Kreutzer v. Illinois Commerce Comm'n , 2012 IL App (2d) 110619 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Kreutzer v. Illinois Commerce Comm’n, 2012 IL App (2d) 110619Appellate Court FRANCES KREUTZER, MARIE CARANCI, WILLIAM BYRNE, and
Caption LINDA BYRNE, Petitioners, v. ILLINOIS COMMERCE
COMMISSION, COMMONWEALTH EDISON COMPANY, THE
VILLAGE OF HUNTLEY, EXELON BUSINESS SERVICES
COMPANY, NEUEMANN HOMES, INC., INDYMAC BANK, F.S.B.,
HOWARD E. REID, and THE VILLAGE OF GILBERTS, Respondents.
District & No. Second District
Docket No. 2-11-0619
Filed November 30, 2012
Held On remand from the reversal of an order of the Illinois Commerce
(Note: This syllabus Commission granting respondent electric utility a certificate of public
constitutes no part of convenience and necessity for an electrical power line along petitioners’
the opinion of the court property, the Commission properly precluded petitioners from presenting
but has been prepared additional evidence on the issue of whether the route for the line that was
by the Reporter of determined in the first proceeding was the best and the Commission’s
Decisions for the determination that the utility’s modification of the dimensions of the
convenience of the easement it requested cured the evidentiary deficiency that resulted in the
reader.)
reversal was affirmed, since the appellate court’s remand was narrow and
did not allow petitioners to reargue the issue of the route selected.
Decision Under Petition for review of order of Illinois Commerce Commission, No. 07-
Review 0310.
Judgment Affirmed.
Counsel on Philip J. McGuire, of Law Offices of Patrick J. McGuire, P.C., of
Appeal Chicago, and William M. Shay, of Peoria, for appellants.
James E. Weging, of Illinois Commerce Commission, of Chicago, for
appellee Illinois Commerce Commission.
Barry Levenstam, of Jenner & Block, LLP, of Chicago, and David W.
DeBruin and Matthew E. Price, both of Jenner & Block, LLP, of
Washington, D.C., for appellee Commonwealth Edison Company.
Panel JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices McLaren and Burke concurred in the judgment and opinion.
OPINION
¶1 This case comes before this court for the second time. In the prior proceeding, Kreutzer
v. Illinois Commerce Comm’n, 404 Ill. App. 3d 791, 815 (2010) (Kreutzer I), we reversed
the order of the Illinois Commerce Commission (Commission) granting respondent
Commonwealth Edison Co. (ComEd) a certificate of public convenience and necessity for
the construction of an electrical power line along Kreutzer Road, on which is situated the
property of petitioners, Frances Kreutzer, Marie Caranci, William Byrne, and Linda Byrne.
On remand, ComEd modified the dimensions of the easement it was seeking and the
Commission determined that this change cured the evidentiary deficiency on which the
reversal in Kreutzer I was based. The Commission rejected petitioners’ attempt to introduce
additional evidence on whether the Kreutzer Road route was superior to the other candidate
routes, an issue that the Commission had determined in the first proceeding. The
Commission reasoned that our reversal and remand in Kreutzer I was narrow and did not
reopen the issue that petitioners attempted to reargue. The Commission reconfirmed the
Kreutzer Road route with the modification that ComEd had made. Petitioners appeal, and we
affirm.
¶2 BACKGROUND
¶3 The backdrop is set forth in Kreutzer I, and we restate only what is necessary here. In
May 2007, ComEd petitioned the Commission for a certificate of public convenience and
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necessity for the installation of a new electrical transmission line in McHenry and Kane
Counties, the latest phase in its Northwest Reliability Project. The first leg of the proposed
line would begin at an existing electrical substation at Interstate 90 and Randall Road in
Gilberts and run westward six miles along Interstate 90 to a new substation to be called the
Sandwald substation. The second leg of the line would run north from Interstate 90,
eventually reaching and running eastward along the south side of Kreutzer Road before
ultimately connecting with an existing transmission line. The proposed line, known as the
Kreutzer Road route, would pass through petitioners’ property on Kreutzer Road.
¶4 A hearing on the petition occurred in 2007 and 2008. A Commission administrative law
judge (ALJ) received prepared testimony from various witnesses comparing the Kreutzer
Road route, which was endorsed by the Commission staff, to three other candidate routes:
the “Freeman/Galligan” route, the “modified Freeman/Galligan” route,1 and the “Main &
Haligus” route. Exhibit B to ComEd’s petition was a legal description of the Kreutzer Road
route. The route was described as running “ALONG KREUTZER ROAD
APPROXIMATELY 6,433.0 FEET TO THE INTERSECTION OF KREUTZER ROAD
AND HUNTLEY ROAD,” but the dimensions of the corridor along Kreutzer Road were not
indicated. Ronald Dyslin, a real estate agent with ComEd, testified before the ALJ that
ComEd was seeking a “50-foot right-of-way *** adjacent to the south edge of the current
road right-of-way.” In January 2008, the ALJ closed the proofs in the case. In July 2008, the
ALJ filed a proposed order authorizing ComEd to install the transmission line along the
proposed Kreutzer Road route. Appendix 1 to the proposed order adopted verbatim ComEd’s
Exhibit B. The ALJ then invited the parties to submit their briefs on exceptions. Petitioners
subsequently filed a motion for the ALJ to take judicial notice of the fact that, on June 10,
2008, Kane County passed an ordinance designating petitioners’ home on the south side of
Kreutzer Road (Kreutzer House) as a historic landmark. Petitioners argued that the
designation significantly impacted the desirability of the Kreutzer Road route. The ALJ
denied the motion. In its brief on exceptions, ComEd suggested that it could minimize the
impact on the Kreutzer House by locating the transmission line to the south side, or rear, of
the house. ComEd attached as Appendix 1 to its brief a legal description that it claimed
would allow it flexibility to situate the transmission line so as to preserve the aesthetics of
the house. Appendix 1 modified the legal description in Exhibit B to state that the line would
run “ALONG KREUTZER ROAD WITHIN 175 FEET OF THE CENTERLINE OF THE
ROAD RIGHT-OF-WAY FOR A DISTANCE OF APPROXIMATELY 6,433.0 FEET TO
THE INTERSECTION OF KREUTZER ROAD AND HUNTLEY ROAD.” (Emphasis
added.)
