BEFORE THE ILLINOIS POLLUTION CONTROL BOARD RCLERK’SE C E
OFFICE~V
E D
PEOPLE OF THE STATE OF ILLiNOIS,
)
SEP 28 2004
Complainant,
)
STATE OF ILLINOIS
)
PCB 96-98
Pollution Control Board
)
v.
)
Enforcement
)
)
SKOKIE VALLEY ASPHALT, CO., INC.,
)
EDWIN L. FREDERICK, JR., individually and as
)
owner and President ofSkokie Valley Asphalt
)
Co., Inc., and RICHARD J. FREDERICK,
)
individually and as owner and Vice President of
)
Skokie Valley Asphalt Co., Inc.,
)
Respondent
)
RESPONDENTS’
INITIAL RESPONSE TO AND MOTION TO STAY AND/OR
EXTEND TIME TO
RESPOND
TO
COMPLAINANT’S PETITION FOR ATTORNEYS’ FEES AND COSTS
The Respondents, SKOKIE VALLEY ASPHALT, CO., INC., EDWIN L. FREDERICK,
JR., individually and as owner and President ofSkokie Valley Asphalt Co., Inc., and RICHARD
J. FREDERICK, individually and as owner and Vice President ofSkokie Valley Asphalt Co.,
Inc.,, by and through their attorney, David S. O’Neill, herein respond to the Board’s Opinion and
Order ofSeptember 2, 2004 and respectfully request the Board to correct deficiencies in the
Opinion and Order that prejudice the parties rights to proceed in accordance with the Board’s
procedural rules. Similarly, the Respondents can not adhere to the scheduledtime allotment to
respond to the Complainant’s request for attorneys’ fees and costs (Opinion and Order of Sept. 2,
2004 at
23)
and request a stay and/or an extension of time to respond. In support ofthese
request, Respondent states as follows:
1.
In its Opinion and Order ofSeptember 2, 2004, the Board fails to state whether or not the
Opinion and Oder is a final opinion and order ofthe Board from which a decision on attorneys
fees and cost has been bifurcated or whether the Board will issue a final Opinion and Order after
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it has decided the issue of attorneys’ fees and costs.
2.
In accordance with Board Procedural RulelOl.520, “any motion for reconsideration or
modification of a final Board order must be filed within
35
days after receipt ofthe order”
(35Ill.Adm. Code 101
.520).
3.
In accordance with Board Procedural Rule 101.960 “final Board orders are appealable”
(3511l.Adm. Code 101.906(b)) to the appellate court pursuant to Supreme Court Rule
335.
Under
Supreme Court Rule
335,
the appeal must be made within thirty days ofthe final order (Ill. S.
Ct. Rule
335).
4.
Because the Board has failed to clearly state whether or not the Opinion and Order of
September 2, 2004 is a final opinion and order, the parties have been prejudiced in their rights to
move for reconsideration or appeal ofthe Order.
5.
In the Opinion and Order ofSeptember 2, 2004, the Board allows the Respondents only
fourteen days to reply to the Complainants petition for attorneys’ fees and costs. (Opinion and
Order ofSept. 2, 2004 at 23) However, the Board fails to allow the Respondents time for
evidentiary hearing on the issue ofattorneys’ fees and costs.
6.
The Respondents are entitled to an evidentiary hearing on the Complainant’s petition for
fees and costs. George v. Chicago Transit Authority, 107 Ill.App3d 784,787 (1St Dist., 1982)
(error not to allow evidentiary hearing).
7.
In neither the Hearing on October 30 and 31, 2003 before the Illinois Pollution Control
Board nor in its Closing Argument and post Trial Brief which was filed Instanter on January
15,
2004, did the Complainants make comment concerning Complainant’s entitlement to costs and
attorney’s fees. There was no evidence entered at the Hearing that supported either the
justification ofattorneys’ fees and costs or the amount and appropriateness ofthe costs and
attorneys’ fees that could be justified. The Complainant also made no argument made for
attorneys’ fees and costs in the Closing Argument and Post Trial Brief.
8.
