BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Notice of Filing PCB002
Service List
Response to Motion to Compel Return of Document
Exhibit 1 City Council Minutes 050807

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

FOX MORAINE, LLC

(Pollution Control Facility Siting

UNITED CITY OF YORKVILLE,

See Attached Service List

PLEASE TAKE NOTICE that on this 27

day of November, 2007, George

Mueller, one of the attorneys for Petitioner, Fox Moraine, LLC, filed via electronic

filing of the attached

Response to Motion to Compel Return of Document

with

the Clerk of the Illinois Pollution Control Board, a copy of which is herewith

served upon you.

Respectfully submitted,

FOX MORAINE, LLC

By:__/s/ George Mueller__________

One of its Attorneys

George Mueller

MUELLER ANDERSON, P.C.

609 Etna Road

Ottawa, Illinois 61350

Phone: (815) 431-1500

Fax: (815) 431-1501

george@muelleranderson.com

Electronic Filing - Received, Clerk's Office, November 27, 2007

Fox Moraine, LLC v. United City of Yorkville

Illinois Pollution Control Board

Rockford, IL 61105-1389

James R. Thompson Center

1000 West Randolph Street,

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

PCB 2007-146

Michael Roth, Interim City Attorney

24 N. Hillside Avenue, Suite A

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

James H. Knippen, II

Walsh, Knippen, Knight &

Pollock, Chartered

601 W. Liberty Dr.

Wheaton, IL 60187-4940

Electronic Filing - Received, Clerk's Office, November 27, 2007

CERTIFICATE OF SERVICE

I, Sharon Twardowski, a non-attorney, certify that I served a copy of the

foregoing

Notice of Filing

and

Fox Moraine, LLC’s Response to Motion to

Compel Return of Document

to the Hearing Officer and all Counsel of Record

listed on the attached Service list, be sending it via Electronic Mail on November

27, 2007, before 5:00 p.m.

__/s/ Sharon Twardowski______________

[x]

Under penalties as provides by law pursuant to ILL. REV. STAT.

CHAP. 110-SEC 1-109, I certify that the statements set forth

Herein are true and correct

Electronic Filing - Received, Clerk's Office, November 27, 2007

GEORGE MUELLER

609 Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

chelsten@hinshawlaw.com

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

(Pollution Control Facility Siting

UNITED CITY OF YORKVILLE,

RESPONSE TO MOTION TO COMPEL RETURN OF DOCUMENT

NOW COMES Fox Moraine, LLC (“Fox Moraine”) by its attorneys, George

Mueller and Charles F. Helsten and for its Response to the United City of

Yorkville’s Motion to Compel Return of a Document states and alleges as follows:

The motion of the United City of Yorkville (the “City”) seeks return

and/or destruction of a certain invoice for legal services rendered by the law firm

of Wildman, Harrold, Allen and Dixon, said services allegedly rendered during the

period of April 27, 2007 through May 29, 2007 and said services being in the

amount of $96,119.73. This invoice was sent by an authorized representative of

the City of Yorkville, Assistant City Administrator, Bart Olson, to Donald Hamman

of Fox Moraine on August 15, 2007, with the intent that Fox Moraine reimburse

the City of Yorkville for the amount of the invoice. Leo Dombrowski, one of the

attorneys whose efforts are partly reflected on the subject invoice sought return

Electronic Filing - Received, Clerk's Office, November 27, 2007

GEORGE MUELLER

609 Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

chelsten@hinshawlaw.com

of the same by letter dated September 28, 2007, approximately six weeks after

this request for payment had been sent to Fox Moraine.

The Pollution Control Board lacks authority to order the return or

destruction of the subject invoice. At most, the Board has authority to consider

whether or not the contents of the invoice are protected from inclusion in the

record, based upon the existence of some privilege. This is much narrower than

the return or destruction requested by the City of Yorkville. The authority for the

Board’s jurisdiction over this issue, cited in the City’s motion is Saline County

Landfill, Inc. v. Illinois EPA, PCB 04-117, in which the Environmental Protection

Agency did not ask for return of documents, but merely asked for a protective

order to prevent certain documents from being included in the record and

considered in the arguments of the parties. Interestingly, the entire Board found

that the Hearing Officer committed error in ruling that the subject documents in

Saline County were protected from consideration by some privilege.

The City, in its argument, claims that the subject invoice was

inadvertently disclosed, but provides no authority or explanation for this argument.

