People ex rel. Madigan v. Illinois Commerce Commission ( 2008 )

Docket No. 105131.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE ex rel. LISA MADIGAN, Appellant, v. ILLINOIS
COMMERCE COMMISSION, Appellee.
Opinion filed November 20, 2008.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Plaintiff-Appellant, the Attorney General, electronically
transmitted an application for rehearing with the Illinois Commerce
Commission after the close of business on the application’s due date.
The Commission accepted the application, but ultimately denied
rehearing. The Attorney General then appealed to the Appellate
Court, First District. The appellate court transferred the appeal to the
Fourth District, which then dismissed the appeal. The Fourth District
relied on the Commission’s regulations to determine that the Attorney
General’s application for rehearing was not timely, and therefore
concluded the court lacked jurisdiction. The Attorney General
petitioned this court for leave to appeal the dismissal, which we
allowed pursuant to Rule 315 (210 Ill. 2d R. 315(a)). This case
presents the question whether the Commission’s regulations require
an electronic filing (e-filing) to be transmitted before the
Commission’s office closes in order to be timely filed and vest the
appellate court with jurisdiction to hear a subsequent appeal.
BACKGROUND
On November 10, 2005, Illinois Bell Telephone Company
(referred to by both parties as AT&T) requested the Commission to
reclassify certain residential local services as “competitive.” The
details of the underlying request are not necessary to understand the
question before this court, as the question here is purely procedural
and does not require a discussion on the merits. It is sufficient to note
the Commission had jurisdiction over the matter pursuant to the
Public Utilities Act (220 ILCS 5/13–502 (West 2006)). On August
30, 2006, after discovery and hearings, the Commission issued an
order partially approving AT&T’s request (original order). That
document was dated August 30 and served on the parties the
following day. That document was titled “Post Exceptions Proposed
Order.”
On September 7, the Commission served a second document on
the parties. The second document was also dated August 30. Both
parties acknowledge that the sole difference between the original
order and the September 7 document is that the words “Post
Exceptions Proposed” were removed from the title so that the title of
the second document contained only the word “Order.”
The Commission’s docket describes both documents. It describes
the original order as a “Final Order.” The docket describes the
September 7 document as a “Corrected Final Order.” The docket
entry for both documents is dated August 30. The docket lists no
other order between August 30 and September 7.
Pursuant to the Public Utilities Act (220 ILCS 5/10–113(a) (West
2006)) all parties had the opportunity to file an application for
rehearing within 30 days of the Commission’s order.
The parties dispute whether the due date for filing was October 2,
30 days from the service of the Commission’s original order dated
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August 30, or October 10, 30 days from the Commission’s “corrected
order” served September 7.1
The parties also dispute whether the Attorney General’s
application for rehearing was timely filed on October 2. Various
Commission documents indicate different filing dates for the
Attorney General’s application. The Commission’s docket entry lists
a “filed date” of October 3, 2006. The administrative law judge’s
recommendation of October 3, 2006, states the Attorney General’s
application as filed on October 2. The order denying the Attorney
General’s application for rehearing indicates an October 3 filing.
Although the parties dispute the actual filing date, both parties
acknowledge the date and times at which they each transmitted their
applications to the Commission. AT&T, using the Commission’s e-
filing system, transmitted its application at 4:04 p.m. on September
29, 2006. The Attorney General’s office transmitted its application
for rehearing, at issue in this case, at 5:34 p.m. on October 2, 2006.
The Commission accepted and considered both the Attorney
General’s and AT&T’s applications for rehearing and denied them
both on October 12. On October 13, AT&T submitted a petition for
review with the Appellate Court, Fourth District, and a second
petition for review with that same court on October 23. The Fourth
District consolidated those appeals. On October 24 the Attorney
General submitted its own petition for review with the Appellate
Court, First District. AT&T moved to transfer the Attorney General’s
appeal to the Fourth District or, in the alternative, to dismiss the
Attorney General’s appeal based on its untimely filing of its
application for rehearing. The cause was transferred to the Fourth
District, which dismissed AT&T’s appeals as premature. The Fourth
District also dismissed the Attorney General’s appeal for lack of
jurisdiction, because it determined that the Attorney General’s
1
As this court held in Illini Coach Co. v. Illinois Greyhound Lines, Inc.,
403 Ill. 21 (1949), the 30-day period is measured in calendar days. Here,
the thirtieth day fell on a weekend, and so the following Monday, October
2, became the filing deadline. October 7, the thirtieth day from the second
order, also fell on a weekend.
