ILLINOIS POLLUTION CONTROL BOARD
March 11,
1993
CITIZENS AGAINST REGIONAL LANDFILL,
)
Petitioners,
)
v.
)
PCB 92—156
(Landfill Siting)
THE COUNTY BOARD OF WHITESIDE COUNTY
)
and WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondents.
ORDER OF THE BOARD
(by B.
Forcade):
In its January 21,
1993 order, the Board granted a motion
for sanctions against Mr. Hudec, attorney for Citizen’s Against
Regional Landfill (CARL), for failing to follow the hearing
officer’s order and filing a brief not supported by evidence.
The Board ordered Mr. Hudec to pay the amount of reasonable
expenses incurred by Waste Management of Illinois,
Inc.
(WNII)
in
obtaining the order.
WMII filed its statement of costs on
January 29,
1993.
On February 16,
1993, Mr. Hudec filed a
“Memorandum in Opposition to the Bill of Costs filed by Waste
Management of Illinois,
Inc.”
WMII filed a “Motion for Leave to
File Reply to Memorandum in Opposition to Bill of Cost” and
“Response of Waste Management of Illinois,
Inc. to Memorandum in
Opposition to the Bill of Costs Filed by Waste Management of
Illinois, Inc.”
W14II’s motion for leave to file a reply is
granted.
On February 25,
1993, Mr. Hudec filed a motion for
reconsideration of the sanctions.
WMII filed its response to the
motion for reconsideration on March 9,
1993.
The Board will first consider the motion for reconsideration
and then examine the reasonableness of the bill submitted by
WMII.
The motion for reconsideration requests the Board to
reconsider the necessity of imposing sanctions in this matter.
Mr. Hudec maintains that the unusual circumstances do not warrant
sanctions.
Mr. Hudec contends that he did not unreasonably
refuse to follow the hearing officer’s order but was acting in
the best interest of his client to preserve the record for
appeal.
He notes that the transcript was received only days
before the petitioner’s brief was due.
In addition, he notes
that the letter from the hearing officer concerning which pages
of the deposition were to be submitted to the Board was received
only hours~before the petitioner’s brief was to be filed with the
Board.
Mr. Hudec contends that at the time that the petitioner’s
brief was filed with the Board, the issue of what constituted the
record was not resolved.
Mr. Hudec contends that his conduct was
neither severe nor outlandish given the facts that existed at the
01 ~O-Q03I
2
time the brief was submitted.
Mr. Hudec argues that the
imposition of sanctions under these circumstances will have a
chilling effect on effective advocacy especially on the
activities of citizen’s groups and their attorneys in
participating in the siting process.
WNII argues that by not raising the argument for
reconsideration in the memorandum opposing the costs, petitioner
has waived the argument that the imposition of sanctions is
unwarranted.
WMII contends that petitioner,
in the memorandum,
takes issue with the amount of the sanction and does not address
the propriety of the sanction.
WI4II maintains that any objection
to the propriety of the sanction should have been raised in the
memorandum.
WHII notes that it is inconsistent to first argue
that the amount of the sanctions should be modified and then to
later argue that the imposition of sanctions was improper.
WMII also argues that the motion for reconsideration
presents no new evidence or error of fact or law overlooked by
the Board and therefore should be denied.
WMII contends that
facts presented by petitioner were fully considered by the Board
in the order of January 21,
1993.
WMII further contends that
sanctions were proper under the circumstances.
While the Board recognizes the inconsistency in the
arguments presented by petitioner in the two filings, the Board
does not find that the filing of the memorandum opposing the
costs prohibited petitioner from filing a motion for
reconsideration.
The Board allowed 15 days from the filing of
the billing statement for petitioner to file any objection to the
billing statement.
A motion for reconsideration shall be filed
within 35 days of the adoption of the order.
(35 Ill. Adm. Code
101.246(a).)
The Board in its order did not provide a different
time period in which petitioner could file a motion for
reconsideration or suggest that the filing of an objection by
petitioner affected petitioner’s right to file a motion for
reconsideration.
