Rule 23 order filed                  2018 IL App (5th) 170081

December 20, 2018.

Motion to publish granted                  NO. 5-17-0081 

January 18, 2019.

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                                 FIFTH DISTRICT
______________________________________________________________________________

MICHAEL TODD, as a Member of the Laborers’                       )    Appeal from the

International Union of North America Local 459,                  )    Circuit Court of

Belleville, Illinois; and THE MIDWEST REGION OF THE              )    St. Clair County.

LABORERS’ INTERNATIONAL UNION OF NORTH                           )

AMERICA, Great Plains District, Southern & Central               )

District, and Southwest Illinois District,                       )

                                                                 )

       Plaintiffs-Appellees,                                     )

                                                                 )

v.                                                               )    No. 15-MR-414
                                                                 )

HUGO CHAVIANO, in His Official Capacity as                       )

Director, and THE ILLINOIS DEPARTMENT OF                         )

LABOR,                                                           )

                                                                 )

       Defendants-Appellants                                     )

                                                                 )
(Associated General Contractors of Illinois; The                 )
Underground Contractors Association of Illinois;                 )
American Council of Engineering Companies of                     )
Illinois; Illinois Society of Professional Engineers;            )
Southern Illinois Builders Association; Illinois                 )
Professional Land Surveyors Association; Illinois                )
Road & Transportation Builders Association;                      )
Diamond Construction Company; United Contractors                 )
Midwest, Inc.; Advanced Asphalt Company; E.T.                    )
Simonds; Tarlton Corporation; ARC Design Resources,              )
Inc.; Shive-Hattery, Inc.; PI Surveying Group, P.C.;             )
Robinson Engineering, Ltd.; Prairie Engineers of Illinois,       )
P.C.; Hermann & Associates, L.L.C.; Klinger &                    )
Associates, P.C.; McDonough-Whitlow, P.C.;                       )
Andrews Engineering, Inc.; Tyson Engineering, Inc.;              )
Bowman, Barrett & Associates, Inc.; Maurer-Stutz,                )
Inc.; Oates Associates, Inc.; Crawford, Murphy &                 )
Tilly, Inc.; Ament, Inc.; Alfred Benesch & Company;              )

                                                1

Chastain & Associates, L.L.C.; Clark Dietz, Inc.;       )

Coombe-Bloxdorf, P.C.; Farnsworth Group, Inc.;          )

Kaskaskia Engineering Group, L.L.C.; SCI Engineering,   )

Inc.; Woolpert, Inc.; Hartke Engineering and Surveying, )   Honorable

Inc.; and Poepping, Stone, Bach & Associates, Inc.,     )   Robert P. LeChien,

Putative Intervenors-Appellants).                       )   Judge, presiding.

______________________________________________________________________________

       JUSTICE MOORE delivered the judgment of the court, with opinion.
       Presiding Justice Overstreet and Justice Welch concurred in the judgment and opinion.

                                             OPINION

¶1      The defendants, Joe Beyer, 1 in his official capacity as acting Director, and the Illinois

Department of Labor (Department), appeal the January 20, 2017, order of the circuit court of St.

Clair County, which granted a summary judgment to the plaintiffs, Michael Todd, as a member

of the Laborers’ International Union of North America Local 459, Belleville, Illinois, and the

Midwest Region of the Laborers’ International Union of North America, Great Plains District,

Southern & Central District, and Southwest Illinois District (Laborers), as to their complaint for

declaratory and injunctive relief from a letter issued by the former director of the Department,

Hugo Chaviano, on October 16, 2015, which ordered the Department to conduct an investigatory

hearing pursuant to section 4(e) of the Prevailing Wage Act (Act) (820 ILCS 130/4(e) (West

2014)), concerning classifications and wage rates for survey workers under the Act. 820 ILCS

130/0.01 et seq. (West 2014). In addition, Associated General Contractors of Illinois; the

Underground Contractors Association of Illinois; American Council of Engineering Companies

of Illinois; Illinois Society of Professional Engineers; Southern Illinois Builders Association;

Illinois Professional Land Surveyors Association; Illinois Road & Transportation Builders

Association; Diamond Construction Company; United Contractors Midwest, Inc.; Advanced

       1
        Hugo Chaviano is no longer the Director of the Department. Pursuant to section 2-1008 of the
Code of Civil Procedure (735 ILCS 5/2-1008(d) (West 2016)), this action proceeds against his successor,
Acting Director Joe Beyer.
                                                  2

Asphalt Company; E.T. Simonds; Tarlton Corporation; ARC Design Resources, Inc.; Shive-