¶5 On October 8, 2008, the Commission adopted the recommendation of the ALJ and issued
its “order and certificate of public convenience and necessity” for the construction of the
proposed line along the Kreutzer Road route. The Commission applied the criteria of sections
8-406(b) and (d) of the Public Utilities Act (220 ILCS 5/8-406(b), (d) (West 2008)):
1
The Village of Huntley suggested a modification to the original route so that it would avoid
traversing the village.
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“(b) No public utility shall begin the construction of any new plant, equipment,
property or facility which is not in substitution of any existing plant, equipment, property
or facility or any extension or alteration thereof or in addition thereto, unless and until
it shall have obtained from the Commission a certificate that public convenience and
necessity require such construction. Whenever after a hearing the Commission
determines that any new construction or the transaction of any business by a public utility
will promote the public convenience and is necessary thereto, it shall have the power to
issue certificates of public convenience and necessity. The Commission shall determine
that proposed construction will promote the public convenience and necessity only if the
utility demonstrates: (1) that the proposed construction is necessary to provide adequate,
reliable, and efficient service to its customers and is the least-cost means of satisfying the
service needs of its customers or that the proposed construction will promote the
development of an effectively competitive electricity market that operates efficiently, is
equitable to all customers, and is the least cost means of satisfying those objectives; (2)
that the utility is capable of efficiently managing and supervising the construction process
and has taken sufficient action to ensure adequate and efficient construction and
supervision thereof; and (3) that the utility is capable of financing the proposed
construction without significant adverse financial consequences for the utility or its
customers.
***
(d) In making its determination, the Commission shall attach primary weight to the
cost or cost savings to the customers of the utility. The Commission may consider any
or all factors which will or may affect such cost or cost savings.”
¶6 In a detailed discussion, the Commission applied these criteria to each of the three
candidate routes and concluded that the Kreutzer Road route best met the standards.
Appendix 1 to the Commission’s order was a verbatim copy of ComEd’s Appendix 1, with
the 175-foot right-of-way. The Commission granted ComEd authority to institute eminent
domain proceedings as necessary to construct the route described in the Commission’s
Appendix 1.
¶7 In November 2008, petitioners filed an application for rehearing, in which the sole
argument was that the evidence did not support the 175-foot range that the Commission,
during the exceptions period, granted ComEd in the placement of the line. The Commission
denied rehearing, and petitioners appealed. In Kreutzer I, we noted that petitioners made the
following three arguments to us:
“First, they claim that the Commission erred when, after the proofs were closed, it
authorized ComEd to align the transmission line within 175 feet of the centerline of
Kreutzer Road, when ComEd’s witnesses, such as Dyslin, indicated only that ComEd
needed a 50-foot-wide right-of-way adjacent to Kreutzer Road. Relatedly, petitioners
suggest that the Commission may have violated the Open Meetings Act (5 ILCS 120/1.01
et seq. (West 2008)) in that, given the late insertion of the reference to the 175-foot
margin, ‘there may have been input from some source other than the record.’ Second,
they argue that the Kreutzer Road route was not the least-cost route for the proposed line
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in any case, and that the widening of the easement beyond that contemplated by ComEd’s
witnesses exacerbated the failure of proof. Third, they argue that the Commission was
wrong to deny their request to take administrative notice of Kane Country’s designation
of the Kreutzer House as a historical landmark.” Kreutzer I, 404 Ill. App. 3d at 808.
¶8 We determined that the sole argument petitioners preserved for appeal concerned the
175-foot easement:
“We agree with ComEd and the Commission that petitioners’ argument for rehearing
on the issue of the least-cost option was significantly narrower than the argument they
now bring on the issue. We note first that petitioners did not question below, and do not
question here, the general need for the transmission line. They challenge only the
Commission’s preferred layout for the line, the Kreutzer Road route. In arguing that
specific point here, petitioners contend that the evidence before the Commission does not
demonstrate that the Kreutzer Road route is the least-cost option either with a 50-foot
corridor adjacent to Kreutzer Road, as Dyslin contemplated, or with the revised range of
up to 175 feet from the centerline of Kreutzer Road. In their application for rehearing,
however, petitioners objected only to ComEd’s attempt to secure a right-of-way wider
than 50 feet. Petitioners thus forfeited their challenge that the Kreutzer Road route was
not the least-cost option, given a right-of-way of no wider than 50 feet adjacent to
Kreutzer Road. Thus, we do not review whether the Kreutzer Road route was the least-
cost option as laid out before the revision that ComEd prompted.
