Our previews of the oral arguments on the Illinois Supreme Court’s September docket begin with Hooker v. Retirement Fund of the Firemen’s Annuity and Benefit Fund of Chicago, which is set for argument tomorrow morning, September 11.

Our detailed summary of the facts and lower court rulings in Hooker is hereHooker involves two surviving spouses of firefighters who died in 1998 and 2000, respectively. Both were awarded the widow’s minimum annuity under 40 ILCS 5/6-141.1. In 2004, the General Assembly amended the Pension Act to require an award of Duty Availability Pay (DAP) in certain pension calculations. The widows amended their administrative complaints, arguing they should have been awarded line-of-duty benefits retroactively to the date of the decedents’ deaths, and DAP should have been included in the pension calculations. They sought leave to present the DAP issue as a class action.

Addressing the line-of-duty issues first, the Circuit Court reversed the Retirement Board and ordered an award of line-of-duty benefits. The Board again refused to include DAP in its benefit calculation on remand, pointing out that neither decedent had received DAP during his lifetime. The Circuit Court refused to certify the class and granted the Board summary judgment, but the Appellate Court reversed.

Look for the Hooker argument to play out as a debate between alternative views of two clauses of the Pension Code. The problem here is that Pension Code doesn’t adopt a single philosophy as to how to calculate firefighter’s pensions. Some provisions provide that calculations are based on what the firefighter received during his or her lifetime. Others base the calculations on what the approved salary for the firefighter’s last position is today, even if the firefighter never received that salary.

Section 6-111 of the Pension Code seems to reflect the first view: “the salary of a fireman, as calculated for any purpose under this Article, shall include any duty availability pay received by the fireman . . .”

But then there’s Section 6-140 to contend with: “The annuity for the widow of a fireman whose death results from the performance of an act or acts of duty shall be an amount equal to 50% of the current annual salary attached to the classified position to which the fireman was certified at the time of his death and 75% thereof after December 31, 1972.”

The Board will likely argue that the language of Section 6-111 of the Code is clear, and provides that if a particular firefighter never received DAP, the survivor’s pension cannot include it either. The plaintiffs may respond that this oversells the clarity of Section 6-111. The statute says that DAP received by the firefighter is included, but it doesn’t say that only DAP actually received during the firefighter’s lifetime is included. Had the legislature intended that result, the argument might go, it would have said so. And this leads to the conclusion reached by the Appellate Court: under 6-111, if a calculation requires the analyst to plug in the firefighter’s salary, only DAP actually received is included. In the calculation required by section 6-140, this is the first half of the equation. But then, the current salary attached to the decedent’s last position is plugged into the annuity calculation. All DAP would be included in that portion of the calculation, whether or not the decedent ever received it.

Which answer the Supreme Court chooses may make a significant difference. The Board had argued that no class could be certified, arguing that the need to calculate each survivor’s benefits outweighed any common questions. The Appellate Court reversed the lower court, ordering certification of a class of more than one hundred survivors who were purportedly denied DAP calculations in their survivors’ annuities.