RECEIVED
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
CITY OF KANKAKEE,
)
PCB 03-125
)
(Third-Party Pollution Coi~WcH
~~ii1~3O3
Petitioner,
)
Siting Appeal)
STATE OF ILLINOIS
Pollution
Control
Board
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
MERLIN KARLOCK,
)
PCB 03-133
)
(Third-Party Pollution Control Facility
Petitioner,
)
Siting Appeal)
)
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
MICHAEL WATSON,
)
PCB 03-134
)
(Third-Party Pollution Control Facility
Petitioner,
)
Siting Appeal)
)
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
KEITH RUNYON,
)
PCB 03-135
)
(Third-Party Pollution Control Facility
Petitioner,
)
Siting Appeal)
)
vs.
)
)
COUNTY OF KANKAKEE,
COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
1
OBJECTION TO DEPOSITIONS
NOW
COMES
The County of Kankakee, by
and through
its
Attorneys,
H1NSHAW
&
CULBERTSON,
and
files
its
Objections
to
the
list
of Deponents
proposed
by
the
City
of
Kankakee, and in support thereof, states as follows:’
1.
On March 22,
2003
the
City of Kankakee served
its
list
of deponents
(attached
hereto as Exhibit A).
Included in the list are State’s Attorney for County of Kankakee, Edward
D.
Smith,
Assistant
State’s
Attorney
Brenda
Gorski
and
Special
Assistant
State’s
Attorney
Charles Heisten, and Elizabeth Harvey.
2.
Upon receipt of a
previous
Notice of Deposition of State’s Attorney
Smith the
undersigned
attorney
on
behalf
of
Kankakee
County
spoke
with
counsel
for
the
City,
Mr.
Kenneth Leschen,
to
determine the purpose of the proposed deposition.
Attorney Leschen, on
behalf ofthe City, only offered
an explanation that he
wanted to
inquire.into the passage ofthe
Kankakee
County
Solid
Waste
Management
Plan
which
designates
that
only
the
current
Kankakee
County
landfill
shall
be
expanded,
which
is
operated
by
Waste
Management
of
Illinois.
It
is Mr.
Leschen’s position that somehow the passing of the Solid•Waste Management
Plan
is
relevant
to
an
alleged pre-adjudication
of the merits
of application
by
the Kankakee
County Board.
3.
The
depositions
of the
State’s Attorneys
should
not
be
allowed as they
are
an
obvious attempt at harassment and seek irrelevant inadmissible evidence.
4.
The Hearing Officer in its
April
17,
2003
ruling held that
discovery
shall not be
allowed regarding passage ofa solid waste management plan or its amendments.
5.
It
is
well
established
that
evidence
concerning
the
passage
of a
Solid
Waste
Management Plan is not admissible in a Section 39.2 hearing, and that discovery on how the Plan
Mr. Watson agreed to accept the production response of the
County of Kankakee by
receiving
the
documents by
overnight mail on
April
22,
2003.
Therefore, the
County agreed to service of Mr. Watson’s
deponent list
on April 23, 2003
and the County will file its objections to that list upon
its receipt.
2
was passed is not
allowed.
Residents Against Polluted Environment v.
County ofLaSalle,
PCB
26-243, pg.
2 (1996).
6.
Furthermore,
the
Illinois
Pollution
Control
Board
has
already
ruled
that
it
is
improper
to
seek
a
deposition
of a
State’s
Attorney,
even
if
that
State’s
Attorney voices
an
opinion on
an
application.
ESG
Watts
Incorporated
v.
Sangamon
County Board,
Respondent,
PCB
98-2
(December
3,
1998).
The only issue
is the alleged bias or conflict of interest of the
decision maker or hearing officer, not their advisors.
Id.
7.
If the
purpose
of the
attorney
depositions
is
to
determine
whether or
not
the
Attorneys had any non-privileged communications with the decision-makers after the application
was
filed,
such
can
be
accomplished
by
written
interrogatory
which
the
City
has
already
propounded.
Attorney Leschen has indicated that perhaps there may be
some
evidence of pre-
adjudication ofthe merits
by the decision maker before the application
was filed.
First,
this
is
complete conjecture
and
there
is
absolutely no
evidence of such pre-adjudication.
Second,
the
State’s
Attorneys
Smith,
Gorski,
Helsten,
and
Harvey,
were
not
the
applicant
at
issue,
and
therefore
even if they had
any communications with the decision-makers, before the application
was filed, such is irrelevant to the instant proceeding.
8.
Another obvious basis for quashing the proposed depositions
is the attorney-client
privilege.
“Courts have looked with
disfavor on the practice ofdeposing
opposing counsel, and
find
that
such
practice is
disruptive
of the
adversarial process
and
lowers
the
standards of the
legal profession.”
Citizens ofRegional Landfill
v.
County Board of Whiteside
County and Waste
Management of Illinois Inc.,
PCB 92-156(1993).