Petitioners also forfeited their argument that the Commission erred by declining to
take administrative notice of the designation of the Kreutzer House by Kane County. In
their application for rehearing, petitioners mentioned the Commission’s denial of the
motion but did not assign error to it.” Id. at 809.
¶9 We then turned to “petitioners’ one preserved contention, that there was no evidence
before the Commission to demonstrate the need for a 175-foot right-of-way reckoned from
the centerline of Kreutzer Road or, for that matter, any right-of-way more expansive than a
50-foot corridor adjacent to Kreutzer Road.” Id. Reviewing the pertinent law, we held that
an order from the Commission authorizing a utility to institute condemnation proceedings
to make improvements must both “describe with reasonable certainty the portion of the
property sought to be condemned” and “have an adequate evidentiary basis.” Id. at 812.
¶ 10 Applying these criteria, we found two flaws in the Commission’s allowance of the 175-
foot right-of-way. First, the Commission’s order “[did] not adequately describe the portion
of property ComEd [was] authorized to seek.” Id. at 813. The order “allow[ed] for placement
of a transmission line of unidentified width within a range of well over 100 feet (even
allowing for substantial width for the road right-of-way) on petitioners’ property.” Id.
Second, “even if such an uncertain description were sufficient, the record [did] not support
a margin of 175 feet from the centerline of Kreutzer Road (in whichever direction) rather
than some other margin.” Id.
¶ 11 At the conclusion of our analysis, we made the following comments regarding the relief
to be granted:
“As to how to proceed from here, ComEd prefers that we simply direct the
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Commission to delete the reference to the 175-foot width rather than ‘remand for further
proceedings on whether the 175-foot provision should be included.’ The Commission,
however, ‘will accept remand to either hear evidence on the matter or to strike the 175
foot limitation out of the legal description.’ Petitioners request a remand to ‘reopen the
hearing’ but give no specifics.
We do not opt simply to have the 175-foot reference stricken. That would eliminate
all measure of definiteness in the width of the right-of-way sought by ComEd and render
the Commission’s decision entirely out of compliance with the standards we set forth
above. Notably, neither ComEd nor the Commission asks us to hold that the evidence at
least supports a 50-foot right-of-way adjacent to Kreutzer Road, as described by Dyslin.
We could not do so anyway because Appendix 1 to the Commission’s order does not
specify a 50-foot right-of-way. We simply remand this matter for further proceedings
before the Commission, governed by the principles set forth above.” Id. at 815.
Our judgment line read: “For the foregoing reasons, we reverse the decision of the
Commission and remand this case for further proceedings consistent with this opinion.” Id.
The mandate, which issued on November 17, 2010, read:
“BE IT REMEMBERED, that, to wit: On the 16th day of September, 2010, a Decision
of the aforementioned Court was entered of record and in accordance with the views
expressed in the attached Decision the judgment of the [Commission] is Reversed and
Remanded.”
¶ 12 On remand, the Commission staff, ComEd, and petitioners all filed briefs recommending
how the Commission should proceed. The Commission staff filed the first brief, and
interpreted Kreutzer I as limiting the scope of the case on remand to the issue of the 175-foot
right-of-way. Specifically, the staff interpreted our judgment and mandate as “remand[ing]
the decision back to the Commission with directions to describe with reasonabl[e] certainty
the amount of land it authorized ComEd to acquire[ ], and to be sure that description was
supported by substantial evidence.” According to the staff, petitioners had forfeited in
Kreutzer I, and so could not raise on remand, any argument that the Kreutzer Road route did
not meet the criteria of section 8-406, including any claim that the Kane County ordinance
diminished the appeal of the Kreutzer Road route. (Here the Commission accurately
interpreted our mandate.)
¶ 13 In its brief on remand, ComEd asserted that the reversal and remand in Kreutzer I was
based on “one clearly defined issue,” namely, the validity of the 175-foot easement. ComEd
announced that it would now limit its request to a 50-foot easement, the dimension
referenced by Dyslin in his testimony in the original proceeding. ComEd proposed that this
modification would altogether eliminate the deficiency found in Kreutzer I, and so dispense
with the need for further evidence on remand, as petitioners had not preserved for appeal in
Kreutzer I any issue but the description of, and evidentiary support for, the 175-foot
easement.
¶ 14 ComEd also represented in its brief that the first segment of the new transmission line,
between the Gilberts and Sandwald substations, had been complete since 2009.
¶ 15 Petitioners argued for further proceedings on two principal grounds: changed law and
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changed facts. First, as to changed law, petitioners maintained that our opinion in Kreutzer I
substantially heightened the restrictions on a utility’s ability to condemn land for
improvements, and that, in light of these changes, the Commission should undertake “a
thorough review and reconsideration of the certificate previously granted in the initial
proceeding.” Second, as to changed facts, petitioners observed that the housing industry had
declined rapidly since the initial proceeding. Petitioners attached to their brief a document
from the National Association of Home Builders (NAHB report) on “housing starts,” which
the document defines as “new residential construction” and “new residential sales.” The
document contains statistics on housing starts for 1978 through 2009. Petitioners noted in
particular the decline in total starts from 1,046,100 in 2007, to 622,000 in 2008, and, finally,
to 445,000 in 2009. Petitioners noted that ComEd’s witnesses in the original proceeding cited
future growth in the region as one of the reasons for the proposed new line. Petitioners urged
the Commission to conduct further proceedings on whether, given the economic decline, as
well as other considerations, the second segment of the proposed line, which would run from
the Sandwald substation to ComEd’s existing transmission line, was still advisable:
“Another critically important factor that needs further evidence on remand is the
extent to which the first segment of the Project has alleviated or satisfied ComEd’s
electric infrastructure needs in the study area. *** ComEd should be required to provide
evidence of *** the system enhancements and other benefits it has provided, and whether
due to the severe recession and the concomitant decline in projected load growth, as well
as other relevant engineering factors (e.g., installation of additional equipment at other
neighboring substations), incurrence of the substantial additional cost for completion of
the second segment at this time is justified and consistent with ComEd’s obligations to
provide reliable and adequate service at least cost.”