The City’s motion cites to its pollution control facility siting ordinance, which

provides for reimbursement for certain costs and expenses including attorney

fees related to the pollution control facility application review, hearing and siting

process. Section 13(a) of the City’s ordinance limits reimbursements to those

legal and consultant costs and other expenses “incurred by the City in conducting

the review of the request for siting approval, the subsequent public hearing and

Electronic Filing - Received, Clerk's Office, November 27, 2007

GEORGE MUELLER

609 Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

chelsten@hinshawlaw.com

the siting approval decision.” Since reimbursement is limited to these specifically

enumerated items in the City’s siting ordinance and since, as a matter of law, the

amounts of expenses for which reimbursement is sought must be reasonable, it

is axiomatic that Fox Moraine would be entitled to review invoices prior to

payment of the same. The subject invoice, unlike the inadvertent disclosures

cited in the City’s authorities, was not accidentally or negligently sent to Fox

Moraine. Instead, it was knowingly and intentionally sent by an authorized agent

of the City for the express purpose of inducing Fox Moraine to reimburse the City

for the amount of the same. In Saline County Landfill Inc., v. Illinois EPA, the

disclosure was truly inadvertent in that the subject documents were included in

the administrative record filed with the Board prior to completion of the standard

screening process used by the Environmental Protection Agency to determine

whether documents were exempt from disclosure.

The disclosure of the document in this case was neither inadvertent

nor negligent. It was intentional. What the City is really arguing is that because

the Assistant City Administrator may not have fully comprehended or even

thought about the legal consequences of the disclosure, the same was therefore

inadvertent. The City provides no authority for this proposition. The law is well

settled that persons, governmental units and corporate entities are fully

responsible for the consequences of their voluntary and intentional acts

regardless of whether they consider those consequences at the time they commit

the acts. The affidavit of Assistant City Administrator Olson is instructive in this

Electronic Filing - Received, Clerk's Office, November 27, 2007

GEORGE MUELLER

609 Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

chelsten@hinshawlaw.com

regard in that he acknowledges that on a previous occasion he sent bills for costs

and expenses to Fox Moraine, and further acknowledges that he was not aware

of the significance of sending the subject invoice. In other words, sending

invoices, bills and requests for reimbursement to Fox Moraine was apparently

part of Mr. Olson’s regular duties as Assistant Administrator and in this case he

preformed that duty without thinking about the consequences.

The City asserts that inadvertent disclosures do not waive a

privilege and cites several cases, which are so fact specific in their application

that they have no relevance here. In People v. Murry, 305 Ill. App. 3

311 (2

Dist. 1999), the Court held that a co-defendant testifying under oath in a criminal

case in response to a question about a conversation she allegedly had with her

attorney, did not waive the attorney client privilege by answering the question. In

Dalen v. Ozite Corp., 203 Ill. App. 3

18 (2

Dist. 1992), the Court held that the

defendant did not waive it’s work product privilege by allowing plaintiff’s attorney

to review its original files during discovery in civil litigation. Again, a defendant

not knowing that potentially privileged materials may be inadvertently included in

files made available to opposing party during discovery is significantly different

than one party knowingly and intentionally sending an allegedly privileged

document to another with the express purpose of securing a benefit, in this case

payment of a rather large sum of money.

Because a claim of privilege effectively withholds information from a

fact finder, it should be applied only when necessary to achieve its purpose.

Electronic Filing - Received, Clerk's Office, November 27, 2007

GEORGE MUELLER

609 Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

chelsten@hinshawlaw.com

Monfardini v. Quinlan, 2004 U.S. Dist. Lexis 10852, citing Fisher v. United States,

425 US 391 (1976). Assertions of privilege, whether attorney client or work

product, are to be narrowly construed, and the party asserting privilege against

disclosure has the burden of proving it. Monier v. Chamberlain, 35 Ill. 2

351

(1966). Illinois adheres to a strong policy of encouraging disclosure. Waste

Management v. International Surplus Lines, 144 Ill. 2

178 (1991). These

principles are particularly relevant in ruling on this motion, because the City of

Yorkville asserts and assumes as a given that its invoice is privileged. The City

offers no example of how the invoice is subject to the attorney client privilege,

points to no portion of the invoice that reveals the client’s (City’s) privileged

thoughts or communications, or provides any other explanation of why or how the

subject invoice constitutes a document subject to the attorney client privilege.

