McKinley Foundation at the University of Illinois v. Illinois Department of Labor ( 2010 )

NO. 4-09-0512 Filed 9/10/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE McKINLEY FOUNDATION AT THE ) Appeal from
UNIVERSITY OF ILLINOIS, an Illinois ) Circuit Court of
Not-for-Profit Corporation, ) Champaign County
Plaintiff-Appellee, ) No. 08MR688
v. )
THE ILLINOIS DEPARTMENT OF LABOR, and )
CATHERINE SHANNON, Director of the )
Illinois Department of Labor, )
Defendants-Appellants, )
and )
STEVENS CONSTRUCTION CORPORATION; A&B )
DRYWALL; CHRIS GREEN, INC.; LOCH )
ACOUSTIC; ELECTRI-TEC; and UNKNOWN ) Honorable
SUBCONTRATORS, ) Michael Q. Jones,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
In April 2009, plaintiff, the McKinley Foundation at
the University of Illinois (McKinley), filed a motion for summary
judgment against defendants the Illinois Department of Labor
(Department) and its Director, Catherine Shannon (herein referred
to collectively as the Department), seeking an order that the
Prevailing Wage Act (Act) (820 ILCS 130/1 through 12 (West 2008))
is inapplicable to its construction project because McKinley is
not a "public body" for purposes of the Act. That same month,
defendant Stevens Construction Corporation (Stevens), the
construction company hired by McKinley to complete its project,
also moved for summary judgment on the same ground as McKinley
or, alternatively, if McKinley was a "public body," for damages
on the ground that McKinley failed to give Stevens notice it
would have to pay its employees the prevailing wage rate.
Stevens's subcontractors, defendants A&B Drywall; Chris Green,
Inc.; and Electri-Tec, joined in Stevens's motion. Following a
May 2009 hearing, the circuit court granted summary judgment in
favor of McKinley, Stevens, and the subcontractors.
The Department appeals, arguing the circuit court erred
in granting McKinley's and Stevens's motions for summary judgment
because McKinley constitutes a "public body" for purposes of the
Act since it financed its project with tax-exempt bonds issued
under the Illinois Finance Authority Act (20 ILCS 3501/801-1 et
seq. (West 2008)). We agree and reverse.
I. BACKGROUND
A. Factual Background
McKinley is a not-for-profit corporation functioning as
a Presbyterian ministry for college students. In June 2007,
McKinley contracted with Stevens to construct student housing and
parking on its property located at 405 East John Street in
Champaign.
Although private donations fund McKinley, financing for
its construction project, in part, stemmed from tax-free bonds
issued through the Illinois Finance Authority (Authority). The
bonds were sold to private investors and backed by a letter of
credit from Keybank, N.A., which paid the investors and then
received reimbursement from McKinley. In the event of a default,
Keybank's sole recourse would have been against McKinley, and the
private investors' sole recourse would have been against KeyBank.
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At no point would the State of Illinois be obligated or liable on
the bonds. The only connection between the State and McKinley
was that McKinley paid the Authority a fee for acting as the
accommodator for the bonds' issuance.
In April 2008, a Department conciliator wrote McKinley,
requesting information concerning the construction project to
evaluate its conformance with the Act, which, in certain
circumstances, requires contractors pay workers employed on
public-works construction projects a minimum hourly wage based on
pay for work of a similar character in the county where the work
is performed. In written correspondence between the Department
and McKinley's counsel, McKinley acknowledged the project was a
"public work" pursuant to the Act but denied being a "traditional
public body" or "an institution supported in whole or [in] part
by public funds." McKinley maintained both factors must exist to
trigger application of the Act. The Department disagreed. In a
letter to McKinley, the Department's chief legal counsel noted as
follows:
"[I]t is the opinion of [the Department] that
because the fixed[-]work construction is a
'public work,' as explicitly defined in the
Act, [McKinley] is, for purposes of that
fixed[-]work construction, a 'public body[]'
within the meaning of the Act. Accordingly,
as provided in [s]ection 3 of the Act, all
laborers, workers[,] and mechanics employed
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by or on behalf of [McKinley] engaged in the
construction of that public work must be paid
the prevailing wage." (Emphasis in
original.)
