OF THE STATE OF ILLINOIS CLERK’S OFFICE
MOTION FOR RECONSIDERATION and TO DISMISS
V. CONCLUSION
CERTIFICATE OF SERVICE

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

SEP 1 62004

)

PCBNo.04-i83

)

(LUST Appeal)

)

NOTICE

Dorothy M.

Gurm,

Clerk

Carol Sudman, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

1021 North Grand Avenue, East

100 West Randolph Street

P.O. Box 19274

Suite 11-500

Springfield, IL 62794-9274

Chicago, IL 60601

F. Ronalds Walker

Plews Shadley Racher & Braun

1346 North Delaware Street

Indianapolis, IN 46202

PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution

Control Board aMOTION FOR RECONSIDERATION and TO DISMISS, copies of which are herewith

served upon you.

Respectfully submitted,

ILLiNOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

Assistant Counsel

Special Assistant Attorney General

Division of Legal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD)

Dated: September

15,

2004

JOHNSON OIL COMPANY,

)

Petitioner,

)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

STATE OF ILLINOIS

Pollution Control Board

PCB No. 04-183

(LUST Appeal)

BEFORE THE POLLUTION CONTROL BOARD RECEIVED

OF THE STATE OF ILLINOIS

CLERK’S OFFICE

JOHNSON OIL COMPANY,

)

SEP 162004

Petitioner,

)

STATE OF

ILLINOIS

Pollution Control Board

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

MOTION FOR RECONSIDERATION and TO DISMISS

NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois

EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney

General, and, pursuant to

Iii. Adm. Code 101 .520 and 101.902, and by motion filed no later

than

days following the receipt of an order entered by the Illinois Pollution Control Board

(“Board”) on September 2, 2004, hereby respectfully moves the Board to reconsider that order in

that the Board erred in its decision. The Illinois EPA received service of the Board’s order on

September 6, 2004. In support ofthis motion, the Illinois EPA states as follows:

STANDARD

FOR

REVIEW

The purpose ofa motion for reconsideration is to bring to the court’s or Board’s attention

newly-discovered evidence which was not available at the time of the hearing, changes in the

law, or errors in the court’s or Board’s previous application of the existing law. Vogue Tyre &

Rubber Company v. Office of the State Fire Marshal, PCB

95-78

(January 23, 2003), citing to,

Citizens Against Regional Landfill v. County Board ofWhiteside County, PCB 93-156 (March

11, 1993), and Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 572 N.E.2d 1154

(1st Dist. 1992).

The Illinois EPA argues that the Board’s order dated September 2, 2004 (“September 2~

order” or “Order”) was incorrect on two points. First, the Board erred in its application of

existing law regarding its acceptance ofwhat is characterized as an amended petition for review

filed by the Petitioner on August 23, 2004. Second, the Board erred in its application ofexisting

law when it granted a motion for admission of John D. Moriarty on

apro hac vice

basis. Based

upon these errors, the Board improperly accepted the Petitioner’s August 23, 2004 filing and

therefore should instead dismiss the pending appeal.

II. THE

BOARD

HAS

NO JURISDICTION

OVER THIS

APPEAL

The Board must dismiss the pending appeal on the basis that there is no jurisdiction to

hear the appeal. This lack ofjurisdiction is based upon the failure ofthe Petitioner to timely file

a sufficient and adequate petition for review within the time allowed by Section 40(a)( 1) of the

Illinois Environmental Protection Act (“Act”) (415 ILCS

5/40(a)(

1)) and Section 105.406 of the

Board’s procedural rules

(35

Ill. Adm. Code

105.406).

On May 6, 2004, the Board entered an

order extending the time to file a timely petition in this matter to July

15,

2004 (“July 15th

petition”). On July

15,

2004, the Petitioner filed a petition seeking to appeal a final decision

issued by the Illinois EPA on March 12, 2004. On July 22, 2004, the Board accepted the petition

as timely filed but also found the petition to be deficient. The Board then ordered the Petitioner

to file a “new petition” on or before August 23, 2004, finding that the corporation could not be

represented by its manager. The Board went on to state that its decision deadline would

recommence with the filing of an amended petition. On August 23, 2004, the Petitioner filed an

“amended” petition (“August 23~filing”), and in the September 2nd order, the Board accepted

the August 23~filing. Order, p. 1.

As the Board noted in an order dated July 22, 2004, the individual that signed the July

i5~petition was identified as a manager of Johnson Oil Company, not as an attorney. It was not

until the August 23~filing that an attorney, F. Ronalds Walker, entered an appearance on behalf

ofthe Petitioner.

It is well-settled law in Illinois that a pleading signed by a person who is not licensed to

practice law in the State is a nullity even if a duly licensed attorney subsequently appears in

court. Blue v. People ofthe State ofIllinois, 223 Ill. App. 3d 594,

596, 585

N.E.2d 625, 626 (2~

Dist. 1992) (Citing, Fruin v. Northwestern Medical Faculty Foundation, Inc., 194 III. App. 3d

1061, 1063,

551

N.E.2d 1010, 1012 (1st Dist. 1990)). Where one not licensed to practice law has

instituted legal proceedings on behalf of another, the suit should be dismissed; if the suit has

proceeded to judgment, the judgment is void and will be reversed. ~.; See also, Midwest Home

Savings and Loan Association v. Ridgewood, Inc., 123 Ill. App: 3d 1001, 1005, 463 N.E.2d 909,

912 (5th Dist. 1984).

