1. MOTION TO BAR AND FOR SANCTIONS
    2. 312/321-9100
REC~
0198-001
CLERK’S
OFFICE
MAY
02
2003
ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
CITY OF KANKAKEE,
)
Pollution
Control Board
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 2nd day of May 2003, the following County’s
Motion
to
Bar and
for Sanctions,
was
filed with
the
Illinois
Pollution
Control
Board,
attached and herewith
served
upon you.
COUNTY OF KANKAKEE
and
COUNTY BOARD
OF
KANKAKEE
By:________
e 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 2, 2003.
x
Under penalties as provided
by law
pursuant to 735 ILCS
5/1-109,
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
Suite 11-500
Chicago,
IL 60601
Charles
F. 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
S.
Route 45-52
Chebanse,
IL 60922-5153
Patricia
O’Dell
1242 Arrowhead Drive
Bourbonnais,
IL 60914
R~WED
CLERK’S
OFFICE
0198-001
MAY
022003
ILLINOIS POLLUTION CONTROL BOARD
STATE OF
ILLINOIS
CITY OF KANKAKEE,
)
Pollution
Control Board
)
PCB
03-1 25
Petitioner,
)
PCB
03-1 33
)
PCB 03-1 34
v.
)
PCB 03-1 35
)
(consolidated)
COUNTY OF
KANKAKEE, COUNTY
)
(Pollution
Control Facility Siting Appeals)
BOARD
OF
KANKAKEE, and WASTE
)
MANAGEMENT
OF ILLINOIS,
INC.
)
)
Respondents.
)
MOTION TO
BAR AND FOR SANCTIONS
Respondent
COUNTY
BOARD
OF
KANKAKEE
(“County”),
by
its
attorneys
Hinshaw & Culbertson and
Swanson,
Martin
& Bell,
hereby move
the hearing officer or
the
Board to
bar petitioner MICHAEL
WATSON
(“Watson”),
and
any other party,
from
calling County attorneys as witnesses
at hearing.
The County
also seeks sanctions.
1.
On
May 2,
2003, Watson filed
his list of witnesses.
(See
Exhibit A.)
One of the
persons
identified on that list is County attorney Elizabeth
Harvey.
2.
The
issue
of depositions
and
testimony
by attorneys
has
been
ruled
on
more
than
once.
The
hearing
officer
has
consistently
prohibited
petitioners
from
deposing attorneys,
or calling them
as witnesses.
In fact, just yesterday, on
May
1, 2003,
the hearing officer granted the
County’s motion
to bar petitioner Karlock
from
calling
County
attorneys
at
hearing.
The
written
order
states
“Gorski,
Helsten, Smith,
Harvey and
Moran will
not be required
to testify at the
hearing
in
this proceeding.”
(May
1, 2003
hearing officer order at page 3.)
3.
Additionally,
on
May
1,
2003,
the
Board
upheld
the
hearing
officer’s
decision
prohibiting
the
attorney
depositions.
Thus,
the
Board
has
now
spoken
on
the
issue.
4.
Despite these crystal clear decisions, Watson
now seeks to call
Ms.
Harvey as
a
witness at
hearing.
In fact,
Watson
refers
to the
hearing officer’s
May I
order,
but seeks Ms. Harvey’s testimony1 despite the prior direction
on this
issue.
5.
Watson’s
continued
to
attempts to
call
Ms.
Harvey as
a witness
are
harassing
and violate the
Board’s and the
hearing officer’s rulings.
6.
The
County
hereby
incorporates
by
reference
its
prior
arguments
against
attorney
testimony,
made
in
its
motion
to
bar,
as if fully
set forth
herein.
(See
Exhibit
B.)
7.
The
County
moves
that
the
hearing
officer
bar Watson,
and
any other
person,
from calling Ms. Harvey as a witness at hearing.
8.
Furthermore,
the
County
seeks
sanctions for Watson’s flaunting
of the
repeated
decisions
on
this
issue.
Watson’s
inclusion
of
Ms.
Harvey
on
its
witness
list,
despite
Watson’s
recognition
that
the
Board
and
the
hearing
officer
have
excluded
testimony
by
Ms.
Harvey,
challenges
the
authority of both
the
Board
and
the
hearing
officer.
