People ex rel. Madigan v. Stateline Recycling, LLC

• Decision Date: 27 December 2018
• Docket Number: No. 2-17-0860,2-17-0860
• Citation: 431 Ill.Dec. 682,2018 IL App (2d) 170860,128 N.E.3d 352
• Parties: The PEOPLE EX REL. Lisa MADIGAN, Attorney General of the State of Illinois, Plaintiff-Appellee, v. STATELINE RECYCLING, LLC, and Elizabeth Reents, Defendants (Elizabeth Reents, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

2018 IL App (2d) 170860

128 N.E.3d 352

431 Ill.Dec. 682

The PEOPLE EX REL. Lisa MADIGAN, Attorney General of the State of Illinois, Plaintiff-Appellee,

v.STATELINE RECYCLING, LLC, and Elizabeth Reents, Defendants

(Elizabeth Reents, Defendant-Appellant).

No. 2-17-0860

Appellate Court of Illinois, Second District.

Opinion filed December 27, 2018

Mark Rouleau, of Rockford, for appellant.

Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Aaron T. Dozeman, Assistant Attorney General, of counsel), for appellee.

JUSTICE HUDSONdelivered the judgment of the court, with opinion.

¶ 1DefendantElizabeth Reents appeals from the trial court's order finding her in "friendly contempt" and imposing a monetary sanction of $100 for failing to comply with a discovery order.The discovery order requires that she allow the Illinois Attorney General, the Illinois Environmental Protection Agency(IEPA), and their representatives to inspect her commercial property, pursuant to the Attorney General's discovery request under Illinois Supreme Court Rule 214(a)(eff. July 1, 2014).Reents argues that we should reverse the discovery order because the inspection amounts to an impermissible warrantless search of her property, in violation of her rights under the fourth amendment to the United States Constitution( U.S. Const., amend. IV ) and article I, section 6, of the Illinois Constitution( Ill. Const. 1970, art. I, § 6 ).For the following reasons, we reverse the discovery order, vacate the contempt order, and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 The subject matter of this environmental-enforcement action is a parcel of property of approximately 10 acres located at 2317 Seminary Street in Rockford (Site).Reents allegedly became the owner of the Site when she obtained a tax deed to the property; the deed was recorded on April 8, 2015.

¶ 4 On January 17, 2017, the Attorney General, "on her own motion and at the request of the Illinois Environmental Protection Agency," sued Reents and defendantStateline Recycling, LLC, for violations of the Environmental Protection Act (Act)( 415 ILCS 5/1 et seq.(West 2016) ).The Attorney General filed an amended complaint after the trial court granted Reents's motion to dismiss on the ground that the particular counts against each defendant were not separated.

¶ 5 In the amended complaint, the counts against both Reents and Stateline Recycling include open dumping (id.§ 21(a) ); disposal, storage, and abandonment of waste at an unpermitted facility (id.§ 21(e) ); open dumping resulting in litter and the deposition of construction and demolition debris (id.§ 21(p) ); and failure to pay "clean construction or demolition debris"-fill operation fees (id.§ 22.51(a) ).¹The Attorney General seeks civil penalties of $50,000 for each violation and $10,000 for each day that the violation continues, injunctive relief, and costs pursuant to the Act.Id.§§ 42, 43.

¶ 6The Attorney General alleges that Stateline Recycling and/or its corporate predecessor, Busse Development & Recycling, Inc.(Busse), conducted an operation for the dumping of construction and demolition debris at the Site.According to the amended complaint, a July 29, 2015, inspection by an IEPA inspector revealed piles of mixed concrete, brick, painted cinder blocks, asphalt, and soil at the Site, with some of the mixed material placed above the ground.There was no indication of recycling the material, although a Stateline Recycling representative relayed an intention to recycle it.The amended complaint further alleges that, at a subsequent inspection of the Site, on July 14, 2016, the IEPA inspector found the gate to the Site open but no personnel present.The inspector left, but, from his vantage point by the gate, he observed the continued presence of the piles of mixed concrete, brick, painted cinder blocks, asphalt, and soil.

