Environmental Register – November 2011
(the so-called “tenth criterion” of Section 39.2(a)) hurt the application. Id. After the hearings closed, but before the
council’s deliberations and vote, Yorkville held an election that resulted in a new mayor (Burd) and three new
council members (Plocher, Sutcliff, Werderich). Id. FOGY leaders, including Plocher and Werderich, worked on
Burd’s mayoral campaign. Op. at ¶ 5. The new mayor and new council members allegedly campaigned on anti-landfill
platforms. Op. at ¶¶ 6, 77. The new council members participated in the deliberations and the vote denying
Fox Moraine’s application. Op. at ¶ 4.
Fox Moraine timely appealed to the Board, seeking review of the city council’s denial on the grounds that the
proceedings were fundamentally unfair and the findings on the siting criteria were against the manifest weight of the
evidence. Op. at ¶ 5.
Section 40.1(a) of the Act provides that “the Board shall include in its consideration . . . the fundamental fairness of
the procedures used by the county board or the governing body of the municipality in reaching its decision.” Op. at
¶ 57. The Second District observed that the Board is generally limited to the siting authority’s record, but that the
Board may hear new evidence when considering the fundamental fairness of the proceedings because such evidence
is often not contained in the local record. Op. at ¶ 58, citing Land and Lakes Co. v. PCB, 319 Ill. App. 3d 41, 48
(3rd Dist. 2000). The court applied the “clearly-erroneous standard” to the Board’s fundamental fairness decisions
because whether the local proceedings were fundamentally fair is a “mixed question of law and fact.” Op. at ¶ 59,
citing Peoria Disposal Co. v. PCB, 385 Ill. App. 3d 781, 796 (3rd Dist. 2008). The clearly-erroneous standard “lies
between the deferential manifest-weight-of-the-evidence standard and the de novo standard.” Id., citing Land and
Lakes, 319 Ill. App. 3d at 48.
Fox Moraine argued that the city council considered a report, the “Roth Report,” which may have contained
information outside of the record. Op. at ¶ 5. The Roth Report was prepared for Yorkville by attorney Michael Roth
of Wildman Harrold. Id. Roth was retained as city attorney by the new mayor and asked to prepare the report to
advise Yorkville on the landfill matter. Op. at ¶¶ 45, 64. In denying Fox Moraine’s motion to compel disclosure of
the Roth Report, the Board determined that the report was protected by attorney-client privilege. Op. at ¶¶ 7, 8, 62.
According to the court, the Board failed to address Fox Moraine’s argument that the Roth Report was not covered
by attorney-client privilege. Op. at ¶ 64. The court ruled that when members of the city council discussed the Roth
Report during open deliberations, they waived the attorney-client privilege. Op. at ¶¶ 64, 67-69. However, Fox
Moraine did not request that the Board inspect the report in camera to determine if Roth’s recommendations were
based upon extra-record evidence. Op. at ¶ 69. In the end, the council members stated the reasons behind their
decisions, and the court believed that there was no evidence in the record suggesting that Roth’s advice was based
upon evidence outside of the record. Id. Therefore, the court concluded that the Board’s denial of Fox Moraine’s
motion to compel disclosure of the Roth Report on the ground that it was privileged was “harmless error.” Op. at ¶¶
Deliberative Process Privilege
Next, relying upon People ex rel. Birkett v. City of Chicago, 184 Ill. 2d 521, 525 (1998) for the proposition that
there is no “deliberative process privilege,” Fox Moraine argued that the Board erred by invoking this “nonexistent”
privilege to deny Fox Moraine the opportunity to probe the council members’ bias. Op. at ¶ 70. The Illinois
Supreme Court in Birkett acknowledged that the deliberative process privilege is widely recognized in federal
courts to protect “certain classes of intra-agency communications offered in the course of governmental decision-making.”
Id., citing Birkett, 184 Ill. 2d at 526. However, the Second District continued, the Birkett court held that
adoption of the privilege for municipalities should be left to the legislature in light of the competing policies raised
by the privilege. Id., citing Birkett, 184 Ill. 2d at 532. The Second District next analyzed Thomas v. Page, 361 Ill.
App. 3d 484 (2nd Dist. 2005), which held that there is a limited but absolute judicial-deliberation privilege to
protect against the disclosure of certain communications. Op. at ¶ 71, citing Thomas, 361 Ill. App. 3d at 489, 493-
94. The Thomas court found Birkett inapplicable because it did not address the judiciary, which “‘as a co-equal
branch of government, supreme within its own assigned area of constitutional duties, is being asked to exercise its
inherent authority to protect the integrity of its own decision-making process.’” Id., quoting Thomas, 361 Ill. App.
3d at 491.
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