The intended purpose of a motion to reconsider
is to bring
to the court’s attention newly discovered evidence which was not
available at the time of the hearing, changes in the law or
errors in the court’s previous application of the existing law.
(Korocduyan v. Chicago Title
& Trust Co.,
(1st Dist.
1992),
213
Ill.App.3d 622, 572 N.E.2d 1154,
1158.)
Petitioner has not
presented any new evidence or changes in the law.
Petitioner
contends that the circumstances did not warrant the imposition of
sanctions and requests the Board to reconsider the use of
sanctions.
While the Board notes that it fully considered the
facts presented in the motion for reconsideration in the January
21,
1993 order, the Board will review the facts and reconsider
its order due to the importance of the issues.
01 ~O-O032
3
After reviewing the circumstances, the Board affirms its
previous determination that sanctions are warranted.
The Board
finds that at the time that Mr. Hudec filed the petitioner’s
brief it had not been determined exactly which portions of the
deposition transcript would be submitted to the Board.
Yet,
at
that time it was evident from the hearing officer’s ruling at the
hearing that only portions of the transcript would be submitted
to the Board and not the entire transcript.
In addition, the
hearing officer indicated at hearing which portions would be
submitted.
Despite the hearing officer’s refusal to submit the
entire transcript, Mr. Hudec submitted a complete transcript to
the Board and referenced the transcript extensively in the
petitioner’s brief.
When submitting the transcript to the Board,
Mr. Hudec made no indication that the handling of the transcript
was unresolved but instead stated that the transcript was being
submitted “pursuant to the hearing examiners
~j~J
directive of
December 21,
1992.”
(See letter of January
4,
1993.)
The hearing
officer denied giving any such directive.
(See letter from
Hearing Officer dated January
6,
1993.)
The Board finds that receipt of the December 18,
1992
hearing transcript only days before petitioner’s brief was due or
the fact that the exact pages from the deposition transcript to
be submitted to the Board were not determined at the time the
brief was prepared does not justify the filing of a brief
referencing material not in the record.
The hearing and
deposition took place on December 18,
1992.
Transcripts from the
hearing and deposition were received by the parties and the
hearing officer on or about December 30,
1992.
The transcripts
were received in less than two weeks from the date of hearing.
A
tight briefing schedule was required in this matter due to the
approaching decision deadline.
Given the time constraints of
cases with decision deadlines,
it may sometimes be necessary to
require the submission of briefs without the benefit
of
transcripts.
While the petitioner maintains that the entire
deposition transcript should have been submitted to the Board,
the hearing officer clearly refused to submit the complete
transcript from the deposition.
(Tr. at 136.)
The Board views
petitioner’s brief and the submission of the complete transcript
to the Board as an attempt by Mr. Hudec to circumvent the hearing
officer’s ruling and deceive the Board.
Amount of Sanctions
The bill submitted by WNII claims costs of $3,652.50.
The
bill claims that a total of 19.5 hours was expended in obtaining
the Board’s order granting the motion to strike.
The bill
includes the hours spent in telephone conferences, reviewing
petitioner’s brief,
research, preparing and reviewing the motion
to strike and the reply.
The billing statement includes the date
that the services were performed, the attorney who provided the
services,
listing of the services, the hours, the hourly rate and
01
~~O-O033
4
the total.
The total presented in the statement is based on the
hours spent and the hourly rate for the two attorneys who
performed the various services.
Mr. Hudec argues that the statement submitted by WMII is
unreasonable and lacks sufficient detail to determine specific
times and purpose of the stated task.
Mr. Hudec contends that
the fees are unreasonable considering the attorney’s experience
and the nature of the motion involved.
Mr. Hudec maintains that
time for preparing the reply to the motion to strike should be
disregarded because a reply brief
is not allowed except as
permitted by the Board.
He further argues that the reply only
reiterated the issues already addressed in the motion to strike.
Mr. Hudec requests that the Board either deny costs or award an
amount equal to two hours of attorney time.
