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Nickels v. Burnett

October 20, 2003

JOHN NICKELS, MERITA NICKELS, DANIEL LONG, LINDA LONG, ROBERT KLOTZ, ALLISON KLOTZ, RAYMOND KLOTZ, JEANETTE KLOTZ, ROGER KLEIN, IRENE KLEIN, DANIEL KLEIN, LYNN KLEIN, JUDY ANN MAGNUSON AND RICHARD K. SCHUMACHER, CO-TRUSTEES OF THE DONALD F. SCHUMACHER TRUST AND THE MARGARET N. SCHUMACHER TRUST, SCOTT SWANSON, CHERI SWANSON, CHARLIE HARRIS, PETER LAKETA, SR., ANNE LAKETA, DAVE KAUS, KATHY KAUS, JEFFREY M. SCHMIDT, ANITA T. SCHMIDT, ROBERT J. OGE, MARTHA E. OGE, BARRY HALGRIMSON, MARILYN HALGRIMSON, ALLEN R. CHRISTIANSEN, KATHLEEN M. CHRISTIANSEN, JOHN KIRCHMAN, CAROL KIRCHMAN, DARREN GOCHEE, VERDA GOCHEE, ROBERT DEACON, CORINNE DEACON, LAWRENCE ASSELBORN, DONNA ASSELBORN, ROBERT GREGG, ELLEN GREGG, RAYMOND LYNCH, REBECCA LYNCH, PAUL LAKETA, DAVID LAKETA, PETER LAKETA, JR., JOHN J. JUNEAU, PATRICIA A. JUNEAU, KEITH JACKSON, AND SHARON MAY, PLAINTIFFS-APPELLEES,
v.
JIM BURNETT AND CHRISTINE BURNETT, INDIV. AND D/B/A BURNETT FARMS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of De Kalb County. No. 02--MR--175 Honorable Kurt P. Klein, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

UNPUBLISHED

Defendants, Jim and Christine Burnett, appeal the order of the circuit court of De Kalb County granting plaintiffs' motion for a preliminary injunction enjoining defendants from constructing a hog confinement facility pursuant to letters authorizing the construction of such a facility issued by the Illinois Department of Agriculture (Department). Defendants contend that the trial court erroneously ruled on the petition for a preliminary injunction without first requiring plaintiffs to exhaust their administrative remedies pursuant to the Livestock Management Facilities Act (Act) (510 ILCS 77/1 et seq. (West 2002)). We affirm.

Plaintiffs are landowners in De Kalb County near Hinckley, Illinois. Defendants own and farm property in the same area. In 2002, defendants began the process to construct a facility to maintain 8,000 head of hogs on their property. The construction and operation of such a facility is governed by the Act. On April 11, 2002, pursuant to section 11(a) of the Act, defendants sent to the Department their notice of intent to construct the hog facility.

During the remainder of 2002, defendants worked with the Department to secure authorization to begin to construct the hog facility. On December 13, 2002, the Department issued three letters to defendants granting them permission to proceed with the construction of the facility. On December 16, 2002, plaintiffs filed the instant suit, alleging that the proposed facility would be a nuisance pursuant to section 47--5(8) of the Criminal Code of 1961 (720 ILCS 5/47--5(8) (West 2002)) and a De Kalb County ordinance (De Kalb County Code §30--88), as well as a nuisance pursuant to common-law principles of public and private nuisance. Plaintiffs' complaint in this matter does not name the Department as a party defendant or seek review of the Department's issuance of the letters authorizing defendants to begin construction of the hog facility. Also on December 16, 2002, plaintiffs filed a motion seeking a preliminary injunction prohibiting defendants from beginning construction of the hog facility. Plaintiffs submitted extensive evidence in the form of affidavits and scholarly articles authored by their expert affiants demonstrating that, if the hog facility were to begin operation, plaintiffs would experience substantially harmful health effects and a significant loss of value to their land.

On February 25, 2003, defendants filed a motion to dismiss pursuant to section 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 2002)), arguing that plaintiffs had failed to exhaust their administrative remedies. On March 14, 2003, plaintiffs filed a second lawsuit seeking judicial review of the Department's decision to allow defendants to begin construction of the hog facility. While we take judicial notice of the fact of the filing of the second lawsuit, neither it nor any issues contained in the pleadings therein are before us.