Under Illinois law, a corporation can file a complaint only through a licensed attorney,

and any action filed without an attorney is null and void

ab initio.

Berg v. Mid-America

Industrial, Inc., 293 Iii. App. 3d 731, 732, 688 N.E.2d 699, 700 (1st Dist. 1997). Corporations

may not appear in court through a layperson, only by a licensed attorney. Any proceedings

which ensue in a case involving a layperson representing a corporation are null and void. This

rule requiring initiation ofan action by a duly licensed attorney applied even where the lay agent

merely files the complaint over his own signature, and all subsequent court appearances are

made by a duly licensed attorney. The purpose ofthe rule is to protect the litigants against the

mistakes of those ignorant of the law and the schemes ofthe unscrupulous, and to protect the

court itself in the administration of its proceedings from those lacking requisite legal skills.

Berg, 293 Ill. App. 3d at 737, 688 N.E.2d at 704; Janiczek v. Dover Management Co., 134 III.

App. 3d 543, 546, 481 N.E.2d

25,

26 (1st Dist. 1985).

This general rule has been found to extend beyond actions in circuit court, including a

finding that an appeal initiated by a party without representation of an attorney licensed to

practice in Illinois was a nullity. Midwest Home, 123 Ill. App. 3d at 1005, 463 N.E.2d at 912.

Also included in the type of actions within the scope of the general rule are administrative

proceedings. Oak Grove Jubilee Center, Inc. v. City of Genoa, 347 Ill. App. 3d 973,

985,

808

N.E.2d 576, 588 (21w Dist. 2004) (Citing to, Janiczek, 134 Ill. App. 3d at

545,

481 N.E.2d at 26)).

The Janiczek court referred to this general rule prohibiting representation ofcorporations by non-

Illinois licensed attorneys as a strict one. Janiczek, 134 Ill. App. 3d at

545,

481 N.E.2d at 26.

There have been some noted exceptions to the general rule, but they have been very

narrowly drawn and still pay heed to the general rule. In Janiczek, the court relied on the

particular facts that the action in question was initiated by a then-duly licensed attorney who

subsequently was disbarred. In the case ofMcEvers v. Stout, 218 Ill. App. 3d 469, 578 N.E.2d

321 (4th Dist. 1991), the appellate court also noted and adhered to the general rule, but again

found a narrow exception based on the facts in that case involving an out-of-state attorney

having initiated the complaint in question.

Here, there is no question that the Petitioner’s July 15th petition was not signed by an

attorney licensed in Illinois (or any other state, for that matter). It was not until the August 23~

filing that an attorney entered an appearance on behalf ofJohnson Oil Company. The July 15th

petition that initiated the present appeal was not filed by and through an attorney licensed in

Illinois. The relevant and applicable case law, all ofwhich is clear and on point, requires that the

Board dismiss the present appeal as a nullity. If the Board were to proceed to judgment on the

merits, all applicable legal precedent would result in the final decision also being found to be a

nullity. The Board should reconsider its decision to accept the “amended” petition and instead

should dismiss the present appeal based on the plethora ofrelevant case law.

III. THE

BOARD’S

PROCEDURAL RULES REQUIRE DISMISSAL

There is an equally compelling alternative reason for the Board to dismiss the present

appeal. As the Board has noted on many occasions, an appeal that is not timely filed cannot be

heard since the Board lacks jurisdiction to do so. Solid Waste Agency ofNorthern Cook County

v. City ofDes Plaines, PCB 03-161 (June

2003); Dewey’s Service, Inc. v. Illinois EPA, PCB

99-107 (February 4, 1999). A review ofthe Board’s procedural rules regarding the timely filing

ofpetitions makes clear that the present appeal should be dismissed for lack ofjurisdiction.

Section 101.300(b) of the Board’s rules

(35

Ill. Adm. Code 101.300(b)) provides that

documents will be considered filed when they are filed in conformance with the requirements

found in Section 101.302 of the procedural rules and any other filing requirements specifically

set out in other parts of the procedural rules. Section 101 .400(a)(2) of the Board’s procedural

rules

(35

Ill. Adm. Code 101 .400(a)(2)) provides that any person other than individuals must

appear through an attorney at law licensed and registered to practice law in Illinois.’

