Ameren Transmission Co. of Illinois v. Hutchings , 2018 IL 122973 ( 2019 )

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Supreme Court Date: 2019.04.29
09:28:36 -05'00'
Ameren Transmission Co. of Illinois v. Hutchings, 2018 IL 122973
Caption in Supreme AMEREN TRANSMISSION COMPANY OF ILLINOIS, Appellant,
Court: v. RICHARD L. HUTCHINGS et al., Appellees.
Docket Nos. 122973, 122985, 122986, 122987, 122988, 122989, 122992, 122993,
122994, 122996, 122997, 122998, 122999, 122000, 122001, 122002,
122003, 122004, 122005, 122006, 122007, 122008, 122009, 122011,
122012, 122013, 122014, 122015, 122016, 122017, 122018, 122019,
122020, 122021 cons.
Filed October 18, 2018
Rehearing denied November 26, 2018
Decision Under Appeal from the Circuit Court of Edgar County, The Hon. Craig H.
Review DeArmond and the Hon. James R. Glenn, Judges, presiding.
Judgment Reversed and remanded.
Counsel on Albert D. Sturtevant and Nikhil Vijaykar, of Whitt Sturtevant LLP, of
Appeal Chicago, David A. Rolf and Lisa A. Petrilli, of Sorling Northrup, of
Springfield, and Matthew R. Tomc, of St. Louis, Missouri, for
appellant.
Michael T. Reagan, of Ottawa, and S. Craig Smith, of Asher & Smith,
of Paris, for appellees.
Laura Harmon and Garrett Thalgott, of Illinois Agricultural
Association, of Bloomington, amicus curiae.
Anastasia M. O’Brien and Richard G. Bernet, of Exelon Business
Services Company, Clifford W. Berlow, of Jenner & Block LLP, both
of Chicago, and Matthew E. Price (pro hac vice), of Jenner & Block
LLP, of Washington, D.C., for amicus curiae Commonwealth Edison
Company.
Justices JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Karmeier and Justices Burke, Theis, and Neville
concurred in the judgment and opinion.
Justice Garman specially concurred, with opinion.
Justice Kilbride concurred in part and dissented in part, with opinion.
Justices Kilbride and Garman dissented upon denial of rehearing,
without opinion.
OPINION
¶1 To facilitate the construction of a high-voltage transmission line, Ameren Transmission
Company of Illinois (ATXI) filed eminent domain complaints against several landowners
located in Edgar County, Illinois (Landowners). The Landowners filed a traverse and motion
to dismiss, and the circuit court dismissed every complaint on the grounds that section 8-406.1
of the Public Utilities Act (220 ILCS 5/8-406.1 (West 2016)), as it existed at the time, is
unconstitutional both on its face and as applied to the Landowners. This direct appeal
followed. Ill. S. Ct. R. 302(a) (eff. Oct. 4, 2011).
¶2 BACKGROUND
¶3 The Public Utilities Act (Act) (220 ILCS 5/1-101 et seq. (West 2010)) requires a public
utility to obtain a certificate of public convenience and necessity from the Illinois Commerce
Commission (Commission) before transacting business or beginning new construction within
Illinois. Section 8-406 of the Act sets forth the requirements for obtaining a certificate. Id.
§ 8-406. Effective July 28, 2010, the legislature enacted section 8-406.1 of the Act (id.
§ 8-406.1), which permits a public utility to apply for a certificate using an expedited
procedure when seeking to construct a new high-voltage electric service line and related
facilities.
¶4 On November 7, 2012, ATXI petitioned the Commission for a certificate of public
convenience and necessity that would authorize ATXI “to construct, operate and maintain a
new 345 kV electric transmission line *** and related facilities, including certain new or
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expanded substations, within *** Illinois.” ATXI’s proposed plan was designated the Illinois
Rivers Project (Project), and portions of the Project were to be located within several Illinois
counties, spanning 375 miles across the state. ATXI elected to file its petition pursuant to the
expedited process set forth in section 8-406.1.
¶5 ATXI’s proposal included both a primary route and an alternate route, and the Commission
sent notice of the impending proceedings to several thousand potentially impacted landowners.
After the notices went out, certain interested and affected parties sought and were granted
leave to intervene. Some of these intervenors then proposed alternative routes of their own for
certain segments of the Project. One such alternative was proposed by an intervening group
named Stop Coalition, and it involved the “Kansas-Indiana State Line” segment of the Project.
