On December 26, 2018 the First District Appellate Court issued its Opinion in Johnson v. Municipal Employees’, Officers’, & Officials’ Annuity and Benefit Fund of Chicago, et al.  This case involves a plaintiff’s attorney’s petition for fees after prevailing in Jones v. MEABF in which the Illinois Supreme Court found that certain legislation violated article 13 section 5 of the Illinois constitution (“the pension protection clause”).  The trial court denied the petition for attorney’s fees and the appellate court affirmed.

The plaintiff’s attorney petitioned for fees pursuant to the Illinois Civil Rights Act (“the Act”) and under a “common fund theory” as part of a proposed class action.  Section 5(a) of the Act prohibits discrimination based on a person’s race, color, national origin, or gender and section 5(b) of the Act authorizes a lawsuit against the offending unit of government.  Section 5(c) of the Act authorizes attorney’s fees to a prevailing party in a lawsuit brought (1) pursuant to subsection (b) of the Act or (2) to enforce a right arising under the Illinois Constitution.  The trial court and the appellate court denied the fee petition because the issues raised in the lawsuit did not relate to the Act.  Rather section 5(c) of the Act only authorizes attorney’s fees to a prevailing party on a discrimination claim against a governmental body involving one of the identified suspect classes.  The courts rejected an expansive reading of section 5(c) that would allow for an award of attorney’s fees based on any claim or right arising under the Illinois Constitution.

The appellate court also noted that the Pension Code’s provisions exempting pensions from garnishment or attachment did not contain a statutory exemption for attorney’s fees.  Therefore, the Pension Code barred garnishing plan participant’s benefits for the purpose of paying attorney’s fees under the Act or the common fund doctrine.

The appellate court also rejected the plaintiff’s attorney’s attempt to create a common fund of money from which fees could be paid.  The common fund doctrine “touches the power of equity in doing justice between a party and the beneficiaries of litigation.”  The appellate court held the litigation did not create a common fund of money and that the petition sought to take money directly from member pension checks in order to pay attorney’s fees.

Finally, the appellate court held that recovery of attorney’s fees under both the Act and the common fund doctrine would not be reasonable.

Click HERE to listen to the Oral Argument in this appeal.

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