On March 27, 2003, the trial court granted plaintiffs' motion for a preliminary injunction. The trial court found that "the proposed hog finishing operation presents a high probability of creating a public and private nuisance in creating an environment injurious to the health and welfare of surrounding neighbors (the Plaintiffs) and the public at large." The trial court further found that plaintiffs "have a right to pursue a common law nuisance action in spite of the pending judicial review of the action of the [Department] in granting a permit to Defendants to construct their facility." The trial court also denied defendants' motion to dismiss. On April 16, 2003, defendants filed a timely amended notice of interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (Official Reports Advance Sheet No. 5 (March 5, 2003), R. 307(a)(1), eff. January 1, 2003).

On appeal, defendants argue that the trial court's action in entertaining plaintiffs' cause constituted a violation of the doctrine of separation of powers and exceeded the trial court's powers. Defendants also argue that the grant of the preliminary injunction was erroneous because plaintiffs did not exhaust their administrative remedies before pursuing this cause. Last, defendants contend that the trial court abused its discretion in granting the preliminary injunction. We will consider each argument in turn.

Initially, defendants contend that the trial court violated the doctrine of separation of powers. The Illinois Constitution provides that "[t]he legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another." Ill. Const. 1970, art. II, §1. Defendants argue that, by granting plaintiffs a preliminary injunction, the trial court ignored the requirements of the Act, thereby effectively rewriting it. According to defendants, the Act provides the framework whereby to construct their hog facility. Defendants argue that plaintiffs' nuisance suit circumvents the requirements of the Act and that the trial court ignored the Act in granting the preliminary injunction.

Defendants properly note that the Act was clearly within the purview of the legislature to enact. Defendants fail, however, to specify the manner in which the trial court's action usurped legislative power or otherwise violated the separation-of-powers doctrine. Plaintiffs did not bring this action pursuant to the Act; rather, they sought relief under various theories of public and private nuisance. Thus, nothing in the trial court's actions directly contravened the dictates of the Act.

The cases cited by defendant in support of their position regarding the violation of the separation-of-powers doctrine are inapposite. People v. Garner, 147 Ill. 2d 467, 474-75 (1992), involved the trial court's responsibility, pursuant to section 113--4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113--4(e) (now codified at 725 ILCS 5/113--4(e) (West 2002))), to admonish the defendant regarding trial in absentia should the defendant fail to appear at later hearings. There, the State urged the court to create an "experienced criminals" exception to section 113--4(e) of the Code of Criminal Procedure. Garner, 147 Ill. 2d at 475. The court refused, finding that inserting such a provision into the statute where it was not present in its plain language would involve rewriting the statute and therefore violate the separation of powers doctrine. Garner, 147 Ill. 2d at 475-76. Here, by contrast, the trial court was not called upon to interpret the Act in any fashion. Therefore, it did not "annex to [the Act] a provision or condition which the General Assembly did not see fit to impose." Garner, 147 Ill. 2d at 476.

Similarly, in Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493 (2000), the court was required to interpret sections 6--105 and 6--106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/6--105, 106 (West 1992)). The plaintiff argued in favor of a public-policy-based interpretation of the Tort Immunity Act that would not immunize the defendant doctors. The court held that, "[b]ecause the concerns voiced by [the] plaintiff compete with the legislative purposes of the immunity provisions as revealed by the statute's plain language, we believe that these are questions appropriately left to the legislature." Michigan Avenue National Bank, 191 Ill. 2d at 522. Here, again, there is no interpretation of the Act at issue in which the trial court could have improperly added a "provision or condition which the General Assembly did not see fit to impose." Garner, 147 Ill. 2d at 476.

In People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 297 (2003), the defendant's argument regarding the wisdom of various provisions of the Nursing and Advanced Practice Nursing Act (225 ILCS 65/5--1 et seq. (West 2000)) was rejected by the court, which stated that "whether a course chosen by the legislature to achieve a desired result is either wise or the best means available is not a proper subject of judicial inquiry." The court then rejected the defendant's argument on separation-of-powers grounds. Sherman, 203 Ill. 2d at 297. Here, as in Sherman, it is not our province to render a decision based upon "whether a course chosen by the legislature to achieve a desired result is either wise or the best means available." Sherman, 203 Ill. 2d at 297. Sherman is inapposite.

Last, defendants cite People ex rel. Daley v. Moran, 94 Ill. 2d 41 (1983). There, the trial court ordered the State's Attorney to file a criminal information against a defendant. The court held that the trial court improperly intruded upon the prerogatives of the executive branch as embodied by the State's Attorney. Daley, 94 Ill. 2d at 46. Here, the trial court did not require a party to perform an action more appropriately suited to another governmental branch; it merely adjudicated the controversy presented to ...


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