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IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, WHEATON, ILLINOIS

KIM FRACHEY, et al., ) ) Plaintiffs, ) ) No. 2008 MR 261 v. ) ) PLANNED PARENTHOOD OF ) Hon. Paul M. Fullerton, ILLINOIS, et al., ) Judge Presiding ) Defendants. )

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

court’s 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

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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

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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 Aurora’s ordinances. See, e.g., Ad-Ex, Inc. v. City of Chicago, 207 Ill.

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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

municipality’s 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 11-

13-15, 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

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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 Aurora’s 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 non-

profit 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

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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 agency’s

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

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

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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,

2 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.”

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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

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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

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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. Plaintiffs and defendants are in actual controversy over the matters alleged herein.

98. Plaintiffs are interested in the controversy.

99. Plaintiffs thus seek declaratory relief under 735 ILCS 5/2-701 as to the foregoing

disputes.

100. The Illinois Municipal Code, at 65 ILCS 5/11-13-15, provides that: