Prevailing wage law optional under home-rule

Home-rule municipalities need not comply with the provisions of the Prevailing Wage Act, provided they do so as a deliberate exercise of home-rule authority. That was the 4-3 decision handed down November 20 by a sharply divided Illinois Supreme Court on an issue that has been building for a long time. The court was split along party lines with Justice Golden-hersh the lone Democrat siding with the majority.

Speaking for the majority, Justice Ben Miller said that a city is within its home-rule powers in choosing not to comply with the prevailing wage law and that the state does not have an overriding interest in the issue. Speaking for the dissenters, Justice Seymour Simon said that the ruling could turn state labor laws into "an assortment of Swiss cheese.'' Concurring in the dissent were Chief Justice William G. Clark and Justice Daniel P. Ward. The case is People ex rel. Bernardi v. City of Highland Park (Docket No. 62419).

Relying on Article VII, sections (a), (g), (h) and (i) of the 1970 Illinois Constitution, the majority held that unless a broad state interest is involved, the General Assembly must specifically deny powers to home-rule municipalities when it enacts broad or comprehensive legislation. Otherwise, the power is presumed to be held by the municipality.

In the present case the city of Highland Park advertised for bids on a municipal water treatment plant without conforming to requirements of the Prevailing Wage Act (Ill. Rev. Stat. 1985, ch. 48, secs. 39s-l through 39s-12). The act provides that wages on a public works project correspond to those generally paid on public works projects in the county. The parties stipulated that the city made this decision consciously rather than by negligence or error.

Miller said that home-rule authority allows a municipality to avoid complying with the prevailing wage provision since "wages to be paid on the public works projects of home rule municipalities and counties affect local interests and are a matter pertaining to the government and affairs of the local unit." Since the legislature has not expressed an intent to preempt the prevailing wage issue and since "the rule has developed that home rule activity may supersede conflicting statutes that were in existence when the 1970 Constitution took effect," the prevailing wage law, passed in 1941, may be superseded. The municipality need not state its intention to avoid compliance as long as the noncompliance is a deliberate rather than inadvertent action. Said Miller, "Requiring a home rule unit to formally express its intent to deviate from a statute would mean that, by municipal default, legislation would preempt local activity, even though the legislature had not expressed its preemptive intent." If the General Assembly wants home-rule governments to comply with the prevailing wage law, it should enact preemptive legislation.

Justice Simon disagreed with the finding that the prevailing wage is a local issue. He said that "the reduced wages for public works in Highland Park could profoundly depress the prevailing wage in Lake County and thereby reduce earnings of workers outside the home-rule unit." Simon also contended that the majority decision sets precedents for home-rule communities to avoid provisions in many other labor statutes. Stating that "the State has a far more vital interest in regulating labor conditions than do communities," Simon said: "The majority has created a home rule monster, which, to slake local political or economic expediencies, will in time devour the General Assembly's carefully crafted and balanced economic policies."                               F. Mark Siebert

Standing on the corner, watching all the cars go by

How fundamental is the right to stand on the highway and solicit drivers? Not so fundamental that it can't be severely restricted — but not so severely restricted that there can't be exceptions made. That was the decision of the Illinois Supreme Court handed down December 3. The court upheld sections of the Illinois Vehicle Code that limit solicitation on the state's roads to certain narrowly defined charities and forbid it for everything else — whether for rides, business purposes (including prostitution) or charitable contributions (Ill. Rev. Stat. 1985, ch. 95 1/2, sec. 11-1006). Justice Joseph H. Goldenhersh wrote the opinion in People v. Susan Tosch (Docket No. 62096). Chief Justice William G. Clark dissented.

The defendant was arrested for soliciting rides and business after she was seen "stopping vehicles containing males [sic] subjects and engaging them in conversation." The code only allows solicitation of contributions; the solicitation must be expressly permitted by a municipality, and can only be done by charitable organizations engaged in statewide fund raising and registered with the attorney general.

The defendant agreed that the state has a legitimate reason — the health, safety and welfare of highway users — to prohibit solicitation. She argued, however, that it has no legitimate reason to exempt certain charities from the prohibition. She said that the statute abridges first amendment rights of free speech because it is an arbitrary and unreasonable classification, based on the legislature's desire to "exclude religious organizations referred to 'cults' such as the Moonies and Hare Krishnas." Although she is not a member of the class discriminated against, the broad framing of the statute means that her own first amendment rights are abridged, and that she has standing to challenge the entire section of the code.