Hattery, Inc.; PI Surveying Group, P.C.; Robinson Engineering, Ltd.; Prairie Engineers of

Illinois, P.C.; Hermann & Associates, L.L.C.; Klinger & Associates, P.C.; McDonough-

Whitlow, P.C.; Andrews Engineering, Inc.; Tyson Engineering, Inc.; Bowman, Barrett &

Associates, Inc.; Maurer-Stutz, Inc.; Oates Associates, Inc.; Crawford, Murphy & Tilly, Inc.;

Ament, Inc.; Alfred Benesch & Company; Chastain & Associates, L.L.C.; Clark Dietz, Inc.;

Coombe-Bloxdorf, P.C.; Farnsworth Group, Inc.; Kaskaskia Engineering Group, L.L.C.; SCI

Engineering, Inc.; Woolpert, Inc.; Hartke Engineering and Surveying, Inc.; and Poepping, Stone,

Bach & Associates, Inc. (Contractors), appeal from the circuit court’s January 6, 2016, and

August 11, 2016, orders denying their petitions to intervene in the proceeding. In addition, the

Laborers have filed a motion to strike portions of the brief filed by the Contractors, and a motion

to supplement the record on appeal, which this court has taken with the case. For the following

reasons, we grant the Laborers’ motion to supplement, deny the Laborers’ motion to strike,

reverse the circuit court’s January 20, 2017, order, and remand with directions that the circuit

court dismiss this action for a lack of subject matter jurisdiction.

¶2                                             FACTS

¶3       The relevant facts leading up to the instant appeal are as follows. In June 2013, the

Department, under the authority of Director Joseph Costigan, published, pursuant to section 9 of

the Act (820 ILCS 130/9 (West 2012)), prevailing wage rates on its official website. On July 23,

2013, the International Union of Operating Engineers, Local 150, AFL-CIO (Operators), on

behalf of its member, Stanley Simrayh, notified the Department, in writing, of his objection to

the schedule. The Operators requested the Department to add new sub-classifications for survey

crew members (Rodman, Instrument Man, and Foreman) to the existing classification for


                                                  3

“Operating Engineer (Highway)” and establish prevailing wage rates for these sub­

classifications. The objection stated the Operators were requesting “in accordance with section 4

and 9 of the Act *** an investigatory hearing to establish [p]revailing [w]age rates for Rodman,

Instrument Man, and Foreman[,] statewide.”

¶4      The Department instituted a proceeding on the Operators’ objections as case number 14­

H-TW07-0031 (2013 proceeding). The Laborers and others were granted leave to intervene in

the 2013 proceeding. However, the Contractors’ petition to intervene was denied as untimely. On

July 29, 2013, the Department issued a notice that it would convene a hearing regarding the

Operators’ objections, in accordance with article 10 of the Illinois Administrative Procedure Act

(5 ILCS 100/10-5 et seq. (West 2012)) and the procedures stated in the Department’s rules. 56

Ill. Adm. Code 120.100 et seq. (2013).

¶5      Prior to a formal hearing by the Department, the Laborers, the Operators, and the

Department reached an agreement on the disputed issues and entered into two formal consent

decrees in the 2013 proceeding. The consent decrees were approved by administrative law judge

Claudia Manley on September 12, 2013. The decrees provided for the creation of new

classifications for “Survey Worker” and “Survey Foreman.” The first consent decree set forth

the prevailing wage rates for these classifications in all Illinois counties, excluding Cook, Will,

Du Page, Lake, Kane, Kendall, Boone, Grundy, and McHenry. The second consent decree set

forth the prevailing wage rates for these classifications in those counties excluded by the first.

The new classifications and rates were to become effective on October 1, 2013. On that date, the

Department published a schedule of prevailing wages on its official website that included these

new classifications and rates.




                                                4

¶6      On October 10, 2013, the Contractors submitted to the Department a written notice of

objections to the October 1, 2013, prevailing wage schedule and requested a hearing pursuant to

section 9 of the Act. 820 ILCS 130/9 (West 2012). On November 4, 2013, Director Costigan

issued a decision denying the Contractors’ request for a hearing. On December 4, 2013, the

Contractors filed a complaint for administrative review in the circuit court of Cook County,

instituting case number 13-CH-26840. On February 14, 2014, the Contractors filed a motion in

that case requesting an order staying enforcement of the new classifications pending

administrative review. On April 4, 2014, the circuit court of Cook County entered an order

granting the Contractors’ motion to stay.

