Oral argument — The Y-Not Project, Ltd. v. Fox Waterway Agency

Your Honor, this case on the docket is 2-15-0502, the Y-Not Project, Ltd. v. Fox Waterway Agency Margaret Horsfield, Individually and as President of the Y-Not Project Lt. Ed Hall, Plaintiff's Appellant v. Fox Waterway Agency On Voluntary Punishment and Special Purposes of Local Government Affairs Defendant at Least Paramount Objection, Plaintiff's Appellant Her name is Margaret Morrison Horsfield I know I'm a coward Defendant at Least Her name is General K. Simpson Thank you Ms. Borshia Good morning, Justice Good morning I'm Margaret Borshia, I represent the plaintiffs The first thing I want to do is make something really clear This case wasn't brought because the plaintiffs believed that the Fox Waterway Agency was culpable of Tony Borshia's death It was not filed to be vindictive or to harass them It was filed for one reason and one reason only To make the Fox Water Agency do its job Make it what, I'm sorry? Do its job As provided in the statutes And in the hopes that it will prevent severe injuries or death in the future The first issue I think we should address is the discovery In the defendant's filed motion for summary judgment It included an affidavit of the executive director of the agency, Ron Baker Who said he has been appointed to enforce their code But it didn't say whether he does that or how he does it It included a copy of the minutes that adopted a budget But it didn't attach the budget Was that for a specific year? Yes Do you remember what that year was? I have a problem It was within the years we were talking about It was a summary judgment motion Yes, I'm sorry, summary judgment motion Was it within the three years or the ten years is what my question is In any event, you didn't feel it was sufficient No, because here's the thing We needed to know not only what the budget was I needed to ask questions about it Because if you look at the budget that they did supply to us That we attached in our statement of undisputed material facts There didn't appear to be any money allocated to enforcement Even though they get over 1.5 million dollars a year In fees for selling boat stickers And the other thing they attached was their code But the problem is that the code itself Lends two questions up Did you apply this at all? They have no swimming areas That don't appear to be applied by the code Like the no wake areas, they list specific areas There's issues about no swimming There's restricted waterways Which they are obligated by statute to Does this organization have arrest powers? That's one of the things I wanted to know Because the affidavit of Ron Baker didn't say Whether they had any police officers Whether they had any patrol boats Whether they had anything to do with Can't you make that determination by reference to the statute? The reference to the statute just says In that issue which is section 7.7 The agency shall provide for the enforcement of this act And the programs implemented pursuant to And may contract with any state agency Or law enforcement agency for the purpose Up until 2011 I believe was the year They gave money to the Lake County Sheriff And the McHenry County Sheriff After that they decided that they weren't going to do it They had an intergovernmental agreement Before that with the sheriffs They decided to let the state Take care of the implementation of its code Do you know whether the sheriff's office Opted out of that agreement? No they didn't There's minutes that I attach to my Undisputed issues and material facts That has the meetings of that hearing Of that minute when they asked for money And they decided they weren't going to do it Fox Waterway Agency I spent quite some time in the state's attorney's office In New Page County In the civil division Dealing with issues of mandamus And compliance with statutes Things relating to elected officials Who may or may not be doing What the statute said they should be doing And so I have a background in Having at least a concept of what mandamus Is supposed to resolve And when I read your brief I have a problem Or a problem in my mind arose Because it seemed like the relief you were asking for Was you wanted the court to determine Whether or not Whatever it was that you were seeking From the defendant Was to be reviewed On the basis of whether or not it was reasonable No, it was The statute says The agency shall Implement reasonable programs And adopt necessary And reasonable ordinances And rules to improve and maintain The Chain of Lakes Fox Waterway Recreational area For fishing, hunting Sailing, canoeing, swimming And things like that They also are Says the agency As part of that shall adopt and implement Necessary and reasonable ordinances One of the things it says later on To create and administer A procedure that established restricted areas They have a provision in the code That establishes Restricted areas That was why we brought up The case of Tony Borshaw This was a lake that they knew had problems It was a small lake that connects to two bigger lakes And the boats would go across the lake And a lot of times they're big boats Going very fast It was exactly what they got The information on the police reports that they got Or the investigation that was done That showed the boat was 29 feet And he admitted he was going at least 40 miles an hour It's a big cigarette boat And this small lake where people Routinely ski Boatboard, tube Swim, jet ski And it's been a problem We know it's been a problem Because the meeting