IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, WHEATON, ILLINOIS KIM FRACHEY, et al.

, Plaintiffs, v. PLANNED PARENTHOOD OF ILLINOIS, et al., Defendants. ) ) ) ) ) ) ) ) ) )

No. 2008 MR 261

Hon. Paul M. Fullerton, Judge Presiding

RESPONSE TO DEFENDANTS MOTION FOR PROTECTIVE ORDER Defendants seek a blanket protective order under Illinois Supreme Court Rule 201(c)(1) to prevent plaintiffs from pursuing the written discovery ordered previously by the Court. The motion should be denied summarily: First, defendants did not attempt the consultation required by Rule 201(k). Second, defendants blatantly misrepresent plaintiffs cause of action. After almost five years of proceedings in this matter, defendants actions serve only to delay by several more months discovery that should have proceeded long ago. I. Defendants Blanket Motion Must Be Summarily Denied, As They Have Not Complied With Supreme Court Rule 201(k).

Illinois discovery rules require defendants to consult and try to resolve discovery differences prior to moving for relief and to certify they have done so before seeking the courts intervention: Every motion with respect to discovery shall incorporate a statement that counsel *** after personal consultation and reasonable attempts to resolve differences have been unable to reach an accord or that opposing counsel made himself *** unavailable *** or was unreasonable in attempts to resolve differences. Ill. S. Ct. 201(k) (eff. July 1, 2002). Here, plaintiffs have not served written discovery, having been prevented from doing so due to defendants delay. See, plaintiffs motion for extension of time for written discovery, filed

June 14, 2012 (recounting delay). Defendants motion did not include the required statement of compliance with Rule 201(k), as defense counsel has not attempted to consult with plaintiffs counsel on this matter. Rule 201(k) is mandatory. Williams v. A.E. Staley Manufacturing Co., 83 Ill.2d 559, 566 (1981). The Illinois Supreme Court directs that, [i]n the absence of compliance with Rule 201(k) the trial court should simply [dismiss] the motion. Williams, at 566. Defendants motion should be denied and plaintiffs allowed to proceed with discovery. II. Defendants Misrepresent the Thrust of Plaintiffs Count I, Which Seeks to Remedy Violations of Law, Not to Review Administrative Decisions.

Plaintiffs complaint lays out their claims in detail (see, e.g., count I, par. 95(a)-(m), attached hereto as exhibit A), starting with plaintiffs claim that the current not-for-profit use by the defendants in a B-B business boulevard district is prohibited by the Aurora Zoning Ordinance. Plaintiffs count I includes claims under section 11-13-15 of the Illinois Municipal Code, 65 ILCS 5/11-13-15, a section which allows citizens to act as private attorneys general to remedy zoning and building violations; section 14.1-2 of the Aurora Zoning Ordinance, which allows a property owner to file suit to remedy a violation of that ordinance; and fraud. These claims are free-standing bases for relief, independent of the administrative review process. Plaintiffs claims under these theories are focused squarely on defendants and their actions, not on the actions of Aurora officials. Section 11-13-15 is a valid grant to municipal authorities of the State's police powers to enforce zoning and building ordinances to promote the public health, welfare and safety. The extension of this enforcement authority to adjacent landowners or tenants is to afford relief to private citizens whose municipal officials are slow or reluctant to act, or where the local

authorities' actions are not protective of their interests. Launius v. Najman, 129 Ill.App.3d 498, 502 (1st Dist. 1984) (internal citations omitted). Defendants argue that, because they claim to have received all the necessary permits and approvals from the City of Aurora, plaintiffs claims are not based on any present violation of the Aurora Zoning Ordinance (motion, p. 2). Plaintiffs do not concede this point, as claimed by defendants. In fact, plaintiffs allege (see, e.g., 2d amd. & supp. cmplt., par. 95(b), (c), (d), (e), (f), etc.) and demonstrate in their complaint repeatedly that defendants construction and operation of the facility is not in accord with binding Aurora zoning and building law. Defendants further argue that the actions of Aurora administrative officials in granting permits and approvals must be considered legislative decisions by this Court. (Motion, p. 2). This sweeping assertion is clearly false, and defendants lead case on this point, Dunlap v. Village of Schaumburg, 394 Ill.App.3d 629 (1st Dist. 2009), does not support them. In Dunlap, the Appellate Court was faced with a challenge to the validity of an ordinance, adopted by the duly elected Village Board of Schaumburg, a legislative body. Dunlap, at 631 (The Village board voted to adopt this recommendation and passed an ordinance granting the requested zoning variation on August 8.). In this case, plaintiffs seek to enforce the ordinances of Aurora, not challenge them. The Aurora City Council, which holds and exercises the legislative power, was absent from the process of issuing the permissions and approvals that defendants try to rely upon in this case. It is clear that no special use application was ever made or considered, nor any amendment tried to rezone the property, nor any variance applied for or granted. The permissions and approvals cited by defendants are wholly administrative, and provide no refuge for defendants against the clear text of Auroras ordinances. See, e.g., Ad-Ex, Inc. v. City of Chicago, 207 Ill.

App. 3d 163, 169 (1st Dist. 1990) ("A municipality must follow its own valid ordinances."); see also, Grotto v. Little Friends, Inc., 104 Ill. App.3d 105 (2nd Dist. 1982) (county had no authority to issue a building permit for a [special] use *** under its zoning ordinance). Moreover, defendants position that administrative permits and approvals must be challenged as legislative decisions deemed valid unless arbitrary and capricious would permanently tie the hands of municipalities when their administrative officials take unauthorized actions, including actions based on fraud as is alleged here. See, e.g., Morgan Place v. City of Chicago, 2012 IL App (1st) 091240, 40 (If a municipality were held bound through equitable estoppel by the unauthorized acts of governmental employees, the municipality would remain helpless to remedy errors and forced to permit violations to remain in perpetuity.). Even in defendants lead case, Dunlap, the Appellate Court recognizes that a municipalitys actions or inactions do not serve to protect a zoning or building violator against a neighbor asserting a claim under section 11-13-15. Dunlap v. Village of Schaumburg, 394 Ill.App.3d 629, 643 (1st Dist. 2009) (In this case, *** the Village granted the Wehmeiers a variance and a building permit to build the patio room at issue. Therefore, argues the Village, under the undisputed facts, the Wehmeiers have not committed any violation of the Zoning Enabling Act and are not proper defendants. *** It would seem that if the variance were invalid, it would not extend any protection to the Wehmeiers against suit by a neighbor under section 1113-15, even though that neighbor could not use that section to challenge the variance through a direct suit against the Village. (internal citations omitted)). Up to now, the actions of defendants have been shrouded, with plaintiffs forced to piece together their claims based on the public record in this matter, consisting mainly of those documents the City of Aurora chose to produce in the course of a Zoning Board of Appeals

proceeding almost 5 years ago, a proceeding ended prematurely on a preliminary motion to dismiss. No sworn (or unsworn) testimony has ever been allowed in this matter. No documents have ever been produced pursuant to the binding power of a subpoena. Defendants political power and their provision of abortion services should not exempt them from the strictures of the discovery process, the Supreme Court Rules, and the laws of Illinois and the City of Aurora. Finally, defendants have the temerity to assert numerous fact-based affirmative defenses in their answer (see, e.g., fourth affirmative defense (laches, estoppel, waiver), fifth affirmative defense (unclean hands)) and then demand that plaintiffs not be allowed discovery. Plaintiffs must be allowed discovery on the affirmative defenses and on their own claims. III. Independent Discovery of Relevant Facts Is Essential Here Because Defendants Deception Has Tainted the Administrative Record.

Plaintiffs also allege that the administrative record is tainted by defendants alleged deceptions. Count I charges that defendants threw a cloak of deception over the whole zoning process in order to prevent Auroras officials, as well as the public and plaintiffs, from learning the truth about its plans to open an abortion business in Aurora. The deception prevented Aurora from reaching a correct zoning determination, or even compiling an adequate administrative record. Plaintiffs have a right to discover what the true facts are, and so discovery necessarily must extend beyond the administrative record. For example, at 31 of their complaint, plaintiffs allege that, when the Planned Parenthood defendants filed their initial application for a zoning permit in July 2006, a nonprofit land use could be permitted on the property, but only pursuant to a special use permit issued by the City Council, after notice and public hearing. The paragraph continues that [n]one of the Planned Parenthood defendants ever sought such a special use and that [n]or did any Planned Parenthood defendant ever seek such rezoning of the subject property. While

plaintiffs have found no evidence that a rezoning or special use application was made, based on the administrative record in this matter, defendants have denied these allegations. In this instance, either defendants have improperly denied what is true or the administrative record is incomplete and inadequate. Defendants further claim that the administrative record is complete as to issues of fraud and deception because the record includes two reports1 by experts hired by the City of Aurora. Neither expert conducted an investigation into the facts, but relied totally on facts reported by the City, so there is no basis whatsoever for concluding that all the facts have been laid out in the public record. Plaintiffs can only determine this by the normal discovery process. IV. Defendants Own Cases Contradict Its Claim that Discovery Should be Restricted to the Administrative Record.

