{ "id": 4265800, "name": "MIDAMERICAN ENERGY CORPORATION, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees", "name_abbreviation": "MidAmerican Energy Corp. v. Illinois Commerce Commission", "decision_date": "2006-07-19", "docket_number": "No. 3\u201404\u20140944", "first_page": "163", "last_page": "171", "citations": [ { "type": "official", "cite": "367 Ill. App. 3d 163" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "795 N.E.2d 936", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "942" } ], "opinion_index": 0 }, { "cite": "343 Ill. App. 3d 36", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3718860 ], "year": 2003, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0036-01" ] }, { "cite": "524 N.E.2d 561", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "577" }, { "page": "577" }, { "page": "577" }, { "page": "577" }, { "page": "577" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549613 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "497-98" }, { "page": "497" }, { "page": "497-98" }, { "page": "498" }, { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0462-01" ] }, { "cite": "20 Ill. Reg. 10607", "category": "laws:admin_register", "reporter": "Ill. Reg.", "weight": 10, "pin_cites": [ { "parenthetical": "eff. August 15, 1996" }, { "parenthetical": "eff. August 15, 2996" }, { "parenthetical": "eff. August 15, 2996" }, { "parenthetical": "eff. August 15, 1996" }, { "parenthetical": "eff. August 15, 1996" }, { "parenthetical": "eff. August 15, 1996" }, { "parenthetical": "eff. August 15, 1996" }, { "parenthetical": "eff. August 15, 1996" }, { "parenthetical": "eff. August 15, 1996" }, { "parenthetical": "eff. August 15, 1996" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 729, "char_count": 21173, "ocr_confidence": 0.781, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14290041620187122 }, "sha256": "fc5611ed8250799faabe0b6c0be3d1aa29c8a4c9688aeb99e269c6eb6181f339", "simhash": "1:2487c186204870f6", "word_count": 3379 }, "last_updated": "2023-07-14T20:55:49.400377+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MIDAMERICAN ENERGY CORPORATION, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees." ], "opinions": [ { "text": "JUSTICE McDADE\ndelivered the opinion of the court:\nSection 200.200 of the rules of practice for the Illinois Commerce Commission (Commission) (83 Ill. Adm. Code \u00a7200.220, as amended by 20 Ill. Reg. 10607 (eff. August 15, 1996)) governs declaratory rulings issued by the Commission. Here on appeal, petitioner claims that the Commission transformed its declaratory ruling proceeding into something akin to a \u201cshow cause\u201d proceeding in which MidAmerican Energy Corporation (MEC) was allegedly \u201cordered to terminate a substantial portion of its business\u201d without sufficient due process protections. Upon review, we find the Commission\u2019s action was a proper \u201cdeclaratory ruling\u201d and, therefore, dismiss MEC\u2019s appeal for lack of jurisdiction.\nBACKGROUND\nOn October 22, 2003, petitioner, MEC filed with the Commission a verified petition for a declaratory ruling, requesting that the Commission answer three questions as to whether the Illinois Public Utilities Act (Act) (220 ILCS 5/1 \u2014 101 et seq. (West 2002)) precludes MEC from selling natural gas at competitive rates both within and outside its traditional service area. The Citizens Utility Board (CUB) and the Attorney General of the State of Illinois (AG) petitioned to intervene. Both petitions to intervene were granted. CUB and the AG each opposed the findings sought by MEC. Pursuant to due notice, a status hearing was held before a duly authorized administrative law judge of the Commission on March 9, 2004. No other hearing was held in this matter.\nOn May 11, 2004, the Commission disposed of MEC\u2019s request for the declaratory ruling on the basis of the written submissions before it in accordance with section 200.220(h) (83 Ill. Adm. Code \u00a7200.220(h), as amended by 20 Ill. Reg. 10607 (eff. August 15, 2996)). The May 11 order concluded that (1) MEC is prohibited by the Act from selling natural gas commodity at competitive prices in areas of Illinois where it does not provide regulated gas distribution services; and (2) MEC is prohibited by the Act from selling natural gas commodity at competitive prices in areas of Illinois where it provides regulated gas distribution services, absent approval under sections 7 \u2014 102 and 9 \u2014 102.1 of the Act (220 ILCS 5/7 \u2014 102, 9 \u2014 102.1 (West 2002)). Additionally, the May 11 order stated that \u201cin light of the Commission\u2019s determinations in the prefatory portion of this Order, an appropriate remedy shall be determined in a subsequent docketed proceeding.\u201d This subsequent investigation was docketed as docket No. 04 \u2014 0392.