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application for rehearing was not timely filed. The Attorney General
then sought leave to appeal in this court.
ANALYSIS
I. Effect of the Commission’s September 7, 2006, Order
We first consider the Attorney General’s argument that its
application was timely because the order served on September 7
constituted an amended order that reset the time period for filing a
petition for rehearing.
The Attorney General contends that the Public Utilities Act
applies to any and all alterations in a Commission order. The
Attorney General cites section 10–113, which authorizes the
Commission to “rescind, alter or amend” any order or decision made
by it. 220 ILCS 5/10–113 (West 2006). The Act provides that any
alteration or amendment shall have the “same effect” as the
Commission’s original order. We review questions of statutory
interpretation de novo. Wisniewski v. Kownacki, 221 Ill. 2d 453, 460
(2006).
Although the issue is one of first impression for this court, the
United States Supreme Court has considered this precise issue in
Federal Trade Comm’n v. Minneapolis-Honeywell Regulator Co.,
344 U.S. 206, 97 L. Ed. 245, 73 S. Ct. 245 (1952).
In Minneapolis-Honeywell a dispute arose over whether the
appellant timely filed a petition for writ of certiorari. The appellant
claimed, as in this case, that a second order issued two months after
the first renewed the time period from which the parties could petition
for certiorari. The appellate court had made no substantive change to
the original order and, instead, made a change to the title of the
document. The first document was labeled “Decree,” while the
second document was labeled “Final Decree.”
In answering this question, the Supreme Court recognized that
“the mere fact that a judgment previously entered has been reentered
or revised in an immaterial way does not toll the time within which
review must be sought.” Minneapolis-Honeywell, 344 U.S. at 211, 97
L. Ed. at 252, 73 S. Ct. at 248. “Only when the lower court changes
matters of substance, or resolves a genuine ambiguity, in a judgment
previously rendered should the period *** begin to run anew.”
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Minneapolis-Honeywell, 344 U.S. at 211-12, 97 L. Ed. at 252, 73 S.
Ct. at 248-29. The Court also noted the test is a practical one. “The
question is whether the lower court *** has disturbed or revised legal
rights and obligations which, by its prior judgment, had been plainly
and properly settled with finality.” Minneapolis-Honeywell, 344 U.S.
at 212, 97 L. Ed. at 252, 73 S. Ct. at 249. Although Minneapolis-
Honeywell does not bind this court, we find its reasoning sound and
persuasive.
The factual similarity between Minneapolis-Honeywell and the
present case is apparent. The only change to the Commission’s
August 30 order was removal of three words from the document’s
title. Rather than read “Order” the Commission’s original order read
“Post Exceptions Proposed Order.” As the Court concluded in
Minneapolis-Honeywell, “the question of whether the time *** was
to be enlarged cannot turn on the adjective which the court below
chose to use in the caption of its second judgment,” when the first
judgment “was for all purposes final.” Minneapolis-Honeywell, 344
U.S. at 212-13, 97 L. Ed. at 252, 73 S. Ct. at 249.
Here, the record and argument before us indicate that the August
30 order was for all purposes final. The September 7 document did
not disturb or revise either party’s legal rights and obligations that had
been plainly and properly settled with finality. The parties understood
the August 30 order to be a final order. Indeed, at oral argument,
counsel for the Attorney General acknowledged that the Attorney
General had been proceeding with the original order in mind, and
suggested that an application for rehearing based on either order
would be proper.
Rather than affect the parties’ legal rights, the alteration here was
de minimus, as removing three words from the document’s heading
merely corrected a trivial, clerical error. As such, the change did not
serve to extend the parties’ opportunity to file an application for
rehearing.
We further conclude that section 10–113 does not change this
analysis. Section 10–113 is a formal procedure the Commission must
follow if it intends to rescind, alter or amend one of its decisions.
However, the record indicates that the Commission did not rely on
section 10–113 when it served the September 7 document. Although
served on September 7, the second document was also dated August
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30. The Commission’s e-docket shows that the two orders were both
entered on August 30, 2006. The docket lists the first as a “Final
Order,” and the second as a “Corrected Final Order.” The docket
likewise contains no entry of an order on either September 6 or 7.
Further, nothing indicates the Commission intended to rely on its
statutory authority to rescind or amend its decision. Section 10–113
requires that the Commission notify the public utility, and provide the
utility an opportunity to be heard, if it decides to rescind or amend an
order. Here, the Commission did not serve notice, nor did it provide
an opportunity to be heard.
