keith carlson a service count counsel for the pension court the burden of proof under any standard of review still lies with the plaintiff they must prove that the pension board's decision was either illegal or somehow contrary to the manifest weight of the evidence or was clearly erroneous the pension board has a certain it's briefs and here this is a mixed question of fact and law we cited case of frisbee versus only disagreement largely there were findings made by the pension or factually that are still being disputed in all of the briefs before this court specifically the pension board found plaintiff was not engaged in any activity or duty different from any other citizen compelled to attend court in addition the pension were found plaintiff was merely walking back to his car at the time that he was not distracted that he was not encumbered by any sort of special equipment or any other duties the distracted him from walking back to his car those factual findings are key to this court's disposition of this matter and they still seem to be being contested by the plaintiff in this case as those facts are still an issue  this as this matter is clearly a mixed question of fact in law therefore the clearly erroneous standard should apply in addition to the bolingbrook frisbie case formerly contested facts that were resolved by the board do not somehow then convert the matter into a did novo review as such again clearly erroneous we believe is the standard at the beginning of the court's analysis it's also important to note that by statute as well as case law that the pension boards factual findings are prime aphasia to true and correct instead of going through the traditional net analysis that's been adopted by virtually every court since the johnson case was cited by the illinois supreme court plaintiff has now asked this court to now extend basically any on duty activity to become a line of duty disability pension that has been rejected by every district and the supreme court since the johnson case simply because someone has engaged in a mandatory activity while at work as a police officer does not convert automatically into a line of duty disability pension it's important to remember that there's a meaningful distinction between police disability cases and fire disability cases police disability cases are decided using the special risk analysis and contrary to what counsel for the plaintiff has argued the special risk provision was not excised out of the statute johnson in the supreme court's analysis is ted johnson told the courts that you have to focus on the nature of the activity being in gauged by the police officer not just the specific fact factual physical activity that they were engaged in at the time of the injury what the statute requires because it's important to remember article three does not have a definition of the act of duty instead we borrow that from article five of the chicago police pension code where it states any act of police duty inherently involving special risk not ordinarily assumed by a citizen citizen in the ordinary walks of life and it continues from there but that portion of the statute is largely what the crux of the argument seems to be about in this case today plaintiff slipping off a curb while walking back from court is not an active duty there are numerous cases decided by appellate courts across illinois that have held simply that basic truism the fact is that being on duty is not sufficient to constitute an act of duty this is a term of art that has been interpreted by numerous cases we have fedora ski phil scott white summers morgan and this court analysis in buckner in fact justice o'brian when she wrote this decision buckner versus university park police pension board adopted and referenced fedora ski favorably as a reminder for dorothy versus aurora police pension board decided by the nd district involved the crime scene technician who was in the process of preserving evidence reserving the chain of custody taking evidence gathered from a crime scene back to the police department they were then involved in a car accident and that was held by the nd district to not be an act of duty similarly adopting that reasoning they found that an officer who was required to be at work was travelling to or from work bachner the case that was decided by this court involving the term active duty found that that was not an active duty coincidentally mr due to also argue back case this court should decline to extend beyond the realm of the statute in this case like it did in buckner going along the same way phil scott versus north lake police pension board similarly declined such an expansive view in that case you had an officer who was getting ready to actually go out on patrol and while getting into the car his  partner unfortunately had pulled the car forward and ran over a split crushing it and yielding a disability in that case again in officer who was going to get into a vehicle like the officer here who then was going to go on patrol unlike the officer here the officer here was not going out on patrol even under those circumstances the st district found that they did not meet their burden of showing an active duty cases i just listed two it's an outlier i think that's the reality i think that martin versus shiloh should not be adopted by this court i think that would lead to further breaking of the courts amongst the courts it would create a conflict amongst the districts even further in addition it would require this court to overrule justice o'brien's prior analysis and bucknor where you favorably adopted  dorsey adopting martin requires this court to reject its holding and buckner but it also requires to ignore all of those other cases that have been decided in every other districts frankly i think with all due respect to the th district i think that it tries to treat fire and police exactly the same which would read into oblivion the statutory distinction that has been adopted in every other appellate case since  the johnson case was decided by the supreme court and i want to point out that includes cases where plaintiffs or apply applicant officers one that includes all the other cases cited by the plaintiff in this case that includes jones versus bloomington that stated look the difference here is not that police officers are just driving around in a car when they get into a car accident they're on patrol in the court and the plaintiffs in those cases who do you know evidence to show that being on patrol  factual distinction from driving around in your car like we do what is the distinction they're required to monitor radio traffic they're required to monitor computer they're inherently driving distracted and they found that those distinctions were important and that's all based on had the same findings rose versus mt prospect in the same findings so you look at the actual activity or the duty they were executing at the time of injury and if you look at that in all of the cases other than