0198-001
M/.iy
012003
ILLINOIS POLLUTION CONTROL BOARD
STATE
OFILLINOIS
Io,’~CQfltf0/ Eoard
CITY OF
KANKAKEE,
)
)
PCBO3-125
Petitioner,
)
PCB
03-1 33
)
PCB
03-1 34
v.
)
PCBO3-135
)
(consolidated)
COUNTY OF KANKAKEE, COUNTY
)
(Pollution Control Facility Siting Appeals)
BOARD
OF KANKAKEE, and WASTE
)
MANAGEMENT
OF
ILLINOIS,
INC.
)
)
Respondents.
)
NOTICE
OF
FILING
To:
(See attached
Service List.)
PLEASE TAKE NOTICE that on this
1st day of May 2003, the following County’s
Motion to
Bar,
directed
to the hearing officer, was filed with the
Illinois Pollution Control
Board,
attached and herewith
served
upon you.
COUNTY OF
KANKAKEE
and
COUNTY BOARD
OF
KANKAKEE
By: ~
One of Its Attorney
Elizabeth
S.
Harvey
SWANSON, MARTIN & BELL
One IBM
Plaza, Suite 2900
330 North Wabash Avenue
Chicago,
Illinois
60611
Telephone:
(312) 321-9100
Firm I.D.
No. 29558
CERTIFICATE OF SERVICE
I,
the
undersigned,
state
that
I
served
a
copy of the
described
document
in
the
above-
captioned matter via hand-delivery to the
hearing officer and via facsimile/U.S. Mail to all
persons
listed on the service list on May 1,
2003.
iizabet~’J.
Harv~y
x
Under penalties
as provided
by
law
pursuant to 735 ILCS
5/1 -1 09,
I certify
that the statements set forth
herein
are true and correct.
SERVICE LIST
KANKAKEE
COUNTY/WMII LANDFILL SITING
Bradley P.
Halloran
Hearing Officer
Illinois Pollution Control
Board
1~0
West Randolph Street
Sijite
11-500
Chicago,
IL 60601
C~arIesF. Helsten
Richard Porter
Hinshaw &
Culbertson
100 Park Avenue
P.O. Box 1389
Rockford,
IL 61105
Kenneth A.
Leshen
One Dearborn Square
Suite 550
Kankakee,
IL 60901
Donald Moran
Pedersen
& Houpt
161
North Clark Street
Suite 3100
Chicago, IL 60601-3242
George Mueller
George Mueller,
P.C.
501
State Street
Ottawa,
IL 61350
L. Patrick Power
956 North Fifth Avenue
Kankakee, IL
60901
Jennifer J. Sackett Pohlenz
Querry & Harrow, Ltd.
175 West Jackson
Boulevard
Suite 1600
Chicago, IL
60604
Keith Runyon
165 Plum Creek Drive
Bourbonnais, IL 60914
Kenneth A.
Bleyer
Attorney at Law
923 West Gordon Terrace, #3
Chicago,
IL 60613-2013
Leland
Milk
6903 5.
Route 45-52
Chebanse,
IL 60922-5153
Patricia O’Dell
1242 Arrowhead Drive
Bourbonnais,
IL 60914
CLERK’S OFFICE
0198-001
MAY
o
i
2003
STATE OF
ILLINOIS
ILLINOIS POLLUTION CONTROLBOARD
Pollution
Control Board
CITY OFKANKAKEE,
)
PCBO3-125
Petitioner,
)
PCB 03-133
PCB 03-134
v.
)
PCB 03-135
)
(consolidated)
COUNTY OF KANKAKEE, COUNTY
)
(Pollution
Control Facility Siting Appeals)
BOARD
OF KANKAKEE, and WASTE
)
MANAGEMENTOF ILLINOIS,
INC.
)
)
Respondents.
)
MOTION
TO
BAR
Respondent
COUNTY
BOARD
OF
KANKAKEE
(“County”),
by
its
attorneys
Hinshaw &
Culbertson and
Swanson,
Martin
& Bell,
hereby move the
hearing officer to
bar petitioner
MERLIN
KARLOCK
(“Karlock”),
and
any other party, from
calling County
attorneys as witnesses
at hearing.
