Beary Landscaping, Inc. v. Ludwig
| Decision Date | 28 March 2007 |
| Docket Number | No. 05 C 5697.,05 C 5697. |
| Citation | 479 F.Supp.2d 857 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | BEARY LANDSCAPING, INC., Great Lakes Landscape Co., Inc., Mahoney & Associates, LLC, McGinty Bros., Inc., Natural Creations Landscaping, Inc., Pederson Co., Reil Construction, Inc., Sebert Landscaping Co., Stan's Landscaping, Inc., Walsh Landscape Construction, Inc., Brian Beary, John Cederlund, Jose Garcia, Sandra Harynek, Clinton J. Mahoney, Charles P. Mcginty, Sr., Paul F. Pederson, Stanley Pederson, Jeffrey Sebert, and John R. Walsh III, Plaintiffs, v. Art LUDWIG, in his official capacity as Director of the Illinois Department of Labor, Defendant. |
Donald James McNeil, Douglas Matthew Oldham, Barnes & Thornburg, LLP, Michael James Mueller, Jackson Lewis LLP, Chicago, IL, for Plaintiffs.
Raymond G. Garza, Peter Chadwell Koch, Office of the Attorney General, AUSA, United States Attorney's Office, Chicago, IL, for Defendant.
Plaintiffs identify themselves as are a group of landscape contracting companies and individual taxpayers. (D.E. 34 at 1.)1 Specifically, Plaintiffs identify Beary Landscaping, Inc., Great Lakes Landscape Co., Inc., Mahoney & Associates, L.L.C., McGinty Bros., Inc., Natural Creations Landscaping, Inc., Pederson Co., Reil Construction, Inc., Sebert Landscaping Co., Stan's Landscaping, Inc., and Walsh Landscape Construction, Inc., as "Landscape Contractors." (Id.) Plaintiffs identify Brian Beary, John Cederlund, Jose Garcia, Sandra Harynek, Clinton J. Mahoney, Charles P. McGinty, Sr., Paul F. Pederson, Stanley Pederson, Jeffrey Sebert and John R. Walsh III as "Individual Taxpayers" who also are officers and owners of the Plaintiff Landscape Contractors. (Id. at 1, ¶ 8.) Plaintiffs have filed suit against Art Ludwig ("Defendant"), in his official capacity as Director of Illinois Department of Labor ("IDOL") for injunctive and declaratory relief, claiming that the IDOL's enforcement of the Illinois Prevailing Wage Act ("IPWA"), 820 ILCS 130/1 et seq., deprives Plaintiffs of their rights to due process and equal protection of laws. Defendant moves to dismiss Plaintiffs' suit pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for this Court to abstain from proceeding at this time "in light of a pending parallel state-court proceeding that addresses the same dispute." (D.E. 23 at 1.) For the reasons stated herein, the Court grants Defendant's motion to dismiss in part and denies it in part.
Plaintiffs allege that the Landscape Contractors have bid on and performed landscape projects for the State or Illinois or municipalities within it. (D.E. 34 ¶ 5.) Plaintiffs also allege that the IPWA as enforced by Defendant violates their constitutional rights. Therefore, Plaintiffs ask the Court to enjoin enforcement of the IPWA against them as it relates to projects they perform in an area consisting of the following Illinois counties: Cook, Du-Page, Grundy, Kane, Kendall, Lake, McHenry and Will. (Id.)
By way of background, the IPWA provides that:
[i]t is the policy of the State of Illinois that a wage of no less than the general prevailing hourly rate as paid for work of a similar character in the locality in which the work is performed, shall be paid to all laborers, workers and mechanics employed by or on behalf of any and all public bodies engaged in public works.
IPWA, 820 ILCS 130/1.
Section 3 of the IPWA requires that workers engaged in the construction of public works be paid "the general prevailing rate of hourly wages for work of a similar character ... in the locality in which the work is performed." Id., 820 ILCS 130/3.
Section 9 of the IPWA provides that:
To effectuate the purpose and policy of this Act each public body shall, during the month of June of each calendar year, investigate and ascertain the prevailing rate of wages as defined in this Act and publicly post or keep available for inspection by any, interested party in the main office of such public body its determination of such prevailing rate of wage and shall promptly file, no later than July 15 of each year, a certified copy thereof in the office of the Secretary of State at Springfield and the office of the Illinois Department of Labor.
