KENNETH A LESEEN
~I 002
04/25/2003 15
FAX 81593
_____
ILLINOIS POLLUTION CONTROL BOARD
~t~C1~1tVED
CLERK’S
OFFICE
P1PR
2
52003
Petitioner,
COUNTY OF KANF(AKEE, COUNTY
BOARD OF
KANKAKEE,
and WASTE MANAGEMENT
CF
ILLINOIS,
INC.
Respondents.
MERLIN KARLOC~,
Peti~ioner,
COUNTY
OF KANE(AK~’E, COUNTY
BOARD OF
KANKAKEE,
arid
WAS~TEMANAGEMENT
OF
ILLINOIS,
INC.
.~
Respondents.
MICHAEL
WATSON,
PetItioner,
vs.
COUNTY OF
KANKAKEE,
KANKAKEE,
and WA~TE
COUNTY BOARD OF
MANAGEMENT OF
ILLINOIS~ INC.
Respondents.,
KEITH
RtJNYON,
I~
Petitioner,
vs.
COUNTY OF KANKAKEE,
KANKAKEE,
and WA~TE
COUNTY BOARD
OF
MANAGEMENT
OF
ILLINOIS,
INC.
Respondents~
)
STATE
OF ILLINOIS
Pollution
Control Board
~CB
03—125
(Third—Party Pollution Control
Facility Siting Appeal)
PUB 03—133
(Third—Party Pollution
Control
Facility Siting Appea)
PCB 03—134
(Third—Party Pollution Control
Facility Sitin~ ~ppeal)
CITY
OF
KANKAKEE,
vs.
)
)llUtion Control
Appeal)
POE
03—135
(Third-Party
P1
FaciJ.ity Sitini
PCB 03—144
WASTE MANAGEMENT
OF’
ILLINOIS,
INC.,
PetitIoner,
vs.
COUNTY OF KANKAKEE,
(Pollution
CortLrcl
Facility
Si~in~ Appeal
Respondent.
04/25/2003
13:45
FAX_8159333397
____
KENNETH A LESHEN
(~003
NOTICE
OF’ FILING
AND
REQUEST
FOR
HEARING~
TO:
Dorolhy
N,
Gunn,
Clerk
IllinoIs
Pollution Control Board
James
R.
Thompson Center
100 West
Randolph Street,
SuIte 11-500
Chicago,
IL
60601—3218
Bradley ~a11orari
Hearing Officer
IllinoIs
Pcllution Control Board
100 West
Randolph,
11th
Floor
Chicago,
IL
60601
FAX
312/814—3669
Donald
J. Moran,
“sq.
Pederson
& Houpt
161 North Clark,
Suite
3100
Chicago,
IL
60601—3242
FAX 312/261—1149
Charles
F.
Helsten,
Esq.
Richard
S.
Porter,
Esq.
Hinshaw
& Cuibe:tson
P.
0.
Box 1389
Rockford,
IL
61105—1389
FAX 215/963~9989
Jennifer
J.
Sackett
Pohlenz,
Esq.
175 W.
Jackson Blvd,
Ste...
1600
Chicago,
IL
60604
FAX 312/540—0575
Lelarid Milk
6903 South Route 45—52
Ohebanse,
IL
60922
Ceorge Mueller,
£sq.
501 State Street
Ottawa,
IL
61350
FAX
815/433—4913
~eith
L.
Runyon
1165
Plum
Creek
Drive,
Un11
C
Bourbonriais,
IL
60914
FAX 815/937-9164
ElizebeLh
~arvey,
Esq.
Swanson, Martin
& Bell
One IBM Plaza,
Suite
2900
330
North Habash
Chicago,
II.
60611
FAX
312/321—0990
04/25/200313:45 FAX 8159333397
KENNETH
A
LESHEN
L~004
PLEAS
TAKE
NOTICE
that
I
have
on
the 25~day of April,
2003,
mailed
for filIng
the original
and
nine
(9)
copies
of
th~
follow~ngdocument:
MOTION TO RECONSIDER DISCOVERY RULINGS
to Dorothy
NI.
Gunn,
Clerk,
Illinois Pollution Control Board,
James
R.