In the end, the Commission approved the Project and granted ATXI a certificate of public
convenience and necessity, based on a route that included Stop Coalition’s alternative proposal
for the Kansas-Indiana State Line segment.
¶6 Shortly thereafter, several landowners from the Kansas-Indiana State Line segment of the
Project filed a petition to intervene. The petition alleged that, although these landowners
owned property that was either on or directly adjacent to the alternative route proposed by Stop
Coalition, they did not receive notice of that fact until after the Commission had entered its
decision approving the Project. Accordingly, along with their petition to intervene, these
landowners filed both a motion to strike the Commission’s proceedings relating to the
Kansas-Indiana State Line segment of the Project and an application for rehearing. The
Commission denied both the motion to strike and the application for rehearing, but it then
granted the petition to intervene for the limited purpose of accommodating appellate review.
¶7 A direct appeal to the appellate court followed (see 220 ILCS 5/10-201(a) (West 2016)),
and the landowners impacted by the Kansas-Indiana State Line segment of the Project were
among the parties to that appeal. Adams County Property Owners & Tenant Farmers v. Illinois
Commerce Comm’n, 2015 IL App (4th) 130907. In a lengthy opinion, the appellate court
affirmed the Commission’s decision approving the Project and granting the certificate of
public convenience and necessity. Id. ¶ 102. In the course of doing so, the appellate court
considered and rejected the affected landowners’ argument that their due process rights were
violated because they never received notice of Stop Coalition’s alternative route proposal. Id.
¶¶ 78-80.
¶8 Following disposition of the direct administrative appeal, ATXI attempted unsuccessfully
to negotiate easement rights with the Landowners. Consequently, in early 2016, ATXI sought
and secured from the Commission authority to obtain the necessary easements by eminent
domain. Thereafter, ATXI filed a total of 35 eminent domain complaints against the
Landowners. The Landowners, in turn, filed a traverse and motion to dismiss. Although the
Landowners asserted traditional traverse claims, they ultimately did not develop or defend
those claims in the subsequent proceedings.1 Instead, the Landowners focused on their motion
1
At the hearing on the Landowners’ traverse and motion to dismiss, counsel for the Landowners
conceded that ATXI had established a prima facie case for the propriety of the taking, that the
Landowners had made no attempt to rebut that presumption, and that consequently, if the Landowners’
motion to dismiss were denied, their traverse would also have to be denied. Likewise, in its order
granting the Landowners’ motion to dismiss, the circuit court stated that, “[a]lthough the [Landowners]
refused to concede their claims contained in the Traverse were not supported by the record, they
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to dismiss, which argued that ATXI’s eminent domain complaints must be dismissed because
the Landowners’ due process rights were violated during the proceeding in which the
Commission granted the certificate of public convenience and necessity. More specifically, the
Landowners argued that their due process rights were violated because they were never
notified that their property would be affected by the route that the Commission ultimately
approved.
¶9 On September 25, 2017, the circuit court of Edgar County entered a 24-page written order
granting the Landowners’ motion to dismiss on the grounds that the applicable version 2 of
section 8-406.1 was unconstitutional both on its face and as applied to the Landowners. In
support of its conclusion that section 8-406.1 was unconstitutional on its face, the circuit court
explained:
“220 ILCS 5/8-406.1 as it existed at the time of these proceedings was facially
unconstitutional. It failed to require personal notice by registered mail or other means
which would ensure notice to any landowner whose property may be considered for
primary or alternate routes proposed throughout the certification process.
By requiring such notice only to landowners identified in the application and at
public hearing, it deprived landowners whose property was proposed in alternate routes
later suggested by the utility or any intervenor, of the same opportunity to participate or
object.”
Accordingly, the circuit court dismissed all 35 of ATXI’s eminent domain complaints.
¶ 10 ATXI appealed the circuit court’s decision directly to this court. Ill. S. Ct. R. 302(a) (eff.
Oct. 4, 2011).
¶ 11 ANALYSIS
¶ 12 We need not reach the merits of the circuit court’s due process analysis, as the circuit court
clearly lacked the necessary jurisdiction to review the legality and constitutionality of the
Commission’s administrative proceedings.