¶ 16 Lastly, petitioners relied on considerations that did not appear to be new. First, petitioners
referred to testimony in the original proceeding that the Village of Huntley was planning to
widen Kreutzer Road. Petitioners asked the Commission to “revisit[ ]” the issue of the
planned widening:
“If ComEd were to build the line along the [s]outh side of Kreutzer Road within the 50
foot easement that *** it advocated and supported in the initial proceedings, the cost to
move the poles and related facilities to accommodate a widening of Kreutzer Road
(possibly in the very near future) should be considered as part of the cost of the Kreutzer
Road route and would almost certainly make that route for the line cost[-]prohibitive
compared to other viable routes. [Petitioners] note that in another transmission line
proceeding, ComEd estimated it would cost $4.5 million (in 2002) dollars to move a
138kV transmission line covering 5,050 feet. *** There may have been differences in
that proceeding making the cost comparison more complicated, but at least we have an
indication of the order of magnitude of the cost of relocating poles and related
equipment. More direct and accurate relocation cost projections could be developed in
the remanded proceeding.”
¶ 17 Second, petitioners asked the Commission to reconsider its prior denial of their motion
to take notice of Kane County’s designation of the Kreutzer House as a historic landmark.
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¶ 18 ComEd subsequently submitted a revised legal description for the Kreutzer Road route,
specifying that the route would run “ALONG KREUTZER ROAD WITHIN A 50 FOOT
RIGHT-OF-WAY.”
¶ 19 On April 15, 2011, the Commission approved the revised right-of-way. The Commission
held that, in light of our decision in Kreutzer I, it had no discretion to grant petitioners’
request for further evidentiary proceedings:
“The Commission’s 2008 Order approved ComEd’s request for a [certificate of
public convenience and necessity] to construct Phase III of the Northwest Reliability
Project, which included the route for the transmission line and eminent domain authority
under [section 8-503 of the Act (220 ILCS 5/8-503 (West 2008))]. Nothing in the
Appellate Court opinion or in this Order on Remand disturbs those finding[s], other than
to address [the] proper width of the right-of-way along those portions of Kreutzer Road
that make up part of the approved route for the line. The Appellate Court opinion was
very clear as to the limited scope of the Commission’s proceeding on remand. With
respect to the proper width of the right-of-way, the Commission concludes that the
evidentiary record demonstrates that ComEd’s proposed 50-foot right-of-way adjacent
to the south of the Kreutzer Road right-of-way is necessary to facilitate the construction
of the transmission facilities. Meanwhile, no party has presented compelling evidence
demonstrating that a 50-foot right-of-way is unreasonable.”
¶ 20 Petitioners moved for rehearing, which the Commission denied. They filed this timely
appeal.
¶ 21 ANALYSIS
¶ 22 We first address the Commission’s request that we reconsider our rejection of its
jurisdictional challenge in Kreutzer I. The Commission argued there that we lacked
jurisdiction because petitioners had not provided the Commission timely notice of their
appeal to this court. We explained that notice to the Commission was not essential to our
jurisdiction. See Kreutzer I, 404 Ill. App. 3d at 793-97. The Commission renews that
argument, but admits that, in the present appeal, it indeed was served with timely notice.
Nonetheless, the Commission claims that we may even now determine that we lacked
jurisdiction over the first appeal and, a fortiori, lack jurisdiction over the present appeal. We
may undertake that inquiry, the Commission claims, because “[our] prior decision through
its remandment is an interlocutory order.” The Commission does not explain how
characterizing Kreutzer I as “interlocutory” benefits its position on appeal. The Commission
does add some parenthetical remarks to the two citations it provides: Trunek v. Industrial
Comm’n, 345 Ill. App. 3d 126 (2003), and People v. Brazee, 333 Ill. App. 3d 43 (2002)
(hereinafter Brazee II, for reasons stated below). Of Trunek, the Commission says, “remand
for further proceedings renders an order interlocutory,” and of Brazee II, “[b]ecause of
remand, later clarification order was interlocutory and subject to alteration when final appeal
was taken.” The Commission appears to be mixing two distinct senses of “interlocutory,” as
we will explain.
¶ 23 A reviewing court’s determination that it has jurisdiction over an appeal becomes the law
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of the case for successive appeals in the same proceeding. See Anest v. Bailey, 265 Ill. App.
3d 58, 63-64 (1994); Hamilton v. Williams, 237 Ill. App. 3d 765, 772-73 (1992). The law-of-
the-case doctrine provides that questions decided in a previous appeal are binding on the trial
court on remand as well as on the appellate court in a subsequent appeal. Norris v. National
Union Fire Insurance Co. of Pittsburgh, 368 Ill. App. 3d 576, 580 (2006).