The legislature, in enacting section 10–113, intended to provide
for notice and opportunity to the parties in the event that the
Commission decided to reconsider its decision. The procedure
ensures that any amendment to a Commission decision will not be
undertaken without serious consideration. It is equally evident that the
legislature did not intend to require notice, and an opportunity to be
heard, for mere clerical mistakes that do not materially affect the
decision.
Section 10–113 cannot be read to apply to nonsubstantive
corrections to the Commission’s orders. Therefore, we hold that the
Commission’s September 7 order did not extend the time in which
the Attorney General could file its application for rehearing.
II. Whether E-Filing Outside Business Hours Results in an
Untimely Application
We next turn to whether the Attorney General’s electronic
transmission of an application for rehearing, transmitted at 5:34 p.m.
on the last day of filing, was timely filed, and therefore whether the
appellate court has jurisdiction over the Attorney General’s appeal.
The timeliness of the Attorney General’s application for rehearing
turns on whether the Commission’s rules require filing during
business hours.
Administrative rules and regulations have the force and effect of
law, and must be construed under the same standards which govern
the construction of statutes. Union Electric Co. v. Department of
Revenue, 136 Ill. 2d 385 (1990). The interpretation of a statute is a
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question of law, which we review de novo. Kownacki, 221 Ill. 2d at
460. Thus, de novo review is also required here.
In interpreting an agency regulation, our primary objective is to
ascertain and give effect to the intent of the agency, in this case, the
Commission. MD Electrical Contractors, Inc. v. Abrams, 228 Ill. 2d
281, 287 (2008). The surest and most reliable indicator of intent is the
language of the regulation itself. MD Electrical, 228 Ill. 2d at 287. In
determining the plain meaning, we consider the regulation in its
entirety, keeping in mind the subject it addresses and the apparent
intent of the Commission in enacting it. MD Electrical, 228 Ill.2d at
287. Where the language of the regulation is clear and unambiguous,
we must apply it as written, without resort to extrinsic aids of
statutory construction. MD Electrical, 228 Ill.2d at 287-88.
The regulation at issue states that “[t]he filing of an electronic
document is effective upon acceptance of the complete document and,
if applicable, any required original paper verification or affidavit
pages by the Chief Clerk of the Commission.” 83 Ill. Adm. Code
§200.1040(b) (added at 24 Ill. Reg. 16019, eff. October 15, 2000).
The Attorney General argues that the Commission’s regulation does
not require filing during business hours. AT&T contends that the
regulation requires physical acceptance of any electronic filing.
AT&T further reasons that there can be no acceptance if the chief
clerk or his personnel are not present in the building. AT&T therefore
concludes that electronic documents must be filed during business
hours when Commission personnel are present.
Looking first to the plain and ordinary meaning of the language,
we note that acceptance means “favorable reception,” or “the act of
accepting.” Webster’s Third New International Dictionary 11 (2002).
Accept means “to receive with assent.” Webster’s Third New
International Dictionary 10 (2002). These definitions suggest that
acceptance requires something more than mere transmittal, but the
word acceptance alone does not provide guidance as to how a
document may be accepted.
However, the word acceptance does not stand alone. The
regulation, read in its entirety, establishes that electronic documents
may be accepted “by the Chief Clerk of the Commission.” Neither
party argues that “Chief Clerk,” as used in this regulation, means only
the chief clerk. AT&T acknowledges that the regulation extends at
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least to the chief clerk’s personnel, who may also accept e-filings.
This position reflects the reality of modern administrative agencies
that department heads must necessarily delegate certain authority and
responsibility in order for the agency to function properly. Both
parties agree that the intent of the regulation was not to require the
chief clerk to personally accept every e-filing.
Because “Chief Clerk” cannot be read literally, the language of
the statute gives rise to an ambiguity as to who, or what, may
“accept” electronic filings. An ambiguity exists where the regulation
is capable of more than one reasonable interpretation. See General
Motors Corp. v. State of Illinois Motor Vehicle Review Board, 224 Ill.
2d 1, 13 (2007). AT&T reasonably interprets “Chief Clerk” to mean
the chief clerk or a member of his staff. However, interpreting chief
clerk to refer to the office of the chief clerk, and not to any particular
person, an interpretation more in line with that of the Attorney
General, is also reasonable. Implementing an e-filing system, like
delegating responsibility to the chief clerk’s staff members, serves the
same purpose of promoting efficiency, and reducing the burden on the
Commission’s employees. Under that interpretation, the Commission
e-docket system is authorized to accept filings from the various
parties having business with the Commission. We find the regulation
ambiguous because on its face it contains no indication whether filing
requires actual physical acceptance by a human being in the chief
clerk’s office.
