{ "id": 3156535, "name": "THE PEOPLE ex rel. E. ALLEN BERNARDI, Director of Labor, Appellant, v. LEARY CONSTRUCTION COMPANY, INC., et al., Appellees", "name_abbreviation": "People ex rel. Bernardi v. Leary Construction Co.", "decision_date": "1984-04-04", "docket_number": "No. 57806", "first_page": "295", "last_page": "302", "citations": [ { "type": "official", "cite": "102 Ill. 2d 295" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "465 U.S. 208", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11335150 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/465/0208-01" ] }, { "cite": "100 S. Ct. 1836", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "64 L. Ed. 2d 262", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "446 U.S. 909", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6200992, 6200001, 6201474, 6202119, 6200624, 6199826, 6201907, 6201236, 6201684, 6200412, 6200223 ], "opinion_index": 0, "case_paths": [ "/us/446/0909-06", "/us/446/0909-02", "/us/446/0909-08", "/us/446/0909-11", "/us/446/0909-05", "/us/446/0909-01", "/us/446/0909-10", "/us/446/0909-07", "/us/446/0909-09", "/us/446/0909-04", "/us/446/0909-03" ] }, { "cite": "423 N.Y.S.2d 878", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1980, "opinion_index": 0 }, { "cite": "399 N.E.2d 909", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "48 N.Y.2d 514", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 4372051 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ny-2d/48/0514-01" ] }, { "cite": "437 A.2d 733", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1979, "opinion_index": 0 }, { "cite": "181 N.J. Super. 376", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 909229 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nj-super/181/0376-01" ] }, { "cite": "654 P.2d 67", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1981, "opinion_index": 0 }, { "cite": "98 Wash. 2d 121", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1151225 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/wash-2d/98/0121-01" ] }, { "cite": "436 U.S. 371", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490425 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/us/436/0371-01" ] }, { "cite": "426 U.S. 794", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183027 ], "weight": 6, "pin_cites": [ { "page": "809" }, { "page": "231" }, { "page": "2497" } ], "opinion_index": 0, "case_paths": [ "/us/426/0794-01" ] }, { "cite": "460 U.S. 204", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191192 ], "weight": 9, "opinion_index": 0, "case_paths": [ "/us/460/0204-01" ] }, { "cite": "437 U.S. 518", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182058 ], "weight": 14, "pin_cites": [ { "page": "520" }, { "page": "401" }, { "page": "2484" }, { "page": "524" }, { "page": "2487" } ], "opinion_index": 0, "case_paths": [ "/us/437/0518-01" ] }, { "cite": "61 Ill. 2d 258", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2967578 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "272-73" }, { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0258-01" ] }, { "cite": "87 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 } ], "analysis": { "cardinality": 677, "char_count": 13366, "ocr_confidence": 0.737, "pagerank": { "raw": 5.741094198623307e-08, "percentile": 0.3595045502652857 }, "sha256": "b89017e954d36627f04aaa860c2015e56e8af40d09a1d8220ecce5b6da8107b9", "simhash": "1:5662dcfba0704784", "word_count": 2130 }, "last_updated": "2023-07-14T21:56:05.233628+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE ex rel. E. ALLEN BERNARDI, Director of Labor, Appellant, v. LEARY CONSTRUCTION COMPANY, INC., et al., Appellees." ], "opinions": [ { "text": "JUSTICE WARD\ndelivered the opinion of the court:\nOn August 17, 1981, the appellee Leary Construction Company, Inc. (Leary), an Illinois corporation, entered into an agreement with the appellee village of Roanoke (the village) to paint the village\u2019s water tower and perform repairs on it. On February 11, 1982, the Director of the Illinois Department of Labor (the Department), the appellant, filed a complaint in the circuit court of Woodford County against Leary and the village alleging violations of \u201cAn Act regulating wages of laborers, mechanics and other workers employed in any public works ***\u201d (the Prevailing Wage Act) (Ill. Rev. Stat. 1981, ch. 48, par. 39s \u2014 1 et seq.) and \u201cAn Act to give preference in the construction of public works ***\u201d (the Preference Act) (Ill. Rev. Stat. 1981, ch. 48, par. 269 et seq.) and seeking an injunction, a declaratory judgment, and damages. (There is no question on this appeal concerning the Prevailing Wage Act.)