¶ 13 Illinois courts are courts of general jurisdiction and enjoy a presumption of subject-matter
jurisdiction. Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL
117418, ¶ 14. That presumption is inapplicable, however, where administrative proceedings
are involved. Id. Illinois courts are empowered to review administrative actions only “as
provided by law.” Ill. Const. 1970, art. VI, § 6 (appellate court), § 9 (circuit court). When the
legislature has, through law, prescribed procedures for obtaining judicial review of an
administrative decision, a court is said to exercise “special statutory jurisdiction” when it
reviews an administrative decision pursuant to that statutory scheme. People ex rel. Madigan
v. Illinois Commerce Comm’n, 2014 IL 116642, ¶ 10. Special statutory jurisdiction is limited
by the language of the act conferring it. Id. A court has no powers from any other source. Id. A
party seeking to invoke a court’s special statutory jurisdiction must therefore comply strictly
presented no evidence at the hearing in that regard.” That being said, the trial court’s order concludes by
stating, “[h]aving granted the Motion to Dismiss, the Court does not need to address the Traverse.”
2
Section 8-406.1 has since been amended. See Pub. Act 99-399 (eff. Aug. 18, 2015) (amending 220
ILCS 5/8-406.1).
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with the procedures prescribed by the statute. Id. If the mode of procedure set forth in the
statute is not strictly pursued, no jurisdiction is conferred on the court. Id.
¶ 14 This court has held that “[r]eview of final decisions of the Commission *** involves the
exercise of special statutory jurisdiction and is constrained by the provisions of the Public
Utilities Act.” Illinois Landowners Alliance, NFP v. Illinois Commerce Comm’n, 2017 IL
121302, ¶ 29; see also People ex rel. Madigan v. Illinois Commerce Comm’n, 231 Ill. 2d 370,
387 (2008). The relevant provision of the Act is section 10-201, and it states that a party
affected by a rule, regulation, order, or decision of the Commission has 35 days to “appeal to
the appellate court of the judicial district in which the subject matter of the hearing is situated
*** 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 2016). Section 10-201
goes on to state that, in such cases, the appellate court “shall reverse a Commission rule,
regulation, order or decision, in whole or in part, if it finds that *** [t]he proceedings or
manner by which the Commission considered and decided its rule, regulation, order or
decision were in violation of the State or federal constitution or laws, to the prejudice of the
appellant.” Id. § 10-201(e)(iv)(D). Thus, under the plain language of the Act, the power to
review a final decision of the Commission, including whether “[t]he proceedings or manner by
which the Commission considered and decided its rule, regulation, order or decision were in
violation of the State or federal constitution or laws,” is a power conferred on the appellate
court by the special statutory jurisdiction established in section 10-201. Absent such
jurisdiction, a court has no power to review the legality or constitutionality of Commission
proceedings.
¶ 15 The problem here is that the circuit court below was not exercising the special statutory
jurisdiction conferred by section 10-201 when it determined that the Commission’s
proceedings in relation to the Project were in violation of due process. Rather, it was sitting as
a court of general jurisdiction charged with adjudicating the merits of ATXI’s eminent domain
complaints. As such, the circuit court below had no authority whatsoever to review either the
Commission’s decision itself or whether the proceedings leading up to that decision “were in
violation of the State or federal constitution or laws.” Section 10-201 specifically reserves such
questions for the appellate court exercising its statutory power of direct administrative review,
which is exactly what the Adams County court was doing back in 2015 when it considered and
rejected the very same due process challenge at issue here. Adams County, 2015 IL App (4th)
130907, ¶¶ 78-80. In other words, there is an explicit statutory scheme in place for reviewing
the legality and constitutionality of the Commission’s administrative proceedings, and the
subsequent eminent domain litigation forms no part of it.
¶ 16 Given this, we agree with ATXI that the circuit court’s decision granting the Landowners’
motion to dismiss must be reversed. As discussed above, the circuit court’s sole rationale for
granting those motions was its conclusion that the Commission’s proceedings were in
violation of due process. As the legality and constitutionality of the Commission’s proceedings
was a question beyond the circuit court’s power to decide, its answer to that question cannot
form the basis for dismissing the complaints in this case. Accordingly, the judgment of the
circuit court is hereby reversed.
