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05/28/97 ILLINI CARRIER v. ILLINOIS COMMERCE

May 28, 1997

ILLINI CARRIER, L.P., PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
ILLINOIS COMMERCE COMMISSION, ILLINOIS POWER COMPANY, ILLINOIS HISTORIC PRESERVATION AGENCY, AND THE DEPARTMENT OF AGRICULTURE, DEFENDANTS-APPELLEES, AND ILLINOIS POWER COMPANY AND ILLINOIS COMMERCE COMMISSION, DEFENDANTS AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County. The Honorable Lester D. Foreman, Judge Presiding.

Released for Publication July 21, 1997.

The Honorable Justice Leavitt delivered the opinion of the court. Zwick, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Leavitt

The Honorable Justice LEAVITT delivered the opinion of the court:

This appeal presents an issue of first impression regarding the responsibility of the Illinois Commerce Commission (the Commission) under section 18c-2109 of the Illinois Commercial Transportation Law (the Transportation Law) (625 5/18c-2109 (West 1992)), to render a decision within 90 days of completing oral hearings in a case. The trial judge, presiding under the Administrative Review Law (the Review Law) (735 ILCS 5/3-101 et seq. (West 1994)), held that a Commission order issued after 90 days had passed was void. The judge also made rulings ancillary to this holding. The plaintiff Illini Carrier, L.P. (Carrier), and the defendants, Illinois Power Company (IPC) and the Commission, have each appealed various aspects of these rulings.

The relevant background facts are as follows. Carrier is a limited partnership registered pursuant to the Transportation Law to do business in Illinois as a common carrier of natural gas by pipeline. In October 1988, the Commission issued a certificate of authority permitting Carrier to so operate; however, the Commission limited Carrier's authority to providing natural gas transportation services "to existing industrial and commercial customers other than those currently served by or Union Electric Company on an exclusive basis." Since then, Carrier has constructed a pipeline enabling it to deliver natural gas to Madison and St. Clair Counties in Illinois.

On January 10, 1991, Carrier applied to the Commission for permanent authority under the Transportation Law to transport natural gas to a refinery operated in Hartford, Illinois by the Clark Oil & Refining Company (Clark Oil). Carrier also filed an application for an "interim order" pursuant to section 18c-2108 (625 ILCS 5/18c-2108 (West 1992)), seeking temporary authority to serve Clark Oil. At the time, Clark Oil was an exclusive customer of IPC. On February 6, 1991, the Commission issued an interim order permitting Carrier to service Clark Oil on a temporary basis. Carrier, rather than IPC, has been servicing Clark Oil since February 1991. On February 26, 1991, a hearing examiner conducted a hearing on Carrier's application for permanent authority.

IPC subsequently filed a petition for leave to intervene which was denied by the hearing examiner, and the hearing examiner issued to the Commission a "recommended order" on Carrier's application. IPC then filed an interlocutory appeal to the Commission regarding its right to intervene. The Commission issued a second interim order overturning the denial of IPC's petition to intervene and remanded the case to the hearing examiner to hold additional evidentiary hearings and to develop a complete record in the matter.

The hearing examiner conducted the requisite hearings, and on June 11, 1993, he issued an unsigned document ink-stamped with the term "Hearing Examiner's Proposed Order" (the Proposed Order) finding in favor of Carrier's application for permanent authority to service Clark Oil. Pursuant to section 200.830 of the Commission's Rules of Practice (83 Ill. Adm. Code ยง 200.830 (1993)), IPC filed a brief on exceptions objecting to the Proposed Order. Carrier filed an opposing brief. On July 20, 1993, and again on September 15, 1993, the Commission heard oral argument concerning the Proposed Order. The Commission marked its record "heard and taken" after the second oral argument. Over 10 months later, on July 20, 1994, the Commission issued a decision denying Carrier's application for permanent authority. Carrier timely filed a motion for rehearing, which was denied on October 5, 1994.

On October 17, 1994, Carrier filed a complaint seeking judicial review of the Commission's decision pursuant to the Review Law. Carrier raised numerous substantive issues regarding the Commission's decision; however, the trial judge did not reach those issues. Rather, he addressed solely jurisdictional and procedural issues raised by the complaint: (1) whether the Commission's order was void because it was issued more than 90 days after the close of oral hearings in contravention of section 18c-2109 of the Transportation Law; and (2) whether the Proposed Order granting Carrier's application issued by the hearing examiner became the order of the Commission under section 18c-1203 when the Commission did not issue a decision within 90 days.

The trial judge heard extensive argument on the issues, and on July 20, 1995, he held that the Commission's order was void due to the Commission's failure to decide the case within 90 days and that the Commission had lost jurisdiction over the case. The judge also held, however, that the Proposed Order was not the final order in the case. Instead, the judge stated that the interim order remained in effect. The parties filed motions for rehearing, and, on October 23, 1995, the judge granted the Commission's motion in part, amending his order to reflect that "[the Commission] is entitled to resume consideration of the Interim Order, and if it chooses to do so, may revoke the Interim Order."

Initially, we address the contention by the Commission and IPC, raised in their cross-appeals, that the trial judge should have dismissed Carrier's complaint because Carrier failed to properly issue summons on the defendants in compliance with the Review Law. This issue arises because of the manner in which Carrier filed its action. On August 9, 1994, after the Commission issued its decision denying Carrier's application for permanent authority, but before the order became final, Carrier filed an action in the circuit court against the Commission seeking an injunction barring enforcement of the decision. Carrier served the Commission with summons in conjunction with that filing. Carrier subsequently filed a motion for rehearing before the Commission.

In response to Carrier's complaint, the Commission filed a special and limited appearance in the circuit court and moved to dismiss the injunction action for lack of jurisdiction because Carrier had failed to exhaust administrative remedies. Section 18c-2201(2) of the Transportation Law states that rulings of the Commission are not final and may not be reviewed until all motions for rehearing have been denied by the Commission. Also, IPC moved to intervene in the injunction action and sought leave to file a motion to dismiss on the same grounds. The trial judge deferred ruling on the motions. The Commission then denied Carrier's motion for rehearing in the agency action. Within 35 days, Carrier moved to withdraw its injunction action and to amend its complaint to state a claim under the Review Law, naming as defendants the Commission and IPC. Carrier did not serve summons on the Commission in conjunction with its amended complaint. Carrier served IPC by hand delivering a summons.

The Commission and IPC filed their motions to dismiss, the Commission arguing that it had not been served summons, and IPC arguing that service had not been effected by certified or registered mail, as contemplated by section 3-107 of the Review Law, nor was service in the form provided by Illinois Supreme Court Rule 291 (134 Ill. 2d R. 291). The trial judge denied the defendants' motions to dismiss on the ground that they had ...


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