People ex rel. Madigan v. Illinois Commerce Commission

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,

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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

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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

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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

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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

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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

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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

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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

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 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%

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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

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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

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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

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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

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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

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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.

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