\nThe appellees filed motions to dismiss the counts of the complaint relating to the Preference Act, contending that the statute denied rights assured them under the privileges and immunities clause of the Constitution of the United States. U.S. Const., art. IV, sec. 2.\nOn March 23, 1982, the circuit court held that the Preference Act did violate the privileges and immunities clause and dismissed the appellant\u2019s claim under the Act. The appellant filed a notice of appeal to this court under Supreme Court Rule 302(a) (87 Ill. 2d 302(a)).\nThe Preference Act in the part pertinent here provides:\n\u201cSec. 3. Every person who is charged with the duty, either by law or contract, of constructing or building any public works project or improvement for the State of Illinois or any political subdivision, municipal corporation or other governmental unit thereof shall employ only Illinois laborers on such project or improvement, and every contract let by any such person shall contain a provision requiring that such labor be used: Provided, that other laborers may be used when Illinois laborers as defined in this Act are not available, or are incapable of performing the particular type of work involved, if so certified by the contractor and approved by the contracting officer.\u201d (Ill. Rev. Stat. 1981, ch. 48, par. 271.)\nIn People ex rel. Holland v. Bleigh Construction Co. (1975), 61 Ill. 2d 258, this court held that the Preference Act was not violative of the privileges and immunities clause of the Constitution. The appellees contend that the decision in Hicklin v. Orbeck (1978), 437 U.S. 518, 57 L. Ed. 2d 397, 98 S. Ct. 2482, in effect has overruled the holding in Bleigh Construction, and requires that we declare our statute to be unconstitutional. The appellant argu.es that the decision in Hicklin is distinguishable, and that the Preference Act continues to represent a constitutional exercise of State power.\nIn People ex rel. Holland v. Bleigh Construction Co. (1975), 61 Ill. 2d 258, this court first considered the constitutionality of the Preference Act. (Ill. Rev. Stat. 1973, ch. 48, par. 269.) Although the court held that portions of the Act were unconstitutional, it upheld the Act\u2019s preference for Illinois residents over nonresidents based on \u201csimple residency,\u201d declaring that it did not violate, inter alia, the privileges and immunities clause.\nIn holding that the Act did not violate the privileges and immunities clause, this court declared that the purpose of the legislation was \u201cto help Elinois residents find employment,\u201d and that \u201cthe State has a valid interest in promoting employment for its residents.\u201d (People ex rel. Holland v. Bleigh Construction Co. (1975), 61 Ill. 2d 258, 272-73.) The court concluded that \u201c[t]he \u2018degree of discrimination\u2019 in preferring resident laborers over nonresident laborers on public works projects \u2018bears a close relation\u2019 to this valid purpose.\u201d 61 Ill. 2d 258, 273.\nSubsequent to Bleigh Construction, the Supreme Court in Hicklin v. Orbeck (1978), 437 U.S. 518, 57 L. Ed. 2d 397, 98 S. Ct. 2482, held that the \u201cAlaska Hire\u201d statute violated the privileges and immunities clause. Enacted in 1972, the \u201cAlaska Hire\u201d statute gave preference to Alaska residents for employment arising out of oil and gas leases in which the State was the lessor. In this regard, the statute required that \u201c \u2018all oil and gas leases, easements or right-of-way permits for oil or gas pipeline purposes, unitization agreements, or any renegotiation of any of the preceding to which the state is a party\u2019 contain a provision \u2018requiring the employment of qualified Alaska residents\u2019 in .preference to nonresidents.\u201d 437 U.S. 518, 520, 57 L. Ed. 2d 397, 401, 98 S. Ct. 2482, 2484.\nMore broadly, however, the statute also extended the resident requirement to \u201call employment which is a result of oil and gas leases [and] easements,\u201d including a lessee\u2019s \u201csupplier of his contractor or subcontractor.\u201d (Emphasis added.) (Alaska Stat. Ann. sec. 38.40.050(a) (1977).) The Supreme Court first noted that any assumption that a State ever could properly attempt to alleviate its unemployment problem by requiring private employers to discriminate against nonresidents was \u201cdubious.