By failing to petition for attorneys’ fees and cost at hearing or in closing briefs, the
Complainants have waived their right to such fees and costs and any such petition at this time
should be denied by the Board.
9.
Because the Complainant’s did not make any statements regarding attorneys’ fees and
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costs at Hearing or in the Complainant’s Closing Argument, the Respondents had no
recommendations to which to reply with exhibits, testimony, expert witnesses and cross-
examination.
10.
The law allows the Respondents the full opportunity to cross-examine the Complainants’
attorney under oath. Murukas v. Murukas, 99111. App.2d 342, 348 (1St Dist., 1968). The burden
ofproofrests upon the attorney to establish his claim for fees and costs. The Board is not bound
by the petitioning attorneys’ opinion of what constitutes a reasonable fee. Estate ofHealy,
Ill.App.3d 406,409,411 (2” Dist., 1985).
11.
The Respondents are entitled to propound interrogatories; The respondents are entitled to
request the production ofdocuments; The Respondents are entitled to issue third party subpoenas
to corroborate any representations of the Complainants’ attorneys; and the Respondents are
entitled to depose the Complainant and its attorneys. Chicago Professional Sports Limited
Partnership et. al. v. National Basketball Association, 1966 U.S. Dist., LEXIS 1525 (N.D. Ill.
1996).
12.
The Respondents are entitled to call an expert witness to opine as to the reasonableness of
the attorneys’ fees and costs demanded by the Complainant. Estate ofHealy, 137 IIl.App.3d 406,
411 (2”” Dist., 1985). See also Johns v. Klecan, 198 Ill.App.3d 1013, 1024 (Pt Dist., 1990).
13.
The fees and costs incurred by the Respondents may be used to provide the best available
comparable standard to measure the reasonableness ofComplainant’s expenditures in litigating
issues of the case. Chicago Professional Sports Limited Partnership et. al. v. National Basketball
Association, 1996 U.S. Dist. LEXIS 1525 (N.D. Ill. l996),g
14.
In its “Attorneys Fees and Costs Petition” that was filed with the Board on September 17,
2004, the Complainant’s attorneys have generated time sheets and cost sheets supported by
affidavits in an attempt to justify its petition for costs and fees. The Respondents require
evidentiary hearings and discovery to challenge these statements and investigate the possibility of
fraud and perjury on behalfofthe Complainant and their attorneys.
15.
These fabrications of costs and fees are not only without basis in the Hearing record but
are also based on facts that are unsupported by sufficient documentation and have most likely
been fabricated solely forthe purposes ofthis claim. The Complainant has failed to submit actual
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time sheets, pay stubs, pay rates, invoices or receipts to support any oftheir request for fees and
costs. The submission ofaffidavits at this juncture in the proceedings is totally improper and can
not be accepted as a substitute forevidence on the record. The Respondents need to take
depositions, propound interrogatories and review documents to prepare its arguments that these
petitions for fees and cost are not justified.
16.
The pay rate forthe Complainant’s attorneys is obviously fabricated. The payment of
attorneys’ fees based on this rate would result in an unjustified windfall for the Illinois Attorney
General’s Office. Further, the request for Attorneys’ Fees and Cost does nothing to account for
all ofthe wasted attorneys’ hours employed by the Illinois Attorney General’s Office is filing
frivolous motions, amended complaints, answering motions to object to the Complainant’s
attorney mistakes, delays and useless discovery. The Complainants need to use discovery to
determine the true pay rate and actual productive hours applied to this case. This Respondents
also need an opportunity to present expert witness testimony to prove that the Complainant’s
attorneys’ fees and hours are unjustified and possibly fraudulent.
17.
It is hard to justify a claim for attorneys’ fees and cost by the Illinois Attorney General’s
office that is approximately ten times the amount that three Respondents combined paid to
defend themselves against frivolous claims. It is also hard to justify an hourly fee for public
service that is greater than the weighted-average fee charged by the Respondents’ attorney even
though Respondents’ attorneys fees include costs. The Respondents need an opportunity to
present information on their attorneys’ fees so that these fees and costs may be used to provide a
comparable standard to measure the reasonableness ofComplainant’s expenditures in litigating
issues ofthe case.