WMII contends that preparing the motion to strike involved
several steps;
including review of petitioner’s brief, review of
hearing officer’s ruling and correspondences, research on
citation to non—record material and research on the imposition of
sanctions.
WNII argues that while the appropriateness of the
fees is an important factor,
it
is not the only consideration.
WMII contends that the fees are both reasonable and appropriate
given the nature and magnitude of the conduct by petitioner’s
attorney.
WMII contends that the amount of the sanction is
necessary to prevent abuse of the Board’s process.
In support of its arguments, WMII attached a copy of an
article from the Sterling Daily Gazette to its reply.
The Board
notes that this article has not been entered as evidence in this
matter and therefore has not been subject to cross examination.
The Board will not consider the information presented in this
article in determining the amount of sanctions.
The party seeking the fees bears the burden of presenting
sufficient evidence to render a decision as to the reasonableness
of the fees.
(Kaiser v. MEPC American Properties
Inc.
(1st Dist.
1987),
164 Ill.App.3d 978, 518 N.E.2d 424.)
The determination of
the reasonableness of fees is left to the sound discretion of the
trial court.
(u.)
It is necessary for a party seeking attorney
fees to provide specific evidence regarding the number of hours
expended and the hourly rate.
(Black v. loving
(1st Dist.
1991),
219 Ill.App.3d 378, 580 N.E.2d
139.)
WH1I’s statement breaks the hours down by days and attorney.
The statement does not provide an hourly breakdown for each
service.
The billing statement also does not provide any detail
as to the service provided, such as subject matter of telephone
conferences, extent of research, review or analysis.
While a
more specific breakdown would have been beneficial to the Board
in determining the reasonableness of the hours and fees,
the
Board does not find that the statement lacks sufficient
01 ~O-OO3~
5
information to review the reasonableness of the time expended.
In determining the reasonableness of attorney’s fees the
following factors may be considered:
the novelty,
importance and difficulty of the questions
raised; the attorney’s degree of responsibility; the
time and labor required; the skill and standing of the
attorneys; the benefits resulting to the client; the
usual and customary charge in the community; and the
financial position of the parties.
(In re Marriage of
Hirsch
(1985),
135 Ill.App.3d 945,
482 N.E.2d 625.)
Vendredi
V.
Vendredi (1st Dist.
1992),
230 Ill.App.3d 161,
598
N.E.
2d 961.
Mr. Hudec contends that the fees are unreasonable
considering the issues involved and the skill of the attorneys.
The record does not contain sufficient information for the Board
to fully consider the remaining factors without considerable
speculation by the Board.
Therefore, the Board will review the
reasonableness of the fees considering the factors raised by Mr.
Hudec.
Based on the information submitted,
the Board finds the fees
to be reasonable based on the novelty,
importance and difficulty
of the questions raised.
Mr. Hudec contends that the question at
issue was the alleged improper submission of
a deposition and
striking those portions of the brief related to that submission.
Mr. Hudec argues that this issue is straightforward and did not
require the depth and preparation represented in the billing
statement.
The Board finds that Mr. Hudec has oversimplified the
question at issue.
The Board finds the circumstances under which
the brief was filed complicated the issue.
While the issue may
be straightforward,
it is unusual for the issue to arise in most
cases and therefore research into the issue is necessary.
Other
issues raised in the motion to strike included sanctions,
procedural rules, alleged prior violations of procedural rules by
petitioner and modification of the briefing schedule.
In
addition, the Board notes that the motion to strike was submitted
as an emergency motion.
Petitioner’s brief,
filed on January 4,
1993, was comprised
of 28 pages of text plus attached exhibits A through
0.
The
motion to strike was 10 pages in length plus one exhibit.
WMII
claims 13.25 hours were required to review and analyze
petitioner’s brief and related materials and to research and
prepare the motion to strike.
Given the amount of material and
the issues involved, the Board does not find this to be an
unreasonable amount of time.
WMII further claims that 6.25 hours were expended in
0
I L~O-O035
6
reviewing and analyzing petitioner’s response and preparing
WMII’s reply.