Instead the City asserts that invoices for legal services are subject to the attorney

client privilege, but the authorities cited by the City are equivocal at best on the

issue. People

ex rel

Ulrich v. Stukel, 294 Ill. App. 3

193 (1

Dist. 1997), states

in dicta that certain types of billing records may

in certain cases contain

information which may

be protected by the attorney-client privilege. However,

this specific question was not even decided in the Stukel

case. In Matter of

Witness Before the Special March 1980 Grand Jury, 729 F 2

489 (7

Circ.

1984), the Court likewise did not rule that a bill for legal services was subject to

an attorney client privilege, but again equivocally stated that in certain cases it

might be subject to such a privilege. Therefore the City is required, to support

Electronic Filing - Received, Clerk's Office, November 27, 2007

GEORGE MUELLER

609 Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

chelsten@hinshawlaw.com

the claim in its motion, to make a specific, affirmative showing as to how, where

and why any portion of the subject invoice is subject to the attorney client

privilege.

The City alternately alleges that the invoice, if not subject to the

attorney client privilege, is subject to the work product privilege. This privilege

claim is dependent upon the material being prepared in anticipation of litigation.

However, to the extent that the City relies on it’s pollution control facility siting

ordinance for its claim that Fox Moraine is responsible to reimburse the City for

the amount of the subject invoice, litigation preparation is not a subject area for

which reimbursement is allowed by the ordinance. Moreover, all the services

itemized in the subject invoice were rendered prior to an appeal being taken and

the vast majority of them were rendered prior to a final decision of the city council.

This lends further support to the fact that the subject invoice cannot contain

references to litigation preparation. If in fact, there is litigation preparation

reflected in the subject invoice, this would be evidence of prejudgment by the

City. Such prejudgment would render the proceedings fundamentally unfair. In

that case the opinions of counsel are part of the basis for Fox Moraine’s

allegations of fundamental unfairness and then subject to an “at issue” exception

to privilege, and must be disclosed. Waste Management v. International Surplus

Lines, 144 Ill. 2

178 (1991).

In order for there to be a claim of privilege a formal and legal

relationship must exist between the attorney and the client. In this case, no such

Electronic Filing - Received, Clerk's Office, November 27, 2007

GEORGE MUELLER

609 Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

chelsten@hinshawlaw.com

relationship existed. A review of the minutes of the Yorkville City Council

meetings reveals that no formal action was taken prior to or during the time the

subject services were rendered to appoint the firm of Wildman, Harrold, Allen and

Dixon to provide the services which are the subject of the invoice. The closest

reference that Fox Moraine can find in the minutes of City Council meetings

during the time period in question is a motion approving an appointment of “Mike

Roth from Wildman, Harrold, Allen and Dixon” to be the interim city attorney for a

fixed number of hours, being fifty hours per month, for a fixed fee at the meeting

of May 8, 2007. This is approximately ten days after services itemized in the

subject invoice were started, and the subject invoice reveals that the services

rendered by Mike Roth are only a fraction of the total and that the total far

exceeds the fifty hour scope of the original approval. A copy of the relevant City

Council minutes are attached hereto as Exhibit A. If, as Fox Moraine believes,

Valerie Burd, the Mayor elect, before the end of the public hearing on the Siting

Application, before taking office and without approval by the City Council,

engaged the firm of Wildman, Harrold, Allen and Dixon to provide far ranging

legal services connected to her desire to have the Siting Application denied,

when another law firm was already appointed by the City to review the

Application and provide objective advice thereon, and was performing those

services, careful scrutiny of the subject invoice is required to see if the same

contains evidence of prejudgment, bias and other fundamentally unfair conduct

by members of the City Council and the Mayor elect. It should be noted that

Electronic Filing - Received, Clerk's Office, November 27, 2007

GEORGE MUELLER

609 Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw & Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

chelsten@hinshawlaw.com

Valerie Burd was a City Council member prior to her being sworn in as Mayor,

and that Fox Moraine believes that Ms. Burd campaigned for the office of Mayor

on an anti landfill platform.

Based upon the foregoing, Fox Moraine prays that the motion to compel

return of a document filed by the City of Yorkville be denied.

Respectfully submitted,

FOX MORAINE, LLC

By:

__/s/ George Mueller______

One of its attorneys

Electronic Filing - Received, Clerk's Office, November 27, 2007