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06/16/87 Pesticide Public Policy v. the Village of Wauconda Et

June 16, 1987

PESTICIDE PUBLIC POLICY FOUNDATION, APPELLEE

v.

THE VILLAGE OF WAUCONDA ET AL., APPELLANTS



SUPREME COURT OF ILLINOIS

510 N.E.2d 858, 117 Ill. 2d 107, 109 Ill. Dec. 790 1987.IL.818

A certified question from the United States Court of Appeals for the Seventh Circuit; heard in that court on appeal from the United States District Court for the Northern District of Illinois, Eastern Division, the Hon. Ilana Diamond Rovner, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

Plaintiff, the Pesticide Public Policy Foundation, filed suit in the United States District Court for the Northern District of Illinois, Eastern Division, challenging the validity of a pesticide regulation ordinance enacted by defendant village of Wauconda, Illinois. The Federal district court found that the Wauconda ordinance was preempted by the Illinois Pesticide Act of 1979 (Ill. Rev. Stat. 1983, ch. 5, pars. 801 through 828) and the Structural Pest Control Act (Ill. Rev. Stat. 1983, ch. 111 1/2, pars. 2201 through 2225); the district court granted plaintiff's motion for summary judgment on its preemption claim, and held the ordinance void ab initio. The village appealed the district court's order to the United States Court of Appeals for the Seventh Circuit. Noting that the case presented unresolved issues of Illinois law which might control the outcome, the Seventh Circuit court requested that this court consider two questions of State law certified by the Seventh Circuit. We accepted the certification, pursuant to our Rule 20 (103 Ill. 2d R. 20).

The plaintiff is a nonprofit corporation whose members include professional lawn care, arboriculture, and pest control operators. Plaintiff states that its members serve customers within the village limits of defendant village of Wauconda.

The village is a non-home-rule unit of local government, which enacted its ordinance No. 1984 -- 0 -- 31 to regulate pesticide use in the village. The ordinance prohibits "users of pesticides" from applying pesticides without registering in the village clerk's office and obtaining a permit. The ordinance defines "user of pesticides" as a person engaged in pesticide application for hire, or the landlord or tenant of a public building. To obtain a permit, the user must sign an application bearing his business name, address, telephone number, and trade names of pesticides to be used, and must furnish a valid State license. The user also must pay a $25 annual fee. The ordinance requires the posting of certain notices following indoor and outdoor pesticide application, and application to a lake. The ordinance also restricts application by fogging, and prohibits application of pesticides into the atmosphere when the wind velocity exceeds 10 miles per hour.

The plaintiff filed a five-count complaint in the United States District Court for the Northern District of Illinois, Eastern Division, contesting the ordinance. Named as defendants were the village of Wauconda, the village president, and the trustees of the village. The complaint alleged the ordinance was preempted by both Federal and State statutes, was beyond the power of Wauconda as a non-home-rule unit in Illinois, violated due process and equal protection under the Federal and State constitutions, and violated the commerce clause of the Federal Constitution. The Federal district court granted plaintiff's motion for summary judgment on the State preemption claim, concluding that the Wauconda ordinance had been preempted by the Illinois Pesticide Act of 1979 (Ill. Rev. Stat. 1983, ch. 5, pars. 801 through 828), and the Illinois Structural Pest Control Act (Ill. Rev. Stat. 1983, ch. 111 1/2, pars. 2201 through 2225). The district court ruled that the ordinance was void, and enjoined the village from enforcing the ordinance. The court found, however, that the plaintiff lacked standing to seek recovery of the costs and expenses incurred by plaintiff's members in complying with the ordinance. The court also held that the ordinance did not violate the equal protection or due process clauses of the Federal or State constitutions. The court did not address the Federal preemption claim or the claim that the village lacked authority to adopt the ordinance at issue.

The defendants appealed to the United States Court of Appeals for the Seventh Circuit. Recognizing that issues of Illinois law may determine the outcome of the case, the circuit court certified the following questions of law for our consideration:

"1. Is Wauconda, a non-home rule unit, authorized to enact the ordinance at issue under either section 11 -- 20 -- 5 or section 11 -- 19.1 -- 11 of the Illinois Municipal Code?

2. Is the ordinance preempted by the Illinois Pesticide Act and the Illinois Structural Pest Control Act?"

This court accepted the certified questions under Supreme Court Rule 20 (103 Ill. 2d R. 20). I

Our analysis must begin by determining whether Wauconda had the power to adopt ordinance No. 1984 -- 0 -- 31. Only if we answer this question in the affirmative must we consider whether the village's power is preempted by either of the two Illinois acts regulating pesticides. As the Seventh Circuit court recognized, the municipality's power to act is an issue entirely separate from the question of ...


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