BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
Petitioner,
v.
UNITED CITY OF YORKVILLE,
CITY COUNCIL
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB 07- 146
FOX MORAINE'SRESPONSE TO YORKVILLE'SMOTION
IN LIMINE
No.1
NOW COMES Fox Moraine, LLC, ("Fox Moraine"), by its attorneys, Charles
Helsten and George Mueller and for its response to Yorkville's Motion In Limine #1
states and alleges as follows:
1.
This motion seeks to bar any questions, statements, arguments, testimony
or other evidence relating to possible bias, predisposition or unfairness of any city
council member other than Mayor Valerie Surd and Alderman Rose Spears. The
apparent basis for this is a claim that Fox Moraine waived the issue by not raising it as
to other council members during the siting hearing. This is essentially a re-working of
Yorkville's unsuccessful motion for protective order filed August 23,2007.
2.
As and for its response hereto, Fox Moraine, reiterates, repeats and
reincorporates by reference its response filed August 30, 2007 to Yorkville's motion for
protective order. It appears that this issue has been completely argued and briefed by
both parties, and disposed of against Yorkville by the hearing officer's order of
September 2,2007, denying a protective order.
3.
The forgoing notwithstanding, Yorkville now makes some additional
arguments based upon discovery in this case since the protective order was denied.
Electronic Filing - Received, Clerk's Office, September 29, 2008
Yorkville attempts to buttress its waiver argument by referencing at page 9 of its motion
the testimony of one of Fox Moraine's consultants, Jim Burnham, that he believes that
every city council member except for Mr. Besco, was biased. First of all Mr. Burnham's
personal beliefs are not necessarily those of Fox Moraine. Secondly, Mr. Burnham's
personal belief, developed through discovery in this matter, is completely irrelevant on
the issue of waiver, inasmuch as waiver requires actual knowledge of bias at a time
when a party could and should have objected based upon such knowledge. The
reference in Yorkville's motion that Mr. Bumham's testimony and Fox Moraine's belief
"at the time the landfill hearings were being held," is unsupported by an actual review of
the transcript of Mr. Burnham's deposition.
4.
Similarly paragraph 11 of Yorkville's motion alleging that Fox Moraine
conceded that it had opportunities to raise issue of bias as to all council members
before, during and after the landfill hearings is not supported by the reference to the
record. (Yorkville Exhibit E, page 66, lines 5-24). The specific question relied upon by
Yorkville is, "And had Fox Moraine wanted to, it could have moved to disqualify
aldermen other than these two; correct?" The answer provided by the witness who is
not necessarily speaking on behalf on Fox Moraine was, "I would guess so." This is
hardly a definitive statement and in fact demonstrates how Yorkville is reaching and
grasping at straws to try to resuscitate an argument it previously lost.
5.
Yorkville's reliance on Land and Lake's Company v. Village of Romeoville,
PCB 92-25 (June 4, 1992) is misplaced for several reasons. First of all, the trustees to
whom objection was allegedly waived were seated on the village board at the
GEORGE MUELLER
609 Etna Road
Ottawa,l1Iinois 61350
(815) 431.1500
-
Telephone
(815)
431-1501. Facsimile
george@muelleranderson.com
2
Charles Helsten
Hinshaw
&
Culbertson LLP
100 Park Avenue
Rockford,l1Iinois
61101
(815)
490-4900. Telephone
(815) 490-4901- Facsimile
chelsten@hinshawlaw.com
Electronic Filing - Received, Clerk's Office, September 29, 2008
commencement of the public hearing on the siting application. That would have been
the proper time to move for their disqualification. Secondly, even though the PCB found
waiver, they also considered the issue of whether these two trustees were biased
on the
merits. Thirdly, this
PCB decision was reversed in the Appellate Court, which found that
the applicant
did not receive a fundamentally fair hearing and reversed for a full new
hearing
in order to ensure fundamental fairness. The Appellate Court held that the
Pollution Control Board should have made meaningful inquiry into whether fundamental
fairness occurred during the local public hearing and that petitioners were denied their
right of fundamental fairness during the public hearing held by the village. Land
and
Lakes Co. vs. Pollution Control Board, 245 III. Ap. 3d 631 (3rd Dist. 1993)
6.