¶ 24 While an appeal is pending, however, a reviewing court owes no deference to rulings it
made earlier in that same appeal. Brazee II involved just such a ruling. In People v. Brazee,
316 Ill. App. 3d 1230, 1237 (2000) (Brazee I), this court vacated the defendant’s prison
sentence and directed the trial court to sentence him to time served under the Juvenile Court
Act of 1987 (705 ILCS 405/1-1 et seq. (West 1996)). On remand, the trial court adjusted the
sentence accordingly, but the parties disputed whether the court should also vacate the
defendant’s criminal conviction and adjudicate him a delinquent minor. The trial court ruled
that the defendant’s criminal conviction would stand even though, at our direction, he was
sentenced as a juvenile. Brazee II, 333 Ill. App. 3d at 45. On March 6, 2001, the defendant
filed a timely notice of appeal, and, on March 17, 2001, the office of the State Appellate
Defender (OSAD) was appointed to represent him. On March 12, 2001, however, an attorney
from OSAD filed an emergency motion in this court to clarify the mandate in Brazee I as to
whether the defendant should have been adjudicated a delinquent minor. The motion was
filed under the docket number for Brazee I. On June 1, 2001, a panel of this court issued an
order clarifying that the defendant’s criminal conviction would stand. At the time, this court
was unaware that the defendant had perfected an appeal in Brazee II raising essentially the
same issue. Id. at 46, 50.
¶ 25 Subsequently, we issued our disposition in Brazee II, holding, after all, that the defendant
should have been adjudicated a delinquent minor and that his criminal conviction was
invalid. Id. at 49. We said: “Because this appeal was pending on June 1, 2001, when that
order was entered, the order was interlocutory and subject to revision prior to entry of this
court’s final judgment.” Id. at 50. We stated no standard of review, but also never hinted that
we owed any deference to the June 1, 2001, determination.
¶ 26 In Commonwealth Edison Co v. Illinois Commerce Comm’n, 368 Ill. App. 3d 734 (2006),
this court applied the same concept of “interlocutory” as in Brazee II. Commonwealth Edison
is instructive here in two respects. First, it concerns a prior jurisdictional determination, such
as the Commission challenges here. Second, it more clearly indicates that prior rulings made
during the pendency of an appeal are reviewed de novo.
¶ 27 The consolidated appeals in Commonwealth Edison were transferred to this district from
the First District Appellate Court. Prior to the transfer, the appellee filed motions to dismiss
the appeals for lack of jurisdiction because the petitions for review were not timely. The First
District transferred the cases without formally ruling on the motions to dismiss. Once the
cases were in this court, the appellee renewed its jurisdictional challenges. We agreed with
the appellants that the First District’s transfer of the cases while the motions to dismiss were
pending constituted an implied rejection of the jurisdictional challenges. Id. at 742. We
disagreed with the appellants, however, that the First District’s jurisdictional ruling was the
law of the case and, thus, generally unassailable. “The law-of-the-case doctrine,” we
explained, “binds a court only where a court’s prior order was final.” Id.; see also People v.
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Patterson, 154 Ill. 2d 414, 468 (1992). The denial of a motion to dismiss for lack of
jurisdiction is not “final” but, rather, “interlocutory” because it “does not dispose of all of the
controversy between the parties.” Commonwealth Edison, 368 Ill. App. 3d at 742. “An
interlocutory order may be modified or revised by [the original court or] a successor court
at any time prior to final judgment.” Id. Consistent with this reasoning, we showed no
deference to the First District’s jurisdictional determination.
¶ 28 Trunek, the other case cited by the Commission, applied a different sense of
“interlocutory,” but for a different purpose. Trunek held generally that a judgment of the trial
court reversing a decision of the Industrial Commission is “interlocutory and not appealable”
if the court’s judgment “remands the matter for further proceedings involving the resolution
of questions of law or fact.” Trunek, 345 Ill. App. 3d at 127. Our supreme court has applied
this same criterion in determining whether an appellate court judgment is “final” and, thus,
appealable. The court said in Cory Corp. v. Fitzgerald, 403 Ill. 409, 414-15 (1949):
“In general, to be final and appealable, a judgment of the Appellate Court must
terminate the litigation on the merits of the cause and determine the rights of the parties.
[Citations.] Where, however, the Appellate Court remands a cause for further
proceedings, it does not necessarily mean that the judgment is not a final one. If, upon
remandment, the trial court has only to enter a judgment or decree in accordance with the
directions of the reviewing court, or to conduct further proceedings on uncontroverted
incidental matters, then, irrespective of the remanding clause in the judgment order, the
judgment of the Appellate Court is final and reviewable. [Citations.] On the other hand,
where a cause is remanded for a new trial or other further proceedings involving disputed
questions of law or fact, the judgment of the Appellate Court is not of a final character.
