person of the of the community citizen would take precedings over the emergency scenario but that doesn't make the scenario any less of an emergency it in the appellate court below one of the questions that the justices asked and i really thought about this i'm going to volunteer this is isn't it always the case when you go into a a training situation that you are far less apprehensive and there's that the pressure is really off as compared to a real fire and that's really not true when i think about the firefighters i've represented who were injured in fire situations i can think of a firefighter who suffered a catastrophic injury got to the house it was apparent that the fire was in the kitchen he put on his turnout gear he and one other person went up to bear up to this place put out the fire and while he was letting the smoke out of the building he hailed smoke and it ended his career no question that's an emergency but the level of emotional investment that they had evanston firefighter had and extinguishing a kitchen fire was far less than either of the plaintiffs in this case emotional investment of lieutenant lemmon s was was intense i mean he was sent the other skies down you were to go in there he's running out of air you have to rescue him and and when he was asked did you believe that he would die officer lemon s on page four thirty six of the record testified it was my understanding that the intent was i was to consider him as running out of here so i i understand the distinction but it's a distinction that does not have the legal difference that the defendant that the the defendants would like would like to exist in this case source that's wise and the extra annele sources are that the exact wording of the statute was not addressed by the general assembly the general assembly did not express the talk about the word emergency in their statements but clearly the intent of the legislation as a whole was made very clear as set forth by the supreme court and croy and that set forth by the dissenting opinion in gaffney and  forth in in my brief to this court that the the the general assembly was not looking for narrow and strict construction their concern was when firefighters are responding to a reasonably respond to what they perceive to be an emergency and it ends their career and they are now saddled with a wash of income they are saddled with a preexisting condition that depending what happens nationally may or may not ever be covered by health insurance that the sacrifice physically made by the firefighter isn't compound did by their inability to sustain themselves and their families in terms of getting health insurance prejudice doesn't and i do acknowledge it they at the term in the line of duty is not coextensive with a reasonably reasonable belief that they're responding to an emergency i realized that the second term is narrower than the first term but it is nowhere near as narrow as the defendants would have the court believe to go on to the definition of emergency in the rows as i await there are three different alternate  linguistic formulations the second was that they had an emergency was the result of an unforeseen combination of circumstances that call for immediate  action and the facts of both these cases are directly on point and in firefight and lieutenant leninists a situation a hood was placed over his mask so he was completely blind it's not that he had impaired vision he had no vision he was that all of the participants were quote affirmatively disoriented and although they were told the general location of the victim they were not told exactly where the victim was they were not told that the techniques that they standard that they employed as a standard measure had always failed because there's a significant difference between a residence and a industrial setting so we  unforeseen circumstances and they require immediate action by the definition of emergency that seems to have been the operative term in this case through to rowers the facts of this case fit the definition and lemons were saying go into that building not know or not know that it was a training situation rather in this case they were fully aware it was a training situation and bet makes no difference in your argument right there's no distinction between  building somebody is in there it's an emergency you go in there and say it's a training exercise we've got a dummy in there we're going to have some smoke go in there and and and save that dummy as if it was an emergency well it in gaffney situation he really fits under the independent intervening accident that the defendant cites frequently in their argument but no i don't think it makes a difference because even though it was eight quote training exercise they were expressly told in accomplishin this exercise you are to treat this as an emergency but it was kind of a distinction in the rose right i mean there was a false alarm in which they didn't know it was a false alarm there was no human interaction and wells and rose there was a mechanical false alarm and police officer to rose went to investigate he slipped and fell and suffered a cast get out he did not know it was a false alarm oh no that is absolutely right that's true i mean would but there was no extra no circumstance that would suggest to the police officer rose that there was an emergency i mean he went to the scene has he didn't have lights inside when going he he needed his way over there when he got there there was no immediate activity i'm not trying to say de rose was wrongly decided but what i'm saying is is that there was no objective criterion then to rose to suggest there's an emergency and in these cases the record is replete with evidence that there was an american see circumstances but i didn't i guess from my time is up so i just i'd be glad to answer the justice of the question i just want to know are the firefighters in these training exercises required to complete the exercise absolutely and other penalties if they don't i mean if what if one of them said you know we just don't want i can't go any further or one of those things i'm lester injured to the point they can't complete the exercise if they're physically unable to complete the exercise because they're entered then there would be no consequences if they simply freaked out got scared and said you know this is way beyond me they would be disciplined and for instance in a fire fighter gaffney's case he didn't complete the exercise because he injured a shoulder firefighter latin as injured his  and left the scene examined his knee and decided the injury wasn't bad enough he went back again which is pretty typical