People ex rel. Madigan v. Illinois Commerce Commission ( 2009 )

NO. 4-06-1063 Filed 9/3/09
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS ex ) Direct
rel. LISA MADIGAN, Attorney General of ) Administrative
the State of Illinois, ) Review of the
Petitioner-Appellant, ) Illinois Commerce
v. ) Commission
THE ILLINOIS COMMERCE COMMISSION; ) No. 06-0027
ILLINOIS BELL TELEPHONE COMPANY; THE )
CITIZENS UTILITY BOARD; THE CITY OF )
CHICAGO; COOK COUNTY STATE'S ATTORNEY'S )
OFFICE; AARP ILLINOIS; GALLATIN RIVER )
COMMUNICATIONS LLC; TRUCOMM CORPORATION; )
and DATA NET SYSTEMS, )
Respondents-Appellees. )
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In November 2005, respondent Illinois Bell Telephone
Company (Illinois Bell) filed tariffs with respondent Illinois
Commerce Commission (Commission) reclassifying as competitive
specific residential local services in MSA-1, an area encompass-
ing Chicago and outlying areas. A number of entities, including
the petitioner, the People of the State of Illinois ex rel.
Attorney General Lisa Madigan, participated in the investigation
of and hearings on Illinois Bell's reclassification. On August
30, 2006, the Commission issued its decision reclassifying
Illinois Bell's residential local service for MSA-1 as competi-
tive. The Commission also modified and adopted a joint proposal
of Illinois Bell and the Citizens Utility Board (CUB), under
which Illinois Bell agreed to certain rate limits.
Petitioner appeals the Commission's ruling. On appeal,
petitioner argues (1) the First District has exclusive jurisdic-
tion to hear this appeal, (2) the Commission erred by reclassify-
ing "measured" or "basic service" in MSA-1 as "competitive" under
section 13-502 of the Public Utilities Act (Act) (220 ILCS 5/13-
502 (West 2006)), and (3) the Commission lacked the authority to
adopt the Illinois Bell-CUB proposal. We agree with petitioner's
first argument and transfer this appeal to the First District.
I. BACKGROUND
In November 2005, Illinois Bell filed tariffs declaring
essentially all of its residential local services in MSA-1
competitive under section 13-502 of the Act (220 ILCS 5/13-502
(West 2004)). The services labeled competitive included resi-
dence network-access lines, residence usage services, call
waiting, caller identification (caller ID), and directory-listing
services. A consumer could purchase these services on an a la
carte basis. Illinois Bell also reclassified as competitive a
number of residential-service packages. We note the Commission
approved the reclassification of the residential packages and
petitioner did not appeal that ruling.
On January 11, 2006, the Commission initiated an
investigation into Illinois Bell's reclassification of its
residential local services. Illinois Bell's reclassification of
those services, previously deemed noncompetitive, would allow
Illinois Bell to "change its prices with fewer procedural obsta-
cles and less scrutiny from the Commission." Illinois Bell
Telephone Co. v. Illinois Commerce Comm'n, 282 Ill. App. 3d 672,
- 2 -
675, 669 N.E.2d 628, 630 (1996). A number of parties intervened,
including petitioner, the City of Chicago, CUB, and AARP Illinois
(AARP). In April 2006, the Commission held an evidentiary
hearing on the matter. In May 2006, Illinois Bell and CUB filed
their stipulation and joint proposal. Under this proposal, those
parties agreed, in part, the residence local-exchange services in
MSA-1 would be reclassified as competitive and Illinois Bell
would cap or reduce certain prices related to such services. The
People, the City of Chicago, the Cook County State's Attorney's
office, AARP, Data Net Systems, and TruComm all urged the Commis-
sion not to accept the joint proposal.
In July 2006, the administrative law judge (ALJ) issued
a proposed order recommending, in part, the Commission reject the
joint proposal and find measured service, caller ID, and call
waiting be classified noncompetitive. The Commission, however,
disagreed with the ALJ. On August 30, 2006, the Commission
issued its decision reclassifying Illinois Bell's measured
services for MSA-1 as competitive and adopting the joint proposal
upon modifying it.
Illinois Bell, petitioner, and AARP, as well as other
parties, filed applications for rehearing with the Commission.
On October 13, 2006, the Commission explicitly denied the appli-
cations for rehearing filed by Illinois Bell, petitioner, and
other parties. The Commission did not rule on the merits of
AARP's application.
