Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06--0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons. _________________________________________________________filed: 10/27/06
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT _____________________________________________________________________
COMMONWEALTH EDISON COMPANY, ) Petition for review of order ) of Illinois Commerce Commission. Petitioner-Appellee, ) ) v. ) ICC No. 05--0159 ) ILLINOIS COMMERCE COMMISSION, ) (No. 1--06--0664) ) Respondent ) ) (The People of the State of Illinois, ex rel. ) Attorney General Lisa Madigan, Intervenor- ) Appellant; the People of Cook County, ) ex rel. State's Attorney Richard Devine,) Building Owners and Managers Association) of Chicago, Environmental Law and Policy ) Center, Citizens Utility Board, Central Illinois) Light Company, Central Illinois Public ) Service Company, Illinois Power Company, ) Ameren Energy Marketing Company, and ) the City of Chicago, Intervenors-Appellees; ) Blue Star Energy Services, Inc., Constellation ) Energy Commodities Group, Inc., ) Constellation Newenergy, Inc., Direct Energy ) Services, LLC, United States Department of) Energy, Dynegy, Inc., Electric Power Supply ) Association, Illinois Energy Association, ) Abbott Laboratories, Inc., Caterpillar, Inc., ) Daimler Chrysler Corporation, Cognis ) Corporation, Enbridge Energy, LLP, Ford ) Motor Company, Motorola, Inc., J. Aron ) & Company, Mid-American Energy Company, ) Midwest Generation EME, LLC, Morgan ) Stanley Capital Group, Inc., Midwest ) Independent Power Suppliers, Peoples Energy ) Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2-- 06--0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
Services Corporation, Reliant Energy, Inc., ) Local Unions 15, 51, and 702 of the ) International Brotherhood of Electrical ) Workers, AFL-CIO, Sempra Energy Solutions, ) and US Energy Savings Corporation, ) Intervenors). ) ______________________________________________________________________ ________
COMMONWEALTH EDISON COMPANY, ) Petition for review of order ) of Illinois Commerce Commission. Petitioner-Appellee, ) ) v. ) ICC No. 05--0159 ) ILLINOIS COMMERCE COMMISSION, ) (No. 1--06--0858) ) Respondent ) ) (The People of Cook County, ex rel. State's ) Attorney Richard Devine, Intervenor-Appellant; ) the People of the State of Illinois, ex rel. ) Attorney General Lisa Madigan, Building ) Owners and Managers Association of Chicago, ) Environmental Law and Policy Center, Citizens ) Utility Board, Central Illinois Light Company, ) Central Illinois Public Service Company, ) Illinois Power Company, Ameren Energy ) Marketing Company, and the City of Chicago, ) Intervenors-Appellees; Blue Star Energy ) Services, Inc., Constellation Energy ) Commodities Group, Inc., Constellation ) Newenergy, Inc., Direct Energy Services, LLC, ) United States Department of Energy, Dynegy, ) Inc., Electric Power Supply Association, Illinois) Energy Association, Abbott Laboratories, Inc., ) Caterpillar, Inc., Daimler Chrysler Corporation,) Cognis Corporation, Enbridge Energy, LLP, ) Ford Motor Company, Motorola, Inc., J. Aron ) & Company, Mid-American Energy Company, ) Midwest Generation EME, LLC, Morgan ) Stanley Capital Group, Inc., Midwest ) Independent Power Suppliers, Peoples Energy ) Services Corporation, Reliant Energy, Inc., )
-2- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2-- 06--0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
Local Unions 15, 51, and 702 of the ) International Brotherhood of Electrical ) Workers, AFL-CIO, Sempra Energy Solutions, ) and US Energy Savings Corporation, ) Intervenors). ) ______________________________________________________________________ ________
COMMONWEALTH EDISON COMPANY, ) Petition for review of order ) of Illinois Commerce Commission. Petitioner-Appellee, ) ) v. ) ICC No. 05--0159 ) ILLINOIS COMMERCE COMMISSION, ) (No. 1--06--0859) ) Respondent ) ) (Citizens Utility Board, Intervenor-Appellant;) the People of the State of Illinois, ex rel. ) Attorney General Lisa Madigan, Building ) Owners and Managers Association of Chicago, ) Environmental Law and Policy Center, the ) People of Cook County, ex rel. State's Attorney) Richard Devine, Central Illinois Light Company, ) Central Illinois Public Service Company, ) Illinois Power Company, Ameren Energy ) Marketing Company, and the City of Chicago, ) Intervenors-Appellees; Blue Star Energy ) Services, Inc., Constellation Energy ) Commodities Group, Inc., Constellation ) Newenergy, Inc., Direct Energy Services, LLC, ) United States Department of Energy, Dynegy, ) Inc., Electric Power Supply Association, ) Illinois Energy Association, Abbott ) Laboratories, Inc., Caterpillar, Inc., Daimler ) Chrysler Corporation, Cognis Corporation, ) Enbridge Energy, LLP, Ford Motor ) Company, Motorola, Inc., J. Aron & ) Company, Mid-American Energy Company, ) Midwest Generation EME, LLC, Morgan ) Stanley Capital Group, Inc., Midwest ) Independent Power Suppliers, Peoples ) Energy Services Corporation, Reliant Energy, )