firefighting behavior thank you runners appreciate your time and attention thank you i do reserve the ten minutes yes good morning your honor is may please the court i am lance molina counsel i stand before you with a very different view of the record than mr du jour but that isn't the first time that has happened the key to this in my view to start analyzing the actual issue of whether benefits should be awarded under the statutory construction issue that is before you begins by looking at the statute itself and the benefit itself your prior decision in crow he dealt with the first portion of this statute which ties in with pension benefits it provides that police officers firefighters correctional officers who are catastrophic we injured or killed in the line of duty get this health benefit this health benefit though then goes on to be awarded in subsection b with a big however however the benefits shall only be awarded if these limited circumstances occur this is an extra special benefit it goes beyond the line of duty disability benefits and it is a far differently funded benefit as well it is a benefit where there aren't regular payments to a pension fund by employee and employer that are invested and are grown over the years and then there are various reasons that claims are made and are paid out this is a this is a separate benefit that is given in limited circumstances funded exclusively by local government and in limited circumstances and if you look at the distinction between a and b a ties in with line of duty disability were you on the job when you  disabled or killed b talks about line of duty disability in certain limited circumstances and we focused in the briefs on the definition of emergency and there have been cases that have since two thousand and eight looked at that term but if you look at all the limited circumstances of the four fresh pursuit unlawful act of another in the course of a criminal investigation or in this case responding to what is reasonably believed to be an emergency i submit to you that what you get is a situation where you have the disability or death occurring on the mission on the mission of the department whether it's a police department or whether in this case firefighters are on the mission of doing public safety line of duty disability that is covered generally under subsection a cover  those situations but they also cover all the other duties of a department that fall under preparation because everything firefighters do when they are on duty and doing their tasks is preparation to protect the public to do the mission of protecting the public and i submit to you when you look at it in that context and you look at reasonable belief that you're responding to an emergency that a training exercise is part of the preparation it's not the mission it's preparation to do the mission and there can be training for those other portions of the mission where this limited benefit is given there will be training as to how a police officer has to conduct a fresh pursuit how is this done well there has to be training because it's dangerous it's part of the mission that's dangerous and we're going to award this benefit if someone is injured in learning how to do a pursuit i submit to you not even though it doesn't all danger doing fire inspections can be dangerous going up on ladders to look at things can be dangerous dangerous those things are not covered by this statute this statute is equivalent to subsection b this benefit is for those firefighters in this case in these cases i should say that are in a situation where they are on the mission they are on a call and they are very unfortunately injured every firefighter injury is very unfortunate those that are covered by this statue and those that are not but this one is reserved for those that are on the mission and in these cases both firefighter gaffney and firefighter lemon s were not on a mission they were preparing for the mission as you heard the one scenario was set up to recreate an actual situation in phoenix where a firefighter was was killed in responding to it in a fire because of a situation that arose that wasn't handled in a way that maybe it could have them and so the scenario was set up to try to protect the firefighters  future for those situations where this kind of thing might occur again these training exercises are not inherently dangerous they're designed to simulate danger do they involve some danger certainly because all their duties do but live fire burns are something that citizens police academy trainees that are citizens who go through these academies throughout the state of illinois do they put them into live burns controlled burns where the fire is going and was a real wide fire hose in a structure that set up there's real smoke the gear you wear the gear they go when it's because it's training you're not going to send those people to go fight a fire and save the public absolutely not the training is fundamentally different it's fundamentally different and it's that it's a difference that stands up in the light of common sense a general approach i submit to you that this language is not on clear it does not need any kind of legislative history in order to determine training exercise is stored no no absolutely not a training exercise can turn into a call for help for example firefighter gaffney if he wasn't able to get out if he had been injured very severely where he couldn't move he's in a smoke filled structure at that point where the love seat is if he's not available no one knows where he is the people that rushed him to find him at that point our responding to what they reasonably believe is an emergency i submit to you what is a firefighter going to think we're on this training exercise one of our guys is unaccounted for one of our members no one knows where he is let's go in and find him and i submit to you that under those facts they may reasonably and i believe it is an objective test your honor i disagree with mr due to that it's not how much you feel or a motor what kind of actor you are or how much you like hype yourself up to believe this is the real thing i don't think any of that's relevant i think it's an absolute object this test would it would a reasonable firefighters think this is an emergency an emergency being somebody could be hurt or could be in danger and my job is to protect that person so those firefighters in my hypothetical situation here who are going in to find firefighter gaffney are responding to an emergency what is that emergency it is a simulated training exercise where something has gone wrong and it becomes an emergency at that point gaffney is his own he's