martin right you have our jones wrote wagner wagner is an excellent example of the distinction drawn in wagner you had somebody doing the inherently dangerous activity of serving papers on a citizen a lot of unknown and known risk it goes on the bed activity similarly with control and when you look at those cases you say look that's something that a police officer engages in that's riskier than what normal citizens do here though every day prior to code there are thousands of people who go to court every day that arena required by work rule or they are required by its subpoena or s special risk is that the the risk is that you are serving something on someone and that there is benefaction will analysis done to be able to demonstrate that that inherently involves risk that commonly people when they're served around happy and they may react negatively or butters i agree but the fact is the distinction drawn by johnson and every case except martin since then is that there's a special risk associated with the activity not the actual i could be going to serve a search warrant which everyone agrees is terribly dangerous but just because i'm walking across the street and slip on ice while serving the search warrant that's something all of us do is cross the street but drawing the distinction and looking at the duty they were exercising at that time wagner that was found in one i agree waders as close as it really should get right but in this case again officer griffin went to court to testify before a grand jury which is required and he did that he executed that requirement it wasn't required just by court work rule he was required by court order but there are a lot of people other than police officers are required to go to court because of a work rule because of subpoena because of a summons because they're a party to a case because they're going through a divorce because they have to pay their taxes because they have to vote on any of those things could be seen as a compulsory or at least exercising  longer valid no i think it means that you have one district that one panel of one district made a decision and the supreme court chose not to make it one of the what  misread the statute the fact is that the statute has not changed nor have all of the other districts including this one until today change the analysis that the door ski phil scott white summers morgan in this case as well as the others jones rose all indicate you still have the special risk requirement which is alive and well and just because martin versus shiloh chose to of review as far as i'm concerned we're fighting over de novo and clearly erroneous but if you look at pages nine dollars ten cents of their brief and you listen to counsel's arguments he throws in that the facts in this case have to be judged under manifest weight of the evidence there is no way that the manifest way to be evidence standard applies to any facet of this case whatsoever the reason this is a demo case is that the the facts are undisputed there's there there is now and never has been a question as to the date time and place that the detective went to the annex of the joliet courthouse gave us testimony the place where where he was getting into getting into his vehicle and where he fell those are undisputed facts and the case that counsel relies on so heavily for dorsey adopted a day no standard of review itself so to give so much emphasis to for dorothy and then to turn around and say that the standard of you review is clearly erroneous i don't think you can have it both ways but i think the important thing in listening to counsel's argument i just want to start out by saying i do not perceive that martin attempted to remove the special risk doctrine from a police pension cases i don't believe so but what i think counsel is trying to do in the in his oral argument is to reintroduce the concept that in order for a special risk of a police men to exist there has to be inherent danger in in carrying out their particular police duty still counsel went talking about serving papers on a recalcitrant and that it's not the inherent risk that that decides the case and the important thing is is that johnson said this and jones said this and i suspect virtually all of the other cases that were cited the standard is and this comes from jones in reversing the board and awarding a line of duty just ability pension the court noted the officer need not be injured by the active duty but rather that the injury occur in the performance of an active duty and all of the pension boards focus in their decision in their briefs and in their argument are the specifics of the physical conduct of the plaintiff when the injury occurred and that's not that's not the analysis the a what was he performing what was the capacity in which he was after the joliet an x and the capacity was to testify in accordance with his job as a detective and counsel his belittle the gravity of being a detective and responding to a subpoena he was responding to a subpoena and he was testifying before a grand jury involving criminal  matters i believe that they have is that is clearly inherent police work i disagree with counsel i've been a lawyer for forty four years i know i have never been i don't know anyone who's ever been a witness in a grand jury i've never testified in a civil matter i believe that testifying on behalf of the state's attorney when you are a detective  the in will county is is a a special risk of police work he was in performance of that when he was injured the specifics of how he was injured may seem monday but the reality is that it occurred at a point in time that he was performing an active duty this did it doesn't matter would your at all no it's actually it's in my brief your honor because i believe this is johnson i think i think the case i have is essentially the johnson case right officer johnson was a was a chicago police officer who was directing traffic that was his his his assigned duty he was called by a pedestrian they had had some sort of an accident and he crossed michigan avenue to respond to the civilian and having nothing to do with what the citizen villian did he slipped on some some oil that was on michigan avenue i believe johnson would have been decided exactly the same if when he finished responding to the civilian he returned to his post and slipped on michigan avenue leaving the scene and returning to his posts but not a very a shot of the johnson would be that he was crossing the road  and since since i perceive that there's a challenge to the veracity of the martin decision i would point out that in the martin vs shiloh decision not only had the detective completed his test at the courthouse already loaded up with with subpoenas he was in a lot of what he was in his automobile and stopped at the stop light when the accident occurred and if you you have to understand the tech to griffon was not directly patrolling it he was not responding to a call but we put into evidence and week we quoted