In August 2008, after receiving payroll forms from
Stevens and several subcontractors, the Department (1) informed
them "certain employees were paid less than the prevailing rate
of wage," (2) ordered them to pay the total difference in wages,
and (3) assessed penalties amounting to 20% of the total
underpayment.
B. Procedural History
The following month, McKinley filed a complaint naming
the Department, Director Shannon, Stevens, several
subcontractors, and "unknown subcontractors" as defendants. The
complaint sought declaratory judgment that the Act was
inapplicable to its construction project, which would thereby
eliminate the obligation of Stevens and the subcontractors to pay
their employees the prevailing wage rate. In response, Stevens
filed an answer, a counterclaim against McKinley, and a cross-
claim against the Department and Director Shannon, requesting,
inter alia, (1) a declaratory judgment stating the project fell
outside of the Act's scope or, alternatively, (2) damages from
McKinley in the event the project fell under the Act's purview
because McKinley failed to give Stevens and the subcontractors
notice they would have to pay their employees the prevailing wage
rate. Stevens's subcontractors filed various cross-claims and
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answers containing affirmative defenses, none of which are
pertinent to this appeal.
In October 2008, the Department filed a motion to
dismiss McKinley's and Stevens's complaints pursuant to sections
2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615,
2-619 (West 2008)), but the circuit court denied both motions.
The Department then filed counterclaims against Stevens and
several subcontractors, seeking underpaid wages, statutory
penalties, and punitive damages. Stevens filed an answer, and
the subcontractors filed answers containing various counterclaims
against Stevens and affirmative defenses to the Department's
complaint.
In April 2009, McKinley filed a motion for summary
judgment, alleging that although its construction project fell
within the Act's definition of "public work," McKinley is not a
"public body" and thus the Act is inapplicable to its project.
To its motion, McKinley attached an affidavit from its executive
director, Reverend Heidi Weatherford, stating McKinley is (1) a
501(c)(3) tax-exempt foundation; (2) supported entirely by
private funds; and (3) not supported in any way by public funds,
including those from federal or state governments. The affidavit
further stated McKinley's project was partly financed by tax-free
bonds issued by the Authority but that McKinley paid a fee to the
Authority in exchange for issuance of the bonds and, in the event
of a default, the state would never be liable or obligated on the
bonds. Stevens filed a summary-judgment motion, which also
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alleged the Act was inapplicable to McKinley's construction
project because McKinley was not a "public body."
In May 2009, after hearing arguments on both motions,
the circuit court granted summary judgment in favor of McKinley
and Stevens and dismissed all counterclaims and cross-claims.
During the hearing, the court reasoned as follows:
"[T]he definition of [']public body['] does
not say the State or any subdivision or an
institution supported in whole or in part by
public funds or an institution [that] has a
project financed by the [Authority]. [The
legislature] saw fit to include that language
to define what a public work is. They
apparently did not see fit to include that
language in defining what a public body is.
If this is an oversight of theirs, then they
have to correct it. I'm not going to
speculate one way or another. I will just
say I'm going to read what was written and
not read what wasn't written.
The plain meaning of this Act is what
McKinley and Stevens suggest to this [c]ourt
that it is. There is a two-pronged test.
Not all public works are carried out by
public bodies. Therefore, they suggest that
for the *** Act to apply[,] a public works
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[project] must be carried out by a public
body and they tell me in black and white what
a public body is. And from the [a]ffidavit
of Ms. Weatherford, they clearly are not a
public body."
In June 2009, the Department and Director Shannon
timely filed notice of appeal. In December 2009, over McKinley's
and Stevens's objection, this court allowed a motion from the
Indiana, Illinois, Iowa Foundation for Fair Contracting
(Foundation), a not-for-profit labor-management corporation
committee, for leave to file an amicus curiae brief in support of
the Department and Director Shannon. The Foundation filed its
amicus brief later that same month.