After Tony Borshaw's death A resident of Petite Lake Came to the Foxwater agency Hey, you knew this was a problem And now a kid's dead What are you going to do about it? And the chairman said That's not our problem We can't legislate The state has to do it We can encourage Them to be safe But we can't do anything about it That's exactly in opposition To what the statute says How do we determine what's reasonable and necessary? I mean, you're asking for an extraordinary remedy You're not just asking for a We're not a legislative body Appearing on a public comment to say Please enact this legislation You're asking this court of law To order a public These are elected officials, I think, correct? Yes Order elected officials To do something By an extraordinary writ of mandamus And so How do we determine what's reasonable and necessary? If we say Yes, you must do something And they enact one law That says boats can't be more than 24 feet I mean Is that enough? What do we tell them to do? I think this is Very similar to the case That we cited People XL Foster Which is an Illinois Supreme case In 1977 Where the petitioner saw a writ of mandamus Against the civil service commission And sought enforcement of its rules Which provide that it promulgate Rules for Competitive competition? Yes And the trial court After the trial court dismissed the petition The Illinois Supreme Court agreed With the petitioner's interpretation Of shall As being mandatory In that statute And was subject to mandamus The Illinois Supreme Court Remanded the case With two corrections to the trial court To determine If the existing rules are consistent With the opinion That they're mandatory And If not, a writ should be issued Mandating their promulgation Of proper rules Which means that all they have to do And I think the Supreme Court said it Was To issue rules That would make the determination Competitive And how they decided To make it competitive They could have used Darts Played 21 They could have Used bean bags They could have done a lot of things And the Supreme Court I don't think would have said that's wrong What the Supreme Court told the trial court Was from what we can see The rules Of the commission Are not competitive They're not based upon competition They actually, I thought they even admitted That it was based upon non-competitive No, the defendant's position That it's existing rules Provided for non-competitive promotions And thus, it's actions were proper Under the existing rules I thought, did you say non-competitive or competitive? Non-competitive That's what I'm saying, the Supreme Court said no The statute says they have to be competitive Oh, okay And so the point is If a court is supposed to order Rules about it's got to be competitive But it doesn't have to It can't decide whether Like I said, how It's to be competitive But just it's got to be competitive Well, I think that this That's why we wanted to do discovery Because you can't decide this case in a vacuum The court has to know what's going on out there That there are other dangerous situations That we are not able to get discovery on That this alone Shows that there was an existing problem They did nothing about it That I believe there are We allege that there are other dangerous issues It's the busiest And largest waterway In the United States And there's no speed limits There's all these things that are not in there And we're not saying You have to direct the court to say To the court to direct them Yes, you must do speed limits or something No, but I think the court Is certainly In its determination Can look at what's going on out there What are the patrols That they've been reduced Because of the not getting Any money And is it sufficient For this large body of water And what they didn't change Because the statute Says they shall Create and administer A procedure for establishing Restricted areas They have a procedure But they haven't done anything What about whether or not the word safe Is in the statute It's not in the statute And I cited a case that said If it's in the prayer for relief The court can either just strike it Or not Disregard it And the prayer for relief If it's improper Does not Equal that the petition Should be dismissed I understand what you're saying But the problem is Is that if the prayer for relief Is the only thing That can be granted And it relates to an act of Discretion Then it becomes A paradox And you can't sustain something That violates the concept of An exercise of discretion Well there's also A case that says if it's discretion But it's a mandatory that they do Something then you can The court can order them to go And do that To do this and then If we still feel it's not Good enough we can bring another suit But I think in this case We should have at least been allowed to do discovery And have the court hear the whole story We weren't allowed even to do discovery On the things that they put on Attached to the motion to dismiss When you say that you weren't allowed to do What discovery are you talking about? We sent out Rule 213 Interrogatories, 213F We sent out the notice to produce Which asked for 10 years And the court limited it to 3 years Didn't make them answer our 213Fs We weren't allowed to take depositions Did you do a motion to compel On the 213Fs? They did a motion to I understand that And then you didn't get an answer They didn't have to Even for the 3 years? Did you get an answer for those? They answered the notice to produce That's all they were required to Where did the