\nOn June 10, 2004, MEC filed an application for rehearing and request to revoke orders, assigning numerous errors to the May 11 order. This motion was directed at both the challenged proceeding and the future hearing of docket No. 04 \u2014 0392. It insisted that the Commission: (1) failed to address MEC\u2019s argument that the provision of commodity gas in the competitive market is not, and cannot be, a \u201cpublic utility service\u201d; (2) failed to recognize that it is the utility, and not the Commission, that decides what portion of the utility\u2019s property is dedicated to public use; (3) failed to recognize that the terms \u201cheat\u201d and \u201cgas,\u201d as those terms are used in section 3 \u2014 105 of the Act, cannot have the same meaning; (4) failed to recognize the fact that the Commission has previously allowed the activities of MEC\u2019s competitive natural gas sales divisions; (5) misinterpreted sections 3 \u2014 115, 9 \u2014 102, and 9 \u2014 104 of the Act (220 ILCS 5/3 \u2014 115, 9 \u2014 102, 9 \u2014 104 (West 2002)) to suggest that public utilities are prohibited from providing any service, product, or commodity without first obtaining Commission approval; (6) failed to hold the Commission proceeding in abeyance until the passing of Senate Bill 2525, which allegedly addressed the issues before the Commission; and (7) failed to provide MEC with basic due process protections. The application also sought to have sections 7 \u2014 102, 7 \u2014 205, 7 \u2014 206 and 9 \u2014 102.1 of the Act (220 ILCS 5/7 \u2014 102, 7 \u2014 205, 7 \u2014 206, 9 \u2014 102.1 (West 2002)) reexamined.\nOn June 29, 2004, the administrative law judge denied MEC\u2019s request as it related to docket No. 04 \u2014 0392. However, the Commission granted rehearing as to this proceeding, docket No. 03 \u2014 0659. On August 5, 2004, the administrative law judge issued a notice informing the parties of the scope of rehearing. The Commission determined that the scope of rehearing shall be limited to an evaluation of the applicability of section 7 \u2014 102(E) of the Act (220 ILCS 5/7 \u2014 102(E) (West 2002)) to MEC\u2019s competitive gas contracts within its traditional service area. Section 7 \u2014 102(E) identifies the circumstances under which Commission approval of certain transactions is not necessary. The notice directed MEC to indicate whether any facts exist that would trigger the exemptions provided for in section 7 \u2014 102(E). MEC filed a response arguing that its competitive gas sales should not be subject to Commission approval under section 7 \u2014 102(E) of the Act. MEC also filed a motion to stay the Commission proceeding pending final action by the General Assembly on Senate Bill 2525. MEC\u2019s motion to stay was subsequently denied on August 30, 2004.\nOn August 18, 2004, the administrative law judge issued another notice stating that any party wishing to question or challenge the facts alleged in MEC\u2019s response should do so as soon as possible. The notice also posed two questions for the parties to brief: (1) Is section 7 \u2014 102(E) of the Act applicable to MEC\u2019s competitive gas contracts within its traditional service area, and (2) If the answer to the above question is \u201cyes,\u201d should section 7 \u2014 102(E) be construed to permit MEC to engage in competitive gas sales within its traditional service area?\nOn September 1, 2004, MEC filed a response to the August 18 notice. MEC\u2019s brief objected to the scope of the rehearing, alleging that the procedure initiated an improper \u201cfact-finding\u201d expedition during the course of a declaratory ruling proceeding. MEC also contended that the limited scope of the rehearing was improper. MEC renewed its contention that its competitive gas sales should not be subject to Commission approval under section 7 \u2014 102(E) of the Act.\nOn September 3, 2004, MEC filed a petition for guidance regarding the notices. MEC sought guidance concerning the \u201cmanner and forum in which MEC may obtain a full and fair opportunity to present legal and factual arguments concerning the legal and factual issues that have arisen\u201d throughout the proceeding. MEC argued that (1) the Commission proceeding exceeded the parameters of a declaratory ruling proceeding; (2) the Commission\u2019s notice improperly contemplated an evidentiary investigation rather than a declaratory ruling; and (3) MEC should be granted due process rights and be allowed to present a full and complete record prior to a final decision in the proceeding. This petition was subsequently denied on September 28, 2004.\nOn November 10, 2004, the Commission issued a final order on rehearing. The Commission concluded that although the regulatory exemption in section 7 \u2014 102(E) of the Act applies to MEC\u2019s competitive gas contracts within its traditional service area, MEC was prohibited from selling natural gas at competitive prices within its traditional service area absent approval under section 9 \u2014 102.1 and any other applicable provision of the Act. The Commission refused to revisit the conclusion in its May 11 order, which found the statute prohibited MEC from selling natural gas in the competitive market outside of its traditional service area.