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Strategic Energy, LLC v. Illinois Commerce Commission

November 29, 2006

STRATEGIC ENERGY, LLC, PETITIONER-APPELLANT,
v.
ILLINOIS COMMERCE COMMISSION, RESPONDENT-APPELLEE
(LOCAL UNION NOS. 15, 51, AND 702, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, INTERVENORS-APPELLEES).
STRATEGIC ENERGY, LLC, PETITIONER-APPELLEE,
v.
ILLINOIS COMMERCE COMMISSION, RESPONDENT-APPELLEE
(LOCAL UNION NOS. 15, 51, AND 702, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, INTERVENORS-APPELLANTS.)



Petition for Review of Order of the Illinois Commerce Commission ICC Docket Nos. 04-0811 & 04-0811.

The opinion of the court was delivered by: Justice Kapala

Petitioner, Strategic Energy, LLC (Strategic), appeals from an order of the Illinois Commerce Commission (Commission) granting Locals 15, 51, and 702 of the International Brotherhood of Electrical Workers (union) leave to intervene in Strategic's application for a certificate of service authority to operate as an alternative retail electrical supplier (ARES). The union appeals from the Commission's orders granting Strategic's application and issuing a certificate of service authority. For the reasons that follow, we dismiss Strategic's appeal, and on the union's appeal, we reverse the Commission's orders.

FACTS

1. Proceedings Before the Commission

Strategic, a Delaware corporation licensed to do business in Illinois, is a supplier of retail electricity to nonresidential consumers. It is headquartered in Pittsburgh, Pennsylvania. The union represents union electrical utility workers. On December 29, 2004, Strategic filed an application for a certificate of service authority to operate as an ARES under section 16--115 of the Public Utilities Act (Act) (220 ILCS 5/16--115 (West 2004)) to provide retail electricity to Illinois's nonresidential retail customers with annual electrical consumption greater than 15,000 kilowatt-hours (kWh) in the Commonwealth Edison (ComEd) and Illinois Power (IP)*fn1 service territories in the State of Illinois. Strategic is majority owned by Great Plains Energy, Incorporated, a regulated public utility holding company that also owns Kansas City Power and Light (KCP&L), which is an integrated, regulated electric utility that supplies electricity to customers in Missouri and Kansas. According to Strategic's filings before the Commission, it does not purchase electricity from KCP&L. On January 6, 2005, Strategic published notice of its filing for a certificate of service authority in the newspaper officially designated by the state for this purpose.

An alternative retail electric supplier is:

"[E]very person, cooperative, corporation, municipal corporation, company, association, joint stock company or association, firm, partnership, individual, or other entity, their lessees, trustees, or receivers appointed by any court whatsoever, that offers electric power or energy for sale, lease or in exchange for other value received to one or more retail customers, or that engages in the delivery or furnishing of electric power or energy to such retail customers, and shall include, without limitation, resellers, aggregators and power marketers ***." 220 ILCS 5/16--102 (West 2004).

In order for the Commission to grant Strategic a certificate of service authority to operate as an ARES, it must make findings that Strategic has demonstrated that it meets the requirements of section 16--115(d). 220 ILCS 5/16--115(d) (West 2004).

The union filed a petition to intervene on January 27, 2005. In its petition to intervene, the union argued its reasons for intervention as well as its reasons for opposing Strategic's application. The next day, January 28, 2005, the administrative law judge (ALJ) filed his proposed order granting Strategic's application, but with conditions. The order was silent with respect to the union's petition to intervene. The order recited that briefs on exceptions were due February 2, 2005. See 83 Ill. Adm. Code §200.830 (1996) (any party may file exceptions to statements, findings of fact, or rulings of law made by the ALJ in the proposed order in a "brief on exceptions"). On that date, Strategic filed exceptions to the ALJ's proposed order. Strategic also filed a verified objection and motion to strike the union's petition to intervene. The union, although permitted to do so by the rules, did not file exceptions to the ALJ's proposed order.