II. ANALYSIS
On appeal, the Department contends the circuit court
erred in granting summary judgment in favor of McKinley and
Stevens because both McKinley and its construction project fall
within the Act's scope. Specifically, the Department alleges
because McKinley's construction project received partial
financing from Authority bonds, the project is a public work,
thereby indicating McKinley is a public body for purposes of this
particular project. McKinley and Stevens counter that while the
project was partially financed by Authority bonds and thus
constitutes a public work, McKinley is not a public body because
it received no public funding and therefore the Act is
inapplicable.
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"Summary judgment is appropriate where the pleadings,
depositions, admissions[,] and affidavits on file, viewed in the
light most favorable to the nonmoving party, reveal that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Kajima
Construction Services, Inc. v. St. Paul Fire & Marine Insurance
Co., 227 Ill. 2d 102, 106, 879 N.E.2d 305, 308 (2007). We review
the circuit court's decision to grant summary judgment de novo.
Stern v. Wheaton-Warrenville Community Unit School District 200,
233 Ill. 2d 396, 404, 910 N.E.2d 85, 91 (2009). A de novo
standard of review is also proper when the issue on appeal
involves a matter of statutory construction (In re Estate of
Ellis, 236 Ill. 2d 45, 50, 923 N.E.2d 237, 240 (2009)) or the
constitutionality of a statute (People v. Johnson, 225 Ill. 2d
573, 584, 870 N.E.2d 415, 421 (2007)).
A. Forfeiture
As a threshold matter, we address McKinley's position
the Department forfeited arguments raised in its brief by not
raising them before the circuit court. Specifically, McKinley
alleges the arguments set forth in the Department's brief
pertaining to (1) the ambiguity of the Act, (2) whether financing
through the Authority can exist without compliance with the Act,
and (3) whether a "public work" makes a private entity a "public
body" are "inconsistent with the arguments that were presented in
[the Department's] briefs and oral argument in the trial court."
Issues not raised before the trial court are considered
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forfeited, and a party may not raise such issues for the first
time on appeal. Vine Street Clinic v. HealthLink, Inc., 222 Ill.
2d 276, 300-01, 856 N.E.2d 422, 438 (2006).
Regarding McKinley's argument the Department forfeited
any argument concerning whether a "public work" makes a private
entity a "public body" for purposes of the Act, the record before
us on appeal establishes both parties continuously raised this
issue before the circuit court--in oral argument and in written
memoranda--and therefore no reason exists to deem it forfeited.
B. The Act's Plain Language
In the case at bar, the parties dispute no material
facts, and thus the issue on appeal is one of statutory
interpretation. Specifically, this court must determine whether
a private entity that avails itself of financing with Authority
bonds is required to pay prevailing wages pursuant to the Act.
The cardinal rule of statutory construction is to
ascertain and give effect to the legislature's intent. People v.
Diggins, 235 Ill. 2d 48, 54, 919 N.E.2d 327, 331 (2009). "The
best indicator of the legislature's intent is the language of the
statute, which must be accorded its plain and ordinary meaning."
Diggins, 235 Ill. 2d at 54, 919 N.E.2d at 331. To avoid
rendering any part of the statute meaningless or superfluous,
statutes are construed in their entirety. Weather-Tite, Inc. v.
University of St. Francis, 233 Ill. 2d 385, 389-90, 909 N.E.2d
830, 833 (2009). Where the statutory language is clear and
unambiguous, a court must apply the statute as written without
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resorting to aids of statutory construction. Solon v. Midwest
Medical Records Ass'n, Inc., 236 Ill. 2d 433, 440, 925 N.E.2d
1113, 1117 (2010).
Section 1 of the Act states its purpose as follows:
"It 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."
(Emphasis added.) 820 ILCS 130/1 (West 2008).
