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BEFORE THE ILLINOIS STATE BOARD OF ELECTIONS

December 16, 2010

at

10 o’clock a.m.

BARBARA GUTTMANN and )


FRIENDS OF VI DALEY, )
Petitioners, )
vs. ) No. 10 CD 074

FRIENDS OF MICHELLE SMITH, )


Respondent. )

STENOGRAPHIC REPORT OF PROCEEDINGS had in the

above-entitled cause held at the James R. Thompson

Center, 100 West Randolph Street, Room 14-100,

Chicago, Illinois, MR. MARK GREBEN, Hearing Examiner.

Reported by: Anna M. Morales, CSR, RMR

License No. : 084-002854

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Chicago, Illinois (312) 263-0052
I APPEARANCES:

2 ADDUCCI DORF LEHNER MITCHELL

3 & BLANKENSHIP, P.C.

4 BY: MR. MICHAEL C. DORF

5 150 North Michigan Avenue, Suite 2130

6 Chicago, Illinois 60601

7 (312) 781-2806

8 mdorf@adlmb.com

9 Representing the Petitioners;

10

11 LAW OFFICES OF RICHARD K. MEANS

12 BY: MR. RICHARD K. MEANS

13 806 Fair Oaks Avenue

14 Oak Park, Illinois 60302

15 (708) 386-1122

16 means@richardmeans.com

17 Representing the Respondent.

18

19 ALSO PRESENT:

20 Ms. Barbara Guttmann

21

22

23

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I HEARING EXAMINER GREBEN: My name is

2 Mark Greben. I am the Hearing Examiner that’s been

3 appointed to the matter of Barbara Guttmann and

4 Friends of Vi Daley -- G-u-t-t-m-a-n-n -- versus

5 Friends of Michelle Smith, respondent, Case Number

6 10 CD 074.

7 This is a public hearing that’s been held

8 as a result of a complaint that was filed on

9 July 21, 2010. Subsequent to the filing of the

10 complaint, a closed preliminary hearing was held;

11 and, at the conclusion of this hearing, the Hearing

12 Examiner made a recommendation to the Board that

13 the complaint was filed on justifiable grounds and

14 that a public hearing be held.

15 Subsequent to this recommendation, the

16 Board gave the matter due consideration and, in

17 fact, issued an order for an open public hearing,

18 and that’s why we are here today.

19 At this time, I would like to inform all

20 parties specifically since we have a nonattorney

21 here and we have the complainant here that, as the

22 Hearing Examiner, I merely make a recommendation,

23 and it’s not a judgment, it’s not an order. The

24 recommendation goes to both the Board and the


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I General Counsel and, ultimately, it is the Board’s

2 decision to decide whether or not they’re going to

3 find that a violation has occurred.

4 I recognize that the attorneys here are

5 very familiar with the procedure, but I wanted you

6 to understand that as well.

7 MS. GUTTMANN: Thank you.

8 HEARING EXAMINER GREBEN: Also, at this time, I

9 would like all parties to announce their presence

10 and on whose behalf they are appearing.

11 MR. DORF: Good morning, Mr. Hearing Examiner.

12 Michael Dorf, D-o-r-f, on behalf of complainant,

13 Friends of Vi Daley, and I’m accompanied by

14 Ms. Barbara Guttmann, G-u-t-t-m-a-n-n, the

15 Treasurer of Friends of Vi Daley.

16 MR. MEANS: Good morning, Mr. Greben.

17 Richard Means, M-e-a-n-s, representing Friends of

18 Michelle Smith.

19 HEARING EXAMINER GREBEN: Since this matter is

20 limited to a single issue, and it’s not very

21 complicated, aside from any evidence that’s going

22 to be introduced, it’s not as if there is multiple

23 issues that overlap and need to be considered, I’m

24 going to ask if -- what I would like is if for the


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1 complainant to proceed and present their case and

2 their witnesses. At the conclusion, I would ask

3 for the respondent, Mr. Means, for you to present

4 your case and submit any evidence that you deem

5 necessary and appropriate, and we’ll kind of go

6 back and forth until such a point in time that I

7 think to the extent that you want to make a closing

8 argument, the closing arguments would be in order.