\nOn November 19, 2004, Senate Bill 2525 was passed into law as Public Act 93 \u2014 1052 (Pub. Act 93 \u2014 1052, eff. January 1, 2005). The Public Act was codified as section 7 \u2014 210 of the Act (220 ILCS 5 \u2014 7\u2014 210 (West 2002)). On December 15, 2004, MEC filed its petition for review of the Commission\u2019s May 11 and November 10 orders. This appeal followed.\nANALYSIS\nJurisdiction\nThe Commission has challenged our jurisdiction to consider MEC\u2019s appeal from its declaratory ruling. In support of its contention that we do not have jurisdiction, the Commission cites section 5 \u2014 150(a) of the Illinois Administrative Procedure Act (5 ILCS 100/5 \u2014 150(a) (West 2002)), and section 200.220(i) of the Commission\u2019s rules of practice (83 Ill. Adm. Code \u00a7200.220 (i), as amended by 20 Ill. Reg. 10607 (eff. August 15, 2996)). Under both sections, declaratory rulings are not appealable. 5 ILCS 100/5 \u2014 150(a) (West 2002); 83 Ill. Adm. Code \u00a7200.220(i), as amended by 20 Ill. Reg. 10607 (eff. August 15, 1996).\nSection 5 \u2014 150(a) of the Administrative Procedure Act provides: \u201cEach agency may in its discretion provide by rule for the filing and prompt disposition of petitions or requests for declaratory rulings as to the applicability to the person presenting the petition or request of any statutory provision enforced by the agency or of any rule of the agency. Declaratory rulings shall not be appealable.\u201d 5 ILCS 100/5 \u2014 150(a) (West 2002).\nSection 200.220CQ of the rules of practice for the Commission provides:\n\u201cDeclaratory rulings shall not be appealable.\u201d 83 Ill. Adm. Code \u00a7200.220(i), as amended by 20 Ill. Reg. 10607 (eff. August 15, 1996).\nThe Illinois Supreme Court in Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 497-98, 524 N.E.2d 561, 577 (1988), set forth the standard to be applied in examining whether an agency decision is subject to judicial review on appeal. The court held that most agency actions are presumed reviewable in the absence of some express statutory prohibition of review, or at least in the absence of language committing the decision to unreviewable agency discretion. Greer, 122 Ill. 2d at 497, 524 N.E.2d at 577. \u201cWhether, and to what extent, a relevant statute precludes judicial review is to be determined by its express language, the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.\u201d Greer, 122 Ill. 2d at 497-98, 524 N.E.2d at 577. In applying this standard, the court determined that the decision of the Illinois Housing Development Authority to grant mortgage financing was subject to judicial review. Greer, 122 Ill. 2d at 498, 524 N.E.2d at 577. The court relied upon the general language of the Illinois Housing Development Act (Ill. Rev. Stat. 1985, ch. 67\u00bd, par. 301) and the fact that the Act lacked any express language precluding judicial review. Greer, 122 Ill. 2d at 498, 524 N.E.2d at 577.\nUnlike the Illinois Housing Development Act in Greer, the Illinois Administrative Code explicitly states that \u201c[djeclaratory rulings shall not be appealable.\u201d 83 Ill. Adm. Code \u00a7200.220(i), as amended by 20 Ill. Reg. 10607 (eff. August 15, 1996). It is our duty as officers of the court to respect this expression of legislative intent. Such an interpretation is also consistent with the holding in Greer that judicial review is determined by the express language of a statute. Thus, the central question to the jurisdictional challenge here on appeal is whether the Commission\u2019s action was a proper \u201cdeclaratory ruling\u201d under section 200.220 of the Illinois Administrative Code.\nDeclaratory Ruling\nSection 200.220 of rules of practice for the Illinois Commerce Commission states as follows:\n\u201c(a) When requested by the affected person, the Commission may in its sole discretion issue a declaratory ruling with respect to:\n(1) the applicability of any statutory provision enforced by the Commission or of any Commission rule to the person(s) requesting a declaratory ruling; and\n(2) whether the person\u2019s compliance with a federal rule will be accepted as' compliance with a similar Commission rule.\n(h) The Commission may in its sole discretion dispose of a request for a declaratory ruling solely on the basis of the written submissions filed before it.\u201d 83 Ill. Adm. Code \u00a7\u00a7200.220(a), (h), as amended by 20 Ill. Reg. 10607 (eff. August 15, 1996).