\u201d Even assuming it constitutionally could do so, the court said, the State had nevertheless failed to show that nonresidents were \u201ca source\u201d of the \u201cevil\u201d of unemployment. And even if it were assumed further that nonresident labor was the cause of unemployment, the discrimination directed by the statute failed to bear a substantial relationship to the \u201cevil\u201d the nonresidents supposedly presented.\nThus, the Hicklin decision provided a two-part test for State actions that infringe upon rights protected by the privileges and immunities clause. First, the State must identify nonresidents as being a \u201cpeculiar source of evil\u201d at which the statute is directed. Second, the discrimination must bear a substantial relationship to the evil that nonresidents present.\nWe would observe first that the type of discrimination involved here is within the scope of the privileges and immunities clause. The subject of one\u2019s livelihood invokes the protection of the clause:\n\u201c[T]he protection of the Clause is strongly supported by this Court\u2019s decisions holding violative of the Clause state discrimination against nonresidents seeking to ply their trade, practice their occupation, or pursue a common calling within the State.\u201d Hicklin v. Orbeck (1978), 437 U.S. 518, 524, 57 L. Ed. 2d.397, 404, 98 S. Ct. 2482, 2487.\nNext, we conclude that the Preference Act does not meet the requirements set out in Hicklin. There is nothing in the record, including the complaint itself, to show that nonresident laborers are a cause of unemployment in Ulinois. Because no relationship has been established between nonresident employment on public works projects and resident unemployment, the nonresident laborers cannot be considered a \u201cpeculiar source\u201d of the evil of unemployment. And because nonresident laborers have not been identified as a \u201csource\u201d of unemployment, the statute\u2019s preference or discrimination cannot bear a \u201csubstantial relationship\u201d to the degree of danger or evil that the nonresidents present.\nThe appellant maintains, however, that the Preference Act is not unconstitutional because under it the State or other governmental units act as a \u201cmarket participant\u201d in contracting for public works projects. The appellant says that the Supreme Court applied this reasoning recently in White v. Massachusetts Council of Construction Employers, Inc. (1983), 460 U.S. 204, 75 L. Ed. 2d 1, 103 S. Ct. 1042, to uphold an executive order of a mayor which was similar to the Preference Act. The \u201cmarket participant\u201d doctrine, however, is relevant only when a State\u2019s action is being challenged under the Constitution\u2019s commerce clause. A State or other governmental unit will be said to be affecting commercial transactions as a \u201cmarket participant\u201d when it is a party to the regulated transaction. (See White v. Massachusetts Council of Construction Employers, Inc. (1983), 460 U.S. 204, 75 L. Ed. 2d 1, 103 S. Ct. 1042.) This usually occurs when the State is acting as a buyer or seller. If the State is found to be a market participant, then the State\u2019s behavior need not be scrutinized and no \u201cindependent justification\u201d for the State action is required. (Hughes v. Alexandria Scrap Corp. (1976), 426 U.S. 794, 809, 49 L. Ed. 2d 220, 231, 96 S. Ct. 2488, 2497.) Because a \u201cmarket participant\u201d determination is irrelevant in a case which is litigated under the privileges and immunities clause, the appellant\u2019s reliance on the \u201cmarket participant\u201d analysis in White v. Massachusetts Council of Construction Employers, Inc. (1983), 460 U.S. 204, 75 L. Ed. 2d 1, 103 S. Ct. 1042, is misplaced.\nIn White, the mayor of Boston issued an executive order which required that all city construction projects were to be performed by a work force consisting of no less than one-half Boston residents. The court, referring to Hughes v. Alexandria Scrap Corp. (1976), 426 U.S. 794, 49 L. Ed. 2d 220, 96 S. Ct. 2488, determined that the relevant inquiry was whether the city was a \u201cmarket participant.\u201d The court held that the city was a market participant because it was a contracting party in all of the regulated transactions, and thus the city had not violated the commerce clause. Whether the mayor\u2019s order violated the privileges and immunities clause was not passed upon by the Supreme Judicial Court of Massachusetts or by the United States Supreme Court.