1.
On
April
29,
2003,
Mr.
Karlock’s attorney
faxed
a
“notice
to
produce at time of
hearing” to the County’s attorneys.
That
notice requests that the
County produce
Brenda
Gorski,
Charles
Heisten,
Edward
Smith,
and
Elizabeth
Harvey,
among
other persons,
at the Board hearing
in
this matter.
(See Exhibit A.)
2.
As
has been previously discussed
in
this
matter,
Mr. Smith
is the
elected State’s
Attorney of Kankakee County, and Ms. Gorski
is
an Assistant State’s Attorney for
Kankakee
County.
Mr.
Heisten
represented
the
County
staff
during
the
local
proceeding on WMII’s siting application, and Ms.
Harvey represented
the County
Board
and the
Regional Planning Commission during
the
local siting
proceeding.
Both
Mr.
Helsten
and
Ms.
Harvey
currently
represent the
County of
Kankakee
and the Kankakee County Board
in
this pending appeal.
3.
Karlock
seeks
to
call
Ms.
Gorski,
Mr.
Smith,
Mr.
Helsten,
and
Ms.
Harvey
as
witnesses
at
the
hearing.
However,
Karlock
has
articulated
no
basis
for
his
request.
Further,
the
notice
to
produce
attorneys
attempts
to
run
an
“end
around” of the
hearing officer’s
prohibition on the depositions of these attorneys.
4.
The
hearing
officer
has
already
upheld
the
County’s
objections
to
petitioners’
request to
depose the
County’s
counsel,
both
orally
during
the
April
24,
2003
status
conference
and
in
his
written
order
of April
30,
2003.
The
Board
has
previously held that depositions of counsel
are to
be allowed
only in
very limited
cases.
Citizens Against Regional Landfill
(CARL)
v.
County Board of Whiteside
County,
PCB
92-1 56 (February 25,
1993).
The Board
has noted that “unbridled
depositions of attorneys
constitutes
an invitation to delay,
disruption of the
case,
harassment and perhaps disqualification of the attorney to
be deposed.”
CARL,
slip
op. at8.
5.
If the
County’s
attorneys
in
this
case
cannot
be
deposed,
it
is
clear that
they
cannot
be
called
as witnesses
at
hearing.
The
reasons that the
Board
and
the
courts greatly
restrict the depositions of attorneys (harassment, delay, disruption,
privilege
issues,
and
possible
disqualification
of
the
attorney)
apply
in
even
greater
force
where
an
opposing
party
seeks
to
call
opposing
counsel
as
an
adverse witness at hearing.
To allow petitioners to call the
County’s attorneys as
adverse
witnesses
could
create
a
media
circus,
endangers
the
attorney-client
privilege,
and
invites
motions
to
disqualify
the
County’s
attorneys,
leaving
the
County
in the position of contemplating whether to retain yet additional counsel.
6.
Additionally,
there
has
been
no
demonstration
of
what relevant
information
the
petitioners
could
elicit
from
the
County’s
attorneys.
Given
the
presumption
against allowing an opposing party to call opposing counsel as a witness,
Karlock
must
articulate
relevant
information
which
can
only
be
obtained
from
that
particular
attorney.
Petitioners
have
been
unable
to
do
so
in
the
context
of
deposing the
County’s
attorneys,
and
they cannot
do
so
in
the
context of calling
2
those attorneys as witnesses
at hearing.
7.
Petitioners
seem
to
have
lost
sight of the
relevant
inquiry
into
the fundamental
fairness of a
local siting proceeding.
The only issue
is the alleged
bias or conflict
of interest of the decisionmakers,
not of their advisors.
ESG Watts Incorporated
v.
Sangamon County Board,
PCB 98-2
(December 3,
1998)(also
ruling
that it
is
improper to
seek the deposition of a
state’s attorney,
even
if that state’s
attorney
had
voiced
an
opinion
on
the
application).
The
County’s
attorneys
were
not
decisionmakers---they were, at most, advisors to the decisionmakers.