the public at that point and he's not a dummy he's a real person and that calls for urgent action and that ties in with the definitions in the previous court cases that i've discussed that  state you mean this i do not i don't believe this statute the statutory language that is before you is ambiguous but i also don't think you even need to worry about that in this case you don't need to worry about exactly what we're emergency begins and ends for instance enduros the issue about a a burglar alarm and you know the percentage of burglar alarms that are false and would that be an issue none of that's an issue in this case because i submit fundamentally we aren't even to that point in this case because these firefighters although doing i don't mean to belittle what they were doing in any way critical training exercises that do involve elements of real danger they were not doing the kind of act that is covered by this benefit the statute the benefit that is awarded by this statute this statute is is a statute that awards a benefit for above for doing the mission for being on the mission of public safety and being either killed or catastrophic li injured that is disabled under this court's decision in crow he on that mission and in the end in these four limited circumstances let me now move a little bit on to the procedural issue because what i'd like to do is first of all tell the members of this court that i don't believe you need to reach the procedural issue that is raised in gaffney unless you desire to do so in order to give guidance to the courts of law which you certainly have the authority to do but the reason you don't need to decide the issue is because whether or not a declaratory action under the original jurisdiction of the circuit court or whether a writ of certiorari is is in place for at and administrative adjudication where it has been decided by a unit of local government in this case a fire district whether or not under either sat because firefighter lemon s there was no ordinance creating the adjudication procedure in place yet so in the circuit court below in her decision in gaffney where she up held the administrative adjudication and dismissed the declaratory count on a motion to dismiss and considered to consider the review under a writ of even justice arnold did the exercise because she had to based on how the case was plaid but should then after going through that exercise and considering another under richie noted but the issue here is one of law it's do novo review so you do not need to decide the procedural issue about whether a unit of local government that has to confer this local right pursuant to this statute has the authority to create administrative process which then would go up on a ok you don't need to to reach that issue unless you want to and the issue also i submit was raised in the wrong way procedurally in a way that raised the issue in this court but you can also overlook that and the reason i say that is because of this court's prior decision in dubin versus personnel board that's a case where you have a chicago employee and he was upset being subject to potential discharge under administrative review that the city of chicago it set up through its ordinances and the employee it went to the circuit court to file an original action to enjoin what the board was doing because he didn't like the way the board was conducting this process and this court said that that was that the circuit court was without address stiction to consider that because there was an administrative process in place and that deprive the court of original jurisdiction and it could only come up on a writ and sol if mr du duff felt that there is no authority to conduct these hearings in other words there they were there void there is no authority not like they're being done wrong or they're unfair or whatever there is no authority to do that i submit to you he would needed to include in his complaint in the circuit court a declaratory judgment that the actual action is void of prayer that includes that this action this ordinance is boyd because then you could have a written original jurisdiction of the circuit court but as long as the ordinance is in place and the process is gone through i submit to you that the review is under which and that would allows the court to conduct all kinds of proceedings about how it was done whether the record is sufficient in order to to support that decision or whether it should be reversed or anything like that but as i say i think you need to attack the ordinance directly in order to get that here they went through the hearing it comes up on review and what mr duda seeks is a declaratory judgment action that he's entitled to the benefits i think under doob and there was no jurisdiction to consider that count and there's no there's not in any of the pleadings in this case any kind of prayer for relief that asks for such a declaration so i don't think it's properly before the court but moving on to the merits of it i think if you look at all the situations where you have administrative review under the administrative review act those are all created by the general assembly and where the general assembly creates the process for example the pension code the general assembly creates the pension boards and provides for how it's supposed to go and then how it comes up to the courts but we are the process is created by the unit of local government under its authority whether in you know in the dubin case whether it's an employment situation or whether it's a boat slip permit process or a business license permit we're hearing process is set up i submit to you that under that under those situations as long as they're within the local government's authority under its authority whether it's not a home rule under the municipal code in this case the fire district is given the authority to pass ordinances necessary to do its job and also to administer health benefits this was a health benefit that was ordered to create in certain circumstances so we created a process to deal with adjudicating these are very important claims it's a very important right it's very important to both the firefighter and the unit of local government in this case the fire district and its budget and it wants to conduct that in a manner that is proper and consistent with good practice so i submit to you that the authority is there and that under those circumstances where the unit of local government creates the administrative process it can't create for itself actually there's a split on this now but it can't create for itself review under the administrative review act and so the courts have said under