Two Noteworthy Illinois Appellate Cases

Shay Law attorneys were involved in two recent cases on appeal, one decided by the Illinois Supreme Court and the other that is pending before the Illinois Appellate Court, Second District.

A.    In an Opinion issued last fall, the Illinois Supreme Court found an application to the Illinois Commerce Commission (“ICC”) for approval of a proposed new high voltage direct current electric transmission line to be lacking. In Illinois Landowners Alliance, NFP, et al. v. Illinois Commerce Commission, et al., 2017 IL 121302, the Court, in affirming the judgment of the Appellate Court, Third District, held that Rock Island Clean Line, LLC was ineligible for ICC regulatory approval to construct its proposed project and to conduct business as a public utility in this state.  The Court based its holding on its interpretation of the Illinois Public Utilities Act (the “Act”) and, in affirming the Appellate Court, found that Rock Island did not meet the statutory definition of “public utility” (220 ILCS 5/3-105). Specifically, the Court found that Rock Island did not own or control assets in this state as required by the statutory definition. The Court left undisturbed the Appellate Court’s additional finding that Rock Island failed to show that its proposed project would be for a “public use,” an additional requirement under the Act to be classified as a public utility.

Shay Law attorney William Shay and Melissa Schoenbein (formerly with the Firm), along with Michael Reagan of Ottawa, wrote the Supreme Court briefs on behalf of the Illinois Landowners Alliance (“ILA”), a large group of landowners who prevailed in the case.  Mr. Reagan participated in the oral argument before the Court. Shay Law also represented the ILA before the Third District.

B.   The Illinois Appellate Court, Second District, recently heard oral argument and took under advisement an appeal of a decision from the Kane County Circuit Court.  In Muirhead Hui, LLC, et al. v. Forest Preserve District of Kane County, et al., Case No. 2-17-0835, the Plaintiffs filed suit against the Forest Preserve and its attorney for, among other claims, an alleged breach of their fiduciary duties and legal malpractice stemming from the Defendants’ unilateral and unauthorized alteration of deeds to property the Plaintiffs conveyed subject to restrictions that the property be used only for outdoor recreational purposes. After removing the restrictive covenant and re-recording the deeds, without the grantor-Plaintiffs’ knowledge or consent, the Defendants attempted to offer an easement across the property for construction of a high voltage electric transmission line.

The Second District will issue a written decision, which will likely address whether the restrictive covenant gives the Plaintiffs a legally recognized property interest and standing to sue; whether the Forest Preserve, its president, and executive director are protected from liability under the Tort Immunity Act; and whether an attorney owes a non-client a duty of care.

Shay Law attorneys William Shay, John Albers, and Melissa Schoenbein (formerly with the Firm) drafted the appellate briefs on behalf of the Plaintiffs. William Shay argued the case before the Second District on June 13, 2018.

Illinois Appellate Court Stops Controversial Rock Island Clean Line Power Line Project

William Shay recently helped achieve a major legal victory on behalf of a large group of landowners, which should stop the construction across their lands of a proposed new high voltage electric transmission line. On August 10, 2016, the Illinois Appellate Court, Third District, reversed an Order of the Illinois Commerce Commission which had authorized Rock Island Clean Line LLC to construct the transmission line in Illinois. The basis of the Appellate Court opinion is that Rock Island does not possess the attributes of a public utility under the Illinois Public Utilities Act, and therefore is ineligible to receive regulatory approval for the line. Our client, the Illinois Landowners Alliance, consists of over 300 individuals with interests in over 100,000 acres of land in Illinois. The ILA, represented by Shay Law, Ltd., intervened and actively participated in Illinois Commerce Commission Docket 12-0560, opposing Rock Island’s application to the ICC for approval of the project.

Rock Island Clean Line Project; Required State Regulatory Approvals

Rock Island is a subsidiary of recently formed and privately owned Clean Line Energy Partners LLC, based in Houston, Texas. Its project, a direct current transmission line, was proposed to run from O’Brien County in northwest Iowa to Grundy County in northeast Illinois, crossing lands of ILA members. Rock Island needs regulatory approval from both the Illinois Commerce Commission and the Iowa Utilities Board in order to construct the project. Regulatory proceedings in Iowa are pending.

Following testimony, hearings, and briefing in the Illinois regulatory proceeding, the Commerce Commission awarded Rock Island a certificate of public convenience and necessity to construct the Illinois portion of the project on November 25, 2014. The ILA appealed, along with the Illinois Farm Bureau and Commonwealth Edison Company. We prevailed on that appeal.

Third District holds that Rock Island lacks required Public Utility status

In its August 10, 2016 opinion, which can be seen here, the Illinois Appellate Court, Third District, reversed the Illinois Commerce Commission. It found that Rock Island did not satisfy the definition of “public utility” under the Illinois Public Utilities Act for two reasons. First, the Court found that Rock Island did not own any utility assets within the state of Illinois. Secondly, the Court found that Rock Island’s planned sales of capacity on the transmission line to electric generators and other parties was to a limited group of eligible users, and therefore was not for public use. As such, Rock Island is not eligible for, and the ICC lacked authority to issue, a certificate for the project. The ILA, Farm Bureau and ComEd argued that other reasons existed for the Commerce Commission’s Order to be reversed, but the Appellate Court declined to address those arguments once it found that Rock Island failed to satisfy the threshold public utility status requirement.

 

Where does Rock Island go from here?

It has the right to request that the Illinois Supreme Court review the Appellate Court’s opinion, by filing a petition for leave to appeal. The Supreme Court’s decision whether to accept such a request is discretionary, and it accepts only a small minority of such petitions. Even if Rock Island files a petition, and even if the Supreme Court grants the petition and agrees to review the Appellate Court decision, Rock Island will still have to convince the Supreme Court, through briefing and oral argument, that the Appellate Court’s decision should be reversed. Rock Island’s opponents who participated in the appeal, including the ILA, would have the right to participate fully in proceedings before the Supreme Court.