Opposition Brief — Moenning v. Illinois Commerce Commission

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Supreme Court, U.S,

a FILED

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No. 99-1343 oo

CLERK

In The ae

Supreme Court of the United States

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RICHARD C. MOENNING,

Petitioner,

ILLINOIS COMMERCE COMMISSION and

COMMONWEALTH EDISON CO.,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

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RESPONDENT’S BRIEF IN OPPOSITION

*

Paut F. HANZLIK PAMELA B. STROBEL

Counsel of Record General Counsel

Rosert C. FELDMEIER E. GLENN Ripple

Lori A. NICHOLSON Acting Associate General

Hopkins & SUTTER Counsel

Three First National Plaza Commonwealth Edison

Suite 4100 Company

Chicago, Illinois 60602 One First National Plaza

(312) 558-6600 Chicago, Illinois 60603

Attorneys for Respondent

Commonwealth Edison Company

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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STATEMENT PURSUANT TO RULE 29.6

The parent corporation of Respondent Common-

wealth Edison Company is Unicom Corporation, which is

a publicly held company that owns more than 10% of

Commonwealth Edison Company’s stock.

ii

TABLE OF CONTENTS

Page

Statement Pursuant to Rule 29.6................... i

Tebte Of Comets 6. 05s ae thnnsee bee eae ii

Tame of Cited Aateties «hc kics cc cvvsvedeccdscesas iii

Stabraneth a8 We 6 ooo oss kc ee a ee 1

Reasons for Denying the Petition.................. :

I. There Is an Independent and Adequate State-

Law Basis for the Judgment Below That Pre-

vents This Court's TUG 6655 cca cecncien ds 5

II. This Court Has No Jurisdiction Because There

Is No Decision of the Highest State Court

Available for Review in the Proceedings

BOW so ovcsd vivwsene inne 10

III. No Due Process Violation Occurred in Con-

nection with the Commission’s Order....... 13

COMTI. os. 55 oe bo oie eees eee ae

ili

TABLE OF CITED AUTHORITIES

Page

CAsEs:

Adams v. Robertson, 520 U.S. 83 (1997)........... 4,5, 6

Barr v. City of Columbia, 378 U.S. 146 (1964).......... 7

Ford v. Georgia, 498 U.S. 411 (1990)................. 6, 7

Hathorn v. Lovorn, 457 U.S. 255 (1982)................ 6

Hoffman v. Illinois Human Rights Comm'n, 62 III.

App. 3d 85, 379 N.E.2d 42 (ist Dist. 1978)......... 7

Howlett v. Rose, 496 U.S. 356 (1990) .................. 8

Jimmy Swaggart Ministries v. Board of Equalization of

es Rs | |) 6 7

John v. Paullin, 231 U.S. 583 (1913)........... 4,2,

McGaughy v. Illinois Human Rights Comm'n, 165 III.

ee POR PD LESS OD, oss sescccwseceneses 7

Moenning v. Commonwealth Edison Co., 139 Ill. App.

3d 521, 487 N.E.2d 980 (1st Dist. 1985)............. 2

Moenning v. Commonwealth Edison Co., No. 83-0475,

Order dated November 20, 1984................... 2

Moenning v. Commonwealth Edison Co., No. 81-0382,

NE fo OM vs Gibsacaevsswececss ces 2

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

EE GME SSE SRS a eee 8

Newman v. Gates, 204 U.S. 89 (1907)...... ee? Be ae |

People v. Carter, 91 Ill. App. 3d 635, 415 N.E.2d 17

carck er pb aay KP xed tam noe Sa oo 7

Puerto Rico Aqueduct & Sewer Auth. v. United States

Envtl. Protection Agency, 35 F.3d 600 (ist Cir.

INARA SMES ce koa kae > Sedo ak nae's seo 66540008 13

iv

TABLE OF CITED AUTHORITIES - Continued

Page

Weed wo. Webb, 451 US. O93 (1981). wo 6s cence cee cdees 6

Weinberger v. Hynson, Westcott & Dunning, Inc., 412

Fa Ge RU ons e cKERCN Ras a Pe res nee tbak 14

STATUTES AND RULEs:

Se SPs EG Chassncacsavee civ egenseiah ven 5, 10, 13

Pe a OT EE We WR cee vad asekacasdanesnreurees 1

De ee ata bas kc cae idee ends eka caw 1

Be Se EN As hs vance etre de deahweunesae veel eee 1

Cae TAD DE IMO -» caw kge st baesxvacens anes 4, 7, 10

83 Ill. Admin. Code §§ 280.50, 280.60(e)...........--. 2

Supremes Comet Bake BOG. CO) sos kcce cca ecicees 15

Illinois Supreme Court Rule 335 ..................... 7

MISCELLANEOUS:

16B Charles Alan Wright, et al., Federal Practice

WOE PUREE 55 oo dang pon cue Cee tae eaeaeNe 6, 12

STATEMENT OF THE CASE .

Respondent, Commonwealth Edison Company

(“ComEd”), is a “public utility” as that term is defined in

the Illinois Public Utilities Act, 220 ILCS 5/1-101 et seq.

(the “Public Utilities Act” or the “Act”), that provides,

inter alia, electric utility service to customers located in

northern Illinois. Petitioner, Richard C. Moenning

(“Moenning”), is an attorney and is also one of ComEd’s

customers. (Petition for a Writ of Certiorari (the “Peti-

tion”) at 2).

On October 15, 1997, Moenning filed a formal com-

plaint (the “Complaint”) against ComEd with the Illinois

Commerce Commission (the “Commission”), which is

also a respondent here. (App. 1-4). The Commission regu-

lates “public utilities” like ComEd in accordance with the

Illinois Public Utilities Act. 220 ILCS 5/4-101. The Com-

mission has jurisdiction over such complaints pursuant to

section 10-108 of the Act. 220 ILCS 5/10-108.

Moenning alleged in his Complaint that “on or about

June 11, 1997,” ComEd “discontinued service” to his resi-

dence located in Evanston, Illinois. (App. 2). ComEd

“restored service” later on that “same day,” but subse-

quently required Moenning to make a $150 deposit in

order to receive future electric service. (App. 2-3). Moen-

ning alleged in his Complaint that, inter alia, the sections

of the Illinois Administrative Code that permitted ComEd

to require a deposit in these circumstances deprived him

of “property interests without due process of law.” (App.

3).

ComEd moved to dismiss Moenning’s Complaint

(App. 5-12), and stated that Moenning’s electric service

had been disconnected because Moenning “had failed to

pay the amount due on his [ComEd] account.” (App. 7).

ComEd also stated that after Moenning’s service was

restored, it had required that Moenning make a deposit

as a condition of continued service as was provided for in

the Illinois Administrative Code sections duly promul-

gated by the Commission. (App. 8 citing 83 Ill. Admin.

Code §§ 280.50 & 280.60(e)).

ComEd moved to dismiss Moenning’s Complaint

because Moenning previously had raised the same con-

tentions as those raised in the Complaint in two prior

actions against ComEd. In both of those cases, the Com-

mission had found that the Illinois Administrative Code

sections that permitted ComEd to require customer

deposits were consistent with the requirements of due

process. (App. 9 citing Moenning v. Commonwealth Edison

Co., No. 81-0382, Order dated July 7, 1983; Moenning v.

Commonwealth Edison Co., No. 83-0475, Order dated

November 20, 1984). Moenning had also raised the same

claims against another utility after his telephone service

was disconnected. In that case, the Illinois Appellate

Court had rejected Moenning’s claim that similar security

deposit provisions of the Administrative Code violated

due process. (App. 9 citing Moenning v. Illinois Bell Tele-

phone Co., 139 Ill. App. 3d 521, 487 N.E.2d 980 (1st Dist.

1985)).

Moenning responded to ComEd’s Motion to Dismiss

and did not deny that his electric service had been dis-

connected because he had not paid his electric bills. (App.

13-19).

On September 23, 1998, the Commission entered an

Order (the “Order”) granting ComEd’s Motion to Dismiss

and denying Moenning’s Complaint. (Petition, App. 1-7).