The other cases cited in Yorkville's motion have already been
distinguished
and responded to in Fox Moraine's previous response. Fox Moraine
would
add however, that when the city claims that a decision maker is not biased, and
the question is contested, it
is difficult for the petitioner to have actual, definitive
knowledge of disqualifying bias for purposes of waiver. For example,
in the case of
Aldermen Galinski, Leslie
and Munns, Fox Moraine now believes, based upon
information gathered
in discovery, particularly information gathered from the depositions
of Aldermen Leslie
and Munns, that these individuals actually were biased. However,
Fox Moraine did not have this information and knowledge at the time of the siting
hearing
and was therefore unable to make a motion to disqualify those three Aldermen.
Yorkville,
in effect would have the Board develop a bright line test whereby failure to
move at the outset for disqualification of a local decision maker is deemed a conclusive
GEORGE MUELLER
609
Etna Road
Ottawa, Illinois
61350
(815) 431-1500
-
Telephone
(815) 431-1501
-
Facsimile
george@muelleranderson.com
3
Charles Helsten
Hinshaw
&
Culbertson LLP
100
Park Avenue
Rockford, Illinois
61101
(815) 490-4900
-
Telephone
(815) 490-4901- Facsimile
chelsten@hinshawlaw.com
Electronic Filing - Received, Clerk's Office, September 29, 2008
waiver of the right to develop information in the future tending to show that that decision
maker actually was biased, even if knowledge of such bias did not exist at the time
of
the local public hearing. Even if there is suspicion of disqualifying bias, to require siting
applicants
to move to disqualify individuals who are merely suspected is unfair in that
such motions have a natural tendency to alienate those against whom they are directed.
7.
In the case of Aldermen Werderich, Sutcliffe and Plocher, Yorkville has
not responded to the fact that Fox Moraine never had a meaningful opportunity
to move
to disqualify those individuals. Yorkville points out that these three individuals were
elected
on April 1i
h
and the public hearing did not end until April 20
th
• However, these
three individuals were not seated as Aldermen until May
8, 2007, long after the end of
the public hearing. The May 23 and May 24, 2007, city council meetings were
exclusively for the purpose of deliberation and neither members
of the public nor the
parties were allowed to participate
in those meetings. Accordingly, that was not an
opportunity
to move for disqualification of an alderman. When the City's own ordinance
and procedures did not call for Fox Moraine's active participation after the end of the
official public hearing, failure to disrupt the subsequent deliberation meeting by yelling
"We object," can hardly
be construed as a waiver of anything.
WHEREFORE,
for the forgoing reasons, Fox Moraine prays that Yorkville's
Motion
In Limine
NO.1 be denied.
Respectfully submitted,
FOX MORAINE, LLC
GEORGE MUELLER
609 Etna Road
Ottawa,1IIinois 61350
(815) 431-1500
-
Telephone
(815)
431-1501. Facsimile
george@muelleranderson.com
By:
4
One of its attorneys
Charles Helsten
Hinshaw
&
Culbertson
LLP
100 Park Avenue
Rockford, 1IIinois 61101
(815) 490-4900
-
Telephone
(815) 490-4901. Facsimile
chelsten@hinshawlaw.com
Electronic Filing - Received, Clerk's Office, September 29, 2008
PCB No. 07-146
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
)
)
Petitioner,
)
)
v.
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL,
)
)
Respondent.
)
FOX MORAINE'S RESPONSE TO YORKVILLE'SMOTION IN LIMINE #2
NOW COMES Fox Moraine Landfill, LLC hereinafter ("Fox Moraine"),
by its attorneys,
and in opposition to Yorkville'sMotion in Limine #2, states
as follows:
Introduction
The Illinois Supreme Court declared unequivocally in
People ex reI. Birkett
v.
