CHARLES SHEMPF, as a Member of the Midwest Region of the Laborers’ International Union of North America, and GREAT PLAINS, SOUTHERN AND CENTRAL ILLINOIS, AND SOUTHWEST ILLINOIS LABORERS’ DISTRICT COUNCILS, Plaintiffs-Appellants, v. HUGO CHAVIANO, Director of Labor, and THE DEPARTMENT OF LABOR, Defendants-Appellees.
Docket No. 1-17-3146
Appellate Court of Illinois, First District, Third Division
March 20, 2019
Modified upon denial of rehearing April 24, 2019
2019 IL App (1st) 173146
Hon. Thomas Allen, Judge, presiding.
Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 16-L-50642, 16-CH-12963, 16-CH-12966, 16-CH-13033. Judgment: Affirmed in part, vacated in part, and remanded with directions.
Counsel on Appeal
Ellen Schanzle-Haskins, of Springfield, for appellants.
Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Laura Wunder, Assistant Attorney General, of counsel), for appellees.
JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.
OPINION
¶ 1 This case involves a dispute under the Prevailing Wage Act (
¶ 2 The circuit court issued the writ and directed the Department to post the 2016 prevailing wage rates by May 26, 2017. The Department complied with that order but with a catch: When it published the 2016 rates on its website, it stated that the new rates would not go into effect until June 5, 2017. Shempf‘s position was that the published rates should have retroactive effect, and thus, the Department‘s inclusion of a prospective effective date did not comply with the writ. So he filed a document styled as a “Request for Clarification or Rule to Show Cause.”
¶ 3 The trial court denied the motion, believing that it lacked jurisdiction to consider Shempf‘s request, as the motion had been filed more than 30 days after entry of the writ of mandamus, which had been accompanied by language under
¶ 4 On appeal, Shempf argues that the circuit court had jurisdiction to consider his motion for clarification or rule to show cause, as the motion sought enforcement of the mandamus order, and because he still had the right to seek damages, attorney fees, and costs against the Department. Second, Shempf says the court erred by dismissing his administrative-review claim.
¶ 5 We view Shempf‘s motion for clarification or to issue a rule to show cause as both a request to modify and a request to enforce the mandamus order. The request to modify the writ was untimely, as it was a postjudgment motion directed against the judgment that was filed more than 30 days after entry of the mandamus order and its Rule 304(a) language. The request for damages and costs were properly denied under the doctrine of sovereign immunity, and the request for attorney fees
¶ 6 But the request for a rule to show cause contained within that motion was proper and timely, as it was a request to enforce the mandamus order and was thus not governed by a 30-day clock. We vacate the trial court‘s judgment to that extent and remand for the limited purpose of allowing Shempf to present his motion for a rule to show cause.
¶ 7 We affirm the trial court‘s dismissal of the administrative-review claim, as the court properly determined that it lacked subject-matter jurisdiction to hear it. The action of the Department about which Shempf complained was not a final administrative decision as contemplated by the Administrative Review Law (
¶ 8 BACKGROUND
¶ 9 The Prevailing Wage Act‘s purpose is to ensure that laborers employed by public bodies receive “[n]ot 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.”
¶ 10 Each year, public bodies are required to ascertain the prevailing wage, post it, and submit it to the Department by July 15. See
¶ 11 But in 2016, the Department did not publish those rates on July 15. Instead, it posted this on July 15:
“The 2015 prevailing wage rates are still in effect until the Department publishes the 2016 rates. The Department is in the process of determining 2016 rates and expects to have them published by late August. July 15 remains the statutory deadline for local governments to provide copies of their rates to the Department, but is not the deadline for the Department to publish its new rates.”
¶ 12 The Prevailing Wage Act provides that, once the Department publishes the county-by-county prevailing wage rates on its website, individuals may object to those rates.
¶ 13 When the Department posted the website notice on July 15, 2016, that it was indefinitely continuing the previous year‘s prevailing wage rates until further notice, Shempf‘s labor union filed an objection under section 9 of the Prevailing Wage Act and requested a hearing. The Department responded that it had not yet posted 2016 prevailing wage rates, so an objection and request for hearing was premature.
