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Village of McCook v. Illinois Bell Telephone Co.

November 7, 2002

VILLAGE OF MCCOOK, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLEE,
v.
ILLINOIS BELL TELEPHONE COMPANY, D/B/A AMERITECH ILLINOIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Thomas P. Durkin, Judge Presiding.

The opinion of the court was delivered by: Justice Hartman

Defendant, Illinois Bell Telephone Company, d/b/a Ameritech Illinois, seeks reversal of the circuit court's order denying its motion to dismiss the complaint filed by plaintiff, Village of McCook, a municipal corporation, for lack of standing. Plaintiff brought suit on behalf of itself and all other Illinois municipalities and other units of government which, during the period of May 1993 through the present, sustained damages by reason of defendant's failure to collect and remit to plaintiff and the putative class full surcharge amounts allegedly due under the Illinois Emergency Telephone System Act (the Act) (50 ILCS 750/0.01 et seq. (West 2000)).

On June 14, 2001, this court denied defendant's application for leave to appeal the circuit court's order under Supreme Court Rule 308 (155 Ill. 2d R. 308 (Rule 308)), accompanied by a certified question. On October 3, 2001, the supreme court denied defendant's petition for leave to appeal, but entered a supervisory order directing this court to "accept this case for a determination as to the certified question." Leave to appeal pursuant to Rule 308 was granted on November 9, 2001. The certified question is as follows:

"Whether the Village of McCook is authorized, empowered or has standing under the [Act] to bring an action for enforcement or for a violation of sections 15.3(f) and (g) of the [Act], or whether the [Act] empowers and authorizes only the Attorney General of the State of Illinois to bring such an action. If McCook is not so authorized, whether the claims McCook asserted are an impermissible attempt to enforce the [Act]."

Emergency communication service 9-1-1 is provided to units of local government by telecommunications carriers, such as defendant, for a fee based upon the number of exchange access lines in the municipality. In order to pay for 9-1-1 services, the Act authorizes units of local government to impose by ordinance a monthly surcharge on billed subscribers or customers of the telecommunications carrier's services. 50 ILCS 750/15.3(a) (West 2000). The surcharge, which is collected by the telecommunications carrier as a separately stated item on the customer's bill (50 ILCS 750/15.3(f) (West 2000) (section 15.3(f))), and then paid to the municipality, less a 3% commission for the telecommunications carrier (50 ILCS 750/15.3(g) (West 2000) (section 15.3(g))), applies to "in service network connections" located within the municipality (50 ILCS 750/15.3(b) (West 2000)).

Plaintiff in its first amended complaint alleged that in 1992, it adopted an ordinance pursuant to section 15.3 of the Act (50 ILCS 750/15.3 (West 2000) (section 15.3)), imposing a monthly surcharge of $.85 per network connection. In March 1993, defendant began surcharge collection as required by sections 15.3(f) and (g). On May 25, 1993, plaintiff and defendant entered into a written agreement (the Agreement) pursuant to which defendant agreed to provide plaintiff with 9-1-1 telephone service in exchange for a monthly fee, based on the number of exchange access lines in the municipality. On June 4, 1993, plaintiff notified defendant that the 9-1-1 surcharge amounts it had collected were below the anticipated revenues based upon the number of exchange access lines, including Centrex and PBX lines, located within plaintiff's boundaries. *fn1 Plaintiff contends that since 1993, defendant has collected 9-1-1 surcharge amounts in a manner inconsistent with the Act's definition of network connection, thereby breaching its contractual and fiduciary duties to plaintiff and the class. Plaintiff maintains that the surcharge revenues collected by defendant were computed using a ratio-based discount that failed to charge subscribers for each individual PBX and Centrex telephone line they possessed. *fn2

Count I of plaintiff's complaint sought an accounting and a mandatory injunction "directing defendant to begin collecting plaintiff's and the [c]lass's surcharge revenues based upon the total number of plaintiff's and the [c]lass's telephone access lines located respectively within each municipality's boundaries." Count II stated a claim for breach of contract, alleging that defendant "breached its duties under the contract and simultaneously its duties under the [Act] when it failed to collect and remit full and proper surcharges to plaintiff and the [c]lass in accordance with the [Act's] definition of the term 'network connection.'" Count III alleged a breach of statutory duty. Count IV, which claimed a cause of action for breach of fiduciary duty, alleged that defendant "breached its fiduciary duty to plaintiff and the [c]lass by collecting and remitting 9-1-1 surcharge amounts based upon less than half the number of telephone access lines, including Centrex and PBX lines, located within the boundaries of plaintiff and each Class member, respectively."

On February 5, 2001, the circuit court denied defendant's section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 2000) (section 2-619)), which had sought dismissal of the cause based upon plaintiff's lack of authority or capacity to sue defendant for violations of the Act. *fn3 The court stated that it "did not read the Act to confer enforcement authority only with the Attorney General." The court further found that plaintiff was seeking damages for breach of contract.

The circuit court certified the question of law concerning standing under the Act following its denial of defendant's section 2-619 motion to dismiss. The standard of review on appeal therefore, is de novo. Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 713 N.E.2d 543 (1999).

I.

The first part of the certified question is whether plaintiff has standing under the Act to bring an action for enforcement or a violation of sections 15.3(f) and (g). Defendant makes several arguments in support of its contention that plaintiff lacks standing to bring such an action. *fn4

First, defendant argues that the provisions of the Act demonstrate the legislature's intent that only the Attorney General can enforce compliance with the Act. In interpreting a statute, the court must ascertain and give effect to the intent of the legislature. Board of Education of Rockford School District No. 205 v. Illinois Educational Labor Relations Board, 165 Ill. 2d 80, 649 N.E.2d 369 (1995). The language of the statute provides the best evidence of that intent. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 561 N.E.2d 656 (1990). Statutes should be evaluated in their entireties and each provision should be construed in connection with every other section. Newland v. Budget Rent-A-Car Systems, Inc., 319 Ill. App. 3d 453, 744 N.E.2d 902 (2001).

Sections 12 and 15.1 of the Act (50 ILCS 750/12, 15.1 (West 2000)), clearly demonstrate the legislature's intent that only the Attorney General would enforce compliance with the Act. Section 12, the general enforcement provision, provides that "[t]he Attorney General may, in behalf of the Commission or on his own initiative, commence judicial proceedings to enforce compliance by any public agency or public utility providing telephone service with this Act." 50 ILCS 750/12 (West 2000). Section 15.1, the governmental immunity provision, expressly states that "[t]his Section may not be offered as a defense in any judicial proceeding brought by the Attorney General under Section 12 to compel compliance with this Act." 50 ILCS 750/15.1 (West 2000) (section 15.1).

Pointing to section 15.1, as well as, sections 15.5 and 15.6 of the Act (50 ILCS 750/15.5, 15.6 (West 2000) (section 15.5, 15.6)), plaintiff responds that the Act contemplates private lawsuits. Section 15.1 provides that no local government or any of its officers, agents, or employees shall be liable for civil damages resulting from any act or omission in connection with operating a 9-1-1 system, except for wilful and wanton misconduct. Sections 15.5 and 15.6, which require that providers of private or business switch services provide all end-users with 9-1-1 services of uniform quality, expressly prescribe for a private right of action: "[n]othing in this Section shall be construed to preclude the Attorney General on behalf of the Commission or on his or ...


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