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¶ 17 CONCLUSION
¶ 18 For the foregoing reasons, the judgment of the circuit court of Edgar County is reversed,
and we remand the cause for further proceedings.
¶ 19 Reversed and remanded.
¶ 20 JUSTICE GARMAN, specially concurring:
¶ 21 Defendants are a group of landowners who claim that the Public Utilities Act instructed the
Illinois Commerce Commission and the circuit court to transfer their property rights to plaintiff
Ameren Transmission Company of Illinois (ATXI) without affording them due process of law.
The majority does not address the substance of defendants’ complaint but instead finds that the
circuit court could not consider their argument because it lacked jurisdiction. I disagree with
this reasoning, but I agree with the conclusion to reverse the circuit court’s order.
¶ 22 A. The Circuit Court’s Jurisdiction
¶ 23 The Illinois Constitution of 1970 grants circuit courts general subject-matter jurisdiction
over “all justiciable matters.” Ill. Const., art. VI, § 9. One such justiciable matter is eminent
domain (735 ILCS 30/10-5-10(a) (West 2010)). ATXI cannot plausibly claim that the circuit
court lacked jurisdiction over these proceedings; after all, ATXI is the plaintiff. In the course of
those eminent domain proceedings, the circuit court found that section 8-406.1 of the Public
Utilities Act (220 ILCS 5/8-406.1 (West 2012)) and the Commission proceedings under that
statute violated the due process clauses of the United States and Illinois Constitutions. Section
8-406.1 established the Commission’s expedited procedure for granting certificates of public
necessity, which in turn created the “rebuttable presumption” that ATXI relied on in its
eminent domain petition. Id.; 735 ILCS 30/5-5-5(c) (West 2014).
¶ 24 The majority finds that the circuit court lacked jurisdiction to find that section 8-406.1 of
the Public Utilities Act and the Commission proceedings violated the due process clause. The
majority certainly is correct that the circuit court lacked jurisdiction to review a challenge to
the Commission’s certificate of public necessity. The Illinois Constitution states that Illinois’s
circuit courts and appellate court have jurisdiction to review administrative action only “as
provided by law.” Ill. Const. 1970, art. VI, §§ 6, 9. Section 10-201(e)(iv)(D) of the Public
Utilities Act grants the appellate court jurisdiction to reverse a “Commission rule, regulation,
order or decision, in whole or in part, if it finds that *** [t]he proceedings or manner by which
the Commission considered and decided its rule, regulation, order or decision were in violation
of the State or federal constitution or laws, to the prejudice of the appellant.” 220 ILCS
5/10-201(e)(iv)(D) (West 2016). No comparable provision grants the circuit court jurisdiction
to review a Commission rule, regulation, order, or decision. If the circuit court had held merely
that the Commission failed to follow the Public Utilities Act, this would have been “review of
[an] administrative action,” which only the appellate court could exercise.
¶ 25 However, the circuit court did not conclude that only the Commission’s decision was
unconstitutional. It also held that section 8-406.1 of the Public Utilities Act was
unconstitutional.
¶ 26 The majority finds either that section 10-201(e)(iv)(D) instructs the appellate court to
consider the constitutionality of the Public Utilities Act in addition to the Commission
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certificate or that this distinction between the Act and the Commission decision is irrelevant.
The majority’s analysis is brief and does not elaborate on its reasoning.
¶ 27 If the majority finds that the appellate court’s authority to review the Commission
certificate of public necessity included the authority to review the Public Utilities Act, it is
mistaken for two reasons. First, section 10-201(e)(iv)(D) does not state this. Section 10-201
directs the appellate court to reverse a “Commission rule, regulation, order or decision, in
whole or in part, if it finds that *** [t]he proceedings or manner by which the Commission
considered and decided its rule, regulation, order or decision were in violation of the State or
federal constitution or laws, to the prejudice of the appellant.” Id. Nothing in the plain
language of this statute strips the circuit court of jurisdiction to consider the constitutionality of
the Public Utilities Act, which is not a “Commission rule, regulation, order or decision” but a
General Assembly statute.
¶ 28 Second, if section 10-201(e)(iv)(D) was intended to deprive the circuit courts of
jurisdiction to review the constitutionality of the Public Utilities Act and give jurisdiction
exclusively to the appellate court, then section 10-201(e)(iv)(D) would be unconstitutional.