The Commission concluded that there were no “outstand-

ing issues of fact” that prevented the granting of

ComEd’s Motion. (Petition, App. 7). The Commission also

rejected Moenning’s due process claim, stating:

The Commission is mindful that Complainant

has filed several complaints before the Commis-

sion in the past. We find that the Orders entered

in those dockets, involve a thorough review of

the same allegations and issues challenging the

regulations governing deposits presented as in

the instant complaint. We find no compelling

evidence presented in this complaint that would

cause us to revisit those issues. We are of the

opinion that the allegations and arguments pre-

sented by Complainant in both his Response to

the Motion to Dismiss as well as his Brief on

Exceptions amount to groundless assertions, are

clearly without merit, and must be rejected.

(Petition, App. 6-7).

Moenning then attempted to appeal the Commis-

sion’s Order through a number of filings with the Com-

mission and the Illinois Appellate Court. On December

18, 1998, he filed a Notice of Appeal with the Commission

Clerk (the “Notice of Appeal”). (App. 20-21). On Decem-

ber 24, 1998, he filed the same Notice of Appeal with the

Appellate Court. (App. 22-25). Then, on January 20, 1998,

Moenning filed a Motion for Leave to Appeal with the

Appellate Court in which he requested leave to file a

Petition for Review “as of December 24, 1998,” a date

almost one month earlier. (App. 26-29). On January 27,

1998, the Appellate Court allowed Moenning to file the

Petition for Review. (Petition, App. 12).

ComEd moved to dismiss Moenning’s appeal

because: 1) Moenning failed to file his Notice of Appeal

with the Appellate Court within five days after serving it

on the Commission as required by § 10-201 of the Public

Utilities Act; 2) Moenning did not file a Petition for

Review with the Appellate Court within the time limits

provided for in the Public Utilities Act or the Illinois

Supreme Court Rules; and 3) Moenning did not name the

Commission as a respondent in the Notice of Appeal as

required by the Illinois Administrative Code. (App.

30-36). The Appellate Court granted ComEd’s Motion and

dismissed Moenning’s appeal over Moenning’s objection.

(Petition, App. 13-14).

Moenning sought review by the Illinois Supreme

Court, which was denied. (Petition, App. 16-18). Moen-

ning now asks this Court to review his case, by writ of

certiorari. In doing so, he claims that the Commission’s

Order was in excess of its “statutory authority” and that

it therefore violated his due process rights. (Petition at

4-6).

REASONS FOR DENYING THE PETITION

There are a number of reasons for denying the Peti-

tion. First, the Illinois Appellate Court’s dismissal of

Moenning’s appeal constitutes an “independent and ade-

quate state-law ground” for the state court’s judgment in

this case that, pursuant to the decisions discussed below,

prevents this Court from reviewing Moenning’s federal

claims. E.g., Adams v. Robertson, 520 U.S. 83,-86 (1997).

Second, Moenning’s own failure to properly perfect his

appeal means that there is no final judgment “rendered

by the highest court in which a decision could be had” in

this case, and that the requirements for this Court's juris-

diction pursuant to 28 U.S.C. § 1257 are not met. And

third, even if this Court were to consider Moenning’s due

process claims regarding the Commission’s Order, the

Petition should still be denied because no due process

violation occurred, and because the Petition identifies no

issues worthy of this Court’s review.

I.

THERE IS AN INDEPENDENT AND ADEQUATE

STATE-LAW BASIS FOR THE JUDGMENT BELOW

THAT PREVENTS THIS COURT’S REVIEW

As an initial matter, this Court should deny the Peti-

tion because there is an independent and adequate state-

law basis for the state court’s judgment in this case that

precludes the review of Moenning’s federal due process

claims.

“With only rare exceptions,” this Court has held that

“in reviewing state court judgments under 28 U.S.C.

§ 1257” (which Moenning is invoking here), it will “not

consider a petitioner’s federal claim unless it was either

addressed by or properly presented to the state court that

rendered the decision” it has been asked to review.

Adams, 520 U.S. at 86. The purpose of this rule is to

promote comity between the state and federal courts

because, as the Court has noted, “ ‘it would be unseemly

in our dual system of government’ to disturb . . . state

court judgments on a federal ground that the state court

did not have occasion to consider.” Adams, 520 U.S. at 90 :

(quoting Webb v. Webb, 451 U.S. 493, 500 (1981)). The rule E

also prevents this Court from issuing advisory opinions |

on federal issues where the outcome of a case turned on a

matter of local law. See generally 16B Charles Alan Wright,

et al., Federal Practice and Procedure § 4021, at 311.

In this case, the Illinois Appellate Court expressly

held that Moenning had not properly perfected his

appeal from the Commission’s Order under Illinois law.

(App. 30-36; Petition, App. 13-14). The imposition of a

state-law procedural bar — such as the dismissal of Moen-

ning’s appeal for his own failure to perfect it - can

prevent a federal issue from being “properly presented”

to the state court and preclude later Supreme Court

review. Ford v. Georgia, 498 U.S. 411, 423-24 (1990); Jimmy

Swaggart Ministries v. Board of Equalization of California,

493 U.S. 378, 398 (1990). The Court has recognized that

“the failure to comply with a state procedural rule may

constitute an independent and adequate state ground

barring our review of a federal question.” Hathorn v.

Lovorn, 457 U.S. 255, 262 (1982) (citations omitted). When

a state-law procedural rule has barred consideration of a

federal claim below, a petitioner seeking review in this

Court “must persuade [the Court] that state procedural

requirements could not serve as an independent and ade-

quate state-law ground for the state court’s judgment. ...

” Adams, 520 U.S. at 87 (citing Hathorn, 457 U.S. at 262-65).

Abt me RRR OMEN

Here, the Appellate Court’s decision that Moenning

had not properly perfected his appeal is an “independent

and adequate state-law” basis for the state court’s judg-

ment. Regardless of the merits of Moenning’s federal

claims (of which, as discussed below, there are none), the

ORE ae ne RES ee

Appellate Court’s dismissal provides an independent

state-law basis why further review in this case is not

available, and why Moenning’s current Petition for

review in this Court should be denied.

Admittedly, this Court will consider whether a state

procedural rule is “strictly or regularly followed” in

determining whether it is an appropriate basis for barring

review of a federal claim. Swaggart, 493 U.S. at 398; Barr v.

City of Columbia, 378 U.S. 146, 149 (1964). That is certainly

the case here. It is well settled under Illinois law that the

procedures for effecting the right to appeal are entirely

statutory and thus must be complied with to invoke

Appellate Court jurisdiction. E.g., People v. Carter, 91 Ill.

App. 3d 635, 638, 415 N.E.2d 17, 19 (1st Dist. 1980) (“the

procedures for effecting th[e] right to appeal are purely

statutory and must be complied with in order to invoke

the Appellate Court jurisdiction”). The Illinois courts reg-

ularly dismiss appeals that fail to comply with state pro-

cedural rules, including appeals that fail to comply with

the Public Utilities Act section and Illinois Supreme Court

Rule at issue here. See, e.g., McGaughy v. Illinois Human

Rights Comm’n, 165 Ill. 2d 1, 15-16, 649 N.E.2d 404, 411-12

(1995) (dismissing appeal for party’s failure to name nec-

essary parties as required by Supreme Court Rule 335);

Hoffman v. Illinois Commerce Comm'n, 62 Ill. App. 3d 85,

87-88, 379 N.E.2d 42, 44 (1st Dist. 1978) (dismissing

appeal for failure to file timely notice of appeal under

precursor to § 10-201 of the Public Utilities Act). This is

not a case where the Illinois courts have resorted to

“novel” procedural requirements to “thwart” Moenning’s

efforts to raise his federal constitutional claims. Ford, 498

U.S. at 423 (citing NAACP v. Alabama ex rel. Patterson, 357

U.S. 449, 457-58 (1958)).

Moenning cites to Howlett v. Rose, 496 U.S. 356, 366 |

(1990), where the Court held that “it is within our prov- |

ince to inquire not only whether [a federal] right was

denied in express terms, but also whether it was denied

in substance and effect, as by putting forward nonfederal

grounds of decision without any fair or substantial sup-

port.” (Petition at 4). However, Moenning ignores the

portion of the Court’s opinion in Howlett that applies

here, which states:

When a state court refuses jurisdiction because

of a neutral state rule regarding the administra-

tion of the courts, we must act with utmost

caution before deciding that it is obligated to

entertain the claim. The requirement that a state

court of competent jurisdiction treat federal law

as the law of the land does not necessarily

include within it a requirement that the State

create a court competent to hear the case in

which the federal claim is presented. The gen-

eral rule, ‘bottomed deeply in belief in the

importance of state control of state judicial pro- |

cedure, is that federal law takes the state courts

as it finds them.’ The States thus have great

latitude to establish the structure and jurisdic-

tion of their own courts. In addition, States may

apply their own neutral procedural rules to fed-

eral claims, unless those rules are pre-empted

by federal law.