trial court say That they didn't have to answer the interrogatories? The defendant argued That the only thing that mattered Was the interpretation of the statute Nothing that's going on there mattered And the trial court Kind of said Alright, well I'll give you 3 years I don't just Looking at the record I just don't see anything in the trial court's order Or anything that we have before us That shows that the trial court said I'm limiting the documentary discovery to 3 years I'm striking the interrogatories I'm striking any request for depositions And the trial court limited it to 3 years I understand that But they never mentioned the interrogatories I asked in my prayer for relief In my response That it go to 10 years That they answer the Interrogatories And that we be allowed to take depositions If we deem it necessary The court said this is all opinion The order says they get it for 3 years And he denied I mean it's not My motion asked for it And it's not in the order he did I know but I mean if you ask for something Isn't it incumbent upon you to get a ruling on it? We did He said all you're getting is the notice to produce Documents for 3 years So you didn't notice Up any depth though, right? No I wanted to get the 2 I didn't know Here's the problem They have all the documents They know the employees They know the directors They knew who had information about what And didn't want I needed to find that out So then I didn't know whether to take depositions And that may have led to other discovery Maybe to third parties But I needed to see what they knew And didn't know and what they did and didn't do Did the 3 years of docs tell you anything? They told me in the budgets That There's nothing Budgeted to Implement These rules There was The minutes that say they did not Renew Their Intergovernmental agreements with the sheriffs There were Based upon that then Based upon what you got in the 3 years Because the court didn't limit what you were seeking Just the amount of time, correct? Everything you asked for you got For 3 years So you got the 3 years in And this raised some questions That you just pointed out After you received those documents Did you file new interrogatories Asking questions about those 3 years? No Did you file a motion to reconsider the 10 year request Based upon the information you had in the 3 years? No Did you file notices of depths based upon what you had in the 3 years? No But they also told Even though what I did get Established Contested issues Material fact There are issues Is there any money budgeted for implementation? If not, how are they implementing? Do they have any police officers? Do they have patrol boats? Are they doing anything? They included The accident report For Tony Borchell So they knew what happened on Petite Lake They knew the size of the boat They knew how fast it was going We had the minutes From the next meeting In which the property owner said This is an existing problem You guys knew about What are you going to do about it? And they said we can't do anything about it It has to be from the state legislature Was that the only fatality Or serious injury That took place on the chain of lakes During the 3 years I believe there were more I've heard about more in the newspapers Wouldn't you have received documents on those? They didn't necessarily get a report This was a fatality So I don't know They certainly didn't produce any And I heard in front of the newspaper reports About two boats coming out from the lake And hit a pontoon boat And the woman was very seriously injured At least one I think there were even more I don't know what they had or didn't That's what I wanted to ask Have you ever applied I assume you live in a municipal corporation A city, town or village Yes Have you ever experienced a situation Where the people go to the city board And ask for A stop sign To be put up At a particular intersection I've been in zoning issues During hearings And things like that Can a trial judge Order that municipal corporation To put up a stop sign If it doesn't want to I don't know That certainly has This has a specific statute And it says shall And it says necessary They're the only one That can adopt these rules So the chain of lakes If they don't do it, nobody does it Are you telling me that the state of Illinois Rules relating to DUI in a boat Or reckless homicide In a boat Do not apply They do apply They're the only ones that can take And provide For restricted areas Does this agency Have the ability to keep The state police or the sheriff's department Or any municipal corporate Police officer Whose corporate boundaries Encompass The waterways Or waterway Do they have the ability to keep These people off the waterway Not that I know of But the issue is that they're getting all this money And they're not Committed to anybody to enforce it And I don't believe that they're doing any Policing themselves So this is An allocation of resource issue Well the statute says That they're supposed to implement it They said they appointed a code Enforcement officer Didn't say what he didn't do Never said I don't know what he did or didn't do But The budget Seemed to, looking at it There's certainly nothing that says For enforcement or anything like that So that To me raises the material issue Of fact Are they implementing And if they are How The other documents You know Brought to the fact What Is going on out there And what are you doing about it If anything Based on what's going on out there Are your existing codes And how you