text:
    SPARKS AND WIEWEL CONSTRUCTION COMPANY et al., Plaintiffs-Appellees, v. GWEN MARTIN, as Director of the Department of Labor, Defendant-Appellant (Dale Conaway, Indiv., Defendant).
    Fourth District
    Nos. 4 — 92—0235, 4 — 92—0236 cons.
    Argued May 19, 1993.
    Opinion filed September 9, 1993.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Thomas R. Dodegge, Deputy Attorney General (argued), of Chicago, of counsel), for appellant.

      Stanley E. Niew (argued), of Niew & Associates, P.C., of Hinsdale, and Almon A. Hanson, Jr., of Brown, Hay & Stephens, of Springfield, for appellees.
    Michael O’Hara, of Cavanagh & O’Hara, of Springfield, for amicus curiae Operating Engineers’ Local No. 965.
    Michael W. Duffe, of Katten, Muchin & Zavis, of Chicago, for amicus curiae Associated General Contractors of Illinois.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiffs brought this action in the circuit court of Sangamon County seeking declaratory and injunctive relief against the Director of the Department of Labor (Department) with respect to the Department’s interpretation and enforcement of the Prevailing Wage Act (Wage Act) (Ill. Rev. Stat. 1991, ch. 48, par. 39s — 1 et seq.), i.e., its determination certain employees of Richard Reichert, d/b/a R.W. Reichert Trucking (Reichert), were entitled to prevailing wages under the Wage Act. Both plaintiffs and defendant filed motions for summary judgment. The trial court granted plaintiffs’ motion, finding they were exempt from the provisions of the Wage Act and the Department’s interpretation to the contrary constituted improper rule-making. Plaintiffs then filed for attorney fees under section 14.1(b) of the Administrative Procedure Act (Procedure Act) (Ill. Rev. Stat. 1991, ch. 127, par. 1014.1(b)), which the court granted. Defendant appeals, arguing the trial court erred in (1) granting plaintiffs’ motion for summary judgment, and (2) finding the Department engaged in improper rulemaking and awarding attorney fees. We affirm in part and reverse in part.

I. Background

The facts of the case are not in dispute. The Department of Transportation (DOT) awarded Sparks & Wiewel Construction Company (Sparks), a general contractor engaged in the construction of public works, a contract for the construction of a portion of Route 408 near Quincy, Illinois (the project). The construction work consisted of building an interchange and miles of four-lane highway. As part of the project, Sparks contracted with Adams Stone and Material, Inc. (Adams), which operates a rock quarry, to supply dirt and stone to the project. Adams, in turn, entered into an oral agreement with Reichert to transport the quarried material to the project.

Reichert employed truck drivers to haul the dirt and rock from the quarry to the project, using trucks owned by him. The truck drivers would drive the trucks to the quarry, where employees of Adams would load the trucks with dirt and rock. The drivers would then drive to the project, approximately six to eight miles away. Once at the project, a “spotter,” an employee of Sparks, would direct the driver where to dump the load. Generally, they unloaded the trucks on the project itself in the location where the access and exit ramps were being built. After the trucks were unloaded, Sparks had a bulldozer spread the dirt where it had been unloaded to make the access and exit ramps a certain grade and compaction. It was estimated the bulldozer would spread the dirt anywhere between 15 seconds and 15 minutes after the material was unloaded or as soon as the truck got out of the way. The bulldozer usually was 30 to 40 feet behind the truck while it was dumping. After dumping their loads, the truck drivers would return to the quarry and repeat the process. It took approximately 35 to 40 minutes to complete the process and empty the truck. The drivers were paid $5.50 a load for hauling dirt and a percentage of the volume of material delivered for hauling rock.

Materials were transported to the construction site by means of two different types of trucks, a “belly” dump truck and a straight dump truck with a “pup.” A “belly” dump truck has a 25-ton capacity and has gates on the bottom of the truck, which when opened release the material. The truck must continually move to unload, otherwise the material builds up underneath the truck. As it moves, the back axle and tires of the truck pass over the pile of material already released. By using this type of truck, a pile four to eight feet wide, 30 to 40 feet long and two to three feet high results.

A straight dump truck with a “pup” also has a 25-ton capacity but must remain stationary to unload. The pup, which is a trailer pulled behind the dump truck, is unloaded first. It is then “jackknife[d]” to the side or moved at an angle to the pile to unload the main bed of the truck. By using this type of truck, two piles are created with dimensions four to five feet high, tapered out over an area 10 to 12 feet in diameter.

A. Department Involvement

Based on their activities at the construction site, two of Reichert’s truck drivers, George Adduci and Greg Elledge, filed a complaint with the Department alleging truck drivers employed by Reichert were not being paid prevailing wages in accordance with the Wage Act. The Department thereafter commenced an administrative investigation into the activities of Reichert on the project. As part of the investigation, Dale Conaway, a labor conciliator with the Department, investigated the complaint by visiting the jobsite and observing the unloading of Reichert’s trucks. He observed the truckers haul dirt onto the construction site, where they would unload the dirt in front of a bulldozer which would then spread the dirt for the construction of access ramps. Based on his observations, he concluded the work performed by Reichert’s truck drivers required the payment of prevailing wages because their work was “an integral part of [the] construction [process]” and they were engaged in actual construction work. By “integral part,” he meant “[wjithout placement of the dirt, the work wouldn’t continue; couldn’t continue. Had to be done before the rest of the construction could be done.”

David Hayes, manager of the conciliation mediation division of the Department, also believed the work was covered under the Wage Act because the material unloaded was incorporated into the construction project by virtue of it being utilized where it was unloaded. He explained in his deposition if material was unloaded on a “neutral area” on the site, where it would be “stockpile^],” this activity would not be covered under the Wage Act. He defined “stockpiling” as unloading material away from the actual point of construction, with it later being moved to the actual site of construction by another contractor on the site (whose employees were paid the prevailing wage rate). He knew “stockpiling” was not a covered activity based on an Attorney General (AG) opinion dealing with the transportation of material by suppliers and sellers. (See 1964 Ill. Att’y Gen. Op. 86.) In his opinion, any time a supplier otherwise dropped material onto a construction site, the activity would be covered. He further explained it was the Department’s position Reichert was engaged in construction because he was dumping material directly onto the roadbed and placing materials on the site of the construction.

B. Circuit Court Proceedings

On January 30, 1991, plaintiffs filed a three-count complaint against the Director of the Department and Conaway. The first count of the complaint sought a declaratory judgment holding the Department’s interpretation of “supplier” void, and its action in interpreting the Wage Act in such a manner contrary to the Wage Act and the Procedure Act. They also sought a declaration holding the actions of the Department in issuing oral and informal guidelines concerning the Wage Act and determining Reichert’s employees were entitled to prevailing wages were void as without authority of the Wage Act and such interpretation was issued contrary to the Procedure Act and the Wage Act. Count II sought an injunction against the Department enjoining it from issuing and enforcing an interpretation of the Wage Act requiring suppliers or haulers for suppliers to pay their employees prevailing wages and from issuing and enforcing this rule or interpretation. Count III was directed solely at Conaway and was later voluntarily dismissed.