-3- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2-- 06--0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
Inc., Local Unions 15, 51, and 702 of the ) International Brotherhood of Electrical ) Workers, AFL-CIO, Sempra Energy ) Solutions, and US Energy Savings ) Corporation, Intervenors). ) ______________________________________________________________________ ________
COMMONWEALTH EDISON COMPANY, ) Petition for review of order ) of Illinois Commerce Commission. Petitioner-Appellee, ) ) v. ) ICC No. 05--0159 ) ILLINOIS COMMERCE COMMISSION, ) (No. 1--06--0876) ) Respondent ) ) (Environmental Law and Policy Center, ) Intervenor-Appellant; the People of the ) State of Illinois, ex rel. Attorney General) Lisa Madigan, Building Owners and Managers ) Association of Chicago, the People of Cook ) County, ex rel. State's Attorney Richard) Devine, Citizens Utility Board, Central ) Illinois Light Company, Central Illinois ) Public Service Company, Illinois Power ) Company, Ameren Energy Marketing ) Company, and the City of Chicago, ) Intervenors-Appellees; Blue Star Energy ) Services, Inc., Constellation Energy ) Commodities Group, Inc., Constellation ) Newenergy, Inc., Direct Energy Services, LLC, ) United States Department of Energy, Dynegy, ) Inc., Electric Power Supply Association, ) Illinois Energy Association, Abbott ) Laboratories, Inc., Caterpillar, Inc., Daimler ) Chrysler Corporation, Cognis Corporation, ) Enbridge Energy, LLP, Ford Motor Company, ) Motorola, Inc., J. Aron & Company, ) Mid-American Energy Company, Midwest ) Generation EME, LLC, Morgan Stanley ) Capital Group, Inc., Midwest Independent ) Power Suppliers, Peoples Energy Services )
-4- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2-- 06--0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
Corporation, Reliant Energy, Inc., Local ) Unions 15, 51, and 702 of the International ) Brotherhood of Electrical Workers, AFL-CIO, ) Sempra Energy Solutions, and US Energy ) Savings Corporation, Intervenors). ) ______________________________________________________________________ ________
COMMONWEALTH EDISON COMPANY, ) Petition for review of order ) of Illinois Commerce Commission. Petitioner-Appellee, ) ) v. ) ICC No. 05--0159 ) ILLINOIS COMMERCE COMMISSION, ) (No. 1--06--0966) ) Respondent ) ) (Building Owners and Managers Association ) of Chicago, Intervenor-Appellant; the People ) of the State of Illinois, ex rel. Attorney ) General Lisa Madigan, Environmental Law ) and Policy Center, the People of Cook ) County, ex rel. State's Attorney Richard) Devine, Central Illinois Light Company, ) Central Illinois Public Service Company, ) Illinois Power Company, Ameren Energy ) Marketing Company, and the City of ) Chicago, Intervenors-Appellees; Blue Star ) Energy Services, Inc., Constellation Energy ) Commodities Group, Inc., Constellation ) Newenergy, Inc., Direct Energy Services, LLC, ) United States Department of Energy, Dynegy, ) Inc., Electric Power Supply Association, ) Illinois Energy Association, Abbott ) Laboratories, Inc., Caterpillar, Inc., Daimler ) Chrysler Corporation, Cognis Corporation, ) Enbridge Energy, LLP, Ford Motor Company, ) Motorola, Inc., J. Aron & Company, Mid- ) American Energy Company, Midwest ) Generation EME, LLC, Morgan Stanley ) Capital Group, Inc., Midwest Independent ) Power Suppliers, Peoples Energy Services ) Corporation, Reliant Energy, Inc., Local )
-5- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2-- 06--0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
Unions 15, 51, and 702 of the International ) Brotherhood of Electrical Workers, AFL-CIO, ) Sempra Energy Solutions, US Energy Savings ) Corporation, and Citizens Utility Board, ) Intervenors). ) ______________________________________________________________________ ________
COMMONWEALTH EDISON COMPANY, ) Petition for review of order ) of Illinois Commerce Commission. Petitioner-Appellant, ) ) v. ) ICC No. 05--0159 ) ILLINOIS COMMERCE COMMISSION, ) (Nos. 2--06--0149 & 2--06--0381) ) Respondent ) ) (The People of the State of Illinois, ex rel. ) Attorney General Lisa Madigan, the People of ) Cook County, ex rel. State's Attorney Richard) Devine, Building Owners and Managers ) Association of Chicago, Environmental Law ) and Policy Center, and Citizens Utility Board, ) Intervenors-Appellees; Central Illinois Light ) Company, Central Illinois Public Service ) Company, Illinois Power Company, Ameren) Energy Marketing Company, Blue Star ) Energy Services, Inc., the City of Chicago, ) Constellation Energy Commodities Group, ) Inc., Constellation Newenergy, Inc., Direct ) Energy Services, LLC, United States ) Department of Energy, Dynegy, Inc., Electric ) Power Supply Association, Illinois Energy ) Association, Abbott Laboratories, Inc., ) Caterpillar, Inc., Daimler Chrysler Corporation,) Cognis Corporation, Enbridge Energy, LLP, ) Ford Motor Company, Motorola, Inc., J. Aron ) & Company, Mid-American Energy Company, ) Midwest Generation EME, LLC, Morgan ) Stanley Capital Group, Inc., Midwest ) Independent Power Suppliers, Peoples Energy ) Services Corporation, Reliant Energy, Inc., ) Local Unions 15, 51, and 702 of the )