¶ 14 Within a month, Shempf filed this lawsuit, seeking both administrative review of the Department‘s denial of an administrative hearing and a writ of mandamus to compel the Department to post updated 2016 rates.2
¶ 15 In February 2017, the court severed the mandamus claim from the administrative-review count and set the mandamus claim for expedited review. On May 19, 2017, the court granted summary judgment to Shempf on his mandamus claim and entered an order mandating that the Department “shall publish 2016 prevailing wage rates on its website by 5 PM on May 29, 2017.” The court also included in this order a finding, pursuant to
¶ 16 Three days later, by agreement of the parties, the trial court amended that order to correct a scrivener‘s error and reflect the intended date of May 26, 2017, for the publication of those rates.3
¶ 17 On May 26, 2017, the Department posted the 2016 prevailing wage rates on its website. But the posting stated that these updated prevailing wage rates would apply only to ”work performed on or after June 5, 2017.” (Emphasis added.)
¶ 18 Shempf objected to the strictly prospective effective date. On June 20, 2017—more than 30 days after the May 19 mandamus order—he filed a motion styled a “Request for Clarification or Rule to Show Cause.” He argued, in essence, that the Department violated the mandamus order by giving the newly published rates prospective application only. (In a later filing, Shempf requested costs and fees pursuant to section 14-105 of the Code of Civil Procedure, part of the mandamus statute. See
¶ 19 The Department filed a written response to the motion for clarification or rule to show cause, arguing that the Department complied with the court‘s order and that, in any event, the circuit court
¶ 20 The trial court denied Shempf‘s motion in its entirety. The court stated its agreement with the Department that it lacked jurisdiction, as the motion was filed more than 30 days after the entry of the mandamus order:
“Well, here is the problem, okay? I don‘t have jurisdiction. 30 days is done. It‘s out the door. So I‘m denying your motion. There‘s nothing I can do. So now the new law is in effect, we‘ll see what happens with the—you know, see what tricks they can pull on that one.”
¶ 21 In September 2017, Shempf filed a motion for summary judgment on its administrative review claim. The motion also contained a requested for reasonable expenses and attorney fees pursuant to section 10-55(c) of the Illinois Administrative Procedure Act. See
¶ 22 The circuit court denied Shempf‘s motion for summary judgment and dismissed the administrative-review count. The court agreed with the Department that its denial of a hearing did not constitute a final administrative decision:
THE COURT: Well, now we‘re talking about the narrow focus of the administrative review count, their complaint for administrative review, and that is, it was their decision—or it was their action in posting on the Internet saying basically stay tuned, the jury is still out, we don‘t have the rates but they‘re coming. Whether that‘s a final administrative decision, okay, right?
* * *
In my judgment, it is not a final administrative decision and, therefore, the complaint for administrative review is denied and dismissed * * *.
¶ 23 This timely appeal followed.
¶ 24 ANALYSIS
¶ 25 Shempf raises two arguments on appeal. First, the court erred by finding that it lacked jurisdiction to consider his motion for clarification or rule to show cause regarding the court‘s mandamus order. Second, the court erred by dismissing his claim for administrative review.
¶ 26 I
¶ 27 We begin with the denial of Shempf‘s motion for clarification or rule to show cause. And we start with basic principles.
¶ 28 First, the order granting summary judgment to Shempf, and entering a writ of mandamus against the Department, was a final judgment. It disposed of the rights of the parties in their entirety as to the mandamus count. See Blumenthal v. Brewer, 2016 IL 118781, ¶ 25 (final judgment is one that disposes of rights of parties either “upon the entire controversy or upon some definite and separate part thereof“).4
¶ 30 But the trial court‘s order included language under Rule 304(a), indicating that there was no just reason to delay enforcement of or appeal from its order. With the inclusion of that language, the judgment on the mandamus count became not only final but final, enforceable, and appealable. See
¶ 31 But once 30 days had elapsed from the entry of the court‘s mandamus order, with its Rule 304(a) language, the trial court‘s final judgment was carved in stone. Neither party had the right to appeal that order, nor would a postjudgment motion be timely. There was no longer any occasion to challenge that ruling via a motion to reconsider, vacate, or modify.
¶ 32 Separate and apart from motions to vacate or modify final judgments are motions to enforce those judgments. Courts typically enforce orders by way of contempt proceedings. Computer Teaching Corp. v. Courseware Applications, Inc., 191 Ill. App. 3d 203, 206 (1989). And a petition for a rule to show cause is the very method by which a party seeks enforcement of a court order, by bringing to the court‘s attention the opposing party‘s alleged violation of that order. In re Marriage of LaTour, 241 Ill. App. 3d 500, 508 (1993).