those circumstances we're going to consider it under a common law riffs or sure which is effectively the same sort of same sort of general revealed more like appellate review or where you review a record that comes up that is submitted by the agency and the essence is to determine what the action bore was and if it is adjudicated in nature then to take it up on a writ of certiorari and i believe that the district have that authority i believe it created  it you know the there's this issue in the record you can see about whether the attorney for the board that handled the meeting agreed that it wasn't a formal hearing i mean i believe the question in the record was is this a hearing subject to the administrative procedure act a formal hearing subject to the administrative procedure act in the answer was no of course it wasn't because the ordinance didn't say it was the ordinance anticipated that the writ would that it would come up under a writ of certiorari type review numbers of the court i think what you have here is a situation where this statute is is designed not to be construed broadly to be given broadly it's a different kind of animal it's a different kind of statute this is a laurel wreath this is  a brass ring this is a special benefit that is given for those that are actually killed or disabled while they're on the mission of preserving members of the public i think if you look at it how it's set up why it's funded the way it is you can see it's just it's absolutely clear that that is that is the purpose of it i mean we just had the are living medal of honor recipient the first in decades in the last day this is certainly not to that level but it is meant for someone who is on a mission of preserving the public it's an important mission and that's exactly why all these kinds of other things these preparations are so elaborate these training exercises are elaborate and they are realistic because the mission is so important but that doesn't turn the preparation into the mission if you look at movies of famous battles whether we're talking about d day that the invasion of normandy for example lots of training undoubtedly her in that training and then you had movies movies afterward depicting that day and all those people who were involved in those were trying to create realism were trying to create a situation as if they were there they were putting themselves in the moment and maybe people were in danger stunt people were in danger they were all wanting to get into this moment but the only thing that was real was the mission itself and that is what this statute is meant to cover this benefit is meant to go situations of the real ones very briefly i see i'm almost out of time but when we talk about the training exercises and whether they can be emergencies i want to come back to one other thing and that is that yes a training exercise can become an emergency because something can go wrong as they're designed to should never become emergencies and they're designed carefully to avoid that but they can become an emergency that could lead to a call and also justice thomas your question that there is a big distinction i mean i do believe that if you're if that if a firefighter if the administration set up a training exercise that was simulated to the point to test how these firefighters would react if they thought it was a call and then could be observed maybe with cameras or something and to see how they respond that could subject that could be under the act it would be inconsistent with the national training standards that the fire chiefs have set up though because it's  dangerous for that reason but legally speaking under the analysis of the objective tests that i've proposed to you that could qualify and so there is a big difference there members of the court i think you very much for your time the fire district thanks you for your time and if there are no other questions i will stand down thank you please the court in terms of the speciality of these benefits and the difference in funding essentially the for the catastrophic injuries to each of these firefighters they were part of a group insurance plan in the oil and fire protection district ok the part of the group the premium for that group is paid by the district after they ceased working they were both under other statutory provisions in title to remain in the group at the and there's no new insurance that's being triggered by the statute there in the group and and under under other provisions they would have to pay the premium what this statute says is that for these firefighters who  injured while they're responding to what they reasonably believe to be an emergency not only stay as part of the group but the employer continues paying the premium this is not a new insurance policy the example given by council was the difference between the mission and the training i think is comparable your honor to the flight simulator there are clearly training exercises that are and are not realistic emergency scenarios that do not involve immediate imminent physical risk to the firefighter and those training exercises would not be covered there would be this sharp distinction between the mission and the training but that's not what happened in these cases that's not what happens in v's types of drills these drills are designed to replicate reality and the hazards that the firefighters face are designed to be exactly the hazards th face in the community at large and officer or firefighter gaffney to the extent counsel just conceded that even under his theory that if an emergency develops during the training the firefighter and that's exactly what happened the firefighter gaffney his entanglement in they have in that love seat was not part of the exercise it was a new emergency above and beyond the emergency designed by the creators of the of the of the statute and line as a matter of logic is the wrong place he's already on be granting benefit side the lying as the line is drawn by the by mr molina and finally the we did file a declaratory judgment challenging the procedure that that's that's what this case was all about the reason i didn't seek to enjoy anything is that is that the board said this is an investigative hearing i mean what what's there to enjoy when somebody says you know i'm i'm not going to do it you know i say are you going to have a formal hearing i say no we're not having this is just an investigation and i go to court and i seek to enjoin a formal hearing which i just said being when mr due to what are you here for there we told you they're not going to do it mr do you do it in your complaint the request administrative review in the