-6- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2-- 06--0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
International Brotherhood of Electrical, ) Workers, AFL-CIO, Sempra Energy Solutions, ) and US Energy Savings Corporation, ) Intervenors). ) ______________________________________________________________________ ________
CENTRAL ILLINOIS LIGHT COMPANY, ) Petition for review of order CENTRAL ILLINOIS PUBLIC SERVICE ) of Illinois Commerce Commission. COMPANY, and ILLINOIS POWER ) COMPANY, ) ) Petitioners-Appellants, ) ) v. ) ICC Nos. 05--0160, 05--0161, 05--0162 ) cons. ILLINOIS COMMERCE COMMISSION, ) ) (No. 4--06--0118) Respondent ) ) (The People of the State of Illinois, ex rel. ) Attorney General Lisa Madigan, Environmental ) Law and Policy Center, Citizens Utility ) Board, and Commonwealth Edison Company, ) Intervenors-Appellees; Dynegy, Inc., Illinois ) Industrial Energy Consumers, Blue Star Energy ) Services, Inc., Midwest Generation EME, ) LLC, Constellation Energy Commodities ) Group, Inc., Midwest Independent Power ) Suppliers, Local Unions 15, 51, and 702 of ) the International Brotherhood of Electrical ) Workers, AFL-CIO, Morgan Stanley Capital ) Group, Inc., Electric Power Supply ) Association, Illinois Energy Association, ) Ameren Energy Marketing Company, J. Aron ) & Company, Coalition of Energy Suppliers, ) US Energy Savings Energy Savings ) Corporation, Constellation Newenergy, Inc.,) Direct Energy Services, LLC, MidAmerican ) Energy Company, and Peoples Energy Services ) Corporation, Intervenors). ) ______________________________________________________________________ ________
-7- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
CENTRAL ILLINOIS LIGHT COMPANY, ) Petition for review of order CENTRAL ILLINOIS PUBLIC SERVICE ) of Illinois Commerce Commission. COMPANY, and ILLINOIS POWER ) COMPANY, ) ) Petitioners-Appellees, ) ) v. ) ICC Nos. 05--0160, 05--0161, 05--0162 ) cons. ILLINOIS COMMERCE COMMISSION, ) ) (No. 4--06--0391) Respondent ) ) (Environmental Law and Policy Center, ) Intervenor-Appellant; the People of the State ) of Illinois, ex rel. Attorney General Lisa) Madigan, Citizens Utility Board, and ) Commonwealth Edison Company, Intervenors- ) Appellees; Dynegy, Inc., Illinois Industrial ) Energy Consumers, Blue Star Energy ) Services, Inc., Midwest Generation EME, ) LLC, Constellation Energy Commodities ) Group, Inc., Midwest Independent Power ) Suppliers, Local Unions 15, 51, and 702 of ) the International Brotherhood of Electrical ) Workers, AFL-CIO, Morgan Stanley Capital ) Group, Inc., Electric Power Supply ) Association, Illinois Energy Association, ) Ameren Energy Marketing Company, J. Aron ) & Company, Coalition of Energy Suppliers, ) US Energy Savings Corporation, Constellation ) Newenergy, Inc., Direct Energy Services, ) LLC, MidAmerican Energy Company, and ) Peoples Energy Services Corporation, ) Intervenors). ) ______________________________________________________________________ ________
CENTRAL ILLINOIS LIGHT COMPANY, ) Petition for review of order CENTRAL ILLINOIS PUBLIC SERVICE ) of Illinois Commerce Commission. COMPANY, and ILLINOIS POWER ) COMPANY, ) ) Petitioners-Appellees, )
-8- Nos. 2--06--0149, 2--06--0381, 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons. DRAFT
) v. ) ICC Nos. 05--0160, 05--0161, 05--0162 ) cons. ILLINOIS COMMERCE COMMISSION, ) ) (No. 4--06--0392) Respondent ) ) (The People of the State of Illinois, ex rel. ) Attorney General Lisa Madigan, Intervenor- ) Appellant; Environmental Law and Policy ) Center, Citizens Utility Board, and ) Commonwealth Edison Company, Intervenors- ) Appellees; Dynegy, Inc., Illinois Industrial ) Energy Consumers, Blue Star Energy ) Services, Inc., Midwest Generation EME, ) LLC, Constellation Energy Commodities ) Group, Inc., Midwest Independent Power ) Suppliers, Local Unions 15, 51, and 702 of the ) International Brotherhood of Electrical ) Workers, AFL-CIO, Morgan Stanley Capital ) Group, Inc., Electric Power Supply ) Association, Illinois Energy Association, ) Ameren Energy Marketing Company, J. Aron ) & Company, Coalition of Energy Suppliers, ) US Energy Savings Corporation, ) Constellation Newenergy, Inc., Direct Energy ) Services, LLC, MidAmerican Energy ) Company, and Peoples Energy Services ) Corporation, Intervenors). ) ______________________________________________________________________ ________