9 They’re not required.

10 But I just wanted you to be aware that

11 we’ll keep the matter conducted in that format.

12 Are there any objections?

13 MR. DORF: No, sir.

14 MR. MEANS: No.

15 MR. DORF: Mr. Hearing Examiner, may I ask one

16 procedural question? Is the report of the examiner

17 in the closed preliminary hearing part of the

18 public record at this time?

19 HEARING EXAMINER GREBEN: At this time, yes.

20 Can you clarify what you mean by “for the

21 record”?

22 MR. DORF: Basically our case is stated in the

23 prior Hearing Examiner’s statement of the

24 complainant’s case-in-chief, and without having to


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1 read it into the record, is it already in the

2 record?

3 HEARING EXAMINER GREBEN: No because should

4 this case go up on appeal, I think it would be

5 appropriate, not to mention the fact that acting as

6 a quasi finder of fact, I might need to elicit more

7 information from either of the parties.

8 I think it would be appropriate,

9 especially given the fact that there are not a lot

10 of issues, for you to present the case as briefly

11 as you can or take as much time as you need because

12 I don’t know if there’s any one issue in the closed

13 hearing that I would like to know more about. In

14 fact, there might be information that I need to

15 consider to make my recommendation that did not

16 come to light at the closed hearing.

17 So to that extent, we need to function

18 de novo.

19 MR. DORF: I will try to be very brief then.

20 HEARING EXAMINER GREBEN: I don’t mean to

21 interrupt, but I have reviewed the record and I am

22 familiar with the case.

23 MR. DORF: I am happy to introduce --

24 MR. MEANS: I just checked my file. I don’t


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I have a copy of that. If I could get a copy of it,

2 I’ve got no objection. I think it’s properly in

3 the open hearing file, but I would like to have a

4 copy because you’re going to be referring to it.

5 If we could take a very brief break unless, Mark,

6 you have two copies in your file.

7 HEARING EXAMINER GREBEN: I have only one copy

8 I believe.

9 MR. MEANS: If we could take a quick break and

10 get that copied?

11 HEARING EXAMINER GREBEN: Please note we’re in

12 recess.

13 (Recess taken.)

14 HEARING EXAMINER GREBEN: Back on record.

15 Mr. Dorf, would you like to proceed at

16 this time?

17 MR. DORF: Thank you, Mr. Hearing Examiner.

18 Complainant, Friends of Vi Daley, allege

19 that three names which were on the complainant’s

20 D-2 financial disclosure report were used by the

21 respondent, Friends of Michelle Smith, for

22 fund-raising purposes in order to solicit campaign

23 contributions which have proven would have been

24 violation of Section 9-17 of the Illinois Election


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1 Code, and the three individuals identified in the

2 complaint were Louise Guttmann, G-u-t-t-m-a-n-n,

3 who also is the mother of the treasurer of the

4 committee, Barbara Guttmann, Mr. David Domovic,

5 D-o-m-o-v-i-c, and Pat Berns, B-e-r-n-s.

6 In the course of the preliminary closed

7 hearing, the respondent acknowledged that with

8 respect to Ms. Louise Guttmann, it did appear that

9 the name on the fund-raising solicitation had come

10 from the D-2. With respect to the other two

11 individuals, the respondent was unable to

12 demonstrate that the two names did not come from

13 the D-2.

14 Given that acknowledgment that in fact --

15 from respondent -- that a violation did exist, we

16 saw no need to present any further evidence, and

17 that really is our case-in-chief.

18 HEARING EXAMINER GREBEN: Mr. Means, any time

19 you wish to respond.

20 MR. MEANS: Are you resting?

21 MR. DORF: Well , subject to rebuttal

22 HEARING EXAMINER GREBEN: Right. Again,

23 procedurally, as I said earlier, allow the

24 complainant to present its case, respondent to


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I present theirs and then --

2 MR. MEANS: If he’s done, that’s fine. But I’m

3 not required to answer until he’s done.

4 HEARING EXAMINER GREBEN: He’s done presenting

5 his opening.

