BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

R E C ~E

~V E~

CLERK S OFFICE

WASTE MANAGEMENT OF ILLINOIS, INC.)

APR ~42005

Petitioner

STATE OF ILLJNOJS

Pollution Contro’ eoard

VS~

Case No. PCB 04-186

COUNTY BOARD OF KANKAKEE

)

COUNTY, ILLINOIS,

)

)

Respondent.

)

NOTICE OF FILING

TO:

See attached Affidavit of Service

PLEASE TAKE NOTICE THAT on April 1, 2005, I filed with the Illinois Pollution Control

Board, an original and five copies of the enclosed Motion in Limine, a copy of which is also

served upon counsel.

Respectfully Submitted,

COUNTY BOARD OF KANKAKEE COUNTY,

ILLiNOIS, Respondent

By: Hinshaw & Culbertson LLP

Fieather

~

K. Lloyd

x

One ofits Attorneys

HINSHAW & CULBERTSON LLP

100 Park Avenue

P.O. Box

1389

Rockford, Illinois 61105-1389

815/490-4900

815/490-4901

(fax)

70445370v1 840423

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RCLERK’S~ C ~EOFFICE~V ~ D

WASTE MANAGEMENT OF ILLiNOIS, iNC.)

AP~04

)5

Petitioner,

)

PollutionSTATE

OFControlILLINOISBoard

vs.

Case No. PCB 04-186

COUNTY BOARD OF KANKAKEE

)

COUNTY, ILLINOIS,

)

)

Respondent.

)

MOTION IN LIMINE

NOW COME Defendants, COUNTY OF KANKAKEE and COUNTY BOARD OF

KANKAKEE, by and through their attorneys, H1NSHAW & CULBERTSON LLP, and before

trial, moves this Court in limine to exclude from the trial of this matter, the following

information:

Any and all arguments, statements, questions, testimony, or evidence of any kind from

Plaintiffs, Plaintiffs’ counsel, or Plaintiffs’ lay and expert witnesses that make reference to,

directly or indirectly, by stating, comparing, inferring, or referring to any fact, allegation, or

conclusion regarding any statements, whether oral or written, made by Ms. Ann Bernard, County

Board Member, during her State Representative election campaign regarding her opposition to

several proposed landfills in Karikakee County, as such testimony or evidence is not relevant to

this case and will not assist the trier offact.

I.

iNTRODUCTION

Ms. Ann Bernard was elected to the Kankakee County Board in 1996. Her current term

will expire in 2006. In November, 2003 Ms. Bernard ran for a Illinois State Representative

position.

During her campaign, Ms. Bernard never specifically mentioned WASTE

MANAGEMENT OF ILLINOIS, INC. or its proposed landfill expansion in Kankakee County.

Rather, Ms. Bernard simply indicated in her General Assembly Questionnaire and her campaign

70445304v1 826549

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materials that she was generally opposed to proposed landfills being sited in Kankakee County,

and merely indicated in materials published after the County Board’s vote on Waste

Management’s second siting application that she had voted against the landfill. Respondent has

reason to believe that Petitioner will attempt to introduce Ms. Bernard’s statements as evidence

that Ms. Bernard was biased. However, as a matter of law, any statement, oral or written,

regarding Ms. Bernard’s opposition to proposed landfills in Kankakee County during her

election campaign for State Representative should be disregarded by this court as inadmissible

evidence, as such statements made in the context of a campaign for public officer are not

relevant to the issues particularly involved in this case.

II.

ARGUMENT

Ms. Bernard’s public statements, both written and oral, made during her election

campaign for State Representative opposing landfilling in Kankakee County were not in

contravention ofthe Illinois Environmental Protection Act (Act). In fact, Section 39.2(d) ofthe

Act expressly allows such statements and, in pertinent part, provides as follows: “The fact that a

member of the county board or governing body of the municipality has publicly expressed an

opinion on an issue related to a site review proceeding shall not preclude the member from

taking part in the proceeding and voting on the issue.” 415 ILCS

5/39.2(d)

(emphasis added).

Therefore, Section 39.2(d) clearly provides that Ms. Bernard was free to make public statements

concerning her opinion on landfills and/or proposed landfills in general and/or those landfills

proposed in Kankakee County. Because Section 39.2(d) specifically allows county board

members to express their opinions related to landfill site review proceedings and landfills

generally, any such statements made by Ms. Bernard are not relevant and should not, therefore,

be admitted into evidence or considered at the Board hearing.