enforce it Reasonable or necessary And I think trial courts Determine things like this all the time Okay You've probably gotten another five or ten minutes More than what was allotted You'll have an opportunity A regular amount of time for rebuttal Thank you Ms. Gibson Good morning, may it please the court I'm Jennifer Gibson on behalf of the Fox Waterway Agency An unfortunate accident Occurred on Petite Lake In July 2012 This accident was caused By a man high on cocaine Drunk on alcohol This man went to jail And it's the only accident ever to occur On Petite Lake Mandamus Can't change this tragedy You mentioned before that it's An extraordinary remedy Is she asking To alter The reality Of what transpired I didn't get anything that would suggest That her request Is retroactive It seems to be Prospective in nature Prospective In that She's attempting To tell the Fox Waterway Agency How to do its duty Granted One of the duties Under the Fox Waterway Act Is to adopt reasonable programs And adopt reasonable and necessary ordinances And rules relating to Boating, sailing, swimming We did that That's all in our code book We've got a chapter related to user fees Flood regulations, night operations Noises, litter, Siltation The plaintiff Her issue with the Fox Waterway Agency seems to be How we did this She doesn't like our rules She is requesting That we adopt Daytime speed limits, boat size limits Implement No swim areas None of which We're required to do Is there anything That would suggest that your agency Has the ability to pass Misdemeanors By way of an ordinance Well We are Ordinances that are punishable With at least a year In prison No None of our ordinances Are punishable by prison They are punishable by fine We have Several Several of the ordinances Fine only Is that called a petty offense That would be a petty offense To your knowledge Does the statute provide For powers of arrest Other than Citizens arrest Which is I think implied The statute does And it's specifically Chapter 3 Appoint the executive director The co-enforcement officer He does have the ability to conduct Inspections Give warnings Give citations If he stops somebody And gives somebody a citation It's a momentary arrest It's a seizure Whether or not it's an arrest Correct I'd like I'd like to jump to the issue Of the discovery Because I believe that the plaintiff Has somewhat Misrepresented what really went on With the discovery In two years This case was pending The plaintiff never once Noticed up a deposition Nothing stopped her From noticing up a deposition She didn't do it She served Request to produce documents On me asking for Ten years of budget Rules, emails, reports And she also served 213F interrogatories I filed a motion seeking To limit the interrogatories And the 213F And to delay the answering Of the 213F interrogatories The trial court Only ruled On the request to produce documents And didn't bar her from the discovery But ruled That she was only entitled to three years And three years was more than Plenty because Mandamus looks at what you're doing now And going forward What we were doing ten years ago It wasn't relevant The court properly limited that So the trial court didn't bar her from taking deps She could have taken the dep Of Mr. Parker And She keeps She argues that The discovery would have told her How Mr. Parker Is doing his duty She could have taken that dep But moreover Even had she How he does his duty Is discretionary And I think The biggest help To your knowledge Did the trial court Ever deny The petitioner The ability To seek Interrogatories or answers to interrogatories Not at all So whether or not you did or did not answer Would be a question that has yet to be resolved By a trial judge Well we did answer And I think she admitted that we answered But for the three years Answered the interrogatories too Completely So you did the Fulfilled the request to produce for the three year period And the interrogatories Related to the three year period The 213Fs No we did not answer those We did not answer those And something it's not a record We had a 201K conference about that And my recollection from the 201K conference Is that I was going to hold off Because they weren't needed You didn't need to know my trial witnesses For purposes of the summary judgment motion And my recollection is Out of that 201K conference We were going to hold off And that's why I held off We can't order A body politic to How to exercise It's discretion But we can order it According to case law To exercise it's discretion That's absolutely correct But I think what the plaintiff is asking us to do Is use our discretion And if you look at The language in the statute A couple of places in the statute Really key in on It says we shall Implement reasonable And necessary rules Well what's reasonable Well that's for the Fox Waterway agency to decide That's discretionary What's necessary Now the first time The plaintiff argued That we were required to adopt Necessary rules Was in her reply brief So I never really had a chance to address that In the briefings But my argument is the same What's necessary That's for the Fox Waterway agency That's for the board, the legislatures To decide what is reasonable And necessary Reasonableness has no place In amending this action It screens discretionary The other thing That we're required to do Is we're required to create and administer A procedure for establishing restricted areas We did that If you look at chapter 6 Chapter 6 is devoted To restrictive areas And it