70595629v1 863858 62168

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

FOX MORAINE, LLC,

Petitioner,

v.

UNITED CITY OF YORKVILLE, CITY

COUNCIL,

Respondent.

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PCB No. 07-146

FOX MORAINE’S RESPONSE TO YORKVILLE’S MOTION IN LIMINE #6

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 #6,

states as follows:

Introduction

Yorkville’s Motion #6 seeks to bar the introduction of any evidence of the City Council’s

meetings, including minutes, transcripts, or video recordings. Presumably realizing that it has no

basis for excluding the records of public meetings, and, indeed, offering no basis whatsoever for

the requested exclusion, Yorkville demands that in the alternative, Fox Moraine be required to

disclose to Yorkville in advance the exact portions of the evidence Fox Moraine will rely upon in

making its case. (Motion at ¶¶ 2, 3). Yorkville asserts this is necessary so that Yorkville will be

able to formulate all of its objections in advance. (Motion at ¶¶2, 3).

Although it would unquestionably be convenient for Yorkville if Fox Moraine were to be

prevented from introducing any evidence of fundamental fairness violations by excluding all

evidence of the City Council’s conduct or statements, there is no authority for such a ruling,

particularly where, as here, the materials Yorkville seeks to exclude are public records.

Moreover, Fox Moraine is not required to reveal its trial strategy in detail in advance of

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the hearing to facilitate Yorkville’s preparation of objections. Fox Moraine accordingly responds

that it declines to pinpoint the minutiae of its strategy and its case in advance of the hearing.

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

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, and

the denial of fundamental fairness is the crux of the appeal. Therefore, the crucial evidence in the

case will be the evidence of the absence of fundamental fairness in the proceedings.

Although 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.

Rochelle Waste Disposal L.L.C. v. City

Council of the City of Rochelle, Illinois

, PCB 03-218 (Apr. 15, 2004);

Danko v. Board of

Trustees of City of Harvey 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 of Illinois, 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),

aff'd

107 Ill.2d 33, 481 N.E.2d 664, 89 Ill.Dec. 821 (1985)).

Here, to prove its case, Fox Moraine must present evidence that would lead a reasonable

Electronic Filing - Received, Clerk's Office, April 10, 2009

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person to conclude it was denied fundamental fairness by the conduct of the proceedings and the

decision-makers. The rules provide that evidence is admissible if it is “material, relevant, and

would be relied upon by prudent persons in the conduct of serious affairs, unless the evidence is

privileged.” 35 Ill.Adm.Code 101.626(a).

Under the circumstances of this appeal, evidence of the proceedings themselves is

material and relevant, and is the kind of evidence that would be relied upon by prudent persons

in evaluating whether there has been a denial of fundamental fairness. Evidence of the meetings

themselves, therefore, offers the best possible evidence of the fundamental fairness violations.

Because the City Council meetings are the events that clearly illustrate the presence, or

absence, of fundamental fairness, and because the best evidence of those events are the records

that were contemporaneously created to memorialize them, the records are material and relevant

to this appeal. Moreover, the rules provide that business records, “whether in the form of any

entry in a book or otherwise made as a memorandum or record of any act, transaction,

occurrence, or event, may be admissible as evidence of the act, transaction, occurrence, or

event.” 35 Ill.Adm.Code 101.626(e). Here, the records at issue include the contemporaneously

created minutes of meetings, transcripts, and/or video recordings of the meetings, which were

created to record the events depicted therein, and therefore constitute admissible business

records.

Yorkville’s argument that if the public records of the meetings are to be used at the

hearing, it must be informed of the precise portions and passages to be relied upon (

e.g

., “date

and line” for transcripts, and “date and time” for video excerpts)(Motion at p. 1) is no more

availing here than it would be if Yorkville demanded that, with respect to planned use of

deposition transcripts for impeachment, its opponent be required to provide citations to page and

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line numbers for each statement about which each witness might be examined, and potentially

impeached at the hearing. Ultimately, in demanding disclosure of the precise “date and line

number” of materials Fox Moraine will rely upon when presenting its case, Yorkville is

demanding the disclosure of attorney work product and strategy. Yorkville’s explanation for this

demand is that it will allow Yorkville to formulate its objections in advance.

As the Illinois Supreme Court has explained, however, an attorney’s work product that

reveals trial strategy is privileged from disclosure in order to “protect the right of an attorney to

thoroughly prepare his case and to preclude a less diligent adversary attorney from taking undue

advantage of the former’s efforts.”

Waste Management, Inc. v. Int’l Surplus Lines Ins. Co.

, 144

Ill.2d 178, 196, 579 N.E.2d 322, 329, 161 Ill.Dec. 774, 781 (Ill. 1991). Thus, materials prepared

in anticipation of litigation that reveal the attorneys’ trial strategy are not subject to disclosure.

See id

.

Here, Yorkville has access to the full minutes, transcripts, and tapes of proceedings, and

in any event, the City Council itself is already intimately familiar with what occurred in the

proceedings below. There is, therefore, no risk of “surprise,” since the proceedings were

experienced first-hand by the Council Members, who have had possession and/or access to all

minutes, transcripts, and tapes. The fact that having a roadmap of Fox Moraine’s case would

make preparation less taxing for Yorkville’s attorney is no excuse for demanding that Fox

Moraine do Yorkville’s work.

Conclusion

Under the Act, the Board has a duty to assess the fundamental fairness of the

proceedings, and evidence of the proceedings themselves are the best evidence thereof. Although

Yorkville is entitled to know what evidence will be presented at the hearing, it is not entitled to

Electronic Filing - Received, Clerk's Office, April 10, 2009

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demand that Fox Moraine disclose its trial strategy, or the minutiae of its case. Just as it would

be improper to require a party to disclose in advance exactly which questions a party will ask of

a witness, for the purpose of facilitating the preparation of objections in advance, so too, it is

improper to demand that Fox Moraine disclose the precise statements or precise moments in the

hearing upon which it will rely in presenting its case.

Motion in Limine #6 should accordingly be denied.

WHEREFORE, Fox Moraine respectfully requests that the Hearing Officer deny

Yorkville’s Motion in Limine #6.

Dated:

Respectfully submitted,

On behalf of FOX MORAINE, LLC

_______________________________________

One of Its Attorneys

Electronic Filing - Received, Clerk's Office, April 10, 2009

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70595629v1 863858 62168

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