Thompson
Center,
100 West Randolph Street,
Suite 11—500,
chicago,
IL
60601-3218,
and a true ‘and correct copy thereof was served upon you on
April
25,
2003,
by depositing
a copy thereof, enclosed in~anenvelope in
the
U.
S~ Mail
at
Kankakee,
IllIflO±Sr proper postage prepaid,
before the
hour of
5:00
p.m.,
addressed as above,
and by facsimile t~those parties
with
facsimile
numbers listed and asking that the same
be
heard
by the
Illinois
Pollution Control Board at
its meeting of May
1,
2003.
241/0
Kenndth
A.
Leshen.
Assistant City Attorney
City of Kankakee
Kenneth
A. Leshen
Assistant City Attorney
One Dearborn Square,
Suite
550
Kankakee.,
IL
60901
815/933—3385
Reg.
No.
03127454
L4~005
04/25/2003
13:46
FAX
8159333397
KENNETH A LESHEN
ILLINOIS POLLUTION
CONTROL BOARD
CITY
OF
KANKAKEE,
vs.
petitioner,
POE
03—125
(Third—Party Pollution Control
Facility Siting
Appeal)
COUNTY OF KANKAKEE,
COUNTY BOARD CF
KANKAKEE,
and.
WASTE MANAGEMENT OF
ILLINOIS,
INC.
MERLIN
KARLOOK,
vs.
Respondents.
PCB
03—133
(Third—Party
Pollution
Control
COUNTY
OF
KANKAKEE,
COUNTY
BOARD
OF
KANKAKEE,
and WASTE MANAGEMENT OF
ILLINOIS,
INC.
MICHAEL
WATSON,
Respondents.
Petitioner,
Facility Siting
Appeal)
PUB 03—134
COUNTY
OF
KANKAKEE,
COUNTY BOARD OF
KANKAKEE,
and
WASTE
MANAGEMENT
OF
ILLINOIS,
INC.
Respondents.
KEITH
RUN YON,
Petitioner,
vs.
COUNTY
OF
KANKAKEE,
COUNTY
BOARD
OF
KANKAKEE,
arid WASTE MANAGEMENT OF
ILLINOIS,
INC.
Respondents.
Petitioner,
(Third—Party
?cllution
Control
Facility Siting Appeal)
PCE
03—135
(Third—Party Pollution Control
Facility Siting Appeal)
PUB
03—144
(Pollution
Contra)
Facility
Siring
Appeal)
WASTE MANAGEMENT OF ILLINOIS,
INC.,
Petitioner,
vs.
COUNTY
OF
HANKAKEE~
Respondent
-
04/25/2003
13:46
FAX
8159333397
____
KENNETH
A
LESHEN
)~
006
MOTION
TO
RECONSIDER
DISCOVERY RULINGS
NOW COMES
the CITY OF KANKAKEE
(hereinafter the “City”),
by
and through its attorneys,
Assistant City Attorneys
L.
P~iTRICK
POWER and KENNETH A.
LESP~EN, and moving the Illinois Pollution
Control Board
(hereinafter the “Board”),
to reconsider the
decision of its Hearing Officer, Bradley
P.
1-lalloran,
concerning
certain discovery issues.
In support thereof, the City alleges
as
follows:
1.
In
a conference call held on April
24,
2003,
Hearing
Officer Bradley Halloran ruled Ihat the City would be precluded
from taking the depositions of Waste Management of Illinois,
Inc.’s
(hereinafter
“WNIII”) attorneys Mor~nand Wilt
as
well as
Kanka.kee County attorneys Harvey
and. Helsten.
Hearing Officer
1-lalloran further ruled that the depositiohs would each be
limited to a duration of one hour.
2.
In its responses
to the City’s interrogatories, WMII
acknowledged telephone contact between attorneys Moran,
Harvey
and Heisten regarding substantive
issues,
namely,
conditions
to
any County Board approval of the siting application,
and that
said
conversation was held between the close of the hearing
arid
the deo~si-onof the Kankakee County Board regarding siting.
Consequently,
said contacts were per se improper and the City
should be allowed to depose
said attorneys
regarding their per
01/25/200.3
13:46
FAIl
8159333397
KENNETH
A LESHEN
L~007
se improper contact-
See,
Response to Waste Nanagement
of
Illinois,
Inc.’s
Objections
to
the
City’s
List
of
Deponents
and
Response
to
the
County
of
Kankakee’s Objections to the City’s
List
of
Deponents
attached
hereto and incorporated herein as
Exhibit
A.