City of
Chicago,
184 Il1.2d 521, 705 N.E.2d 48 (1998), that there is no "deliberative process privilege"
in Illinois. This holding
by the state's highest court has never been abrogated, therefore there is
no basis for asserting deliberative process in this case, which is governed by Illinois law.
Notably, the Board'srules and regulations
do not recognize a deliberative process privilege.
Nevertheless, Respondent Yorkville asserts and seeks to invoke such a privilege,
although Yorkville's Motion concedes that an inquiry into the decision-making process would be
permissible
if there was a strong showing of bad faith or improper behavior. Yorkville asserts
that in this case there
is "no evidence...to overcome the presumption of impartiality."
(Yorkville'sMotion in Limine #2, at
~4).
This claim that there is "no evidence" of impropriety or
bad faith in this case completely ignores the evidence that Council Members not only prejudged
the siting application without hearing the evidence, their election to office was predicated on
their apparent promise to vote against it.
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Inasmuch as the Rules provide that a hearing officer must admit evidence that is relevant
and would be relied upon by prudent persons, unless the evidence is privileged
(35 Il1.Adm.Code
101.626), the Hearing Officer should deny Yorkville's Motion in Limine #2 and permit an
inquiry into the role personal bias and prejudgment played in the Council Members' decisions to
deny siting, so as to determine whether the siting proceedings comport with the Section 39.2
requirements
of fundamental fairness.
Argument
I.
The Illinois Supreme Court has declared unequivocally that there is no deliberative
process privilege in Illinois.
In support of its argument that no inquiry into the decision-making process should be
permitted here, Yorkville relies upon the Board'sholding in
Waste Management ofIllinois v. Co.
Bd. ofKankakee County,
PCB No. 04-186 (Jan. 24,2008). Yorkville points to language in that
decision concerning the importance
of safe-guarding the mental process of decision-makers.
Notwithstanding the Pollution Control Board'speriodic reference to the existence
of such
a protection, in
People ex reI. Birkett v. City ofChicago,
184 Ill.2d 521, 705 N.E.2d 48 (1998), a
case in which the City
of Chicago asserted the existence of a "deliberative process privilege," the
Illinois Supreme Court declared unequivocally that there is no "deliberative process privilege" in
Illinois.
The Supreme Court explained in
Birkett
that even though the evidentiary rules in federal
courts protect certain classes
of communications associated with the decision-making process,
the same is not true in proceedings governed by state law. Moreover, the high court noted in
Birkett
that even in federal court,"[e]xcluded from the privilege are any factual aspects of
predecisional communications... [and] the privilege is qualified in that a litigant may obtain
access to privileged communications upon a showing
of particularized need."
(Id.
at 526-27).
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Despite any potential "chilling effect" that the lack of such a privilege might have on "the candor
of government staff," the Court explained that privileges are "strongly disfavored because they
operate to 'exclude relevant evidence and thus work against the truthseeking function
of legal
proceedings.
'"
Id.
at 527. Most importantly, the Court in
Birkett
declared that:
We find these principles especially applicable under the
circumstances at bar, where the government is a party to the
litigation and, more importantly, has been charged with
malfeasance.
Id.
at 530 (emphasis added).
The Court further explained that privileges are strongly disfavored, and that it is the role
of the legislature, not the courts, to declare their existence. Because the Illinois legislature has
declined to create a deliberative process privilege, the Court was unwilling to step into the
legislature's role and declare such a privilege. This declaration by the Supreme Court that there
is no deliberative process privilege under Illinois law has never been abrogated.
Since
Birkett,
the Appellate Court in
Thomas
v.