¶ 33 Unlike motions to vacate or modify a final judgment, a motion to enforce a final judgment is not limited by a 30-day postjudgment period. The court has “inherent authority” to enforce its judgments, regardless of how much time has
¶ 34 There is no dispute about any of these principles here. The parties agree that Shempf‘s motion for clarification or rule to show cause was filed more than 30 days after entry of the writ of mandamus and summary judgment in Shempf‘s favor, they agree that a motion to modify would be untimely in this instance, and they agree that motions to enforce are not governed by a deadline. The dispute here is simply over the substance of the motion Shempf filed. The Department says the motion for clarification or rule to show cause was an attempt to modify the writ and was thus untimely. Shempf argues that his motion was a motion to enforce the writ and thus was not constrained by a 30-day window.
¶ 35 It is not entirely clear what Shempf meant by asking for “clarification.” We say that because, while the title and introductory sentence mentioned a request for “clarification,” the body of the (rather short) motion did not elaborate on this point whatsoever. It merely argued that the Department‘s application of a prospective effective date violated the letter and spirit of the court‘s mandamus order. Then, in its conclusion sentence—the “wherefore” clause—Shempf prayed for “clarification of the posting effective date.” But clarification by whom? The Department? Or the court?
¶ 36 Shempf says that he was seeking an order that the Department clarify, in its posting, that the dates were retroactive. It would be a better reading of the motion, however, to conclude that Shempf was asking the court to clarify that the posted wage rates should be retroactive in application. But because the original mandamus order did not say that, asking the court to “clarify” that point would be asking the trial court to modify its original mandamus order to that level of specificity. See Burnidge Corp. v. Stelford, 309 Ill. App. 3d 576, 579 (2000) (motion to “clarify” was, in substance, motion to reconsider and modify judgment order). It would be a request for modification that had to be made within 30 days of entry of judgment. Id. Thus, to the extent that the motion could be so interpreted, it was untimely and properly denied.
¶ 37 But it ultimately makes no difference what Shempf meant by his reference to “clarification” because, in any event, there is no question that Shempf was also seeking enforcement of the court‘s order by way of a rule to show cause. The motion was styled in the alternative, a “Request for Clarification or Rule to Show Cause,” as was the prayer for relief. In the introductory sentence of the motion, Shempf wrote that, in addition to “clarification,” he was seeking a “Rule to Show Cause why Defendants Illinois Department of Labor should not be held in contempt of court for failure to follow the order of this Court.”
¶ 38 And the substance of Shempf‘s motion likewise indicated that at least one of the things he was seeking was a rule to show cause to enforce the court‘s order. For example, the motion claimed that the Department flouted the trial court‘s order by giving the prevailing wage rate prospective
¶ 39 Whether he was correct in his interpretation of the court‘s mandamus order is beside the point. This portion of his motion clearly indicated that the Department had violated the trial court‘s order to the extent it made the wage rates prospective only, and Shempf was seeking a rule to show cause why the Department should not be held in contempt for that violation.
¶ 40 This portion of Shempf‘s motion could only be viewed as a motion to enforce the trial court‘s ruling. Its inclusion alongside an improper motion for modification does not change that fact. Had Shempf filed two motions simultaneously—one for modification and one for a rule to show cause—there would be no question that the former would be time-barred and the latter timely. The fact that the two requests were cobbled together in one motion is simply a matter of form, not substance. See Five Mile Capital Westin North Shore SPE, LLC v. Berkadia Commercial Mortgage, LLC, 2012 IL App (1st) 122812, ¶ 15 (court will focus on substance, not form, of motion); Shutkas Electric, Inc. v. Ford Motor Co., 366 Ill. App. 3d 76, 81 (2006) (same). Thus, to the extent that the motion sought enforcement of the trial court‘s order via a rule to show cause, it was not untimely and should have been considered.
¶ 41 We express no opinion on Shempf‘s reading of the trial court‘s mandamus order. Our decision is unrelated to the merits of his motion. The trial court, in the first instance, is in the best position to interpret its mandamus order, determine whether the Department violated it, and decide whether a contempt finding is appropriate. We simply hold that the trial court had jurisdiction to consider the portion of Shempf‘s motion that sought a rule to show cause and only that portion of the motion. We thus vacate the trial court‘s ruling and remand for consideration of that portion of Shempf‘s motion only.
¶ 42 II
¶ 43 Next, we consider Shempf‘s appeal of the circuit court‘s order dismissing his claim for administrative review, which sought judicial review of the Department‘s “decision” to deny Shempf‘s request for a hearing pursuant to section 9 of the Prevailing Wage Act.
¶ 44 The Prevailing Wage Act adopts the Administrative Review Law (
¶ 45 To briefly reiterate, section 9 of the Prevailing Wage Act contemplates that the Department will publish a prevailing wage rate, after which time affected individuals may object and demand a public hearing.
