Shempf v. Chaviano

Decision Date20 March 2019
Docket NumberNo. 1-17-3146,1-17-3146
Citation430 Ill.Dec. 415,126 N.E.3d 503,2019 IL App (1st) 173146
Parties Charles SHEMPF, as a Member of the Midwest Region of the Laborers' International Union of North America, and Great Plains, Southern and Central Illinois, and Southwest Illinois Laborers' District Councils, Plaintiffs-Appellants, v. Hugo CHAVIANO, Director of Labor, and the Department of Labor, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Ellen Schanzle-Haskins, of Springfield, for appellants.

Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Laura Wunder, Assistant Attorney General, of counsel), for appellees.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 This case involves a dispute under the Prevailing Wage Act ( 820 ILCS 130/0.01 et seq. (West 2016) ). After the Illinois Department of Labor (the Department) failed to post prevailing wage rates for 2016 on its website, plaintiffs, Charles Shempf, in his capacity as a member of the Midwest Region of the Laborers' International Union of North America, and the Great Plains, Southern and Central Illinois, and Southwest Illinois Laborers' District Councils (collectively, Shempf), filed a two-count complaint against the Department and its director for administrative review and mandamus.

¶ 2 The circuit court issued the writ and directed the Department to post the 2016 prevailing wage rates by May 26, 2017. The Department complied with that order, but with a catch: When it published the 2016 rates on its website, it stated that the new rates would not go into effect until June 5, 2017. Shempf's position was that the published rates should have retroactive effect, and thus the Department's inclusion of a prospective effective date did not comply with the writ. So he filed a document styled as a "Request for Clarification or Rule to Show Cause."

¶ 3 The trial court denied the motion, believing that it lacked jurisdiction to consider Shempf's request, as the motion had been filed more than 30 days after entry of the writ of mandamus, which had been accompanied by language under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). Later, the court dismissed Shempf's claim for administrative review, ruling that it lacked subject-matter jurisdiction and that, in any event, the claim had become moot once the Department posted the 2016 rates.

¶ 4 On appeal, Shempf argues that the circuit court had jurisdiction to consider his motion for clarification or rule to show cause, as the motion sought enforcement of the mandamus order, and because he still had the right to seek damages, attorney fees, and costs against the Department. Second, Shempf says the court erred by dismissing his administrative-review claim.

¶ 5 We view Shempf's motion for clarification or to issue a rule to show cause as both a request to modify and a request to enforce the mandamus order. The request to modify the writ was untimely, as it was a postjudgment motion directed against the judgment that was filed more than 30 days after entry of the mandamus order and its Rule 304(a) language. The request for damages and costs were properly denied under the doctrine of sovereign immunity, and the request for attorney fees was properly denied as lacking statutory authority. To that extent, we affirm the trial court's judgment denying the motion for clarification or rule to show cause.

¶ 6 But the request for a rule to show cause contained within that motion was proper and timely, as it was a request to enforce the mandamus order and was thus not governed by a 30-day clock. We vacate the trial court's judgment to that extent and remand for the limited purpose of allowing Shempf to present his motion for a rule to show cause.

¶ 7 We affirm the trial court's dismissal of the administrative-review claim, as the court properly determined that it lacked subject-matter jurisdiction to hear it. The action of the Department about which Shempf complained was not a final administrative decision as contemplated by the Administrative Review Law ( 735 ILCS 5/3-101 et seq. (West 2016) ).

¶ 8 BACKGROUND

¶ 9 The Prevailing Wage Act's purpose is to ensure that laborers employed by public bodies receive "[n]ot less than the general prevailing rate of hourly wages for work of a similar character on public works in the locality in which the work is performed." 820 ILCS 130/3 (West 2016). The intricacies and specifics of how this plays out are unnecessary to detail here, but what follows is a general overview of how the process typically works, and what happened in this case.