\nHere on appeal, MEC claims that the Commission\u2019s action transformed its declaratory ruling proceeding into something akin to a \u201cshow cause\u201d proceeding in which MEC was allegedly \u201cordered to terminate a substantial portion of its business\u201d without sufficient due process protections. A review of MEC\u2019s proposed questions and the Commission\u2019s answers to those questions shows MEC\u2019s claim to be without merit. Specifically, MEC\u2019s two propounded questions asked:\n\u201c(1) Does any provision of the Illinois Public Utilities Act preclude a division of MidAmerican from selling natural gas commodity at competitive prices in areas of the State of Illinois where MidAmerican does not provide regulated gas distribution services?\n(2) Does any provision of the Act preclude a division of MidAmerican from selling natural gas commodity at competitive prices in areas of the State of Illinois where MidAmerican does provide regulated gas distribution service?\u201d\nUpon exercising its authority under \u00a7200.200(a), the Commission concluded:\n\u201c(1) That MidAmerican Energy Company is prohibited by the Act, 220 ILCS 5/1 \u2014 101 et seq., from selling natural gas commodity at competitive prices in areas of Illinois where it does not provide regulated gas distribution services.\n(2) That MidAmerican Energy Company is prohibited by the Act from selling natural gas commodity at competitive prices in areas of Illinois where it provides regulated gas distribution services, absent approval under sections 7 \u2014 102 and section 9 \u2014 102.1 of the Act.\u201d\nThe Commission\u2019s answers basically parrot MEC\u2019s questions. The only apparent difference between the two is that the Commission answered MEC\u2019s questions in the negative. In filing its petition, MEC knew the Commission had the authority to decide MEC\u2019s right to sell gas at competitive prices under the express language of section 200.220(a). MEC\u2019s sole purpose for filing the petition was to \u201cseek guidance\u201d as to whether MEC could engage in such activities. In exercising its authority under section 200.220, the Commission determined it could not. MEC makes much of the fact that the Commission came to this conclusion without the benefit of an evidentiary record or hearing. MEC asserts that the lack of an evidentiary record or hearing violates due process. MEC, however, in making this argument, ignores the fact that section 200.220 does not entitle MEC to an evidentiary hearing. Again, \u201c[t]he Commission may in its sole discretion dispose of a request for a declaratory ruling solely on the basis of the written submissions filed before it.\u201d 83 Ill. Adm. Code \u00a7200.220(h), as amended by 20 Ill. Reg. 10607 (eff. August 15, 1996).\nMEC also takes issue with the scope of the rehearing. Specifically, MEC asserts that the Commission improperly engaged in a selective \u201cfact-finding\u201d process as evidenced by the restrictive scope of the rehearing. MEC argues that the Commission\u2019s selective fact-finding exceeded the scope of its declaratory ruling petition. We find no merit in this claim. MEC\u2019s assertion that the Commission engaged in a selective fact-finding process is completely unfounded. MEC\u2019s petition was an open-ended request to the Commission to decide whether \u201cany provision of the Act\u201d precludes a division of MEC from providing gas service within or outside its certified service area. The Commission, having ruled unfavorably to MEC on its request, granted MEC the additional opportunity to supplement its filing with regard to whether section 7 \u2014 102(E) of the Public Utilities Act should be construed to permit MEC to engage in competitive gas sales within its traditional service area. This action did not subject MEC to an improper fact-finding expedition but, instead, constituted an additional opportunity for MEC to supplement its filing with regard to the applicability of section 7 \u2014 102(E). Furthermore, MEC cites no authority supporting the proposition that due process considerations compel the rehearing of every issue before the Commission. In fact, the Commission would have been acting well within its authority if it had simply denied MEC\u2019s petition for rehearing entirely.\nMEC also contends that the Commission\u2019s action violates due process in that it requires MEC to \u201ccease providing competitive gas service to Illinois customers.\u201d We find no support in the record for this argument. MEC has failed to cite any language in either of the Commission\u2019s orders, May 11 or November 10, which instructed MEC to cease and desist its competitive gas service. In fact, the Commission stated:\n\u201cTo determine the appropriate remedies and/or sanctions within the Commission\u2019s authority to implement, including the treatment of MEC\u2019s existing competitive customers, the Commission will initiate another proceeding. In the meantime, MEC may seek prospective approval of its competitive gas contracts with consumers within its service area under Sections 7 \u2014 102 and 9 \u2014 102.1 of the Act.\u201d\nThis language clearly does not support MEC\u2019s assertion that it was ordered to \u201cterminate its competitive gas service to Illinois customers.