RECE~VED
CLERK’S OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
MAR
292004
BARBARA STUART and RONALD
STUART,
Complainants,
v~
FRANKLIN FISHER and PHYLLIS
FISHER,
Respondents.
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STATE OF ILLINOIS
Pollution Control Board
No.
PCB 02-164
Citizen Enforcement
To:
Dorothy M. Gunn
Suite 11-500
100 W. Randolph St.
Chicago, IL
60601
Barbara & Ronald Stuart
213 E.
Corning Road
Beecher, IL 60401
Bobby Petrungaro
14 W.
Jefferson, Room 200
Joliet,
IL 60432
Bradley
P. Halloran
Suite 11-500
100 W. Randolph St.
Chicago, IL 60601
NOTICE OF FILING
PLEASE TAKE NOTICE that I have, On March 29, 2004, filed with the Office of the
Clerk ofthe Pollution
Control Board the Respondent’s Response to
Motion to Leave to
Supplement the Record, a copy of which is herewith served upon you.
CERTIFICATE OF SERVICE
I, David G. Harding, certify that on March 29, 2004,
1 served the attached Motion to
Dismiss by delivery to Dorothy M. Gunn and Bradley P. Halloran at their address as
shown above,
and by pre-paid first class mail upon all others to whom directed to their
addresses as shown above.
David G. Harding
Attorney for Respondents
100 N. LaSalle St., Suite
1107
Chicago, IL
60602-3803
(312) 782-3039
THIS FILING IS SUBMITTED ON RECYCLED PAPER
RECEWED
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARDCLERKS
OFFICE
BARBARA STUART and RONALD
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MAR
292004
STUART,
)
STATE
OF
ILLINOIS
Complainants,
)
Pollution Control Board
)
v.
)
No.
PCB 02-164
)
Citizen Enforcement
FRANKLIN FISHER and PHYLLIS
)
FISHER,
)
Respondent.
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RESPONSE
TO MOTION TO LEAVE TO SUPPLEMENT THE
RECORD
Respondent, Franklin Fisher, herein responds as follows to the Motion to Leave to
Supplement the Record received for filing
in the office of the Clerk of the Illinois
Pollution Control Board on March
25,
2004:
A. GENERAL OBJECTION
Respondent objects generally as to all proposed materials for the reason that
hearing was properly scheduled and notice was given in conformity, as to
form, timing
and substance, with the law of the State ofIllinois.
Each party was thereby given an
opportunity to present all admissible evidence at the hearing of March 9, 2004.
Complainants presented their case and rested.
Respondent presented his case and rested.
Complainants now seek to present further “evidence” and to force the IPCB to continue
conducting the hearing through submission oftestimony not subject to
confrontation and
cross-examination, until such date as Complainants may choose to allow the hearing to
end.
No procedural vehicle supports this practice, and it is abusive ofboth the IPCB and
the Respondent.
B. SPECIFIC
OBJECTIONS
1. The photographs taken ofFranklin Fisher’s home (two years ago) are not
relevant and lack foundation (specific
date, time, place, how taken and by whom and
statement ofposition and accurate depiction of scene).
Moreover, they do not show
Franklin Fisher
doing anything.
Incidentally, the Stuarts have complained, in their
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various writings,
that Fisher is
driving away wild animals.
Here, the Smarts complain
that he
is attracting them.
2. The photographs ofthe Stuarts’
home are not particularly relevant and also lack
foundation, as set forth above.
The reference to sound measurements is to inadmissible
material, alleged to have already existed, but wrongfully withheld by the Stuarts during
the discovery process.
3. At the hearing, the Stuarts denied having received copies ofthe exhibits in
question, but here they attach them and ask to
submit new materials, apparently to the
effect that the crows do not damage Fisher’s crops.
No foundation is given for the new
materials and they do not,
in any event, state what the Stuarts assert that they state.
As to
the loss of income question, Mrs.
Stuart chose to do something that most experienced
attorneys are loathe to
attempt without a specific objective in mind
—
adverse examination
ofthe opposing party during her case-in-chief.
During that adverse examination of
Franklin Fisher,
she asked him about income from melons and comparative year-to-year
incomes.
Mrs.
Stuart opened the door on income
Transcript
pages 98-102
during her
case in chief, and so waived the bar.
To
allow one party to follow a line ofinquiry while
barring the other from responding
would be
oppressive and patently unfair.
Given the
Stuarts’ professed interest in fairness and honesty, this
should not come as a surprise to
them.
4.
Objections to Interrogatories were resolved in due
course.
At no point has
Respondent asserted that a propane cannon is a privileged work product.
As to the
accusation, Respondent’s attorney will only say that he has always assumed that a
Hearing Officer is the eyes and ears ofthe entire Board, and that he
expects that the
Board will be informed as to
the conduct of all parties present, himself included.
5.
At hearing, respondent stipulated to the admissibility ofthe “Map Board,” with
the exception of the brochure, and that objection extends, in the age ofpersonal desk top
publishing, even beyond foundation.
It may sound glib, but it is undeniable that if
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advertisements were reliable, those who buy advertised products would all be thin
enough, rich enough and have way too many friends.
Are the suggested
alternatives
effective?
To
answer that question would
require information derived from a source not
interested in making a profit from the sale ofthe product.
Without that information, to
assert that they are effective is no different from Ron Popeil’s
assertion that his spray
paint resembles hair.
Finally, even if advertisement were
inherently reliable, the brochure
states a number which it calls the decibel output, but fails to state from what distance that
number is
measured.
Without distance from the sound source, as delineated in the
testimony ofthe Complainants’ own witness, Greg Zak, a raw decibel number is useless.
WHEREFORE, Respondent respectfully requests that Complainants’ motion be
denied.
Respectfully submitted,
David G.
Attorney for Respondents
100 N. LaSalle
St.
Suite
1107
Chicago, IL 60602-3 803
(312) 782-3039
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