¶ 10 Each year, public bodies are required to ascertain the prevailing wage, post it, and submit it to the Department by July 15. See id. § 9. In the preceding month of June, the Department is required to determine the prevailing wage for each county, too. Id. Ultimately, the Prevailing Wage Act contemplates that the Department will publish the prevailing wage rates on its website. Id. According to Shempf, the Department traditionally posted its county-by-county prevailing wage rates by July 15 of each calendar year.1

¶ 11 But in 2016, the Department did not publish those rates on July 15. Instead, it posted this on July 15:

"The 2015 prevailing wage rates are still in effect until the Department publishes the 2016 rates. The Department is in the process of determining 2016 rates and expects to have them published by late August. July 15 remains the statutory deadline for local governments to provide copies of their rates to the Department, but is not the deadline for the Department to publish its new rates."

¶ 12 The Prevailing Wage Act provides that, once the Department publishes the county-by-county prevailing wage rates on its website, individuals may object to those rates. 820 ILCS 130/9 (West 2016). The Department must give objectors an administrative hearing at which both the objectors and the Department (or any relevant local public body) will put forth evidence supporting their respective positions. Id. Ultimately, the Department will make a final determination as to the proper prevailing wage rate. Id. The objector may seek judicial review of that final determination under the Administrative Review Law. Id.

¶ 13 When the Department posted the website notice on July 15, 2016, that it was indefinitely continuing the previous year's prevailing wage rates until further notice, Shempf's labor union filed an objection under section 9 of the Prevailing Wage Act and requested a hearing. The Department responded that it had not yet posted 2016 prevailing wage rates, so an objection and request for hearing was premature.

¶ 14 Within a month, Shempf filed this lawsuit, seeking both administrative review of the Department's denial of an administrative hearing and a writ of mandamus to compel the Department to post updated 2016 rates.2

¶ 15 In February 2017, the court severed the mandamus claim from the administrative-review count and set the mandamus claim for expedited review. On May 19, 2017, the court granted summary judgment to Shempf on his mandamus claim and entered an order mandating that the Department "shall publish 2016 prevailing wage rates on its website by 5 PM on May 29, 2017." The court also included in this order a finding, pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), that there was no just reason to delay enforcement of, or appeal from, that order.

¶ 16 Three days later, by agreement of the parties, the trial court amended that order to correct a scrivener's error and reflect the intended date of May 26 , 2017, for the publication of those rates.3

¶ 17 On May 26, 2017, the Department posted the 2016 prevailing wage rates on its website. But the posting stated that these updated prevailing wage rates would apply only to "work performed on or after June 5, 2017 ." (Emphasis added.)

¶ 18 Shempf objected to the strictly prospective effective date. On June 20, 2017—more than 30 days after the May 19 mandamus order—he filed a motion styled a "Request for Clarification or Rule to Show Cause." He argued, in essence, that the Department violated the mandamus order by giving the newly published rates prospective application only. (In a later filing, Shempf requested costs and fees pursuant to section 14-105 of the Code of Civil Procedure, part of the mandamus statute. See 735 ILCS 5/14-105 (West 2016).)

¶ 19 The Department filed a written response to the motion for clarification or rule to show cause, arguing that the Department complied with the court's order and that, in any event, the circuit court lacked jurisdiction to consider Shempf's motion. Among other things, the Department argued that the motion was untimely, having not been filed within 30 days of the court's mandamus order, with its Rule 304(a) language.

¶ 20 The trial court denied Shempf's motion in its entirety. The court stated its agreement with the Department that it lacked jurisdiction, as the motion was filed more than 30 days after the entry of the mandamus order:

"Well, here is the problem, okay? I don't have jurisdiction. 30 days is done. It's out the door. So I'm denying your motion. There's nothing I can do. So now the new law is in effect, we'll see what happens with the—you know, see what tricks they can pull on that one."

¶ 21 In September 2017, Shempf filed a motion for summary judgment on its administrative review claim. The motion also contained a requested for reasonable expenses and attorney fees pursuant to section 10-55(c) of the Illinois Administrative Procedure Act. See 5 ILCS 100/10-55(c) (West 2016). In response, the Department argued both that the administrative-review claim was moot—as the Department had now published the new rates—and that the court lacked subject-matter jurisdiction over that claim, because the Department's refusal to hold a hearing was not a final administrative decision subject to administrative...

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