The Illinois Constitution does not allow the General Assembly to remove matters from circuit
courts’ general jurisdiction. Circuit courts’ jurisdiction derives from the Illinois Constitution,
and the General Assembly may not extend or reduce it. McCormick v. Robinson, 2015 IL
118230, ¶ 23.
¶ 29 One exception to circuit courts’ constitutional general jurisdiction is that “Circuit Courts
shall have such power to review administrative action as provided by law.” Ill. Const. 1970,
art. VI, § 9. Similarly, the appellate court has jurisdiction to review administrative action as
provided by law. Ill. Const. 1970, art. VI, § 6. Under these provisions, review of administrative
action is considered “special statutory jurisdiction” that exists only through a grant from the
General Assembly. People ex rel. Madigan v. Illinois Commerce Comm’n, 2014 IL 116642,
¶ 10. If the General Assembly has not provided the circuit court with jurisdiction to review a
certain administrative action, the circuit court lacks jurisdiction to review that action. The
majority claims that this exception allows the Public Utilities Act to grant the appellate court,
not the circuit court, the power to review the constitutionality of the Public Utilities Act.
¶ 30 I disagree with the majority’s interpretation, which dramatically expands the General
Assembly’s power to reduce circuit courts’ jurisdiction. No Illinois court has ever considered
reviewing the constitutionality of a statute to be “review [of] administrative action” simply
because that statute implicates an agency’s procedural rules. The majority cites only a few
cases in its short analysis. In Illinois State Treasurer v. Illinois Workers’ Compensation
Comm’n, 2015 IL 117418, the court concluded that the statutory requirements for appealing a
decision of the Workers’ Compensation Commission had not been met. That case was a direct
appeal of a decision of an administrative agency. Unlike this case, there was no challenge to
the constitutionality of a statute. People ex rel. Madigan v. Illinois Commerce Comm’n, 231
Ill. 2d 370 (2008), and People ex rel. Madigan, 2014 IL 116642, also involved direct review of
Commission orders and questions about the statutory requirements for jurisdiction. Illinois
Landowners Alliance, NFP v. Illinois Commerce Comm’n, 2017 IL 121302, was a direct
appeal of a Commission order granting a certificate of public necessity. The court concluded
that the Commission had applied the Public Utilities Act incorrectly. None of these cases
involve a court lacking jurisdiction to review the constitutionality of a statute.
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¶ 31 Nor does ATXI cite any precedent that deprives the circuit court of jurisdiction to conduct
judicial review of the constitutionality of a statute. ATXI relies on Fredman Brothers
Furniture Co. v. Department of Revenue, in which the court considered whether a 35-day filing
period to appeal an administrative order created a jurisdictional bar. 109 Ill. 2d 202, 209
(1985). There is no indication that any party in Fredman Brothers challenged the
constitutionality of the Retailers’ Occupation Tax Act or the Administrative Review Act,
which created the administrative framework for the litigation. The question was whether the
plaintiff’s failure to follow the statutory requirements deprived the circuit court of jurisdiction
over an appeal of the agency’s decision. ATXI also relies on Collinsville Community Unit
District No. 10 v. Regional Board of School Trustees, 218 Ill. 2d 175 (2006); People ex rel.
Madigan v. Illinois Commerce Comm’n, 2014 IL 116642; Illini Coach Co. v. Illinois
Commerce Comm’n, 408 Ill. 104 (1951); Commonwealth Edison Co. v. International
Brotherhood of Electrical Workers, Local Union No. 15, 961 F. Supp. 1154 (N.D. Ill. 1996).
None of these cases deny circuit courts’ jurisdiction in constitutional challenges to state
statutes.
¶ 32 The majority’s error results from its misunderstanding of what claims the General
Assembly may constitutionally assign to the appellate court. Only appeals challenging an
agency’s final determination itself are reserved for appellate courts. For example, in ESG
Watts, Inc. v. Pollution Control Board, 286 Ill. App. 3d 325 (1997) a landowner applied for
permits to operate a landfill, but the Illinois Pollution Control Board denied his application. On
his direct appeal to the Third District, the landowner argued that the board’s decision was
against the manifest weight of the evidence. Id. at 330, 336. This is the sort of challenge that
section 5/10-201(e)(iv)(D) directs to the appellate court. 220 ILCS 5/10-201(e)(iv)(D) (West
2016). Once the case reached the appellate court, that court could consider the landowner’s
constitutional challenge to the statute. ESG Watts, Inc., 286 Ill. App. 3d at 334.
