exclusively upon the record in making their decision

iM ~i

CL~Rg’SOFFICE

BEFORE THE ROCHELLE CITY COUNCIL

DEC 1 1 2003

OGLE COUNTY, ILLINOIS

STATE OF ILLINOIS

IN RE: THE APPLICATION FOR

)

Pollution Control Board

APPROVAL OF A POLLUTION

)

No. PCB 03-218

CONTROL FACILITY OF ROCHELLE

)

(Pollution Control Facility

WASTE DISPOSAL, L.L.C.

)

Siting Appeal)

HEARING

BRIEF

Council members may not testify that they were not

influenced by

exparte

communications or that they relied

exclusively upon the record in making their decision

It is anticipated that the Rochelle City Council will attempt to elicit testimony

from council members to the effect that although they engaged in prohibited

ex pczrle

communications, they were not influenced by those communications, they did not

consider those communications in rendering their local siting decision and they relied

exclusively upon the record made during the siting hearing. Such testimony is clearly

inadmissible despite the fact that the Pollution Control Board (“PCB”) has occasionally

admitted such testimony in

the absence of

objection.

See, e.g., Land and Lakes Co.

v. Randolph County Board of Commissioners, PCB 99-69 *18 (2000) (“All four

members of the Planning Commission testified that the limited contacts did not affect

their decision and the recommendation they made to the Randolph County Board”), Such

self-serving testimony is inadmissible and also creates an untenable Catch-22. That is

because although a violation offundamental fairness cannot be based on an

ex parte

communication without a “showing ofprejudice” (E&E Hauling, Inc. v. PCB, 11 6

fll.App.3d 586, 607,

451

N.E.2d

555,

571,71 I1l.Dec.

587,

603 (2d Dist. 1983), ~d, 107

Ill.2d 33, 41 N.E.2d 664, 89 Ill.Dec. 821

(1985)),

victims of the

exparte

communication

have been precluded from probing the decisionmakers’ “internal thought processes”

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

iM ~i

(DiMaggio v. Solid Waste Agency ofNorthern Cook Co~inty,PCB 89-138, *3(1989)),

but decisionmakers themselves have sometimes been improperly permitted to testify that

the

exparte

communication supposedly did not affect their decision or that they relied

exclusively on the record.

Thus, in E&E Hauling part of the court’s rationale for finding no prejudice was

the rather remarkable conclusion that:

By the time these meetings took place, the Board, though it had not yet

formally approved the application, had

essentially made up its collective

mind to approve the proposed expansion

and had moved to consideration

of the conditions. 116 Ill.App.3d at 607,

451

N.E.2d at 572,71 Ill.Dec. at

604 (emphasis added).

How the court could know that without considering the decisionmakers’ “internal thought

processes” is inexplicable.

It is true that the mental processes ofjudicial or administrative decisionmakers are

not a proper subject ofjudicial inquiry, but the notion that the decisionmakers themselves

should be able to testify that they only relied upon the record or that they were

uninfluenced by the

exparte

communications they engaged in is completely wrong.

Indeed, the line of authority relied upon by the PCB in DiMaggio makes clear that the

decisionmakers themselves may not testify on that subject. DiMaggio relied upon U.S. v.

Morgan, 313 U.S. 409 (1941), which held, according to the PCB, “that the mind ofthe

decisionmaker should not be invaded.” DiMaggio, PCB 89-138,

(1989). In Morgan,

the Secretary of Agriculture had been extensively examined at trial “regarding the

process by which he reached the conclusions of his order, including the manner and

extent ofhis study ofthe record and his consultation with subordinates.” U.S. v. Morgan,

313 U.S. 409,422 (1941). The Court, through Justice Frankfurter, held this was

inappropriate:

But the short ofthe business is that the Secretary should never have been

subjected to this examination. The proceeding before the Secretary ‘has a

quality resembling that of a judicial proceeding’.

. . .

Such an examination

ofajudge would be destructive ofjudicial responsibility. We have

explicitly held in this very litigation that ‘it was riot the function of the

court to probe the mental processes ofthe Secretary’.

. . .

Just as a judge

cannot be subjected to such a scrutiny,

. . .

so the integrity of the

administrative process must be equally respected. U.S. v. Morgan, 313

U.S. 409, 422 (1941) (citations omitted).

