# Opposition Brief — Moenning v. Illinois Commerce Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1015%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2000 - **Citation:** 529 U.S. 1087 ## Text —— Supreme Court, U.S, a FILED {7 )\ fi \<) MAR | *) No. 99-1343 oo CLERK In The ae Supreme Court of the United States ¢ 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 + 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 stow Fee ba Lekoat” % i 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 | ; ‘ aaa EOE ee 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 |