While Conaway had determined the activities of Reichert's truck drivers were covered under the Wage Act, at the time the suit was filed the Department had not completed an audit of Reichert's records to ascertain compliance with the Wage Act, calculated his liability, commenced any administrative or judicial action, or issued a notice of violation of the Wage Act or a stop-work order. The Department had issued a subpoena, requesting Reichert to provide various documents, including payroll records, with which he partially complied. Because the Department had commenced an investigation regarding his activities on the project, Reichert voluntarily “shut down” on November 13, 1990. At some point after the first of the year, Reichert commenced hauling again.

Both sides thereafter filed cross-motions for summary judgment. In support of plaintiffs’ motion, they filed an affidavit from Richard Klusmeyer, county superintendent of highways of Adams County, Illinois, in which he stated in his 20 years of employment with Adams County, “a trucker such as Reichert [did] not pay prevailing wage to its truck drivers when delivering material for a material supplier such as Adam’s [sic]. To the best of my knowledge this [was] also the practice throughout the [S]tate.”

After a hearing on the motions, the trial court by memorandum opinion found the AG’s interpretation of the Wage Act inconsistent with the statutory language and its interpretation, as well as the Department’s decision, ignored the plain language of the Wage Act and failed to recognize the exception in the statute for sellers or suppliers engaged in transportation. It also found the Department’s interpretation constituted a definition of a supplier which was contrary to law and without authority. It further determined Adams and Reichert were sellers or suppliers transporting materials within the Wage Act’s exemption, and while Reichert’s acts were “admittedly intertwine[d] with the actual construction process,” the exemption in the statute for sellers and suppliers did not limit the acts of those sellers or suppliers as interpreted by the Department or the AG.

On February 14, 1992, the trial court filed its order, granting plaintiffs’ motion for summary judgment. It concluded plaintiffs were either sellers or suppliers under the Wage Act and were thereby exempt from paying prevailing wages at the project. It also maintained the Department’s interpretation, i.e., (1) the delivery of material to a construction site by Reichert was not exempted from the provisions of the Wage Act, and (2) an exemption under the Wage Act existed only as long as there was “stockpiling” at a “neutral site” and no spreading of material, was void and contrary to law. The issuance and enforcement of such an interpretation was found to be unauthorized by statute and to constitute improper legislation or rulemaking. The court further enjoined defendant from enforcing such an interpretation. The AG’s opinion was similarly found to be inconsistent with the statutory language of the Act.

Following the trial court’s ruling, plaintiffs petitioned for attorney fees pursuant to section 14.1(b) of the Procedure Act (Ill. Rev. Stat. 1991, ch. 127, par. 1014.1(b)), alleging the Department failed to follow statutory guidelines in the adoption of a rule and exceeded its statutory authority. On August 4, 1992, the trial court granted the petition for attorney fees, and these appeals followed.

II. Applicability Of The Wage Act To Supplier’s Truck Drivers

We first address whether plaintiffs were exempt from the provisions of the Wage Act.

Summary judgment is properly granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c); see also Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) Because it is a drastic means of disposing of litigation, summary judgment should only be granted “when the right of the moving party is clear and free from doubt.” (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271, 586 N.E.2d 1211, 1215; Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) In evaluating the propriety of the trial court’s entry of summary judgment, the proper standard of review is de novo. See Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209.

The first Prevailing Wage Act was enacted in 1931 (Ill. Rev. Stat. 1931, ch. 48, par. 39a et seq.) and was declared unconstitutional the same year. (See Mayhew v. Nelson (1931), 346 Ill. 381, 178 N.E. 921.) In 1939, a second Prevailing Wage Act was passed (Ill. Rev. Stat. 1939, ch. 48, par. 39n et seq.), and in 1940 it was declared unconstitutional. (Reid v. Smith (1940), 375 Ill. 147, 30 N.E.2d 908.) In 1941, the current Wage Act was enacted and it has withstood constitutional challenges. See Hayen v. County of Ogle (1984), 101 Ill. 2d 413, 463 N.E.2d 124; People ex rel. Bernardi v. Roofing Systems, Inc. (1984), 101 Ill. 2d 424, 463 N.E.2d 123; City of Monmouth v. Lorenz (1963), 30 Ill. 2d 60, 66-67, 195 N.E.2d 661, 664-65 (finding the 1957 and 1961 amendments unconstitutional, but determining this did not render Wage Act unconstitutional in total); Bradley v. Casey (1953), 415 Ill. 576, 585, 114 N.E.2d 681, 685 (upholding constitutionality of Wage Act with the exception of one provision not germane to the issue presented herein); Anderson v. County of Jo Daviess (1980), 81 Ill. App. 3d 354, 401 N.E.2d 265; Gray v. Department of Labor (1988), 176 Ill. App. 3d 285, 531 N.E.2d 32.

The declaration of the policy of the State is set forth in section 1 of the Wage Act, wherein it is declared: “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.” (Ill. Rev. Stat. 1991, ch. 48, par. 39s — 1.) The purpose of the Wage Act is to ensure people working on public works projects receive a decent wage. (Hayen, 101 Ill. 2d at 421, 463 N.E.2d at 128; People ex rel. Bernardi v. Illini Community Hospital (1987), 163 Ill. App. 3d 987, 990, 516 N.E.2d 1320, 1321; see also Monmouth, 30 Ill. 2d at 62, 195 N.E.2d at 662.) This, in turn, secures for the State the advantage of “ ‘having the work performed under conditions which give some assurance that the work will be completed without interruptions or delay by workmen of average skill.’ ” (Bradley, 415 Ill. at 586, 114 N.E.2d at 686, quoting Long Island R.R. Co. v. Department of Labor (1931), 256 N.Y. 498, 513, 177 N.E. 17, 22; see also Hayen, 101 Ill. 2d at 421, 463 N.E.2d at 128.) The Wage Act also serves to protect local workers by removing the incentive to import less expensive labor from areas outside the locality in which the work is being performed. People ex rel. Bernardi v. City of Highland Park (1988), 121 Ill. 2d 1, 10, 520 N.E.2d 316, 320.