8.
Two of the
named
attorneys
were
not
even
advisors to
the
decisionmakers
on
this application.
Ms.
Gorski
did
not appear on behalf of the
County
Board
or the
Regional
Planning
Commission
(RPC)
during
the
proceeding,
and
Mr.
Helsten
appeared on
behalf of the
County
staff.
Mr.
Helsten
has
already
submitted
an
affidavit to the
Board
stating that he
had no substantive
contact with
the
County
Board
or
the
RPC
regarding
the
application,
and
that
he
did
not
provide
legal
representation
to either entity.
(See Exhibit B.)
Thus, it is impossible to see how
the
testimony of Ms.
Gorski
and
Mr.
Helsten
could
possibly
be
relevant
on
the
alleged bias of the decisionmakers.
9.
In
sum,
allowing
Karlock or
any other
person
to
call
the
County’s
attorneys
as
witnesses at hearing would violate the presumption that opposing parties
cannot
call opposing counsel as witnesses
at hearing,
and
would delay
and disrupt the
proceeding
by
inviting
a
media
circus.
Further,
allowing
the
calling
of
the
County’s
attorneys
could
raise
issues
of
the
possible
disqualification
of
the
County’s
elected
and
chosen
attorneys,
and
invade
attorney-client
privilege.
Most
importantly,
neither
Karlock
or
any
other
petitioner
has
identified
any
relevant
information
they
cannot
obtain
through
other
means.
Karlock
and
all
other persons
should
be barred from
calling the
County’s attorneys at hearing.
WHEREFORE,
the
County
moves that the
hearing officer bar Karlock
and all
other
3
persons
from
calling
attorneys
Gorski,
Smith,
Helsten,
and
Harvey,
and
for
such
other relief as the hearing officer deems appropriate.
Respectfully submitted,
COUNTYOFKANKAKEE and
COUNTY BOARD
OF KANKAKEE
By:~L~~
~
Eliz~bjth
S. Harvey
NOne of Its Attorneys.
Charles F. Helsten
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford,
IL 61105-1389
815/490-4900
Elizabeth S.
Harvey
Swanson,
Martin
& Bell
One IBM
Plaza,
Suite 2900
330 North Wabash Avenue
Chicago,
IL 60611
312/321-9100
4
H—~—d~5
1~:
I-luM-rIHN;
rJU!LL~.P~ L~tJ)UN
r.
~
(/
J. .L
BEFORE THE
ILLINOIS
POLLUTION CONTROL
BOARD
CITY OF
KANKAKEE,
)
Petitioner,
)
vs.
)
PCB 03-125
COUNTY
OF KA.NKAKEE,
)
(Third-Party
Pollution Control
Facility
COUNTY BOARD OF
KANKAKEE,
)
Siting Appeal)
and WASTE MANAGEMENT OF
)
ILLINOIS, INC.
)
Respondents.
)
)
MERLIN KARLOCK~,
)
Petitioner,
)
vs.
)
PCB 03-133
COUNTY
OF KANKA.KEE, COUNTY
)
(Third-Party Pollution Control Facility
BOARD OF KANKAKEE, and WASTE
)
Siting Appeal)
MANAGEMENT OF iLLINOIS, INC.
)
Respondents.
)
)
MICHAEL WATSON,
)
Petitioner,
)
vs.
)
PCBO3-134
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution Control
Facility
BOARD OF
KANKAKEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF
ILLINOIS,
INC.
)
Respondents.
)
)
KEITH RTJNYON,
)
Petitioner,
)
vs.