2

70445304v1 826549

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Pursuant to this Board’s procedural rules, evidence may be admitted at a Board hearing

only if it is “material, relevant, and would be relied upon by prudent persons in the conduct of

serious affairs, unless the evidence is privileged.” 35 Ill.Adm. Code § 101.626(a). In this case,

Ms. Bernard’s statements concerning the proposed landfill are not relevant because, as set forth

in Section 39.2(d), such statements are not improper. Illinois courts define “relevant evidence”

as that which has “any tendency to make the existence of any fact that is of consequence to the

determination ofthe action more or less probable than it would be withoutthe evidence.”

Wojcik

v. City of Chicago,

299 Ill.App.3d 964, 971, 702 N.E.2~’303, 309 (1st Dist. 1998) (emphasis

added). Pursuant to Section 39.2(d), any statements made by Ms. Bernard are ofno consequence

to this action because, as a mater of law under this provision, such statements could not be used

as a basis to disqualify Ms. Bernard from voting on the application.

Additionally, this Board should refuse to admitor consider the statements made by Ms.

Bernard in her political campaign because Ms. Bernard had an absolute right to make those

statements.

See

U.S. Const., Amend. I;

see also 5

U.S.C. § 7323(c) (expressly allowing even

employees of the federal government to express opinions on political subjects). In fact, Ms.

Bernard arguably had a duty, obligation and responsibility, as a candidate for public office, to

express her opinion on all pertinent political subjects. In fact, she was specifically asked her

opinion about such matters in the General Assembly Questionnaire. As such, this Board should

find that Ms. Bernard, as a candidate for political office, was privileged to express her political

opinion without fear of formal interrogation.

Furthermore, the statements made by Ms. Bernard cannot be used to establish that the

proceeding was fundamentally unfair because the fact that Ms. Bernard made statements

regarding her legislative position on the proposed landfill will not overcome the presumption

that, as an administrative official, Ms. Bernard was objective in judging the siting application.

3

70445304v1 826549

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See Waste Management of Illinois, Inc. v. Pollution Control Board,

175 Ill.App.3d 1023, 530

N.E.2d 682 (2d Dist. 1988);

Residents Against a Polluted Environment v. County of LaSalle,

PCB 97-139 (June 19, 1997). As such, those statements are not relevant and should not be

considered by this Board.

CONCLUSION

Because public statements made by Ms. Bernard regarding her position on proposed

landfills in Kankakee County were not in contravention of Section 39.2 and, in fact, are

expressly protected under Section 39.2(d), and further do not establish that the siting proceeding

was unfair, they are not relevant and should be barred.

WHEREFORE Respondent, COUNTY BOARD OF KANKAKEE COUNTY,

ILLINOIS, by and through its attorneys, HINSHAW & CULBERTSON LLP, respectfully

requests this honorable Court to instruct Plaintiffs, Plaintiffs’ counsel, and Plaintiffs’ lay and

expert witnesses not to mention, refer to, interrogate, argue, or make any statement regarding the

information cited above. It is further requested that the Court instruct Plaintiffs and Plaintiffs’

counsel to instru t eac and every witness appearing for Plaintiffs to strictly follow this Order.

Dated:

~‘I

‘

COUNTY BOARD OF KAM(AKEE

COUNTY, ILLiNOIS,

Respondent,

HINSHAW & CULBERTSON LLP

100 Park Avenue

Rockford, IL 61105

815/490-4900

815/490-4901 (fax)

4

70445304v1 826549

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AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions ofSection 1-109 ofthe Illinois Code of Civil

Procedure, hereby under penalty of perjury under the laws of the United States of America,

certifies that on April 1, 2005, a copy of the foregoing was served upon:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601-3218

Donald J. Moran

Pedersen & Houpt

161 N. Clark Street, Suite 3100

Chicago, IL 6060 1-3242

(312) 641-6888

(312) 641-6895 FAX

Mr. Brad Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph, 11th Floor

Chicago, IL 60601

(312) 814-8917

(312) 814-3669 FAX

By depositing a copy thereof, enclosed in an envelope in the United States Mail at Rockford,

Illinois, proper postageprepaid, before the hour of 5:00 P.M., addressed as above.

HINSHAW & CULBERTSON

100 Park Avenue

P.O. Box 1389

Rockford, Illinois 61101

815/490-4900

815/490-4901 (fax)