Three petitions for administrative review followed in
- 3 -
two appellate districts. On October 13, 2006, Illinois Bell
filed the first of its two petitions in this court, docketed as
No. 4-06-0882. On October 23, 2006, Illinois Bell filed its
second (No. 4-06-0911). One day later, in the First District,
petitioner filed its notice of appeal and petition for adminis-
trative review (No. 1-06-3014).
In November 2006, Illinois Bell filed, in the First
District, a motion to transfer petitioner's appeal to the Fourth
District or to dismiss petitioner's appeal for lack of jurisdic-
tion. Illinois Bell maintained because it filed the first
appeal, the Fourth District had exclusive jurisdiction. The
First District, without ruling on the jurisdiction arguments,
agreed to the transfer and, in December 2006, transferred peti-
tioner's appeal to the Fourth District. People ex rel. Madigan
v. Illinois Commerce Comm'n, 369 Ill. App. 3d 126, 860 N.E.2d 459
(2006). Upon transfer, the appeal was docketed as No. 4-06-1063.
On January 4, 2007, petitioner filed in this court a
motion to dismiss Illinois Bell's appeals (Nos. 4-06-0882 and 4-
06-0911). Petitioner argued both of Illinois Bell's petitions
for administrative review were prematurely filed and invalid as
they were filed before the Commission resolved all of the
postjudgment motions. On January 12, 2007, this court granted
petitioner's motion, dismissing Illinois Bell's appeals. Illi-
nois Bell Telephone Co. v. Illinois Commerce Comm'n, Nos. 4-06-
0882, 4-06-0911, cons. (January 12, 2007) (unpublished order
under Supreme Court Rule 23). Illinois Bell did not petition the
- 4 -
supreme court for leave to appeal.
Also in January 2007, this court dismissed petitioner's
appeal in No. 4-06-1063. We held petitioner failed to file a
timely application for rehearing in the Commission and such
failure precluded our review. People ex rel. Lisa Madigan v.
Illinois Commerce Comm'n, No. 4-06-1063 (January 18, 2007)
(unpublished order under Supreme Court Rule 23). Petitioner
appealed to the Supreme Court of Illinois.
In November 2008, our supreme court reversed and
remanded our decision in case No. 4-06-1063. The court first
concluded petitioner timely filed its application for rehearing
with the Commission and this court did not lack jurisdiction on
that particular ground. People ex rel. Madigan v. Illinois
Commerce Comm'n, 231 Ill. 2d 370, 389, 899 N.E.2d 227, 237
(2008). The court then ordered this court to (1) determine
whether the subject matter of the Commission's order lies within
the First or Fourth District, if either; (2) if the subject
matter lies in both districts, decide which district first
acquired jurisdiction over petitioner's appeal; and (3) consider
appellate jurisdiction in light of Supreme Court Rules 303(a)(2)
(210 Ill. 2d R. 303(a)(2)) and 335 (155 Ill. 2d R. 335).
Madigan, 231 Ill. 2d at 389, 899 N.E.2d at 237.
We consider the appeal on remand.
II. ANALYSIS
Petitioner's appeal is one from the decision of the
Commission, an administrative body. We have jurisdiction to
- 5 -
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, 866
N.E.2d 227, 237-38 (2007). To review the direct appeal of an
administrative action, we must exercise special statutory juris-
diction. McGaughy v. Illinois Human Rights Comm'n, 165 Ill. 2d
1, 6-7, 649 N.E.2d 404, 407 (1995). The statute that gives an
appellate court jurisdiction over an administrative action also
limits it. Town & Country Utilities, 225 Ill. 2d at 122, 843
N.E.2d at 238.
In this case, the statute that gives an appellate court
power to review a decision of the Commission is section 10-201(a)
of the Public Utilities Act (220 ILCS 5/10-201(a) (West 2006)).
Section 10-201(a) provides two prerequisites for an appellate
court to have jurisdiction. First, the subject matter of the
hearing must be situated in the judicial district of the appel-
late court. 220 ILCS 5/10-201(a) (West 2006). Second, if the
subject matter "is situated in more than one district," then the
appellate court that first acquires "jurisdiction of any appeal"
from the Commission's order is the court that maintains jurisdic-
tion until the appeal is disposed. 220 ILCS 5/10-201(a) (West
2006).
