~~ED
BEFORE THE ILLINOIS POLLUTION
CONTROL BOAR~G
052005
STATE
OF
ILL
VERNON
and
ELAINE ZOHFELD,
)
Poliutt0~Contro,~~
Complainants,
)
)
v.
)
PCBO5-0193
)
(Citizen’s Enforcement, Air)
BOB DRAKE,
WABASH VALLEY SERVICE
)
COMPANY,
MICHAEL J. PFISTER,
)
NOAH D. HORTON, and
STEVE KINDER,
)
)
Respondents.
)
RESPONSE TO MOTIONS TO STAY PROCEEDINGS
NOW COME Complainants, VERNON and ELAINE ZOHFELD, through their
undersigned attorney, and submit to this
Board their Response to the Motions to
Stay
Proceedings filed by Respondents, stating as follows:
I.
The Board may grant a stay under certain circumstances and
considerations, and
may deny a stay based on these considerations.
2.
Five factors are relevant whether to grant a stay; “great weight” is not to
be given
any particular factor, including the alleged Fifth Amendment right, contrary to
Respondents’
argument.
Jacksonville
Say. Bank v. Kovack, 326
Ill App 3d
1131,
1136;
762 N.E. 2d
1138, 1142 (4th Dist. 2002).
(“.
..The
extent to which the defendant’s Fifth
Amendment rights are implicated
is a significant factor for the
AU
to
consider, but
it is
only one factor to be
weighed against others.”
Keating v.
Office of Thrift Supervision,
45 F.3d 322, 326 (9th Cir.
1994)).
3.
The five factors the Board must consider include: (1) the Complainants’
interest
in an expeditious resolution of the administrative case, including consideration of how
the delay would prejudice the Complainants;
(2) the effect on the Respondents including
their Fifth Amendment rights; (3) the impact the stay would have on the Board’s
management of its own docket and resources; (4) third party interests
in the proceedings;
and (5) the public’s interest in the pending cases.
Jacksonville
Say.
Bank, 326 Ill. App.
3d at
1142; Keating, 45
F.3d at 325.
4.
“The Constitution does not ordinarily require a stay of civil proceedings pending
the outcome of criminal proceedings.
‘In the absence ofsubstantial prejudice to the
rights ofthe parties involved,
simultaneous
parallel civil
and criminal
proceedings are
unobjectionable under ourjurisprudence.’”
Keating, 45
F.3d at 324 (citations omitted)
(quoting Securities &
Exchange Comm’n v. Dresser Indus., 628 F.2d
1368,
1375
(D.C.
Cir.), cert. denied, 449 U.S. 993
(1980)).
5.
Moreover, the mere suggestion that Fifth Amendment considerations may apply
is not sufficient to require a stay of simultaneous administrative proceedings.
“A
defendant has no absolute right not to be
forced to
choose between testi~ingin a civil
matter and
asserting his Fifth Amendment privilege.
Not only is it permissible to conduct
a civil proceeding
at the
same time as a related criminal proceeding, even if that
necessitates invocation ofthe Fifth Amendment privilege, but
it
is even permissible for
the trier of fact to
draw adverse inferences from the invocation of the Fifth Amendment
in a civil proceeding.”
Keating, 45 F.3d at 326 (citing Baxter v.
Palmigiano, 425
U.S.
308,
318
(1976)).
6.
Contrary to
Respondents’
suggestion, “there is no absolute prohibition against
simultaneous administrative disciplinary
proceedings and related criminal proceedings.”
Goodwin v. McHenry County
Sheriff’s Office Merit Comm’n,
306
III. App.
3d 251,
258,
713 N.E.2d 818,
824
(2d Dist.
1999).
2
7.
“..
.
The
pendency of criminal proceedings does not automatically assure fifth
amendment protection; there must exist some nexus between the risk ofcriminal
conviction
and the information requested.”
People
v. Kafka and Sons Building and
Supply Company. Inc.,
252 Ill.
App.
3d
115,
120,
625 N.E.2d 16,20(1st
Dist.
1993).
In
Martin-Trigona v. Gouletas,
634 F.2d
354,
362
(7th Cir.
1980), the court rejected a stay
of civil
asset discovery proceedings because the criminal defendant did not provide any
credible reason why his testimony would pose a risk of self incrimination, but instead
raised self-incrimination only as a remote
and speculative possibility.
8.
Here, no basis exists for the stay requested by
all Respondents.
9.
First, it should be
remembered that of the five persons named as Respondents
in
this matter,
only two—Kinder and Horton—even quali~’
for fifth amendment
considerations.
Respondents Drake
and Pfister are not named in the criminal
information, and therefore have no fifth amendment concerns.
Respondent Wabash
Valley Service Company is not a natural person, but instead is a corporation,
and
therefore is entitled to no
fifth amendment protections.