Not
only is
there a
concern of the right
of a
client
to
have
unfettered
representation
by
his
attorney,
but
“experience
teaches
that
countenancing unbridled depositions of attorneys constitutes an invitation to
delay, disruption of
the
case, harassment, and perhaps disqualification of the attorney to
be deposed.”
Id.
The IPCB
has
acknowledged that “it
is
appropriate to
require the party seeking to
depose
an
attorney to
3
establish a legitimate basis for the request and demonstrate that the deposition will not
otherwise
prove only disruptive or burdensome.”
Id.
(emphasis added).
9.
The
Illinois
Pollution
Control
Board
has held
that
the
deposition
of opposing
counsel should only be allowed when:
“(1) no other means exist to
obtain the information than to
depose
opposing counsel;
(2) the information sought is relevant and non-privileged;
and
(3) the
information is
crucial to
the preparation ofthe case.”
Id.
10.
In this case the City of Kankakee has provided none of these three elements.
If
the purpose
is
to determine the nature of the communications of the Applicant with
the
State’s
Attorney
and then determine whether the
State’s Attorney relayed
these communications
to
the
County
Board,
such
can,
and
has
been,
addressed
by
Kankakee
County’s
responses
to
interrogatories.
(There were
no
such communications).
Second,
there has been no
attempt
by
the
City
to
show
that
the
information
sought
is
non-privileged.
Third,
there
has
been
no
explanation as to how this deposition
is
crucial to the City’s case.
11.
The remaining depositions requested by the City should
also be
quashed because
there is no good faith basis for taking the depositions.
Illinois
courts have held that “A plaintiff
must possess
a minimal
level ofinformation indicating
defendant is liable to him to
commence
his
litigation
and force the dependant to undergo
discovery.
Otherwise Plaintiff is
engaged in a
‘fishing expedition’
a recognized form oflitigation abuse.”
Yuretich
v. Sole, 259
Ii. App.
3d 311,
631
NE 2d 767, 772 (4th Dist.
1993).
“It is no justification that a fishing expedition might result
in
worthwhile
information;
the
possibility
of
success
must
be
sufficient
to
justify
the
inconvenience or expense to
the opponent.”
Id
The City has provided
no
explanation for the
proposed depositions other than an
attempt
to inquire into how the solid waste management
plan
was passed, which this
Hearing Officer
and
the IPCB
has
already held is
inadmissible and
not
discoverable.
4
12.
It is anticipated that the City of Kankakee might argue that in a recent PCB action
involving the application of Town &
Country, Inc.
to site a landfill in the City of Kankakee, the
County ofKankakee conducted discovery ofthe hearing officer and the Mayor of the City about
prefiling contacts with the decision makers.
That discovery is distinguished from the depositions
requested in
this
case because in
Town
&
Country
there was evidence
of a
specific
and
direct
communication that the applicant had in
front of the decision makers a mere two
weeks before
the application
was
filed wherein the applicant presented
evidence on the
Section 39.2
criteria
and impeached potential
objectors witnesses.
There is
no
evidence of such a communication in
this case and therefore no reason to conduct this fishing expedition.
WHEREFORE,
the
County of Kankakee prays that
the
request of the
City
to
take the
Depositions ofthose individuals identified on Exhibit A, be denied.
Dated:
April 23, 2003
Respectfully Submitted,
On behalfof the COUNTY OF
KANKAKEE
By: Hinshaw &
Culbertson
tharleØ’. Helsten
Richard S. Porter
HNSHAW
AND CULBERTSON
100 Park Avenue
P.O.
Box
1389
Rockford, IL 61105-1389
815-490-4900
This document utilized
100
recycled paper products
70358763v1
826549
AFFIDAVIT
OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 ofthe Illinois Code ofCivil
Procedure, hereby under
penalty of perjury
under the
laws of the United
States
of America,
certifies that on April 23, 2003,
a copy ofthe foregoing was served upon:
DorothyM.
Gunn, Clerk
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street, Suite
11-500
Chicago, IL 60601-3218
Attorney George Mueller
501
State Street
Ottawa, IL 61350
(815)
433-4705
~(815)
433-4913 FAX
Donald J. Moran
Pederson & Houpt
161 N. Clark Street, Suite 3100
Chicago, IL 60601-3242
(312) 261-2149
(312) 261-1149 FAX
Elizabeth Harvey, Esq.
Swanson,
Martin & Bell
One IBM Plaza, Suite 2900
330 North Wabash
Chicago, IL
60611
(312) 321-9100
(312) 321-0990 FAX
Kenneth A. Leshen
One Dearborn Square, Suite
550
Kankakee, IL 60901
(815) 933-3385
(815)
933-3397 FAX
L. Patrick Power
956 North Fifth Avenue
Kankakee, IL 60901
(815)
937-6937
(815) 937-0056 FAX
Keith Runyon
1165 Plum Creek Drive
Bourbonnais, IL 60914
(815)
937-9838
(815)
937-9164 FAX
Jennifer J. Sackett Pohlenz
175 W. Jackson Boulevard
Suite 1600
Chicago, IL 60604
(312) 540-7540
(312) 540-0578 FAX
Kenneth A. Bleyer
923 W.
Gordon Terrace #3
Chicago, IL 606 13-2013
Patricia O’Dell
1242 Arrowhead Drive
Bourbonnais, IL 60914
Daniel J. Hartweg
175 W. Jackson, Suite
1600
Chicago, IL 60604
(312) 540-7000
(312) 540-0578 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 faxing and by depositing a copy thereof, enclosed in an
envelope in the United States Mail at
Rockford,, Illinois, proper postage prepaid, before the hour of5:00 P.M.,
addressed as above
Firm No.