contains 35 different areas where boats Can't make wake 35 different areas And then 4 different categories Of areas where boats can't anchor If you move on to Specifically section 6.06 That's the section that creates and administers The procedure for establishing The restricted areas Not once Has the Not once brought this case From day one Starting with the original complaint Through the granting Of our motion for summary judgment Did the plaintiff establish A clearly defined Rule A clearly defined duty That we failed to do When you Referred us to the Section 6.06 It looks like it's been amended Twice, correct? And yes it does Once in 2007 and 2006 And apparently that is through the Legislative process Where somebody proposes Someone proposes an amendment Somebody on the board or whatever Or the director And then there's some sort of Public input I suppose And then the board votes on it That is correct Should the trial court have Disregarded the word safe And the prayer for relief? And I'm glad you asked that With the amendment Not once Did the plaintiff Request to amend her complaint In the middle Of the motion for summary judgment The trial court Suospondi allowed her to amend Gave her an opportunity to amend Because the trial court I believe bent over backwards To try to give her her day in court She never asked To amend Never filed a motion Asking to remove that Didn't appear Twice failed to appear For the second part of the summary judgment hearing Where she could have asked to amend However Even if the trial court Did disregard The word safe Even if It doesn't change the fact that the body Of the plaintiff's complaint Was asking us To implement rules related to safety The body of her complaint And what she's Complaining about Is asking for the Fox Waterway agency To limit our boat size To enact eight times speed limits To implement no swim areas To prohibit Boating under the influence of alcohol Which is already prohibited By state statute So In the end Even if she were allowed Or the trial court Disregarded safe It wouldn't have changed the outcome But nevertheless That was her requested mandamus That's what she was asking for The plaintiff was asking for Rules Related to safety And more specifically Not required To do those things If you look at the Fox Waterway Act And another thing points to this Being discretionary Is in section 7.1 After the First sentence Where the agency shall implement Reasonable programs and adopt Necessary reasonable ordinances And rules The second sentence starts with In the case of a local ordinance Relating to the establishment Of restricted areas, speed limits Or other boating restriction That is adopted by another unit Of local government And conflicts with the agency That this ordinance or rule Will control So what they're saying is If you do Your rule will control You don't have to But if you do Your ordinance or your Rule will take precedence Shall We have to implement Reasonable programs And rules But what's reasonable How we do it That's up to the Fox Waterway agency So all the things that Opposing counsel Is citing as examples Not necessarily requests But examples of things that the Agency can do Correct We could But We're not required to And the legislature didn't see fit To enact those Those particular rules The legislature selected It's their job It's their discretion To implement What rules they believe Are warranted So Another thing In the complaint And with regard to the Second mandamus Requesting You could If you wanted Either You can either admit or deny That you could affect Every lake Other than Pettit Lake Or Petit Lake And leave Petit Lake alone I I suppose that would be I suppose that would be true We could Or you could leave all the lakes alone Or you could just work on one Well Or you could adopt an ordinance that said Whatever any Municipal corporate or state agency Has ordained or Enacted Statute wise Will We adopt the ordinance But that seems to be A superfluous redundancy And it is And you see that in a lot of municipalities And it is because they're already The law Is there any portion of this waterway That isn't affected by some regulation Either through state The Army Corps of Engineers or a Municipal corporation Or whatever that would Supposedly have some regulation On the issues that are at hand And None at all And in fact you see the Fox Waterway It's well patrolled By four different Sworn police forces You've got the Lake County Sheriff's Department out there You've got the McHenry County Sheriff's Department out there You've got DNR and The Conservation Police They're all patrolling Do the minutes show that the board decided To discontinue funding for Special patrols They did discontinue An intergovernmental Agreement unfortunately Couldn't be reached And it's not something Couldn't be what? Negotiations failed An intergovernmental agreement Could not be reached Another reason why Mandamus can't Issue for this Is you can't compel third parties Not before the court An intergovernmental agreement Takes the cooperation Not just the Fox Waterway agency But other agencies as well Does Dillon's rule Apply to this To your client Dillon's rule Marshall Dillon What do we do? Dillon's rule Is an arcane rule That basically says That Municipal corporations Do not have powers To do anything unless they're enumerated In the statute The whole thing behind home rule Was to get away from that Narrow presumption That narrow limitation And flip the presumption On its head which was With a home rule municipality They can