People ex rel. Bernardi v. City of Highland Park, 62419

• Decision Date: 11 February 1988
• Docket Number: No. 62419,62419
• Court: Illinois Supreme Court
• Parties: , 117 Ill.Dec. 155, 28 Wage & Hour Cas. (BNA) 886, 105 Lab.Cas. P 55,665, 108 Lab.Cas. P 55,859 The PEOPLE ex rel. E. Allen BERNARDI, Director of Labor, Appellant, v. The CITY OF HIGHLAND PARK et al., Appellees.

Page 316

520 N.E.2d 316

121 Ill.2d 1, 117 Ill.Dec. 155, 28

Wage & Hour Cas. (BNA) 886,

105 Lab.Cas. P 55,665, 108 Lab.Cas. P 55,859

The PEOPLE ex rel. E. Allen BERNARDI, Director of Labor, Appellant, v. The CITY OF HIGHLAND PARK et al., Appellees.

No. 62419.

Supreme Court of Illinois.

Feb. 11, 1988.

Rehearing Denied April 5, 1988.

Neil F. Hartigan, Atty. Gen., Roma Jones Stewart, Sol. Gen., Chicago, for appellant; Rosalyn B. Kaplan, and Sharon W. Denney, Asst. Attys. Gen., Chicago, of counsel.

Robert J. Mangler, Corp. Counsel, Wilmette, for amicus curiae Village of Wilmette, Ill.

Cavanagh, Hosteny & O'Hara, Springfield, for amicus curiae.

David W. Stuckel, Harvey & Stuckel, Chtd., Peoria, for amicus curiae, Illinois Prevailing Wage Council, Inc.

Lester Asher, Stephen B. Rubin, Asher, Pavalon, Gittler and Greenfield, Ltd., Chicago, for Illinois State Federation of Labor and Congress of Indus. Organizations, et al.

Thomas W. Kelty, John M. Myers, Pfeifer & Kelty, P.C., Springfield, for appellee Durocher Dock & Dredge.

Thomas W. Kelty, John M. Myers, Pfeifer & Kelty, P.C., Springfield, Marvin J. Glink, Ancel, Glink, Diamond, Murphy & Cope, P.C., Chicago, for amici curiae Illinois Mun. League and City of Naperville, Ill.

Thomas H. Compere, Corp. Counsel, Bradtke & Zimmermann, Mount Prospect, for City of Highland Park, Robert M. Buhai, Larry Rice, Carmen Rollery, Calvin Tobin, Len Abrahamson, Margie Weiss, Albert MacLeod, Hal Emalfarb, Joyce O'Keefe, and Phil Dittmar, appellees; Erwin W. Jentsch, Mount Prospect, of counsel.

Justice SIMON delivered the opinion of the court:

The principal issue in this appeal is whether a home rule municipality must conform to the requirements of "An Act regulating wages of laborers, mechanics and other workers employed in any public works * * * " (Ill.Rev.Stat.1985, ch. 48, pars. 39s-1 through 39s-12) (Prevailing Wage Act) in seeking bids and awarding contracts for public works projects. The Illinois Department of Labor, through its Director, brought this action in the circuit court of Lake County to enjoin defendant city of Highland Park from awarding a contract for a public works project without first complying with the provisions of the Prevailing Wage Act. The circuit judge dismissed the action, holding that the city, as a home rule unit, could choose not to follow the Act. The appellate court affirmed that decision (135 Ill.App.3d 580, 90 Ill.Dec. 407, 482 N.E.2d 114), and we allowed the Director's petition for leave to appeal (103 Ill.2d R. 315(a)). This court filed an opinion on November 20, 1986, holding that as an exercise of its home rule authority, Highland Park could abrogate the Prevailing Wage Act. On rehearing and reconsideration of its earlier opinion, this court now concludes that the Prevailing Wage Act addresses issues pertaining to statewide rather than local affairs, and as a consequence, Highland Park had no choice but to comply with the statute's requirements.

The facts in this case are not in dispute. On December 29, 1983, the city of Highland Park issued contract specifications for a public works project involving the George B. Prindle Water Treatment Plant. The plant draws its supply from Lake Michigan, and the project called for an intake line serving the plant to be cleaned and then extended some distance into a deeper part of the lake; the purposes of this work were to improve the quality of the water drawn into the plant and to prevent the intake line from freezing, as it had done in the past, threatening the supply of water to the five communities and 70,000 residents served by the plant. Following an investigation into the matter, the Director filed a complaint on February 10, 1984, for injunctive and other relief. The complaint alleged that the city was in violation of the Act by failing to ascertain the local level of wages or adopt the Department's figures, by failing to specify the prevailing wages in the call for bids, and by failing to inform the bidders that they would be required to pay the prevailing rates to workers on the project. The Prevailing Wage Act requires that wages on public works projects correspond to those paid generally on public works projects in the county. Apparently the city council intended to award the contract at its next meeting to the successful bidder, defendant Durocher Dock & Dredge Corporation, and the circuit judge granted the Director's motion for a temporary restraining order.