¶ 33 Although not squarely on point, this court’s decision in Board of Education of Peoria
School District No. 150 v. Peoria Federation of Support Staff, Security/Policeman’s
Benevolent & Protective Ass’n Unit No. 114, 2013 IL 114853, supports my conclusion that
“review of administrative action” does not include assessing the constitutionality of a General
Assembly statute. In that case a statute removed jurisdiction over certain labor disputes from
one administrative agency and placed those disputes under the authority of a different agency.
The plaintiffs filed a declaratory judgment action arguing that this statute was unconstitutional
special legislation. This court found that the circuit court had jurisdiction to consider the
constitutional challenge. We explained that “the parties cite no case with comparable facts, i.e.,
a constitutional challenge to a statute that would potentially divest one labor board (the
IELRB) of jurisdiction, with specified dispute resolution procedures, and confer it upon
another (the ILRB), with different procedures. Disposition of the constitutional issue dictates
which of the two boards has jurisdiction of this matter. That decision is properly one for the
courts, and, in the first instance, the circuit court.” Id. ¶ 37.
¶ 34 Admittedly Board of Education of Peoria concerned whether the courts or an
administrative agency had jurisdiction, not which level of state court had jurisdiction.
However, if reviewing the constitutionality of a statute constitutes “review [of] administrative
action,” as the majority concludes, then administrative agencies themselves would be capable
of considering this question. For example, if reviewing the constitutionality of the Public
Utilities Act is review of “administrative action” under article VI, section 9, then the
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Commission’s administrative law judge should be capable of considering the constitutional
challenge. But this court in Board of Education of Peoria expressly disavowed this conclusion,
stating that “administrative agencies have no authority to declare statutes unconstitutional or
even to question their validity.” Id. ¶ 38. Instead, the courts, and specifically the circuit courts,
have jurisdiction over such questions. Id. ¶ 37.
¶ 35 In its brief opinion, the majority justifies this expansion of the General Assembly’s power
simply by citing article VI, section 9, but that text does not support the majority’s claim.
Article VI, section 9, states only that “Circuit Courts shall have such power to review
administrative action as provided by law.” Ill. Const. 1970, art. VI, § 9. It is not obvious why
the phrase “administrative action” should include a statute passed by the General Assembly
simply because that statute governs an administrative agency’s procedures, and the majority
provides no justification for this strained interpretation.
¶ 36 One might argue that, regardless of the circuit court’s jurisdiction to consider the
constitutionality of the Public Utilities Act, my distinction between the Public Utilities Act and
the Commission order is irrelevant. Even if the circuit court could strike down the Public
Utilities Act as unconstitutional, the objection might say, the court would still need to consider
the Commission’s order itself. But the circuit court lacked jurisdiction to review this order.
¶ 37 Because the majority disregards the distinction between the Public Utilities Act and the
Commission certificate of public necessity, it fails to explain why the circuit court should
continue to apply the Commission certificate even after the court invalidated the underlying
statute. It is not self-evident that the circuit court should acknowledge the Commission
certificate after finding that the statute that created it was unconstitutional. Moreover, even if
the Commission’s certificate of public necessity survives the invalidation of the statute that
produced it, that invalidation could still have effects in the eminent domain proceeding based
on that certificate. The circuit court was required, under section 5-5-5(c) of the Eminent
Domain Act, to afford a rebuttable presumption of public necessity to a Commission certificate
of public necessity. 735 ILCS 30/5-5-5(c) (West 2014). The circuit court reasonably
considered the constitutionality of the statute that produced the certificate. It might conclude
that defendants had overcome that presumption by showing that the Public Utilities Act denied
them due process of law, or it might conclude that affording a rebuttable presumption to a
constitutionally deficient certificate also denied defendants due process of law. Admittedly,
the circuit court’s order does not explore these possibilities. The majority’s dismissal based on
lack of jurisdiction, however, forecloses these possibilities entirely and without any
discussion.
¶ 38 The majority’s flawed analysis raises significant threats to individual rights. The
majority’s approach would allow for the following possibility: a utility petitions the
Commission for a certificate of public necessity to acquire two lots owned by Alice and Brian.