¶7      The Contractors and the Department entered into an agreement to settle Cook County

case number 13-CH-26840, under the following terms. The Department agreed to accept new

written objections, pursuant to section 9 of the Act (id.), relating to, inter alia, the “survey

worker” and “survey foreman” classifications and rates. Upon receipt of the objections, the

Department agreed to schedule section 9 hearings on the objections. In addition, the Department

agreed not to enforce the rates and classifications set forth by the consent decrees and not to

repost them on its website until the Department issued a final decision on the Contractors’

objections. In exchange, the Contractors agreed to dismiss case number 13-CH-26840 without

prejudice.

¶8      Pursuant to the settlement agreement, the Department posted prevailing wage rates on its

website for July 2014, with the “survey worker” classification and rates crossed out and listed as

“Not in Effect.” Thereafter, the circuit court of Cook County dismissed, without prejudice, case

number 13-CH-26840, but retained jurisdiction to enforce the settlement. The Operators filed

objections to the July 2014 posting with the Department, and the Department consolidated the


                                                5

Operators’ objections and the Contractors’ objections, pursuant to section 9 of the Act (id.), as

administrative proceeding 15-H-JN07-0853 (2014 proceeding). The Laborers and others were

granted leave to intervene in the 2014 proceeding, which was assigned to administrative law

judge Michael Haggerty (ALJ Haggerty).

¶9      In an order dated September 26, 2014, ALJ Haggerty ruled the issues of classification and

rates would be addressed in a bifurcated hearing, with the issue of classification to be heard first.

In October 2014, ALJ Haggerty convened a formal hearing in the 2014 proceeding regarding the

issue of classification, which took place over seven days. On December 12, 2014, ALJ Haggerty

issued an order concerning the classification issue. In this order, ALJ Haggerty determined the

classifications of “survey worker” and “survey foreman” are proper under the Act, but the

language of the classifications should be amended to clarify the context in which such persons

and work are covered. The December 12, 2014, order also noted “[t]his Order is not a final

administrative decision for purposes of the [Administrative Review Law (ARL)]. A final

administrative decision addressing both the ‘classification’ and the ‘rate’ shall issue following

the closing of the record on the issue of ‘rate.’ ”

¶ 10    The Contractors and the Laborers filed exceptions to the December 12, 2014, order, and

other parties filed responses to those exceptions. In an order dated January 9, 2015, ALJ

Haggerty determined the exceptions were not yet ripe to be filed pursuant to Department rules.

See 56 Ill. Adm. Code 120.640 (2014). Thereafter, the Operators, the Contractors, the Laborers,

and others filed a joint motion requesting a final decision and order on the issue of classification.

Due to the magnitude of the issue of rate across 102 counties, and the expectation that exceptions

would be filed and administrative review sought on the issue of classification, the parties

requested ALJ Haggerty to reconsider the decision to bifurcate the matter, and to issue a final


                                                      6

decision and order on the issue of classification to which the parties may file exceptions and

“that may be the basis for a final Order of the Director, subject to administrative review.” The

parties agreed in their joint motion that “[ALJ Haggerty] will retain jurisdiction to conduct a

hearing on the issue of rate, if and when there is a final judgment or decision by the court finding

the classifications of survey worker and survey foreman are covered under the [Act]. The motion

concluded, “it is the understanding of the parties that the status quo prior to the 2013 Consent

Decree[s] remain[s] concerning work performed using survey equipment on a construction site.”

¶ 11      Effective January 29, 2015, Director Hugo Chaviano succeeded Director Costigan as

Director of the Department. On June 12, 2015, ALJ Haggerty issued a decision and order in the

2014 proceeding, thus granting the parties’ joint motion for a “final decision and order.” In the

decision and order, ALJ Haggerty ordered classifications for “survey worker” and “survey

foreman” to be established, statewide, with respect to both highway and building construction,

and provided the exact wording to be provided for each classification. In addition, the final

decision and order stated, “[s]ubject to the final resolution of any exceptions to/appeals of this

Decision and Order, the undersigned retains jurisdiction over the instant matter for the purpose

of deciding the issue of ‘rate.’ ” The order concluded by stating, “[f]or purposes of 56 Ill. Admin.

Code 120.640, the instant matter is hereby transferred to the Director of Labor.” At the bottom of

the order, a paragraph entitled “NOTICE” explains exceptions to the decision and order may be

filed pursuant to 56 Ill. Adm. Code 120.640. “In the event no timely or proper exceptions are

filed, the instant Decision and Order shall automatically become the final decision and order of

the Director, subject to judicial review in accordance with 735 ILCS 5/3-101 et. seq.” (Emphasis

added.)