A. Statutory Language and Illinois Authority on Point

This appeal focuses on the meaning to be given section 3 of the Wage Act, which specifies those entitled to receive prevailing wages:

“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. Only such laborers, workers and mechanics as are directly employed by contractors or subcontractors in actual construction work on the site of the building or construction job, and laborers, workers and mechanics engaged in the transportation of materials and equipment to or from the site, but not including the transportation by the sellers and suppliers or the manufacture or processing of materials or equipment, in the execution of any contract or contracts for public works with any public body shall be deemed to be employed upon public works.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 48, par. 39s — 3.

On appeal, defendant and her amicus curiae, Operating Engineers Local No. 965, contend the court’s interpretation of the Wage Act erroneously provides a blanket exemption for all acts of sellers and suppliers no matter what the activity. They acknowledge sellers and suppliers engaged in transportation are exempt from the Wage Act, but argue the exemption was not intended to encompass actual construction work on the site. They advocate using a “functional test” to ascertain whether plaintiffs were covered under the Wage Act, i.e., whether their work was functionally related to construction work. If the sellers or suppliers engage in more than mere transportation, they allege their activities would be covered by the Wage Act. Since the truck drivers in the instant case “unloaded their trucks directly onto the portion of the site where the material was to be incorporated into the project, sometimes spreading the dirt,” and bulldozers compacted the dirt behind them, thereby incorporating their load into the project, they maintain plaintiffs did more than merely transport materials and instead were engaged in the construction process so as to fall within the purview of the Wage Act. Defendant acknowledges, however, if the supplier was transporting material to be “stockpile^]” at a “neutral area” on the site, then the supplier would not be covered. Since the trial court acknowledged Reichert’s activities “admittedly intertwine[d] with the actual construction process,” they maintain the truck drivers were entitled to protection under the Wage Act.

Conversely, plaintiffs and amicus curiae (Associated General Contractors of Illinois) argue under the plain meaning of the Wage Act employees of sellers and suppliers involved in transportation of materials are not covered by the Wage Act, and Reichert’s truck drivers did not perform any jobsite work or construction work. They contend any spreading the workers did was incidental to the delivery of the material. Since the truck drivers only delivered materials, under the plain language of the statute, transporters such as Reichert are exempted from the Wage Act.

Our research has not disclosed any case law specifically interpreting section 3 of the Wage Act. In Gray v. Department of Labor (1988), 176 Ill. App. 3d 285, 531 N.E.2d 32, however, the appellate court recognized the Wage Act’s dichotomous treatment of employees of contractors and suppliers. In doing so, the court rejected plaintiff’s argument the Wage Act distinguished between employees who transport material to construction sites based upon who they are employed by in violation of the equal protection clause of the United States Constitution. As authority for this holding the court cited Hayen, wherein the supreme court found the Wage Act bore a rational relationship to a legitimate State interest. In addressing the equal protection argument, the court also noted contractors and suppliers have different employees. Gray, 176 Ill. App. 3d at 290, 531 N.E.2d at 34.

While there is no case law interpreting section 3 of the Wage Act, the AG, in response to questions by the Department of Labor, has addressed the applicability of this section to certain employees engaged in the transportation of material to and from a building or construction site. (1964 Ill. Att’y Gen. Op. 86.) In this opinion, the AG stated section 3 of the Wage Act required employees engaged in actual construction work on the jobsite and employees of contractors or subcontractors engaged in transporting materials to and from the site to receive prevailing wages. By contrast, it stated employees of sellers and suppliers who transport materials to jobsites or employees of sellers or suppliers engaged in the manufacturing or processing of materials to be transported to the jobsite were expressly excluded from the coverage of the Wage Act. (1964 Ill. Att’y Gen. Op. at 87.) The opinion also analyzed the application of the Wage Act to the following situations:

“ ‘1. A supplier of materials transports with his own equipment materials to a job site [sic] where he dumps and stockpiles them [not covered].
2. A supplier of materials transports with his own equipment materials to a job site [sic] where he enters onto the job site [sic] and spreads the materials as a part of the construction job [covered],
3. A supplier of materials hires an outside trucking firm to transport materials to a job site [sic] where they may be either, a) stockpiled [not covered], or b) spread as a part of the construction [covered].
4. A purchaser of materials transports the materials from the production site to the construction site [covered].
5. A purchaser of materials transports materials to the job site [sic] and spreads the materials [covered].
6. A purchaser, transporter, or seller of materials subcontracts the hauling of materials to a job site [sic] where they are either, a) stockpiled [not covered], or b) spread into the construction [covered].’ ” (1964 Ill. Att’y Gen. Op. at 87.)

With regard to these specific instances, the AG found:

“[(Questions 2, 3[(b)], 5 and 6 involve the spreading of the transported material at the job site [sic] by workmen engaged in the transportation of such material. Whenever this occurs on any public construction work, it would clearly seem to be the performance of a part of such construction and employees so engaged in spreading the material would come within the statutory definition of laborers, workmen and mechanics deemed to be employed on public works. Such employees, therefore, should be paid the prevailing rate of wages.
Questions 1, 3[(a)] and 6, on the other hand, involve the transportation of materials to the job site [sic] where it is only stockpiled as contrasted with spreading the material at the job site [sic]. In such circumstances where there is only stockpiling of the material by the employees engaged in transportation, said employees are not covered by the Prevailing Wage Act.
Question 4 poses the problem of the purchaser of materials transporting the materials from the production site to the construction site. A purchaser must necessarily be either a contractor, subcontractor, or the public body performing the construction work. In this situation the laborers, workmen or mechanics of such a purchaser transporting materials to the job site [sic] would come within the operation of the [Wage] Act and should be paid the prevailing rate of wages, regardless of whether stockpiling or spreading the material by the employees might be involved.
In specific answer to your questions, therefore, it is my opinion that the Prevailing Wage Law does not apply to the factual situation stated in question No. 1. Nor does it cover situations in 3[(a)] and 6 where there is only stockpiling of material at the job site [sic]. The Prevailing Wage Law, however, does cover and apply to the alternative situations in questions 2, 3[(b)], 5 and 6 where there is spreading of the material as part of the construction on the job site [sic].” 1964 Ill. Att’y Gen. Op. at 88.

Conaway relied on the AG’s opinion in determining Reichert’s truck drivers were to be paid prevailing wages. Similarly, defendant cites the opinion as authority for reversing the trial court’s determination. The trial court, however, found the AG’s interpretation inconsistent with the statutory language and contrary to law. It concluded the opinion ignored the plain language of the statute which clearly exempts the transportation by sellers or suppliers from its application. Since Adams and Reichert were sellers or suppliers, they were exempt from the Wage Act for any acts of transportation, and the trial court asserted the AG’s opinion and the Department’s interpretation in no way recognized this exemption.