Howlett, 496 U.S. at 372 (citations omitted). This case

involves the application of a “neutral state rule regarding

the administration of the courts” that the Howlett Court

correctly observed should not be disturbed. It does not

eS

ee

involve the denial of Moenning’s federal rights by virtue

of the imposition of state procedural rules that are “with-

out any fair or substantial support.” There is no reason to

conclude that the Appellate Court resorted to the state-

law procedural rules concerning the proper perfection of

appeals from the Commission to avoid consideration of

Moenning’s federal claims. Moreover, Moenning does not

(and cannot) claim that the Illinois appellate rules applied

here should be preempted in favor of some alternative

federal rule.

Finally, Moenning attempts to build a case in the

Petition that there was an effort in the Appellate Court to

rely on state procedural grounds to deny the review of

his federal claims. In particular, he claims that this case

raises the “perplexing question of whether [an] agency

(i.e., the Commission) itself ought to control the process

of judicial review.” (Petition at 7). The gist of this argu-

ment appears to be Moenning’s claim that the Commis-

sion somehow controlled the perfection of his appeal.

Moenning claims, for example, that after he filed the

Notice of Appeal with the Commission (App. 20-21), the

appeal went “undocketed” in the Appellate Court “even

as the time for appeal expired.” (Petition at 7).

Moenning’s contentions are incorrect. Moenning -

not the Commission - controlled the perfection of his

appeal in the Appellate Court. The relevant section of the

Public Utilities Act says as much - it states that a party

who has filed a notice of appeal with the Commission

“shall, within 5 days after the service of such notice upon

the Commission, file a copy of the notice . . . with the

clerk of the court to which such appeal is taken, and

thereupon the appellate court shall have jurisdiction over

10

the appeal.” 220 ILCS 5/10-201(a). There is nothing per-

plexing. It was Moenning’s own failure to follow the

requirements of Illinois law that led to the dismissal of

his appeal.

Il.

THIS COURT HAS NO JURISDICTION

BECAUSE THERE IS NO DECISION OF THE

HIGHEST STATE COURT AVAILABLE FOR

REVIEW IN THE PROCEEDINGS BELOW

Under 28 U.S.C. § 1257, this Court’s jurisdiction

extends to the review of “[flinal judgments or decrees

rendered by the highest court of a State in which a

decision could be had” where specified federal rights are

at issue. 28 U.S.C. § 1257(a). Because Moenning did not

properly perfect his appeal from the Commission’s Order,

there is no judgment or decree “rendered by the highest

court of a state in which a decision could be had” at issue

in this case, and the jurisdictional requirements of § 1257

are therefore not satisfied.

Newman v. Gates, 204 U.S. 89 (1907) involved this very

situation. There, review was sought in this Court from an

action litigated in the Indiana state courts that involved

consideration of federal issues. The Indiana Supreme

Court, however, held that the appeal from the trial court

had not been properly perfected and that the appellate

court did not have jurisdiction. This Court thus held that

it did not have jurisdiction to review the federal issues in

the case because, as a result of the improper appeal, there

was no decision from the “highest court where a decision

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11

could be had,” and that the prerequisites of this Court’s

jurisdiction were not met. The Court stated:

Had the appeal been properly taken it would

have been the duty of the Supreme Court of

Indiana to pass upon the questions presented by

the record before it, including, it may be, a

Federal question, based upon the due faith and

credit clause of the Constitution. . . . In legal

effect, however, the case stands as though no appeal

had been prosecuted from the judgment rendered by

the trial court. As the jurisdiction of this court to

review the judgments or decrees of state courts

when a Federal question is presented is limited

to the review of a final judgment or decree,

actually or constructively deciding such ques-

tion, when rendered by the highest court of a

State in which a decision in the suit could be

had, and as for the want of a proper appeal no

final judgment or decree in such court has been

rendered, it results that the statutory prerequi-

site for the exercise in this case of the reviewing

power of this court is wanting.

Newman, 204 U.S. at 95 (emphasis added).

The same result was reached in John v. Paullin, 231

U.S. 583 (1913), where, as in Newman, the state supreme

court had held that a prior appeal was not properly

perfected. Citing to Newman, the Court held that it did

not have jurisdiction to review the federal questions the

case presented, stating:

As the Supreme Court of the State did not pass

upon the merits of the case .. . but, on the

contrary, held that it was powerless to do so

because its appellate jurisdiction was not

invoked in accordance with the laws of the

12

State, we do not perceive any theory upon

which its judgment of dismissal may be

reviewed by us consistently with the familiar

limitations upon our authority. Certainly no

Federal right was denied by that court, and if, as

was held by it, its appellate jurisdiction was not

properly invoked, no Federal question was

before it for decision.

John, 231 U.S. at 585 (citation omitted). Because the deci-

sion below “turned entirely upon a question of local law,”

the court held that the writ of error would be dismissed.

John, 231 U.S. at 587.

Finally, one commentator has described the holdings

of these cases in the following way:

In addition to seeking review by the proper

method, a litigant must comply with the

requirements of state appellate procedure. If the

state’s highest court denies review for failure to

comply with reasonable procedural rules, ‘the

case stands as though no appeal had been pros-

ecuted from the judgment rendered by the trial

court.’ In this setting, the requirement that state

opportunities for appellate relief be exhausted

becomes mingled with the independent state

ground doctrine. Noncompliance with proper

state procedural rules furnishes an independent

and adequate state ground for refusing to con-

sider the federal questions, as not properly pre-

sented to the highest state court.

16B Charles Alan Wright, et al., Federal Practice and Pro-

cedure § 4007, at 133-34 (quoting Newman, 204 U.S. at 223)

(citations omitted).

13,

Newman and John are applicable here. Because Moen-

ning did not properly perfect his appeal below, there is

no judgment in this case “rendered by the highest court

of a state in which a decision could be had....” Asa

result, the requirements of this Court’s jurisdiction pur-

suant to 28 U.S.C. § 1257 have not been met.

Ill.

NO DUE PROCESS VIOLATION OCCURRED IN

CONNECTION WITH THE COMMISSION’S ORDER

Finally, even if this Court were to consider Moen-

ning’s due process claims concerning the Commission’s

Order (which it should not, for the reasons stated above),

the Petition should still be denied. There are no issues

discussed in Moenning’s Petition that suggest that Moen-

ning’s due process rights were violated, or that substan-

tial due process issues exist that warrant review by this

Court.

The gist of Moenning’s due process claim appears to

be that the Commission made its “final decision without

an evidentiary hearing. ... ” (Petition at 5). However,

where, as here, the operative facts are undisputed, due

process does not require the agency to hold an evidenti-

ary hearing before resolving a claim. As one Court has

observed, “[d]ue process simply does not require an

agency to convene an evidentiary hearing when it

appears conclusively from the papers that, on the avail-

able evidence, the case only can be decided one way.”

Puerto Rico Aqueduct & Sewer Auth. v. United States Envtl.

Protection Agency, 35 F.3d 600, 606 (1st Cir. 1994), cert.

14

denied, 513 U.S. 1148, 115 S.Ct. 1096 (1995) (citing Wein-

berger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609,

621 (1973)). Similarly, this Court has recognized that due

process does not require an administrative agency to hold

“a hearing when it appears conclusively from the appli-

cant’s pleadings” submitted to the agency “that the appli-

cation cannot succeed.” Hynson, 412 U.S. at 621.

The rule in these decisions is applicable here. The

facts before the Commission were undisputed — Moen-

ning’s electric service had been disconnected because he

had not paid his bills and he was then required to make a

security deposit as a condition of future service. Based on

these uncontested facts, the Commission concluded that

Moenning’s due process rights had not been violated.

There was no need for a hearing because the few facts at

issue were not in dispute.

Moenning also claims that the Commission

“exceeded its jurisdiction” in denying his Complaint

without holding a hearing. (Petition at 5). This conten-

tion, however, involves the scope of the Commission’s

jurisdiction under the Illinois Public Utilities Act. It was

rejected by the Commission when it issued its Order. The

scope of the Commission’s jurisdiction turns entirely on

an interpretation of an Illinois law and, as such, is not an

appropriate subject for this Court’s review.

