ILLINOIS
POLLiJTIOi~ CONTROL
BOARD
November 19, 1987
CITY OF ROCKFORD,
a Municipal Corporation,
Petitioner,
vs.
)
PCB 87—92
WINNEBAGO COUNTY BOARD,
Respondent.
CONCURRING OPINION (by B. Forcade):
I reluctantly concur in the Order to remand this matter to
the County Board, but I am unable to support portions of the
majority opinion which accompanies that Order. I disagree with
the majority opinion in two primary areas:
My two areas of disagreement are that the majority opinion:
1) Places undo reliance upon, and is
critical of, the activities of indi-
viduals outside the decisionmaking
process; and
2) Specifically, permits the examination of
County Board members in the hearing
before this Board witriout a prior showing
of bad faith or improper benavior.
The majority opinion is extremely critical of the activities
of STL. After spending two pages of the Opinion describing STL~s
activities, the majority concludes:
Any natural, if inappropriate, tendencies
the County Board members may have to confuse
their duties and role was exacerbated by STL’s
public opinion campaign. STL’s flyers urging
the writing and proper filing of written
comments as well as hearing attendance and
testimony was perfectly proper and indeed
laudable in an adjudicatory context. Its
other activities
——
the signs, hearing room
refreshment stand, and submittal to the County
of off—record comments during its deliberation
of the Committee’s recommendations, and the
radio commercial—call in campaign immediately
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——
before the County’s vote
——
are all time
honored lobbying activities which are inappro-
priate in the quasi—judicial atmosphere of an
SB172 proceeding. SrL’s running of its anti—
landfill radio commercials, urging citizens to
call the judge/jury, only served to encourage
cx parte contacts. The legislature has pro-
vided for and doubtless anticipated hot debate
in S6l72 proceedings, but the forum provided
for such debate is the hearing room, not the
cloakroom, the streets, or the airways.
(Opinion, pp. 20—21)
I am unable to determine that STL’s activity was
“inappropriate”. STL was not simply engaging in the “time
honored” acti~iityof lobbying. STL was engaging in activity that
is protected by the First Amendment
—
Freedom of Speech. There
is no indication in this record that STL disrupted the process of
government by disorderly conduct. The only indication is that
STL members peacefully and politely expressed their opinions to
government officials. I am not willing to criticize
constitutionally protected activity in any form or manner. If
that activity creates difficulty for the manner in which
government conducts business, the burden for correcting the
difficulty must fall on government officials, not the First
Amendment activity. The burden on the Winnebago County Board
members was to discourage “unnecessary and avoidable contacts”
and to report all other contacts accurately to the public
record. E&E Hauling v. PCB, 116 Il1.hpp.3d 586.
The failure of various County Board members to report cx
parte contacts to the record does, in my opinion, constitute a
denial of fundamental fairness. However, it is the actions of
the County Board members which is at issue, not tne propriety of
STL’s activities.
My second concern is the examination of County Board members
which the majority opinion allows:
In this case, the Board, through its hearing
officer, has not permitted inquiry into what
County Board members read or tnought, although
it has permitted inquiry into what they said
and did. (Opinion, pp. 9—10)
This statement in the majority opinion is simply not true.
And, even if it were true, I question the validity of having the
County Board members questioned at all, in the absence of some
strong preliminary showing of bad faith. No such preliminary
factual showing was made, only allegations in the petition for
review.
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Today’s decision by the majority continues the current trend
in Section 39.2 proceedings: the landfill is tried before the
county board and the County Board members are tried before this
Board. I certainly agree that issues of ex parte contacts,
conflicts of interest and the like are appropriate issues for
presentation to this Board as a showing that the proceeding below
was not fundamentally fair. However, I also believe that the
county board proceeding is entitled to a strong presumption of
propriety that must be overcome before there can be a “fishing
expedition” into the personal lives and mental processes of the
County Board members. The majority opinion now specifically
endorses such fishing expeditions without a preliminary factual
showing of error, so long as the inquiry involves only what
County Board members said and did. I cannot support that
theory.
The Board is not alone in its struggle over invading the
mind of the decisionmakers. The courts have struggled with this
issue since the early 1930’s. The basic framework for how
institutional adjudicatory decisionmakers must “consider the
evidence” and what inquiries can be made into that process, was
laid down by the United States Supreme Court in the four Morgan
cases and their progency (Morgan v. U.S., 298 U.S. 4b8 (1936)
Morgan I; Morgan v. U.S., 304 U.S. 1 (1938) Morgan II; U.S.
v. Morgan, 307 U.S. 183 (1939) Morgan III; and
u.s.
V.
Morgan,
313 U.S. 409 (1941) Morgan
IV.
In 1936, the U.S. Supreme Court held that “tne one who
decides must hear.” Morgan I. Subsequently, the district
court allowed the Secretary of Agriculture to be examined on
whether he had heard the case (read the record). On subsequent
appeal, the Supreme Court reversed itself with Mr. Chief Justice
Frankfurter stating in the Opinion:
But the short of the business is that the
Secretary should never have been subjected to
this examination. The proceeding before the
Secretary “has a quality resembling that of a
judicial proceeding.”
Morgan v. United
States, 298 U.S. 468, 480. Such an exami-
nation of a judge would be destructive of
judicial responsibility. We have explicitly
held in this very litigation that “it was not
the function of the court to probe the mental
processes of the Secretary.” 304 U.S. 1,
18. Just as a judge cannot be subjected to
such a scrutiny, compare Fayerweather v.