Although not binding on this court, a well-reasoned opinion of the AG is persuasive authority (Guse v. Board of Trustees of the Public Schools Teachers’ Pension & Retirement Fund (1990), 203 Ill. App. 3d 111, 118, 560 N.E.2d 1048, 1051) and entitled to considerable weight in resolving a question of first impression in this State regarding the construction of an Illinois statute. (City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 130-31, 384 N.E.2d 310, 316; Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 317, 527 N.E.2d 1264, 1271.) AG opinions, however, do not have the force and effect of law. Kendzior v. Kusper (1983), 118 Ill. App. 3d 83, 86, 454 N.E.2d 1070, 1073.

We agree the AG’s opinion is inconsistent with the statutory language of section 3 of the Wage Act. Under the plain language of the statute, only those employed by contractors or subcontractors in construction work and transportation of materials to or from the project site must be paid prevailing wages. Those engaged in transportation by sellers and suppliers of materials are expressly excluded from the coverage of the Wage Act. Clearly the truck drivers in the present case engaged in transportation for Adams and Reichert, who were sellers or suppliers, not contractors or subcontractors. Neither is there any question on the location where Reichert’s truck drivers dumped the rock and dirt. Reichert’s trucks were driven onto the construction site and unloaded at the exact location where the material would be used. It is undisputed Reichert’s truck drivers did not “stockpile” the material. The question then is whether, by virtue of dumping material onto the roadbed and “spreading” it while unloading, the truckers were engaged in construction work so as to fall within the purview of the Wage Act.

The statute is unambiguous and clear in answering this question. Those employed by sellers or suppliers engaged in the transportation of materials are excluded from coverage. The truck drivers fell specifically within the exemption. The fact they dumped the material where it would be used is not dispositive. They did not perform actual construction work on the site of the construction project. Rather, any “spreading” done by them was a result of the unloading process and was the final act of unloading; they did not get out of their trucks and spread the material; all handling of the material was done by other workers on the project. The statutory language is clear and will be given effect. (People v. Robinson (1982), 89 Ill. 2d 469, 475-76, 433 N.E.2d 674, 677; People v. Goins (1988), 119 Ill. 2d 259, 265, 518 N.E.2d 1014, 1016.) The trial court correctly found plaintiffs were excluded from the coverage of the Wage Act.

B. Authority from Other Jurisdictions

Further, we find the foreign case law and Federal and State statutes cited by the parties unpersuasive. In support of her argument, defendant cites three cases from other States, each interpreting that State’s prevailing wage statute. (See Green v. Jones (1964), 23 Wis. 2d 551, 128 N.W.2d 1; Construction Industries v. Commissioner of Labor & Industries (1989), 406 Mass. 162, 546 N.E.2d 367; O.G. Sansone Co. v. Department of Transportation (1976), 55 Cal. App. 3d 434, 127 Cal. Rptr. 799.) Plaintiffs distinguish these cases but contend case law construing the Davis-Bacon Act, the Federal prevailing wage law (40 U.S.C. §276a et seq. (1988)), should be considered as instructional. They further cite case law defining jobsite work under the National Labor Relations Act (NLRA) (29 U.S.C. §151 et seq. (1988)) (see H.B. Zachry Co. v. United States (Ct. Cl. 1965), 344 F.2d 352; Building & Construction Trades Department v. United States Department of Labor Wage Appeals Board (D.C. Cir. 1991), 932 F.2d 985), and construing the phrase “at the site of the construction” in the context of determining whether certain restrictive subcontracting provisions of union contracts (“hot cargo” clauses) were valid under section 158(e) of the NLRA (29 U.S.C. § 158(e) (1988)). As the parties point out, the language of the various Federal and State statutes is strikingly different from and broader than that of the Illinois wage law, and case law interpreting these statutes is therefore of little value in interpreting the coverage of the Illinois wage law. Illinois wage law is specific, only employees of contractors or subcontractors are covered by the Wage Act. Suppliers or sellers engaged in the transportation of materials are excluded.

III. Whether The Department Engaged In Improper Rulemaking To Justify Attorney Fee Award

The Department next argues the trial court erred in determining its interpretation of the Wage Act was contrary to law and constituted improper legislation or rulemaking and in granting attorney fees. Section 14.1(b) of the Procedure Act authorizes the award of attorney fees in any case in which a party has an administrative rule invalidated by a court for any reason, including when an agency exceeds its statutory authority or fails to follow the statutory procedures in the adoption of a rule. (Ill. Rev. Stat. 1991, ch. 127, par. 1014.1(b).) Ostensibly, the trial court reasoned the Department engaged in rulemaking because it had incorrectly interpreted the Wage Act’s coverage to include material deliverymen.

To support her challenge to the trial court’s ruling, defendant argues the Department did not engage in rulemaking, but made case-by-case determinations based on application and inteipretation of the Wage Act to the particular set of facts. As to the award of attorney fees, defendant contends the order must be reversed as premised upon the erroneous finding the Department engaged in rulemaking. Defendant further argues the case against Reichert was still in the investigatory stage when the complaint was filed and had not reached an adjudicatory stage.

Conversely, plaintiffs alleged the Department developed internal rules to determine when a person violated the wage law. These unwritten interpretations were not adopted in accordance with the Procedure Act and were therefore improper.

Section 3.09 of the Procedure Act defines “rule” as:

“[E]ach agency statement of general applicability that implements, applies, interprets, or prescribes law or policy, but does not include (a) statements concerning only the internal management of an agency and not affecting private rights or procedures available to persons or entities outside the agency, (b) informal advisory rulings issued pursuant to Section 9, (c) intra-agency memoranda or (d) the prescription of standardized forms.” (Ill. Rev. Stat. 1991, ch. 127, par. 1003.09.)

In adopting rules, administrative agencies must comply with the public notice and comment requirements set out in section 5.01 of the Procedure Act (Ill. Rev. Stat. 1991, ch. 127, par. 1005.01). Unless a rule is promulgated in conformity with these requirements and is filed with the Secretary of State, it is not valid or effective against any person or party and may not be invoked by an administrative agency for any purpose. (Ill. Rev. Stat. 1991, ch. 127, pars. 1004(c), 1005.01.) It is undisputed the Department did not comply with any of these procedures in determining a supplier’s truck drivers who unload material on a construction site are covered under the Wage Act. However, not all statements of agency policy must be announced by means of published rules. When an administrative agency interprets statutory language as it applies to a particular set of facts, adjudicated cases are a proper alternative method of announcing agency policies. N L R B v. Wyman-Gordon Co. (1969), 394 U.S. 759, 22 L. Ed. 2d 709, 89 S. Ct. 1426; Board of Trustees, Prairie State College v. Illinois Educational Labor Relations Board (1988), 173 Ill. App. 3d 395, 412, 527 N.E.2d 538, 549; Kaufman Grain Co. v. Director of the Department of Agriculture (1988), 179 Ill. App. 3d 1040, 1047, 534 N.E.2d 1259, 1264.