Mr. Hudec contends that these costs should not be
included in the amount of sanctions because a reply brief is only
allowed at the discretion of the Board.
Mr. Hudec argues that
because the filing of a reply is discretionary and extraordinary
it does not constitute a reasonable expense.
In addition,
petitioner contends that the reply simply reiterates the issues
already addressed in the motion to strike.
On January 21,
1993, the Board granted WMII’s motion for
leave to file a reply.
WMII’s reply brief was seven pages long
plus Exhibits A through F.
The reply does not address any new
issues but it expands on issues presented in the motion to strike
and responds to the petitioner’s response to the motion to
strike.
The Board does not find that the costs related to the
preparation of a reply are unreasonable because a reply brief is
discretionary and extraordinary.
The fact that an action is
discretionary or extraordinary does not equate to
unreasonableness.
The particular facts of a proceeding determine
when a reply to a response is necessary.
The Board finds that,
given the facts of this proceeding and allegations contained in
petitioner’s response,
a reply was appropriate.
However, the Board finds the time allotted for the reply to
be unreasonable.
The reply should require considerably less time
than the motion to strike, considering that the issues have
already been addressed in the motion to strike.
The Board also
notes that there was less material to review in preparing the
reply and that the reply was several pages shorter than the
motion to strike.
Comparing the time required for the motion to
strike
(9.75 hours plus
3 hours of research on sanctions) with
the time for the reply (6.25 hours)
does not reveal the type of
difference that would be expected considering the above factors.
Therefore, the Board will reduce the time for preparing the reply
brief by
3 hours,
to 3.25 hours.
This is one third of the time
required to prepare the motion to strike not including the
research on the issue of sanctions.
This change will reduce the
amount of sanctions to be paid by $570.00.
Considering the unproportionate amount of hours allocated to
the reply, the Board questions the reasonableness of the other
hours presented in the billing statement.
Because the billing
statement presented by WMII did not provide a specific
description of the services provided or the hours for each
service, the Board
is unable to determine the content or length
of the telephone conferences listed in the billing statement.
While the Board has determined
that the billing statement is
sufficiently specific for the Board to review the reasonableness
of the hours expended, the billing statement does not provide
specific detail for the Board to determine the nature and extent
0 t~o-0O36
7
of the services provided.
Even though the Board has found that
the overall hours presented are reasonable, the Board finds it
appropriate to adjust the hours specified in the statement
because the Board is unable to determine the exact relationship
between the services listed and the motion to strike.
The Board finds that some of the hours included in the
statement would have been required regardless of the fact that
petitioner’s brief referenced material not in evidence.
If
petitioner had submitted a proper brief, respondent would have
reviewed and analyzed that brief.
In imposing costs as
a
sanction,
it was the Board’s intention to deter such behavior in
the future and to compensate WMII for the additional time and
expense incurred due to the improper brief filed by petitioner.
The Board will subtract 1.5 hours from the total hours
specified in the billing statement.
The Board considers this
reduction to be appropriate to reflect those services that would
have been provided in any event if a proper brief had been filed
and for failure to provide a specific billing statement showing
the nature of the services.
The Board notes that this order is being issued after the
decision deadline in this matter and after the Board had issued
its final opinion and order.
WNII had waived the decision
deadline for this case to February 28,
1993.
The Board issued a
final opinion and order on February 25,
1993 affirming Whiteside
County’s approval of the landfill.
The Board did not address the
issue of sanctions or the motion for reconsideration in its final
opinion and order.
The February 25,
1993 opinion and order
disposed of all matters except the issue of sanctions.
The Board
views the issue relating to sanctions as
a collateral issue.
The
sanctions imposed against Mr. Hudec were for actions before the
Board and are not directly related to the merits of the case.
The Board also notes that the motion for reconsideration was
received the same day that the final opinion and order was
issued.
Requiring the Board to dispose of all matters by the
decision deadline would prohibit the Board from considering any
motion filed near the deadline because there would be
insufficient time for a response from the opposing party.
This
would restrict the Board’s ability to respond to any action that
occurs near the deadline.