3.
Hearing
Officer
1-falloran
also restricted each
deposition
to one hour.
Hearing Officer Halloran did not
entertain oral argument on this issue during the conference
call.
4.
Hearing Officer
Halloran
was appropriately concerned
about
the
time
issues
in this case,
given the fact that
the
hearing
is scheduled to begin
on May
5,
2003.
However.,
it
is
apparent that the information to be provided by certain
deponents will be much more voluminous and lengthy than the
information to be provided by other deponerits.
Consequently,
the City suggests that the duration of the depositions
of the
following deponents be extended to three hours in accordance
with the rules of the Supreme Court of the State of Illinois
governing depositions:
Dale Hoekstra,
Mike VanMill,
Effraim
Gill,
Mike QuigJ.ey,
Bruce Clark,
and Karl Kruse.
5.
Hearing Officer Halloran sustained WMII’s objection to
the taking of the deposition
of
Lee Addleman,
asserting that Mr.
Addieman had a liver transplant
in February,
2003
The City
sympathizes with the health difficulties
of
Mr. Addleman;
04/25/200313:46
FAX 8159333397
KENNETH A LESHEN
~d008
however,
the applicable discovery rules of the State of Illinois
require that
a physician’s affidavit be submitted to
support the
non—appearance
of Mr. Addleman.
Mr. Addleman
is
a key witness.
Consequently,
the City requests that the Board require that
a
physician’s
affidavit be submitted to support WMII’s contention
that Mr. Addleman
is unavailable due to his health issues.
WHEREFORE,
the City prays
that this Board reconsider the
discovery rulings of Hearing Officer Bradley Halloran and enter
its order as follows:
A.
ordering WMII to present
attorneys Moran and Wilt for
depositions;
B.
ordering
Kankakee County to present attorneys Harvey
and Helsten for depositions;
C.
extending the duration of the depositions of Dale
Hoekstra,
Mike VanMill, Effraim Gill, Mike Quigley, Bruce Clark,
and Karl Kruse
to
a time period of three hours;
D.
ordering WNIIto
submit
a physician’s affidavit
regarding Lee Addleman’s unavailability as ~ deponenr;
and
04/25/2003 13:46
FAX
8159333397
KENNETH
A LESHEN
~009
F.
providing for such other and further relief as this
Board
deems
just,
necessary and proper.
Respectfully submitted,
CITY OF
K NKAKEE
BY:
_____
Kenneth
A.
Leshen
Assistant City Attorney
Kenneth
A.
Leshen
Assistant City Attorney
One Dearborn Square,
Suite
550
Kar~kakee, IL
60901
815/933—3385
Reg.
No.
03127454
04/25/2003 13:46
FAX
8159333391.
KENNETH
A
LESHEN
dolO
BEFORE
TRE
ILLINOIS
~POLLUTION
CONTROL
BOARD
THB CITY OF KANKAKEE,
an Illinois
)
Municipal Corporation
)
)
Petitioner
)
v.
)
No.
PCB 03-125
)
COUNTY
OF
KANKAKEE, a
body politic and
)
(Third-Party
Pollution Control Facility
Corporate;
KANKAKEE
COUNTY
BOARD;
)
Siting Appeal)
And
WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
)
MERLIN KARLOCK,
)
Petitioner
)
)
v.
)
No. PCB 03-433
COUNTY OF KANKAXEE, a body politic and
)
(Third-Party
Pollutioll
Control Facility
Corporate;
KANKAKEE
COUNTY BOARD;
)
Siting Appeal)
And WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
)
MICHAEL WATSON,
)
Petitioner
)
)
V.
)
No.
PCB 03-134
COUNTY OF
KANKAKEE, a
bodypolitic and
)
(Third-Party Polintion Control Facility
Corporate;
KA.NKAKEE
COUNTY BOARD;
)
Siting Appeal)
And
WASTE
MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
KEITH RUNYON,
)
Petitioner
)
)
v.
)
No.