Based on the facts of this case, we find the Department did not engage in rulemaking but merely interpreted the statutory language of the Wage Act and applied it to a particular set of facts. In interpreting the statute, it looked to the AG’s opinion as authoritative precedent. Both Conaway and Hayes stated in their depositions the Department had not adopted a policy regarding including material deliverymen in the coverage of the Wage Act, but merely applied the Wage Act to the facts. Section 6 of the Wage Act mandates the Department to “inquire diligently as to any violation of this Act, *** institute actions for penalties ***, and *** enforce generally the provisions of this Act.” (Ill. Rev. Stat. 1991, ch. 48, par. 39s — 6.) A legislative grant of power to an administrative agency includes the power to do all that is reasonably necessary to exercise the power granted. (Prairie State, 173 Ill. App. 3d at 411, 527 N.E.2d at 549.) This legislative grant of power would necessarily confer on the Department the power to interpret the Wage Act to determine who is covered. The fact it construed the statute more broadly than the language allows does not indicate it engaged in rulemaking or exceeded its statutory grant of power. Were we to adopt defendant’s argument, the Department would be required to go through the procedures for adopting rules each time it resolved a case of first impression.

IV. Conclusion

For the above reasons, the trial court’s order finding plaintiffs exempt from the provisions of the Wage Act is affirmed, and its order determining the Department engaged in improper rulemaking is reversed, as is the award of attorney fees.

Affirmed in part; reversed in part.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    RONALD P. LARKIN, Indiv. and as Class Representative on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. NEIL F. HARTIGAN, as Attorney General, et al., Defendants-Appellees.
    Fourth District
    No. 4 — 93—0052
    Argued August 18, 1993.
    Opinion filed September 16, 1993.
    Mary Lee Leahy (argued) and Cheryl Redfield Jansen, both of Leahy Law Offices, of Springfield, and John Gwinn, of Tepper & Gwinn, P.C., of Urbana, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John P. Schmidt, Assistant Attorney General (argued), of Chicago, of counsel), for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Ronald Larkin appeals from the dismissal (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615) of his declaratory judgment action by a Champaign County circuit court judge. Plaintiff sought injunctive relief against defendants, then Attorney General of the State of Illinois, Neil F. Hartigan, and James Edgar in his official capacity as Secretary of State (Secretary). He argues sections 7 — 604 through 7 — 606 of the Illinois Vehicle Code (Code) are unconstitutional because these provisions violate his right, and the right of others similarly situated, to avoid compulsory self-incrimination, and because the provisions deny adequate due process protections. (Ill. Rev. Stat. 1991, ch. 95½, pars. 7 — 604 through 7 — 606.) We disagree and affirm.

I. Facts

Plaintiff received a letter from the Secretary dated January 12, 1990. The letter was in reference to verification of whether plaintiff’s 1990 Honda motor vehicle was insured. It stated plaintiff’s vehicle had been selected for participation in a random sampling program to determine if the selected registered motorists had liability insurance for their vehicles.

The letter informed plaintiff he had to respond to the questions on the attached postcard and return the card to the Secretary’s office within 30 days. The attached postcard inquired whether plaintiff’s vehicle was covered by liability insurance on the verification date of January 12, 1990. It also asked the name of plaintiff’s insurance company, his policy number, and the effective and expiration dates of his policy. The information was to be provided as it appeared on plaintiff’s insurance card.

The letter also informed plaintiff the mandatory insurance division of the Secretary’s office would suspend his license plates if he failed to return the form within 30 days, returned the form with incomplete or erroneous information, or indicated on the form that he had no insurance coverage.

Plaintiff had the required liability insurance for his vehicle as of January 1990 as evidenced by his insurance card, a copy of which was attached to his complaint. However, he did not return the required information to the Secretary’s office. Instead he sent a letter to the mandatory insurance division of that office on January 13, 1990. The letter indicated plaintiff had contradictory evidence about whether he was insured at the relevant time because his insurance agent had lost a computer transmission. The letter also stated the United States Constitution protected him from being forced to incriminate himself by responding to the verification form.

Plaintiff’s complaint also alleged the Secretary’s office sent him a notice of license plate suspension which stated his vehicle registration would be suspended effective June 5, 1990, because he failed to return the requested verification form. The letter also indicated if plaintiff had the proper insurance on January 12 he could have his record corrected by submitting proof of this insurance. The proof could be plaintiff’s insurance card, a certificate of insurance, a policy declarations page, an insurance binder, or written proof from an insurance representative. If plaintiff was not insured on January 12 he could not have his suspension lifted until August 5, 1990, after he paid a $50 fee and submitted proof he had obtained insurance as of the reinstatement date. In February 1990, plaintiff was notified by the Secretary that his vehicle registration was suspended from June 5 to August 5, 1990, for failure to return the verification form. Plaintiff did not seek administrative review of this suspension. See Ill. Rev. Stat. 1991, ch. 95½, par. 2 — 118(e).

On approximately August 6 plaintiff sent the Secretary a check for $50. His license plate suspension was lifted and his check was returned to him.

On January 7, 1991, months after the reinstatement of his vehicle registration, plaintiff filed a lawsuit. In his complaint, plaintiff contended the Illinois Code provision authorizing the Secretary to randomly ask registered motorists about liability insurance violated the recipients’ right against self-incrimination. He also contended the absence of a provision providing motorists a hearing before or after their license plate was suspended violated their right to due process. Plaintiff sought certification as a class, with the class consisting of all individuals who had vehicle liability insurance in compliance with the Act but whose license plates were suspended for failure to submit proof of their coverage to the Secretary’s office.

Plaintiff sought a declaratory judgment that sections 7 — 604 through 7 — 606 of the Code violated the fifth and fourteenth amendments to the United States Constitution (U.S. Const., amends. V, XIV). He sought an injunction forbidding defendants from enforcing those provisions of the Code, damages, and attorney fees. Defendants filed a motion to dismiss the complaint.

In October 1992 the trial judge dismissed the complaint. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615.) The judge concluded the Secretary did not request information on the verification form which would tend to incriminate a motorist. He also concluded plaintiff was not within the class of persons alleged to have a constitutional claim. Plaintiff had failed to allege sufficient facts to state a claim that his right to avoid compulsory self-incrimination had been violated.

The judge also concluded plaintiff did not state a claim he was deprived of properly without due process of law because the existing procedures allowed individuals to submit documentary proof either before or after a license plate suspension was effective and thereby avoid suspension or have it rescinded. These procedures were sufficient to ensure due process requirements. This appeal followed.