extensively in our brief he is required to be alert to criminal activity he carried a radio on the shift and he was frequently call to respond to criminal activity and he had to be alert to that criminal activity during his entire shift so i don't know me let me ask you this mister when has an officer not in issue is whether he's on the clock i mean the issue is is is he was where i was going it sounded to me like a lot of the argument is once you're on the clock you're in an active duty because you're performing his work i don't know i don't think the nature of that is is because is a special risk of police work i mean you're so you're not you're not super nervous so you are not erasing the special risk requirement absolutely not ok it will  it was meant as far as i can so i think that as far as i recall it he clearly was not finishing his shift he was returning to do other detective assignments at the  station counsel relies heavily on the on the white decision oh and i did want to address since he spent a lot of time talking about buckner again i do occasionally when cases but that's not want to but i think the distinction with with butler is that officer buckner was not at work when the injury occurred she part of her assignment was to be available to respond twenty four hours a day but when her accident occurred she was on her way home she was in her automobile driving halt and her shift was over so that they have i think it's distinguishable i think i think pension board analysis was that being an evidence technician even though they had the police job the job title was civilian work it wasn't police work i also think that they're both wrongly decided and i think when you read the the language in jones and a couple of the other cases we cited the jones court clearly said that in its opinion  in my opinion white is no law i if you actually go on the lexus nexus they reflect that it's over rule that it's been a rule so d i think the the cabin ation of johnson martin jones and rose a support that the decision of the pension board is in conflict with the statute i think it that it's clearly erroneous because in jones and rose neither officer was engaged in in any form of investigation backed officer was one of the cases i won officer rose had been involved in an investigation looking for a juvenile who had run away from hall and he had closed his file on the computer and he has an a gas station and the gas station owner had directed where the teenager had gone and the officer had closed his file and was simply driving a northwest highway and not prospect when the accident occurred and that's why he lost and the court said no  the job of a patrol officer is to patrol that in my opinion the job of the detective in part is is to corrupt cooperate with the state's attorney's office respond to state's attorney's subpoenas and testify my class was injured in the performance of that duty even though the testimony had been given in my opinion your honor it that the transaction had not closed at the time that the injury  fifty nine of the record where the plaintiff admitted under oath that he was not driving on a beat he was not looking out for any particular crime that he had not been contacted by the department telephone or been a passenger in the vehicle but it's important to note as is mr du dissent it's the capacity in which they were acting at the time of the injury and the past he was acting in here is a person who had finished testifying at court and was going back to their car to commute back to their place of work it is not unlike every witness or civilian plaintiffs or defendant or criminal defendant or traffic defended judge clerk court security officer lawyer or anyone else now mr duda accused me of belittling police detectives and and that's absolutely untrue i have nothing but respect for the police i have as well as firefighters embedded kitted my professional career to representing them but at the same time i think it's important to note stating things that are untrue doesn't make them true despite how many times you repeat it the fact is that a police officer is at no greater risk than any civilian who is compelled to go to court that's a reality and that hasn't been refuted factually legally or otherwise and that is that station here and the only way you can overcome the special risk analysis that is used by the pension board in this case is to do exactly what justice holdridge discussed with counsel for the plaintiff and that is to eliminate the special risk requirement the fact is here the plaintiff was engaged in a ctivity that is the same as every civilian who is required to go to court it's the same there's no way that he demonstrates in any way the police officers in gage connectivity are held to some higher risk and certainly because of that the the the pension board seems to have gotten it right here that what i think is being urged by the plaintiff and certainly seems to have come through not only his brief but  today is that so long as they're following some sort of work rule they're automatically entitled to a line of duty disability and that's not true it was a lucid aided by justice holdridge is questioning when he said well whe well when they're filling out paperwork but they're required to fill up paperwork so obviously mandatory is not enough they're required to be at work on time obviously speeding to be able to be at work on time doesn't make an image an active duty and then you have all of the case s decided since johnson all of those cases now mr due to time trying to explain those officers run the clock when they ran over the the when the officers foot was run over they were in the process of going out on patrol they were going to get in the car and start driving before that they showed up but they did roll call they did all of that they weren't off the clock it weren't starting at somebodies house they were at the police station there in uniform you're getting into a mar police car with a radio that they were required to monitor and go up and that was much closer to the cases of jones or rose where you have the actual risk of somebody going out on patrol draws a distinction as to the additional things that police officers are expected to do when they're in a marked police car that they are more likely to be summoned for help then in this day and age of less than positive police atmosphere they may be deemed a target i want to take that argument off the table i want to make clear that's not what we're dealing with here that's ok i think in some when we look at this case we have to remember america prides itself on having open courts citizens are ordinarily routinely and constitutionally mandatorily woven into our court system police officers are not any different and they're not any different risk than a citizen who is compelled to attend court as such there was no special risk here meaning he was not engaged in activity duty and we asked the appellate court to affirm the pension board's decision in this ma