do anything they want That is not prohibited by the legislature Based upon a 60% vote Of the legislature So Dillon's rule Didn't exist when you went to law school Or put another way It was effectively repealed But it existed when I was in law school Shortly thereafter So the point is Unless you're a home rule municipality It's very possible If not probable That Dillon's rule still applies It hasn't been repealed Or reversed or abrogated Except by statute In certain instances If you don't know I won't demand additional briefing Or anything like that In any event The point is if Dillon's rule applies Then you are limited to only Or your client is limited To only the powers and authorities That are enumerated in the statute And you can't do things In fact there was a time when Certain agencies Like mosquito abatement and weed control And townships and so on Couldn't even negotiate a contract With other Agencies to do things That they couldn't do In other words The other agency could do it But they couldn't offer money To have it done Because they didn't have the power To spend money on that thing Okay So Any other questions Your time is up Thank you Is it Ms. or Mrs. Mrs. Either one I just want to point out That the defendant's motion To limit discovery Lists the motion That asked for That we set Rule 213f Interrogatories And request to produce documents The prayer for relief Asks the court To limit in time The need of That discovery And she was talking about The 201k conference She had an affidavit Attached to it that simply said On or about June 17, 2004 Supreme Court ruled The 201k conference was held With Attorney Gibson On behalf of the Fox Waterway Agency And Attorney Borshaw on behalf of the defendant That should be plaintiffs During the 201k conference Attorney Borshaw stated she was seeking The requested easement In order to prove that the legislature Legislation would be reasonable On the part of the Fox Waterway She wanted to limit that She listed the 213 I asked that they answer the 213 And allow me to take depositions If necessary The court ruled that Limited it to three years on the notice to produce So there was a partial ruling Is what you're saying No, no, he just didn't I mean, he said that's what you're going to get Which is a partial ruling No, no, because we discussed I mean, it was at issue They put it at issue I put it at issue And the court said no, we're going to allow you to do The three years on the notice to produce Whether it was a partial ruling or not Discovery is ongoing in the case And after this ruling Then you received the three years of documents, correct? Correct Okay, so then Again, I think I mentioned this before But then you could have certainly based upon What you had before you Filed new 213s I mean, I could have But the court made it very clear That this is all I was going to get I mean Even Here's the thing Even with the three years that I got Established issues of fact They said The waters are well controlled I have information That I wanted to obtain They said there's only one Patrol for each of these agencies now Because of budget reasons And I could have discovered that evidence What they didn't say They didn't deny The problem on Petite Lake Didn't deny it existed Didn't deny they knew about it And didn't deny they didn't do anything about it And that is what Those kind of things And that raised these issues In even the materials we got Because it showed That they knew about We had a big investigation report On Tony Warsh's death And then we had the meeting The request that you have In your brief And in your motion, or response to the motion You have certain things cited Such as boat sizes, speed limits And things like that But then you also say that You're not asking for mandating this for those particular things Those are examples, correct? Exactly, like the death of Tony Warsh Is an example of a problem Here's examples of things That they don't have in there And then either the court needs to know And they have restricted area Provisions But at least according to the code They're not Letting it on the back of the floor right now Because the no wake restrictions They list all the no wake This has nothing after But every one of those suggestions That you made had to do with safety, correct? Well it had to do with Reasonable and necessary Implementation of Ordinance and regulations To promote the recreational use Of the property And to establish and administer Restrictive areas To improve and maintain, again I'm getting to the safety issue Where if in fact the court Totally disregarded The word safe in your prayer for relief It seems like these Examples that you've That you've given in your brief Relate to safety So it seems like you're going to safety Well I think safety is part of Whether or not they've adopted Necessary and reasonable ordinances To improve and maintain So you equate safety with Improve and maintain Well it's for swimming Water skiing, rowing And to improve The recreational uses Of the waterway and specifically To create And administer a procedure For establishing restricted areas They've created a procedure But they're not administrating At least there's a question of fact about that You know Even with the limited discovery I've raised numerous Issues And facts So the summary judgment Shouldn't have been granted And at that point We would have gone to discovery Done all the discovery from the trial Thank you Thank you We'll take the case under advisement To render a decision Thank you Court's adjourned