CENTRAL ILLINOIS LIGHT COMPANY, ) Petition for review of order CENTRAL ILLINOIS PUBLIC SERVICE ) of Illinois Commerce Commission. COMPANY, and ILLINOIS POWER ) COMPANY, ) ) Petitioners-Appellees, ) ) v. ) ICC Nos. 05--0160, 05--0161, 05--0162 ) cons. ILLINOIS COMMERCE COMMISSION, ) ) (No. 4--06--0393) Respondent )
-9- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
) (Citizens Utility Board, Intervenor-Appellant;) Environmental Law and Policy Center, ) Commonwealth Edison Company, the People ) of the State of Illinois, ex rel. Attorney General) Lisa Madigan, Intervenors-Appellees; Dynegy, ) Inc., Illinois Industrial Energy Consumers, ) Blue Star Energy Services, Inc., Midwest ) Generation EME, LLC, Constellation Energy ) Commodities Group, Inc., Midwest ) Independent Power Suppliers, Local Unions ) 15, 51, and 702 of the International ) Brotherhood of Electrical Workers, AFL-CIO, ) Morgan Stanley Capital Group, Inc., Electric ) Power Supply Association, Illinois Energy ) Association, Ameren Energy Marketing ) Company, J. Aron & Company, Coalition of ) Energy Suppliers, US Energy Savings ) Corporation, Constellation Newenergy, Inc.,) Direct Energy Services, LLC, MidAmerican ) Energy Company, and Peoples Energy Services ) Corporation, Intervenors). ) ______________________________________________________________________ ________
JUSTICE KAPALA delivered the opinion of the court:
These consolidated appeals are before this court after our supreme court, on August
4, 2006, entered an order denying a motion by the People of the State of Illinois (the State)
under Supreme Court Rule 302(b) (134 Ill. 2d R. 302(b)) for expedited review and to stay
orders of respondent, the Illinois Commerce Commission (ICC). In the same order,
pursuant to its supervisory authority, our supreme court consolidated four appeals filed in
the Fourth District with seven consolidated appeals pending in this court. Prior to our
supreme court's order of August 4, 2006, the State filed (1) a motion to dismiss the petition
for direct review filed by petitioners-appellants Central Illinois Light Company, Central
Illinois Public Service Company, and Illinois Power Company (collectively Ameren),
-10- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
docketed as No. 4--06--0118 in the Fourth District, and to transfer the remaining causes to
the First District; and (2) a motion to dismiss one of the petitions for direct review filed by
petitioner-appellant Commonwealth Edison (ComEd), docketed in this court as No. 2--06--
0149, and to transfer the remaining causes pending before this court to the First District.
On August 21, 2006, we entered an order granting the motions to dismiss appeal Nos. 4--
06--0118 and 2--06--0149, and denying the motions to transfer. This opinion explains our
rationale.
I. BACKGROUND
On January 24, 2006, the ICC issued an order in ICC case No. 05--0159 (the
ComEd order) and an order in ICC consolidated case Nos. 05--0160, 05--0161, and 05--
0162 (the Ameren order). Various parties and intervenors filed applications for rehearing in
the ICC. To illustrate the progression of events after the ICC issued the ComEd and
Ameren orders, we set forth the following chronologies:
ComEd's Appeals filed in the Second District:
1-24-06 ICC filed the ComEd order and served it on the parties
1-25-06 ComEd filed its application for rehearing in the ICC
2-8-06 ICC denied ComEd's application for rehearing
2-9-06 ComEd filed a petition for direct review in the Second District (No. 2--
06--0149)
2-23-06 State and other parties filed applications for rehearing in the ICC
3-10-06 ICC disposed of the last pending applications for rehearing
-11- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
3-16-06 State filed a petition for direct review in the First District (No. 1--06--
0664)
4-10-06 ComEd filed a second petition for direct review in the Second District
(No. 2--06--0381)
Ameren's Appeal filed in the Fourth District:
1-24-06 ICC filed the Ameren order and served it on the parties
1-26-06 Ameren filed its application for rehearing in the ICC
2-8-06 ICC denied Ameren's application for rehearing
2-9-06 Ameren filed a petition for direct review in the Fourth District (No. 4--
06--0118)
2-23-06 State and other parties filed applications for rehearing in the ICC
3-13-06 ICC disposed of the last pending application for rehearing
3-16-06 State filed a petition for direct review in the First District (No. 1--06--
0663)
On March 23, 2006, ComEd moved to transfer the State's appeal of the ComEd
order to the Second District, where ComEd had previously filed its appeal. Similarly,
Ameren moved to transfer the State's appeal of the Ameren order to the Fourth District,
where Ameren had previously filed its appeal. 1 The State defended both transfer motions
1 These transfer motions also requested the transfer of other parties' appeals of the ComEd
and Ameren orders filed in the First District after ComEd and Ameren filed their appeals in the
Second and Fourth Districts.