If the language of a particular regulation is ambiguous, we then
look to the purpose and necessity of the regulation, the evils sought
to be remedied and the goals to be achieved. Alvarez v. Pappas, 229
Ill. 2d 217, 231 (2008). In doing so, we view all provisions of an
enactment as a whole. J.S.A. v. M.H., 224 Ill. 2d 182 (2007). In this
case we look to the Commission’s formal rules for electronic filing,
enacted on October 15, 2000, in their entirety. When there is still
doubt as to a regulation’s meaning, we also properly consider
extrinsic matters in order to determine legislative intent. Land v.
Board of Education of the City of Chicago, 202 Ill. 2d 414, 426
(2002).
In its “Overview of Electronic Filing,” the Commission affirms
its commitment “to facilitating the filing, distributing, and accessing
of documents electronically,” subject to the Commission’s Rules of
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Practice. 83 Ill. Adm. Code §200.1000 (added at 24 Ill. Reg. 16019,
eff. October 15, 2000). The Commission allows all documents
initiating a proceeding, or filed in a docketed proceeding, to be filed
electronically. 83 Ill. Adm. Code §200.1045 (added at 24 Ill. Reg.
16019, eff. October 15, 2000). The Commission’s rules also provide
for service by electronic means. 83 Ill. Adm. Code §200.1050 (added
at 24 Ill. Reg. 16019, eff. October 15, 2000).
The rest of the Commission’s regulations reinforce this overall
purpose of facilitating e-filing. For example, the Commission’s e-
filing system accepts a variety of document formats. Although the
Commission encourages parties to submit documents in PDF format,
it will accept both Microsoft Word and Corel WordPerfect
documents, as well as ASCII text. 83 Ill. Adm. Code §200.1010
(added at 24 Ill. Reg. 16019, eff. October 15, 2000). The Commission
also accepts two spreadsheet formats. 83 Ill. Adm. Code §200.1010
(added at 24 Ill. Reg. 16019, eff. October 16, 2000).
Thus, while the Commission’s rules do not require parties to file
electronically, the rules reflect the Commission’s intent to encourage,
rather than restrict, the practice. The Commission’s rules do contain
restrictions on electronic filing. For example, only registered account
holders may use the system, and only members of the service list for
a docketed case may file documents electronically in that case. 83 Ill.
Adm. Code §200.1020 (added at 24 Ill. Reg. 16019, eff. October 15,
2000). However, these practices ultimately encourage electronic filing
by instilling confidence in the security and efficiency of the system.
In light of the regulations’ emphasis on facilitating e-filing, we cannot
say that the regulations themselves indicate an intent to restrict e-
filing to business hours.
Still, AT&T suggests that the disclaimer printed on the Attorney
General’s electronic receipt confirming the transmission of its
application for rehearing reveals the intent of the Commission to
restrict filing to actual office hours because a person must physically
review the filing. The disclaimer reads:
“Electronic file(s) are not officially filed with the Illinois
Commerce Commission until reviewed for compliance with
Commission rules and accepted by Commission personnel.”
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The disclaimer refers to acceptance by Commission personnel.
However, this statement is equally applicable to in-person filings and
mail filings. Neither are officially filed until reviewed for compliance.
What is different between in-person and mail filings is when they are
deemed filed. While both must be reviewed for compliance before
being officially filed, in-person filings must be made during business
hours, while mail filings do not. The disclaimer therefore says
nothing about whether e-filings must be transmitted during business
hours. Instead, the disclaimer indicates that a document will not be
officially filed at all if it does not comply with Commission rules.
Because the disclaimer does not suggest that a document transmitted
after business hours will be deemed filed the following day, the
disclaimer cannot provide guidance as to the Commission’s intent.
Even if the regulation and disclaimer could be interpreted to
require actual physical acceptance, it would prove to be an
unworkable standard. The burden of timely filing rests on parties to
an action, who are responsible for the proper formatting and delivery
of filings. Agencies and courts need not issue reminders. Along with
the parties’ responsibility to adhere to deadlines, however, comes the
assurance that a filing will be deemed filed when submitted, even if
not checked for compliance until later. In re Estate of Davison, 102
Ill. App. 3d 644, 645 (1981) (“Delivery alone has been held to
constitute filing since the person filing has no control over the officer
who receives documents”), citing Dowie v. Chicago, Waukegan &
North Shore Ry. Co., 214 Ill. 49 (1905).
