A SAD LEGACY

During the previous two months, I have discussed a variety of judicial, legislative and administrative materials that are of current interest to municipalities throughout Illinois. I had intended to continue that discussion, however, a case of great interest to Illinois municipalities has been recently decided and warrants the postponement of the discussion of other items that had been planned for this month.

People ex rel. Bernardi v. The City of Highland Park
(Docket No. 62419, February 11, 1988,
—Ill.2d_,_N.E.2d_,
_ 111. Dec. _, (1988))

On February 15, 1988 the resignation of Justice Seymour Simon became effective. This resignation was proceeded by five opinions on February 11, 1988. These opinions were the last of the 208 that Justice Simon authored for the court. This last group of opinions contains one that leaves behind a legacy for Justice Simon that casts a long shadow over a career that was marked by clear, cogent and forceful reasoning which both his allies and critics respected. Because of its negative impact the parties are filing a petition with the Court for a second rehearing and the League is filing a brief in support of that petition.

The opinion of the Supreme Court authored by Justice Simon in the case of People ex rel. Bernardi v. The City of Highland Park represents a departure from the Justice's pattern of clear reasoning. This opinion upon rehearing while clearly and concisely stating the issue and facts of the case, as viewed by Justice Simon, wanders into uncharted waters that could represent a significant jumping off point for the erosion of home rule powers.

As Justice Simon points out, the facts of the case are clear, however, the Justice has asserted certain items as fact when those items fail to appear in the record.¹ The City of Highland Park issued a contract to Durocher Dock & Dredge Corporation for the improvement of certain water supply facilities owned by the Village. This contract admittedly failed to comply with the Prevailing Wage Act, thereby resulting in lower cost to the Village. Highland Park adopted the position that as a home rule unit, the construction of local public works pertained to its local government and affairs, and since the legislature had not specifically pre-empted the exercise of home rule powers in the Act, the City could avoid application of its requirements to the contract. The Department of Labor, by its Director E. Allen Bernardi, attempted to enforce the provisions of the Act against Highland Park and Durocher. After Highland Park and Durocher prevailed at the trial court and appellate levels, the Supreme Court heard arguments on the case. According to Simon's opinion, "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."

However, an unusual sequence of events following the filing of that opinion resulted in the rehearing of the case and the opinion issued on February 11. Subsequent to the issuance of the first opinion, a nearly unprecedented assault was conducted on the members of the Supreme Court by parties dissatisfied with the previous

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decision. In an apparently coordinated letter writing campaign, labor unions from across the State of Illinois barraged members of the court with letters critizing or commending positions of the Justices, depending upon which side was voted for. These communications apparently resulted in the agreement by the court to rehear the case. On rehearing, the battle lines were drawn as the State and the labor unions against Highland Park and Durocher. For only the third time in thirty years the currently sitting Attorney General appeared personally to argue the case. In addition, numerous labor unions and organizations across the State of Illinois filed "friend of the court" briefs in the matter. Uniformly the briefs assailed the position previously taken by the Supreme Court and were implicitly supportive of Justice Simon's position that the 1986 opinion by the court represented the beginning of an armageddon for labor rights in the State of Illinois. Simon's dissent in the 1986 opinion contended that a large number of labor acts including the Child Labor Act, Minimum Wage Act and numerous others would be destroyed by the decision.

According to Simon, "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." In the rehearing opinion, Simon adopts this conclusion and reaches to fashion a line of reasoning which results in a decision that payment of wages on public works is not a matter of local concern, rather it is a matter of state-wide concern, even though the improvement is constructed wholly for the benefit of the citizens of the municipality and the total cost of that improvement will be borne by the citizens of the home rule municipality.

Simon's reasons to this conclusion are based upon two lines of reasoning, both of which have major shortcomings. First, he cries that labor policy of the State will be destroyed if home rule governments are able to avoid the Act; and, second, that wages paid to workers on public projects do not pertain to the government and affairs of the City. In pursuing this line of reasoning, his result driven opinion ignores the delicate balance that exists between the State and home rule units of government. A careful review of the reasoning displays its utter fallacy.

In adopting the role of prophet foretelling the end of labor rights in Illinois if home rule units are allowed to circumvent the Act, Simon cites ten state acts which will be affected by that decision. According to Simon, "(c)onsistent with the defendants' arguments, home rule units could condone twelve work days, suspend minimum wage requirements and repeal child labor laws within their jurisdictions." (Slip Op., at 10) In addition to the list of ten acts, Simon lists three additional acts which he contends demonstrate that "the advancement of collective bargaining" and "the protection of local labor" are part of "the traditional scope of State labor regulation." Of these thirteen acts (including the child labor law, minimum wage law and eight-hour day law), eleven apply to all employers, one has specifically pre-empted home rule and one was held unconstitutional.² Rather than attempting to explain how these Acts do not differ Simon asserts that:

"Were home rule authorities allowed to govern their local labor conditions, the Constitution's vision of home rule units exercising their powers to solve local problems would be corrupted and that power used to create a confederation of modern feudal estates which, to placate local economic and political expediencies, would in time destroy the Genera] Assembly's carefully crafted and balanced economic policies."

The weakness of Simon's argument is further illustrated by the dissent of Justice Miller. Dismissing Simon's concern as "unfounded", he uses only two sentences to clearly distinguish the Prevailing Wage Act from other labor laws:

"In sharp contrast to the Prevailing Wage Act, those

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other labor laws provide a fixed minimum standard applicable throughout the State to all employees in the State. The Prevailing Wage Act is different: it applies only to projects initiated by public bodies, and the pay rates determined under the Act may vary from locality to locality."

Simon's other rationale for the decision is defective on its face. To say that the wages paid to local workers on a public works project is not a matter pertaining to the government and affairs of the community is like saying that collection of taxes is not pertaining to the government and affairs of the community. Both functions directly impact public funds and hence the cost of government to the citizenry. While the Prevailing Wage Act may, in Simon's words, "mitigate against an impoverished work force", it does so at the expense of the public treasury.

Finally, the Justice argues that allowing Highland Park to avoid the restrictions of the Act could "profoundly depress the prevailing wage in Lake County and thereby reduce earnings of workers outside of the home rule unit." This statement betrays the total depth of Justice Simon's misapprehension of the Act and its procedures. The method of determining the prevailing wage in a jurisdiction is not specified in the Act. Nothing in the record of the case indicates the method which is used to determine the wage. Justice Simon assumes that wages paid are used in calculating the future prevailing wage. Even assuming that this method is correct, the wages paid would have had the effect of raising or stabilizing the Lake County prevailing wage, although maybe not profoundly.

Justice Miller sums the thrust of his dissent in the first sentence:

"Determining whether the City of Highland Park . . . should follow the Prevailing Wage Act... is in essence a legislative judgment and therefore one that is better resolved by the legislative bodies of this State."

The dissent then discusses the assertions of Simon and the constitutional foundation of home rule preemption leading to a result that Simon's opinion in this case amounts to "usurping the legislature's role."

Probably the best statement about Simon's opinion has been made by the Chicago Tribune. In a February 16, 1988 editorial entitled "Repeal Costly State Wage Law" the Tribune described the prediction of the creation of "feudal estates" by writing, "That seems a little far fetched." Later, the Tribune offers a possible explanation of the opinion.

"Justice Simon, a vivid writer, is retiring from the bench this month. Maybe he couldn't resist a final rhetorical fanfare."

Too bad it came at the expense of Illinois municipalities. •

2. The Act held unconstitutional was the Preference to Local Workers' Act. In the case deciding the unconstitutionality of that Act, Simon joined in the vigorous dissent authored by Chief Justice Clark.

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