McHenry County Blog

That’s the question Judge Michael Caldwell asked rhetorically while explaining to Grafton Township litigants Thomas DiCianni why he had not been able to start the separation of powers suit until 1:30, when it had been scheduled for 10 AM.

“It was a complete surprise to me,” he said about the McHenry County Health Department’s request for a Temporary Restraining Order to stop the Moraine Waste Water Reclamation District from proceding with Phase 2 of a project to install sewers in Port Barrington.

The suit was filed against the district, called NOMO for short, and the village, but, as NOMO attorney David LeSueur pointed out, neither governments did any work on private properties where the destruction of no longer needed septic tanks was at issue.

The County Health Department wanted to issue $200 permits.

LeSueur pointed out the district had been operating thirty-two years and the issue had not arisen until about two years ago.

After reading the paperwork, Judge Caldwell came out of chambers asking, “Why is this an emergency?”

He asked Assistant State’s Attorney Kick Buelow a variation of that question several times and the answer kept coming back that it was “a violation of the ordinance.”

“I keep asking the question because I’m not getting a satisfactory answer,” Caldwell explained.

After the next attempt, the judge said,

“Other than a technical violation of the county ordinance, what is the emergency?”

“They violated the ordinance jeopardizing the safety and health of the people of McHenry County,” Buelow offered.

“There is no urgency here,” LeSueur interjected.

“NOMO has been following this procedure for thirty-two years.”

He pointed out the sanitary district requires property owners to abandon their old septic tanks as is “required by our Illinois EPA permit.”

“There is no emergency here. The county has been award of this for thirty-two years. They ignored it until two years ago.”

LeSueur explained that NOMO requires residents to hire a contractor, to pump out the tank, to crush the tank so it cannot be used again and fill it with dirt.

“In 2008, the county approached the district and said the people need permits. It’s not NOMO or Port Barrington that would need to get a permit.

“The hookup to the sewer is simultaneous to the abandonment. There is not a permit requirement for the abandonment for a septic system,” he explained.

“The standards the NOMO uses are identical to the county’s. NOMO requires compliance with the county ordinance.

“There’s no water pollution occurring.”

The NOMO attorney pointed out that its inspector has three EPA licenses.

“I’m not prepared to rule on it this morning,” Caldwell concluded.

The county attorney starting talking about rain, which LeSueur pointed out was not in the county’s pleadings.

“There are two things that concern me,” Caldwell said. “This is an attempt by the county to inject itself in the lawful (activities of NOMO) and to inject itself into Port Barrington(‘s activities).

“The county doesn’t operate sewer systems.

“These are co-equal units of local government (and I’m unwilling to impose the will of one over the other), this on an emergency basis.”

The judge then pointed out about 90 hookups were already done and asked how many more there were.

“About ninety,” LeSueur replied.

“I don’t believe it’s an emergency and I (believe) this is a dispute the County Health Department has had knowledge of for two, maybe three years. (They) should have been more diligent in pursuing it.”

Caldwell also expressed doubts at the “likelihood of (success)” in winning over a “co-equal branch of local government.”

“Counsel (for NOMO) raises a fair question about the extent of the (county) ordinance.”

And Caldwell denied the county’s request for a Temporary Restraining Order based on the “county’s authority to interfere in the operations of the defendants and the unlikelihood of success on the merits.”

Tomorrow – some of what the judge read before making his decision.

In the next section of Grafton Township Attorney Ancel Glink’s bill we get to the juicy parts.

This part, totaling just over $18,000 is entitled, “Linda Moore v. Grafton Township.” This concerns the Township Trustees’ reaction to Supervisor Moore’s Separation of Powers lawsuit.

The counter move to the Trustees having stripped Moore of most of her duties and office was filed Wednesday, March 10, 2010, and not surprisingly, the first work done by Ancel Glink appears that day—12 and three quarters hours worth.

Five lawyers were involved:

• Daniel J. Bolin
• Robert K. Bush
• Jeffrey R. Jurgens
• Keri-Lyn Krafthefer
• Scott A. Puma

Linda Moore had single practitioner John Nelson prepare her suit.

So, what did Ancel Glink do the first day?