-12- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
by arguing that the appeals filed by ComEd and Ameren in the Second and Fourth Districts
respectively were premature and, therefore, pursuant to section 10--201(a) of the Public
Utilities Act (Act) (220 ILCS 5/10--201(a) (West 2004)), the First District was the first
appellate court to attain jurisdiction. The First District granted both transfer motions.
II. ANALYSIS
A. Motions to Dismiss
On June 13, 2006, in the Fourth District, the State filed a motion styled "Motion by
the People of the State of Illinois to Dismiss Appeal No. 4--06--0118 for Lack of Jurisdiction
and to Transfer Appeal Nos. 4--06--0392, 4--06--0393 and 4--06--0391 to the Court that
has Exclusive Jurisdiction Over these Appeals." On June 14, 2006, in this court, the State
filed a motion styled "Motion by the People of the State of Illinois to Dismiss Appeal No. 2--
06--0149 for Lack of Jurisdiction and to Transfer Appeal Nos. 2--06--0381, 1--06--0664, 1--
06--0858, 1--06--0859, 1--06--0876 and 1--06--0966 to the Court that has Exclusive
Jurisdiction Over these Appeals."
In support of those portions of its motions seeking dismissal of appeal Nos. 2--06--
0149 and 4--06--0118, the State points out that Supreme Court Rule 335 authorizes direct
review by the appellate court of administrative orders and that subsection (i) of that rule
specifies that, "[i]nsofar as appropriate, the provisions of Rules 301 through 373 (except for
Rule 326) are applicable to proceedings under this rule." 155 Ill. 2d R. 335(i). In addition,
the State notes that Rule 303(a)(1) provides that "the notice of appeal must be filed ***
within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial
motion directed against the judgment is filed, *** within 30 days after the entry of the order
disposing of the last pending post-judgment motion directed against that judgment." Official
-13- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
Reports Advance Sheet No. 22 (October 26, 2005), R. 303(a)(1), eff. January 1, 2006. The
State further notes that Rule 303(a)(2) provides:
"When a timely post-judgment motion has been filed by any a party *** a
notice of appeal filed before the entry of the order disposing of the last pending post-
judgment motion shall have no effect and shall be withdrawn by the party who filed
it, by moving for dismissal pursuant to Rule 309. This is so whether the timely post-
judgment motion was filed before or after the date on which the notice of appeal was
filed." 155 Ill. 2d R. 303(a)(2).
The State maintains that ComEd's and Ameren's February 9, 2006, petitions for review
were filed before the ICC denied the last pending applications for rehearing and, therefore,
did not have the effect of conferring jurisdiction on the appellate court. Consequently, the
State concludes that we must dismiss appeal Nos. 2--06--0149 and 4--06--0118.
In response, ComEd, Ameren, and the ICC contend that ComEd's and Ameren's
February 9, 2006, petitions for review were not premature because Rule 303(a) is
inapplicable and section 10--201(a) of the Act provides a party-specific right to file a petition
for review of an ICC decision, following the ICC's refusal of that party's application for
rehearing:
"Within 35 days from the date that a copy of the order or decision sought to be
reviewed was served upon the party affected by any order or decision of the
Commission refusing an application for a rehearing of any rule, regulation, order or
decision of the Commission, including any order granting or denying interim rate
relief, *** any person or corporation affected by such rule, regulation, order or
decision, may appeal to the appellate court of the judicial district in which the subject
-14- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
matter of the hearing is situated, or if the subject matter of the hearing is situated in
more than one district, then of any one of such districts, for the purpose of having
the reasonableness or lawfulness of the rule, regulation, order or decision inquired
into and determined." 220 ILCS 5/10--201(a) (West 2004).