Page,
361 Ill.App.3d 484, 837 N.E.2d
483 (2nd Dist. 2005), was asked to decide whether there is a deliberative process privilege with
respect to the judiciary. In deciding
Thomas,
the Appellate Court discussed the Supreme Court's
holding in
Birkett
that there is no deliberative process privilege in Illinois. The Appellate Court
observed that the Supreme Court in
Birkett
denied the existence of a deliberative process
privilege in the context
of a municipality. The
Thomas
Court went on to explain that because the
matter in
Thomas
pertained exclusively to the court system, not to a municipality, the Appellate
Court could was in a position to recognize a narrowly tailored "judicial" deliberative process
privilege applying solely to its own branch
of government - the judiciary - and applying only to
"intra-court communications made in the course
of the judicial decision-making process and
70575857vl 863858 62168
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concerning the court's official business."
Id.
at 494. The Court was adamant that its ruling did
not conflict with
Birkett,
explaining in no uncertain tenus that the privilege it was recognizing in
Thomas
applies only to the court system, whereas
Birkett
applied in the context of a
municipality. The Court expressly refused to "establish a privilege for another branch
of
government," deferring to the holding
in
Birkett
that this is a job for the legislature.
(Id.
at
491)(emphasis added).
Thus, it is clear that under binding Illinois precedent, there is no basis for asserting a
deliberative process privilege in a case such
as this. Although the Board has occasionally stated
that the mental processes
of decision-makers should be safeguarded absent a "strong showing of
bad faith or improper behavior," this proposition has never been found to be correct by any court
in this state.
Moreover, it should be noted that the Board's rules and regulations do not recognize the
existence
of a deliberative process privilege, and in fact the rules limit non-disc1osable
information to:
information which constitutes a trade secret; information
privileged against introduction in judicial proceedings; internal
communications
of the several agencies; information concerning
secret manufacturing processes or confidential data submitted
by
any person under the Act [415 ILCS 5/7(a)].
35 Ill.Adm.Code 101.202.
Because the Board's procedural rules make no mention
of a "deliberative process"
privilege, and because the Illinois Supreme Court's holding in
Birkett
remains good law as to
municipalities such as Respondent Yorkville, no such privilege exists under Illinois law.
70575857vl 863858 62168
Electronic Filing - Received, Clerk's Office, September 29, 2008
II.
Even if a deliberative process privilege did exist, the bad faith present in this case
would justify disregarding the privilege.
Even if the Supreme Court had not unequivocally held that no deliberative process exists
in Illinois, the Board acknowledged in
Waste Management
v.
Kankakee
that any protection
enjoyed
by decision-makers must yield where the evidence reveals "bad faith or improper
behavior."
Id.
at 27. Here, the record reveals exactly that: evidence of bad faith and improper
behavior, in the form
of bias and prejudgment.
Yorkville admitted to the Board, in a pleading filed only a week ago in PCB 08-095, that
the siting application at issue here, and the applicant, were "the biggest issues in Yorkville
in
the
last 20 years," and were "the primary issue in the last city election and change in administration."
(Yorkville's Response in Opposition to Attorney's Fees, PCB 08-095, p. l)(emphasis added).
Thus, Yorkville has conceded that the election for city officials in April 2007 was intensely
focused on the proposed landfill, for which hearings were then underway, and that this focus on
opposition to the landfill affected the outcome of the election, resulting in a turnover in city
administration.
Moreover, Yorkville provided, as Exhibit A to its Motion in Limine #3 in this case, a
front-page newspaper article quoting the campaigning Council Members as declaring, during the
pendency
of the siting proceedings, while evidence was still being presented, that,
inter alia, "I
don't think there is any such thing as a safe, state-compliant landfill"; "a landfill would be a
negative"; and "it would be a negative addition to the city. I have no question about that."
(Id.).
In contrast with the clear declarations of prejudgment made by the decision-makers in
this case, in
Waste Management
v.
Kankakee,
the case cited by Respondent, the petitioner had
attempted to show bad faith
by the decision-makers by pointing to the efforts of landfill objectors
to contact and influence the decision-makers. The evidence in that case showed, however, that
70575857v1 863858 62168
Electronic Filing - Received, Clerk's Office, September 29, 2008
the decision-makers repeatedly rebuffed those attempts and declined to discuss or comment on
the proposed landfill with the objectors or others. The Board accordingly concluded that the
evidence in that case showed "county board members generally tried to limit those
ex parte
contacts when it became apparent that the subject of the discussion would be the proposed
landfill expansion."