In the event that any public body does not ascertain the prevailing wage as specified in 820 ILCS 103/9, the same section specifies that:
The Department of Labor shall during the month of June of each calendar year, investigate and ascertain the prevailing rate of wages for each county in the State. If a public body does not investigate and ascertain the prevailing rate of wages during the month of June as required by the previous paragraph, then the prevailing rate of wages for that public body shall be the rate as determined by the Department under this paragraph for the county in which such public body is located.
The IPWA also provides that:
At any time within 30 days after the Department of Labor has published on its official web site a prevailing wage schedule, any person affected thereby may object in writing to the determination or such part thereof as they may deem objectionable by filing a written notice with the public body or Department of Labor, whichever has made such determination, stating the specified grounds of the objection. It shall thereafter be the duty of the public body or Department of Labor to set a date for a hearing on the objection after giving written notice to the objectors at least 10 days before the date of the hearing and said notice shall state the time and place of such hearing. Such hearing by a public body shall be held within 45 days after the objection is filed, and shall not be postponed or reset for a later date except upon the consent, in writing, of all the objectors and the public body. If such hearing is not held by the public body within the time herein specified, the Department of Labor may, upon request of the objectors, conduct the hearing on behalf of the public body. [....] At such hearing the public body or Department of Labor shall introduce in evidence the investigation it instituted which formed the basis of its determination, and the public body or Department of Labor, or any interested objectors may thereafter introduce such evidence as is material to the issue. Thereafter, the public body or Department of Labor must rule upon the written objection and make such final determination as it believes the evidence warrants, and promptly file a certified copy of its final determination with such public body and the Secretary of State, and serve a copy by personal service or registered mail on all parties to the proceedings. The final determination by the Department of Labor or a public body shall be rendered within 30 days after the conclusion of the hearing.
Id., 820 ILCS 130/9. This determination of the IDOL is thereafter subject to review in the Illinois courts; review of agency action therefore is available before an Illinois Administrative Law Judge, and further judicial review, including in the Illinois appellate courts, is available under the provisions of the Illinois Administrative Review Law, 735 ILCS 3-101 et seq. (E.g., D.E. 46-1, 46-2, 46-3.)
Plaintiffs — through the putative lens of both substantive and procedural aspects of the Due Process Clause of the Fourteenth Amendment, as well the Equal Protection Clause — object to the prevailing wage calculations of the IDOL as they concern various workers in the landscaping industry in Illinois. As one might guess, Plaintiffs contend that the prevailing wage that Plaintiffs have been determined to owe their workers by the IDOL in its application of the Illinois Prevailing Wake Act are too high and that Plaintiffs actually should be required to pay lower wages to their workers under the Illinois statute.
For example, Plaintiffs claim that the IDOL prevailing wage schedules improperly fail to delineate separate wage classification schedules for landscape laborers, as opposed to using more general classifications for laborers or construction laborers. (E.g., D.E. 34 ¶¶ 34, 42-47.) Plaintiffs contend that this practice improperly (indeed, unconstitutionally) requires them to pay unduly high wages to their laborers and other workers under the Illinois Prevailing Wage Act. Plaintiffs also contend that the IDOL fails to conduct certain investigations required to determine the prevailing wage under the Illinois Prevailing Wage Act and that this failure has led to an erroneously high calculation of the prevailing wage for their landscape workers on affected projects.
Plaintiffs also allege that there is no "process an affected party [can] use to object to IDOL's application of its laborer, operating engineer, and truck driver classifications and rates to Landscape Work on public projects" in Cook, DuPage, Grundy, Kane, Kendall, Lake, McHenry, and Will Counties. (Id. ¶ 83.3) Plaintiffs further allege that the process contemplated by IPWA Section 9 (see above) is ineffective because "the Department has a custom, policy or practice of postponing or resetting hearing dates without the consent, in writing, of all the objectors." (Id. ¶ 85.) These continuances lead, Plaintiffs contend, to the IDOL's adjudications occurring more slowly than the 45-day time frame contemplated by the IPWA. (Id. ¶¶ 89-90.) Somewhat paradoxically, Plaintiffs argue that Section 9 proceedings are constitutionally flawed because they afford insufficient time for an objector to assemble the requisite evidence for the administrative proceeding. (See id. ¶¶ 92-93.) Plaintiffs make this contention, notwithstanding that it is undisputed that the IDOL allows an objector "full...
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