Our supreme court's decision in County of Cook, Cermak Health Services v. Illinois
State Local Labor Relations Board, 144 Ill. 2d 326 (1991), is controlling on the issue of
whether the "last pending post-judgment motion" provision of Supreme Court Rule
303(a)(1) is applicable to appeals from decisions of the ICC. Cermak Health Services
recognized that the Illinois Constitution confers concurrent constitutional authority upon our
supreme court and the legislature to promulgate procedural rules concerning direct
appellate court review of administrative decisions. Cermak Health Services, 144 Ill. 2d at
334. Cermak Health Services teaches that where the legislature expressly exercises its
authority to promulgate such rules, it may preempt a supreme court rule addressing the
same subject. See Cermak Health Services, 144 Ill. 2d at 334-35 (statute will preempt a
supreme court rule where the statute explicitly sets forth a time period for seeking direct
appellate review of an administrative ruling). However, Cermak Health Services instructs
further that the legislative enactment will be struck down where it " 'unduly infringe[s] upon
[our supreme court's] constitutional rule-making authority.' " Cermak Health Services, 144
Ill. 2d at 334, quoting O'Connell v. St. Francis Hospital, 112 Ill. 2d 273, 281 (1986).
In applying the teachings of Cermak Health Services, we must first determine
whether section 10--201(a) expressly demonstrates the legislature's intent to preempt Rule
303(a)'s provision that, in the event that multiple parties file postjudgment motions directed
against a judgment, the period for appealing that judgment does not begin to run until entry
-15- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
of the order disposing of the last pending postjudgment motion. Section 10--201(a) does
not expressly state that, in the event that multiple parties file applications for rehearing, a
party wishing to appeal does not have to wait for the ICC to dispose of all timely filed
applications for rehearing. Section 10--201(a) does not address multiple applications for
rehearing but, rather, speaks only to the situation where a single application for rehearing is
filed. We will not infer that the legislature meant for the 35-day period to begin to run when
a given party's application for rehearing is disposed of while another application is pending,
where the legislature has not expressly so stated. See Cermak Health Services, 144 Ill. 2d
at 334 ("This court will not imply an appeal period in the [Act] when the General Assembly
failed to expressly impose one"). Because the legislature did not express an intent to
exercise its power to promulgate a rule preempting Rule 303(a)(1)'s "last pending post-
judgment motion" provision, Rule 303(a) is applicable here. Thus, the petitions for review
docketed as Nos. 2--06--0149 and 4--06--0118 were premature under Rule 303(a)(1) and,
consequently, ineffectual under Rule 303(a)(2).
Even if we were to assume, arguendo, that section 10--201(a) does conflict with
Rule 303(a), section 10--201(a) could not stand under separation of powers principles. A
conflict between section 10--201(a) and Rule 303(a) would occur if we construed the
legislature's failure to state that a party seeking to appeal is required to wait for the last
pending application for rehearing to be disposed of before appealing as demonstrating an
intent to preempt the like-provision in Rule 303(a). However, section 10--201(a) so
interpreted would "unduly infringe upon our supreme court's constitutional rule making
authority." Consumers Gas Company v. Illinois Commerce Comm'n, 144 Ill. App. 3d 229,
236 (1986) (provision of former section 10--201(b) altering the precise point in time when
-16- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
appellate court obtains jurisdiction over appeal from ICC was an improper legislative
intrusion into the judiciary's constitutional power over appellate procedure and practice).
Although the Illinois Constitution does give the legislature the power to establish direct
appellate court review of administrative decisions (Ill. Const. 1970, art. VI, '6 ("[t]he
Appellate Court shall have such powers of direct review of administrative action as provided
by law" (emphasis added))), it confers upon our supreme court the authority and duty to
"provide by rule for expeditious and inexpensive appeals" (Ill. Const. 1970, art. VI, '16).
Our supreme court has demonstrated its policy of discouraging piecemeal appeals. See
Yugoslav-American Cultural Center, Inc. v. Parkway Bank & Trust Co., 327 Ill. App. 3d 143,
147 (2001) (the purpose of Supreme Court Rule 304(a) is to discourage piecemeal appeals
in the absence of just reason and to remove the uncertainty that exists when a final
judgment is entered on less than all matters in the controversy); People in Interest of A.M.
v. Herlinda M., 221 Ill. App. 3d 957, 965 (1991) (the purpose of Supreme Court Rule 304 is
to prevent piecemeal appeals). We believe that if section 10--201(a) permitted appeals
while applications for rehearing were pending before the ICC, it would create piecemeal
appeals. If a party to an ICC proceeding did not have to wait until all the applications for
rehearing were disposed of, and one of the later applications were granted, the same action
would be pending in the appellate court and the ICC at the same time. This would impede
the constitutional mandate that the supreme court provide expeditious and inexpensive
appeals. Thus, any attempt in section 10--201(a) to preempt Rule 303(a)'s "last pending
post-judgment motion" provision would frustrate the judiciary's ability to carry out its
constitutional duty.
-17- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
In support of its position that Rule 303(a)(1) does not govern in this case, Ameren
cites People's Gas, Light & Coke Co. v. Illinois Commerce Comm'n, 175 Ill. App. 3d 39
(1988), and Cano v. Village of Dolton, 250 Ill. App. 3d 130 (1993). In these cases the First
District was faced with situations where the Act (People's Gas, 175 Ill. App. 3d at 45) and
the Illinois Human Rights Act (Cano, 250 Ill. App. 3d at 134-35) contained time periods for
filing direct appeals to the appellate court, which periods differed from the 30-day period in
Rule 303(a). In each case the court determined that the statutory provision governed.