\u201d MEC asked the Commission whether it was prohibited under the Public Utilities Act from selling gas at competitive prices. The Commission merely answered the question it was asked. It did not order MEC to terminate its existing contracts. Instead, the Commission allowed MEC the opportunity to seek the Commission\u2019s approval of such contracts.\nLastly, MEC contends that the Commission\u2019s action in ordering a separate proceeding to determine the appropriate remedies and/or sanctions to impose upon MEC violates due process. Again, MEC asserts that this action improperly asks the parties to assume the role of fact finder. MEC\u2019s argument is misguided. In determining that MEC is prohibited from selling gas at competitive prices, the Commission ordered that a subsequent docket proceeding, No. 04 \u2014 0392, be held in order to determine the appropriate remedies and/or sanctions to impose upon MEC. The Commission also found that the parties were not allowed to relitigate any of the conclusions found in the declaratory ruling proceedings. The Commission\u2019s action ordering this subsequent docket proceeding on possible actions consistent with its declaratory findings has no bearing on this appeal. Here, the Commission answered the questions posed by MEC in its petition for declaratory ruling. The Commission then ordered that another docket be established in order to deal with any subsequent remedies/sanction issues. In the end, MEC\u2019s issues with the \u201cInitiating Order\u201d in docket No. 04 \u2014 0392 must be addressed in that docket and cannot be used to undermine the Commission\u2019s legal conclusions in the instant docket. Accordingly, we find that the Commission\u2019s action was a proper \u201cdeclaratory ruling\u201d under section 200.220.\nMEC calls our attention to the holding in Resource Technology Corp. v. Commonwealth Edison Co., 343 Ill. App. 3d 36, 45, 795 N.E.2d 936, 942 (2003), which it construes to \u201cexplicitly permit appellate review of declaratory rulings.\u201d MEC misinterprets the court\u2019s analysis. Instead of holding that declaratory rulings are subject to judicial review, the court in Resource Technology found that the Commission\u2019s order was not a declaratory ruling within the meaning of section 200.220. As a result, the court found that the Commission\u2019s order was subject to judicial review. We in no way read Resource Technology to permit appellate review of declaratory rulings.\nCONCLUSION\nBecause we have already found that the Commission\u2019s action in this case was in fact a proper declaratory ruling, we must give effect to the General Assembly\u2019s expression that \u201c [declaratory rulings shall not be appealable.\u201d 83 Ill. Adm. Code \u00a7200.220(i), as amended by 20 Ill. Reg. 10607 (eff. August 15, 1996). We therefore conclude that dismissal of this appeal is required by the plain language of section 200.220(1) (83 Ill. Adm. Code \u00a7200.220(1), as amended by 20 Ill. Reg. 10607 (eff. August 15, 1996)) and section 5 \u2014 150(a) of the Illinois Administrative Procedure Act (5 ILCS 100/5 \u2014 150(a) (West 2002)). Moreover, it can be reasonably inferred, due to the express language of section 200.220(i), that MEG knew at the time it invoked this administrative proceeding that the Commission\u2019s decision answering MEC\u2019s question as to whether it had the authority to sell gas at competitive prices was not appealable.\nFor the reasons stated above, we dismiss MEC\u2019s appeal for want of jurisdiction.\nAppeal dismissed.\nLYTTON and HOLDRIDGE, JJ., concur.", "type": "majority", "author": "JUSTICE McDADE" } ], "attorneys": [ "Christopher J. Townsend (argued), Christopher N. Skey, William A. Borders, and Kalyna A. Procyk, all of DLA Piper Rudnick Gray Cary US LLR of Chicago, and Suzan M. Stewart, of MidAmerican Energy Corporation, of Sioux City, Iowa, for appellant.", "Lisa Madigan, Attorney General, of Chicago (Janice Dale and John E Kelliher (argued), Assistant Attorneys General, of counsel), for appellee Illinois Commerce Commission.", "Stephen Y. Wu, of Citizens Utility Board, of Chicago, for appellee Citizens Utility Board." ], "corrections": "", "head_matter": "MIDAMERICAN ENERGY CORPORATION, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.\nThird District\nNo. 3\u201404\u20140944\nOpinion filed July 19, 2006.\nChristopher J. Townsend (argued), Christopher N. Skey, William A. Borders, and Kalyna A. Procyk, all of DLA Piper Rudnick Gray Cary US LLR of Chicago, and Suzan M. Stewart, of MidAmerican Energy Corporation, of Sioux City, Iowa, for appellant.\nLisa Madigan, Attorney General, of Chicago (Janice Dale and John E Kelliher (argued), Assistant Attorneys General, of counsel), for appellee Illinois Commerce Commission.\nStephen Y. Wu, of Citizens Utility Board, of Chicago, for appellee Citizens Utility Board." }, "file_name": "0163-01", "first_page_order": 181, "last_page_order": 189 }