6 MR. DORF: Then I would formally request that

7 the -- either two paragraphs comprising

8 complainant’s case-in-chief and the report of the

9 Hearing Examiner in the closed preliminary hearing

10 be entered into the record or that I may just

11 simply read the two -- those and the findings of

12 the Hearing Examiner.

13 HEARING EXAMINER GREBEN: I’ll accept --

14 MR. MEANS: The complainant’s case-in-chief

15 paragraph and the respondent’s case-in-chief

16 paragraph.

17 MR. DORF: I would really request that the

18 entire report of the Hearing Examiner be entered

19 into the record. I think it’s a fair statement of

20 what occurred at the hearing and really what I

21 believe to be our case.

22 MR. MEANS: There are conclusions in here that

23 I believe are not supported by the evidence. The

24 facts that she cites I agree are the facts that


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1 were presented and uncontroverted - -

2 MR. DORF: Yes. Yes.

3 MR. MEANS: -- at the closed preliminary

4 hearing.

5 MR. DORF: I would agree with that. The two

6 statements of the cases in chief be entered into

7 the record. The conclusions would be those of

8 Mr. Greben.

9 HEARING EXAMINER GREBEN: All right. Just so I

10 can identify where these are. I presume this is

11 under the respondent’s case-in-chief?

12 MR. MEANS: Complainant’s case-in-chief and

13 respondent’s case-in-chief pretty much recites what

14 the evidence was. The evidence was not disputed.

15 I didn’t dispute his evidence. He didn’t dispute

16 my evidence.

17 HEARING EXAMINER GREBEN: Okay. So for all

18 intents and purposes -- I mean, what are you

19 telling me? Are you telling me that -- which of

20 these three people essentially admitted to --

21 MR. DORF: I know that I can’t put words in

22 Rich’s mouth, so I won’t, but it is my

23 understanding the respondent acknowledged that

24 Louise Guttmann’s name was taken from the D-2, but


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1 it said it was an accident.

2 MR. MEANS: We don’t know that it was taken

3 from the D-2, but we had the D-2 and we didn’t have

4 the name any other place. And so it is a fair

5 conclusion, and we have no contest with regard to

6 that.

7 HEARING EXAMINER GREBEN: Mr. Means, that’s

8 something for the Hearing Examiner to decide. All

9 I’m going to ask is that the complainant present

10 their evidence, respondent present their evidence,

11 and then I will reach the conclusion and put that

12 conclusion in my recommendation.

13 MR. MEANS: Okay.

14 HEARING EXAMINER GREBEN: It’s a question of

15 how much weight I’m going to give to the evidence

16 in terms of reliability, veracity, whatever term

17 you want to use. And then I will make a conclusion

18 and formulate that in my recommendation.

19 For the sake of argument, why don’t I

20 just -- would you like to submit the closed -- the

21 Hearing Examiner’s report in the closed hearing as

22 an exhibit?

23 MR. DORF: Yes, I would.

24 MR. MEANS: I object. I don’t object to the


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I facts recited in the Hearing Examiner’s report, but

2 I quarrel with the conclusions.

3 HEARING EXAMINER GREBEN: Again, I’m not

4 assigning any weight necessarily at this time.

5 MR. MEANS: You can overrule me.

6 HEARING EXAMINER GREBEN: The only reason I’m

7 suggesting that it be submitted as an exhibit is

8 for reference purposes. I’m not going to weigh --

9 attach any degree of veracity or reliability

10 regarding what is contained therein. It’s just

11 that there is something that can be referred to.

12 That’s all I’m doing it for.

13 Exhibit -- in other words, I will even

14 make the suggestion, if you would both agree,

15 Complainant’s Exhibit Number 1 entitled Report of

16 Hearing Examiner in the closed preliminary hearing.

17 That’s it. It’s merely for identification

18 purposes, not to assign any degree of weight to it.

19 MR. MEANS: Over my objection, if you wish, but

20 I’m not going to agree to the propriety of two

21 sentences or three sentences of the conclusion of

22 the Hearing Officer which I think are not supported

23 by the evidence.