II. Relevant Statutory Provisions

Section 7 — 604 of the Code authorizes the Secretary to select random samples of motor vehicle registrations to determine whether the vehicles are insured. Under subsection (c), the Secretary may send to owners of randomly selected motor vehicles requests for information about the vehicles and their liability insurance coverage. (Ill. Rev. Stat. 1991, ch. 95½, par. 7 — 604(c).) The information sought from the owners includes whether the vehicle was insured on the verification date indicated by the form. The Secretary may also require the owners to provide the name and address of their insurers, their insurance policy numbers, and the expiration dates of the policies.

Pursuant to section 7 — 604(d), within 30 days after the Secretary mails the verification request, the vehicle owner “shall furnish the requested information to the Secretary above the owner’s signed affirmation that such information is true and correct.” (Ill. Rev. Stat. 1991, ch. 95½, par. 7 — 604(d).) If the owner fails to respond to the request, or if the response indicates the vehicle was not covered by liability insurance on the verification date, he or she shall be deemed to have maintained registration of his or her motor vehicle in violation of section 7 — 601 of the Code. Ill. Rev. Stat. 1991, ch. 95½, par. 7 — 601.

Section 7 — 601(a) of the Code provides that from January 1, 1990, until December 31, 1993, no one shall operate, register, or maintain the registration of a motor vehicle designed for use on a public highway unless the vehicle is covered by liability insurance. Ill. Rev. Stat. 1991, ch. 95½, par. 7-601(a).

Under section 7 — 605 of the Code, when the Secretary concludes a vehicle owner has violated section 7 — 601 by registering or maintaining registration of a vehicle but not carrying liability insurance on the vehicle, the Secretary must notify the owner the vehicle registration will be suspended effective 45 days from the date of the section 7— 605 notice unless the owner produces satisfactory proof of insurance on the verification.

The Secretary must suspend the registration of any vehicle which is determined to be in violation of section 7 — 601. If the violation is the vehicle owner’s initial violation, the suspension may be lifted after two months upon payment of a $50 fee and proof of insurance. If the violation is a second or subsequent violation, the suspension may be lifted after four months if the above conditions are met.

The niinois Administrative Code provides a vehicle registration suspension will be cancelled or rescinded if the vehicle owner presents evidence of insurance in effect on the verification date. 50 Ill. Adm. Code §8010.40(f)(4) (1992).

III. Analysis

Initially, we note the defendants against whom plaintiff filed this litigation no longer serve in the official capacities in which they served when he initiated this action. Therefore, the current Attorney General, Roland W. Burris, and the current Secretary, George Ryan, should have been substituted as defendants pursuant to section 2— 1008(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1008(a)).

A. Standing to Challenge Statutory Scheme on Self-Incrimination Grounds

Defendants contend the trial judge correctly concluded plaintiff lacked standing to assert a claim that being compelled to admit he had no vehicle liability insurance would violate his fifth amendment right against self-incrimination and the right of those similarly situated whom he sought to represent.

Plaintiff alleged he had the required insurance on the verification date; however, when he received the verification form he did not know whether he carried the requisite liability insurance. The proposed class of individuals plaintiff sought to represent were those who had their vehicle registration suspended although they had the requisite insurance on the verification date.

A court inquires into the constitutionality of a statute only to the extent necessary to the particular case before it. (People v. Rogers (1989), 133 Ill. 2d 1, 8, 549 N.E.2d 226, 229.) Where no facts demonstrate an unconstitutional application of a statute in the case which the court is reviewing, the statute cannot be challenged based on a hypothetical scenario. People v. Wisslead (1985), 108 Ill. 2d 389, 397, 484 N.E.2d 1081, 1084.

Moreover, a court will not consider objections to an allegedly unconstitutional feature if the complaining party is not in any way aggrieved by the complained-of feature of the statute. (City of Chicago v. Lawrence (1969), 42 Ill. 2d 461, 464, 248 N.E.2d 71, 73-74.) This principle applies where a party seeks declaratory relief (Kluk v. Lang (1988), 125 Ill. 2d 306, 314-15, 531 N.E.2d 790, 793), which can only be granted “in cases of actual controversy” (Ill. Rev. Stat. 1991, ch. 110, par. 2-701).

The statutory provisions at issue could not have placed plaintiff or any members of the proposed class in jeopardy of self-incrimination because they had the liability insurance coverage required by the Code. Plaintiff alleged in his complaint that at all times relevant to this action he had the requisite insurance for his vehicle. Plaintiff failed to notify proper authorities about this fact before his license registration was suspended. As will be discussed in more detail, plaintiff was provided an additional 45 days from the time he received the section 7 — 605 notification his vehicle registration would be suspended and the date the suspension became effective. His claim that when he received the verification form he could not determine whether his vehicle was properly insured does not bolster his standing claim. Plaintiff owned the vehicle. There is nothing unconstitutional about requiring a vehicle owner to verify his insurance sufficiently meets all legal requirements. The alleged injury which he sustained, suspension of his vehicle registration for two months, was not caused by a constitutional deficiency in the complained-of provisions. It was instead plaintiff’s failure to cooperate with and follow instructions of the Secretary and constitutional officer (Ill. Const. 1970, art. V, §16) in the exercise of his legislatively prescribed duties, which led to suspension of plaintiff’s license plates.

The trial judge correctly ruled plaintiff, as an individual and as representative for the class he sought to represent, failed to allege facts which supported a violation of his right not to incriminate himself.

B. No Fifth Amendment Violation

Even if plaintiff had properly established standing, he could not rely on his fifth amendment privilege against compulsory self-incrimination. This protection is implicated only when the government seeks to compel testimony which would subject the individual to criminal liability. An individual can be compelled to provide testimony against himself in a noncriminal investigation. Garner v. United States (1976), 424 U.S. 648, 655, 47 L. Ed. 2d 370, 378, 96 S. Ct. 1178, 1183 (information revealed in preparation and filing of an income tax return); People v. Lucas (1968), 41 Ill. 2d 370, 374, 243 N.E.2d 228, 231 (statute requiring driver involved in vehicular accident resulting in death or injuries to provide name, address, and vehicle registration to persons in other vehicle not violative of fifth amendment because possibility of self-incrimination is remote).

Moreover, the privilege against compulsory self-incrimination does not apply unless the complainant faces a real and substantial risk of incrimination rather than a remote risk. California v. Byers (1971), 402 U.S. 424, 428, 29 L. Ed. 2d 9,17, 91 S. Ct. 1535, 1538.

Sections 7 — 604 through 7 — 606 of the Code do not violate the fifth amendment rights of those individuals who receive a vehicle insurance verification form and who do not have the required coverage. An admission on the form that the vehicle owner does not have liability insurance does not subject the owner to criminal penalties. The registration suspension which results under section 7 — 606 of the Code is not a criminal sanction. Rather, it is an administrative regulation designed to protect Illinois motorists and pedestrians by assuring there is a private source of funds to pay for deaths, injuries, or property damage resulting from vehicular accidents.

