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Beary Landscaping, Inc., Great Lakes Landscaping Co., Inc., Mcginty v. Catherine Shannon

March 22, 2011

BEARY LANDSCAPING, INC., GREAT LAKES LANDSCAPING CO., INC., MCGINTY BROS., INC., NATURAL CREATIONS LANDSCAPING, INC., PEDERSEN CO., REIL CONSTRUCTION, INC., SEBERT LANDSCAPING CO., STAN'S LANDSCAPING, INC., WALSH LANDSCAPE, INC., BRIAN BEARY, JOHN CEDERLUND, JOSE GARCIA, SANDRA HARYNEK, CLINTON J. MAHONEY, CHARLES P. MCGINTY, SR., PAUL F. PEDERSEN, STANLEY PEDERSEN, JEFFREY SEBERT, AND JOHN R. WALSH III,
PLAINTIFFS,
v.
CATHERINE SHANNON, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE ILLINOIS DEPARTMENT OF LABOR, DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiffs, landscaping companies and certain of their owners and officers, brought this suit in 2005 over differences with the way the Illinois Department of Labor ("IDOL") sets wages for landscape workers on public works projects. Plaintiffs initially asserted a variety of federal and state theories for their core disagreement about the wages. Judge Mark Filip, who previously had this case, issued an order on March 28, 2007, dismissing many, though not all, of the claims.

In response to Judge Filip's order, Plaintiffs filed a second amended complaint contending three violations of the federal constitution. Count I alleges a violation of the 14th Amendment Due Process clause by improper delegation of governmental power to private parties. Count II alleged a violation of the same clause for failure to afford a hearing, and Count III alleged a violation of the equal protection clause. Plaintiffs voluntarily dismissed Count II. I denied Defendant's motion to dismiss Counts I and III in an order dated November 18, 2008. Later, Plaintiffs voluntarily withdrew Count III. What remains, then, is a single theory: an as-applied challenge to IDOL's wage determination process as an improper delegation to private parties in violation of the due process clause. The parties have cross-moved for summary judgment on this count.

For the following reasons, Plaintiffs' motion is denied and Defendant's motion is granted.

I. FACTUAL BACKGROUND

A.The Parties

Plaintiffs are landscape contractors who perform or have performed landscape construction projects subject to the Illinois Prevailing Wage Act ("IPWA"), 820 Ill. Comp. Stat. 103/0.01 et seq. The projects were all done in one or more of the following counties: Cook, DuPage, Grundy, Kane, Kendall, Lake, McHenry, and Will.

Defendant, Catherine Shannon, is the Director of the Illinois Department of Labor ("IDOL"). She is sued in her official capacity. It is undisputed that her duties include enforcement of the IPWA.

B. Relevant Provisions of the IPWA

The IPWA establishes 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 ILL. COMP. STAT. 103/1.

Section 3 of the IPWA requires that workers engaged in the construction of public works be paid "the general prevailing rate of hourly wages of a similar character...in the locality in which the works is performed." 820 ILL. COMP. STAT. 130/3.

Section 9 of the IPWA specifies that "[t]he 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." 820 ILL. COMP. STAT. 130/9. The same section also states that all such determinations be posted for interested parties to review. See id.

Further, Section 9 of the IPWA states 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.

Id. Illinois' Administrative Review Law "appl[ies] to and govern[s] all proceedings for the judicial review of final administrative decisions of any public body or the Department of Labor" under Section 9. Id. The Administrative Review Law grants the rights of direct and appellate ...


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