24 MR. DORF: I think what might be appropriate is


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1 I would request that the report be entered into the

2 record as an exhibit. I would concur with

3 Mr. Means that only the statement of the facts and

4 the recommendation of the Hearing Officer be

5 adopted as part of the record. And I say the

6 latter because the order of the Board of Election

7 Commissioners officially adopted the recommendation

8 of the Hearing Officer.

9 MR. MEANS: That justifiable grounds be found

10 and that it go to a public hearing.

11 MR. DORF: Right.

12 MR. MEANS: I agree.

13 MR. DORF: Not the conclusion language, but the

14 recommendati on has been adopted.

15 MR. MEANS: I agreeS

16 MR. DORF: But I do request that the entire

17 report of the Hearing Examiner be included in the

18 record as an exhibit.

19 HEARING EXAMINER GREBEN: Mr. Means?

20 MR. MEANS: I believe that the only thing

21 properly in evidence are what we agree on which

22 leave out a couple of sentences in the conclusion

23 of the Hearing Officer. So I object. You can

24 overrule me.
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I HEARING EXAMINER GREBEN: I understand.

2 fIR. MEANS: But I object.

3 HEARING EXAMINER GREBEN: I understand that,

4 but I’m trying to find -- this is why --

5 ironically, this is exactly why we’re having this

6 hearing today and why I thought it was necessary to

7 go on record. I was trying to find a happy medium

8 so that we didn’t have an objection.

9 But, at this particular point, I

10 rightfully, or wrongfully, am going to overrule

11 your objection, and I’m going to -- I’m going to

12 allow the Hearing Examiner’s report in the closed

13 preliminary hearing to be admitted into the record

14 for merely the purpose of having an object or piece

15 of evidence to identify certain parties or certain

16 information that the complainant and the respondent

17 may wish to argue for or against.

18 So that in combination with what both

19 counsels have agreed should -- that this document

20 should be used for, I think it is fairly clear that

21 the document is being admitted but for very limited

22 purposes.

23 Now where were we? Mr. Means and

24 Mr. Dorf. Mr. Means, I think you need to proceed.


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1 MR. DORF: I think Mr. Means was asking me if I

2 was totally finished.

3 MR. MEANS: Yes.

4 HEARING EXAMINER GREBEN: Structurally, let me

5 say this. That’s the way the hearing -- by rule,

6 that’s not the way the hearing is conducted. The

7 complainant -- I can look up the rule, but I don’t

8 think it’s necessary.

9 MR. MEANS: This is opening statements.

10 HEARING EXAMINER GREBEN: I didn’t identi fy it

11 as an opening statement. Opening statements and

12 closing statements are not mandatory. It’s

D 13

14
optional I believe. I could check the record, but

I really don’t recall it being mandatory that an

15 opening statement be given.

16 MR. MEANS: Okay. The question is has he

17 presented his evidence or is he going to come back

18 and present fu rther evi dence other than rebuttal?

19 MR. DORF: And I wi 11 put all my cards on the

20 table because, as is my wont, if -- let me finish

21 and then take i t over. I apologize, because I’d

22 like to see if we can resolve this.

23 If Mr. Means is agreeable that the

24 statement of facts contained in complainant’s


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1 case-in-chief, the statement of facts contained in

2 respondent’s case-in-chief are accurate and

3 sufficient, I have nothing more to present. If

4 Mr. Means presents additional facts, then I reserve

5 the right to subpoena Mr. Means’ campaign -- his

6 client’s campaign staff.

7 I am satisfied with the way the facts are

8 presented here. I would have no additional

9 evidence unless you provide additional facts.

10 MR. MEANS: Of course. Okay. That’s fine.

11 HEARING EXAMINER GREBEN: I’m going to work off

12 the assumption that after you present -- Mr. Means,

13 after you present your evidence that --

14 MR. MEANS: If I present any, he can answer.

15 HEARING EXAMINER GREBEN: That’s right. Or

16 which includes his desire to swear in his witness

17 to testify, if so be it.

18 MR. MEANS: No, no, no.

19 HEARING EXAMINER GREBEN: He does not have to

20 do that now.