Plaintiff directs us to the recent ruling in Austin v. United States (1993), 509 U.S__, 125 L. Ed. 2d 488, 113 S. Ct. 2801, in which the Supreme Court concluded whether proceedings are civil or criminal in nature is not determinative of whether the eighth amendment right against excessive punishment (U.S. Const., amend. VIII) should apply to a particular case. The essential consideration is whether the action constituted punishment. In Austin, the Court concluded seizure of defendant’s mobile home and store after defendant was found guilty of possession of cocaine in State court was subject to the limitations of the eighth amendment’s excessive fines clause. Austin, 509 U.S. at_, 125 L. Ed. 2d at 494-96,113 S. Ct. at 2803-04.

Similarly, plaintiff contends we should conclude the fifth amendment protections against compulsory self-incrimination should apply in this case because the loss of the use of his vehicle constitutes punishment.

The Austin Court noted although the fifth amendment privilege against self-incrimination is textually limited to criminal cases, it may also apply in forfeiture proceedings, but only when the owner’s culpability was relevant under the particular forfeiture statute or when the owner faced the possibility of subsequent criminal proceedings. Austin, 509 U.S. at_n.4, 125 L. Ed. 2d at 496 n.4, 113 S. Ct. at 2804 n.4, citing United States v. United States Coin & Currency (1971), 401 U.S. 715, 721-22, 28 L. Ed. 2d 434, 439, 91 S. Ct. 1041, 1045, Boyd v. United States (1886), 116 U.S. 616, 634, 29 L. Ed. 746, 752, 6 S. Ct. 524, 534, United States v. Ward (1980), 448 U.S. 242, 253-54, 65 L. Ed. 2d 742, 752-53, 100 S. Ct. 2636, 2644.

Plaintiff did not forfeit ownership of his vehicle. Although he could not lawfully drive the vehicle while the registration was suspended, this governmental action is not as severe as forfeiture of a party’s property. The facts of this case do not justify an expansion of the circumstances under which the fifth amendment privilege against self-incrimination should apply in a noncriminal proceeding.

Regulatory agencies may impose remedial civil sanctions when a statute delegates such authority. (Helvering v. Mitchell (1938), 303 U.S. 391, 399, 406, 82 L. Ed. 917, 921-22, 926, 58 S. Ct. 630, 633, 636; Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 288, 430 N.E.2d 1012, 1017.) One form of civil sanction which is not considered a criminal penalty is the revocation of a privilege which was voluntarily granted. Helvering, 303 U.S. at 399, 82 L. Ed. at 922, 58 S. Ct. at 633.

In Illinois, the statutory suspension of driver's licenses of individuals arrested for driving under the influence of alcohol is considered an administrative function of the Secretary of State. This action is designed to protect Illinois motorists and pedestrians and is not viewed as punishment. Koss v. Slater (1987), 116 Ill. 2d 389, 395, 507 N.E.2d 826, 829.

Similarly, suspending a vehicle owner’s registration when the owner does not carry liability insurance for his vehicle is an administrative penalty designed to protect travelers on Illinois highways from the prospect of being involved in an accident with an uninsured motorist which would diminish the prospects of the injured receiving compensation for injuries incurred.

Additional evidence the complained-of provisions impose civil and not criminal sanctions is that suspension is automatic pursuant to section 7 — 606, unlike criminal proceedings in which criminal intent is often required. (See Rehg v. Illinois Department of Revenue (1992), 152 Ill. 2d 504, 514-15, 605 N.E.2d 525, 530.) The legislature provided for automatic suspension without procedures which generally accompany criminal proceedings because section 7 — 606 was intended to be a civil and not a criminal sanction.

However, despite the legislative intent, if a sanction is excessive considering its purpose, it will be considered criminal in nature. (Rehg, 152 Ill. 2d at 513, 605 N.E.2d at 530.) An individual who does not have liability insurance on the verification date can have his registration suspended for two (first violation) or four months (second or subsequent violation) before registration will be reinstated upon payment of $50 ($100 for second or subsequent violation) and proof of liability insurance. Ill. Rev. Stat. 1991, ch. 95½, par. 7 — 606.

A two- or four-month suspension of vehicle registration is not such a drastic sanction that it should be viewed as criminal in nature. A person’s driving privileges can be suspended for three months to two years. (Ill. Rev. Stat. 1991, ch. 95½, par. 6 — 208.1(1).) The Illinois Supreme Court has concluded statutory summary suspensions are administrative and not criminal penalties in nature. Koss, 116 Ill. 2d at 395, 507 N.E.2dat829.

The two- or four-month suspension of a vehicle owner’s registration is more lenient than a two-year suspension of an individual’s driver’s license, which penalty has been viewed as civil in nature. The penalty at issue in this case is not criminal in nature or excessive.

Suspending the vehicle registration of a party who does not carry liability insurance is not punishment per se. It is simply a means to protect individuals who incur injuries from a vehicular accident. The trial judge’s dismissal of plaintiff’s self-incrimination claim was proper.

C. Due Process Protections

1. Opportunity to be Heard

Plaintiff initially argues the Code does not provide for adequate due process protections because an individual whose vehicle registration is suspended has no opportunity to be heard before the suspension is effective. The State directs us to section 2 — 118(a) of the Code as support for its claim plaintiff could have sought a presuspension hearing:

“Upon the suspension, revocation or denial of the issuance of a license, permit, registration or certificate of title under this Code of any person the Secretary of State shall immediately notify such person in writing and upon his written request shall, within 20 days after receipt thereof, *** afford him an opportunity for a hearing as early as practical ***.” (Ill. Rev. Stat. 1991, ch. 95½, par. 2 — 118(a).)

Plaintiff contends this provision should be interpreted as providing a hearing only after the revocation is effective. Therefore, he argues, no presuspension hearing is provided.

Subsection (b) of section 2 — 118 supports the conclusion subsection (a) provides for a hearing within 20 days after a party whose registration is suspended receives notification of the upcoming action against him. This provision states:

“At any time after the suspension, revocation or denial of a license, permit, registration or certificate of title of any person as hereinbefore referred to, the Secretary of State, in his discretion and without the necessity of a request by such person, may hold such a hearing, upon not less than 10 days’ notice in writing ***.” Ill. Rev. Stat. 1991, ch. 95½, par. 2 — 118(b).

Plaintiff received notification his vehicle registration was being suspended. The notice stated:

“You are hereby notified that the vehicle registration identified above is suspended for failure to comply with mandatory vehicle liability insurance laws *** beginning 12:01 a.m. on the effective date printed below.
Effective date of registration suspension — June 05, 1990.”