Requiring physical acceptance undermines the reasoning in
Dowie, because e-filers have no control over the physical acceptance
of documents by Commission personnel. A physical-acceptance
standard gives rise to uncertainty as to whether an electronically
submitted document has been filed. We note in particular the example
raised by the Attorney General, of a filing transmitted at 4:59 p.m. If
Commission personnel are unable to review and accept that filing
until the following morning, under a physical-acceptance rule the
document will not be filed until that following morning. Similarly, a
brief filed at 5:01 p.m. and reviewed by Commission personnel
working late would be deemed filed that same day. The physical-
acceptance standard eliminates the parties’ ability to know, in
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advance, what time their documents will be deemed filed, as they
have no control over the chief clerk’s personnel.
Uncertainty of that kind does not occur with either in-person
filings or mail filings. In-person submissions are officially filed when
received at the principal office of the Commission. 83 Ill. Adm. Code
§200.70(a) (amended at 24 Ill. Reg. 16019, eff. October 15, 2000).
Filing by mail is official based on the cancellation mark of the United
States Postal Service, or upon delivery to a private express courier
service. 83 Ill. Adm. Code §200.70(a)(1) (amended at 24 Ill. Reg.
16019, eff. October 15, 2000). The Commission’s regulation and
disclaimer, read literally to require physical acceptance of an
electronic filing, would place e-filers at a comparative disadvantage.
AT&T suggests that using the Commission’s business hours
sufficiently reduces the potential for uncertainty. We agree with
AT&T that imposing a 5 p.m. deadline is perfectly compatible with
e-filing, and acknowledge AT&T’s extensive list of other agencies
and jurisdictions that have imposed rules and regulations providing
for such a deadline. However, in the absence of a specific regulation,
we cannot read a 5 p.m. deadline into the Commission’s rules.
Indeed, the extent to which other jurisdictions have enacted business
hours deadlines also serves to underscore the Commission’s own
decision not to issue an explicit rule. Rather, the Commission chose
the word “acceptance,” which, standing alone, does not fairly imply
a 5 p.m. deadline.
AT&T’s interpretation requiring physical acceptance would
undermine the expressed intent of the Commission to facilitate and
encourage the use of electronic filing. We do not depart from the
plain language of the regulation by reading into it exceptions,
limitations, or conditions that conflict with the expressed intent. See
Rosewood Care Center, Inc. v. Caterpillar, Inc., 226 Ill. 2d 559, 567
(2007).
The entirety of the Commission’s enactment seeks to expand,
rather than limit, the ability of parties to make use of the e-docket
system. Insisting on a deadline of 5 p.m. would have the opposite
effect, limiting the use of e-filing. When faced with a tight deadline,
a 5 p.m. rule would encourage attorneys to print, and mail, large
documents rather than use the efficient and economical method of
electronic filing that the Commission’s rules promote.
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Accordingly, we hold that the Commission’s regulations do not
require that electronic documents to be transmitted by 5 p.m. on their
due date. So long as the document is transmitted prior to midnight of
the due date, and otherwise complete under the Commission’s rules,
that document is timely filed, and the appellate court properly has
jurisdiction over subsequent appeals.
III. Appropriate Court on Remand
The Attorney General asks this court to remand this appeal to the
First District, as the First District is the court that first acquired
jurisdiction of its appeal under the Public Utilities Act. AT&T argues
that the Attorney General has forfeited this issue because it was not
raised in the Attorney General’s petition for leave to appeal.
The Attorney General asserts it has previously raised the
argument that the First District first acquired jurisdiction of this
appeal. Specifically, the Attorney General raised the argument in
defending against AT&T’s original motion to transfer to the Fourth
District, in the Attorney General’s motion to dismiss AT&T’s
appeals, and in the Attorney General’s petition for rehearing in the
Fourth District.
However, forfeiture is ultimately irrelevant, as the issue in this
case is one of jurisdiction, which any reviewing court has an
obligation to consider. Franson v. Micelli, 172 Ill. 2d 352, 355
(1996).
The appellate court has jurisdiction to review administrative
decisions only as provided by law. Ill. Const. 1970, art. VI, §6; Town
& Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill.