21 MR. MEANS: If so be it?

22 HEARING EXAMINER GREBEN: If he didn’t deem it

23 so necessary. Let’s cross that bridge if we come

24 toit.
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I Mr. Means, all you have to do is present

2 your evidence.

3 MR. MEANS: I don’t have to present any of it.

4 HEARING EXAMINER GREBEN: Well, you don’t have

5 to present the evidence.

6 MR. MEANS: That’s right, and then there’s no

7 rebuttal

8 MR. DORF: If Mr. Means is going to withdraw

9 his prior statement I believe was for the record

10 both in front of the hearing officer and in front

11 of the Board of Elections when we had this that

12 they acknowledge on Louise Guttmann that there was

13 a violation, although it was by accident that there

14 was a violation, that’s going to be withdrawn, then

15 I’m going to want to bring everybody in.

16 MR. MEANS: I don’t want to withdraw that.

17 HEARING EXAMINER GREBEN: And to be --

18 honestly, you know, to address what you said, you

19 said you don’t have to present any evidence, I

20 wouldn’t advise that. I don’t think the

21 respondent -- it’s certainly your decision, but if

22 you, as the respondent, wish to come in either as

23 counsel or your client and not respond to --

24 especially, at the point, it’s reached a public


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1 hearing that’s already been determined that the

2 complained was filed on justifiable grounds.

3 MR. MEANS: We stipulate that it’s filed on

4 justifiable grounds.

5 HEARING EXAMINER GREBEN: Okay.

6 MR. MEANS: We’re ready to take our medicine.

7 HEARING EXAMINER GREBEN: And the respondent --

8 this is a procedure where both sides are allowed to

9 -- Mr. Means, you have gone through this.

10 MR. MEANS: I am not required to present

11 anything.

12 HEARING EXAMINER GREBEN: You are absolutely

13 not required, and if you don’t want to do so --

14 MR. MEANS: Fine.

15 MR. DORF: Can we go off the record?

16 HEARING EXAMINER GREBEN: Yeah, please.

17 (Discussion off the record.)

18 HEARING EXAMINER GREBEN: Back on record.

19 Pursuant to the conversations we had regarding the

20 validity or the value, I should say, of the closed

21 Hearing Examiner’s report in the closed preliminary

22 hearing, once again, I’m going to ask Mr. Means --

23 would you wish to go first?

24 MR. DORF: Mr. Means can go.


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I MR. MEANS: Let me try it this way. I’m

2 suggesting and I believe Mr. Dorf will agree that

3 the complainant and the respondents agree that the

4 facts in this case are the facts found by and in

5 the report of closed preliminary hearing in the

6 paragraph, complaint’s case-in-chief and

7 respondent’s case-in-chief, after which the Hearing

8 Officer recommended that justifiable grounds be

9 found and that a closed preliminary hearing -- that

10 an open hearing be held. Is that stipulated?

11 MR. DORF: Yes. We stipulate.

12 MR. MEANS: I think that provides the factual

13 basis that the hearing officer needs in this case.

14 HEARING EXAMINER GREBEN: Okay. And, Mr. Dorf,

15 just so we’re on the record with more than a yes,

16 you agree in total with what Mr. Means has just

17 said or is there anything else you would like to

18 say in response?

19 MR. DORF: No, I am in agreement with that.

20 HEARING EXAMINER GREBEN: With that being said,

21 does anybody want to make closing arguments?

22 They’re not necessary. It’s up to you.

23 MR. MEANS: Complainant goes first.

24 MR. DORF: Thank you, Mr. Hearing Examiner, and

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I I appreciate your patience as we try to work this

2 out in an a cordial manner. None of us sitting at

3 this table which to be punitive in any way. We

4. wish just to see that the election law be

5 fulfilled.

6 HEARING EXAMINER GREBEN: May I interrupt?

7 Thank you, fir. Dorf, and I would never interpret

8 that any of the fine gentlemen here that I work

9 with on a regular basis was to be punitive because

10 you’re all fine gentlemen.

11 MR. DORF: Thank you.

12 HEARING EXAMINER GREBEN: Pleasant people to

13 work with. Please. Please continue.