Ritch, 195 U.S. 276, 306—7, so the integrity
of the administrative process must be equally
respected. See Chicago, B.&Q. Ry. Co. v. Bab-
cock, 204, U.S. 585, 593. It will bear
repeating that although the administrative
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—4—
process has had a different development and
pursues somewhat different ways from those of
courts, they are to be deemed collaborative
instrumentalities of justice and the appro-
priate independence of eacn should be re-
spected by the otner. United States v.
Morgan, 307 U.S. 183, 191.
United States v. Morgan, 313 U.S. 409 (1941)
Morgan IV
The four Morgan cases, and their progeny, lay the groundwork
for the questions now plaguing the Board. It seems clear that
institutional decisionmakers must render their decisions in an
appropriate manner but that you can only ask certain questions of
the decisionmaker and then only if you meet some burden or prima
facie factual showing that the decisionmaking process was
flawed. What showing must be made and what questions you can
subsequently ask is a very murky area of the law. In National
Nutritional Foods v. F.D.A., 491 F.2d 1141 (2nd Cir., 1974), no
examination of the Secretary was allowed even though it would
have been physically impossible for the Secretary to read the
hundreds of thousands of pages of record involved in the
decisions the Secretary made in the first 13 days after he took
office. See also Libis v. Board of Zoning Appeals of Akron, 292
N.E.2ct 642 (Ohio Appellate, 1972).
I have reviewed a substantial body of literature (and much
of the case law cited therein) in an attempt to determine wnat
questions may be asked of county board decisionmakets in a
Section 39.2 proceeding and what, if any, preliminary showing
must be made prior to asking those questions. The law is, at
best, murky. Nonetheless, if Chief Justice Frankfurter’s
rationale in Morgan IV holds true, I find it difficult to believe
that the Board’s current concept of “permitted questions” would
have been allowed if posed to a trial court judge in Illinois.
In John Ash v. Iroquois County, PCB 87—29 (July 16, 1987),
the Board “permitted” the applicant to inquire of each county
board member whether they had “read the transcript”.
1. K. Davis, Administrative Law Treatise, Section 11.02—11.04
2
Am Jur.2d, Administrative Law, Section 439
F. Cooper, State Administrative Law, Chapter 13, Section 3
18 A.L.R..2d, 606—629 (including Later Case Service)
Stein, Mitcnell, Mezines, Administrative Law, Cnapter 38
50
Washington Law Review, 749 (1978)
30 Administrative Law Review, 237
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In A.R.F. v. Lake County, PCB 87—51 (October 1, 1987), the
Board “permitted” interrogatories to each county board member
which:
asked identification of each and every
communication with any person regarding the
A.R.F. landfill; asked for disclosure of any
financial interest the County Board members
had in Waste Management or property near the
A.R.F. facility; asked for their attendance
record at the A.R.F. hearings; asked for their
participation in negotiations and voting
record relating to the Heartland property
annexation; asked for financial disclosure
regarding interests in other landfills or
incinerators in any jurisdiction; asked about
financial benefits received from Waste
Management; asked if the county board had ever
made public statements about the existing
A.R.F. landfill; asked whether the county
board member had read the entire transcript
(if not, what parts were not read); and asked
whether the county board member would have
voted against the approval regardless of the
evidence. (John Ash v. Iroquois County,
Concurring Opinion, B. Forcade)
In today’s proceeding, the Board has “permitted” substantial
invasion of the decisionmaking process, far beyond the majority’s
assertion of an inquiry into what the County Board members said
and did. A typical examination in the hearing before this Board
was that of County Board Member Ousley Walker, who was asked:
Q. You didn’t attend the committee—of—the—
whole meeting either where this was
discussed, did you?
A. No, sir, I did not.
Q. And you didn’t make any of the zoning and
planning committee meetings when they
talked about it?
A. I did not.
Q. And you didn’t go to any of the hearings?
A. No, sir.
Q. You voted against all of the criteria
——
you voted against the city on all
criteria except for one is that correct?
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~0—
A. I believe so.
Q. Do you remember what any of those
criteria were?
A. No, sir.
Q. Do you remember any of the
recommendations of the zoning and
planning committee?
A. I made up my mind that night. I was
undecided until the night of the vote,
and the only thing that caught my eye was
the 80 foot above grade. That was it.
Q. So that was the basis of your vote?
A. Yes, sir.
(PCB Tr., pp. 181—182)
The Board has thus, “permitted” questions about whether the
decisionmaker remembers the factual recommendations in a case,
about whether the decisionmaker remembers the “law” that applied
in a case, or why the decisionmaker voted a particular way. I
believe these questions invade the decisionmaking process. I
doubt they would be asked of an Illinois trial judge.
I have used the word “permitted” in a very specific sense.
The questions were asked (at hearing or by interrogatory), no
objection was posed by counsel for the county board, and, as a
result, the answers became part of the record. This Board has
never been asked to rule on whether County Board members can be
questioned at all, nor on whether certain questions are
appropriate. I would continue to assert, per guidance from Chief
Justice Frankfurter, that the short of the business is that the
County Board members should never have been subjected to this
examination. Accordingly, I cannot support the majority’s
rationale that it is appropriate to inquire about what they saw
and did.
Whether or not the questions should have been asked, they
were. The questions and answers are a part of the record without
objection from the parties. Based on the facts in the record, I
see little recourse but to remand for lack of fundament~
fairness.
. \
~4ember of the Board
83—8 4
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Concurring Opinion was
submitted on the
/-~
day of
~
,
1987.
Dorothy M Gunn, Clerk
Illinois Pollution Control Board
83—85