The words “review” and “research” appear a lot. One of the cases reviewed involved Worth Township, which I believe is the one that says the Supervisor hires all employees, if there are less than five. There are less than five in Grafton Township under the Town Fund. Jurgens is researching the powers of township trustees and “retention powers of board.”

Krafthefer advises “clients of victory.” The judge did not issue a Temporary Restraining Order as Moore requested. She also begins preparing a response and counterclaim.

Thursday, March 11th saw Associate Jason T. Olsen added to the team. He worked on creating the “Pleadings section of file regarding search,” plus reviewed the TRO filing.

More research took place regarding case law about the “day-o-day management of township employees.” Two hours by Partner Rob Bush.

Meanwhile, Krafthefer was working on “research regarding forensic computer technology company to recreate missing Township records” and drafting a response to Moore’s suit, plus preparing “correspondence to (Township Administrator Pam) Fender regarding items needed for lawsuit.”

“Only” 5.75 hours billed Thursday.

Friday, March 12th billing entries on page 1 of the Moore lawsuit shows 8.5 hours. (4.5 more show up on page 2 of this section of Ancel Glink’s invoice.)

Thomas G. DiCianni, a litigator with the firm, spent an half an hour reviewing the paperwork.

Jurgens continued researching “disputes between trustees and supervisor.
Krafthefer was researching, too, and talking with Township Trustee Betty Zirk, Fender and Moore’s attorney. 4.75 hours getting ready for court.

She spent another hour and a quarter preparing an “opinion requested by Supervisor regarding Trustee’s ability to direct employees to assist with their statutory functions.”

The hearing before Judge Michael Caldwell Tuesday was supposed to be about Moore’s attempt to move phone lines so she could answer them off-site.

Friday Judge Thomas Meyer had ordered telephones to be under the control of Grafton Township Attorney Keri-Lyn Krafthefer, but since Township Supervisor Linda Moore’s attorney was in another court due to the short-noticed request for a Temporary Restraining Order (TRO), Meyer scheduled for a Tuesday hearing before Caldwell, who has Moore’s separation of powers case.

Tuesday’s hearing turned out to be as much on Moore’s having been moved out of her office by order of the Township Trustees and newly-hired Pam Fender’s having been moved into Moore’s former space than about mere telephone access.

The Trustees’ motion for a TRO to prevent Moore from switching the phone service from the township office is part of Moore’s separation of powers case being heard by Judge Michael Caldwell.

This is the same judge that put the kabash on the Trustees’ and former Supervisor John Rossi’s attempt to build a new township hall without adequate notice, and ordered a November referendum on whether voters want a new $3.5 million ($5 million with interest) township hall.

But, let’s cut to the chase. Read the court order’s language for yourself:

This cause coming on for status this 30th day of March, 2010, the Court ORDERS;

Linda Moore

1. Linda I. Moore is hereby restored to her office in the Grafton Township Hall ding the township business.2. The telephone lines shall remain in service to the Grafton Township Hall at 10109Vind, Huntley, IL 60102.

3. The access codes, access to offices, access to copy machines, faxes, mail, and any other township information shall not be restricted from any party.

4. The purpose of the Order shall be maintaining the status quo and restoring same to the last peaceable time between the parties.

5. The hearing on this case is set for April 13 and 14, 2010 from April 14 and 15, 2010.

6.The Township Administrator shall not be excluded from the office designated as the Township Main Public Office on Exhibit “A” attached to this order for reference and made a part hereof.

Discussion of the outer office part of the court order was going on between Moore attorney John Nelson and Trustees’ Ancel Glink’ litigating attorney, Thomas DiCanni, when one or more of the Trustees present—Gerry McMahon and Betty Zirk—plus Township Administrator Pam Fender said something.

“What’s the problem?” Caldwell asked sharply.

“I don’t want to hear any objection or interjection.

“If you can’t follow that simple advice, I will (hold you) in contempt of court.

“I have only used it twice, but I will use it a third time.

“Do you understand me?”

For the rest of the hearing, the three did not interrupt.

The possibility of holding Grafton Township officials in contempt of court came up in the prior suit as well. (Here’s where you can read about the earlier contempt comments.)