In a written order on February 7, 2005, the ALJ denied the union's petition to intervene. In its review of the ALJ's proposed order, on February 8, 2005, the Commission, in a written order, granted Strategic's application in full, without the conditions proposed by the ALJ. The union's petition to intervene was not before the Commission when it entered its February 8, 2005, order. Then on February 24, 2005, the union filed with the Commission an application for rehearing of the order granting Strategic's application, and it also requested the Commission to review the ALJ's denial of its petition to intervene. On March 9, 2005, the Commission granted both the union's application for rehearing and its petition to intervene. The matter was referred back to the ALJ for rehearing of Strategic's application, and on June 13, 2005, the ALJ entered a proposed order on rehearing in which he ordered that the Commission's February 8, 2005, order granting Strategic's application should remain in full force and effect. On July 13, 2005, the Commission entered its order on rehearing in which it reaffirmed its decision to allow Strategic's application, and it declined to change its order allowing the union to intervene.

2. Proceedings in the Appellate Court

On July 14, 2005, Strategic filed in this court its petition for direct review (notice of appeal) from the Commission's July 13 order. On appeal, Strategic challenges that part of the order that allowed the union to intervene. The union and the Commission filed motions to dismiss Strategic's appeal on the basis that Strategic did not file an application for rehearing of the July 13 order and so did not exhaust its administrative remedies. Meanwhile, the union filed its timely appeal in the Fifth District of the Appellate Court on August 15, 2005. On September 21, 2005, before briefs were filed, this court denied the motions to dismiss Strategic's appeal. The clerk of the Fifth District Appellate Court then transferred the union's appeal to this court, and on November 16, 2005, this court consolidated the union's appeal with Strategic's appeal.

ANALYSIS

1. Motions Taken With the Case

Before we entertain the merits of these appeals, we must dispose of several motions we ordered taken with the case.

A. Strategic's Motion to Strike Portions of the Union's and the Commission's Briefs

Strategic moves to strike those portions of the union's and the Commission's briefs that argue that, because Strategic did not exhaust its administrative remedies, this court lacks jurisdiction over Strategic's appeal. Strategic claims that this court finally disposed of that argument when we denied the motions to dismiss the appeal on September 21, 2005, and that this court may not revisit that order. Strategic is mistaken. The denial of a motion to dismiss an appeal is not final, and the question of our jurisdiction to hear a case may be revisited at any time before final disposition of the appeal. In re C.J., 325 Ill. App. 3d 502, 503-04 (2001). We address the argument that Strategic failed to exhaust its administrative remedies below in section 1D of this opinion. Accordingly, we deny the motion to strike those portions of the appellees' briefs.

B. Strategic's Motion To Strike the Union's Response to Strategic's Motion to Dismiss the Union's Appeal

Strategic also moves to strike the union's response to Strategic's motion to dismiss the union's appeal. Strategic contends that the union's response was not timely filed. Supreme Court Rule 361(b)(2) (Official Reports Advance Sheet No. 22 (October 26, 2005), R. 361(b)(2), eff. January 1, 2006) provides that a response to a motion be filed within 10 days after mailing of the motion, if service is by mail. According to Strategic's certificate of service, it mailed the motion to dismiss the union's appeal on October 27, 2005. The union's response was mailed on November 10, 2005, and was file stamped by the clerk of the appellate court on November 14, 2005. Thus, Strategic is correct that the union's response was untimely. Accordingly, we grant Strategic's motion to strike it.

Strategic further claims that the second part of the union's response contains a reply to Strategic's arguments in opposition to the union's motion to consolidate the appeals. Strategic contends that the union did not have leave of court to file that reply. See Official Reports Advance Sheet No. 22 (October 26, 2005), R. 361(b)(2), eff. January 1, 2006 ("Except by order of court, replies to responses will not be allowed"). Having stricken the response as untimely, we take no position on whether the union's argument constitutes a reply.

C. Strategic's Motion to Dismiss the Union's Appeal

Strategic's final motion is to dismiss the union's appeal. Strategic cites section 10--201(a) of the Act, which provides that a party affected by the Commission's order or decision may appeal to "the appellate court of the judicial district in which the subject matter of the hearing is situated." 220 ILCS 5/10--201 (West 2004). In the event that the subject matter of the hearing is situated in more than one district, then the order or decision may be appealed to any one of such districts. This section further provides:

"The court first acquiring jurisdiction of any appeal from any rule, regulation, order or decision shall have and retain jurisdiction of such appeal and of all further appeals from the same rule, regulation, order or decision until such appeal is ...


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