Finally, even assuming that Moenning does raise a

valid due process issue in his Petition (which he does

not), the Petition should nonetheless be denied because

Moenning has completely failed to demonstrate that the

issue is worthy of review by this Court. This Court’s

Rules provide that review of state court decisions will be

i ae

extended only in certain circumstances, such as when a

“state court of last resort” has decided “an important

federal question in a way that conflicts with the decision

of another state court of last resort or of a United States

court of appeals” (Supreme Court Rule 10(b)), or where a

state court has decided “an important question of federal

law that has not been, but should be, settled by this

Court.” (Supreme Court Rule 10(c)). Moenning’s Petition

does not demonstrate that the due process issues dis-

cussed therein are of such significance that they are wor-

thy of this Court’s consideration pursuant to the

requirements in the Court’s Rules.

+

16

CONCLUSION

WHEREFORE, for all of the reasons set forth above,

ComEd respectfully contends that Moenning’s Petition

for a Writ of Certiorari should be denied.

Respectfully submitted,

Paut F. HANZLIK

Counsel of Record

Rosert C. FELDMEIER

Lori A. NICHOLSON

Hopkins & SUTTER

Three First National Plaza

Suite 4100

Chicago, Illinois 60602

(312) 558-6600

PAMELA B. STROBEL

General Counsel

E. GLENN Ripple

Acting Associate General Counsel

Commonwealth Edison Company

One First National Plaza

Chicago, Illinois 60603

Attorneys for Commonwealth

Edison Company

EE

App. 1

FORMAL COMPLAINT

Illinois Commerce Commission

527 East Capitol Avenue

Post Office Box 19280

Springfield, Illinois 62794-9280

For Commission Use Only:

Case 97-0528

(Filed Oct. 15, 10:07 a.m. 1997)

Regarding a complaint

by Richard C. Moenning

(Person making the complaint)

against Commonwealth Edison

(Utility name)

as to an additional rate or charge

of $150.00

(Reason for complaint)

in Evanston Illinois.

TO THE ILLINOIS COMMERCE COMMISSION,

SPRINGFIELD, ILLINOIS:

My mailing address is 135 S. LaSalle Street, Suite 3600,

Chicago, Illinois 60603

The service address that I am complaining about is 2210

FOrestview Road, Evanston, Illinois 60201

My home telephone number is [847] 869-3418

Between 8:30 a.m. and 5:00 p.m. weekdays I can be

reached at [312] 263-0062

App. 2

Commonwealth Edison (respondent) is a

(Full name of utility company)

public utility and is subject to the provisions of the Illi-

nois Public Utilities Act.

In the space below, list the specific section of the law,

Commission rule(s), or utility tariffs which you think are

involved with your complaint.

220 ILCS 5/9-101; 83 Illinois Administrative Code Parts

280.50, 280.60, and 280.70

Have you contacted the Consumer Affairs Division of the

Illinois Commerce Commission about this complaint?

X Yes No

Has your complaint filed with that office been closed?

_X_ Yes No

Formal Complaint

1. Complainant has been and is a present customer

of Commonwealth Edison since October 1, 1971, a period

of 25 years, always at 2210 Forestview Road, Evanston,

Illinois.

2. Commonwealth Edison alleges it “discontinued

service on or about June 11, 1997, and restored service the

same day; and, refuses complainant and Commission

access to its records as “confidential.”

3. There is no known or approved provision of

applicable rules and regulations that makes Common-

wealth Edison’s allegations “confidential.”

App. 3

4. Commonwealth Edison demands complainant

pay it an additional sum of money ($150.00) for its “confi-

dential” discontinuance of service. The demand was

made sometime in July or August 1997, and Common-

wealth Edison asserts its right to discontinue service

again unless complainant agrees it has the right to make

any “confidential” discontinuance of service and to exact

an additional rate or charge therefor.

5. The Commission has failed or refused to investi-

gate complainant’s “informal” complaint that Common-

wealth Edison’s records are not confidential, and agrees

Commonwealth Edison can demand additional payment

if its “confidential” records say service was discontinued.

6. The Commission has failed or refused to consider

whether Sections 280.50, 280.60, and 280.70 of 83 Illinois

Administrative Code were and are lawful and provide for

a lawful rate or charge for electrical service that is not

discriminatory given the allegations of Commonwealth

Edison that it lawfully “discontinued” service on or about

June 11, 1997.

7. Sections 280.50, 280.60, and 280.70 are unlawful

and unregulated practices and procedures of Common-

wealth Edison submitted to the Commission in violation

of 220 ILCS 5/9-101 in that such sections provide for

unjust, discriminatory, and unreasonable rates and

charges prohibited and declared unlawful.

8. Sections 280.50, 280.60, and 280.70 are unconstitu-

tional in that such practices and procedures deprive com-

plainant and other public utility customers of their

property interests without due process of law and by

App. 4

systematic and discriminatory classifications, practices

and procedures.

WHEREFORE, Complainant asks the Commission to

declare Commonwealth Edison’s customer or consumer

records are not confidential and must be fully disclosed

to the customer upon request without additions, dele-

tions, or corrections; to award complainant a right of

discovery to examine, copy, and verify computer entry

statements, dates, times, and codes denied by Common-

wealth Edison but relied upon by it to seek to impose an

additional, unreasonable, and discriminatory rate and

charge for electrical service; to temporarily and perma-

nently enjoin enforcement of Sections 280.50, 280.60, and

280.70 as unjust, unreasonable, discriminatory rates, and

charges; and to require Commonwealth Edison to furnish

electrical service to complainant without unjust, unrea-

sonable, and discriminatory rates.

App. 5

STATE OF ILLINOIS

ILLINOIS COMMERCE COMMISSION

RICHARD C. MOENNING,

Formal Complainant

v. : 97-0528

COMMONWEALTH EDISON © °

COMPANY,

Respondent

COMMONWEALTH EDISON COMPANY’S

MEMORANDUM IN SUPPORT OF ITS

MOTION FOR DISMISSAL OF COMPLAINT

(Filed Mar. 23, 12:02 p.m. 1998)

Respondent, COMMONWEALTH EDISON COM-

PANY (“ComEd”), by its attorneys, submits this mem-

orandum which supports its motion to dismiss the

complaint filed against ComEd by Complainant Richard

C. Moenning for failing to state a claim for which relief

can be granted.

INTRODUCTION

Complainant alleges that the Commission’s regula-

tions concerning security deposits, namely Sections

280.50, 280.60, and 280.70, “are unlawful and unregulated

practices and procedures of Commonwealth Edison” and

that such sections are “unconstitutional.” (Complaint,

W1 4, 6, 7, 8). Complainant further alleges that ComEd

treats certain records as “confidential” and refused to

give him access to such records. (Complaint, { 2).

App. 6

Neither of these claims has any merit. Complainant

fails to state a claim for which the Commission can grant

relief under either the Illinois Public Utilities Act (220

ILCS 5/1-101 et seg., as amended) (the “Act”) or the

Commission’s rules and regulations. Nowhere in the

Complaint does he point to any act or omission of ComEd

that violates the law. Moreover, the Commission previ-

ously ruled against Complainant in two different pro-

ceedings involving substantially similar allegations,

finding on both occasions that the Commission’s regula-

tions and orders concerning security deposits were law-

ful. (Moenning v. Commonwealth Edison Company, Docket

No. 81-0382, Order dated July 7, 1983; Moenning v. Com-

monwealth Edison Company, Docket No. 83-0475, Order

dated Nov. 20, 1984). As a result, the Complaint should be

dismissed with prejudice.

ARGUMENT

Section 200.170(c) of the Commission’s regulations

requires that a complaint contain:

[a] plain and concise statement of the nature

of ... the acts or things done or omitted to be

done in violation, or claimed to be in violation,

of any statute, or any order or rule of the Com-

mission.

83 Ill. Admin. Code § 200.170(c); see also 220 ILCS

5/10-108. Complainant has failed to provide any such

statement as to the nature of any alleged violation of a

statute, or an order or rule of the Commission. Indeed,

ComEd fully complied with the Commission’s rules and

App. 7

regulations and the Act in discontinuing Complainant's

electric service.