                                                 7

¶ 12    On or about June 22, 2015, the Contractors and Operators each filed exceptions to ALJ

Haggerty’s decision and order. On October 16, 2015, Director Chaviano sent a letter to each of

the parties, referencing case number 15-H-JN07-0853. The letter states a formal hearing pursuant

to section 9 of the Act (820 ILCS 130/9 (West 2014)) was improperly held on the classification

issue, rendering ALJ Haggerty’s decision and order “null and void.” The letter further states the

Department would conduct an investigatory hearing pursuant to section 4 of the Act (id. § 4) on

the classification issue, and invited all parties to submit to the Department any information they

would like for the Department to consider as part of its investigation.

¶ 13    On November 9, 2015, Simrayh and the Operators filed a complaint in the circuit court of

Cook County, naming the Department and Director as defendants, which was docketed as case

number 15-CH-16443. Simrayh’s initial complaint requested injunctive relief from Director

Chaviano’s October 16, 2015, letter. On November 13, 2015, the Laborers filed a verified

complaint for declaratory and injunctive relief in the circuit court of St. Clair County, initiating

the instant case.

¶ 14    Count I of the complaint in the instant case requested the circuit court declare the October

16, 2015, letter issued by Director Chaviano is null and void. Further, count I requested a

declaration that the prior classification and rate determination for “survey worker and survey

foreman” pursuant to the two consent decrees entered in the 2013 proceedings “shall stand as

official actions of the Department.” Count II of the complaint in the instant case requested the

circuit court enjoin the Department from enforcing Director Chaviano’s October 16, 2015, letter

and require the Department to post “the prevailing wage classification for survey workers as a

Laborers’ classification at Laborers’ rates” on its website, as they were set forth in the consent

decrees in the 2013 proceeding.


                                                 8

¶ 15   On November 19, 2015, Simrayh and the Operators filed an amended complaint in Cook

County case number 15-CH-16443, replacing its complaint for injunctive relief with a petition

for administrative review of Director Chaviano’s October 16, 2015, letter. In addition, the

Operators’ amended complaint in the Cook County proceeding added all parties to the 2014

proceedings, including the Contractors and the Laborers, as defendants, pursuant to section 3­

101 of the ARL. 735 ILCS 5/3-101 (West 2014). 2

¶ 16   On December 3, 2015, the Contractors filed a petition to intervene in the instant case

pursuant to section 2-408 of the Code of Civil Procedure (Code) (735 ILCS 5/2-408 (West

2014)) and a motion to dismiss the complaint, pursuant to section 2-619(a)(3) of the Code (id.

§ 2-619(a)(3)), because they claimed it is duplicative of the lawsuit the Operators filed in the

circuit court of Cook County in case number 15-CH-16443. On December 31, 2015, the

Department also filed a motion to dismiss the complaint, pursuant to section 2-619(a)(3) of the

Code, due to the Cook County proceeding. The Department also brought an alternative motion to

transfer the action to Cook County, pursuant to section 2-106 of the Code (id. § 2-106), on the

basis of improper venue, or for forum non conveniens, pursuant to Illinois Supreme Court Rule

187 (eff. Jan. 4, 2013). On January 6, 2016, the circuit court denied the Contractors’ motion to

intervene and on January 25, 2016, denied the Department’s motion to dismiss or transfer.

¶ 17   On June 8, 2016, the Department filed a motion for summary judgment in the instant

case. On June 10, 2016, the Laborers filed a cross-motion for summary judgment. On July 12,

2018, one of the Contractors, United Contractors Midwest, filed another petition to intervene in

the instant case, pursuant to sections 2-408(a)(2) and 2-408(b)(2) of the Code. 735 ILCS 5/2­



       2
         This court takes judicial notice that, on August 18, 2016, the circuit court of Cook County
entered an order granting the Laborers’ motion to stay Cook County case number 15-CH-16443, pending
resolution of the instant action.
                                                 9

408(a)(2), (b)(2) (West 2014). In addition, United Contractors Midwest filed a motion to dismiss

the instant case pursuant to sections 2-615 and 2-619 of the Code (id. §§ 2-615, 2-619), arguing

the Laborers are judicially estopped from pursuing their claims in the instant case because they

took an inconsistent position in the 2014 proceedings, specifically requesting the classification

issue be determined in a bifurcated proceeding pursuant to section 9 of the Act. 820 ILCS 130/9

(West 2014).