PCB 03-135
COUNTY
OF
KANKAKEE, a
body politic and
)
(Third-Party Pollution Control Facility
Corporate;
KANKAKEE
COUNTY
BOARD;
)
Siting Appeal)
And
WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
Respondent
)
EXHIBIT
I_I
04/25/2003
i3:46
FAX
8159333397
KENNETH A LESHEN
L~o11
)
WASTE
MANAGEMENT OF ILLINOIS
)
INC.,
Petitioner
)
)
v.
)
No. PCB 03-144
)
(Pollution Control Facility
COUNTY OF
KANKAKEE,
)
Siting Appeal Consolidated)
)
Respondent
)
RESPONSE
TOWASTE MANAGEMENT OFILLLNOIsJNç,’s
—
OBJECTIONS TO THE CITY’S LIST
OF DEPONENTS
Now comes
the City of Kankakee,
(hereinafter, the
“City”), by
and through its
attorneys,
Assistant City Attorneys
L. Patrick Power
and Kenneth A.
Leshen,
and responding to
the
Waste
Management of Illinois, Inc.,
(hereinafler,
the
“WMII”)
objections to
its
list
of deponents,
states
as follows:
1.
The City alleges, on information
and
belief
and
based on
the documents produced
in
response to
the
City’s
discovery requests
that there have
been ongoing
and
massive pre-fihing
and
post-filing
contacts
between
these
attorneys.
Waste
Management
of
Illinois,
Inc
(hereinafter
“WMII”),
disclosed
in it~answers to
the City’s
interrogatories that
its attorney and
agent.
Donald Moran,
after
the
end of the hearing
and
prior to the decision,
communicated with
Charles
Heiston
and
Elizabeth
Harvey
concerning
the
stibstance
of
the
hearing.
Each of these
attorneys,
pursuant
to
their
own
declarations
and
the
declarations
of Edward
D.
Smith,
State’s
Attorney of Kan.kakee, represented
separate and distinct
entities
Donald
Moran’s
importuning
of the County can
only be viewed as
an improper ex
parte
effort
to
influence the decision-maker
through communications with
its
agent,
Elizabeth
l-larvey
Rather than acting
as
advocates
and
advisors
in a legal
forum,
these attorneys
acted
as
negotiating agents
for their respective
clients
The
fact
that
they
can
each
put
the
initials
J.D
behind
their
names
does
not
allow
them
to
conceal their doings.
04/25/2003
13:46
FAX 8159333397
KENNETH A LESHEN
L~012
2.
The
City
acknowledges
that the hea~ngOfficer has precluded inquiry into the
legislative
process
concerning
the
adoption
of
the
County’s
Solid
Waster
Plan
However,
Hearing
officer Halloran
did
not
ask
the
parties
or the
Board to
put
on
blinders
and
ignore
the
fact
that
the
County’s
Solid
Waste
Management
Plan
designates
WMII
as
the
sote
provider,
a
fact
buttressed
in
its
relevance
and
as
evidence
of
pm-judgment
by
the
fact
that
documents
produced
trumpet
the
fact that
WMII committed
to
the
County
that
it
would
fund
the
defense of
the
Plan in
any
litigation
concerning its legitimacy
3.
The salient facts
are
as follows:
a.
The
County
and
WMII agreed years ago
that
the current
County
waste
facility
was
nearing its capacity, a fact
evidenced by
much correspondence
between
the
County
and WMII.
b.
The
County,
recognizing
its
need
and the financial
benefits that
would
inure to
it,
then designated WMJI
as
the sole provider that
would be able to operate a landfill
in
Kankakee
County
c.
The
only
way the
County would
be
able
to
satisfy
it needs,
according
to
its
own
plan
and
prejudgment,
was to
approve the siting
proposal of
WIvllI.
The City of
Kankakee
was,
at the
same
time as
this
prejudgment
occurred, seeking to
site
its
own
facility,
a
fact
that
made the
County’s
complicity
with
W~vfIJ
all
the
more
urgent.
d.
WMII,
through
Dale Hoekstra, Division Vice-President, Illinois Landfill Division,
in
correspondence
January
7,
2002,
addressed
to
Karl
Kruse
and
copied
to
the
Kankakee County
Board Members, Lee
Addleman,
Chuck Helsten, Ed Smith, and
Dennis
Wilt
(emphasis
added) pledge the resources of WMII to provide a full and
complete defense for the County
in the event of a legal challenge to the Plan.
e.