The July 15th petition filed by the Petitioner did not comply with the Board’s procedural

rules, in that it specifically wasnot filed by an attorney licensed in Illinois. The deadline for

filing a timely p~titionis set forth in both Section 40(a)(l) of the Act as well as Section 105.406

of the Board’s procedural rules. The Board cannot accept the July ~ petition as being in

conformance with its procedural rules, since it violated Section 101.400(a)(2) of the Board’s

procedural rules. Since the August 23~’filing was the first time a “petition” was filed on behalf

This requirement, also imposed pursuant to Section 1 of the Corporation Practice of Law Prohibition Act (705

ILCS 220/1) and Section 1 of the Attorney Act (705 ILCS

205/1),

was adopted by the Board in recognition that its

previous practice allowing non-attorneys to represent a corporation was not consistent with the Attorney Act and the

Corporation Practice of Law Prohibition Act.

of the Petitioner by an attorney licensed in Illinois, and since that filing was over a month after

the time allowed pursuant to the Board’s extension order dated May 6, 2004, the Board has no

choice but to conclude that the August 23”~filing was untimely. The Board must dismiss the

appeal since the only petition that conformed with the Board’s procedural rules was filed on

August 23, 2004, and pursuant to Section 101.300(b) ofthe Board’s procedural rules, that is the

date of filing an acceptable petition. That date is well beyond the deadline for filing an appeal

here, and for that reason the Board lacks jurisdiction to hear this appeal. If the Board allows the

appeal to proceed, it has granted itself relief from the requirements and prohibitions set forth in

Section 40(a)(1) of the Act and Section 105.406 of the Board’s rules; such deviation from

statutory and regulatory standards is simply not allowable.

IV. THE

BOARD CANNOT GRANT

PRO HAC VICE MOTIONS

Also included in the Board’s September 2~’order was the granting of a motion to allow

John D. Moriarty to appear

pro hac vice

before the Board. This act by the Board was taken

pursuant to Section 101 .400(a)(3) ofthe Board’s procedural rules. However, it is questionable at

best whether the Board, or any other administrative agency, has the authority to grant such relief.

In the case of People ex rel. The Chicago Bar Association v. Goodman, 366 Ill. 346, 8

N.E.2d 941 (1937), the Illinois Supreme Court held that neither the General Assembly or an

administrative agency has the authority to grant a layman the right to practice law. This holding

was been followed in the case ofPerto v. Board of Review, 274 Ill. App. 3d 485, 654 N.E.2d 232

(2~’Dist.

1995).

In Perto, the court noted that in Illinois, only licensed attorneys are permitted to

practice law. The legislature has no authority to grant a nonattorney the right to practice law

even if limited to practice before an administrative agency. The ultimate authority to regulate

and define the practice of law rests with the Illinois Supreme Court. Perto, 274 Ill. App. 3d at

493, 654 N.E.2d at 238 (Citing to, Goodman, 366 III. at 349, 8 N.E.2d at 941).

In the present situation, the Board’s authority to grant a motion

pro hac vice

rests solely

in Section lOl.400(a)(3) of the Board’s procedural rules. Pursuant to the Goodman and Perto

cases, however, only the Illinois Supreme Court and other courts of the state can grant such

motions. There is no authority that supports the contention that an administrative agency can

grant an out-of-state licensed attorney the ability to practice in Illinois in an adjudicated matter.

To the contrary, there is specific authority that neither the legislature nor an administrative

agency can allow an unlicensed individual to practice law in Illinois. But for the Board’s

September 2’~’order, Mr. Moriarty would have no basis for practicing law in the present appeal,

in that he is no different than a layperson in terms ofhis ability to practice law in Illinois.

Based upon the inherent inability ofthe Board to grant a motion

pro hac vice,

the Board

should reconsider the portion of its September 2~’order and deny the motion for admission of

Mr. Moriarty. The Illinois EPA is not raising any claims or concerns regarding Mr. Moriarty’s

qualifications as an attorney licensed in Indiana; rather, it is contesting the Board’s decision to

grant any out-of-state attorney the right to practice law before it.

V. CONCLUSION

The Illinois EPA respectfully requests that the Board reconsider its decision set forth in

the September 2m1 order and dismiss the present appeal. The failure of the Petitioner to have a

licensed attorney file the petition renders the filing itself a nullity. Also, in the alternative, the

petition filed on July

15,

2004, did not conform with the Board’s requirements and thus could not

be accepted as being filed. The only conforming petition was filed on August 23, 2004, well

after the time allowed for filing a timely petition. That filing should be dismissed for lack of

jurisdiction since it was untimely. Finally, the Board should reconsider its decision to grant the

motion

pro hac vice

and instead should deny motion on the basis that it lacks the authority to

grant such relief.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

Assistant Counsel

Special Assistant Attorney General

Division ofLegal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD)

Dated: September

15,

2004

This tiling submitted on recycled paper.

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that on September

15,

2004, I served

true and correct copies of a MOTION FOR RECONSIDERATION and TO DISMISS, by

placing true and correct copies in properly sealed and addressed envelopes and by depositing

said sealed envelopes in a U.S. mail drop box located within Springfield, Illinois, with sufficient

First Class Mail postage affixed thereto, upon the following named persons:

Dorothy M. Gunn, Clerk

Carol Sudman, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

1021 North Grand Avenue, East

100 West Randolph Street

P.O. Box 19274

Suite 11-500

Springfield, IL 62794-9274

Chicago, IL 60601

F. Ronalds Walker

Plews Shadley Racher & Braun

1346 North Delaware Street

Indianapolis, IN 46202

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

Assistant

Special Assistant Attorney General

Division of Legal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD)