Bethany Krajelis Sep. 18, 2013, 8:57am


The Illinois Supreme Court on Tuesday heard arguments over jurisdiction in a case that could affect a Madison County school district’s tax revenues.

At issue in the case is whether the Fourth District Appellate Court had jurisdiction to review the school district’s petitions to intervene in Wood River Petroleum Refinery’s certification proceedings before the Illinois Pollution Control Board (PCB).

On behalf of the Board of Education of Roxana Community Unit School District No. 1, Aurora attorney Stuart L. Whitt told the justices that the appellate court did have jurisdiction to review its petitions under Section 41(a) of the Environmental Protection Act.

This section states in part that any party to a board hearing or any party adversely affected by a final board order may obtain judicial review by appealing to the appellate court in the district in which the action arose.

Assistant Attorney General Richard Huszagh, however, told the justices that the appellate court was right when it determined it did not have jurisdiction to review the district’s petitions under Section 11-60 of the state’s Property Tax Code.

Under this section, any applicant or holder aggrieved by the issuance of a pollution control certification may appeal PCB orders under the Administrative Review Law.

The issue over jurisdiction stems from the school district’s unsuccessful attempt to intervene in the refinery’s certification proceedings.

Following renovations to its refinery, WRB Refining LLC in 2010 submitted 28 separate applications to the Illinois Environmental Protection Agency (IEPA) that sought certification of certain systems and devices as “pollution control facilities.”

On the IEPA’s recommendation, the PCB certified the refinery’s applications.

Because certification of these applications would allow the Illinois Department of Revenue to replace the county as the taxing authority and provide preferential tax assessments, the school district tried to intervene as its tax revenues would be affected.

The PCB denied the district’s petitions to intervene, saying that neither statutory nor regulatory framework gave it the authority to intervene in the certification proceedings.

Asserting that it did have the right to intervene, the school district in 2012 filed a petition for review that claimed it could appeal the PCB’s decision directly to the appellate court under Section 41(a).

The PCB, however, argued that Section 11-60 of the Property Tax Code controls judicial review of its decisions.

A split panel of the Fourth District Appellate Court agreed with the PCB in its December 2012 unpublished order and dismissed the school district’s appeal for lack of jurisdiction.

On behalf of the majority, Justice Robert Steigmann wrote that “permitting a party adversely affected by a final order of the Board in a pollution-control-facilities proceeding to file a direct appeal to this court would effectively render meaningless section 11-60 of the [Property Tax] Code, which only grants applicants appeal rights under the Administrative Review Law.”

He also wrote that it would “produce absurd results in that it could conceivably allow, at a minimum, applicants seeking a pollution-control-facilities certification to engage in forum shopping any potential appeal in either the circuit court or appellate court.”

Justice Thomas Appleton, however, dissented from the majority of the appeals panel, saying he would have reversed the PCB’s decision and remanded the case with directions to grant the school district’s request to intervene and conduct further proceedings.

“We should not turn the District away,” Appleton wrote in his dissent, explaining that because the district’s requests to intervene dealt with tax and environmental protection issues, both the Property Tax Code and the Environmental Protection Act apply and should be read together.

Attorneys for both sides reiterated their arguments Tuesday before the state high court, with the school district focusing on Section 41(a) and the state pointing to Section 11-60 to bolster their arguments over jurisdiction.

Whitt told the justices that there is “absolutely nothing” in the state’s Property Tax Code that prevents intervention in these matters and that it is silent on where interveners must go to seek judicial review.

He also told the court that in Reed-Custer Community School District No. 255 v. PCB, a case that dealt with a school district’s request for review of a board certification, the PCB didn’t object on jurisdictional grounds.

In response to questions posed by Chief Justice Thomas Kilbride over whether the court discussed jurisdiction in that case and “why is it different now,” Whitt said the court did not get into a detailed analysis on jurisdiction and that what is different is that “they (PCB) don’t want taxing bodies weighing in.”

Justice Robert Thomas asked what the PCB’s incentive is in situations like this, to which Whitt said he believes the board is “throwing them a bone” because it has to work with refineries and the EPA on a daily basis.

Huszagh later told the court that the PCB “finds this unprofessional” and that “there is nothing in the record to support these attacks on” the board’s “integrity.”

If the Supreme Court determines the school district did have the right to intervene and that the appellate court had jurisdiction to review its petitions under Section 41(a), then Huszagh said the PCB will “be glad to have a definite ruling” and will proceed accordingly.

He also said that the Reed-Custer case mentioned by Whitt did not deal with jurisdiction, which is at the crux of the case currently before the court.

Huszagh said if the school district is unhappy with how the court rules and how the statues at issue are written, it should go to the Illinois General Assembly.

Beth Bauer, an attorney with HeplerBroom in Edwardsville, briefly argued before the Supreme Court on behalf of the refinery.

She told the justices that if the legislature intended for taxing bodies to intervene in these types of matters, it would have explicitly provided so in state statue.

Bauer also said that while the school district is not allowed to be a party or intervene in the refinery’s certification proceedings, it could have voiced its concerns at public meetings and in other forums.

Huszagh asked the justices to uphold the lower court’s dismissal of the district’s petitions for lack of jurisdiction and Whitt told the court it should reverse the appellate court and remand with directions to allow the district to intervene.

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