The determination of whether a prevailing party is entitled
to attorney’s fees and,
if so, the calculations of those fees are
determinations independent of the underlying judgment.
(Servio v.
Paul Roberts Auto Sales Inc.
(1st Dist.
1991),
211 Ill.App.3d
751, 570 N.E2d 662.)
The federal courts generally interpret
attorney fee claims allowed by statute as collateral and not
affecting the finality or appealability of the judgment in the
principal action.
(u.)
Where the court grants attorney fees but
o1~0-O037
8
leaves the calculation for a later date,
“the fact that attorney
fees have not been awarded does not prevent the underlying
judgment from becoming final; the attorney’s fee proceeding is
regarded as collateral.
(citations omitted)”
(Szabo v. US.
Marine CorP.
(7th Cir.
1987),
819 F.2d 714 at 717.)
When an
attorney fee award order is ancillary to an appealable order, the
courts have allowed it to be appealed on “the principle that a
‘court of appeals may,
in the interest of orderly judicial
administration, review matters beyond that which supplies
appellate jurisdiction.”
Bittner
V.
Sadoff
& Rudoy Industries
(7th Cir.
1984)
728 F.2d 820,
826, quoting Scarlett v. Seaboard
Coast Line R.R.
(5th Cir.
1982),
676 F.2d 1043.
At worst an
appeal of such an order would only prohibit the court from
reviewing the issue of attorney’s fees because the attorney’s
fees phase is treated as a separate proceeding when deciding
jurisdiction of an appeal of an order dealing with the merits
phase.
(Szabo at 717.)
In Servio, the court found that a motion
on attorney fees, which was granted but left the amount to be
determined at a later date, did not need to be resolved because
it was collateral and did not affect the appealability of the
final judgment.
In Holmes v.
J.R.
McDermott & Co.,
Inc.
(5th Cir.
1982),
682
F.2d 1143 the court used the following standard:
When attorney’s fees are similar to costs
.
.
.
or
collateral to an action
.
.
.
a lack of determination
as to the amount does not preclude the issuance of a
final appealable judgment on the merits.
When, however
attorney’s fees are an integral part of the merits of
the case and the scope of relief, they cannot be
characterized as costs or as collateral and their
determination is part of any final appealable judgment.
Section 40.1 of the Environmental Protection Act
(415 ILCS
5/40
(1992))’ states that “if there is no final action by the
Board within 120 days, petitioner may deem the site location
approved.”
“For purposes of judicial review, Board action
becomes final upon adoption of the Board’s final order in a
proceeding, or upon subsequent Board action if any motion for
reconsideration is filed.”
(35 Ill. Adm. Code 101.302.)
Therefore,
the Board concludes that the opinion and order of
February 25,
1993
is a final and appealable order.
In sum, the Board finds that it is appropriate to reduce the
amount of sanctions.
The Board has reduced the time allotted for
the reply by 3 hours and reduced the overall billing by 1.5
hours.
Thjs results in a total reduction of 4.5 hours.
The Environmental Protection Act was previously codified
at Ill.Rev.Stat. ch.
111 1/2 par.
1001 ~
UI~0-0038
9
Multiplying 4.5 hours by the hourly rate of $190.00 results in
$855.00.
The bill submitted by WMII requested $3552.50 in
sanctions.
Reducing the amount requested by WMII by $855.00
provides a total of $2697.50.
Mr. Hudec
is ordered to pay the amount of $2697.50 to WMII
within 30 days of the date of this order.
IT IS SO ORDERED.
J. Theodore Meyer abstained
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992)) provides for appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(But see also 35 Ill. Adm. Code
101.246, Motions for Reconsideration, and Castenada v. Illinois
Human Rights Commission
(1989),
132 Ill.
2d 304,
547 N.E.2d 437.)
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Boarc~,J.erebycertify that the above order was adopted on the
____________day
of
7~i
~
,
1993, by a vote of
~
/~L.
Dorothy M. G)X~1, Clerk
Illinois Po~3AtionControl Board
01 ~0-OO39