Id.
The Board found that nothing in the record constituted a showing of bad
faith or improper behavior, and there was, therefore, no justification for probing the decision-
makers' thought processes in that case.
Id.
Here, however, as noted above, there is a plethora of evidence showing that the Council
Members failed to follow the course of impartiality charted by the decision-makers in
Waste
Management
v.
Kankakee.
The evidence here shows that rather than maintain at least some
modicum
of impartiality, Council Members publicly and actively campaigned on a platform of
defeating the siting of a proposed landfill for which hearings were already underway, which they
themselves would vote upon, and that the siting question was "the biggest issue in 20 years" and
"the primary issue in the last city election and change in administration." (Yorkville's Response
in Opposition to Attorney'sFees, PCB 08-095,
p. 1).
This pronounced evidence of decision-maker bias, partiality, and prejudgment clearly
implicates fundamental fairness. Because there is already a strong showing of "bad faith or
improper behavior," any protection of the deliberative process would yield so as to allow an
inquiry into the role that bias played in the decision-making process.
See Waste Management
v.
Kankakee
at 27.
III.
The Council Members waived any possible privilege by discussing their own
deliberative process on
the record.
Even if a deliberative process privilege existed, the Council Members waived that
privilege by deciding to conduct their deliberations publicly, on the record, with a court reporter
70575857vl 863858 62168
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present to transcribe.
(See
Transcript of May 23, 2008 meeting, at 5-7; 14-16; 22-111).
Inasmuch as the Council Members chose to conduct their deliberations on the record, they
waived any right to invoke a privilege
as to those deliberations.
IV.
By admitting that their decision was not based on the record, the Council Members
opened the door for an inquiry into the basis upon which they made their decision.
On May 23, 2008, during the meeting in which the Council Members expressed their
opinions and conclusions on the siting criteria, the Council Members admitted they had not
actually reviewed the record. (Transcript
of May 23, 2008 at 9-16). This lack of review of the
record begs the question
of what the Council did base its decision upon, and opens the door for
an inquiry into the basis for their decision.
Conclusion
Under the Act, the Board has a duty to assess the fundamental fairness of the
proceedings,
415 ILCS 5/40.1(a), which entails a determination of whether the applicant was
judged by an unbiased decision-maker.
See, e.g., Ferguson v. Ryan,
251 Ill.App.3d 1042, 1049,
623 N.E.2d 1004, 1009, 191 Ill.Dec. 414, 419 (3rd Dist.1993).
Respondent Yorkville's attempt to invoke a so-called "privilege" and thereby shield the
bias
of the decision-makers from scrutiny is unsupported, inasmuch as the Illinois Supreme
Court has declared that there is no deliberative process privilege in Illinois. Moreover, even
if
such a privilege existed, where, as here, there is a showing ofbad faith or improper behavior, any
such protection would be overcome. Accordingly, the decision-making process
of the Yorkville
City Council Members should be examined in order to determine the role played by prejudgment
and bias in the decision-making process. Such scrutiny is essential to a determination
of whether
the decision-making process was fundamentally fair.
Finally, even
if a privilege existed, the Council Members waived any privilege
70575857vl 863858 62168
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concerning their deliberations by choosing to conduct those deliberations on the record, with a
court reporter present to transcribe. Moreover, during that deliberative session Council Members
admitted they had not reviewed the record, in large part because they didn'tfeel they had time to
review it, and in so doing, they opened the door for an inquiry into what they relied upon to
reach their decision.
WHEREFORE, Fox Moraine respectfully requests that the Board deny Yorkville's
Motion in Limine #2.
Dated:
George Mueller
MUELLER ANDERSON, P.C.
