McKinley Foundation at the University of Illinois v. Illinois Department of Labor

• Court: Appellate Court of Illinois
• Decided: September 10, 2010
• Docket: 4-09-0512 Rel
• Status: Published

Opinion

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.

- 2 - 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

- 3 - 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

- 4 - 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

- 5 - 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

- 6 - [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.

- 7 - "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

- 8 - 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

- 9 - 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

- 10 - 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

- 11 - 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

- 12 - 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

- 13 - 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

- 14 - 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.

- 15 - "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

"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

- 16 - 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

- 17 - 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

- 18 - 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

- 19 - 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

- 20 - 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

- 21 - 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.

- 22 - 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.

- 23 - 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,

- 24 - "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

- 25 - 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.

- 26 - 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.

- 27 - 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.

- 28 -