¶ 18   On July 15, 2016, the circuit court held a hearing on the cross-motions for summary

judgment and took the motions under advisement. On August 11, 2016, the circuit court entered

an order denying United Contractors Midwest’s petition to intervene. On January 20, 2017, the

circuit court entered an order granting the Laborers’ motion for summary judgment, thus

implicitly denying the Department’s motion for summary judgment. The circuit court declared

the 2013 consent decrees “originally established the new classification of survey workers and, by

operation of law, now stands as the enforceable classification and wage rate under [the Act].” In

addition, the circuit court ordered the Director of the Department to post the classification and

wage rate on its website “as set forth in the 2013 [c]onsent [d]ecrees and as affirmed [by the]

June 2015 [d]ecision and [o]rder.”

¶ 19   On February 21, 2017, the Department filed a notice of appeal from the circuit court’s

January 20, 2017, order. The Contractors filed a timely notice to join in the Department’s appeal

of the January 20, 2017, order, as well as a notice of appeal of the circuit court’s January 6, 2016,

and August 11, 2016, orders. On March 22, 2017, the circuit court granted the Department’s

motion to stay the judgment pending appeal.

¶ 20   On May 10, 2018, this court granted a motion to file an amicus brief on behalf of the

Laborers, filed by Martin Flanagan, as a member of the Laborers International Union of North


                                                 10 

America, the Construction & General Laborers’ District Council of Chicago & Vicinity, and the

Laborers’ District Council Labor Management Cooperation Committee. On June 26, 2018, the

Laborers filed a motion to strike portions of the Contractors’ brief that addressed issues other

than the circuit court’s denial of their petitions to intervene in the instant case. On September 12,

2018, this court entered an order taking the motion to strike with the case. On October 22, 2018,

the Laborers filed a motion to supplement the record on appeal with records from a related Cook

County proceeding, which they included in the appendix to their brief, which this court ordered

to be taken with the case as well.

¶ 21                                        ANALYSIS

¶ 22   Because this is an appeal from an order granting a motion for summary judgment, and

because our resolution of this appeal is based on an analysis of whether the circuit court had

subject matter jurisdiction over the plaintiffs’ complaint, our standard of review is de novo. See

Perry v. Department of Financial & Professional Regulation, 2018 IL 122349, ¶ 30 (standard of

review for appeal arising from summary judgment order is de novo); see also Illinois State

Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL 117418, ¶ 15 (whether a court

has jurisdiction to review an administrative decision presents a question of law subject to

de novo review). An absence of subject matter jurisdiction cannot be waived by the parties and

may be raised at any time, even sua sponte by a reviewing court. Veazey v. LaSalle

Telecommunications, Inc., 334 Ill. App. 3d 926, 934 (2002).

¶ 23   Generally, a party may not seek judicial relief from an administrative action unless the

party has exhausted all available administrative remedies. Arvia v. Madigan, 209 Ill. 2d 520, 531

(2004). The exhaustion doctrine extends to administrative review in a circuit court. Id. at 532.

Where the ARL applies and the circuit court may grant the relief a party seeks within the context


                                                 11 

of reviewing the agency’s decision, the circuit court has no authority to entertain independent

causes of action regarding the agency’s actions. Id. Where a statute adopts the ARL, other modes

of review are unavailable. Guerrero v. Gardner, 397 Ill. App. 3d 793, 795 (2010) (citing 735

ILCS 5/3-102 (West 2008)).

¶ 24    In this case, section 9 of the Act (820 ILCS 130/9 (West 2014)) specifically adopts the

ARL, stating it “shall apply to and govern all proceedings for the judicial review of final

administrative decisions of any public body or the Department *** [t]hereunder.” The Act

provides the term “administrative decision” is defined by section 3-101 of the Code. Id. Section

3-101 defines “administrative decision” as “any decision, order[,] or determination of any

administrative agency rendered in a particular case, which affects the legal rights, duties[,] or

privileges of parties and which terminates the proceedings before the administrative agency.”

735 ILCS 5/3-101 (West 2014). Accordingly, if Director Chaviano’s letter is to be considered a

final administrative decision under section 9 of the Act, a petition for administrative review

pursuant to the ARL is the exclusive means for obtaining judicial review of the administrative

action taken by the Department in the letter. If such is the case, the circuit court would lack

subject matter jurisdiction to entertain the Laborers’ complaint for declaratory and injunctive
       3
relief. Thus, we turn to the Act, and the proceedings before the Department, to determine

whether the Director’s letter is, indeed, a final “administrative decision” as defined in section 3­

101 of the ARL. Id. § 3-101 et seq.




        3
          The Department, in its brief, has conceded, for the sake of argument, that the Director’s letter
was in error, but suggests that it is not a final administrative decision. Thus, the Department requests that
this court remand the matter to the Department for further proceedings. However, the Department cannot
waive this issue on appeal, as it presents an issue of subject matter jurisdiction. See Veazey, 334 Ill. App.
3d at 934.