The Complaint Raises No

Contested Factual Issues

On July 11, 1997, Complainant's electric service was

discontinued, pursuant to 83 Ill. Admin. Code § 280.130,

because Complainant failed to pay the amount due on his

account. The same day, Complainant paid the amount

owed, and his service was reconnected. (See Complaint,

{ 2). Pursuant to the niles and regulations of the Com-

mission, ComEd required Complainant to pay a security

deposit for continued service. (See Complaint, J 4; 83 Ill.

Admin. Code § 280.50, 280.60, and 280.70).

There is no dispute that Complainant’s electric ser- ©

vice was discontinued on June 11, 1997. While the com-

plaint coyly says only that ComEd “alleges” that it

discontinued service on that date (Complaint, { 2), Com-

plainant admitted on the record that his service had in

fact been disconnected. (Transcript from Nov. 13, 1997, at

15).

The Complaint does not allege that Complainant’s

electric service was discontinued in error. Nor does the

Complaint allege that such discontinuance violated the

Act or any Commission regulation. Furthermore, there is

no issue of fact as to whether ComEd demanded a

deposit from Complainant after his service was discon-

tinued. (Complaint, { 4). ComEd does not deny this fact.

App. 8

ComEd’s Request For Deposit

Is Indisputably Legal

The Commission’s regulations and prior orders

unquestionably allow ComEd to request a deposit from

customers who have been disconnected for non-payment.

Section 280.60(e) of the Commission’s regulations states:

A present customer whose service is discon-

tinued becomes an applicant for service subject

to the provisions of Section 280.50 herein for

purposes of reconnection of his/her service.

83 Ill. Admin. Code § 280.60(e). Section 280.50, referenced

above, allows a utility to require a deposit from an appli-

cant for residential service who has previously failed to

pay for past due utility service. 83 Ill. Admin Code

§ 280.50.

Here, Complainant failed to pay for electric service,

and was discontinued as a result. Since he was discon-

nected for nonpayment of his bill, he became a new

applicant for service subject to the payment of a security

deposit as provided in the Commission’s regulations.

Such a deposit is explicitly authorized by the above sec-

tions of the Title 83 of the Illinois Administrative Code.

In addition, despite Complainant’s bald allegations

that Sections 280.50, 280.60, or 280.70 are unlawful, which

allegations are addressed below, the Complaint contains

no claim whatsoever that ComEd in any way violated

these Sections when it requested such a deposit from him

after the discontinuance at issue.

App. 9

Complainant’s Constitutional Claims Are

Meritless And Were Previously Rejected

Complainant claims that the Commission’s regula-

tions governing deposits (Section 280.50, 280.60, and

280.70) are:

unconstitutional in that such practices and pro-

cedures deprive complainant and other utility

customers of their property interests without

due process of law and by systematic and dis-

criminatory classifications, practices and pro-

cedures.

(Complaint, { 8). Complainant has previously filed two

substantially similar complaints against ComEd and

another against Illinois Bell Telephone, which also chal-

lenged the constitutionality of the Commission’s orders

and regulations authorizing security deposits. (See

Docket No. 81-0382, Order dated July 7, 1983 (Attached as

Exhibit A); Docket No. 83-0475, Order dated November

20, 1984 (Attached as Exhibit B); Moenning v. Illinois Bell

Telephone Co., 139 Ill. App. 3d 521, 487 N.E.2d 980 (1985)

(“Illinois Bell”) (Attached as Exhibit C)).

In all three cases, the Commission upheld the utility’s

right to require deposits when a customer has been dis-

continued for non-payment. And, in the Illinois Bell case,

the Illinois Appellate Court upheld the Commission’s

finding that the security deposit requirement and termi-

nation of service did not give rise to a civil rights action

or constitute a due process violation. Illinois Bell, 139 Il.

App. 3d at 527-28, 487 N.E.2d at 982.

Moreover, the Complaint contains no basis as to why

Sections 280.50, 280.60, and 280.70 violate due process or

App. 10

are discriminatory. Nor does the Complaint contain any

facts or explanation that would distinguish this complaintt

from the other cases Complainant previously broughit

before this Commission. As such, this claim fails to state a

claim on which relief can be granted, and should there--

fore be dismissed.

Complainant further claims that Sections 280.50),

280.60, and 280.70 are

unlawful and unregulated practices and pro-

cedures of Commonwealth Edison submitted to

the Commission in violation of 220 ILCS 5/9-101

in that such sections provide for unjust, discrim-

inatory, and unreasonable rates and charges pro-

hibited and declared unlawful.

(Complaint, { 7). Again, the Complaint contains no factss

or any explanation as to how such practices and pro--

cedures are unjust, discriminatory, or unreasonable or im

any other way in violation of the Act.

Moreover, Complainant’s allegation that these regu--

lations are “unlawful and unregulated practices and pro--

cedures of Commonwealth Edison” is nonsensical. The

deposit procedures contained in Sections 280.50, 280.60),

and 280.70 have been properly adopted by the Commis--

sion as part of its rules and regulations and have the fulll

power of law. Both the Commission and the Illinois

Appellate Court have previously upheld these regula--

tions. (See Illinois Bell, 139 Ill. App. 3d 521, 487 N.E.2d

980; Moenning, Docket 81-0382; and Moenning, Dockeit

83-0475). This claim should, therefore, be dismissed.

App. 11

Complainant’s “Confidentiality”

Claim Is Immaterial And Moot

Complainant alleges that ComEd claimed that its

records were “confidential” and that it refuses to give

Complainant access to its records. (Complaint, { 2). This

allegation fails to state a claim for relief. The Complaint is

void of any factual or legal basis upon which ComEd’s

alleged claim of “confidentiality” violates any law or any

Commission regulation. Moreover, in response to discov-

ery requests, ComEd has provided Complainant every

relevant business record that he sought relating to the

discontinuance in question. Because there is no remaining

relief that can be granted to this particular Complainant,

this issue is now moot. Independent Coin Payphone Assoc. v.

Illinois Commerce Commission, 170 Ill. App.3d 958, 960, 524

N.E.2d 980, 981 (1st Dist. 1988).

- CONCLUSION

For all of the foregoing reasons, Commonwealth Edi-

son Company requests that the Illinois Commerce Com-

..mission grant its Motion For Dismissal of Complaint and

enter an order dismissing the Complaint with prejudice.

Dated: March 20, 1998

Respectfully submitted,

COMMONWEALTH EDISON

COMPANY

By: /s/ Karen Kremer Mahoney

One of its attorneys

App. 12

E. Glenn Rippie

Karen Kremer Mahoney

Hopkins & Sutter

Three First National Plaza

Suite 4300

Chicago, Illinois 60602

App. 13

STATE OF ILLINOIS

ILLINOIS COMMERCE COMMISSION

RICHARD C. MOENNING

FORMAL

)

)

)

COMPLAINANT ' 97-0528

V. )

)

)

)

)

COMMONWEALTH

EDISON COMPANY

RESPONDENT

Richard C. Moenning’s Response

In Opposition To Commonwealth Edison’s

Motion For Dismissal Of Complaint

INTRODUCTION

Richard C. Moenning, herein sometimes “Moenning”

or “Complainant”, respectfully makes Response to Com-

monwealth Edison’s (hereinafter sometimes “Edison” or

“Respondent’s”) Motion For Dismissal of Complainant's

Formal Complaint. For the reasons hereinafter made, nei-

ther of the Hearing Examiners assigned to this matter,

nor the Commission has authority to grant the relief

Edison requests. No relief is authorized.

EDISON’S MOTION IS DEFECTIVE

Edison’s motion is directed to Moenning’s formal

complaint. The motion seeks dismissal with prejudice for

failing to state a claim for which relief can be granted.

App. 14

Even though Edison’s motion is directed to the Commis-

sion, the Commission has no authority granted it by

stature from the Legislature to grant the requested relief.

See Sections 200.500 (d) and Section 200.820. Likewise the

Admanistrative Procedure Act, 5 ILCS 100/1-1 et. seq.

contains no authority to allow Edison final disposition of

Moerning’s complaint. For this reason, alone, the Com-

mission is powerless to aid respondent. In Business and

Professional People For the Public Interest v. The Illinois

Comnerce Commission, 136 Ill 2d 192, 243, 555 N.E.2d 693

(1990), the Supreme Court answered Edison’s assertions

of Ccmmission power, stating:

‘An administrative agency is different from a

court because an agency only has the authoriza-

ton given to it by the legislature through the

statutes. Consequently, to the extent an agency

acts outside its statutory authority, it acts with-

cut jurisdiction.”

