The Bd. of Commissioners In County of Allen v. Ne. Ind. Bldg. Trades Council

• Decision Date: 31 October 2011
• Docket Number: No. 02A03–1009–PL–534.,02A03–1009–PL–534.
• Citation: 954 N.E.2d 937
• Parties: The BOARD OF COMMISSIONERS IN COUNTY OF ALLEN, Commissioner Linda K. Bloom, Commissioner, William Brown, Commissioner, and F. Nelson Peters, in their official capacities, Appellants–Defendants,v.NORTHEASTERN INDIANA BUILDING TRADES COUNCIL, Kent L. Prosser, Mark Jarrell, Gregory Stoller, and Michael Kinder & Sons, Inc., Appellees–Plaintiffs.
• Court: Indiana Appellate Court

954 N.E.2d 937

The BOARD OF COMMISSIONERS IN COUNTY OF ALLEN, Commissioner Linda K. Bloom, Commissioner, William Brown, Commissioner, and F. Nelson Peters, in their official capacities, Appellants–Defendants,

v.NORTHEASTERN INDIANA BUILDING TRADES COUNCIL, Kent L. Prosser, Mark Jarrell, Gregory Stoller, and Michael Kinder & Sons, Inc., Appellees–Plaintiffs.

No. 02A03–1009–PL–534.

Court of Appeals of Indiana.

June 15, 2011.Publication Ordered Aug. 29, 2011.Transfer Denied Oct. 31, 2011.

Carrie H. Gutman, Hawk, Haynie, Kammeyer & Chickedantz, LLP, Fort Wayne, IN, Attorney for Appellants.Donald D. Schwartz, Arnold & Kadjan, Chicago, IL, Alan Verplanck, Eilbacher Fletcher, Fort Wayne, IN, Attorneys for Appellees.A. Jack Finklea, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Indianapolis, IN, Attorney for Amicus Curiae Associated Builders and Contractors Indiana Chapter Inc.Todd A. Richardson, Joseph P. Rompala, Lewis & Kappes, P.C., Indianapolis, IN, Attorneys for Amicus Curiae Indiana Building Contractors Alliance.Neil E. Gath, Geoffrey S. Lohman, Fillenwarth, Dennerline, Groth & Towe, LLP, Indianapolis, IN, Attorneys for Amicus Curiae Indiana State Building and Construction Trades Council.

OPINION

ROBB, Chief Judge.

Case Summary and Issues

In April 2009, the Board of Commissioners of Allen County (“Commissioners”) met and determined the common construction wages for the renovation of the Keystone Building, an Allen County public work project. In response, the Northeastern Indiana Building Trades Council (“Trades Council”), Kent Prosser, Mark Jarrell, Gregory Stoller, and Michael Kinder & Sons, Inc. (collectively, “Appellees”) brought this action for judicial review.¹ The trial court granted summary judgment in favor of the Appellees and set aside the Commissioners' common wage determination. The Commissioners appeal and raise three issues, which we reorder and restate as: 1) whether the Appellees have standing to pursue this action; 2) whether the trial court had subject matter jurisdiction to review the Commissioners' common wage determination; and 3) whether the trial court correctly determined that the Commissioners' common wage determination was not supported by substantial evidence. We conclude the Trades Council has associational standing to sue on behalf of the affected members of its constituent unions, the trial court had subject matter jurisdiction, and the Commissioners' common wage determination was not supported by substantial evidence. Accordingly, we affirm the trial court's judgment.²

Facts and Procedural History

On February 10, 2009, a wage committee was appointed to determine the common construction wages to be paid for the Keystone Building renovation project (“Keystone Project”). The Keystone Project is an Allen County public work subject to the common construction wage statute, Indiana Code chapter 5–16–7. Due to a conflict of interest by one wage committee member, the wage committee was subsequently reconstituted. On March 23, 2009, the wage committee met and considered wage scales proposed by the Indiana Department of Workforce Development, the Trades Council, and Associated Builders and Contractors, Indiana Chapter, Inc. (“ABC”).³ The committee reached a tie vote, with two members voting to adopt the Trades Council's proposed wage scale, two members voting to adopt the ABC wage scale, and the other member abstaining. As a result of the deadlocked vote, responsibility for the common wage determination passed to the Commissioners as the “awarding agency” pursuant to Indiana Code section 5–16–7–1(g).

On April 3, 2009, two of the three Commissioners, Commissioner F. Nelson Peters and Commissioner Linda K. Bloom, met as the awarding agency. The Commissioners received information from Ken Neumeister, a representative of ABC, and from Michael Avila, representing the Trades Council. The Commissioners also received the transcript and exhibits from the March 23, 2009 wage committee meeting. At the conclusion of the April 3 meeting, the Commissioners voted to adopt the wage scale proposed by ABC as the common construction wages for the Keystone Project.