                                                    12 

¶ 25    The 2013 consent decrees set forth, for the first time, the classification of “survey

worker” and “survey foreman” and their corresponding prevailing wage rates, thus terminating

the 2013 proceedings. 4 Once these were published for the first time, the Contractors filed an

objection pursuant to section 9 of the Act (820 ILCS 130/9 (West 2012)), which provides that, at

any time within 30 days after the Department has published a prevailing wage schedule, any

person affected thereby may object in writing to the determination by filing a written notice.

Section 9 then provides the Department shall conduct a hearing on any such objection. The

Department initially refused to conduct a hearing on the Contractors’ objection. However, after

the Contractors filed a petition for administrative review in the circuit court of Cook County, the

Department and the Contractors entered into a settlement agreement to initiate the 2014

proceedings and conduct a formal hearing pursuant to section 9 of the Act. 820 ILCS 130/9
            5
(West 2014). All parties to this appeal participated in the formal hearing. If Director Chaviano’s

letter constitutes a “decision, order[,] or determination of [the Department] rendered in [the 2014

proceedings], which affects the legal rights, duties[,] or privileges of [the] parties and which

terminates the [2014] proceedings before the [Department],” then the exclusive means of review

of the subject matter of the instant case would be a petition for administrative review. See

Guerrero, 397 Ill. App. 3d at 795 (citing 735 ILCS 5/3-102 (West 2008)); 820 ILCS 130/9 (West

2014). For the following reasons, we find Director Chaviano’s letter meets this definition

precisely.




        4
        This court makes no statement as to the legal validity of the manner in which the 2013
proceedings were conducted, as such a determination is unnecessary for our disposition of this appeal.
        5
         This court makes no statement regarding the legal validity of the actions taken by the circuit
court of Cook County in ordering that enforcement of the 2013 prevailing wage rates to be stayed, as it is
unnecessary to the disposition of this appeal.
                                                   13 

¶ 26   All formal administrative hearings concerning contested cases conducted under the

jurisdiction of the Director and/or the Department are subject to the procedures set forth in

sections 120.100 through 120.670 of Title 56 of the Illinois Administrative Code. 56 Ill. Adm.

Code 120.100 (2014). A “contested case” means an adjudicatory proceeding in which the

individual legal rights, duties, or privileges of a party are required by law to be determined by an

agency only after an opportunity for a hearing. 56 Ill. Adm. Code 120.110 (2014). Thus,

proceedings under section 9 of the Act fall squarely within the definition of a contested case.

Section 120.640(a) of Title 56 specifically provides the procedures set forth therein regarding the

ALJ’s decision and order applies to all formal hearings conducted pursuant to section 9 of the

Act. 56 Ill. Adm. Code 120.640(a) (2014). In order to resolve the issue of the circuit court’s

subject matter jurisdiction in the instant case, we analyze the relationship between Director

Chaviano’s letter and the 2014 proceedings within the framework of the Department’s rules.

¶ 27   The Operators, Contractors, and Laborers filed a joint motion for ALJ Haggerty to issue a

final decision on the issue of classification in the 2014 proceedings. ALJ Haggerty issued such a

decision on June 12, 2015. At this time, the parties had 10 days to submit exceptions to ALJ

Haggerty’s recommendations. 56 Ill. Adm. Code 120.640(b) (2014). If no timely or proper

exceptions had been filed, ALJ Haggerty’s June 12, 2015, decision would have automatically

become the decision of the Director. Id. However, on or about June 22, 2015, the Contractors

and Operators each filed exceptions to ALJ Haggerty’s decision. Therefore, the Director was

required to review the record, along with ALJ Haggerty’s findings, together with the exceptions,

and to issue an order as set forth by applicable statutes within a reasonable time. Id.




                                                 14 

¶ 28    The record is devoid of any decision by the Director of the Department as required by the

aforementioned rules until Director Chaviano issued his letter on October 16, 2015. 6 In the letter,

Director Chaviano specifically referenced the 2014 proceedings, satisfying the requirement in

section 3-101 of the ARL (735 ILCS 5/3-101 (West 2014)) that the decision, order, or

determination of the administrative agency be rendered in a particular case. Director Chaviano’s

letter made an express finding that ALJ Haggerty’s decision and order was “null and void”

because the classification issue was improperly determined by formal hearing pursuant to section

9 of the Act (820 ILCS 130/9 (West 2014)), rather than an investigatory hearing pursuant to

section 4 of the Act. Id. § 4. 7 This clearly affected the legal rights, duties, or privileges of the

parties to the 2014 proceedings, as required by section 3-101 of the ARL (735 ILCS 5/3-101