People's Gas, 175 Ill. App. 3d at 45; Cano, 250 Ill. App. 3d at 136. Neither of these
decisions, however, lends support to Ameren's position that Rule 303(a)(1) is inapplicable
here. People's Gas and Cano are situations where the legislature expressly exercised its
authority to promulgate procedural rules on the time period for seeking direct appellate
review of administrative decisions. In each case the First District held that the statutory
time period controlled rather than the 30-day time period in Rule 303(a). In neither case,
however, was there a contention that in so doing the legislature unduly infringed upon our
supreme court's rulemaking authority. As such, in neither case did the First District conduct
an analysis as to whether the legislature, in establishing a marginally longer period within
which to perfect a direct appeal to the appellate court than the 30-day period established in
Rule 303(a), unduly infringed upon our supreme court's rulemaking authority. People's Gas
and Cano are consistent with Cermak Health Services, in which our supreme court
recognized that where the legislature explicitly states a time period within which direct
appellate review must be commenced, such time period controls rather than the 30-day
period in Rule 303(a). Cermak Health Services, 144 Ill. 2d at 334. Because there was no
issue as to undue infringement upon our supreme court's rulemaking authority in People's
-18- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
Gas or Cano, these cases do not aid Ameren's position that Rule 303(a)(1)'s "last pending
post-judgment motion" provision is inapplicable.
ComEd maintains that our supreme court in Condell Hospital v. Illinois Health
Facilities Planning Board, 124 Ill. 2d 341 (1988), squarely rejected the State's argument.
We disagree. Condell Hospital is inapposite because there was no argument presented in
that case that Rule 303(a)(1) contradicted or conflicted with the applicable statute or the
rules of the administrative agency. Consequently, in Condell Hospital, the supreme court
did not consider whether the legislature unduly infringed upon the court's constitutional
rulemaking authority.
Ameren asserts that when the First District, on April 20, 2006, granted its motion to
transfer to the Fourth District the State's appeal pending in the First District, it implicitly and
necessarily rejected the State's position that Ameren's petition for review filed in the Fourth
District (No. 4--06--0118) was premature. Ameren therefore concludes that we cannot
dismiss its appeal as premature, because we are bound by the First District's ruling under
the law-of-the-case doctrine. ComEd makes a similar argument with respect to the First
District's order granting its motion to transfer to this court the State's appeal filed in the First
District. The ICC argues similarly with respect to both transfer orders.
The law-of-the-case doctrine generally provides that "a rule established as
controlling in a particular case will continue to be the law of the case" in the absence of
error or a change in facts. People v. Patterson, 154 Ill. 2d 414, 468 (1992). The doctrine,
however, merely expresses the practice of courts generally to refuse to reopen what has
been decided; it is not a limit on their power. Patterson, 154 Ill. 2d at 468-69. The doctrine
encompasses both a court's explicit decisions and those made by necessary implication. In
-19- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
re Marriage of Connors, 303 Ill. App. 3d 219, 224 (1999). We agree that the First District,
in entering its orders transferring the appeals pending in the First District to the Fourth and
Second Districts, did implicitly hold that the Fourth District had jurisdiction of Ameren's
appeal and that the Second District had jurisdiction over ComEd's appeal and, therefore,
that Ameren's and ComEd's petitions for direct review were timely in those courts and not
premature. Nevertheless, under the law-of-the-case doctrine, we are not bound by the
holding of our colleagues in the First District.
The law-of-the-case doctrine binds a court only where a court's prior order was final.
Patterson, 154 Ill. 2d at 468; People ex rel. Department of Public Health v. Wiley, 348 Ill.
App. 3d 809, 817 (2004); Roy v. Coyne, 259 Ill. App. 3d 269, 273 (1994); McDonald's Corp.
v. Vittorio Ricci Chicago, Inc., 125 Ill. App. 3d 1083, 1087 (1984). Here the implicit ruling of
the First District that the Fourth District and this court had jurisdiction over the appeals filed
by Ameren and ComEd, respectively, is tantamount to the denial of a motion to dismiss for
lack of jurisdiction. The denial of a motion to dismiss is an interlocutory order. Bailey v.
Allstate Development Corp., 316 Ill. App. 3d 949, 956 (2000); Pearson v. Partee, 218 Ill.
App. 3d 178, 182 (1991). An interlocutory order is one that does not dispose of all of the
controversy between the parties. Moore v. One Stop Medical Center, 218 Ill. App. 3d 1011,
1016 (1991). An interlocutory order may be modified or revised by a successor court at
any time prior to final judgment. Balciunas v. Duff, 94 Ill. 2d 176, 185 (1983); Towns v.
Yellow Cab Co., 73 Ill. 2d 113, 121 (1978). There is but one appellate court. Aleckson v.