Dennis Wilt prepared and spearheaded
WMII’s proposed host agreement with the
County
and participated in negotiations with Chuck Heisten and representatives of
the County.
4.
The issue is
whether the communications
betwccn
the parties amongst themselves
and with
the
applicant,
show
or
tend
to
show
prejudgment
and
fundamental
unfairness
It
is
disenguous
in
the
extreme
for
WMII
to
try
to
hide
its
complicity
with
the
County
in
the
prejudgment
of
its
siting
application
by
claiming
that
depositions
of
its
attorneys
somehow
04/25/2003
13:-iG
FAX
8159333397
KENNETH
A
LESHEN
~013
d~sru-~JtSthese proceedings.
These ace
iSSUCS
that
perhaps would have been best considered by
\VMiI
prior to
its improper
conduct.
5.
According
to
WMII’s
theory,
each
of
the
attorneys who
engaged
in
improper
communications
outside of the
hearing
process would
be protected
from
cross-examination,
the
great
engine of
tnith
seeking
in
the
adversarial
process.
Shielding
improper
conduct,
if
any
occurred, would indeed lower the standards of the legal profession.
6.
WMII objects
to
the City identification of Lee Addleman as
a deponent,
arguing
that
this
identification
was
made solely
to
harass.
WMII’s
assertion
that the
City’s
action
was
made
solely
to
harass
conveniently
avoids
the
applicable
rules.
It is
incumbent
on
WMII
to
provide
a
physician’s
affidavit
substantiating
Mr.
Addlernan’s
unavailability
rather
than
rancorously attacking
the City.
7.
The
WMII
concludes
its
argument
with
the
catchall
phrase
that
the
City
is
engaged in
a fishing expedition.
If the City
is
fishing,
it is
only because the
County and
WMII
have
filled
the
pond
with
such
a
rich
array
of
fish.
The
issue
in
discovery
is
whether
the
discovery regarding
pre-fihing contacts
may be
probative of prejudgment
of adjudicative
facts,
which
is
an
element
to
be
considered
in
assessing
fundamental
fairness
See
County
of
Kanjcakee
v.
City
~f
Karikakee.
Town
and
Country Utilities.
inc. and
Karikakee
Regional
Landfill. L.L.C.,
PCB
03-31, PCB 03-33, PCB,
03-35
(cons.) (Jan. 23,
2003).
8.
Lastly,
WMII
argues
that
the
City
has
identified
an
excessive
number
of
deponents
and
impliedly
queries
whether the depositions
can be timely conducted.
The truncated
time limits
are solely the responsibility of WMII.
The inconvenience to
attorneys
and deponenis
is minimal as compared to the rights
of the
citizenry
of Kankakee
County
to
have
a full
and
complete
airing of the
issues presented to the Board
for its consideration and decision.
9.
The
City
adopts
and
ratifies
in
full
Petitioner
Michael
Watson’s
Response
to
WMII’s Objections to Watson’s Request
for Depositions.
KENNETH A LESSEN
L~014
1Vherefore,
the City of
Knrikakee
respectfully requests the
UPCB
Hearing
officer to
overrule the
Wivill’s
objections, so
wrongfully brought,
and
require
the County
to
produce
Respectfully submitted,
Prepared by:
L. Patrick Power and
Kenneth
A. Leshen, Assistant
City Attorneys
956
N.
Fifth
Kankakee,
IL 60901
937-
6937
Reg, No.
0312.7454
Reg. No.
2244357
Leshen, Assistant City
Attorneys
04/25/2003 13:47
FAX 8159333397
_____
the requested persons for their depositions.
The City of Kankakee
By its
attorneys, L. Patrick
Power
and
Kenneth
A.
04/25/90031347
FAX 8159333397
KENNETH A LESHEN
~015
BEFORE
THE
ILLINOIS
POLLUTiON
CONTROL
BOARD
THE
CITY OF
KANKAKEE,
an Illinois
)
Municipal Corporation
)
)
Petitioner
)
V.
)
No.
PCB 03-125
)
COUNTY OF
KANKAK~E,
a body politic
and
)
(Third-Party Pollution Control Facility
Corporate; KANKAKEE
COUNTY BOARD;
)
Siting
Appeal)
And WASTE
MANAGEMENT OF ILLINOIS,
)
INC.,
Respondent
)
)
MERLIN KARLOCK,
)
Petitioner
)
)
v.