Watson’s
actions
are
also vexatious
and
harassing
to
the County.
9.
The County
seeks sanctions including
an order barring Watson from
maintaining
any claim
related to
alleged
conversations
between
Ms.
Harvey and
Mr.
Moran.
Such
a
sanction
is
allowable
under
Section
101.800(b)(3)
of
the
Board’s
procedural
rules.
WHEREFORE,
the
County
moves that the
hearing officer bar
Watson
and
all other
persons from
calling Ms. Harvey
as
a witness at hearing,
asks the
Board
to
impose
sanctions pursuant to Section
101 .800 of the
Board’s
rules,
and for such
other relief
as the
hearing officer deems appropriate.
Watson also continues to seek testimony from
Mr.
Moran.
2
Respectfully submitted,
COUNTY OF
KANKAKEE and
COUNTY BOARD
OF KANKAKEE
By:
(
Eli4eth
S. Harvey
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
3
F’lHY
O~
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654S8-POH
BEFORE THE ILLINOIS
POLLUTiON CONTROL
BOARD
MICHAEL
WATSON,
Petitioner,
No.
PCB 03-134
vs.
(Pollution Control. Facility Siting Appeal)
COUNTY BOARD
OF
KANKAKEE
COUNTY,
Consolidated With PCB 03-125,
03-133,
ILLINOIS,
and WASTE MANAGEMENT OF
03-135)
ILUNOISJNC.,
-
Respondent.
LIST OF
WITNESSES
TO TESTIFY AT
THE
PUBLIC
BEARING
Now Comes Petitioner Michael Watson, by and through his attorneys at Querrey &
Harrow, Ltd. and as and for
List of Witnesses to Testify at Trial,
states as follows:
1.
Petitioner Watson has subpoenaed the following two witnesses to testify at the
public hearing on May 6,
2002,
starting at
1:00 p~m.:
Saundra Listenbee
Mary Ann Powers
2.
Petitioner Watsonhas been given leave to
serve written questions
on Effraim Gill.
In li~u
oftestimony
at public hearing,
and to be
determined after Petitioner has an opportunity
to
review the answers to such questions served on Mr.
Gill,
Petitioner requests the parties
stipulate that the questions and Mr.
Gill’s answers be submitted as his testimony at the public
hearing.
3.
Petitioner Watson seeks to have the fbllowing people produced at the public bearing
by Waste Management of Illinois,
Inc. (WMII).
(Please consider this a S.Ct. Rule 237 notice.
If WMII contends
that the named persons below are “witnesses”
opposed to partIes,
and
Printed
on Recycled Paper
A
MAY
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Il1i~ioisPollution Control Board Rule
101.662(a) applies,
it is requested that WMII (a) so
inf~rm
counsel for Petitioner Watson immediately, and inform Petitioner whether WMII will
object to
produce the following people, (b) inform
Petitioner
Watson whether WMII will
accept service of subpoenas
through counsel Moran or,
if WMII will not,
without waiving
Petitioner’s objection to such a circumstance, that WMII then provide the business and home
addresses ofthe following people for service purposes):
Lee Addlemann’
Dale Hoekstra
Donald Moran2
4.
Petitioner Watson seeks to have the following people produced at the public hearing
by the County
Board and County of Kankakee (collectively County).
(Please consider this a
S.Ct.
Rule 237 notice,
lithe County contends
that the named persons below are “witnesses”
opposed
to parties,
and Illinois Pollution Control Board Rule 101.662(a) applies,
it is requested
that County
(a) so
inform
counsel for Petitioner Watson immediately,
and inform counsel fo
Petitioner Watson whether the County will object to produce the following people,
(b) inform
Petitioner
Watson
whether the County will accept service of subpoenas through counsel or, if
On April 30,
2003.
the Hearing Officer granted
Waste Management ofIllinois,
lno.’s
(WMII) objections
to
producing Mr. Addleman fordeposition. However,
WMII failed to provide through affidavit
or verified
medical
statement a medical reason why Mr.
Addleman
cannot
be
deposed
or provide testimony.
Further, WMII’s
counsels
representations
concerning
Mr.
Addleman’s
health
condition had no
obvious connection to Mr.
Addleman’s mental capacity.