Noting that "First amendment rights are not absolute, and reasonable time, place and manner restrictions on the exercise of those rights are well recognized," Justice Goldenhersh said that the charitable solicitations in question result in "benefits to the public which offset the risks inherent in solicitation on the highways." Therefore they are "reasonably related to a legitimate government objective" and "not an abridgement of fundamental rights," he said.

In a dissenting opinion Chief Justice Clark said that it is not an answer "to claim that the State may balance the risk of harm against the benefit it believes will accrue from the collection of funds for certain specified charties." By doing this, Clark said, "The State discriminates between speakers on the basis of perceived differences in the content of their messages. This is a type of discrimination which the first amendment categorically forbids."

F. Mark Seibert

High court compels Cronson to audit its appropriated funds

Funds appropriated for the Illinois Supreme Court by the legislature must be audited by the auditor general. That was the gist of the order requested by the acting director of the Administrative Office of the Illinois Courts and issued by the Illinois Supreme Court December 3. Auditor General Robert C. Cronson, however, refused to take part in the court action and said he would appeal the order. Thus it appears that the longstanding controversy between the auditor general and the Illinois Supreme Court will rage on, with Cronson promising to appeal to the U.S. Supreme Court. Justice Joseph H. Goldenhersh wrote the majority opinion in Madden v. Cronson (Docket No. 62355), and Justice Seymour Simon specially concurred.

Article VIII of the 1970 Constitution requires that all appropriated public funds be audited. Until fiscal year 1979 the Auditor General's Office routinely audited funds appropriated for the Supreme Court. In that year, however, Cronson refused to carry out the audit. His reason: In 1977 he had demanded permission to audit records of the Board of Law Examiners and the Attorney Registration and Disciplinary Commission. The Supreme Court denied permission on the grounds that the funds of both bodies were not appropriated and, consequently, not "public funds." Cronson held that their administration by organizations controlled by the court made them a part of the court's funds, and that failure to audit them would result in a "fragmented audit," impermissible under good accounting practice. The matter of Cronson's authority to audit board and commission funds is the subject of another case now in circuit court.

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In this case the issue was an action brought by William A. Madden, acting director of the Administrative Office of the Illinois Courts, which is an office under the Illinois Supreme Court. Madden asked for a court order requiring the Auditor General to audit Supreme Court funds appropriated by the General Assembly. In a "special and limited appearance" before the high court Cronson contended that the court's initial action concerning board and commission funds as well as subsequent statements by various justices indicate prejudgment and bias. He also argued that since Madden is an employee of the court, the court is really hearing its own case. Cronson argued that for all these reasons he could not expect a fair and impartial hearing and that the court lacks jurisdiction on due process grounds.

Concerning jurisdiction, Justice Goldenhersh said that Article VI of the state Constitution gives jurisdiction in cases relating to writs of mandamus and that the question of bias only applies to the removal of individual justices from a case where they have a conflict of interest. Recent decisions by the U.S. Supreme Court require a "direct, personal, substantial, (and) pecuniary" interest before a judge would have to remove himself on due process grounds. This case has "no pecuniary effect on the individual justices of this court."

Goldenhersh said that while the status of the board and commission funds is the subject of current litigation, there is no question that the court's appropriated funds are "public funds" and therefore subject to audit under the Constitution and the Illinois State Auditing Act (Ill. Rev. Stat. 1985, ch. 15, sec. 303). The auditor general is given no discretion, he said.

In a special concurrence Justice Seymour Simon agreed with the majority's conclusion but said that "too little attention has been given to the appearance of impropriety which arises from our participation in the case." Simon rejected Cronson's suggestion that the court appoint a "temporary acting Supreme Court" as legally impossible. Instead, noting that "hundreds of millions of dollars appropriated by the legislature" are going unaudited, he invoked the common law rule of necessity, going back to 1870. It covers situations in which a judge has an interest in a case "where no provision is made for calling another in, or where no one else can take his place — it is his duty to hear and decide, however disagreeable it may be." The rest of the court had refused to apply the rule since it considered Cronson's assertions to have no merit.                        F. Mark Siebert

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