695
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box
1389
Rockford, Illinois 61101
(815) 490-4900
70354265v1
813053
Apr22
03
OI~I7p
L.
PatricK
rower
)
WASTE MANAGEMENT OF ILLINOIS
)
INC.,
Petitioner
)
)
v.
)
INo.
PCS 03-J44
)
(Pollution Contro’
Facility
COlJNTY
OF 1(ANK4KFl~,
)
Siting Appeal Consolidated)
)
Respondent
)
CITY OF KANK&KEE’S LIST OF DEPONENTS
Now
comes
City ofKankakee,
a Municipal
Corporation, (hereinafter
“City”),
by
and
through its attorneys,
L.
Patrick Power
and
Kenneth A. Lcshcn, Assistant City
Attorneys, and list
thcrdeponents,
as
follows:
Donald
Moran
Dennis Wilt
Dale Hockstra
Chris Rubak
Karl Krusc
Chuck Helston
Edward Smith
Chris
Berger
Elizabeth Harvey
Mike VanMill
Effraini Gill
Pam Lee
Mike Quigicy
Doug Graves
~rend~
Gnr~ki
George Washington, Jr.
Elmer Wilson
Leo Whitten
Sharkey Martin
Wes Wisenian
Chris Richardsen,
former Secretaxy ofKarl
Kn.ise
Juanita Baker,
Karl Kruse’s Administrative Assistant
Respectfully submitted,
The City niKank
cc
By:
_________________________________
Attorney
for
City ofK
cc
?rcpared
by:
L.
Patrick Power #2244357
Corporaic Counsel
950
North
Fifth
Avt~.
Kankakee,
IL
60901
(&15)
937-6937
EXHIBIT
IA
Apr
?2
03
Ol~lBp
L.
Patrick
rower
?~FFIDAVIT
OF
SERVICE
The undersigned, pursuant to the provisions ofScction 1-109 ol’ the Illinois Code
of Civil
Procedure, hcreby under penalty ofperjury
uiidcr
the
laws of thc United States of
America,
certifies
that on
April
22,2003, a copy
of the
foregoing City of
Kankakee’s
LIST OF DEPONENTS was
served
upon:
Dorothy M.
(.Iunn, Clerk
flhinor~
Pollution Cor~trol
Boord
James Thompson
Center
100 W. Randolph St., Suite 11-500
Cliieagu,
IL
60601-3218
Charles F. Heisten
Attorney at Law
P.O.
Box
1389
Rockford, IL
61105-1389
Fax: (815) 963-9989
Kenneth Leshen
One Dearborn Square,
Suite 550
Kankakee,
IL
60901
(815)933-3385
(815)933-3397
Fax
George Mueller
Attorney at Law
501
State
Street
Ottawa,
IL
61350
(815)
261-2149
(815)
433-4913
Fax
Donald
J.
Moran
Aitorrmy ~r
1.aw
161
N.
Clark, Suite
3100
Chicago,
IL 60601
(312) 261-2119
(3 12) 261-I 149 Fax
Eliiizbctli Harvcy.
Eaq.
OneIBM Plaza,
Suite 2900
330
N. Wabash
Chicago,
IL
60611
(312) 321-9100
(312) 321-0990
Fax
Jennifer
I. Sackett Pohlenz,
Attorney at Law
175
W.
Jackson Blvd., Suite 1600
Chicago,
IL 60604
(312)540-7540
(312) 540-0578 Fax
Ldand Milk
6903
S.
Roule
45-52
Chebanse,
IL
60922
Patricia O’Dell
1242 Arruwhcaii Di.
Bourbonnais, IL 60914
Keith Runyon
1165
Plum Creek Dr. #D
k3rad
Halforan, Heanng Officer
Bourbonnais, IL 60914
Illinois Pollution Control Board
(815) 937-9838
100W. Randolph St., Suite 11-500
(815)
937-9164
Fax
Chicago, IL
60601-3218
Fax: (312) 814-3669
By
depositing
a copy
thereof,
enclosed
in
an envelope
in the United
States
Mail
at Kankakee,
Illinois,
proper
postage
prcpaid,
before
the
hour
of
6:00
p.m.,
on
22N1)
day
of
April
2003,
addressed as
above.
________
day of
April
2003.
Koni~cIh~
I_c~~~n
A~’sianI
(iiy
Aitomty
One
IJcDrhum Squarc, Su~c
550
Kanki~kcc,IL
60901
(8~5)
933.2385
betore me
this
KunkDkee,IL
60901
(8i.~9370c37