)
No.
PCB 03-133
COUNTY OF KANKAKEE,
a body politic and
)
(Third-Party Pollution Control Facility
Corporate;
KANKAKEECOUNTY
BOARD;
)
Siting Appeal)
And
WASTE
MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
)
MICHAEL
WATSON,
)
Petitioner
)
)
V.
)
No.
PCB 03-134
COUNTY OF
KANKAKEE,
a body politic and
)
(Third-Party Pollution Control Facility
Corporate;
KANKAKEE
COUNTY BOARD;
)
Siting Appeal)
And WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
KEITH RUNYON,
)
Petitioner
)
)
No. PCB 03-135
COUNTY OF KANKAKEE, a body politic and
)
(Third-Party Pollution Control Facility
Corporate;
KANKAKEE
COUNTY
BOARD;
)
Siting Appeal)
And WASTE MANAGEMENT OF ILLINOIS~
)
NC.,
Respondent
)
-
04/25/2003
13:47
FAX 8159333397
____
KENNETH A LESHEN
~016
)
WASTE MM~AGEMENTOF ILLINOIS
)
INC.,
Petitioner
)
)
V.
)
No.
PCB 03-144
)
(Pollution Control
Facility
COUNTY OF
KANKAKEE,
)
SitingAppeal Consolidated)
)
Respondent
)
RESPONSE
TO THE COUNTY OF
KANKAKEE’S
OBi~TIONSTO THE
CITY’S LIST
OF DEPONENT$
Now comes
the
City of Kankakee,
(hereinafter,
the 4’City”), by
and through
its attorneys,
Assistant City Attorneys L.
Patrick
Power and Kenneth A. Leshen,
and responding to
the County
of
Kankakce’s
(hereinafter, the “County”) objections to its list of deponents, states as follows:
1.
The
County
brandishes the concept
of
attorney-client privilege
in
an
effort to
thwart
the truth seeking process.
Consequently,
it is
first
important
to
delineate which attorney
representedwhich entity or
persons.
-
2.
The
record of proceedings
of the
siting
hearing,
Volume
I, pages
2
and
3,
recite
the
appearances
of counsel.
(See
attached
hereto
and incorporated herein,
pages
2
and three of
Volume
I).
Charles Heistori of Hinshaw and
Culbertson represented the
Kankakee County Staff.
Elizabeth
Harvey,
accompanied by Edward
d.
Smith,
the
duly
elected
State’s
Attorney
of
Kankakee County,
represented the
Karikakee
County
Regional
Planning
Commission
and
the
Kankakee County
Board.
3.
As a result of the foregoing, any communications between Charles J-Ietston arid
any other attorneys
from
the
firm
of Flinshaw and Culbertson on the one hand and Edward D.
Smith, duly elected
State’s Attorney of Kankakee County and Elizabeth Harvey on
the other
hand, are not privileged.
—
01/25/2003
13:47 FAX 8159333397
KENNETH A LESHEN
t~017
4.
The City alleges,
on
information and beLief and
based on
the
documents
produced
in
response to the City’s discovery requests
that
there have been
ongoing and massive pre-filing
and
post-filing
contacts
between
these
attorneys.
Waste
Management
of
Illinois,
Inc.
(hereinafter “WMII”), disclosed in
its
answers to
the
City’s
interrogatories that its attorney
and
agent, Donald Moran, afler
the
end of
the hearing and prior
to the decision,
communicated
with
Charles Heiston
and Elizabeth
Harvey concerning the substance
of the
hearing.
Each of these
attorneys,
pursuant
to
their
own declarations
and the
declarations
of Edward
D
Smith,
State’s
A.ttorney of Kankakee, represented separate
and
distinct
entities.
Donald
Moran’s
importuning
of the
County can
only he
viewed
as an improper
ex parte effort
to
influence
the
decision-maker
through communications
with its
agent, Elizabeth Harvey.
Rather
than acting as
advocates and
advisors in a legal
forum, these attorneys
acted as negotiating
agents for their respective
clients.
The
fact
that they
can
each
put
the
initials
JD.
behind
their names
does
not
allow
them
to
conceal their doings.
5.