Although Morgan has sometimes been referred to as having established the

“mental processes privilege,” that is not really correct because it is

in its pure form is not so much an evidentiary privilege as a doctrine

defining theproper scope ofjudicial review. U.S. v. Hooker Chemicals &

Plastics Corp., 123 F.R.D. 3, 23 (Appendix) (W.D.N.Y. 198S).

Thus, the inadmissibility ofjudicial or administrative decisionniakers’ iii ental processes

is not a “privilege” ofthe decisionmaker to be waived. On the contrary, a trial judge or

administrative decisionmaker is (just like ajuror) incompetent to testify to what they did

or did nOt consider in reaching their decision. See, e.g., Fayenveather v. Ritch,

195

U.S.

276, 306-07 (1904). In Fayerweather the Supreme Court explained why such testimony

“was obviously incompetent.”

195

U.S. at 307. The Court held that it would be unfair to

permit such testimony by a decisionmaker because

no testimony should be received except of open and tangible facts,

matters which are susceptible of evidence on both sides. 195 U.S. at 307.

This rule applies in administrative proceedings as well as judicial proceedings. See, e.g.,

Chicago, Burlington & QuincyRy. Co. v. Babock, 204 U.S. 585, 593 (l907)~Jackson

DailyNews v. Local No. 215, International Printing Pressman and Assistants’ Union ol

North America, AFL, 103 NRLB 207, 1953 WL 10901

(1953).

This rule applies

regardless ofwhether the judge or administrative decisionmaker is willing to testify

because “such testimony poses special risks ofinaccuracy.” Washington v. Strickland,

693 F.2d 1243, 1263 (5th Cir. 1982). As the court held in Hooker Chemicals:

Moreover, the fact that the state trial judge might be

willing

to testify is

irrelevant to this consideration. Our concern with the accuracy and

probative value ofthe testimony remains the same. 123 F.R.D. 3 at 21

(Appendix) (emphasis original).

Similarly, in U.S. v. Crouch,

566

F.2d 1311 (5th Cir. 1978), ii was held that a reviewing

court was barred from examining the mental processes ofajudge not because of a

privilege waiveable by the judge but because “this court has no means of observing

mental process.” 566 F.2d at 1316. Even if the judge were to come forward with an

explanation ofhis mental process, “we could not consider his explanation.” 5.66 F.2d at

1316.

There are a number ofreasons the courts have refused to allow judges or

administrative decisiorunakers to testify regarding their mental processes including “the

difficulty inherent in accurately re-creating a mental process” and the fact that “it is

practically impossible for a party to challenge the mental impressions ofajudge, as his

thought process is known to him alone.” Georgou v. Fritzshall, 1995 WL 248002 (ND.

Ill.

1995).

For essentially the same reason, where a juror has been subjected to an improper

exparte

communication, the juror may testify to the fact ofthe communication, but not

the effect it had on him. Rule 606(b) ofthe Federal Rules ofEvidence provides:

(b) Inquiry into validity ofverdict or indictment.

Upon an

inquiry into the validity

of a verdict

or indictment,

juror may not testify

as to any matter or statement occurring during the course of the jury’s

deliberations

or to the effect ofanything upon that or

any

other juror’s

mind or emotions as influencing the juror

to assent to or dissent from the

verdict or indictment or concerning the juror’s mental processes in

connection therewith, except that a juror may testify on the question

whether extraneous prejudicial information was improperly brought to the

jury’s attention or whether any outside influence was improperly brought

to bear upon any juror. Nor may ajuror’s affidavit or evidence of any

statement by the juror concerning a matter about which the juror would be

precluded from testifying be received for these purposes (emphasis

added).

As the comments to that rule suggest, the jurors may “testify as to matters other

than their own interactions.”

Thus, what the PCB should consider on the issue ofprejudice is whether the

parte

“contacts

may

have influenced the agency’s ultimate decision” (E & E Hauling,

107 Ill.App.3d at 607, 451 N.E.2d at 571, 71 Ill.Dec. at 603), not whether the

decisionmaker claims it did not. Those PCB decisions which have permitted such self-

serving testimony

without any objection

are not a basis for admitting such testimony

over the Petitioner’s strenuous objection in this proceeding. Thai type oftestimony is

simply incompetent and inadmissible.