Accordingly, the Act's policy ensures people employed by or on
behalf of public bodies engaged in public works are paid the
prevailing wage in their locale. The Act was not meant to
dictate what private employers paid their employees. See Town of
Normal v. Hafner, 395 Ill. App. 3d 589, 597, 918 N.E.2d 1268,
1274 (2009) ("the purpose of the Act is to ensure laborers on
public projects are paid the prevailing wage, not to interfere
with economic development by private companies"); see also 820
ILCS 130/3 (West 2008) ("Not less than the general prevailing
[wage] *** shall be paid to all laborers *** employed by or on
behalf of any public body engaged in the construction of public
works" (emphasis added)).
Section 3 of the Act, in pertinent part, requires as
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follows:
"Not 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, and not less
than the general prevailing rate of hourly
wages for legal holiday and overtime work,
shall be paid to all laborers, workers[,] and
mechanics employed by or on behalf of any
public body engaged in the construction of
public works." (Emphasis added.) 820 ILCS
130/3 (West 2008).
Section 2 sets out the scope of the Act, stating
"[t]his Act applies to the wages of laborers, mechanics[,] and
other workers employed in any public works *** by any public body
and to anyone under contracts for public works." 820 ILCS 130/2
(West 2008). Section 2 defines "public works" to mean "all fixed
works constructed by any public body" and further provides:
"'Public works' as defined herein includes
all projects financed in whole or in part
with bonds issued under *** the Illinois
Finance Authority Act ***." 820 ILCS 130/2
(West 2008).
Thus, under the Act, a public work is defined as a
fixed work constructed by any public body, and that definition
includes projects financed in whole or in part with Authority
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bonds. Since all parties agree this project was a "public work,"
and by definition a public work is a fixed work constructed by a
public body (which includes projects financed with Authority
bonds), the Department contends projects financed with Authority
bonds are governed by the Act. This is not an unreasonable
interpretation of the Act.
McKinley concedes its 405 John Street construction
project is a public work but contends it is not a "public body"
within the definition of the Act. The Department maintains that,
for purposes of the project, McKinley is a public body solely
because it performed a public work financed through Authority
bonds.
The definition of "public works" includes projects
financed with bonds issued under certain enumerated statutes,
including, as noted above, the Illinois Finance Authority Act (20
ILCS 3501/801-1 through 999-99 (West 2008)). If any entity that
avails itself of financing under one of the specifically
enumerated financing acts is considered a public body, then
McKinley is clearly a public body. This is the Department's
position.
McKinley's position is that the specifically enumerated
financing acts merely define "public works" and have no relation
to "public body." Many of the enumerated financing acts, like
the Illinois Finance Authority Act, do not use public monies to
fund construction projects. By including these acts in the
definition of "public works," the legislature made clear that if
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the financing of a project is accomplished pursuant to an
enumerated statute, like the Illinois Finance Authority Act, the
project is considered a public work, even if no public funds are
actually expended on the project. A project paid for wholly or
in part out of public funds is a "public work," but so is any
project financed under any of the enumerated statutes. Thus, the
legislature expanded public works beyond those "paid for wholly
or in part with public funds" to include those financed with
conduit financing pursuant to the specifically enumerated
statutes. However, the legislature made no similar expansion to
the definition of "public body." Therefore, a "public body"
remains any institution supported in whole or in part by public
funds. McKinley's interpretation of the statute is not
unreasonable.
Further, McKinley contends, the Department's
interpretation would render the Act's requirement that the
construction be accomplished by a "public body" mere surplusage.
The Department, however, answers that the term "public body" is
not surplusage because it still has relevance when one of the
enumerated financing statutes is not involved in the project.
The trial court pointed out the legislature demonstrated its
ability to expand the definition of "public works" to include
projects such as McKinley's construction project. However, it
failed to expand the definition of "public body" to include
private institutions that avail themselves of financing under the
enumerated statutes. While the court recognized this may have
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been a legislative oversight, it felt compelled not to speculate
but, rather, applied the statute as written. Since the Act
requires both a public work and a public body and because
McKinley is not supported in whole or in part with public funds,
the court found the Act did not apply to the project. As noted
above, the McKinley position, adopted by the trial court, is not
an unreasonable reading of the Act.