Village of Round Lake Park, 176 Ill. 2d 82, 94 (1997). Thus, a panel of the Second District
of the Appellate Court revisiting, during the course of an ongoing appeal, an issue that a
panel of the First District of the same court implicitly addressed in ruling on the motions to
-20- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
transfer is no different from a successor trial judge revisiting the interlocutory decision of
the trial judge he succeeded. Consequently, we reject the foregoing arguments by
Ameren, ComEd, and the ICC that the law-of-the-case doctrine precludes our dismissal of
case Nos. 2--06--0149 and 4--06--0118. ComEd argues that under Supreme Court Rule
315(b) the State's opportunity to appeal the First District's transfer orders to our supreme
court expired 21 days after those orders were entered. We are mindful that generally the
failure to timely appeal from an interlocutory order of the circuit court that is appealable as
of right renders that order the law of the case. Bradford v. Wynstone Property Owners'
Ass'n, 355 Ill. App. 3d 736, 739 (2005); Hwang v. Tyler, 253 Ill. App. 3d 43, 46 (1993);
Battaglia v. Battaglia, 231 Ill. App. 3d 607, 615 (1992). However, this general rule does not
apply to interlocutory orders of the appellate court, because such orders are not appealable
as of right but, rather, are appealable only by leave of the supreme court. Moreover,
appeals of interlocutory orders entered by the appellate court are not favored, and a failure
to seek review when the appellate court's disposition of a case is not final does not
constitute a waiver of the right to present any issue thereafter on appeal. 155 Ill. 2d R.
318(b).
Ameren also cites Gillen v. State Farm Mutual Auto Insurance Co., 215 Ill. 2d 381,
392 n.2 (2005), for the legal precept that a decision of the appellate court may be reversed
only by the Illinois Supreme Court. Gillen does not, however, advance Ameren's position
here, because Gillen does not preclude the appellate court from revisiting its own
interlocutory order.
Furthermore, even if the First District's transfer orders, and in turn its implicit holding,
were appealable such that the law-of-the-case doctrine were applicable here, a reviewing
-21- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
court may depart from the law-of-the-case doctrine if the court finds that its prior decision
was palpably erroneous (People v. Izquierdo-Flores, No. 2--04--0515, slip op at 8 (August
28, 2006)). For the reasons stated above, we find that this exception to the doctrine is
applicable here.
Finally, Ameren and ComEd cite the United States Supreme Court's decision in
Christianson v. Colt Industries, 486 U.S. 800, 100 L. Ed. 2d 811, 108 S. Ct. 2166 (1988), in
opposition to the State's motions to dismiss. They cite Christianson for the proposition that
the law-of-the-case doctrine should apply with even greater force to transfer decisions than
to decisions of substantive law (Christianson, 486 U.S. at 816, 100 L. Ed. 2d at 830, 108 S.
Ct. at 2178). Nevertheless, the Court in Christianson recognized that the law-of-the-case
doctrine was merely a practice of the courts and not a limit on their power, and also that a
coordinate court could revist the jurisdictional decision of a coordinate court where it
concluded that the prior decision was clearly wrong. Christianson, 486 U.S. at 817, 100 L.
Ed. 2d at 831, 108 S. Ct. at 2178.
B. Motions to Transfer Remaining Appeals to the First District.
Section 10--201(a) of the Act requires that the appellate district that first acquires
jurisdiction of any appeal from a decision of the ICC retain jurisdiction of such appeal and
all further appeals from the same order. 220 ILCS 5/10--201(a) (West 2004). Because
Ameren's and ComEd's petitions for review were premature, the First District was the first
appellate district of the Illinois Appellate Court to acquire jurisdiction over an appeal from
the ICC's January 24, 2006, orders. Nevertheless, our supreme court's order of August 4,
2006, directs this court to hear the consolidated appeals. Consequently, the State's
motions to transfer are denied.
-22- Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0149, 2--06-- 0381, 4--06--0118, 4--06--0391, 4--06--0392, 4--06--0393 cons.
III. CONCLUSION
Based on the foregoing, the State's motions to dismiss Nos. 2--06--0149 and 4--06--
0118 for lack of jurisdiction are granted. The petitions for review were filed in derogation of
Supreme Court Rule 303(a)(1), and were therefore premature and ineffectual pursuant to
Supreme Court Rule 303(a)(2). The State's motions to transfer Nos. 1--06--0664, 1--06--
0858, 1--06--0859, 1--06--0876, 1--06--0966, 2--06--0381, 4--06--0392, 4--06--0393, and 4-
-06--0391 are denied in view of our supreme court's order of August 4, 2006. The
remaining consolidated cause (Nos. 1--06--0664, 1--06--0858, 1--06--0859, 1--06--0876, 1-
-06--0966, 2--06--0381, 4--06--0392, 4--06--0393, and 4--06--0391) will proceed under
case No. 2--06--0381.
Nos. 2--06--0149 and 4--06--0118, Appeals dismissed.
GROMETER, P.J., and BYRNE, J., concur.
-23-