[Citations.] The ultimate question to be decided in each case is whether the judgment
fully and finally disposes of the rights of the parties to the cause so that no material
controverted issue remains to be determined.”2
A judgment of the appellate court can be “final” and, hence, the law of the case, while also
being “interlocutory” and not subject to higher review. A judgment can “dispose of all of the
controversy between the parties” (Commonwealth Edison, 368 Ill. App. 3d at 742),
adjudicating the merits of the issues before it, while also remanding the matter for further
substantive proceedings.3 A judgment that “dispose[s] of all of the controversy between the
2
In more recent decades, it seems that the only cases in which reviewing courts have applied
this criterion to test the finality of appellate court judgments have been appeals from administrative
bodies. See, e.g., Wilkey v. Illinois Racing Board, 96 Ill. 2d 245, 249 (1983); Jelinek v. Retirement
Board of the Firemen’s Annuity & Benefit Fund, 392 Ill. App. 3d 372, 378 (2009). We express no
opinion on whether the Cory Corp. criterion applies to all appellate court judgments.
3
The Commission’s parenthetical description of Brazee II seems to suggest that this court’s
June 1, 2001, clarifying order was interlocutory because of the remand in Brazee I. This is incorrect.
The remand (and resulting confusion) may have occasioned the order, but what made the order
interlocutory was that it was entered during the pendency of the subsequent appeal, prior to the final
judgment.
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parties” (id.) will serve as the law of the case for subsequent appeals. For instance, while
Trunek remanded the matter for further substantive proceedings, and in that sense the
judgment was “interlocutory,” Trunek would have stood as the law of the case as against any
challenge in a subsequent appeal after remand. As Kreutzer I met the Commonwealth Edison
criterion, it is the law of the case. This includes both the jurisdictional ruling and the decision
on the merits.
¶ 29 Any suggestion by the Commission that our jurisdictional ruling in Kreutzer I is not the
law of the case would be at odds with a position that the Commission takes elsewhere in its
brief. We mean specifically the Commission’s response to what it casts as petitioners’
attempt to mount an untimely challenge to the Commission’s original decision. The
Commission notes that, in Kreutzer I, the sole issue that petitioners preserved for appellate
review was whether the 175-foot easement was adequately described and had requisite
evidentiary support. All other issues, the Commission claims, have been “long-waived” by
petitioners.
¶ 30 As authority, the Commission cites Independent Voters of Illinois v. Illinois Commerce
Comm’n, 189 Ill. App. 3d 761, 767 (1989), for the principle that “[t]he judgment of a
reviewing court is final upon all questions decided, and if the cause is remanded, only such
action may be taken on remand as conforms to the judgment of the reviewing court.”
(Emphasis added.) The Commission also quotes extensively from Turner v. Commonwealth
Edison Co., 63 Ill. App. 3d 693, 698 (1978), on the law-of-the-case doctrine:
“It is well settled that no question which was raised or which could have been raised
in a prior appeal on the merits can be urged on a subsequent appeal. [Citation.] Where
in the prior appeal, questions of law are presented and determined, such become the law
of the case and are generally binding and will control in a subsequent appeal unless the
facts presented in the subsequent proceedings are so substantially different as to require
a different interpretation. [Citations.] Courts will not permit parties to relitigate the
merits of an issue once decided by an appellate court[;] the proper remedy for a
dissatisfied party is by petition for rehearing or by petition for leave to appeal to the
Illinois Supreme Court. [Citation.] Similarly, where a question was open to consideration
in a prior appeal and it could have been presented but was not, the question will be
deemed to be waived. [Citation.] A second appeal brings up nothing except proceedings
subsequent to the remandment[,] and a party will not be allowed to present his case for
review piecemeal, one part each time. [Citation.]” (Emphases added.)
Kreutzer I, of course, could not be the law of the case unless it was “final” within the
meaning of Commonwealth Edison and Brazee II. Thus, the Commission appears to be of
two minds regarding the finality of Kreutzer I. Perhaps the Commission means that our
decision on the merits in Kreutzer I (which petitioners attack) was “final” but that our
jurisdictional ruling (which the Commission attacks) was not “final.” The Commission offers
no grounds for such a distinction, and we cannot conceive of any.
¶ 31 Having determined that the Commission’s attack on our jurisdictional ruling in
Kreutzer I falls under the law-of-the-case doctrine, we note that the Commission offers no
argument under that doctrine. In fact, as we observed, the Commission’s argument is hardly
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more than a bare assertion that Kreutzer I was “interlocutory.” “[T]here are two recognized
exceptions to the *** doctrine: (1) when a higher reviewing court, subsequent to the lower
court’s decision, makes a contrary ruling on the same issue; and (2) when a reviewing court
finds that its prior decision was palpably erroneous.” People ex rel. Madigan v. Illinois
Commerce Comm’n, 2012 IL App (2d) 100024, ¶ 35. Only the “palpably erroneous”
exception is potentially applicable here. We have reviewed the Commission’s arguments
against our ruling in Kreutzer I and find no error.
¶ 32 We turn to petitioners’ arguments on appeal. They first contend that our judgment in
Kreutzer I effectively reversed the entirety of the Commission’s October 2008 order
approving the Kreutzer Road route, and so the Commission received the case on remand as
if no hearing had taken place and no evidence had been received. Petitioners conclude that,
since the Commission refused to receive any additional evidence on remand, its April 15,
2011, order approving ComEd’s revised right-of-way lacked any support and, therefore, must
be reversed.