On April 15, 2009, the Appellees filed their amended complaint, alleging that the Commissioners' common wage determination was arbitrary and capricious given “the lack of any evidence substantiating that the ABC wage scale represented the mode wages paid in Allen County” and requesting, among other relief, that the Commissioners' decision be voided and set aside. Appellants' Appendix at 49. The Commissioners filed motions to dismiss, arguing that the trial court lacked subject matter jurisdiction to review the Commissioners' common wage determination and that the Appellees lacked standing to bring the action. The trial court denied both motions to dismiss. The Appellees and the Commissioners filed cross-motions for summary judgment, and ABC was granted permission to file an amicus curiae brief. Following a hearing, the trial court issued its order granting summary judgment to the Appellees and setting aside the Commissioners' common wage determination. ⁴ As the basis for setting aside the Commissioners' decision, the trial court held the decision was “unsupported by substantial evidence.” Id. at 19. The Commissioners now appeal. Additional facts will be supplied as appropriate.

Discussion and Decision ⁵

Indiana's common construction wage statute provides that any entity awarded a contract for the construction of a public work, as well as any subcontractor, “shall pay for each class of work ... on the project a scale of wages that may not be less than the common construction wage.” ⁶ Ind.Code § 5–16–7–1(a). The awarding agency, in this case the Commissioners, is required to compose a five-person committee for the purpose of ascertaining the common construction wage.⁷ Ind.Code § 5–16–7–1(b). As soon as appointed, the committee shall meet and classify the labor to be employed in the project as skilled, semiskilled, and unskilled and determine the hourly wage to be paid for each class. Ind.Code § 5–16–7–1(c). “The rate of wages determined ... shall not be less than the common construction wage for each of the three (3) classes of wages ... that are currently being paid in the county where the project is located.” Ind.Code § 5–16–7–1(d); see also Ind.Code § 5–16–7–4(1) (defining “common construction wage” as “a scale of wages for each class of work described in section 1(c)(1) of this chapter that is not less than the common construction wage of all construction wages being paid in the county where a project is located”). The committee shall make and file its common wage determination with the awarding agency at least two weeks prior to the date fixed for letting of the contract. Ind.Code § 5–16–7–1(f). If, as occurred here, the committee fails to meet this deadline, “the awarding agency shall make the determination, and its finding shall be final.” Ind.Code § 5–16–7–1(g).

I. Appellees' Standing

The Commissioners raise the threshold issue of whether the Appellees lack standing to pursue this judicial review action. In response, the Appellees argue they have both associational and public standing. The trial court resolved the standing issue in the Appellees' favor in denying the Commissioners' motion to dismiss. When reviewing the grant or denial of a motion to dismiss for lack of standing under Trial Rule 12(B)(6), we must take the allegations of the complaint as true, we are presented with a pure question of law, and our standard of review is de novo. State ex rel. Steinke v. Coriden, 831 N.E.2d 751, 754 (Ind.Ct.App.2005), trans. denied. If, however, affidavits or other materials are attached to the motion to dismiss, it is treated as a motion for summary judgment under Trial Rule 56. Thomas v. Blackford County Area Bd. of Zoning Appeals, 907 N.E.2d 988, 990 (Ind.2009). Here, while the trial court reviewed the Commissioners' motion using the Rule 12(B)(6) standard, the Commissioners did attach and refer to two exhibits in their motion, and therefore it is properly reviewable under the summary judgment standard.

We find associational standing to be the most helpful lens for analysis, and thus address whether the Appellees have associational standing to sue on behalf of their members. The Indiana doctrine of standing “focuses on whether the complaining party is the proper party to invoke the court's power. Courts seek to assure that litigation will be actively and vigorously contested.” Foundations of E. Chicago, Inc. v. City of E. Chicago, 927 N.E.2d 900, 903 (Ind.2010) (citation omitted). This court has held an association has standing on behalf of its members if it can satisfy a three-part test articulated by the United States Supreme Court and adopted by a number of other states. Save the Valley, Inc. v. Indiana–Kentucky Elec. Corp., 820 N.E.2d 677 (Ind.Ct.App.2005) (citing Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)), aff'd on reh'g, 824 N.E.2d 776, trans. denied. The three requirements are: 1) the association's members would otherwise have standing to sue in their own right; 2) the interests the association seeks to protect are germane to its purpose; and 3) neither the claim asserted nor the relief requested requires participation of individual members in the lawsuit. Id. at 680.

Turning to the relevant facts, it is undisputed that the Trades Council “is an association of labor organizations representing union craftworkers who work for union employers in Allen County.” Appellants' App. at 38. Prosser is President of the Trades Council. Jarrell “is a business agent and member of Laborers Local 213, a member union of the Trades Council, and resides in Allen County.” Id. Stoller is a member of Bricklayers Local 4, resides in Allen County, has worked on common wage projects in Allen County in the past, and alleged an interest in working on the Keystone Project. Michael...