The
City acknowledges
that
the
hearing
Officer
has
precluded
inquiry into the
legislative
process
concerning
the
adoption
of
the
County’s
Solid
Waster
Plan.
However,
Hearing officer Halloran did not ask the parties
or the
Board to put
on
blinders
and
ignore the
fact
that
the County’s
Solid Waste
Management
Plan
designates
VTMII
as
the sole
provider,
a
fact
buttressed
in
its
relevance
and
as evidence of pre-judgment
by
the
fact
that
documents
produced trumpet the
fact
that WMII committed to
the
County that
it
would
fund
the
defense of
the Plan in any litigation concerning its legitimacy.
6
The salient facts
are as follows:
a.
The
County
and
WMII
agreed. years ago that the current County waste
facility
was
nearing
its
capacity, a
fact
evidenced
by
much
correspondence
between
the
County and WMII.
b.
The County, recognizing
its
need and the financial
benefits that would inure to
it,
then designated V/MU as
the sole provider that
would be
able to operate a landfill
in
Kankakec County.
—
04/25r200313:47FAX
8159333397
KENNETH A LESHEN
L~o1S
c.
The only way the
County
would
be able to satisfy
it needs, according to
its own
plan and prejudgment,
was to approve the
siting
proposal of WMIJ.
The City of
Karikakee
was,
at
the
same time
as this prejudgment
occurred, seeking
to
site its
own
facility,
a
fact
that
made
the
County’s
complicity
with
V/Mu
all
the
more
urgent.
7.
Contrary to
the
assertions ofthe County, the
issue is not whether Smith, Gorski,
Heiston
arid Harvey
were
the
applicant.
The
issue
is
whether the
communications
between
the
parties
amongst
themselves
and
with
the
applicant,
show
or
tend
to
show
prejudgment
and
fundamental unfairness
-
S.
The
Cormty
alleges
that
depositions
of
these
attorneys
would
somehow
be
disruptive of the
adversarial process
and lower
the
standards ofthe
legal profession.
According
to this
theory,
each
of the
attorneys who
engaged
in
improper cx
parte
cornmu.nications outside
of
the
hearing
process
would
be
protected
from
cross-examination,
the
great
engine
of
truth
seeking
in
the
adversarial
process.
Shielding
improper
conduct, if any occurred, would
indeed
lower the standards of the legal profession.
9.
The
County
concludes
its
argument
with
the
catchall
phrase
that
the
City
is
engaged
in a
fishing
expedition.
If the
City is
fishing,
it is
only because the
County
and V/MIT
have
filled
the
pond with
such
a rich
array
of
fish.
The
issue
in
discovery
is
whether
the
discovery regarding
pre-fi.ling
contacts
may be probative
of
prejudgment
of
adjudicative
facts,
which
is
an
element
to
be
considered
in
assessing
fundamental
fairness.
See
Counj~yof
Kanka.kee
v,
City
of
akee,
Town
and
Country
Utilities,
Inc.
and
Kanakee Regional
Landfill,
L.L.C..
PCB
03-3 1, PCB 03-33,
PCB,
03-35
(cons.)
(Jan. 23, 2003).
10.
The
City
adopts
and
ratifies
in
full
Petitioner Michael Watson’s Response to
County of Kan.kakee’s Objections to
Watson’s
Request for Depositions.
04/25/2003
13:47
F4X 8159333397
____
KENNETH
.4
LESHEN
~019
Wherefore, the
City
of
Kankakee
respectfully
requests
the IPCB
Ueuring
officer
to
overrule
the
County’s
objections,
so
wrongfully
brought,
and
require
the
County
to
produce the
requiested persons
for their depositions.
Respectfully submitted,
The City of
Kankakee
By its attorneys, L. Patrick
Power and
Kenneth
A.
Leshen, Assistant City
Attorneys
Prepared by:
L.
PatrickPower
and
Kenneth
A.
Leshen, Assistant
City Attorneys
956
N. Fifth
Kankakee,
IL 60901
937- 6937
Reg.
No. 03127454
Reg. No.
2244357
04~25’200313:47 FAX_8~~33397
_____
KENNETH
A
LESHEN
L~020
1
KANKAKEE COUNTY REGIONAL PLANNING COMMISSIONERS
2
Mr.
George Washington,
Jr.
Ms.