¶ 33 As authority for their contention that Kreutzer I reversed the whole of the Commission’s
order, petitioners refer to the following language from Kinney v. Lindgren, 373 Ill. 415, 420
(1940):
“When a decree is reversed and the cause is remanded without specific directions,
the judgment of the court below is entirely abrogated, and the cause stands there as if
no trial had occurred. The trial court then has the same power over the record as it had
before its judgment or decree was rendered. It may permit amendments to the pleadings
or the introduction of further evidence, so long as such steps are not inconsistent with the
principles announced by the court of review, and do not introduce grounds which did not
exist at the original hearing. [Citation.] When a judgment is reversed and the cause
remanded with directions to proceed in conformity to the decision then filed, and it
appears from the opinion that the grounds of reversal are of a character to be obviated by
amendment of the pleadings or by the introduction of additional evidence, the trial court
is bound to permit the cause to be redocketed and to permit such amendments and the
introduction of further evidence on the new hearing.” (Emphasis added.)
¶ 34 We disagree with the premise that our judgment in Kreutzer I reversed the Commission’s
judgment in its entirety. Kinney seems to suggest that, where “specific directions” are
lacking, it is presumed that the lower tribunal’s entire judgment is abrogated. In Town of
Kaneville v. Meredith, 361 Ill. 556, 563 (1935), however, the supreme court said:
“If the cause has been remanded, the court to which it is remanded can take only such
proceedings as conform to the judgment of the appellate tribunal. If specific directions
are given, the court can do nothing but carry out such directions; if not given, it must be
determined from the nature of the case what further proceedings would be proper and
not inconsistent with the opinion.” (Emphasis added.)
These comments suggest that, if specific directions are lacking, the body of the appellate
court’s judgment must be examined to determine the court’s intent for the proceedings on
remand. Several decades later, in Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 353
(2002), the supreme court endorsed Meredith’s approach:
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“[I]t is not required that a reviewing court state specific directions in an order reversing
a judgment and remanding a cause. In such a case, it is then the duty of the court to which
the cause is remanded to examine the reviewing court’s opinion and to proceed in
conformity with the views expressed in it. [Citations.] ‘[T]hen, of course, the content of
the opinion is significant.’ PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 308
(1981).”
We follow Clemons, as it appears to be the supreme court’s latest pronouncement on the
matter of interpreting a reviewing court’s judgment.
¶ 35 Applying the principles of Meredith as restated in Clemons, we determine that Kreutzer I
did not abrogate the Commission’s entire judgment, because petitioners challenged only a
portion of the judgment and that portion was distinct from the remainder of the judgment.
We were careful in Kreutzer I to identify precisely which of the several arguments brought
by petitioners were properly preserved for review. We determined that, because they did not
raise it before the Commission on rehearing, petitioners forfeited for appellate review the
issue of whether the Kreutzer Road route met the criteria of sections 8-406(b) and (d) of the
Act, including whether the route was the “least-cost” option of providing electricity. Kreutzer
I, 404 Ill. App. 3d at 809. We then concluded that our review was limited to the following
two questions: (1) whether the Commission’s order granting ComEd an easement that would
run “along Kreutzer Road within 175 feet of the centerline of the road right-of-way”
adequately described the property to be acquired; and (2) whether the evidence justified
whatever quantity of property ComEd sought. In other words, the issue on appeal was not
whether the Kreutzer Road route was the best candidate under sections 8-406(b) and (d), but
whether ComEd had properly specified and proved the amount of property it needed along
Kreutzer Road. We determined that both the description of the easement and the underlying
proof were inadequate, and we reversed. We remanded “for further proceedings ***
governed by the principles set forth above.” Id. at 815. The only “principles” we articulated
in our analysis were those governing the specificity and evidentiary requirements for a utility
easement. Hence, our remand directive contemplated no proceedings beyond those pertaining
to the easement issue. Our reversal on the easement issue could be construed as extending
to the route issue only if the matters were interrelated, which they were not.
¶ 36 Petitioners, we conclude, have not demonstrated that our decision in Kreutzer I restored
the proceedings before the Commission as if no hearing had taken place and no evidence
received. Our reversal, rather, was partial, encompassing only the issue of the easement along
Kreutzer Road. Thus, contrary to petitioners’ suggestion, all evidence that was introduced
at the prior proceeding was still before the Commission when, in April 2011, it entered its
judgment on remand.
¶ 37 Petitioners’ next set of arguments concerns whether the Kreutzer Road route is the best
of the candidate routes under the criteria of sections 8-406(b) and (d) of the Act. In
Kreutzer I, petitioners failed to preserve any argument regarding the route issue. Id. at 808.
Petitioners attempt now to revisit the issue, making several points. The first point is set forth
in an argument subsection entitled:
“The Effect of the Commission’s Response to This Court’s Prior Decision Was to
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Render Even More Speculative Than Before The Commission’s Decision That the
Kreutzer Road Route Was the Least-Cost Alternative.”
The first line of this subsection reads: “Understanding of this issue requires first a review of
the evidence presented on the hearing and then an explication of how this court’s decision
has affected that issue.” (Emphasis added.) In what follows, however, petitioners never
attempt to show how Kreutzer I affected the “least cost” issue in this case or “least cost”
issues generally. Rather, they simply recapitulate the evidence in the original proceeding and
argue that it was insufficient. Petitioners cannot reargue whether the Kreutzer Road route was
the appropriate route on the evidentiary record as it stood in the prior proceeding. “Generally,
the law of the case doctrine bars relitigation of an issue previously decided in the same case.”