609 East Etna Road
Ottawa, IL 61350
Telephone (815) 431-1500
Facsimile (815) 815-1501
Gmueller21 @sbcglobal.net
Respectfully submitted,
On behalf
of FOX MORAINE, LLC
/s/
_
George Mueller
One
of Its Attorneys
70575857vl 863858 62168
Electronic Filing - Received, Clerk's Office, September 29, 2008
PCB No. 07-146
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
)
)
Petitioner,
)
)
v.
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL,
)
)
Respondent.
)
FOX MORAINE'SRESPONSE TO YORKVILLE'SMOTION IN LIMINE #3
NOW COMES Fox Moraine Landfill, LLC hereinafter ("Fox Moraine"), by its attorneys,
George Mueller and Charles Helsten, and in opposition to Yorkville's Motion in Limine #3,
states as follows:
Introduction
Yorkville's Motion #3 seeks to prevent the introduction of evidence concerning bias and
lack
of fundamental fairness by barring the public statements of Council Members made during
their campaigns. Yorkville's motion is predicated on the theory that anything an official says
during his or her candidacy is "inadmissible" in Board proceedings, even where, as here, those
proceedings turn on the question
of fundamental fairness arising from bias and prejudgment.
Yorkville further asserts that the statements should be barred because public officials have a
supposed constitutional right to be protected from having to respond to questions about their
public statements.
Argument
The Act mandates that the Board consider the fundamental fairness of the procedures
used by the respondent in reaching its decision. 415 ILCS 5/40.1(a) (2006).
In that regard, it is
axiomatic that a party appearing before an administrative tribunal has the right to be judged
by
70575743vl 863858 62168
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an unbiased decision maker.
See, e.g., Ferguson
v.
Ryan,
251 Ill.App.3d 1042, 1049,623 N.E.2d
1004, 1009,
191 Ill.Dec. 414,419 (3
rd
Dist.1993). Here, Fox Moraine was denied that right.
Although, as argued by Yorkville, there is a presumption that administrative decision
makers are persons
of "conscience and intellectual discipline" who are able to fairly and
objectively judge a matter based on its own facts, and may be presumed to set aside their own
personal views, a claimant may nevertheless show bias or prejudice
if the evidence "might lead a
disinterested observer to conclude that the administrative body, or its members, had in some
measure adjudged the facts as well
as the law of the case in advance of hearing it."
Danko
v.
Board ofTrustees ofCity ofHarvey Pension Bd.,
240 Ill.App.3d 633, 642, 608 N.E.2d 333,339,
181 Ill.Dec. 260, 266 (1 st Dist. 1992);
see also Waste Management ofIllinois, Inc.
v.
Pollution
Control Bd.,
175 Ill.App.3d 1023, 1040,530 N.E.2d 682, 696, 125 Ill.Dec. 524, 538 (2 Dist.
1988)(citing
E
&
E Hauling, Inc.
v.
Pollution Control Bd.,
116 Ill.App.3d 586, 598, , 451 N.E.2d
555,
71 Ill.Dec. 587 (2
nd
Dist. 1983),
affd
107 Ill.2d 33, 481 N.E.2d 664,89 Ill.Dec. 821 (1985».
As the Appellate Court explained in
E
&
E Hauling,
''unequivocal public
pronouncements in favor
of [a particular outcome] amount[s] to a sufficient prejudgment of the
merits
of the case to warrant the finding of disqualifying bias.
E
&
E Hauling, Inc.
v.
Pollution
Control Bd.,
116 Ill.App.3d 586,599,451 N.E.2d 555, 566,
71 Ill.Dec. 587, 598 (2
nd
Dist. 1983).
Yorkville argues that Council Members' statements made in advance
of the proceedings
should be barred because statements made during their campaigns concerning the Landfill "[do]
not overcome the presumption that,
as administrative officials, they were objective in judging the
siting application." Yorkville's brief at
~5.
Yorkville points to
Waste Management ofIllinois
v.