Where there are two reasonable interpretations of a
statute, we will look to the legislative history for guidance in
order to discern the legislature's intent. Poindexter v. State
of Illinois, 372 Ill. App. 3d 1021, 1028, 869 N.E.2d 139, 146
(2006). Effective January 1, 1990, the General Assembly amended
section 2 of the Act to include in the definition of "public
works" projects financed with bonds issued under various
financing acts, including the Illinois Finance Authority Act
(formerly the Illinois Development Finance Authority Act). See
Pub. Act 86-799, §1, eff. January 1, 1990 (1989 Ill. Laws 4208,
4208). During the Senate debates on House Bill 568, Senator
Hudson, who was opposed to the bill, stated as follows:
"Local governments--what the amendments do,
Ladies and Gentlemen, the bill requires that
the prevailing wage be paid on all projects
financed in whole or part with bonds issued
under the--municipal--under the--were bonds
issued under Division 74 of the Municipal
Code. More to the point, local governments
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here--this would affect local governments.
DCCA is opposed to it, because local
governments are already required to pay
prevailing wages when they contract for
public works, regardless of the funding
source--bonds, IDFA Funds, or Build Illinois
Funds. This bill is apparently designed to
expand the prevailing wage cover to all
Illinois projects, including projects
involving loans to business." 86th Ill. Gen.
Assem., Senate Proceedings, June 13, 1989, at
81 (statements of Senator Hudson).
On June 19, 1989, debate continued on a Senate
amendment to House Bill 568. Senator Hudson explained the
amendment as follows:
"And what that amendment does is to--
drastically expand the definition of public
works, so that prevailing wage must now be
paid for projects that were not previously
included. For example, those projects that
fall under the Build Illinois Bond Act and
others." (Emphasis added.) 86th Ill. Gen.
Assem., Senate Proceedings, June 19, 1989, at
94-95 (statements of Senator Hudson).
When the bill, as amended, returned to the House for further
consideration, Representative Didrickson spoke in opposition.
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"If you can't see yourself to vote against
prevailing wage, at least vote against this
Bill because it expands it into the Build
Illinois projects. It's the wrong direction.
Instead of doing what other states are doing
in terms of retrenching on this issue, we're
going forward and expanding it. A 'no' vote
is the only vote on this issue." 86th Ill.
Gen. Assem., House Proceedings, June 27,
1989, at 21 (statements of Representative
Didrickson).
Representative Black, in opposition to the bill, stated as
follows:
"Many of us go to the Development Finance
Authority Act or the Industrial Building
Revenue Act or Build Illinois and we ask for
assistance in various capital projects in our
district. Now, be that a Sears and Roebuck
package or ... in the case of some of the
rest of us, a small to medium sized industry
that needs maybe a 10 percent financing
incentive to build a plant in our district.
And now, if I understand what we're doing
here, if any amount of money is put in
through the various state bonding Acts is
used, 5 percent or 10 percent or whatever, it
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makes what could be a private development
subjected to the Prevailing Wage Act. I come
from a border district and I see time after
time after time that we're not competitive
with the State of Indiana. All I would
submit to you is that I'm not certain that
this Senate Amendment is in the best interest
of trying to build the economic base of the
State of Illinois and I simply rise in
opposition to the concurrence Motion." 86th
Ill. Gen. Assem., House Proceedings, June 27,
1989, at 24-25 (statements of Representative
Black).
Despite the strong debate in opposition to the
expansion of the Act, the measure became law. The legislative
history makes clear the General Assembly intended to expand the
coverage of the Act to projects constructed by entities
benefitting from financing under an enumerated public-financing
mechanism, even if the entity itself was not a traditional public
body. Thus, we find the housing project, financed in part with
bonds issued by the Authority, is covered by the Act and required
payment of prevailing wages.
D. Constitutional Concerns
Finally, McKinley argues applying the Act to
construction projects financed through Authority bonds but
conducted by private entities violates the United States and
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Illinois Constitutions' (1) equal-protection clauses and (2)
establishment clauses. We disagree.
1. Equal Protection
McKinley first contends applying the Act "to all public
works projects, regardless of whether carried out by a public
body or private entity, violates the equal protection clauses of
the [f]ederal and Illinois constitutions."