Defendants cite Dunlap v. Village of Schaumburg as their lead case in support of their position that discovery outside the public record is improper, but they admit (at p. 3, fn.2, of their Motion) that the parties in Dunlap took discovery, including deposition[s]. Some discovery was conducted also in USA Group Loan Services, Inc. v. Riley, 82 F.3d 708, 715 (7th Cir. 1996), another case cited by defendants in support of their position. These concessions show that the scope of discovery is not restricted to an administrative record, even in cases where an agencys determination is at issue. V. Plaintiffs Have a Broad Right to Full Disclosure of Relevant Facts, Not a Shut Down of Discovery that Serves to Protect and Continue Defendants Pattern of Deception.

Plaintiffs have the burden of proof as to their allegations and so enjoy a broad right to discovery. Under Rule 201(b), discovery extends to full disclosure regarding any matter

The expert opinions misidentified both the zoning of the property and the planned development district ordinance governing the propertys zoning. See, 2d amd. & supp. cmplt., par. 74.

relevant to the subject matter involved in the pending action.2 Full disclosure means just that: [f]ull and complete answers to all relevant questions. Boettcher v. Fournie Farms, Inc., 243 Ill.App.3d 940 (5th Dist. 1993). Relevance means admissible facts and facts leading to admissible facts. TTX Co. v. Whitley, 295 Ill.App.3d 548, 556 (1st Dist. 1998). Discovery may be denied when the information sought is irrelevant to the issues presented, Id. at 557, but defendants nowhere identify what information sought would be irrelevant. Protective orders may be sought to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression. Rule 201(c)(1). Protective orders cannot be used to violate the spirit of full disclosure during discovery. Klick v. R.D. Werner Company, Inc., 38 Ill.App.3d 575, 579 (1st Dist. 1976). A protective order is, therefore, improper when, as is the case here, defendants seek to use it to completely shut down inquiry into their illegal conduct. The Illinois Supreme Court has cautioned that discovery is not a tactical game, because it is intended *** for the purpose of ascertaining the merits of the case. Williams, at 566. Defendants motion seeks not to prevent abuse but to prevent plaintiffs from ascertaining the facts necessary to prove their case. WHEREFORE, plaintiffs pray that defendants motion for a protective order be denied and that they be granted all other relief on the premises to which they are justly entitled. Respectfully submitted, /s/ Peter Breen One of plaintiffs attorneys Of Counsel: Thomas Brejcha Peter Breen (DuPage # 225827) Thomas More Society,
Ill. S. Ct. 201(b) (eff. July 1, 2002) provides that, a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action to the claim or defense existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts.
2

A public interest law firm 29 So. LaSalle St., Suite 440 Chicago, IL 60603 Tel. 312-782-1680 Fax 312-782-1887 Thomas Olp (DuPage #26807) Attorney at Law 2111 Comprehensive Drive Aurora, IL 60505 Tel. 630-851-4722 x4202 Fax 630-851-5040

CERTIFICATE OF SERVICE I, Peter Breen, an attorney of record in this matter, hereby certify that I served this document on counsel for defendants by placing this response and all attachments thereto in the United States Mail, first class postage prepaid, at 29 S. LaSalle St., Chicago, Illinois, in an envelope addressed to Christopher B. Wilson Perkins Coie 131 S. Dearborn St, Ste 1700 Chicago, IL 60603-5559 on Monday, July 23, 2012. /s/Peter Breen

construction began. Instead, plaintiffs are left to complain of zoning and building violations in the teeth of a fully-completed facility and to stand against their own municipal government, which has crumbled in the face of Planned Parenthood, a multimillion-dollar corporation and one of the top political donors and powerbrokers in the state of Illinois. o. Plaintiffs have no adequate remedy at law to repair or redress the harm that they have suffered and they are threatened with still worse irreparable harm in the immediate future if this illegal land use is not enjoined and abated. XV. CAUSES OF ACTION COUNT I IN THE ALTERNATIVE TO COUNTS II, III, IV, & V DECLARATORY JUDGMENT UNDER 735 ILCS 5/2-701 AND INJUNCTION UNDER 65 ILCS 5/11-13-15, AZO 14.1-2, AND GENERAL EQUITABLE POWERS (Plaintiffs v. Defendants) 1-93. Plaintiffs reallege 1-93 as if fully set forth herein. 94. The Code of Civil Procedure, at 735 ILCS 5/2-701, provides that, [t]he court