¶ 7 On April 6, 2017, the Attorney General issued Reents a discovery request pursuant to Rule 214(a) for access to the Site.Rule 214(a), titled "Discovery of Documents, Objects, and Tangible Things—Inspection of Real Estate," provides, inter alia , that any party may by written request direct any other party to permit access to real estate "for the purpose of making surface or subsurface inspections or surveys or photographs, or tests or taking samples * * * whenever the nature, contents, or condition of such * * * real estate is relevant to the subject matter of the action."Ill.S. Ct. R. 214(a)(eff. July 1, 2014).The Attorney General's Rule 214(a) request sought to:

"Allow representatives of the Illinois Attorney General access to the real property controlled and/or owned by Reents located at 2317 Seminary Street, Rockford, Winnebago County, Illinois, including any buildings, trailers, or fixtures thereupon.Plaintiff requests access on May 5, 2017 at 11 a.m., or at such other time as may be agreed between the parties.At this inspection, representatives of the Illinois Environmental Protection Agency may also accompany Attorney General representatives and conduct an inspection pursuant to their authority under 415 ILCS 5/4(2014)."

¶ 8 Reents objected to the discovery request on the grounds that it was an improper attempt to circumvent the constitutional requirement for a warrant and therefore violated the fourth amendment to the United States Constitutionandarticle I, section 6, of the Illinois Constitution.

¶ 9 After unsuccessful efforts to resolve the discovery dispute pursuant to Illinois Supreme Court Rule 201(k)(eff.May 29, 2014), on July 25, 2017, the Attorney General filed a motion to compel Reents to permit the inspection.The Attorney General argued that she is entitled to inspect the Site under Rule 214(a), because the Site is relevant to the subject matter of the lawsuit: a complaint for violations of the Act pertaining to the operation of a landfill on the Site.The Attorney General also argued that IEPA representatives should be allowed to accompany her representatives during the inspection because the IEPA has its own independent statutory authority to inspect the Site pursuant to the Act.See415 ILCS 5/4(c)(West 2016)(granting the IEPA "authority to conduct a program of continuing surveillance and of regular or periodic inspection * * * of refuse disposal sites");id.§ 4(d)(1)(granting the IEPA authority "[i]n accordance with constitutional limitations * * * to enter at all reasonable times upon any private or public property for the purpose of * * * [i]nspecting and investigating to ascertain possible violations of this Act").Indeed, according to the Attorney General, landfill operations are a "highly regulated commercial activity"; thus, IEPA inspections can be reasonably anticipated.

¶ 10 In response to the motion to compel, Reents argued that there was no legal authority to support the use of Rule 214(a) to permit the government to search her property.Her position was that the prior inspections, on July 29, 2015, and July 14, 2016, amounted to unconstitutional warrantless searches and that the Attorney General sought to use this civil action to accomplish another warrantless search.Reents further disputed the characterization that she is engaged in a "highly regulated commercial activity."She stated that she is a "property owner who recently came into possession by tax purchase of a piece of property" and that "[t]here is no evidence that she has conducted or permitted the conduct of regulated activities upon her property."Reents pointed out that the Site had been ordered closed in March 2011 in a prior environmental-enforcement action, brought by the Attorney General against Busse.

¶ 11 In reply, the Attorney General maintained that the plain language of Rule 214(a) reflects that it applies to all parties in civil litigation and does not except the State.Moreover, the Attorney General argued that the lawsuit was not a criminal case and that the protections inherent in the civil discovery rules satisfy constitutional privacy concerns.

¶ 12 At the hearing on the motion to compel, the Attorney General reiterated that Rule 214(a) allows an inspection of the Site.The Attorney General also challenged Reents's expectation of privacy, because the Site is a landfill—a "highly regulated industry" subject to recurring inspections under the Act: "If you look at the regulations, you know, there are pages and pages.There are over a hundred pages of regulations for landfills.And so the idea that this is somehow an unregulated industry or * * * anything less than a highly regulated industry is, is just simply not true."

¶ 13 Reents acknowledged that the Site might have been a landfill in the past but disputed that it has been a landfill under her ownership.Reents stated that the judgment in the 2011 environmental-enforcement action was not registered in the chain of title; "had it been[,][she] probably wouldn't got [sic ] in this property."Reents also argued that the Attorney General should be required to obtain an administrative warrant, as the initiation of a civil lawsuit was not grounds to circumvent the fourth amendment.

¶ 14 Following the hearing, the trial court granted the Attorney General's motion to compel Reents's compliance with the Rule 214(a) request to inspect the Site.The trial court reasoned:

"I think Supreme Court Rule 214 does apply to all civil cases and it indicates that, that any party may request direct [sic ] by any other party permission, access to real estate for purposes of making surface or subsurface inspections, surveys, photographs, taking tests, whenever the nature[,] contents[,] or condition of the real estate is irrelevant [sic ] to the subject matter.Here, I think, clearly the subject, the subject matter is the, is the premises that is owned currently by Elizabeth Reents.

It is clearly an—alleged to the violations of the Illinois EPA that's what's alleged in the complaint.It's all about the property; it's

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