)
PCB 03-135
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution Control Facility
BOARD
OF
KANKAKEE,
and WASTE
)
Siting
Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
Ex~~A
APR 29 ‘03 12:08
ApR—2S—20~3
12:0~
HOFFMAN;
MUELLER;
CREEDON
NOTICE TO PRODUCE AT
TIME
OF
HEARING
TO:
COtJNTYOFKANAKEE
do Attorney Charles Heisten
P.O. Box 1389
Rockford, IL
61 105-1389
Now comes Merlin Karlock, by
and through his Attorney, George Mueller, P.C., and
pursuant to Illinois Pollution
Control Board Rule 101.616 and
101.624, Illinois Supreme
Court
Rule 237
and
Section 2-1102 oftheIllinois Code of Civil Procedure, hereby requests The
County
OfKankakee,
Illinois to produce the following persons at the hearing in
the instant
matter beginning on May
5,
2003 at
1:00 p.m.
at City Hall, City
Council Chambers,
385
E. Oak
St., Kankakee, Illinois:
Brenda Oorski
Esther Fox
Bruce Clark
Charles Heisten
Ed
Smith,
the duly elected State’s Attorney of Kankakee County
Elizabeth Harvey
G~4t
//711L~Q&~)
George Mt~l1er,
Attorney
at Law
GEORGE MUELLER, P. C
Attorney at Law
501 State Street
Ottawa,
IL
61350
Phone: (815) 433-4705
Fax:
(815) 433-4913
APR 29 ‘03 12:08
PAGE.08
APR—292003
12: 1~
HOFFMAN;
MUhLL~.k; U~E~VUN
BEFORE TIrE
ILLINOiS POLLUTION CONTROL BOARD
CITY
OF
KANKAKEE,
)
Petitioner,
)
vs.
)
PCB 03-125
COUNTY OF
KANKAKEE,
)
(Third-Party Pollution
Control Facility
COUNTY
BOARD
OF KANKAKEE,
)
Siting
Appeal)
and
WASTE
MANAGEMENT
OF
)
ILLINOIS, INC.
)
Respondents.
)
MERLIN
KARLOCK,
)
Petitioner,
)
vs.
)
PCB 03-133
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution
Control
Facility
BOARD
OF
KANKAKEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
MICHAEL WATSON,
)
Petitioner,
)
vs.
)
PCB 03-134
COUNTY OF KANKAKEE, COUNTY
)
(Third-Party Pollution Control Facility
BOARD OF
KANKAKEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
KEITH RUNYON,
)
Petitioner,
)
vs.
)
PCB 03-135
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution Control Facility
BOARD OF
KANKAKEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
APR
29
‘03
12:08
PAGE.09
AF’R—29--2803
12: 1~
HOFFMAN;
MUELLER;
CREEDON
P. 1~/11
NOTICE OF FILING
TO: See Attached Service List
PLEASE
TAKE
NOTICE
that on April 29, 2003
there caused to be filed via U.S. Mail
with
the Illinois Pollution Control Board an original and acopy ofthe following document, a
copy ofwhich is attached hereto:
Notice To Produce At Time Of Rearing
(Directed To County ofKankakee)
BY:
~
fl1a~&,
Attorn~for
Merlin Karlock
PROOF OF SERVICE
STATE OF ILLINOIS
)
)SS.
COUNTY
OF LASALLE
)
The undersigned, being first duly
sworn,
state that
I served a
true and correct copy ofthe
foregoing Notice, together with a copy ofeach document referred
to therein, upon the person(s)
indicated at their
address(es) indicated in the Service List via facsimile (if applicable)
and
by
mailing the same in Ottawa, IL before the hour of 5:00 p.m. on the 29th Day ofApril, 2003.
(~?O~L
iI~Q~
SUBSCRIBED
and
SWORN TO
Before Me This 29th
Day ofApril, 2003.
AL
c1L2~
Notary Public(J
ç~4~W~
~
“QFFICI.AL
SEAL’
~
SUSAN
COUGHLIN
$
Notary
Public
State of Illinois
My Commission
Expires
02J1 5/07
GEORGE MUELLER, P.C.
Attorney at
Law
501 State Street
Ottawa,
IL
61350
Phone: (815) 433-4705
Fax:
(815) 433-4913
APR 29 ‘03 12:09
PAGE. 10
ppR—29—2O~3
12: 1~
HOFFMAN;
MUELLER;
CREEDON
i-’.
:L1-’ ii
CERTIFICATE OF SERVICE
It is hereby certified
that true copies ofthe foregoing document were
mailed, first class,
to each ofthe followingon April 29, 2003:
Bradley P.