PCB,
175 Ill.App.3d 1023 (2
nd
Dist. 1988) in support of its argument, however Yorkville has cut
short the appellate court's statement
of the law in
Waste Management,
by failing to include the
70575743vl 863858 62168
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court's admonition that in spite of the presumption of impartiality, that presumption will be
overcome
if "a disinterested observer might conclude that the administrative body, or its
members, had in some measure adjudged the facts
as well as the law of the case in advance of
hearing it."
Id.
at 1040
(citing E
&
E Hauling).
In other words, the court in
Waste Management
held that the taking of a public position with respect to the proceedings does not overcome the
presumption
of impartiality unless a disinterested observer might conclude that the individuals
had "adjudged the facts as well as the law" in advance
of the hearing.
Id.
Here, by its motion, Yorkville attempts to prevent the Board from hearing the evidence
necessary to determine whether the Council Members' statements opposing the landfill were
such that they would lead a disinterested person to conclude that the decision-makers adjudged
the matter in advance
of the hearing. Without presentment of that evidence, there is no way to
answer this pivotal question. As a result, the evidence is not only not "inadmissible," as argued
by Yorkville, it is, in fact, vital to a determination
of the core issue in this appeal.
With respect to Yorkville's "free speech" argument, Yorkville cites the First Amendment
to the Constitution and 5 U.S.C.
§ 7323(c) (the "Hatch Act" - which applies only to federal
employees, and guarantees certain federal employees the right
to engage in political activity).
Fox Moraine agrees that the Council Members had a constitutional right to state their personal
opinions and to respond to questions during their campaigns. However, neither the First
Amendment nor the Hatch Act affords public officials (state or federal) the right to avoid being
asked about their public statements. More importantly, the constitutional right to make public
statements does not equate with a constitutional right to sit in judgment over a matter on which
the would-be decision-maker has made up his or her mind prior
to hearing the evidence. Indeed,
such conduct
is the very hallmark of bias, and is an anathema to the concept of fundamental
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fairness.
See E
&
E Hauling,
116 Il1.App.3d at 599.
1
Conclusion
Under the Act, the Board has a duty to assess the fundamental fairness of the
proceedings, and Council Members' statements evidencing their prejudgment
of the siting
application is therefore inherently at issue in a case such as this. As a result, the Board should
deny Motion in Limine
#3 and allow the admission of evidence and argument concerning
statements by Council Members revealing their prejudgment
of the Petitioner's siting
application.
WHEREFORE, Fox Moraine respectfully requests that the Board deny Yorkville's
Motion in Limine #3.
Dated:
Respectfully submitted,
On behalf
of FOX MORAINE, LLC
One
of Its Attorneys
1 As noted in Yorkville's brief, Counsel for the Petitioner did, indeed, argue in PCB 04-186
against the introduction
of statements made during a political campaign, however the statements
at issue in that case had been made
by a candidate running for state legislature, not for a seat on
the body that would adjudicate the pending siting application. (Tr. 22-23). Interestingly enough,
Counsel for Respondent argued in that case (PCB 04-186) that the intent
of the legislature in
39.2(d) was to allow candidates to express their general opinions on the subject oflandfills, but
not to allow decisionmakers to declare judgment as
to a particular, pending siting application on
which they would vote - the very scenario presented here.
(See
Tr. 23-25).
70575743vl 863858 62168
Electronic Filing - Received, Clerk's Office, September 29, 2008
Charles F. Helsten
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Facsimile (815) 490-4901
chelston@hinshawlaw.com
George Mueller
MUELLER ANDERSON, P.C.
609 East Etna Road
Ottawa, IL 61350
Telephone (815) 431-1500
Facsimile (815) 815-1501
Gmueller21 @sbcglobal.net
70575743vl 863858 62168
Electronic Filing - Received, Clerk's Office, September 29, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. PCB 07-146
NOTICE OF FILING
TO:
All counsel of Record (see attached Service List)
Please take notice that on September 29, 2008, the undersigned filed with the Illinois
Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, Fox Moraine's
Response to Yorkville's Motions in Limine #1, #2, and #3.
Dated:
September 29,2008
George Mueller
MUELLER ANDERSON, P.C.