¶ 46 The final administrative decision contemplated here, then, is the determination of the proper prevailing wage rate, after publication, a hearing, and a posthearing determination. But when Shempf sought administrative review, the Department had not published new prevailing wage rates. His complaint was that, after he objected to the Department‘s failure to do so, the Department had refused to hold a hearing under section 9—an action that would begin the hearing process that would ultimately lead to a final administrative decision.
¶ 47 The denial of a hearing was not, itself, a final administrative decision. The Department‘s refusal to hold a hearing did not fix the rights of the parties or terminate the proceedings before the Department. The proceedings had not yet even begun, as the Department had not published the initial wage rates, much less entertained any objections to them via a hearing process. It was not an “administrative decision” as contemplated by the Administrative Review Law.
¶ 48 Shempf was obviously frustrated by what he viewed as the Department dragging its feet in publishing prevailing wage rates. A suit for mandamus, seeking to compel the Department to take that first step, was a viable option that he successfully employed. But a claim for administrative review was not. There was no final administrative decision for the trial court to review, and the court thus properly determined that it had no subject-matter jurisdiction to consider that claim. We affirm that ruling.
¶ 49 III
¶ 50 Finally, we consider Shempf‘s request for damages, attorney fees, and costs. To the extent that Shempf seeks fees or costs pursuant to the administrative-review count, any such claim is moot, as the administrative-review count was properly dismissed for lack of jurisdiction.
¶ 51 But Shempf also claims entitlement to damages, fees, and costs as to the mandamus count. Section 14-105 of the Code of Civil Procedure, the mandamus statute, provides that: “If judgment is entered in favor of the plaintiff, the plaintiff shall recover damages and costs.”
¶ 53 The Department raises the bar of sovereign immunity, which generally prohibits suits against the State. See
¶ 54 But seeking monetary relief against a state agency is a different matter altogether. Claims for money damages against the State are generally barred unless the State has consented to them—unless by law, sovereign immunity has been waived. That waiver will not be lightly assumed; it must be “clear and unequivocal.” (Internal quotation marks omitted.) In re Special Education of Walker, 131 Ill. 2d 300, 303 (1989). The waiver must be expressed “in affirmative statutory language.” Id. at 304.
¶ 55 Statutes that generally allow for fees or costs to prevailing parties, but do not expressly refer to the State, do not waive sovereign immunity. Id. Even a statute requiring a “governmental entity” to pay postjudgment interest was not deemed a waiver of sovereign immunity; even though the State obviously qualifies as a “governmental entity,” the State was not expressly identified in the statute. Id.
¶ 56 As to Shempf‘s claim that he is entitled to “damages,” as we noted earlier, the mandamus statute itself provides that “[i]f judgment is entered in favor of the plaintiff, the plaintiff shall recover damages and costs.”
¶ 57 And in any event, we have held that statute to be procedural in nature, allowing for damages only if independently authorized elsewhere by law. Beaver Glass & Mirror Co. v. Board of Education of Rockford School District No. 205, 59 Ill. App. 3d 880, 884-85 (1978). Shempf can point to no such independent authority, no statute that independently provides for damages against the State in this context.
¶ 58 Certainly not the Prevailing Wage Act. That act says nothing about obtaining monetary relief against the Department. It allows employees to seek wage-loss damages against contractors who do not pay them a prevailing wage. See
¶ 59 We do not mean to suggest that the payment of money can never be a part of a mandamus action. Sometimes, the duty a mandamus claim seeks to impose on an agency director is, itself, a duty involving the payment of money. For example, a state agency pays a Medicaid provider, pursuant to a state Medicaid plan and contract, for its services. If the Medicaid provider believes that the agency is paying the wrong reimbursement rate under the
¶ 60 But that is not our case. For one thing, unlike the state agency in Senn Park, the Department does not pay anyone a prevailing wage. It has no contracts with laborers. It merely decides what that wage is and publishes it. That duty has nothing to do with the direct payment of money. Units of local government pay the wages, based on those rates. And the Prevailing Wage Act, as we have just noted, permits suits against those public bodies for underpayment of wages.
¶ 61 So any claim for “damages” against the Department is barred by sovereign immunity.
¶ 62 What is true for damages against the State is likewise true for claims for costs against the State. To repeat, “[s]tatutes which in general terms authorize imposing costs in various actions or proceedings but do not specifically refer to the State are not sufficient authority to hold the State liable for costs. The State‘s consent to the imposition of costs against it must appear in affirmative statutory language.” Department of Revenue v. Appellate Court, 67 Ill. 2d 392, 396 (1977); see also Walker, 131 Ill. 2d at 304.