In Madigan, our supreme court concluded the jurisdic-
tional analysis under section 10-201(a) is sequential. See
Madigan, 231 Ill. 2d at 388, 899 N.E.2d at 237 ("Because an
appeal of a Commission decision is allowed by law only in those
- 6 -
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").
According to section 10-201(a) and court order, we must first
determine where the subject matter is situated before we may turn
to the question of which appellate court first acquired jurisdic-
tion. See Madigan, 231 Ill. 2d at 388, 899 N.E.2d at 237.
A. Situs of the Subject Matter
The parties dispute whether the subject matter of the
Commission's order is situated in the Fourth District. Peti-
tioner's position is the subject matter is situated in the First
District and not in the Fourth District. Petitioner argues
Illinois Bell cannot specify any evidence showing the Commission
considered competition, phone lines, or customers within the
jurisdiction of the Fourth District. Petitioner further main-
tains William Taylor, an expert witness presented by Illinois
Bell, testified the "Chicago LATA" does not include part or all
of any county within the Fourth District. Taylor testified the
relevant market within the Chicago LATA contained Cook County,
which is in the First District, as well as other counties in the
Second and Third Districts.
Illinois Bell argues the subject matter of the order is
situated in the Fourth District. Illinois Bell acknowledges most
of the customers affected by the order are in the First District
but argues MSA-1 extends into part of Livingston County, a county
in the Fourth District. Illinois Bell emphasizes when the
- 7 -
Commission reclassified services, it did so in "MSA-1." In its
appellee brief, the Commission adopted Illinois Bell's argument.
We agree with Illinois Bell and find the subject matter is
situated in the Fourth District.
In their arguments on appeal, the parties emphasize two
different geographical areas: the Chicago LATA and MSA-1.
Petitioner focuses on the Chicago LATA, while Illinois Bell and
the Commission use the MSA-1 term. According to Taylor's expert
testimony, "LATA" stands for "Local Access and Transport Area."
LATA's were created as part of the 1984 divestiture of the Bell
system. There are 14 LATA's in Illinois. In contrast, an MSA,
or metropolitan statistical area, "is a county or group of
counties having a large clustered population, including adjacent
areas having a high degree of community of interest with the core
population center." The Chicago LATA and MSA-1 do not have the
same boundaries, but their geographical areas overlap signifi-
cantly: "almost 98[%] of the lines in the Chicago LATA are in the
Chicago MSA." The Commission, in its order, made its findings in
relation to MSA-1. For example, it determined "the market for
measured service is properly classified as competitive in MSA-1."
The record shows expert witness Taylor identified, on a
table, the counties in the Chicago LATA and MSA-1. The table is
entitled "County Comparisons Among the LATA, DMA[,] and MSA."
None of the counties listed fall within the Fourth District.
The record, however, also contains expert testimony
MSA-1 extends into part of Livingston County. When asked to
- 8 -
define MSA-1, W. Karl Wardin, an expert witness proferred by
Illinois Bell, testified the area covered the Chicago metropoli-
tan area, "including all of Cook County and all of the surround-
ing collar counties of Lake, DuPage, Kendall[,] and Will; most of
McHenry, Kane, Grundy[,] and Kankakee [C]ounties; part of LaSalle
and Iroquois [C]ounties; and a fraction of Livingston [C]ounty."
In addition, at least one schedule offered by Wardin lists the
town of Dwight among other cities and suburbs, such as Chicago,
Des Plaines, Aurora, and Wheaton. By listing Dwight on this
schedule, Wardin indicates there are Livingston County residen-
tial access lines within the Chicago LATA. We note, after
responding to the question defining MSA-1, Wardin referred to
both MSA-1 and the Chicago LATA as the Chicago LATA.
In addition to this testimony by Wardin, petitioner, in
other filings before this court, admitted consumers in Livingston
County are affected by the Commission's order. We take judicial
notice of petitioner's motion to dismiss Illinois Bell's consoli-
dated appeals in Nos. 4-06-0882 and 4-06-0911. Petitioner stated
the following:
"The overwhelming majority of the 2.4
million consumers affected by the Order re-
side in the First, Second[,] and Third Judi-
cial Districts, including Cook, Lake, DuPage,
Kendall, Will, most of McHenry, Kane, Grundy,
Kankakee, and part of LaSalle and Iroquois
Counties. *** The consumers affected by the
- 9 -
Order living in the Fourth Judicial District
are only those in the Dwight area, represent-
ing a fraction of Livingston County, and a
tiny fraction of all customers affected by
the Order."
