Madison - St. Clair Record

Friday, April 3, 2020

McGlynn affirmed in denying sanctions sought by asbestos removal company

By The Madison County Record | May 17, 2016

Asbestos 10

MOUNT VERNON – St. Clair County Circuit Judge Stephen McGlynn properly denied sanctions that an asbestos removal company sought against the Illinois Department of Public Health, Fifth District appellate judges ruled on May 10. 

They rejected an appeal from Lake Environmental Inc., which claimed the department vindictively litigated a claim it knew it would lose. 

Justice James Moore wrote that reasonable judicial minds could differ about whether continuing to defend the case amounted to sanctionable conduct. 

Presiding Justice Melissa Chapman and Justice Thomas Welch concurred. 

Chapman and Welch reversed a position they took in 2014, when they and Justice Stephen Spomer declared McGlynn’s decision invalid because he didn’t explain it. 

Chapman and Welch changed their stance because all seven Justices of the Illinois Supreme Court ruled that McGlynn didn’t have to explain. 

The Supreme Court remanded the case to the Fifth District last September, with instructions to determine whether McGlynn abused his discretion. 

Moore, who joined the court by appointment on Spomer’s retirement, wrote that the court couldn’t say McGlynn abused his discretion. 

In 2008, the Department of Public Health issued an emergency order halting Lake Environmental’s asbestos removal at Scott Air Force Base due to violations of regulations. 

The department pulled Lake Environmental from its list of approved contractors. 

After quick remediation, the department dismissed the proceedings voluntarily.   

The department sued Lake Environmental in 2010, seeking monetary penalties, but McGlynn granted summary judgment to Lake Environmental. 

McGlynn invoked “res judicata,” finding the department should have sought penalties in the administrative proceedings it dismissed. 

In 2011, the department revoked Lake Environmental’s asbestos abatement license based on the violations at Scott. 

Lake Environmental petitioned for review of the revocation, and McGlynn reinstated the license pending further proceedings at the department. 

Lake Environmental then moved for sanctions, arguing the department should have known res judicata would bar its claims. 

It further claimed the continued defense of the revocation violated Supreme Court Rule 137, which prohibits pleadings for improper purpose. 

McGlynn held a hearing and issued an order stating only that he denied the motion. 

Lake Environmental moved for reconsideration and Circuit Judge Robert Haida denied it in 2013, without explanation. 

On appeal, in 2014, the Fifth District followed Second District decisions holding that a judge who denies sanctions must explain the decision. 

The Supreme Court reversed the Fifth District decision and wiped out the Second District precedents. 

Chief Justice Rita Garman wrote, “Rule 137 expressly requires that the circuit court provide an explanation of its decision any time it imposes sanctions under the rule. 

“The rule does not address any such requirement when the court denies a motion for sanctions. 

“The rule is designed to discourage frivolous filings, not to punish parties for making losing arguments.” 

Garman wrote that it is logical to provide explanations when imposing sanctions, to make clear to future litigants what conduct will not be tolerated. 

She also wrote that the Court wouldn’t review possible abuse of discretion, instructing the Fifth District to do that. 

Back at the Fifth District, Moore couldn’t find a case where a reviewing court in Illinois reversed a circuit court order denying sanctions. 

He wrote that the department dismissed its proceedings to allow asbestos abatement at Scott to recommence. 

He wrote that although McGlynn found the department could have pursued additional action within those proceedings, applying res judicata in that context was a matter of first impression in Illinois. 

Assistant attorney general John Schmidt represented the department, and David Antognoli of Goldenberg Heller in Edwardsville represented Lake Environmental.

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Illinois Department of Public HealthIllinois Supreme Court