¶ 63 Thus, a statute that generally allowed a prevailing appellee to recover costs of its appeal, without specifically referencing that costs could be recovered against the State, did not render the State liable for costs. Department of Revenue, 67 Ill. 2d at 398. Likewise, a statute that awarded fees to prevailing parties in a custody or child-support hearing did not affirmatively reference the State and thus was not a waiver of sovereign immunity that would compel a state agency to bear the costs of suit. Williams v. Davenport, 306 Ill. App. 3d 465, 470 (1999). Shempf‘s claim for costs is barred by sovereign immunity, too.
¶ 64 B
¶ 65 That leaves Shempf‘s claim for attorney fees. The general rule in Illinois—modestly styled the “American rule“—is that each party is liable for its own fees and costs. Village of Glenview v. Zwick, 356 Ill. App. 3d 630, 636 (2005). That remains true unless a contract between the parties provides for the recovery of fees (not relevant here) or a statute provides for a prevailing party to recover fees. Id. (There are rare other exceptions not relevant here.)
¶ 66 The mandamus statute we discussed above does not specifically provide for attorney fees, and we have refused to read that remedy into it. See Wayne Township Board of Auditors, Du Page County v. Vogel, 68 Ill. App. 3d 714, 720 (1979) (earlier version of section 14-105 (
¶ 67 But Shempf says he‘s entitled to attorney fees under section 10-55(c) of the Administrative Procedure Act. See
¶ 68 Still, Shempf has no basis for seeking attorney fees from the Department because no “administrative rule” was “invalidated” by the court‘s mandamus order. The gist of the mandamus count was that the Department had denied Shempf a hearing on the Department‘s nonpublication of its prevailing wage rates. The denial of a hearing could not remotely be considered an “administrative rule.” And even if we interpreted the publication of prevailing wage rates as a “rule” under the Administrative Procedure Act (see
¶ 69 Thus, to the extent that the trial court‘s dismissal of this matter had the effect of denying Shempf‘s claim for damages, attorney fees, and costs to Shempf, we find no error and affirm it, even if it was not the basis for the trial court‘s judgment. See BDO Seidman, LLP v. Harris, 379 Ill. App. 3d 918, 923 (2008) (reviewing court may affirm on any basis in record, regardless of whether it was basis for trial court‘s ruling).
¶ 70 IV
¶ 71 One final note: Everything we have said in section III of our opinion relates to Shempf‘s ability to recover damages, attorney fees, and costs in the context of Shempf having prevailed on the mandamus count. We have held that he has no right to seek damages, fees, or costs against the State arising from his victory on the mandamus count.
¶ 72 But earlier, we ordered a remand for the limited purpose of hearing Shempf‘s motion for a rule to show cause. That is a postjudgment enforcement motion that could, theoretically, invoke the trial court‘s contempt powers. And those enforcement powers, of course, could include the imposition of sanctions, fees, and costs, among other remedies.
¶ 73 We have no idea how the trial court will rule on this enforcement motion, and we express no opinion on how it should rule, but we recognize the possibility that the court may find the Department in contempt for publishing wage rates with a prospective effective date. If so, the court would ordinarily have at its disposal any number of remedies, including the imposition of money sanctions, attorney fees, and
¶ 74 And in the event things reached that stage on remand, and the court in some way took issue with how the Department posted its prevailing wage rates, Shempf might have an argument that the court‘s order would be the equivalent of the court “invalidating” an “administrative rule” of the Department, thus giving him the right to seek fees and costs under section 10-55(c) of the Administrative Procedure Act (
¶ 75 We merely emphasize that none of our discussion in section III above should be read as resolving these questions in the context of an enforcement motion invoking the court‘s contempt powers. If it gets to that point in the trial court on remand, nothing we have said will prevent the parties from litigating questions such as sovereign immunity, the applicability of section 10-55(c), or any other arguments it may raise.
¶ 76 CONCLUSION
¶ 77 We vacate the judgment denying Shempf‘s motion for clarification or rule to show cause insofar as the court found that it lacked jurisdiction to hear Shempf‘s motion for a rule to show cause. We remand for the limited purpose of allowing Shempf to present the motion for a rule to show cause. We otherwise affirm that judgment, including the denial of damages, attorney fees, and costs. We likewise affirm the judgment dismissing the administrative-review claim.
¶ 78 Affirmed in part, vacated in part, and remanded with directions.