Halloran,
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph St., Suite 11-500
Chicago, IL.
60601
Fax:
(312) 814-3669
Richard
S. Porter
Charles F. Heisten
Hinshaw & Cu,lbertson
100
Park Avenue,
P.O. Box
1389
Rockford,
IL
61105-1389
Fax:
(815)
490-4901
Keith Runyon
1165
Plum
Creek Drive
Bourbonnais,JL
60914
Fax:
(815)
937-9164
Elizabeth S.
Harvey
Swanson,
Martin &
Bell
One
IBM Plaza,
Suite 2900
Chicago, IL
60611
Fax: (312) 321-0990
Kar
Krause,
Chairman
Bruce
Clark,
Kankakee
County Clerk
Kanicakee County Board
189 Court St.
Kankakee, IL
60901
Edward
Smith
Kankakee County State’s Attorney
450
East Court
St.
Ka.nkakee,
IL
60901
L.
Patrick
Power
956
North Fifth Avenue
Kankakee, IL
60901
Fax:
(815) 937-0056
Dorothy M. Owin
Illinois Pollution Control Board
James
R. Thompson Center
100 West Randolph St., Suite
11-500
Chicago, IL
60601
Leland Milk
6903
S. Route45-52
Chebanse, IL
60922
Donald 3. Moran
Pedersen & Houpt
161 N.
Clark St., Suite 3100
Chicago, IL
6060 1-3224
Fax:(312)261-1149
Jennifer 5. Sackett Pohlenz
175
W.
Jackson Blvd.
Suite 1600
Chicago, IL
60604
Fax:
(312)
540-0578
Kenneth A. Bleyer
923 W. Gordon Terrace, #3
Chicago, IL
60613-2013
Patricia O’Dell
1242 Arrowhead Drive
Bourbonnais, IL
60914
Kenneth
A. Leshen
One Dearborn Square, Suite
550
Kankakee,IL
60901
Fax:
(815) 933-3397
TOTAL
P.11
PAGE. 11
APR 29
‘03 12:09
AFFIDAVIT OF
CHARLES HELSTEN
I, Charles
F.
Helsten, having been sworn, hereby states the following:
1.
I
am
a
licensed
attorney
in
the
State of Illinois.
I
was
retainedto
provide
legal
representation
to
the
County
staff
during
the
local
siting
proceeding
on
the
application
for
site
expansion
approval
filed
by
Waste
Management
of
Illinois,
Inc. (WMII).
I
currently serve as co-counsel for the County
in
this
appeal
before
the Pollution Control Board.
2.
As
part
of
my
representation
of
the
County
staff,
I
provided
legal
advice
and
representation regarding the
preparation of the staffs
summary and report on
the
application.
That
summary
and
report was
filed,
in
the
public record
with
the
County Clerk, on January 6, 2003.
3.
During
my
representation
of the
County
staff,
while the
application was
pending
before
the
County
Board
(August
16,
2002
to
January
31,
2003),
I
had
no
substantive contact with the County Board
or
the
Regional
Planning Commission
(RPC)
regarding
the
application,
nor did
I
provide
legal
representation
to either
entity.
4.
In January
2003,
I
received a
voice
mail message from
Mr.
Moran,
counsel for
WMII.
Mr.
Moran’s
message
made only
a
general
statement that the
subject of
his inquiry was
certain
of the
special conditions
being recommended
by County
staff in
the summary and report which
had
been filed for the record on January 6,
2003.
5.
I
returned Mr.
Moran’s call,
but did
not speak to him.
I left a
voice mail message
indicating that notwithstanding the fact
I
only represented County staff on this
matter and nor the
Regional
Planning Commission or the
County Board,
nonetheless,
I did not feel it was appropriate to discuss this
matter with
him.
6.
I
had no substantive conversations with Mr.
Moran at any time while WMII’s
application was pending.
Further affiant sayeth
naught.
“OFFICIAL
SEAL”
JOAN
LANE
Notary
Pubflc,
State
Of
Illinois
My
Commission
Expires
4123/2005
Sworn to before me
this
c9FI
d~
f April, 2003.