(West 2014)) because it nullified the parties’ participation in the section 9 proceedings that had

occurred before the Department in the case. Finally, Director Chaviano’s letter stated the

Department would conduct an investigatory hearing on the classification issue, pursuant to

section 4 of the Act. 820 ILCS 130/4 (West 2014). This effectively terminated the 2014

proceedings, which were held pursuant to section 9 of the Act (id. § 9) and subject to all of the

formal hearing procedures set forth in that section, as well as the procedures set forth in sections

120.100 through 120.670 of Title 56 of the Illinois Administrative Code. 56 Ill. Adm. Code

120.100 (2014). The fact the letter ordered an investigatory hearing to commence on the issue of

classification does not translate into a continuation of the 2014 proceeding, because pursuant to

        6
         Although section 9 of the Act (820 ILCS 130/9 (West 2014)) states that “[t]he final
determination by the Department of Labor *** shall be rendered within 30 days after the conclusion of
the hearing,” we find this provision is directory, rather than mandatory. See Cooper v. Department of
Children & Family Services, 234 Ill. App. 3d 474, 482 (1992) (if a provision of a statute states the time
for performance of an official duty without any language denying performance after a specified time, it is
directory, rather than mandatory).
        7
         This court makes no determination as to the propriety of this determination. Indeed, this is one of
the major issues subject to judicial review under the ARL.
                                                    15 

section 4 of the Act (820 ILCS 130/4 (West 2014)), the investigatory hearing process is not an

adversary hearing at all, but rather, simply a process by which the Department unilaterally

“ascertains” the proper classification and rates.

¶ 29    In summary, for the reasons set forth above, we find Director Chaviano’s October 16,

2015, letter qualifies as an “administrative decision” as that term is defined in section 3-101 of

the ARL (735 ILCS 5/3-101 (West 2014)), because it is an administrative agency’s

determination, rendered in a particular case, affecting the legal rights of the parties, and results in

the termination of the section 9 proceeding before the Department. As such, the Laborers may

not seek judicial relief from the determination made in Director Chaviano’s letter outside of the

ARL. See Guerrero, 397 Ill. App. 3d at 795 (citing 735 ILCS 5/3-102 (West 2008)); 820 ILCS

130/9 (West 2014). For this reason, the circuit court had no authority to entertain causes of action

for declaratory or injunctive relief based on the decision set forth in the letter. See Arvia, 209 Ill.

2d at 532. 8 Accordingly, we reverse the circuit court’s January 20, 2017, order and remand with

directions that the circuit court dismiss the instant action for a lack of subject matter jurisdiction.

¶ 30    We now take up the two motions that remain pending before this court. The Laborers

moved this court to supplement the record on appeal with records from the proceedings that took

place before the circuit court of Cook County. Public documents which are included in the

records of other courts and administrative tribunals fall within the readily verifiable facts which

        8
          We distinguish this case from our decision in People ex rel. Olin Corp. v. Department of Labor,
95 Ill. App. 3d 1108 (1981). In that case, the Director issued an order, on his own initiative, that withdrew
his own previous order, entered three months earlier, and directed a hearing to be held on an issue that
had been finally determined by the Director in the previous order. Id. at 1109. Under those circumstances,
the ARL was no longer available, as the proceedings were already finally concluded. Id. at 1111. Thus,
we held that the circuit court had authority to issue a writ of prohibition, because the Director sought to
exercise judicial or quasi-judicial power that was unauthorized by law and would result in injury for
which no other adequate remedy existed. Id. As set forth in detail above, this is not the case with the
action taken by Director Chaviano in his letter, which was, itself, an administrative decision subject to the
ARL.

                                                    16 

are subject to judicial notice. May Department Stores Co. v. Teamsters Union Local No. 743, 64

Ill. 2d 153, 159 (1976). Thus, we grant the Laborers’ motion to supplement the record with these

documents.

¶ 31   The Laborers also moved to strike those portions of the Contractors’ brief that addressed

issues other than the circuit court’s denial of their petitions to intervene. We did not address the

issue of the circuit court’s denial of the Contractors’ petitions to intervene directly, due to our

disposition of this appeal based on the circuit court’s lack of subject matter jurisdiction over the

Laborers’ complaint for declaratory and injunctive relief. We recognize, however, that the

Contractors were party to the 2014 proceedings which resulted in the administrative decision set

forth in Director Chaviano’s 2014 letter. Based on our finding that a proceeding under the ARL

is the only method of judicial review of that decision, and the fact that the Contractors are

necessary parties thereto, we deny the Laborers’ motion to strike.