Alice is not notified of the Commission proceedings and does not participate in them. Brian is
notified of the proceedings and challenges them, including appealing the decision to the
appellate court. The appellate court rejects Brian’s challenge and upholds the Commission’s
order. The utility initiates eminent domain proceedings against both Alice and Brian. Alice
argues that the statute that allowed the utility to petition for a certificate without notifying her
unconstitutionally deprived her of due process of law. Under the majority’s approach, the
circuit court would lack jurisdiction to hear this argument but would retain jurisdiction over the
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eminent domain proceedings. Assuming for the moment that Alice had the right to participate
in the Commission proceedings, the circuit court would authorize the utility to seize Alice’s
land even though Alice never had the opportunity to participate in those proceedings,
regardless of the Public Utility Act’s constitutionality.
¶ 39 If defendants were deprived of property rights during the Commission proceedings and if
they did not participate in Adams County Property Owners & Tenant Farmers v. Illinois
Commerce Comm’n, 2015 IL App (4th) 130907, then these eminent domain proceedings
represent their first opportunity to challenge the constitutionality of the Public Utilities Act.
The majority finds that the circuit court had jurisdiction to take away defendants’ property but
lacked jurisdiction to consider defendants’ constitutional challenge to that taking. The
majority’s opinion would leave some defendants without any opportunity to assert their
constitutional rights.
¶ 40 B. Issue Preclusion
¶ 41 I find the majority’s approach especially problematic because we can reach the same result
without issuing an opinion that has the potential to be so broadly applicable without being
adequately explained. This case differs from the hypothetical with Alice and Brian because
these eminent domain proceedings were not defendants’ first opportunity to assert their
challenge to the Public Utilities Act. They raised the same arguments in Adams County, and the
appellate court rejected those arguments. Id. ¶ 76.
¶ 42 Issue preclusion bars a litigant from raising an argument that the litigant has already raised
in a prior case. Issue preclusion applies when there is (1) a final judgment on the merits from a
court of competent jurisdiction, (2) identity of the party to be bound by the prior litigation, and
(3) an identical issue to the prior litigation. Gumma v. White, 216 Ill. 2d 23, 38 (2005). The
issue must have been actually litigated and necessary for judgment. Nowak v. St. Rita High
School, 197 Ill. 2d 381, 390 (2001).
¶ 43 After the Commission issued the certificate of public necessity to ATXI, a group of
landowners—named Edgar County Citizens Are Entitled to Due Process
(ECCDP)—participated in the appeal of that certificate to the Fourth District. Adams County,
2015 IL App (4th) 130907, ¶ 69. Although the appellate court discussed some procedural
problems with ECCDP’s petition to intervene, the court also found that the Commission had
impliedly given ECCDP permission to intervene, so ultimately it concluded “we find it
appropriate to address the merits of [ECCDP’s] appeal.” Id. ¶¶ 76, 78. This was a final
adjudication on the merits.
¶ 44 ECCDP argued that the Commission had failed to notify them of the pending proceedings
regarding the routing of the Illinois Rivers Project. Specifically they argued “that the lack of a
clear notice requirement in section 8-406.1 of the Utilities Act renders the statute
unconstitutional.” Id. ¶ 69. The Adams County court rejected this argument, finding that the
Commission proceedings did not convey any property rights, so no process was due to
ECCDP. Id. ¶¶ 51, 69, 80. This argument was identical to the argument that defendants raised
before the circuit court here.
¶ 45 ECCDP’s due process rights argument was actually litigated. The appellate court expressly
considered the same arguments that defendants raise in this case. It was also necessary for the
judgment against ECCDP. The Adams County court moved past the factual disagreement over
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whether notice was actually mailed because it found that no notice was necessary. Id. ¶ 76. The
majority opinion here seems to acknowledge all of this when it comments that the Adams
County court “considered and rejected the very same due process challenge at issue here.”
Supra ¶ 15.
¶ 46 The only remotely contestable component of issue preclusion here is the “identity of the
parties” prong. ATXI concedes that, although the majority of defendants here participated in
the Adams County decision, some of the defendants in this eminent domain proceeding were
not named parties in Adams County. Nevertheless, defendants here stipulated to be treated as
parties to that earlier litigation. The stipulation states that “the defendants—appearing under
the title ‘Edgar County Citizens are Entitled to Due Process’—filed a motion to strike the
certificate proceedings” in Adams County. This stipulation indicates that defendants here
considered themselves to have at least an identity of interests with the ECCDP in Adams
County, which is all that is required to satisfy this component of issue preclusion. Agolf, LLC v.