A statute is unconstitutional if it impermissibly
restricts a person's life, liberty, or property interest. U.S.
Const., amend. XIV; Ill. Const. 1970, art. I, §2. Where the
challenged statute does not affect a fundamental right, the
rational-basis test applies. Davis v. Brown, 221 Ill. 2d 435,
450, 851 N.E.2d 1198, 1208 (2006). Under the rational-basis
test, a court determines (1) whether a legitimate state interest
supports the legislation and, if so, (2) whether a reasonable
relationship exists between that interest and the means the
legislature has chosen to pursue it. See Lebron v. Gottlieb
Memorial Hospital, 237 Ill. 2d 217, 238-39, ___ N.E.2d ___, ___
(2010). Every statute enjoys a strong presumption of
constitutionality, and the party challenging the statute bears
the burden of rebutting this presumption. In re Marriage of
Miller, 227 Ill. 2d 185, 195, 879 N.E.2d 292, 298-99 (2007).
Here, the purpose of the Act is to ensure (1) workers
involved with public-works projects receive a decent wage, (2)
public-works projects are performed efficiently, and (3) local
workers' jobs are protected by removing the incentive to import
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less-expensive labor from areas outside the locality in which the
work is being performed. People ex rel. Bernardi v. City of
Highland Park, 121 Ill. 2d 1, 10, 520 N.E.2d 316, 320 (1988).
The General Assembly's inclusion of projects financed with
Authority bonds as "public works" for purposes of the Act
rationally relates to these purposes. In upholding the Act
against previous equal-protection challenges, the supreme court
noted as follows:
"'"[The Act] belongs to the state, as the
guardian and trustee for its people, and
having control of its affairs, to prescribe
the conditions upon which it will permit
public work to be done on its behalf, or on
behalf of the municipalities."'" People ex
rel. Bernardi v. Roofing Systems, Inc., 101
Ill. 2d 424, 427, 463 N.E.2d 123, 124 (1984),
quoting Hayen v. County of Ogle, 101 Ill. 2d
413, 422, 463 N.E.2d 124, 128 (1984), quoting
Atkins v. Kansas, 191 U.S. 207, 222-23, 48 L.
Ed. 148, 158, 24 S. Ct. 124, 127 (1903).
As the Department indicates in its reply brief, "[i]f an
otherwise private entity elects to take advantage of state-issued
tax-free bonds, rather than seeking financing in the private
market, then it is rational to require [it] to pay the prevailing
wage to workers on that project."
McKinley cites City of Monmouth v. Lorenz, 30 Ill. 2d
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60, 65-67, 195 N.E.2d 661, 664-65 (1963), for the proposition
that placing public bodies and private construction contractors
into a single class is improper, given the distinctions between
employment relations existing among employers of private
contractors and public employees. In City of Monmouth, the
supreme court held amendments to the Act violated equal
protection because the amendments required both public bodies and
private contractors to pay their employees at the same rate
despite the fact year-round government workers received higher
compensation than seasonal, private-market employees. City of
Monmouth, 30 Ill. 2d at 66-67, 195 N.E.2d at 664-65. The court
noted "the two classes of employers are by their very nature in
such a position that they cannot and do not confer similar
economic benefits on their employees exclusive of the rate of
pay." City of Monmouth, 30 Ill. 2d at 66-67, 195 N.E.2d at 664-
65. However, in this case, McKinley is not simply a private
employer for purposes of the Act. As stated above, because
McKinley opted to use Authority bonds to partially finance its
construction project, McKinley brought itself within the
parameters of the Act. McKinley chose to avail itself to the
Act's requirements rather than privately funding its project and
thus cannot set forth the arguments presented by the parties in
City of Monmouth.
We find the Act rationally relates to the state's
legitimate interest in protecting its workforce engaged in
public-works projects. The Act "both mitigates against an
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impoverished work force and 'support[s] the integrity of the
collective[-]bargaining process by preventing the undercutting of
employee wages in the private construction sector.' [Citation.]"