We agree with petitioner this is not a concession as to this
court's jurisdiction, but it may be interpreted as petitioner's
accepting Wardin's testimony as true.
We further conclude the petitioner wrongly states there
is no evidence in the record showing the Commission considered
competition, phone lines, or customers within the Fourth Dis-
trict. While the Commission does not explicitly reference the
residential lines in Livingston County, there is evidence listing
Dwight and identifying the level of competition for retail
residential access lines among Dwight customers. This evidence
appears in a schedule, which we referred to above, that (1) lists
exchanges by city; (2) identifies the numbers of "Chicago LATA
Retail Residential Access Lines," "Wireless Estimate" numbers,
and "AT&T CLEC [(Competitive Local Exchange Carriers)] Chicago
LATA Residential Access Lines" users; and (3) provides the ratio
for residential CLEC and wireless users to Illinois Bell users by
city. In its order, when summarizing Illinois Bell's position,
the Commission used this 23.9% figure when it made the following
statement: Illinois Bell "presented evidence showing that at the
time the residential services at issue were classified as compet-
itive, CLECs and wireless carriers alone served approximately 24%
- 10 -
of the residence lines in [Illinois Bell's] service territory in
the Chicago LATA." The Dwight consumer information appears to
have been part of the analysis and the Commission's ultimate
decision.
Given the above testimony, petitioner's earlier conces-
sion, and the evidence cited by the Commission, we find the
subject matter of the hearing lies within the Fourth District, as
well as in the First, Second, and Third Districts. Although the
number of consumers and the size of the territory in the Fourth
District is very small in relation to the other districts,
section 10-201 does not indicate a preference for jurisdiction
based upon which district possesses proportionately more subject
matter or affected persons.
B. First Acquired Jurisdiction
Having determined the subject matter is situated in
more than one district, we turn to the question of which district
first acquired jurisdiction over an appeal from the Commission's
order. Petitioner argues the First District first acquired
jurisdiction, even though its appeal was not the first filed.
Petitioner's appeal (No. 1-06-3014) was filed in the First
District on October 24, 2006, while Illinois Bell filed its
appeals in the Fourth District on October 13 and 23, 2006 (Nos.
4-06-0882, 4-06-0911). Petitioner emphasizes because this court
dismissed Illinois Bell's appeals for lack of jurisdiction, the
Fourth District did not have jurisdiction over any appeal of the
Commission's order when the First District acquired jurisdiction
- 11 -
over its appeal.
Illinois Bell acknowledges the dismissed appeals, but
argues the supreme court's decision in Madigan indicates we
should "take a fresh look at this issue." Illinois Bell main-
tains petitioner made the same argument in Madigan, but the
supreme court "obviously did not accept the [petitioner's] theory
that the dismissals automatically meant that the First District
was first to acquire jurisdiction." Illinois Bell contends this
court was then instructed to determine which district first
acquired jurisdiction and consider Supreme Court Rule 303 (210
Ill. 2d R. 303). Illinois Bell then essentially challenges our
decision in Nos. 4-06-0882 and 4-06-0911 by arguing its appeals
were timely.
While Illinois Bell urges this court to "take a fresh
look" at its earlier appeals, Illinois Bell cites no supreme
court rule or statute that gives this court authority to open
those cases. Illinois Bell filed its appeals in October 2006. In
January 2007, petitioner moved to dismiss Illinois Bell's appeals
as untimely. Illinois Bell filed a brief in response. On
January 12, 2007, we agreed with petitioner and dismissed the
appeals for lack of jurisdiction. Illinois Bell did not file a
petition for rehearing under Supreme Court Rule 367(a) (210 Ill.
2d R. 367(a)) or appeal to the supreme court under Rule 315(b)
(210 Ill. 2d R. 315(b)). After the deadlines in those rules
expired, this court lacked authority to reopen those appeals.
Rule 303(a)(2) does not make Illinois Bell's appeals
- 12 -
timely or authorize reconsideration of those appeals. Illinois
Bell relied on an amended version of Rule 303(a)(2) (Official
Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff.
May 1, 2007) in support of its argument its appeals were timely.
This version, however, became effective on May 1, 2007--almost
four months after this court's January 12, 2007, final decision
finding Illinois Bell's appeals untimely. See Official Reports
Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff. May 1,
2007.