Agair in Business and Professional People For the Public

Interest v. The Illinois Commerce Commission, 146 Ill 2d 175,

195, £85 N.E.2d 1032 (1991) after repeating the fact that

the Commerce Commission is an administrative agency

whose power is derived from the legislature to make

findirgs of fact, the Court, at page 196, stated:

“Accordingly, our review of the Commission’s

aders is limited to determining whether the

Commission: acted within the scope of its statu-

tery authority,;... ”

Since, respondent’s motion contains no authority to the

contrary, and indeed contains no authority period for its

draconian action, it is sufficient for the Hearing Exam-

iners 0 follow the law given them by the legislature and

App. 15

to keep in focus the duty of the Commerce Commission is

to determine facts; there is no judicial function intended

by the legislature, at least until there are findings of fact.

Thus, Section 200.500 (d) proscribes action by the

hearing Examiners on motions which result in a final

determination. So there is no mistake, Edison asks for

final relief beyond the Commission’s authority or jurisdic-

tion by statute. Pursuant to subsection (f) the hearing

examiner has authority to issue recommendation or pro-

posed orders pursuant to Section 200.820. Yet, that section

requires the Hearing Examiner to make a recommended

or proposed order after the close of evidentiary hear-

ings. There has been no evidentiary hearing and in fact

the thrust of Edison’s submission seeks to avoid an evi-

dentiary hearing.

Edison seems obsessed with the notion that the Com-

mission is a court or has the power of a court. The

Supreme Court has ruled to the contrary. Since the legis-

lature has never given the Commerce Commission or

Edison, a regulated body, authority to dismiss any com-

plaint with prejudice prior to an evidentiary hearing,

Edison’s motion must be denied.

THE FORMAL COMPLAINT

It is vital to this case to remember Moenning’s formal

complaint was only filed after Edison violated Section

280.160, claiming its records were “confidential.” The

Commission allowed Edison to violate Section 280.160

and to demand a deposit in violation of Section 280.60 (e);

the Commission was powerless to order Edison to com-

ply with Section 280.160, including the “duty of hearing,

App. 16

in person, any dispute by an applicant, customer or user.”

In fact, the Commission even endorsed Edison’s violation

stating that if Edison claimed Moenning’s records were

“confidential” then it was so. Moenning was forced to file

this Formal Complaint or yield to Edison’s abuse of statu-

tory authority the Formal Complaint, Moenning stated

the specific statutes Edison violated: 220 ILCS 5/9-101;

and 83 Illinois Administrative Code Parts 280.50, 280.60,

and 280.70. Edison’s motion that “Nowhere in the Com-

plaint does he point to any act or omission of ComEd that

violates the law.” is in error. See Formal Complaint, page

1 and paragraphs 2 through 5. What is novel, if not

remarkable is the argument at page 6 of Edison’s Mem-

orandum that “Complainant’s Confidentiality claim is

immaterial and moot since as a result of the formal com-

plaint Edison now asserts (1) Moenning has failed to

show Edison has a duty of hearing in person any dispute

in person and shall explain the Complainant's account

(Section 280.160); and, (2) even so, Edison has now com-

plied with the rule. The relevant question must be by

what authority does Edison claim “confidentiality” when

no statute, rule, or regulation allows Edison to set up the

claim in the first place. Indeed, when did the legislature

shift the burden of proof to the customer.

The major portion of Edison’s unauthorized and ille-

gal motion concerns its argument regarding its request

for a deposit. Moenning can concede for purposes of

argument only that paragraphs 6, 7, and 8 of the formal

complaint might well be repleaded and made more speci-

fic and precise in nature. Indeed, Edison’s motion reveals

the salient fact in dispute in this matter: whether Edison

terminated Moenning’s service in error and whether its

| <i

a Naa A EE AOE BE

eh ane tht ~<A Ra ES a en IE ON RT IO AION he “a

er 2

App. 17

records fail to disclose Moenning’s telephone call and

stated intent to pay the amount actually paid on June 11,

1997, prior to termination.

To the extent Edison believes the complaint is “coy”

(page 3), it is important to remember the complaint was

filed based upon Edison’s allegations of lawful conduct,

and Moenning’s incomplete knowledge of Edison’s claim

of authority. Moenning indeed intends to file an amended

complaint to address Edison’s concerns, though this is

better done after the Hearing Examiner compels Edison

to comply with discovery. See Motion To Compel Discov-

ery and Other Relief filed contemporaneously with this

Memorandum.

Given the discovery allowed by Edison and the dis-

covery refused by Edison, it borders on unethical conduct

for Edison’s counsel to claim no contested facts in this

matter.

It should be observed that Edison continues to assert

matters not of record in order to avoid an evidentiary

hearing in this case. The fact that Moenning has twice

done legal battle with Edison (Dockets 81-0382 and

83-0475), 17 years ago has no relevant significance other

than perhaps Edison is accustomed to getting its way

without argument, and apparently resents Moenning’s

reluctance to endorse Edison’s abuse of authority. Edison

does not even disclose to the hearing examiners by its

submission that Docket 81-0382 was reversed in the

Appellate Court. See Commission Counsel J.E.Weging’s,

1-14-94, correspondence regarding a stipulation to dis-

miss, executed after Edison had abandoned its abuse of

statutory authority.

App. 18

Moenning believes an amended formal complaint is

required to address Edison’s current abuse of authority

and this Commission’s need to be apprised of the stated

legislative authority for Sections 280.10 et. seq. Thus,

Moenning intends to challenge Edison’s reliance upon

Section 280.60 (e) and its application to residential cus-

tomers since Title 83 Part 280, Sections 280.10 through

280.200 are expressly intended to implement “the Small

Business Utility Deposit Relief Act, 220 ILCS 35 and

Section 8-101 and 8-207 of the Public Utilities Act 220

ILCS 5-8-101 and 8-207. Moenning seeks by an amended

formal complaint to show evidence (facts to be obtained

from Edison when it is required to allow discovery) that

Title 83 Part 280 was never authorized by the Legislature

to apply to residential customers. In this context Moen-

ning’s present allegations contained in paragraphs 6, 7,

and 8 while perhaps inartfull or not sufficiently precise

do not merit dismissal with prejudice. Any person famil-

iar with prior dockets cited by Edison knows in a

moment the citation of matters not of record in this

matter are not authority for dismissal with prejudice.

Indeed, the Commerce Commission is required to

take and consider evidence on the issues that are the

subject of state law; i.e. whether 220 ILCS 5/8-101’s

requirement that all rules and regulations made by a

public utility affecting or pertaining to its charges or

service to the public shall be just and reasonable permits

Edison to claim Moenning’s records of service are confi-

dential; and whether 220 ILCS 5/9-101’s requirement that

all rates or other charges made, demanded or received

. . . for any service rendered or to be rendered shall be

just and reasonable, and whether Edison’s demand that

App. 19

Moennning pay it a deposit for erroneous termination is

prohibited by the statutory requirement: Every unjust or

unreasonable charge made, demanded or received for

such . . . service is hereby prohibited and declared and

unlawful.

CONCLUSION

For the reasons asserted in this memorandum Edi-

son’s Motion For Dismissal must be denied.

RICHARD C. MOENNING

Richard C. Moenning, 47034

135 S. LaSalle Street, Suite 3600

Chicago, Illinois 60603

312-263-0062 (voice)

312-263-0064 (facsimile)

App. 20

APPEAL FROM THE

ILLINOIS COMMERCE COMMISSION

TO

THE ILLINOIS APPELLATE COURT, FIRST DISTRICT

RICHARD C.

MOENNING

FORMAL

)

)

COMPLAINANT ) 97-0528

V. )

)

)

)

COMMONWEALTH

EDISON COMPANY

RESPONDENT

NOTICE OF APPEAL

(Filed Dec. 18, 11:25 a.m. 1998)

Richard C. Moenning, the undersigned “Complain-

ant”, appeals from the decision of the Illinois Commerce

Commission served September 25, 1998, denying his com-

plaint against Commonwealth Edison Company, and the

decision of the Illinois Commerce Commission served

November 20, 1998, denying his verified application for

Rehearing timely filed October 26, 1998, and received by

the Commission, October 27, 1998.

RICHARD C. MOENNING

PROOF OF SERVICE

I, the undersigned lawyer, pursuant to 220 ILCS

5/10-201, the Code of Civil Procedure and the Rules of

the Illinois Supreme Court certify I served the above

App. 21

Notice of Appeal upon the Clerk of the Illinois Commerce

Commission by UPS Next Day Air Private Courier Ser-

vice, December 17, 1998, before the hour of 9:00 P.M.,

prepaid.