18.
By claiming attorney’s fees for Assistant Attorney General Joel L. Sternstein, the
Complainants have again raised the issue of the Complainant’s misconduct in allowing Attorney
Sternstein to participate in this matter in clear violation of Board’s Procedural Rule Section
101.112. The rule clearly states that “no former Board Member or Board employee may
represent any other person in any Board proceeding in which he or she participated personally
and substantially as a Board Member or Board employee...” (35 Ill.Adm. Code 101.112(b)).
While this bar clearly applies to Attorney Sternstein, the Complainant demands fees for Attorney
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Sternstein’s time spent while in violation ofthe rule. The Respondents need to subpoena and
take the depositions ofthe Complainant’s attorneys, representatives ofthe Illinois Attorney
General’s Office and Members and employees ofthe Illinois Pollution Control Board to
determine not only the extent and basis ofthis misconduct but also to determine why persons
familiar with both the Board’s procedural rules and Attorney Sternstein’s employment history
with the Board allowed this misconduct to occur. The extent of the misconduct needs to be
determined to allow the Respondents to prepare arguments that payment ofAttorney Sternsteins’
fees would be unreasonable.
19.
With respect to the misconduct under 35 Il1.Adm. Code 101.112(b), the Complainants
need to perform discovery to determine if the Board’s knowingly and wantonly allowed the
violation ofthe rule or carelessly failed to develop safeguards to prevent violations ofits rules to
the extent that the Board should be barred from making a determination concerning the petition
for attorney’s fees and costs in this matter.
20.
In its “Closing Rebuttal Argument and Reply Brief’ filed with the Board on April
15,
2004, the Complainant claimed costs of
$5,574.84.
This claim was supported by an affidavit of
Assistant Attorney General Mitchell L. Cohen in which Mr. Cohen testifies that “statements set
forth in this affidavits.., are true and accurate”. In its “Attorney Fees and Costs Petition” filed
with the Board on September 17, 2004, the Complainant claimed costs of $3,482.84. This claim
was supported by an affidavit ofAssistant Attorney General Mitchell L. Cohen in which Mr.
Cohen testifies that “statements set forth in this affidavits.., are true and accurate”. There is an
indication that both the Illinois Attorney General’s Office and Assistant Attorney General
Mitchell L. Cohen committed perjury in submitting its affidavit of April 13, 2004. The
Respondents expect the Board that showed no hesitation in extracting $153,000 from the
retirement accounts of the Respondents for violation that involved primarily paper work errors
to be at least equally resolute in pursuing an experienced attorney and officer ofthe court for his
violations.
21.
The Respondents need to take the deposition ofAttorney Cohen and other representatives
ofthe Illinois Attorney General’s Office to determine the basis for possible perjury, the parties
involved in the violation and the existence ofsimilar violations in this proceeding. The
5.
Respondents need this opportunity whether or not the Board decides pursue independent
disciplinary action against Attorney Cohen and the Illinois Attorney General’s Office because the
Respondents need this information to prepare arguments that the costs are without basis and
unreasonable in addition to requiring the information forpotential disciplinary action.
Wherefore, the Respondent respectfully requests the Board to stay this proceeding in
accordance with Board Procedural Rule 101.514 (b) and/or extend the time to respond to
Complainant’s Petition for Attorneys Fees and Costs in accordance with Board Procedural Rule
101.522 to allow the Respondents to perform discovery and participate in evidentiary hearings
with respect to the Complainant’s claims in the Complainant’s Petition for Attorneys for and
Costs;.
and
The Respondents respectfully moves this Board to state whether its Opinion and Order of
September 2, 2004 is a final, appealable opinion and order ofthe Board and that such statement
be made in a timely manner to avoid prejudicing the parties right to appeal or move for
reconsideration or in the alternative stay this proceeding in accordance with Board Procedural
Rule 101.514(b) to allow the parties sufficient time to either move the Board for reconsideration
or to appeal this matter to the appellate court.
Dav’d S. O~t1t
-~
David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, Illinois 60630-1249
(773) 792-1333
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