Village of Arlington Heights, 409 Ill. App. 3d 211, 220 (2011).
¶ 47 All of the components of issue preclusion are satisfied in this case. Rather than rely on this
basis to resolve the appeal, the majority adopts a controversial and unwarranted approach to
the circuit court’s jurisdiction to conduct judicial review of a statute of the General Assembly.
It adopts this unwarranted approach with insufficient discussion. I respectfully disagree with
the majority’s analysis, but for the reasons stated I would also reverse the circuit court’s
decision.
¶ 48 JUSTICE KILBRIDE, concurring in part and dissenting in part:
¶ 49 I partially concur with the majority’s conclusion to reverse the circuit court’s order, but I
disagree with its reasoning, and in that respect, I join Part A of Justice Garman’s special
concurrence on the circuit court’s jurisdiction. I agree with Justice Garman that the majority’s
flawed jurisdictional analysis raises significant threats to individual rights. Supra ¶ 38
(Garman, J., specially concurring). I disagree, in part, with Part B of Justice Garman’s special
concurrence and her conclusion that all of the landowners are barred from challenging the
constitutionality of section 8-406.1 of the Public Utilities Act (220 ILCS 5/8-406.1 (West
2016)), based on the appellate court rejecting the same arguments in Adams County Property
Owners & Tenant Farmers v. Illinois Commerce Comm’n, 2015 IL App (4th) 130907, ¶ 76. I
would hold that issue preclusion does not bar those landowners who were not parties to Adams
County from challenging the constitutionality of section 8-406.1 of the Public Utilities Act in
the eminent domain proceedings.
¶ 50 I agree with Justice Garman that the landowners’ due process rights argument was actually
litigated in Adams County. Unfortunately, this court denied the landowners’ petition for leave
to appeal in that case. Justice Garman notes in her special concurrence, “[t]he only remotely
contestable component of issue preclusion here is the ‘identity of the parties’ prong.” Supra
¶ 46. The special concurrence acknowledges that “some of the defendants in this eminent
domain proceeding were not named parties in Adams County.” Supra ¶ 46. However, Justice
Garman concludes that the landowners who were not named in Adams County “have at least an
identity of interests with the ECCDP in Adams County, which is all that is required to satisfy
this component of issue preclusion,” based on the landowners stipulating to be treated as
parties to the Adams County litigation. Supra ¶ 46. Nevertheless, I would hold that the
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requirements of due process prohibit the application of res judicata and issue preclusion to bar
a claim by the landowners who were not parties in Adams County because the right sought to
be enforced is personal in nature.
¶ 51 In Richards v. Jefferson County, 517 U.S. 793, 794-95 (1996), the United States Supreme
Court considered whether an action challenging the validity of a tax was barred by a judgment
upholding the validity of the tax in a previous suit involving different taxpayers. The Supreme
Court held that application of res judicata was inconsistent with principles of due process
where the taxpayers in the former action “did not sue on behalf of a class; their pleadings did
not purport to assert any claim against or on behalf of any nonparties; and the judgment they
received did not purport to bind any *** taxpayers who were nonparties.” Richards, 517 U.S.
at 801. The Supreme Court specifically noted that the underlying right asserted by the
taxpayers was “personal in nature.” Richards, 517 U.S. at 802 n.6. Here, it is undisputed that
many of the landowners in this eminent domain action were not parties in the Adams County
appeal. Because the rights of the landowners who did not participate in Adams County are
“personal in nature,” I believe that applying the doctrine of res judicata to them results in a
denial of due process. Res judicata is an equitable doctrine and “will not be applied where it
would be fundamentally unfair to do so.” Nowak v. St. Rita High School, 197 Ill. 2d 381, 390
(2001). In my view it would be fundamentally unfair and inequitable to apply res judicata in a
manner that results in the denial of due process for the landowners who did not participate in
Adams County.
¶ 52 For these reasons, I believe the court should address the claim by the landowners who were
not parties in Adams County that section 8-406.1 of the Public Utilities Act is unconstitutional
both facially and as applied.
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