City of Highland Park, 121 Ill. 2d at 14, 520 N.E.2d at 322.
"Establishing minimum requirements to attain those goals and to
otherwise improve working conditions has traditionally been a
matter of [s]tate concern." City of Highland Park, 121 Ill. 2d
at 14, 520 N.E.2d at 322. Consequently, we reject McKinley's
contention the Act violates equal protection.
2. Establishment
Next, McKinley, given its religious affiliation, argues
the Act violates the establishment clause of the United States
Constitution (U.S. Const., amend. I) and article 10, section 3,
of the Illinois Constitution (Ill. Const., art. X, §3).
"The establishment clause of the first amendment (U.S.
Const., amend. I) prohibits state and federal action 'favoring
the tenets or adherents of any religion or of religion over
nonreligion.' [Citations.]" People v. Falbe, 189 Ill. 2d 635,
645, 727 N.E.2d 200, 207 (2000). In Illinois, our state
constitution provides in pertinent part that "[n]o person shall
be required to attend or support any ministry or place of worship
against his consent, nor shall any preference be given by law to
any religious denomination or mode of worship." Ill. Const.
1970, art. I, §3. To pass constitutional scrutiny, a statute
must satisfy the following: "[(1)] [its] legislative purpose must
be secular, [(2)] its principal or primary effect cannot advance
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or inhibit religion, and [(3)] it must not foster an excessive
governmental entanglement with religion." Falbe, 189 Ill. 2d at
646, 727 N.E.2d at 207.
McKinley alleges that if it is a "public body" under
the Act, it is also supported by "public funds," which would
violate the establishment clause. However, whether an entity is
a public body under the Act does not control whether it
constitutes a public body under other statutes. See People ex
rel. Bernardi v.Illini Community Hospital, 163 Ill. App. 3d 987,
990, 516 N.E.2d 1320, 1321 (1987). Accordingly, whether an
entity is a public body or a private, religious foundation under
the Act is irrelevant as to that entity's identity for purposes
of the first amendment or the Illinois Constitution.
Moreover, assuming arguendo that McKinley's receipt of
Authority bonds falls under the purview of the establishment
clause, McKinley sets forth no argument as to how such funding
advances or inhibits religion or fosters excessive government
entanglement with religion. "[A] point raised but not argued or
supported by citation to relevant authority fails to satisfy the
requirements of Supreme Court Rule 341[(h)](7) [(210 Ill. 2d R.
341(h)(7); see also 210 Ill. 2d R. 341(i) (applying requirements
placed on appellants' briefs to those of appellees))] and is
therefore [forfeited]." People v. Patterson, 154 Ill. 2d 414,
454-55, 610 N.E.2d 16, 34 (1992). Because McKinley forfeited
these arguments, we need not address them on appeal.
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III. CONCLUSION
For the reasons stated, we reverse the trial court's
grant of summary judgment.
Reversed and remanded for further proceedings.
TURNER, J., concurs.
STEIGMANN, J., specially concurs.
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JUSTICE STEIGMANN, specially concurring:
This is a difficult case involving a problem of
statutory construction that has arisen because the Act is poorly
written. The majority does a good job of explaining how two
reasonable interpretations of the Act could be made and then
adopting the one it concluded is more persuasive. Although in my
view this is a close case, I concur with that conclusion. I
write specially because I disagree with the majority's
consideration of--much less reliance upon--"legislative history"
when it is based upon the remarks of individual legislators.
I reaffirm what I wrote for this court 18 years ago:
"[L]egislators do not make laws by making
speeches on the floor of the legislative
chamber or by writing memos for committee
meetings. They make laws by majority vote on
a specifically worded bill that has been read
three times before each house and distributed
to each legislator. (Ill. Const. 1970, art.
IV, §§8(c), (d).) Neither the disclosed nor
undisclosed intent of a legislator or
lobbyist becomes law; only the bill as it
reads when passed becomes law." (Emphasis in
original.) Town of the City of Bloomington
v. Bloomington Township, 233 Ill. App. 3d
724, 736, 599 N.E.2d 62, 70 (1992).