Without
waiving Petitioner’s objectionto the April 30, 2003
and any subsequent
rulings on this
issue,
Petitioner respectfully seeks, in the alternative to have Mr.
Addleman appear to testify, the
evidence depositionof Mr.
Mdlem.an.
If the evidence deposition is to be denied
(without waiving
its objections),
Petitioner seeks leave
to submit written
questions to Mr.
Addlemann,
to be answered and
certified
by Mr.
Addt~mann
and which will
be admissible
as if it were his testimony at the public hearing.
2
The
Hearing
Officer likewise
ruled on
April
30,
2003,
with
respect
to
the discovery deposition of Mr.
Moran
and on
May
1,
2003,
with respect to the Rule 237 notice of Mr.
Moran. Petitioner
reserves
his objections
to this
ruling
and reiterates his
response to objections to the discovcry
deposition of
this individual that since
Mr.
Moan
and Ms. Harvey were
the
only two people identified
as
being involved in their
conversations occurring, ex parte,
durii~g
January
2003,
and
prior
to
the
County’s
decision
on
January
31,
2003,
they
are
the
only
source
for
information
concerning
the exact
substance of that communication.
Printed on Recycled
Paper
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.
th~
County will not,
without
waiving Petitioner’s objection to such a circumstance, that the
CGunty then provide the
business and home addresses of the following people for service
pm~rposes):
Stan
James (County Board Member)
Bruce
Clark (County Clerk)
Karl
Kruse
(County Board
Chairman)
Elmer
Wilson (County Board Member)
Chris
Richardson (County employee)
Juanita Baker
(by deposition transcript, ifso stipulated by
the parties)
Mike
VanMill
(County employee)
Doug Graves
(County Board Member)
Leo Whitten (County Board Member)
Effraim
Gill (former County
employee)
Sharkey Martin (by deposition transcript,
if so stipulated by the
parties)
Chris
Berger
(County
consultant)
Pam Lee (County Board
Member
and Vice Chairperson)
George Washington,
Jr. (County
Board Member)
Wes
Wiseman (County
Board Member)
Elizabeth Harvey (Special
Assistant State’s Attorney)3
S.
Additionally,
Petitioner Watson may seek to present testimony of the following
people
(reserving
his right to not call such people):
Daniel Hartweg:
(without waiving attorney-client confidence or work-product
Prined on Recycled Paper
MAY
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privilege)
on the limited
matter of his affidavit contained in
the
-
Record on Appeal.
Unless
there are
no objections to
producing
his affidavit in lieu ofhis testimony
at hearing.
6.
Petitioner
Watson requests the Parties
to
identify
which, if any, ofthe above
referenced individuals
who have been deposed, a Party would object to a stipulation to submit
the~
person’s deposition testimony
in lieu of testimony at the public hearing,
as additional
persons may be requested to
testify
at hearing through submittal of their discovery deposition,
once that deposition transcript is received and reviewed by counsel for Petitioner.
7.
Petitioner
reserves
his
right to present additional witnesses in
rebuttal.
Dated:
May 2, 2003
PETITIONER MICHAEL WATSON
Jennifer
J.
Sackett Pohlenz
QUERREY
&
HARROW,
LTD.
175
West Jackson Boulevard,
Suite
1600
Chicago,
Illinois
60604
(312) 540-7000
Attorney
Registration
No.
6225990
Attorneys for Petitioner Michael Watson
‘See,
note 2, above.
Printed on Recycled
Paper
**
TOTAL
PAGE.05
**~
01 98-001
ILLINOIS POLLUTION CONTROL BOARD
CITY OF
KANKAKEE,
)
)
PCBO3-125
Petitioner,
)
PCB
03-1 33
)
PCBO3-134
v.
)
PCB 03-135
)
(consolidated)
COUNTY OF
KANKAKEE, COUNTY
)
(Pollution Control Facility Siting Appeals)
BOARD
OF
KANKAKEE, and WASTE
)
MANAGEMENT
OF
ILLINOIS,
INC.
)
)
Respondents.
)
~
~‘7
I
(
~-—-—‘j
\V/
‘I I~
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
Helsten,
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.
Helsten
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.
at 8.
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,
COUNTY OF
KANKAKEE and
COUNTY BOARD
OF
KANKAKEE
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
Elizabetr
4

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