It should also be noted that the council members’ comments to the newspaper

immediatelyfoiowing their decision to the effect that they voted in accordance with

popular opinion andlor believed that they had been elected to do that are admissible

because the exclusion of evidence as to decisionmakers’ mental processes only applies up

to the time the decision is made and “does not extend to ‘post-decisional.

. .

explanations

or interpretations of’ such decisions.” Hooker Chemicals, 123 F.R.D. 3 at 12

(Appendix). See also Wilkinson v. Chao, 2003 WL 22767814 at *7 (D.N.H. November

24, 2003) (deliberative process privilege inapplicable once the process is over and posi-

decisional views admissible); RU Insurance Company Group v. Superior Court, SI

Cal.App.4th 415, 437-

38,59

Cal.Rptr.2d 111, 124-25 (Ct.App. 1997) (same). ~

generally 26A, Wright & Miller, Federal Practice and Procedure,

5680 nn. 203-21 7

(“postdecisional” statements admissible).

If a judge engages in inappropriate

exparte

communications, the issue of

disqualification is based on not the judge’s subjective belief as to whether his impartiality

had been compromised, but on the objective standard of Canon 3 of the Code of Judicial

Conduct:

A. Judge shall disqualify himself or herself in a proceeding

which thejudge’s impartiality might reasonably be questioned.

Illinois Supreme Court Rule 63C(1).

This objective standard is also the rule pertaining to federal judges under 28 U.S.C.

455(a),

which provides:

Any justice, judge or magistrate judge of the United States shall

disqualify himself in any proceeding in which his

impartiality might

reasonably be questioned

(emphasis added).

The question is whether “a thoughtful observer aware of all the facts

...

would

conclude that the

exparte

communication

. . .

carries an unacceptable potential for

compromising impartiality.” Edgar v. K.L., 93 F.3d 256, 259-60 (7th Cir. 1996).

In Edgar the Seventh Circuit discounted the judge’s assurances “that he would have an

open mind,” relying instead on whether “an

objective

observer would doubt that this

opportunity was adequate.

. . .

92 F.3d at 260 (emphasis added).

The issue then is

not the Court’s own introspective capacity

to sit

in fair and honest judgment with respect to the controverted issues, but

whether a reasonable member of the public at large, aware of all the facts,

might fairly question the Court’s impartiality. This is an objective

standard.... U.S. v. Ferguson,

550

F.Supp. 1256, 1259-60 (S.D.N.Y.

1982) (emphasis added).

See also, State v. Mann, N.W.2d 528, 532 (Ia. S.Ct. 1994) (“the test is not whether the

judge self-questions his own impartiality, but whether a reasonable person would

question it. Thus, an objective test is substituted for a purely subjective one”).

Therefore, whether the

exparte

contacts resulted in such prejudice as to justify

reversal for lack of fundamental fairness should be based on the objective facts, not on

the decisionmakers’ self-serving claims that they based their decision on the record.’

ROCHELLE WASTE DISPOSAL, L.L.C.

McGREEVY, JOHNSON & WILLIAMS, P.C.

Its Attorneys

By:_________

Michael F. O’Brien

One ofits attorneys

In a separate Hearing Brief the Petitioner has addressed why the inappropriate

ex parte

communications

of the decisionmakers in these proceedings justify a finding that fundamental fairness has been violated.

ATTORNEY’S CERTIFICATE OF SERVICE BY PERSONAL SERVICE

The undersigned, being first duly sv~iornon oath, depose and say that I am an

attorney and personally served the foregoing instrument upon the within named:

Mr. Brad Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph, ~

Floor

Chicago, IL 60601

Rochelle City Clerk

Bruce McKinney, Rochelle City Clerk

6th Street & 5tli Avenue

Rochelle, IL 61068

Charles Heisten, Esq.

Richard S. Porter, Esq.

Hinshaw & Culbertson

100 Park Avenue

Rockford, IL 61101

Alan Cooper, Esq.

Rochelle City Attorney

400 May Mart Drive

P.O. Box 194

Rochelle, IL 61068

by hand delivering a true and correct copy ofthe same at Rochelle, Illinois, at or about

the hour of

o’clock a.m./p.m., on thelOth day of December, 2003.

Michael F. O’Brien

McGreevy, Johnson & Williams, P.C.

6735 Vistagreen Way

P.O. Box 2903

Rockford, IL 61132

815/639-3700

815/639-9400 (Fax)

00342739.Doc

Michael F. O’Brien