may, in cases of actual controversy, make binding declarations of rights at the instance of anyone interested in the controversy. 95. Plaintiffs contend that the following acts are illegal: a. The use of the property by Planned Parenthood, which was at all times relevant intended by the Planned Parenthood defendants to be a non-profit, tax-exempt and charitable operation, including political headquarters, meeting rooms and community organizing, as well as the provision of health-related services, was and remains an ongoing prohibited use in this B-B Business Boulevard zoning district, under the Aurora Zoning Ordinance, which prohibits [s]ocial service agencies, charitable organizations, health-related 45

Exhibit A

facilities, meeting halls and similar uses when not operated for pecuniary profit in such a zoning district. b. The final plan was untimely submitted and filed after the deadline established by the relevant zoning ordinances for submission of said final plans. c. The plans for the development, as submitted and constructed, violated numerous other requirements of the B-B zoning district without benefit of valid and legal variations, modifications, or exceptions from the strictures of the applicable zoning ordinances. d. By use of fraud, including material misrepresentations and omissions to state material facts as to (1) the intended use and tenancy of the property, (2) the zoning requirements applicable to the property, and (3) the true impact of the property on the surrounding neighborhood and community, the Planned Parenthood defendants illegally obtained final plan approval, building permit approval, and other permit approval from Aurora. e. The Planned Parenthood defendants knowingly filed and prosecuted an incomplete and deceptive petition for final plan approval and applications for permit approvals, including making material misrepresentations as to (1) the intended tenancy and use of the property, (2) the zoning requirements applicable to the property including parking, setback, and landscaping, and (3) the true impact of the property on the surrounding neighborhood and community, even though the Aurora Zoning Ordinance and Aurora Building Code required them to file and prosecute proper and complete petitions and applications.

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f. The building and other permits purported to authorize development of the property in violation of relevant zoning ordinances, including purporting to authorize construction (1) for a prohibited use, (2) in violation of Aurora zoning requirements, and (3) in the absence of a zoning permit, even though the Aurora Zoning Ordinance and Aurora Building Code forbid such construction and the issuance of permits that purport to authorize such illegal construction. g. Prior to issuance of a final certificate of occupancy, the Planned Parenthood defendants planted a tree line that remains today and extends into the visibility clearance zone required for driver safety, established under the Aurora Zoning Ordinance. h. The certificate of occupancy issued without an application for that certificate being filed by the developer, even though both the Aurora Zoning Ordinance and Aurora Building Code require the filing of such an application. i. The zoning administrator did not issue the certificate of occupancy as required by the Aurora Zoning Ordinance. j. The certificate of occupancy did not include certain statements required by Aurora law, including statements that the facility and the proposed use of the facility comply with all provisions of the Aurora Zoning Ordinance and the Aurora Building Code. k. The certificate of occupancy issued for a property without a valid final plan for the property, without valid building and other permits for the property, and with illegal construction on the property, all in violation of the Aurora Zoning

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Ordinance and Aurora Building Code, which prohibit issuance of a certificate of occupancy for a property in violation of Aurora zoning and building laws. l. New parking spaces were added to the property based on a revision to an illegal final plan, which necessarily renders the revision illegal, and without the permits required by Aurora law. m. Plaintiffs lacked meaningful and timely notice of the violations on the property due to the deception and fraud perpetrated by the Planned Parenthood defendants, and if they are somehow barred from proceeding before this Court on equitable grounds in order to secure a ruling on the merits of their claims as to zoning and building code violations, then plaintiffs contend that they will have suffered a deprivation of liberty and property interests without due process of law, including the rights to notice and hearing at a meaningful time and in a meaningful manner, and also that they have been singled out for irrational, discriminatory and arbitrary mistreatment by the City of Aurora and its municipal co-defendants. 96. Defendants disagree with the plaintiffs that these contentions render invalid, null,

and void ab initio and illegal the approvals, permits, and certificate of occupancy for, and the construction on and occupancy of the property. 97. 98. 99. disputes. 100. The Illinois Municipal Code, at 65 ILCS 5/11-13-15, provides that: Plaintiffs and defendants are in actual controversy over the matters alleged herein. Plaintiffs are interested in the controversy. Plaintiffs thus seek declaratory relief under 735 ILCS 5/2-701 as to the foregoing

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