Krautsack v. Anderson, 223 Ill. 2d 541, 552 (2006). “Courts will not permit parties to
relitigate the merits of an issue once decided by an appellate court[;] the proper remedy for
a dissatisfied party is by petition for rehearing or by petition for leave to appeal to the Illinois
Supreme Court.” Turner, 63 Ill. App. 3d at 698. “Similarly, where a question was open to
consideration in a prior appeal and it could have been presented but was not, the question
will be deemed to be waived.” Id. (citing Kazubowski v. Kazubowski, 45 Ill. 2d 405, 413
(1970)). “A second appeal brings up nothing except proceedings subsequent to the
remandment[,] and a party will not be allowed to present his case for review piecemeal, one
part each time.” Id; see also Tribune Co. v. Emery Motor Livery Co., 338 Ill. 537, 541
(1929). In this part of their argument, however, petitioners allege no error by the Commission
in the proceedings following remand.
¶ 38 Next, petitioners contend that the Commission erred by refusing to consider evidence
that, “[i]n the *** three-year-plus interval [since the Commission’s October 2008] order, the
economy has progressively declined.” Petitioners point to two sources for this evidence. The
first is a document entitled, “U.S. Census Bureau News–Joint Release–U.S. Department of
Housing and Urban Development” (HUD report), which was introduced by Huntley in the
first proceeding before the Commission. There is no indication, however, that this document
was resubmitted by petitioners on remand. Even if they did resubmit the HUD report, the
Commission obviously would have been correct to conclude that the document, dated
January 17, 2008, did not show any change in circumstances since the Commission’s
October 2008 order. Petitioners have established no error on this point.
¶ 39 The other document is the NAHB report, which shows a 58% nationwide decrease in
housing starts from 2007 to 2009. Unlike the HUD report, it is clear that the NAHB report
was submitted to the Commission on remand. Petitioners argue that the Commission “should
have taken judicial notice of [the data] and conducted a hearing on whether the new line is
now needed in the first instance.” Here again we emphasize that petitioners failed to preserve
on appeal in Kreutzer I any argument that the Kreutzer Road route did not meet the criteria
of section 8-406. The only argument preserved in Kreutzer I concerned the size of the
easement along Kreutzer Road, specifically, whether the 175-foot easement was adequately
described and also supported by evidence. Our reversal on that issue did not implicate the
analytically distinct issue of the appropriateness of the route under section 8-406. Given the
forfeiture, we affirmed that portion of the Commission’s order containing its findings and
ruling under section 8-406.
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¶ 40 In the proceedings following Kreutzer I, the Commission concluded that our remand was
of “limited scope” and precluded it from revisiting the section 8-406 issue. We need not
decide whether Kreutzer I left the Commission any discretion to take further evidence on the
section 8-406 issue, because petitioners have not properly developed any argument that the
Commission erred. On why the NAHB report impacts the Commission’s analysis, they write:
“The fact in this matter which has changed dramatically is the national economy, in
particular the housing-construction segment of the economy, the continued growth of
which was the fundamental assumption on which ComEd premised the need for the
construction project in the first instance.
This proceeding began in 2007, and the original hearing took place in 2008. In the
ensuing three-year-plus interval, the economy has progressively deteriorated. ComEd and
the [C]ommission staff premised the entire proceeding on an assumption that the area
proposed to be served by the new transmission line had been growing rapidly and would
continue to do so at a rate of seven per-cent compounded annually.”
Petitioners provide no record citations for any of these assertions. They make similar
representations in their reply brief, but again without citations to the record. Therefore, they
have forfeited any argument that the Commission erred in refusing to reopen the evidentiary
record to explore changed economic conditions. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008)
(“[a]rgument” shall “contain the contentions of the appellant and the reasons therefor, with
citation of the authorities and the pages of the record relied on,” and “[p]oints not argued are
waived”).
¶ 41 Petitioners alternatively ask us to take judicial notice of the recent economic trends. We
decline, as petitioners, again, have failed to develop an argument as to how those trends
would impact a section 8-406 analysis.
¶ 42 Petitioners’ final argument on appeal is that the Commission erred in its express refusal
in the first proceeding, and implied refusal on remand, to consider the Kane County
ordinance designating the Kreutzer House as a historic landmark. In Kreutzer I, we held that
petitioners forfeited this issue by failing to preserve it in their motion to reconsider before
the Commission. See Kreutzer I, 404 Ill. App. 3d at 809. That holding is the law of the case.
See Turner, 63 Ill. App. 3d at 698. Petitioners, however, invoke the exception to the law-of-
the-case doctrine for prior decisions that were “palpably erroneous.” People v. Sutton, 233
Ill. 2d 89, 98 (2009). Petitioners fail, however, to make a substantive argument on the
relevancy of the ordinance. Their discussion begins:
“ComEd and the [C]ommission will undoubtedly argue that this court’s prior decision
constitutes the ‘law of the case’ and that one of the matters insulated from further review
is whether [petitioners] preserved the effect of the Kane County ordinance designating
the [Kreutzer House] as a historic landmark. This court held that [petitioners] had
‘forfeited’ argument on this point by not being specific enough in their reference to it in
the petition for review before the [C]ommission.”
Petitioners devote the remainder of their argument to citing case law and statutes authorizing
us to correct “palpably erroneous” errors and to take judicial notice of ordinances. Petitioners
neglect, however, to attempt any argument as to the impact of the ordinance on an analysis
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of candidate routes under section 8-406.
¶ 43 CONCLUSION
¶ 44 For the foregoing reasons, we affirm the decision of the Commission.
¶ 45 Affirmed.
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