70595910v1 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 #7

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 #7, states as follows:

Introduction

Yorkville’s Motion #7 seeks to exclude from the hearing, Fox Moraine’s use of pleadings

from lawsuits filed by Yorkville or on its behalf, against Fox Moraine or its principals. Although

Yorkville acknowledges it initiated the lawsuits against Fox Moraine or its principals, Yorkville

nevertheless alleges that the pleadings evidencing those lawsuits “have no relevance to this

appeal” and should therefore be excluded. (Motion at ¶¶ 1,2, 3). Because the pleadings at issue

provide evidence of the decision-maker’s bias and animus toward the Applicant, they are

material and relevant to the appeal and should not be excluded.

Argument

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

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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)).

At the very heart of this appeal is the question of whether the City Council of Yorkville

harbored and in fact demonstrated bias toward Fox Moraine or its principals, or otherwise

violated the principles of fundamental fairness with respect to the landfill siting application filed

by Fox Moraine.

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). Because the question of bias is front and center in this

appeal, evidence that demonstrates a pattern of animus or bias by the decision-maker is clearly

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

in assessing whether the City Council was impartial and unbiased toward Fox Moraine.

The pleadings listed in Yorkville’s Motion in Limine #7 provide concrete evidence of

Yorkville’s pattern of animus and bias toward Fox Moraine and/or its principals, and reveal, in a

very tangible way, the extent to which Yorkville has actively pursued a vendetta against Fox

Moraine and/or its principals, which has included, but is not limited to, the filing of a series of

spurious and baseless lawsuits and claims against a Fox Moraine principal, some of which

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actions have already been dismissed as lacking any merit. Evidence of the lawsuits filed by

Yorkville against Fox Moraine and/or its principals are, therefore, material and relevant to the

question of whether Fox Moraine was denied the opportunity to be heard by an unbiased and

impartial decision-maker on its application for siting approval, and whether the proceedings to

consider the application met the standards of fundamental fairness.

Conclusion

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, a lack of fundamental fairness is at the

heart of the appeal, and it is therefore crucial to determine whether there is evidence that the

Yorkville City Council was, in fact, a biased decision-maker.

Where, as here, there is evidence that might lead a disinterested observer to conclude that

the decision-maker was biased toward the Applicant, and that the decision-maker based its

decision not upon the law and the facts, but instead upon bias and personal animus, that evidence

will help the trier of fact to decide the core question of fairness.

WHEREFORE, Fox Moraine respectfully requests that the Hearing Officer deny

Yorkville’s Motion in Limine #7.

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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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