609 East Etna Road
Ottawa, IL 61350
Telephone (815) 431-1500
Facsimile (815) 815-1501
Gmueller21 @sbcglobal.net
Respectfully submitted,
On behalf
of FOX MORAINE, LLC
/s/
George Mueller
One
of Its Attorneys
70535423vl 863858 62168
Electronic Filing - Received, Clerk's Office, September 29, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. PCB 07-146
NOTICE OF FILING
TO:
All counsel of Record (see attached Service List)
Please take notice that
on September 29, 2008, the undersigned filed with the lllinois
Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, Fox Moraine's
Response to Yorkville's Motion in Limine #1.
Dated:
September 29, 2008
George Mueller
MUELLER ANDERSON,
P.c.
609 East Etna Road
Ottawa, IL 61350
Telephone (815) 431-1500
Facsimile (815) 815-1501
Gmueller21@sbcglobal.net
Respectfully submitted,
On behalf of FOX MORAINE, LLC
/s/
George Mueller
One
of Its Attorneys
70535423vl 863858 62168
Electronic Filing - Received, Clerk's Office, September 29, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. PCB 07-146
NOTICE OF FILING
TO:
All counsel of Record (see attached Service List)
Please take notice that
on September 29, 2008, the undersigned filed with the Illinois
Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, Fox Moraine's
Response to Yorkville's Motion in Limine #2.
Dated:
September
29,2008
George Mueller
MUELLER ANDERSON, P.C.
609 East Etna Road
Ottawa, IL 61350
Telephone (815) 431-1500
Facsimile (815) 815-1501
Gmueller21 @sbcglobal.net
Respectfully submitted,
On
behalf of FOX MORAINE, LLC
/s/
George Mueller
One
of Its Attorneys
70535423vl 863858 62168
Electronic Filing - Received, Clerk's Office, September 29, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. PCB 07-146
NOTICE OF FILING
TO:
All counsel of Record (see attached Service List)
Please take notice that on September 29, 2008, the undersigned filed with the Illinois
Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, Fox Moraine's
Response to Yorkville's Motion in Limine #3.
Dated:
September 29, 2008
George Mueller
MUELLER ANDERSON, P.C.
609 East Etna Road
Ottawa, IL 61350
Telephone (815) 431-1500
Facsimile (815) 815-1501
Gmueller21@sbcglobal.net
Respectfully submitted,
On
behalf of FOX MORAINE, LLC
lsi
George Mueller
One of Its Attorneys
70535423vl 863858 62168
Electronic Filing - Received, Clerk's Office, September 29, 2008
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty
ofpeljury under the laws of the United States of America,
certifies that on September 29,2008, she served a copy of the foregoing upon:
Via E-Mail- hallorab@ipcb.state.il.usl
Via E-Mail- dombrowski@wildman.com
Bradley P. Halloran
Leo P. Dombrowski
Hearing Officer
Wildman, Harrold, Allen
&
Dixon
Illinois Pollution Control Board
225 West Wacker Dr.
James
R.
Thompson Center
Suite 3000
1000 W. Randolph St., Ste. 11-500
Chicago, IL 60606-1229
Chicago, IL 60601
Via
E-Mail- mblazer@enviroatty.com
Via E-Mail - michael.roth@icemiller.com
Michael Blazer
Michael Roth
Jeep
&
Blazer
Interim City Attorney
24 N. Hillside Avenue, Suite A
800 Game Farm Road
Hillside, IL 60162
Yorkville, Illinois 60560
Via
E-Mail- gmueller21@sbcglobal.net
Via
E-Mail- eweis@co.kendall.il.us
George Mueller
Eric C. Weiss
Mueller Anderson, P.C.
Kendall County State's Attorney
609 Etna Road
Kendall County Courthouse
Ottawa, IL 61350
807 John Street
Yorkville, IL 60560
Via E-mail.
HINSHAW & CULBERTSON LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
70535408v1 863858 62168
Electronic Filing - Received, Clerk's Office, September 29, 2008