At the time of the January 2007 ruling, the applicable
Rule 303(a)(2) appeared at 210 Ill. 2d R. 303(a)(2). Interest-
ingly, it is this version of the rule the Madigan court told this
court to consider. See Madigan, 231 Ill. 2d at 389, 899 N.E.2d
at 237. Under this version, petitions for review filed in the
appellate court before the Commission resolved all of the
postjudgment motions were untimely and deprived the appellate
court of jurisdiction over such petitions. 210 Ill. 2d R.
303(a)(2) ("When a timely postjudgment motion has been filed by
any party ***, a notice of appeal filed before the entry of the
order disposing of the last pending postjudment motion shall have
no effect"). In contrast, the amended version provides "when a
timely postjudgment motion has been filed, a notice of appeal
filed before 'the final disposition of any separate claim' does
not become effective until the order disposing of the separate
claim is entered." In re Marriage of Duggan, 376 Ill. App. 3d
725, 727-28, 877 N.E.2d 1140, 1143 (2007), quoting Official
- 13 -
Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff.
May 1, 2007. While the amended version may have applied if it
were effective while Illinois Bell's appeals were pending, it
cannot be used to resurrect a final judgment. See generally
Duggan, 376 Ill. App. 3d at 730, 877 N.E.2d at 1145 ("[N]ew
procedural rules may be applied to pending appeals without
interfering with a vested right" (emphasis added)).
Our supreme court also noted Supreme Court Rule 335
(155 Ill. 2d R. 335) may apply. Madigan, 231 Ill. 2d at 389, 899
N.E.2d at 237. Rule 335, entitled "Direct Review of Administra-
tive Orders by the Appellate Court," provides the procedures for
statutory direct reviews of administrative-agency orders. 155
Ill. 2d R. 335. We find it does not provide a procedure permit-
ting review of Illinois Bell's orders.
In addition, Madigan does not authorize this court to
reconsider our rulings in the Illinois Bell appeals. Contrary to
Illinois Bell's assertion, the supreme court did not reject
petitioner's argument that because Illinois Bell's appeals were
dismissed the First District automatically had jurisdiction; the
supreme court simply refused to consider the argument at that
time. The supreme court summarized the arguments and left the
jurisdictional questions under section 10-201(a) to this court,
while observing neither this district nor the First District had
yet considered those arguments. Madigan, 231 Ill. 2d at 388-89,
899 N.E.2d at 237.
Not only have we found no rule or statute authorizing
- 14 -
us to reopen Illinois Bell's appeals, but also the collateral-
estoppel doctrine prohibits such an action. Under this doctrine,
relitigating an issue already determined is barred in the follow-
ing circumstances:
"(1) the court rendered a final judgment in
the prior case; (2) the party against whom
estoppel is asserted was a party or in priv-
ity with a party in the prior case; and (3)
the issue decided in the prior case is iden-
tical with the one presented in the instant
case." People v. Tenner, 206 Ill. 2d 381,
396, 794 N.E.2d 238, 247 (2002).
All three elements apply here.
We note petitioner argues the law-of-the-case doctrine
precludes revisiting Illinois Bell's appeals. Like the
collateral-estoppel doctrine, the law-of-the-case doctrine
prevents parties from relitigating issues already decided.
Tenner, 206 Ill. 2d at 395, 794 N.E.2d at 247. Unlike collateral
estoppel, however, the law-of-the-case doctrine applies to issues
already determined in the same case. Tenner, 206 Ill. 2d at 396,
794 N.E.2d at 247. Illinois Bell's appeals and petitioner's
appeal were not the same case. One is not a continuation of
another, the appeals were not consolidated, and section 10-201's
reference to multiple appeals contemplates separate actions from
the same order.
This court has not acquired jurisdiction over any
- 15 -
appeal from the Commission's order. Because petitioner's appeal
was filed in the First District, that district may have jurisdic-
tion over petitioner's appeal. As our earlier analysis shows, it
is clear the subject matter of the Commission's order lies in the
First District, satisfying the first part of section 10-201. The
question remains, however, whether the First District has juris-
diction over petitioner's appeals under the supreme court rules.
We defer to the First District on that matter.
III. CONCLUSION
For the stated reasons, we find this court lacks
jurisdiction over the appeal, and we transfer the appeal to the
First District.
Appeal transferred.
McCULLOUGH, P.J., and STEIGMANN, J., concur.
- 16 -