14 MR. DORF: The complainants allege that it’s

15 believed that the three names had been mined from

16 its D-2. It appears from the stipulation of facts

17 that respondent was unable to find another place

18 that the name of Louise Guttmann might have come

19 and acknowledged that it may have been by accident

20 but that a violation did occur.

21 With respect to the other two names, there

22 remains a question which has not been resolved.

23 However, we are satisfied showing that the

24 violation had occur, that the committee has -- the


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I respondent committee has expressed regret on this

2 and, as you understand, taken some action against

3 personnel involved in it. We believe our case has

4 been made. A violation has been made. The

5 complaint was justifiably filed and we have nothing

6 further.

7 HEARING EXAMINER GREBEN: Thank you, Mr. Dorf.

8 Mr. Means, please proceed.

9 MR. MEANS: And we agree that at least as to

10 Louise Guttmann, the complaint was filed on

11 justifiable grounds. We can conclude no

12 possibility of any source for that name other than

13 the D-2.

14 As the testimony was in the closed

15 preliminary hearing and as is outlined in what we

16 have stipulated to, we looked at the D-2 for proper

17 purposes because it was the D-2 of an incumbent who

18 at that time, at the time we looked at the D-2, we

19 believed was running again. And so a traditional

20 issue raised in a campaign is where did they get

21 their money, local developers, et cetera?

22 And then at a later time, it turned out

23 that the same people were involved -- who looked at

24 that D-2 were involved in fundraising. There were


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1 three people about whom the complaint was made. We

2 have no idea, and there was testimony previously

3 and we’ve incorporated it into the record in this

4 hearing, that we can’t show where those other two

5 names came from. We have them, but we also have

6 them from the D-2. And so -- and we have no

7 memory. The only person who did the picking of the

8 names was the person who was here and testified.

9 And so we came in to this case essentially

10 pleading guilty or at least no contest. And after

11 she concluded her testimony, we kept her on the

12 payroll until we got her to testify here, then we

13 discharged her. In addition, as she testified, we

14 took steps in the fund-raising operation to make

15 sure that that D-2 was segregated and had a big

16 sign on it, on that file, you know, saying do not

17 use for fund-raising.

18 And so we saw no reason at all for an open

19 public hearing, but the Board ordered it. So we

20 are here. And we do not contest the facts. We do

21 not contest the finding of justifiable grounds.

22 We’re ready to take our medicine because we know,

23 at least as to Louise Guttmann, we can’t figure any

24 way that name could have come but in an improper


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1 way. The other two, we just don’t know.

2 But in any case, we’re ready to take our

3 medicine; and, under the circumstances, we believe

4 that the fine or probation or whatever penalty is

5 suggested should contemplate the fact that we knew

6 we shouldn’t have done it, which is part of the

7 stipulation that our fund-raising people knew they

8 shouldn’t have done it, and they didn’t do it

9 intentionally, but they apparently did it. And so

10 we’re ready to take our medicine. We believe

11 that’s the end of the case.

12 HEARING EXAMINER GREBEN: At this point in

13 time, I will presume that neither parties have any

14 further -- anything further to offer in this

15 proceeding? Closed hearings be heard and here, I

16 will end this proceeding.

17 MR. DORF: Thank you.

18 MR. MEANS: Thank you.

19 (0ff the record at 10:45 a.m.)

20 (Which were all the proceedings

21 had in the above cause this date

22 and time.)

23

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1 STATE OF ILLINOIS)

2 ) SS:

3 COUNTYOFWI LL

5 ANNA M. MORALES, as an Officer of the

6 Court, says that she is a shorthand reporter doing

7 business in the State of Illinois; that she

8 reported in shorthand the proceedings of said

9 hearing, and that the foregoing is a true and

10 correct transcript of her shorthand notes so taken

11 as aforesaid, and contains the proceedings given at

12 said hearing.

13 IN TESTIMONY WHEREOF: I have hereunto set

14 my verified digital signature this 20th day of

15 December, 2010.

16

17 J’jt
8
/y~~
18 Illinois Certified Shorthand Reporter

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