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10/05/89 the Illinois Commerce v. the Illinois Commerce

October 5, 1989

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT INDEPENDENT VOTERS OF ILLINOIS ET AL., PETITIONERS

v.

THE ILLINOIS COMMERCE COMMISSION ET AL., RESPONDENTS. -- INDEPENDENT VOTERS OF ILLINOIS ET AL., PETITIONERS-APPELLANTS,

v.

THE ILLINOIS COMMERCE COMMISSION ET AL., RESPONDENTS-APPELLEES



545 N.E.2d 557, 189 Ill. App. 3d 761, 136 Ill. Dec. 1033 1989.IL.1609

Petition for review of order of Illinois Commerce Commission, appeal from the Circuit Court of Kane County; the Hon. Michael J. Colwell, Judge, presiding, and appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Independent Voters of Illinois and its attorneys appeal directly from an order of the Illinois Commerce Commission (Commission) denying its petition seeking attorney fees under the common-fund doctrine to be awarded from monies ordered refunded to customers of Illinois Bell Telephone Company (Bell). IVI separately appeals from the judgment of the circuit court of Kane County affirming the Commission's order and denying an "independent petition for fees."

The following issues are presented on appeal: (1) whether the circuit court had jurisdiction to hear the appeal from the Commission's order; (2) whether the mandate of the Illinois Supreme Court in a prior appeal in this case precludes an award of attorney fees under the common-fund doctrine; (3) whether the Commission or a court reviewing an order of the Commission has authority to award fees; and (4) whether the amount of fees IVI seeks is reasonable.

This appeal follows several prior appeals arising from a challenge by IVI to an order of the Commission issued in 1971 setting rates for Bell.

The court stated:

"The refunds ordered here should be comprised of the difference between the original rates set in the 1971 rate order and the rates that would have been charged if they had been set in accordance with the views expressed in the previous decision for the period between reversal by this court and the effective date of the new rate order." (Independent Voters of Illinois, 117 Ill. 2d at 105, 510 N.E.2d at 858.)

The court remanded the cause to the Commission "with directions to order Bell to provide refunds or credits in accordance with the views expressed [in the opinion]." 117 Ill. 2d at 106, 510 N.E.2d at 858.

On remand to the Commission, IVI and Bell proposed an agreed order providing for a refund of $1,265,597 via credits on customers' bills. Bell and IVI reserved the issue of IVI's entitlement to an award of attorney fees, if any, from the refund pool. IVI thereafter filed a petition for an award of attorney fees.

On July 20, 1988, the Commission entered an order requiring Bell to provide credits to its residence and business local exchange customers in the amount of $1,266,000. The order denied IVI's request for attorney fees and costs on the grounds that the Commission was without authority to award fees and costs, and that such an award was precluded by the supreme court's mandate. On August 17, 1988, the Commission denied motions by IVI for rehearing and for a partial stay of the order of July 20. IVI filed notices of appeal both to this court pursuant to section

appeal, No. 2--88--1275, was consolidated with IVI's direct appeal to this court, No. 2--88--0900.

At the outset, we must determine the proper source of authority to review the order of the Commission denying attorney fees. IVI attempted to secure review of the order both by direct appeal to this court under the current provisions of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 111 2/3, par. 10-201) and by appeal to the circuit court as provided for under the prior version of the Act (Ill. Rev. ...


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