2d 103, 121-22 (2007). When the appellate court undertakes direct
review of an administrative decision, it exercises special statutory
jurisdiction. Town & Country Utilities, 225 Ill. 2d at 122. Special
statutory jurisdiction is limited to the language of the act conferring
it. Town & Country Utilities, 255 Ill. 2d at 122, quoting Collinsville
Community Unit School District No. 10 v. Regional Board of School
Trustees, 218 Ill. 2d 175, 182 (2006), quoting Fredman Brothers
Furniture v. Department of Revenue, 109 Ill. 2d 202, 210 (1985).
Thus, we are presented with the question whether the Public Utilities
Act has conferred jurisdiction on either the First or Fourth District.
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The Public Utilities Act specifically requires appeals to be
brought in particular judicial districts. The Act provides that parties
“may appeal to the appellate court of the judicial district in which the
subject matter of the hearing is situated.” 220 ILCS 5/10–201(a)
(West 2006). The Act further states:
“The court first acquiring jurisdiction of any appeal from
any *** order *** shall have and retain jurisdiction of such
appeal and of all further appeals from the same *** order ***
until such appeal is disposed of in such appellate court. 220
ILCS 5/10–201 (West 2006).
The Public Utilities Act thus limits the appellate court’s special
statutory jurisdiction to districts that encompass the matter under
review by the Commission.
This court has recognized that it is the notice of appeal which,
when timely filed with the trial court, vests jurisdiction with the
appellate court. In re Tekela, 202 Ill. 2d 282, 288 (2002). Berg v.
Allied Security, Inc., 193 Ill. 2d 186, 189 (2000). 155 Ill. 2d R. 301.
In the context of administrative review, the petition for review
submitted to the appellate court serves the function of the notice of
appeal. 155 Ill. 2d R. 335, Committee Comments, at cxxxii; ESG
Watts, Inc. v. Pollution Control Board, 191 Ill. 2d 26, 31 (2000).
Therefore, for the appellate court to acquire jurisdiction, the petition
for review must be timely filed. In this case, the Attorney General
acknowledges that AT&T first filed its petitions for review in the
Fourth District. Still, the Attorney General contends that because
those petitions were not timely filed, jurisdiction never vested with
the Fourth District.
We note neither the First nor the Fourth District has made a
determination whether, under the Public Utilities Act, it “first
acquir[ed] jurisdiction.” The Fourth District merely concluded, in its
dismissal of the Attorney General’s appeal, that the Attorney
General’s petition for rehearing was not timely. The First District also
declined to make a determination of its jurisdiction in transferring the
Attorney General’s appeal to the Fourth District. That court strongly
emphasized it made no finding as to whether it or the Fourth District
had jurisdiction over either of the parties’ appeals. People ex rel.
Madigan v. Illinois Commerce Comm’n, 369 Ill. App. 3d 126, 127
(2006).
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Nor did the appellate court make a determination as to whether
the subject matter of the Commission’s review was “situated” in the
reviewing court’s district. Because an appeal of a Commission
decision is allowed by law only in those districts where the subject
matter of the appeal is situated, the appellate court must meet that
statutory requirement, even before it can determine which district first
acquired jurisdiction. We note the Attorney General contends that the
matter is situated in the First District, because the bulk of AT&T’s
affected customers are geographically located there, while AT&T
asserts that its customers are also located in the Fourth District. The
record before this court is not sufficiently developed to make that
determination.
Thus, although we hold that the appellate court has jurisdiction
over the Attorney General’s appeal with respect to the timeliness of
her application for rehearing with the Commission, we remand to the
Fourth District with instruction to consider whether the subject matter
of the Commission’s order is situated in the First or the Fourth
District, if either, and for a determination whether the First or the
Fourth District first acquired jurisdiction over the Attorney General’s
appeal, pursuant to section 10–201(a).
Finally, we note that Supreme Court Rule 303(a)(2) (210 Ill. 2d
R. 303) and Rule 335 (155 Ill. 2d R. 335) may be applicable to the
question of jurisdiction. However, neither party has briefed the issue,
and so we instruct the Fourth District to also consider its jurisdiction
in light of Rules 303 and 335.
CONCLUSION
For the reasons stated, we hold that the Attorney General’s
application for rehearing was timely filed, and that the Fourth District
did not lack jurisdiction on timeliness grounds. The judgment of the
appellate court is reversed, and we remand the cause to the Fourth
District for further proceedings.
Appellate court judgment reversed;
cause remanded.
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