\nUnder the privileges and immunities clause, one factor in evaluating whether a State\u2019s discriminatory action can be constitutionally justified is the State\u2019s \u201cproprietary interest\u201d in the activity. (See Hicklin v. Orbeck (1978), 437 U.S. 518, 57 L. Ed. 2d 397, 98 S. Ct. 2482; Baldwin v. Fish & Game Com. (1978), 436 U.S. 371, 56 L. Ed. 2d 354, 98 S. Ct. 1852.) A State\u2019s \u201cproprietary interest\u201d can arise from ownership of a natural resource or from expenditure of State funds, such as its funding of public works projects. The appellant claims that the State\u2019s proprietary interest in the activity covered by the Preference Act, i.e., the expenditure of funds, justifies the preference or discrimination prescribed for residents by the statute. The appellant contends that the proprietary-interest factor was not dispositive in Hicklin only because the \u201cAlaska Hire\u201d statute sought to regulate the actions of private employers not connected with the Alaskan oil leases, i.e., activity beyond the scope of Alaska\u2019s proprietary interest. Our preference statute, the appellant argues, regulates only activity of private employers directly connected with public works projects, and therefore the proprietary-interest factor is dispositive and the two-part test should not be applied here. The appellants do not read Hicklin properly. Because the Preference Act\u2019s discrimination does not extend beyond activity in which Illinois has a proprietary interest does not mean that the two-part Hicklin test is inapplicable here. The application of the two-part test in Hicklin was not grounded simply on the fact that the \u201cAlaska Hire\u201d statute would extend to private employers not connected with the Trans-Alaskan Pipeline. Although the Hicklin court referred to a State\u2019s proprietary interest as being \u201coften a crucial factor,\u201d it is clear that the factor would not be dispositive where the discrimination interfered with a \u201cbasic and essential\u201d right. (See Baldwin v. Fish & Game Com. (1978), 436 U.S. 371, 56 L. Ed. 2d 354, 98 S. Ct. 1852.) Where a basic and essential right of a nonresident, as the right to pursue one\u2019s trade, is involved, the two-part test must be satisfied.\nThe conclusion we reach here is consistent with recent decisions in several jurisdictions holding resembling preference statutes unconstitutional under the privileges and immunities clause. Laborers Local Union No. 374 v. Felton Construction Co. (1982), 98 Wash. 2d 121, 654 P.2d 67; Neshaminy Constructors, Inc. v. Krause (1981), 181 N.J. Super. 376, 437 A.2d 733; Salla v. County of Monroe (1979), 48 N.Y.2d 514, 399 N.E.2d 909, 423 N.Y.S.2d 878, cert. denied (1980), 446 U.S. 909, 64 L. Ed. 2d 262, 100 S. Ct. 1836.\nWe would add that our holding is consistent with the latest expression of the Supreme Court regarding preference laws and the privileges and immunities clause. See United Building & Construction Trades Council v. Mayor of Camden (1984), 465 U.S. 208, 79 L. Ed. 2d 249, 104 S. Ct. 1020.\nFor the reasons given, the judgment of the circuit court is affirmed.\nJudgment affirmed.", "type": "majority", "author": "JUSTICE WARD" } ], "attorneys": [ "Neil F. Hartigan, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for appellant.", "Martin H. Katz, of Katz, McAndrews, Durkee, Balch & Lefstein, of Rock Island, for appellee Leary Construction Company, Inc.", "Stanley L. Morris, of Pfeifer & Kelty, P.C., of Springfield, for appellee Village of Roanoke.", "Lester Asher and Donald W. Cohen, of Chicago (Asher, Goodstein, Pavalon, Gittler, Greenfield & Segall, Ltd., of counsel), for amicus curiae Illinois State Federation of Labor & Congress of Industrial Organizations et al." ], "corrections": "", "head_matter": "(No. 57806.\nTHE PEOPLE ex rel. E. ALLEN BERNARDI, Director of Labor, Appellant, v. LEARY CONSTRUCTION COMPANY, INC., et al., Appellees.\nOpinion filed April 4, 1984.\nRehearing denied June 29, 1984.\nNeil F. Hartigan, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for appellant.\nMartin H. Katz, of Katz, McAndrews, Durkee, Balch & Lefstein, of Rock Island, for appellee Leary Construction Company, Inc.\nStanley L. Morris, of Pfeifer & Kelty, P.C., of Springfield, for appellee Village of Roanoke.\nLester Asher and Donald W. Cohen, of Chicago (Asher, Goodstein, Pavalon, Gittler, Greenfield & Segall, Ltd., of counsel), for amicus curiae Illinois State Federation of Labor & Congress of Industrial Organizations et al." }, "file_name": "0295-01", "first_page_order": 307, "last_page_order": 314 }