Richard C. Moenning, 47034

135 S. LaSalle Street, Suite 3600

Chicago, Illinois 60603

312-263-0062 (voice)

312-263-0064 (facsimile)

Papa edad tA hd

App. 22

APPEAL TO THE APPELLATE COURT OF ILLINOIS

FOR THE FIRST JUDICIAL DISTRICT

FROM THE ILLINOIS COMMERCE COMMISSION

RICHARD C MOENNING

FORMAL

COMPLAINANT

APPELLANT

)

)

) COMMISSION DOCKET

)

)

v. )

)

)

)

)

)

)

97-0528

COMMONWEALTH

EDISON COMPANY

RESPONDENT

APPELLEE

NOTICE OF FILING OF NOTICE OF APPEAL

To Karen Kremer Clerk,

Mahoney Illinois Commerce

Hopkins & Sutter Commission

70 W. Madison 527 E. Capitol Ave

Suite 4100 Springfield, Ill 62794

Chicago II] 60602

Please take notice that Thursday, December 24, 1998,

I caused to be filed the foregoing Notice of Appeal in the

above-entitled cause with the clerk of the Illinois Appel-

late Court, First Judicial District, a copy of which is

served on you.

/s/ Richard C. Moenning

Appellant

App. 23

CERTIFICATE OF SERVICE

I, the undersigned lawyer, certified, I served the fore-

going Notice of Appeal and Notice of Filing by deposi-

ting the same in the U.S. Mail, First Class Postage

Affixed, Addressed to the above named persons Decem-

ber 24, 1998, before 5:00 P.M. at The Loop Postal Station.

/s/ Richard C. Moenning

Lawyer

Richard C. Moenning 47034

Lawyer

135 S. LaSalle St. Suite 3600

Chicago Ill 60603

312 263 0062

App. 24

APPEAL FROM THE ILLINOIS COMMERCE

COMMISSION TO THE ILLINOIS APPELLATE

COURT, FIRST DISTRICT

RICHARD C. MOENNING )

FORMAL COMPLAINANT ) 97-0528

V. )

)

)

COMMONWEALTH EDISON

COMPANY RESPONDENT

NOTICE OF APPEAL

(Filed Dec. 18, 11:25 a.m. 1998)

Richard C. Moenning, the undersigned “Complain-

ant”, appeals from the decision of the Illinois Commerce

Commission served September 25, 1998, denying his com-

plaint against Commonwealth Edison Company, and the

decision of the Illinois Commerce Commission served

November 20, 1998, denying his verified application for

Rehearing timely filed October 26, 1998, and received by

the Commission, October 27, 1998.

RICHARD C. MOENNING

PROOF OF SERVICE

I, the undersigned lawyer, pursuant to 220 ILCS

5/10-201, the Code of Civil Procedure and the Rules of

the Illinois Supreme Court certify I served the above

Notice of Appeal upon the Clerk of the Illinois Commerce

App. 25

Commission by UPS Next Day Air Private Courier Ser-

vice, December 17, 1998, before the hour of 9:00 P.M.,

prepaid.

Richard C. Moenning, 47034

135 S. LaSalle Street, Suite 3600

Chicago, Illinois 60603

| 312-263-0062 (voice)

| 312-263-0064 (facsimile)

.

1

App. 26

99-0232

ILLINOIS APPELLATE COURT

FOR THE FIRST DISTRICT

RICHARD C. MOENNING

Petitioner Petition For Review

V. of Order of the

)

)

)

ILLINOIS COMMERCE y Hlinois Commerce

COMMISSION and Commission

COMMONWEALTH EDISON

COMPANY )

)

Respondents

MOTION FOR LEAVE TO APPEAL

Richard C. Moenning, respectfully moves this Honor-

able Court, pursuant to Rule 303(e) of the Rules of the

Illinois Supreme Court for Leave To Appeal from the

order of the Illinois Commerce Commission served Sep-

tember 25, 1998, denying his complaint against Common-

wealth Edison Company, and the order of the Illinois

Commerce Commission served November 20, 1998, deny-

ing his verified application for Rehearing timely filed

' October 26, 1998, and received by the Commission, Octo-

ber 27, 1998, and in support thereof verily states:

1. Richard C. Moenning (hereinafter sometimes

“Moenning”) is the formal complainant in proceedings

against Commonwealth Edison before the Illinois Com-

merce Commission.

2. The Illinois Commission entered its order served

September 25, 1998, denying his complaint against Com-

monwealth Edison Company. A verified application for

App. 27

Rearing was timely filed October 26, 1998, and this was

denied by the order of the Illinois Commerce Commission

served November 20, 1998,

3. A timely Notice of Appeal was filed December

18, 1998, with the Clerk of the Illinois Commerce Com-

mission, pursuant to 220 ILCS 5/10-201 (Appeal) and on

December 24, 1998, upon receipt of the stamped Notice of

Appeal from the Clerk of the Illinois Commerce Commis-

sion, Moenning complied with that portion of the statute

which states: “The party serving such notice of appeal

shall, within 5 days after the service of such notice upon

the Commission, file a copy of the Notice, with proof of

service, with the Clerk of the Court to which such appeal

is taken, and thereupon the appellate court shall have

jurisdiction over the appeal.”

A me ONY OATH ket w nian

4. On January 11, 1999, certification of a single tran-

script was requested; and, on January 15, 1999, Moenning

was notified by the Clerk of the Illinois Commerce Com-

mission that the Clerk of the Appellate Court had not

assigned a docket number. Upon prompt inquiry, January

19, 1999, Moenning was directed by the Administrative

| Attorney of the Appellate Court to file a Petition For

i Review as provided in Rule 335 of the Rules of the Illinois

Supreme Court and to proceed pursuant to Rule 303(e).

5. The Notice of Appeal, the Notice of Filing of

Notice of Appeal, and an Amended Notice of Filing time

stamped respectively by the Office of the Clerk of the

Illinois Commerce Commission and by the Office of the

Clerk of the Illinois Appellate Court, together with a

proposed Petition For Review, and a $25.00 docketing fee

are attached to this Motion and made a part thereof.

App. 28

7. The explanation for failure to obtain a docket

number in this court, December 24, 1998, and to prepare

and file a Petition For Review to comply with Rule 335, is

that petitioner focused upon compliance with the appar-

ent exclusivity of 220 ILCS 5/10-201 (Appeal) to the

exclusion of Rule 335. Except for application of Rule 335,

petitioner has perfected his appeal from the order of the

Commerce Commission in reliance upon 220 ILCS

5/10-201.

WHEREFORE, petitioner respectfully seeks leave of

the Appellate Court to file a Petition For Review Instanter

as of December 24, 1998, and to proceed with this appeal

in as much as there has been timely compliance with the

applicable statute, and for other and further relief as in

the premises is just and equitable.

RICHARD C. MOENNING

PROOF OF SERVICE

I, the undersigned lawyer, pursuant to 220 ILCS

5/10-201, the Code of Civil Procedure and the Rules of

the Illinois Supreme Court certify I served the above

Motion For Leave To Appeal upon the Clerk of the Illi-

nois Commerce Commission by UPS Next Day Air Pri-

vate Courier Service, January 20, 1999, before the hour of

App. 29

9:00 P.M., prepaid, and upon Commonwealth Edison by

United States first class mail, postage prepaid.

Richard C. Moenning, 47034

135 S. LaSalle Street, Suite 3600

Chicago, Illinois 60603

312-263-0062 (voice)

312-263-0064 (facsimile)

Ra PRES abba Kee ey?