Due process requires an individual threatened with deprivation of a protected liberty or property interest receive notice of the impending action and an opportunity to be heard. (Campbell v. Cook County Sheriff's Merit Board (1991), 215 Ill. App. 3d 868, 870, 576 N.E.2d 90, 92.) The Code provided these protections to plaintiff.

Section 7 — 605 of the Code provides the Secretary must send suspension notices 45 days before the date upon which the suspension is to become effective. (Ill. Rev. Stat. 1991, ch. 95½, par. 7 — 605.) The February 1990 notice informing plaintiff the suspension would be effective June 5 was received 45 days before the June 5 suspension date. Plaintiff was provided an additional 45 days to be heard on his view of why his vehicular registration should not be suspended based on his failure to document he carried liability insurance at the relevant time. We note section 2 — 118(e) of the Code provides for administrative review of suspension actions by the Secretary and plaintiff did not see fit to timely avail himself of this protection either.

His argument the Code denies due process protections by failing to provide a presuspension hearing fails. Plaintiff did not avail himself of the procedures outlined in the Code and those stated in the correspondence mailed to him by the Secretary. Moreover, additional procedures within the Code adequately ensure plaintiff due process protection.

2. Adequate Procedural Protections

A trial judge should grant a motion to dismiss where the pleadings indicate no facts can be proved which would entitle plaintiff to recover. (Stutz v. Kamm (1990), 204 Ill. App. 3d 898, 903, 562 N.E.2d 399, 402.) A strong presumption exists that a statute is constitutional. (People v. Blackorby (1992), 146 Ill. 2d 307, 318, 586 N.E.2d 1231, 1237.) Plaintiff’s pleadings did not establish a violation of his constitutional rights. His complaint was properly dismissed.

Plaintiff had ample opportunity to avoid a vehicle registration suspension or have it rescinded by simply presenting proof of insurance to the Secretary. His procedural due process rights were adequately protected by provisions allowing him to submit documentary evidence to determine whether he had liability insurance for his vehicle.

The extent of procedural protections is evaluated based on the standard outlined in Mathews v. Eldridge (1976), 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893. The following factors are relevant when considering whether administrative procedures governing a potential properly deprivation provide adequate procedural safeguards: (1) the private interest affected by the government action; (2) the risk someone could be erroneously deprived of his or her interest because of the procedures employed; (3) the likely value of additional or different safeguards; and (4) the government’s interest, including fiscal and administrative concerns which would be brought about by additional or different safeguards. Mathews, 424 U.S. at 334-35, 47 L. Ed. 2d at 33, 96 S. Ct. at 903.

Plaintiff’s use of his vehicle is a protected property right under the due process clauses of the State and Federal Constitutions. (Bell v. Burson (1971), 402 U.S. 535, 539, 29 L. Ed. 2d 90, 94, 91 S. Ct. 1586, 1589; People v. Lindner (1989), 127 Ill. 2d 174, 179, 535 N.E.2d 829, 831.) He had a right to be heard at a meaningful time and in a meaningful manner regarding suspension of his vehicle registration. (Mathews, 424 U.S. at 333, 47 L. Ed. 2d at 32, 96 S. Ct. at 902.) However, he did not have to be provided a full-blown adversarial hearing merely because his property interest was affected.

He relies on Goldberg v. Kelly (1970), 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011, and Memphis Light, Gas & Water Division v. Craft (1978), 436 U.S. 1, 56 L. Ed. 2d 30, 98 S. Ct. 1554, in arguing he should have been provided an opportunity to appear in person, with or without an attorney, before the suspension became effective.

Both cases are distinguishable. In Goldberg, the Supreme Court concluded the procedures for terminating an individual's welfare benefits violated due process because a pretermination hearing was not provided. The Court noted the importance to the State and the recipient that benefits not be erroneously discontinued. Goldberg, 397 U.S. at 266, 25 L. Ed. 2d at 298, 90 S. Ct. at 1019-20.

Although use of a vehicle is an important property right, in plaintiff’s case, the use was perhaps less significant than it could be for other individuals. In the letter he directed to the mandatory insurance division of the office of the Secretary, plaintiff indicated he “regularly [rode] a bicycle to work and [had] done so since moving to the State of Illinois in 1980.”

Moreover, the absence of the use of a vehicle is not necessarily as severe a loss as the loss of all income or of a necessary utility. Other forms of transportation may be available, but loss of income or utility services cannot be easily substituted.

An additional distinguishing characteristic in this case is plaintiff and others similarly situated had at least 45 days from the date notification of the suspension was sent to them. During that time they had ample opportunity to send the proper verification to the Secretary and avoid suspension of their vehicle registration.

In Goldberg (397 U.S. at 268-69, 25 L. Ed. 2d at 299-300, 90 S. Ct. at 1021), however, the Court noted the opportunity to be heard in writing was an inappropriate option for many welfare recipients to provide evidence regarding why their benefits should not be terminated. Many recipients lacked effective writing skills and could not obtain professional assistance to provide the proper evidence.

The evidence required in this case was not as detailed as documentation required to disprove a welfare recipient’s benefits should be discontinued. Plaintiff needed only to provide one of five simple forms of proof: his insurance card, a certificate of insurance, a policy declarations page, an insurance binder, or written proof from , an insurance representative. In addition, plaintiff could have obtained the assistance of his insurance agent in providing this information.

In Memphis Light, Gas & Water Division (436 U.S. at 22, 56 L. Ed. 2d at 46-47, 98 S. Ct. at 1567), the Court concluded plaintiffs were not provided notice reasonably calculated to apprise them an administrative procedure was available to consider their complaint of erroneous billing and the company failed to provide plaintiffs an opportunity to present their complaint to an employee of the company.

Plaintiff and others similarly situated are provided ample notice a suspension will occur. They are provided at least 45 days’ notice. They are also provided an opportunity to file a simple report with the Secretary’s mandatory insurance division within the 45 days which can remedy any erroneous deprivation of their right to retain use of their properly registered and insured vehicle. This procedure adequately protects vehicle owners’ due process rights.

Because we conclude the Code provides adequate opportunities for a vehicle owner to respond before his vehicle’s registration is suspended, this opinion does not discuss additional cases plaintiff relied on in his brief as support for his argument a presuspension hearing must be provided before a vehicular registration is suspended.

IV. Conclusion

The trial judge did not err by dismissing plaintiff’s complaint. Plaintiff lacked standing to challenge the constitutionality of the statute on self-incrimination grounds and his pleadings did not include sufficient allegations to raise any deficiencies of constitutional magnitude. Moreover, the Code provides adequate presuspension procedures to vehicle owners who receive notice their registration will be suspended; plaintiff simply failed to avail himself of them.

Affirmed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.