Loretto Cowhig
3
M~.Craig
B~~StOfl
M~.Michael spilsbury
4
M~.James ~
Mr.
Ralph
Paarlberg
5
Mr.
Curt Saindon
Mr. Dennis Peters
6
Mr.
Mike Finnegan
Mr.
John Meyer
7
Mr.
David Bergdahl
Mr.
Barry Jaffe
8
KANKAKEE COUNTY. BOARD_MEMBERS
9
Mr.
Wes
wiseman
10
Mr.
Duane Bertrand
Me..
Red Marcotte
11
Mr. LeonardMartin
Ms.
Ann Bernard
12
M~.Leo Whitten
Mr. George Hoffman
13
Mr.
Bill olthoff
Mr.
Sam Nicholos
14
Ms.
Karen Hertzberger
15
APPEARANCES:
16
MR.
DONALD MORAN,
Appeared on behalf of Waste Management,
17
Applicant;
18
MR.
CHARLES HELSTEN,
Appeared on behalf of the Kankakee County Staff;
19
MS.
ELIZABETH
S.
HARVEY,
20
Appeared
on
behalf
of
the
Kankakee
County
Regional
Planning Commission
and the Kankakee
21
County Board;
22
2
I
EUNICE SACHS & ASSOCIATES
(708)
709-0500
01/25/2003
13:17
FAX_8159333397
~_~,..~LNNETH
.4 LESHEN
L~021
1
APPEARANCES
CONTINUED:
2
MR.
EDWARD SMITH,
Kankakee County state’s Attorney,
3
Appeared on behalf of the Kankakee County
Regional Planning Commission;
4
MR.
L.
PATRICK POWER,
5
Appeared
on
behalf
of the City of
Kankakee;
6
MR.
GEORGE MUELLER,
Appeared on behalf of Mr.
Merlin Karlock;
7
MS.
JENNIFER
3.
SACKETT
POHLENZ,
8
Appeared on behalf Mr.
Michael Watson;
9
MR.
DAVID
FLYNN,
Appeared
on
behalf
of
M~. Michael
Watson;
10
MR.
KENNETH
BLEYER,
11
Appeared on behalf of Mr.
Richard Murray;
12
MR.
LEE MILK, Individually;
13
MS.
PATRICIA O’DELL,
Individually;
14
MR.
KEITH RUNYON,
Individually.
15
16
17
18
19
20
21
22
3
EUNICE SACHS & ASSOCIATES
(708)
709-0500
O~/2s/2~c~13:45
FAX 8159333397
KENNETH A LESHEN
L~001
KENNETH
A1
LESH EN,
P.C.
ATTORNEYAT LAW
One Dearborn Square, Suite 550
~c~iv~
Kankakee,
Illinois
60901-3927
CLERK’S
OF~C~
Telephone
P~PR
~c~W?14’F
(815) 933-3385
(815)3~397
STATE OF
ILLINOIS
Pollutjo,~Control Boar
FACSIMILE
TRANSNITTAL
COVER
LETTER
April
25,
2003
CLERK’S
00
Please
deliver
the
following
pages
to:
APR ~
NAME
OF
RECIPIENT:
See
following
service
list
STATEOW~~
Pollution
control
soar
FROM:
Kenneth
A.
Leshen
RE:
City
of
Kankakee
vs.
County of Kankake~,
et
al.
pc~
03—125,
et
al,
THERE WILL BE
(21)
PAGES I1~ICLUDINGTHIS PAGE
The lnforrriatlon
contained
ri this fa~imiIe
is cunridenbal and
may aI~ocontain priv~kgedattorney-client
Information
or workprodu~
The in1omiati~n
is intended only
ror
the
use
oFthe individual or ~riUtyeo whith It Is
addressed.
If you are riot the intand~
redpient,
or th~
amployata or
agent responsible to
deliver
It to the Intend~1
recipient, you are hereby notified
that
sny uae~dissemination, dlstrlbut~n
or
copying oFthlsc
nrnunicabon
ab~iotiy..prohibil~d.
If you have re~elvedthis fa~imlIe
In
error, please notify
us
Immediately
by telephone,
and return ~
originalm~ssa~
~
us
at
tl~e
address
listed
above
via the Unlt~Stetes Postel
~rvice.
Thank
You.