¶ 32                                      CONCLUSION

¶ 33   For the foregoing reasons, we grant the Laborers’ motion to supplement the record on

appeal and deny the Laborers’ motion to strike portions of the Contractors’ brief. We reverse the

circuit court’s January 20, 2017, order, which granted the Laborers’ motion for summary

judgment, and remand with directions that the circuit court dismiss the Laborers’ complaint for a

lack of subject matter jurisdiction.



¶ 34   Motion to supplement granted; motion to strike denied; order reversed; cause remanded

with directions.




                                                17 

                                   2018 IL App (5th) 170081 


                                         NO. 5-17-0081


                                             IN THE


                               APPELLATE COURT OF ILLINOIS


                               FIFTH DISTRICT

______________________________________________________________________________

MICHAEL TODD, as a Member of the Laborers’                      )   Appeal from the
International Union of North America Local 459,                 )   Circuit Court of
Belleville, Illinois; and THE MIDWEST REGION OF THE             )   St. Clair County.
LABORERS’ INTERNATIONAL UNION OF NORTH                          )
AMERICA, Great Plains District, Southern & Central              )
District, and Southwest Illinois District,                      )
                                                                )
       Plaintiffs-Appellees,                                    )
                                                                )
v.                                                              )   No. 15-MR-414
                                                                )
HUGO CHAVIANO, in His Official Capacity as                      )
Director, and THE ILLINOIS DEPARTMENT OF                        )
LABOR,                                                          )
                                                                )
       Defendants-Appellants                                    )
                                                                )
(Associated General Contractors of Illinois; The                )
Underground Contractors Association of Illinois;                )
American Council of Engineering Companies of                    )
Illinois; Illinois Society of Professional Engineers;           )
Southern Illinois Builders Association; Illinois                )
Professional Land Surveyors Association; Illinois               )
Road & Transportation Builders Association;                     )
Diamond Construction Company; United Contractors                )
Midwest, Inc.; Advanced Asphalt Company; E.T.                   )
Simonds; Tarlton Corporation; ARC Design Resources,             )
Inc.; Shive-Hattery, Inc.; PI Surveying Group, P.C.;            )
Robinson Engineering, Ltd.; Prairie Engineers of Illinois,      )
P.C.; Hermann & Associates, L.L.C.; Klinger &                   )
Associates, P.C.; McDonough-Whitlow, P.C.;                      )
Andrews Engineering, Inc.; Tyson Engineering, Inc.;             )
Bowman, Barrett & Associates, Inc.; Maurer-Stutz,               )
Inc.; Oates Associates, Inc.; Crawford, Murphy &                )
Tilly, Inc.; Ament, Inc.; Alfred Benesch & Company;             )
Chastain & Associates, L.L.C.; Clark Dietz, Inc.;               )
Coombe-Bloxdorf, P.C.; Farnsworth Group, Inc.;                  )
Kaskaskia Engineering Group, L.L.C.; SCI Engineering,           )
Inc.; Woolpert, Inc.; Hartke Engineering and Surveying,         )       Honorable
Inc.; and Poepping, Stone, Bach & Associates, Inc.,             )       Robert P. LeChien,
Putative Intervenors-Appellants).                               )       Judge, presiding.


Rule 23 Order Filed:          December 20, 2018
Motion to Publish Granted:    January 18, 2019
Opinion Filed:                January 18, 2019
______________________________________________________________________________

Justices:            Honorable James R. Moore, J.

                  Honorable David K. Overstreet, P.J., and
                  Honorable Thomas M. Welch, J.,
                  Concur
______________________________________________________________________________

Attorneys            Andrew J. Martone, Matthew B. Robinson, Hesse Martone, P.C.,
for                  13354 Manchester Rd., Suite 100, St. Louis, MO 63131
Appellants
                  Attorney General of Illinois—Civil Division, Laura M. Wunder,
                  Assistant Attorney General, 100 West Randolph Street, 12th Floor,
                  Chicago, IL 60601 (attorneys for Hugo Chaviano)
______________________________________________________________________________

Attorneys            Patrick R. Foley, Foley & Kelly, LLC, 107 West Main Street, Suite 4,
for                  Belleville, IL 62220; Ellen J. Schanzle-Haskins, 1 North Old State
Appellees            Capitol Plaza, Suite 525, Springfield, IL 62701-1375

                  Edward M. Hogan, Nicholas M. Hudalla, Hogan Marren Babbo &

                  Rose, Ltd., 321 North Clark Street, Suite 1301, Chicago, IL 60654-5202

                  (attorneys for Martin Flanagan) (Amicus Curiae)

______________________________________________________________________________