U.S. v. White,
322 U.S. 694,
699
(1944) (“Since the privilege against self-incrimination is a purely personal one,
it
cannot
be utilized by or on behalfof any organization, such as a corporation.”).
Respondents’
suggestion to the contrary is disingenuous.
10.
Kinder and Horton fail to articulate
any specific credible reason why proceeding
with this matter might cause them any prejudice related to their fifth amendment
privilege against self-incrimination.
Instead, they make only general, vague and
completely speculative objections that somehow during the course ofthis proceeding
they may be required to raise their fifth amendment privileges.
The other Respondents
3
make equally vague
and generalized assertions that by exercising their fifth amendment
rights, Kinder and Horton might interfere with certain undecided litigation tactics the
other Respondents might want to utilize.
11.
Simply put, despite the lengthy pleadings filed by and on behalfof all five
Respondents, not
one of them identifies any specific issue,
or nexus, between this case
and the criminal matter that could possibly implicate fifth amendment issues hr any
prejudicial
way.
Such speculative claims cannot form the basis for staying an entire
proceeding.
12.
No reason exists why Kinder and
Horton cannot raise specific fifth amendment
claims if and when, during the course of this proceeding, specific issues or questions are
raised which they feel implicate those rights.
At that time (if such a time ever comes
about) the parties, the hearing officer, and
this Board will be in
a much better position to
evaluate specific claims of potential prejudice, rather than the vague and speculative
claims made here.
13.
In point of fact, though, no nexus exists between the pending federal criminal
action and this
Board’s proceeding, and so
no real fifth amendment issue
exists, either.
As Respondents’
own documentation
shows, the federal criminal information filed
against Kinder and Horton alleges that they used “a registered pesticide in
a manner
inconsistent with
its labeling,” in violation of 7 U.S.C.
§~
136j(a)(2)(b), 136l(b)(1)(B),
and
I 36l(b)(4), and of 18
U.S.C.
§
2.
In contrast, the complaint before this Board makes
no allegations of or concerning the pesticide labels, or whether the Respondents acted
consistently or otherwise
with respect to those
labels.
Similarly, the instant Complaint
raises no
allegations of violation of any
federal laws or regulations.
Instead, this
4
complaint alleges violations of Illinois air pollution laws; such violations simply have no
nexus whatsoever with the label violations raised
in the federal criminal case.
It is highly
likely
that this entire
case may proceed to final decision without ever once qualif~’ing
Kinder or Horton to assert fifth amendment privileges.
14.
It bears noting—indeed, it bears emphasizing—that Respondents have made no
similar motion
in the pending Hamilton
County civil case noted in their motions.
Even
though that civil
case has already resulted
in a substantial amount ofdocument exchange,
not once have any of these Respondents suggested to the circuit court that the civil
lawsuit should be stayed until the criminal case
is resolved.
In fact, in their pleadings
before this
Board they expressly state that they do not want this case stayed during
pendency ofthe civil action!
Rather than bona fide concern over self-incrimination
issues, then, it appears that Respondents simply do not want this Board to reach the
merits of Complainants’
complaint.
15.
The
factors for considering a stay provide Respondents no comfort.
As
Respondents themselves acknowledge, the facts surrounding the flagship event in
Complainants’ complaint (the May 5, 2000 overdrift) is now five years old!
The delay
championed by Respondents would
soon create problems of proof and of stale evidence.
Rather than staying this matter, this Board should expedite this ease for as quick a
resolution on the merits as possible!
16.
Again, Respondents have voiced no specific, tangible
prejudice to them or
anyone else by proceeding with this
case.
17.
Respondents claim
that the stay
would pose no inconvenience to this Board.
However, having
a case such as this merely tread water with no
advancement whatsoever
5
would hardly seem an effective or efficient use of this Board’s resources,
particularly
since there is no good reason for doing so.
Moreover, the legislative declaration for Title
II of the Environmental Protection Act recognizes air pollution as “a menace
to public
health and welfare,” causing numerous ill effects, and the purpose of both that Title and
of this action is to “restore, maintain, and enhance the purity ofthe air of this State.”
415
ILCS
5/8.
That purpose can hardly be
accomplished if the case is indefinitely stayed.
18.
The Respondents baldly and without
any factual or legal authority claim
that na
third parties have any interest in this case, and that the public has no interest, either.
This
is categorically false.
Recently a local (southern Illinois) television station aired a report
on Respondents’ overdrift and Complainants’
injuries.
Counsel for Complainants has
been in
communication with both
the Illinois Attorney General’s Office and the Illinois
Environmental
Protection Agency, both of which indicated an interest in this case and its
outcome.
