During the oral arguments presented by John Farrell, DeKalb County Assistant States Attorney, in Stop The Mega-Dump vs the DeKalb County Board, one of the judges interrupted and asked, “is fairness a matter of equity or justice?” Later when attorney Don Moran presented his arguments on behalf of Waste Management of Illinois he was asked the same question. Their answer was interesting considering the nature of the reason three appellate judges were listening to three attorneys argue against and one lawyer argue for the Stop The Mega-Dump appeal.
At issue: Was the DeKalb County Board fundamentally unfair in its execution of the process prescribed by law for approving the expansion of the DeKalb County landfill? That is the nexus of the appeal the judges are asked to consider.
If Farrell and Moran are correct and the judges should determine the issue of fairness on the basis of equity not justice then it depends on what the definition of the word “equity” is.
From the Free Online Dictionary
eq·ui·ty (kw-t)n. pl. eq·ui·ties1. The state, quality, or ideal of being just, impartial, and fair.2. Something that is just, impartial, and fair.3. Lawa. Justice applied in circumstances covered by law yet influenced by principles of ethics and fairness.b. A system of jurisprudence supplementing and serving to modify the rigor of common law.c. An equitable right or claim.d. Equity of redemption.4. The residual value of a business or property beyond any mortgage thereon and liability therein.5.a. The market value of securities less any debt incurred.b. Common stock and preferred stock.6. Funds provided to a business by the sale of stock.
[Middle English equite, from Old French, from Latin aequits, from aequus, even, fair.
The County Board, Waste Management and the Illinois Pollution Control Board all agree that since Stop The Mega-Dump could not provide a single citizen who did not attend the landfill siting application public hearing because of published rules that were waived by the hearing officer anyway then there was nothing unfair about the proceedings.
The County Board, Waste Management and the Illinois Pollution Control Board all agree that the County Board members all testified that they were not influenced by private tours of Waste Management facilities nor the need for funding for the county jail, the agreement for funding for the forest preserves, the agreement for funding the Go Green Initiative, etc., etc., etc.
The County Board, Waste Management and the Illinois Pollution Control Board all agree that even if the judges determine the process as executed was fundamentally unfair then the seven members claimed by Stop The Mega-Dump as to have documented instances showing bias then a 9-8 vote for approval of the landfill expansion would have occurred so no harm no foul.
There might be harm in that foul odor those who live, play and learn around the current leaking landfill are often subjected to. Since the expansion is the only issue under appeal consider this: The transcripts of the siting application public hearing clearly show that the expert witnesses provided by Waste Management first testified that Hydrogen Sulfide (H2S) was a nuisance gas. Their operations manager testified that the current landfill was having episodes of H2S escaping but they chose not to notify the public or their officials. Do the Google on H2S. Decide for yourself if there is harm or not.
If seven members of the board testified they were not influenced by tours and funding needs but the courts decided that they were in fact influenced could a disinterested observer conclude that maybe a few other board members were influenced, too, despite their testimony to the contrary?
From the Daily Chronicle’s report:
Mueller also argued board members made up their minds before the public hearing, as evidenced by their approval of a report that identified the tipping fees from a landfill expansion as the revenue source to expand the county jail.
But John Farrell, who represented the DeKalb County State’s Attorney’s Office, said other revenue options such as bond sales and tax increases were being weighed and no funding source has been officially approved even now.
Despite no formal approval of a revenue source, the County Board has progressed with jail expansion plans and members have mentioned the need for a landfill expansion to complete the jail project.
Not to beleaguer the point too much but could a disinterested observer conclude that Farrell was pulling the court’s leg on behalf of the County? The judges might not live around these parts but we do.
Stop The Mega-Dump’s inability to produce a single citizen to testify that they did not attend the siting application hearing because of the procedures executed in the process looms as a potential important factor in the Appellate Court’s decision.
That underlines the fundamental unfairness of it all.
As a founding member of the group, Dan Kenney being the other one, I introduced a citizen who could not attend the public hearing because of the rules of the landfill siting game. It was during my testimony at the IPCB public hearing on our appeal.
I pointed to Cortland Mayor Bob Seyller and identified him and the Town Council. Before the filing of the application Waste Management entered into a written contractual agreement with the Town of Cortland that paid the community $1 million dollars plus an ongoing per household monthly fee upon approval of the application in exchange for the Town of Cortland not objecting to or helping anyone else who might object to the expansion at the siting application hearing.
When asked why I thought that would prevent Seyller or the town board from showing up I asked if the attorney (Moran) would show up if he had a million dollars at stake. The hearing officer objected and ordered my comments to be stricken from the record.
Now, even our attorney, George Mueller, who has years of experience in the landfill siting process, says that the Illinois courts and the Illinois Pollution Control Board have long allowed landfill operators to buy off their enemies just not their judges. He thinks the Cortland contract point is moot and I still disagree. If so then the courts should be forced to admit that to the residents who must gamble on the harm of that foul odor that will likely increase with a sevenfold expansion. How fair is that?
The board of Cortland Township did formally object to the expansion. Twice. They have state statutes that indicate they have the authority to approve or reject such expansions. The County Board has completely ignored them. The Illinois Pollution Control Board never knew such ground zero objections existed. They or the Illinois courts still don’t. The landfill siting process evidently prohibits it. How fair is that?
Stop The Mega-Dump wants a fresh restart to the process so more credible expert witnesses not recruited and paid for by Waste Management (apparently you can buy your friends, too) to be examined and cross examined to determine whether the expansion poses a threat to the health, safety and quality of life for our residents. We want due process. Unfettered and unbiased.
Profits for Waste Management. Revenue for county board projects. Foul odor while living under the threat of the potential consequences of dangerous gases and the like for the residents and students. Moran and Farrell must have been referring to definition 5 (a) and (b) from above when they answered, “Equity.”
Here’s how the same dictionary defines “justice:”
justice n. 1) fairness. 2) moral rightness. 3) a scheme or system of law in which every person receives his/her/its due from the system, including all rights, both natural and legal. One problem is that attorneys, judges, and legislatures often get caught up more in procedure than in achieving justice for all. Example: the adage “justice delayed is justice denied,” applies to the burdensome procedures, lack of sufficient courts, clogging the system with meritless cases, and the use of the courts to settle matters which could be resolved by negotiation. The imbalance between court privileges obtained by attorneys for the wealthy and for the person of modest means, the use of delay and “blizzards” of unnecessary paper by large law firms, and judges who fail to cut through the underbrush of procedure all erode justice. 4) an appellate judge, the Chief Justice and Associate Justices of the U. S. Supreme Court, a member of a Federal Court of Appeal, and judges of any of the various state appellate courts.
I hope the Justices of the Second District of the Illinois Appellate Courts remember they are only as good as their names (including title). I pray justice prevails.