The city and Durocher admitted that the Prevailing Wage Act had not been complied with, but they contended that the city, as a home rule unit, was not required to comply with the Act. The parties stipulated that the city's failure to refer to the Act in the specifications for the project was "neither a negligent omission nor an error" and that "payment of wages involved with and as prescribed by the Act will result in increased costs to the city for the construction of the water intake extension." The parties also stipulated "[t]hat from and after July 1, 1971, the effective date of the Constitution of Illinois of 1970, the City has not and never has taken the steps which it asserts a non-home rule unit must take and which the Department asserts all public agencies must take to comply with the terms, conditions and regulations of the Act."

The circuit judge later denied the Director's request for a preliminary injunction, dissolved the temporary restraining order that had been issued earlier, and dismissed the Director's action. Finding that the intake extension project for the water-treatment plant was essentially a municipal affair, the circuit judge reasoned that it was within the scope of the city's home rule authority to decide not to comply with the Prevailing Wage Act in contracting for the work; the court noted too that the legislature had not expressed an intent to preempt home rule authority in this area. The circuit judge also believed that the city was not required to pass an ordinance to effect an exercise of its home rule authority. The appellate court affirmed the circuit court's decision, relying essentially on the same reasons.

The parties to this appeal have disclosed that the intake extension project in which this controversy is rooted has been completed, and it follows that the injunctions sought by the Director cannot issue. (See Leitch v. Sanitary District (1944), 386 Ill. 433, 440, 54 N.E.2d 458 (injunction denied because "equity will not require the performance of a useless act").) Although this court will dismiss an appeal as moot upon notice of facts not of record (La Salle National Bank v. City of Chicago (1954), 3 Ill.2d 375, 379, 121 N.E.2d 486), the Director's appeal of this case is not moot merely because the injunctions enumerated in his prayer for relief are now too late. There is life in the appeal because our decision could have a direct impact on the rights and duties of the parties. In People v. Lynn (1984), 102 Ill.2d 267, 80 Ill.Dec. 48, 464 N.E.2d 1031, the defendant challenged the legality of criminal convictions he received without benefit of counsel. This court entertained his appeal even though he had served his sentences because "nullification of a conviction may have important consequences to a defendant." (102 Ill.2d 267, 273, 80 Ill.Dec. 48 464 N.E.2d 1031.) As was true in Lynn, resolution of the Director's appeal will not affect concluded events, but our decision of the issue will "have important consequences" for the parties before the court.

The Director's action was brought pursuant to section 11 of the Act (Ill.Rev.Stat.1983, ch. 48, par. 39s-11) and asked in addition to injunctive relief for "such other relief as the Court deems just and proper." Section 11 provides in part: "Where objections to a determination of the prevailing rate of wages or a court action relative thereto is pending, the public body shall not continue work on the project unless sufficient funds are available to pay increased wages if such are finally determined * * *." Thus, section 11 contemplates the pendency of litigation even after the contracts have been awarded and the project completed; it establishes a mechanism whereby public works improvements may go forward while workers' rights to possibly greater wages are protected. If the public body chooses to continue the work while a court action is in progress, the public body must have the money to pay workers the difference between their wages and the finally determined prevailing wage applicable in the locale. This action to ascertain the reach of the Prevailing Wage Act in home rule jurisdictions is, should the Act be found to apply, the necessary prerequisite to a determination of whether the wages paid on this project were lower than required and also whether Highland Park must disburse the additional wages which, by proceeding with the intake extension project, it impliedly guaranteed were available if needed. Additionally, a decision in this case will affect the parties by establishing whether the Director is required to publish Durocher's noncompliance in the Illinois Register, thus precluding Durocher from being awarded government contracts in Illinois for two years. (Ill.Rev.Stat.1983, ch. 48, par. 39s-11a.) In sum, we cannot say that "no real present question involving actual interests and rights" (Chicago City Bank & Trust Co. v. Board of Education (1944), 386 Ill. 508, 520, 54 N.E.2d 498) is before us. Therefore, the Director's appeal is not moot.

Even if the defendants' duties under the Act were no longer controverted, the case would still be decided as one which "falls into the 'capable of repetition, yet evading review' category" of exceptions to the mootness doctrine. (Madison Park Bank v. Zagel (1982), 91 Ill.2d 231, 236, 62 Ill.Dec. 950, 437 N.E.2d 638, quoting Sosna v. Iowa (1975), 419 U.S. 393, 399-400, 95 S.Ct. 553, 557, 42 L.Ed.2d 532, 540.) As demonstrated here, in future cases the public works project...