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
Presiding Justice Melissa Chapman and Justice Thomas Welch
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
The Supreme Court remanded the case to the Fifth District last
September, with instructions to determine whether McGlynn abused his
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
After quick remediation, the department dismissed the
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
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
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
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.