And much more importantly, every man, woman, and child in Illinois has a
right to
a healthful environment, and a statutory right to
be free from poisonous emissions
that cross property boundaries from any source, be
it a spray truck or a factory.
The
entire State
therefore has a strong interest in this
case and its outcome,
and in
its
expeditious resolution.
19.
Respondents erroneously assert that this case involves only a discrete single
instance of spraying poisonous chemicals into the atmosphere for dispersal onother
properties. In fact, though, Respondents’
own pleadings reveal that they are serial
violators of this
State’s air pollution laws.
The May 2000
incident was the second direct
discharge onto Complainants’
property, and the combined effect of those two incidents
virtually destroyed Complainants’
herd of thoroughbred race horses.
Respondents’
6
actions have resulted inj~ administrative proceedings by the Illinois Department of
Agriculture against Wabash Valley Service Company (in both cases Wabash
Valley
raised no defense), and has resulted in both a civil lawsuit
and a criminal prosecution.
In
addition to the overdrifts that directly effected
Complainants, the evidence will also show
that Wabash Valley Service Company and other Respondents routinely overdrift other
locations as well.
Hence, the behavior sought to
be controlled by
this Board
is not
isolated or sporadic, and is a very
real and continuing threat,
both to
the public and to the
environment.
WHEREFORE
Complainants, VERNON and ELAINE ZOHFELD, request that
this Board DENY the motions for stay filed by Respondents, and direct the hearing
officer to set this matter for an early and expeditious hearing.
Respectffilly submitted,
Vernon and Elaine Zohfeld,
Complainants,
By their attorney,
HEDINGER
AW OFFICE
By
Steph
F.
Hedi
g
Hedinger Law Office
2601
South
Fifth Street
Springfield,
IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
7
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
RE
C El VE D
CLERKS OFFICE
VERNON and ELAINE ZOHFELD,
)
A
)
Complainants,
)
STATE OF ILLINOIS
)
Pollution Control
Board
v.
)
PCB
05-193
)
(Enforcement, Air)
BOB
DRAKE, WABASH VALLEY SERVICE
)
COMPANY, MICHAEL J. PFISTER,
)
NOAH D. HORTON, and STEVE KINDER,
)
)
Respondents.
)
NOTICE OF FILING AND PROOF OF SERVICE
The
undersigned
certifies
that
an
original
and
nine
copies
of
the
foregoing
Response to
Motions
to
Stay
Proceedings and
of this
Notice
of Filing
and
Proof of
Service, were served
upon the Clerk of the Illinois Pollution Control
Board,
and one copy
to
each of the following parties of record in
this
cause
by
enclosing same
in an
envelope
addressed to:
Dorothy Gunn, Clerk
Carol
Webb, Esq.,
Hearing Officer
Illinois Pollution
Control Board
Illinois Pollution Control
Board
James R.
Thompson Center
1021
North Grand Avenue East
100
W.
Randolph
St., Suite
11-500
P.O.
Box
19274
Chicago, IL
60601
Springfield,
IL 62794-9274
Thomas G.
Safley
Thomas H.
Bryan
Gale W.
Newton
Fine &
Hatfield, P.C.
HODGE DWYER ZEMAN
520 N.W. Second Street, P.O.
Box 779
3150 Roland Avenue
Evansville, IN 47705-0779
P.O.
Box
5776
Springfield,
IL 62705-5776
with
postage fully prepaid,
and
by
depositing
said
enve
ope
in
a
U.S.
Post Office
Mail
Box
in Springfield,
Illinois before 5:30 p.~~heryofAugust,2OO5~~9
Hedinger Law Office
2601
South
Fifth Street
Springfield,
IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
This documentprepared on recycled paper
RECEIVED
CLERK’S
OFFICE
AUG
052005
STATE OF
ILLINQ,8
Pollution Control 8Oard
STATE OF ILLINOIS
)
)
COUNTY OF SANGAMON
)
AFFIDAVIT
OF
STEPHEN F. HEDINGER
Affiant, Stephen F. Hedinger, first being duly sworn, deposes and
called upon to testify in this
matter, he
would
be competent to
state upon
knowledge as follows:
1.
Affiant,
duly
licensed to practice law within the State of Illinois,
is counsel for
Complainants Vernon and
Elaine Zohfeld in
a matter pending before the
Illinois Pollution Control
Board as ease
PCB 05-0193.
This affidavit supports
Complainants’
Response to Motions to
Stay Proceedings filed in
that case.
2.
All factual assertions made in
the Response to Motions to Stay Proceedings
are
true
and correct, to the best ofAffiant’s
knowledge and
belief.
FURTHER AFFIANT SAYETH NOT.
Sz4hen
F. Hedinger
7
Subscribed and
sworn to
before me,
a Notary ~blic,
this rday
of August,
2005.
states that, if
personal
Public