Bh LIE GA AOMGATI DY RR ORR Lie te EMEA

App. 30

No. 99-0232

IN THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

RICHARD C. MOENNING _ )

Complainant-Appellant,

V- ) Petition For Review

ILLINOIS COMMERCE ) of Order of Illinois

COMMISSION and ) Commerce

COMMONWEALTH EDISON ) Commission

COMPANY, } Case No. 97-0528

Respondent-Appellees. )

COMMONWEALTH EDISON COMPANY’S

MOTION TO DISMISS APPEAL

Respondent Commonwealth Edison Company

(“ComEd”), by its attorneys, Hopkins & Sutter, pursuant

to Supreme Court Rule 361, respectfully moves the Illi-

nois Appellate Court, First District to dismiss this appeal

for lack of subject matter jurisdiction and failure to name

the necessary parties. In particular, Appellant failed to

perfect his appeal as required under Section 10-201 of the

Public Utilities Act (“PUA”), 220 ILCS 5/10-201, failed to

filed a timely petition for review under Supreme Court

Rule 335, and failed to name all necessary parties as

required under 83 II]. Admin. Code 200.890(b). In support

of this motion, ComEd states:

ord SRE REE Ure ES

Oe, Ae ae PE ve, ne fe Nt De

App. 31

Procedural Background

1. On October 15, 1997, Mr. Richard C. Moenning

(“Appellant”) filed a complaint against ComEd with the

Illinois Commerce Commission (“Commission”). On Sep-

tember 25, 1998, the Commission entered an order dis-

missing Appellant’s complaint with prejudice for failing

to state a claim. Appellant filed a petition for rehearing

with the Commission which was denied on November 20,

1998.

2. On December 17, 1998, Appellant filed a notice of

appeal with the Commission, failing to name the Com-

mission as a respondent.

3. Seven days later, on December 24, 1998, Appel-

lant filed this notice of appeal with this Court, again

failing to name the Commission as a respondent. Appel-

lant did not serve this notice of appeal on the parties until

December 30, 1998.

4. Because Appellant did not file a petition for

review as required under Supreme Court Rule 335, this

Court did not docket the appeal based on the above

referenced notice of appeal.

5. On January 20, 1998, Appellant filed a petition for

review with this Court. This petition for the first time

named both ComEd and the Commission as respondents.

Appellant Failed To File A Timely

Notice Of Appeal With the Appellate Court

6. Section 10-201 of PUA, 220 ILCS 5/10-201,

requires that any party wishing to appeal a Commission

decision file a notice of appeal with the clerk of the

App. 32

Commission within 35 days of the date that a copy of the

order or decision sought to be reviewed was served upon

the party. 220 ILCS 5/10-201(a). Section 10-201 further

states, in part:

The party serving such notice of appeal shall,

within 5 days after the service of such notice

upon the Commission, file a copy of the notice,

with proof of service, with the clerk of the court

to which such appeal is taken, and thereupon the

appellate court shall have jurisdiction over the

appeal.

220 ILCS 5/10-201(b) (emphasis added).

7. Appellant failed to file a copy of his notice of

appeal within 5 days as required under Section 10-201(b)

of the PUA. He filed his notice of appeal on the Commis-

sion on December 17, 1998, but did not file a copy of such

notice with the appellate court until December 24, 1998,

seven days later. Because he did not comply with Section

10-201 of the PUA, Appellate failed to perfect his appeal

and jurisdiction was not conferred on this Court.

8. It is well-settled that a “court sitting in review of

a decision of the Commission is in the exercise of a

special jurisdiction, and such appeals must be prosecuted

in accordance with the requirements of the Public Util-

ities Act to be legally effective.” Ferndale Heights Utility

Co. v. Illinois Commerce Commission, 112 Ill. App. 3d 175,

178, 445 N.E.2d 334, 337 (1st Dist. 1982).

9. Therefore, this Court does not have jurisdiction

over the appeal and it should be dismissed.

App. 33

Appellant Failed To File A Timely

Petition For Review With the Appellate Court

10. Supreme Court Rule 335 requires that a party

seeking direct review of an order of an administrative

agency shall file a petition for review in the Appellate

Court. Sup. Ct. R. 335(a).

11. Section 10-201 of the PUA requires that a party

seeking review of a Commission decision appeal

“[w]ithin 35 days from the date that a copy of the order

or decision sought to be reviewed was served upon the

party. ...” 220 ILCS 5/10-201(a).

12. The Illinois Supreme Court has held that the

period within which to file a petition for review with the

Appellate Court for direct review of administrative deci-

sions is the deadline set forth for the filing of the notice of

appeal. County of Cook, Cermak Health Services v. Illinois

State Local Labor Relations Board, 144 I1l.2d 326, 331, 579

N.E.2d 866, 869 (1991) (dismissed appeal where petition

for review was filed 32 days after entry of final judgment,

rather than within the 30-day deadline set forth in

Supreme Court Rule 303).

13. Appellant did not file a petition for review

within either the 30-day timeframe set forth in Supreme

Court Rule 303, Sup. Ct. R. 303(a), or the 35-day time

frame specified in Section 10-201 of the PUA, 220 ILCS

5/10-201(a). He did not file a petition for review until

January 20, 1999, 61 days after the final decision was

issued by the Commission.

14. Appellant has failed to demonstrate a reason-

able excuse for failing to file a petition for review on

App. 34 3

time. Appellant’s stated reason for failing to file a peti-

tion for review is essentially that he neglected to look at

the Supreme Court Rules. (Appellant’s Motion for Leave

to Appeal, { 7).

15. Therefore, this Court does not have jurisdiction

over the appeal and it should be dismissed.

Appellant Failed To Name A

Necessary Party In His Notice of Appeal

16. In his notice of appeal filed with both the Com-

mission and the Appellate Court, Appellant failed to

name the Commission as a respondent as required by the

Commission's Rules of Practice.

17. Section 200.890(b) of the Commission’s Rules of

Practice clearly provides:

Notice of appeals under Section 10-201 of the

Public Utilities Act [220 ILCS 5/10-201] shall be

served on all other parties of record. The notice

of appeal filed with the Commission shall be

captioned “(The name of appellant) v. Illinois

Commerce Commission.” In the body of the

notice the appellant shall state the name and

number of the Commission Docket, the order or

orders appealed, but shall otherwise follow the

form established by the Supreme Court Rules.

83 Ill. Admin. Code 200.890(b).

18. In the notice of appeal filed with the Commis-

sion and with the Appellate Court, Appellant failed to

name the Commission as a respondent as required by

Section 200.890(b) of the Commission’s Rules of Practice.

tw Sid Be See bes eer,

Prt. aes

q

4

:

App. 35

19. Appellant has failed to name the Commission as

a respondent in previous appeals involving these same

parties and is on notice of his obligation to do so. In

Moenning v. Commonwealth Edison Company, 134 Ill. App.

3d 468, 481 N.E.2d 36 (1st Dist. 1985), Appellant similarly

failed to name the Commission as a necessary party and

this issue was thoroughly litigated. Because there was no

Commission rule or statute, at that time, requiring the

Commission be named as a respondent in the caption of a

notice an appeal, the court allowed Appellant to amend

the notice of appeal and remanded the cause for further

proceedings. Moenning, 134 Ill. App. 3d at 470, 481 N.E.2d

at 39. However, the Commission’s Rules of Practice have

since been amended to expressly require that the Com-

mission be named in the captioning of a notice of appeal.

83 Ill. Admin. Code, 200.890(b).

20. The Illinois Supreme Court has held that where

the procedural requirements for judicial review of an

administrative decision require that the agency be named

as a party, failure to name the agency within the statutory

time limit for filing the notice of appeal bars the action

for administrate review. Lockett v. Chicago Police Board, 133

Ill.2d 349, 356, 549 N.E.2d 1266, 1269 (1990) (dismissed

appeal where litigant failed to name superintendent of

the Chicago police board as a defendant within 35 days of

the decision being appealed as required under the

Administrative Review Law). See also Hanke v. Department

of Professional Regulation, 296 Il. App. 3d 825, 696 N.E.2d

12 (1st Dist. 1998).

21. Furthermore, Appellant is an attorney certified

to practice law in the State of Illinois. He is not a pro se

App. 36

complainant and has no excuse for failing to follow the

procedural rules of this Court and of the Commission.

WHEREFORE, because Appellant failed to perfect his

appeal under 220 ILCS 5/10-201(b), failed to file a timely

petition for review as required under Supreme Court

Rule 335, and failed to name the Commission as a neces-

sary party as required by 83 Ill. Admin. Code 200.890(b),

Commonwealth Edison Company moves the Appellate

Court, First District to dismiss this appeal.

Respectfully,

/s/ Karen Kremer Mahoney

Attorney for Commonwealth

Edison Company

Dated: March 8, 1999

Paul F. Hanzlik

E. Glenn Rippie

Karen Kremer Mahoney

HOPKINS & SUTTER

Three First National Plaza — Suite 4100

Chicago, Illinois 60602

Telephone 312-558-6600

Facsimile 312-558-3315