In my view, for the reasons stated by Justice Scalia,
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"legislative history," commonly understood (as in this case) as
the remarks of one or more legislators on the floor of the House
or Senate, has no value whatsoever. "The greatest defect of
legislative history is its illegitimacy. We are governed by
laws, not by the intentions of legislators." Conroy v. Aniskoff,
507 U.S. 511, 519 123 L. Ed. 2d 229, 238, 113 S. Ct. 1562, 1567
(1993) (Scalia, J., concurring).
The Illinois House of Representatives has 118 members
and the Illinois State Senate has 59. At the third reading of a
specific bill in a given chamber, the members of that chamber
vote yes or no (or present, if they wish) on that bill as it is
proposed in its written form. A given state senator might read a
particular bill in one way, while another state senator might
interpret it differently. Although some senators might choose to
take to the senate floor to announce their particular
interpretations of the bill, the problems they hope it will
address, or why they believe it should be enacted, experience
demonstrates that at any given time on third reading in any
legislative chamber, a large percentage of the members of that
chamber are paying little attention, if any, to the remarks of
their colleagues. They might be consulting among themselves
about other legislative or political matters, speaking on the
phone, working on their computers, or simply daydreaming. But by
engaging in any of these activities, they are not delegating to
their colleagues who choose to speak about the bill the authority
to define what it means. Instead, the senators who choose not to
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speak on the bill are entirely justified in relying upon the
words it contains, not the remarks of their colleagues construing
those words in whatever fashion they wish.
Another way to look at this issue is to ask this
question: Are senators who disagree with the remarks of a
particular senator on the third reading of a proposed bill
obligated to rise to express that disagreement on the floor of
the senate? And in the absence of their doing so, have they
forfeited any later claim that the senator who rose to speak
about the bill was not the authoritative voice of the senate on
the matter? I have yet to encounter anyone, judge or legislator,
who believes that such an obligation exists for senators who
disagree with the remarks of some of their colleagues at third
reading. Yet, if no such obligation exists, then why do we
judges continue to view the few voices who speak in the
legislative chamber as somehow authoritative on the subject?
Further, what possible legitimacy can there be to
viewing the remarks of a few members of the senate at third
reading on a particular bill as authoritative and binding on
members of the House of Representatives, who later voted on that
same bill? Does anyone contend that somehow the views of the
senators who spoke at third reading were necessarily going to be
communicated to the members of the House of Representatives or
repeated by some member of that body? When subjected to this
analysis, the whole notion of "legislative history," based upon
the remarks of individual legislators, is simply nonsensical.
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And when we are looking to "legislative history" for
guidance by examining the remarks of the opponents to a
particular piece of legislation (which the majority does in this
case), then "legislative history" has even less value than
nothing. This is because legislators who oppose a particular
bill might, intentionally or otherwise, attribute features to it
that it does not possess. Giving these legislators the benefit
of the doubt, they might legitimately fear that a certain result
will ensue if the bill is passed, but many of their colleagues
(especially those voting in favor of the bill) might very well
disagree. And if they disagree, they are under no obligation to
rise to say so, especially if they think they have the votes to
pass the bill in the first place. Thus, the absence of rebuttal
to the negative assessments of the bill that the majority in this
case quotes is, in my judgment, totally without significance.
I realize that (to date) the Supreme Court of Illinois
has disagreed with my view of "legislative history." See People
v. Collins, 214 Ill. 2d 206, 214, 824 N.E.2d 262, 266 (2005).
("Where statutory language is ambiguous, *** we may consider
other extrinsic aids for construction, such as legislative
history and transcripts of legislative debates, to resolve the
ambiguity"). Nonetheless, I hope that the supreme court might
have occasion to reconsider the legitimacy of legislative history
based upon the remarks of legislators (perhaps even in this case)
and decide that it will no longer give legitimacy to this
analysis.
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Although the law employs many legal fictions, they
ought to be useful and legitimate. Using the remarks of
individual legislators as a tool of legislative construction
fails that test.
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