Two Noteworthy Illinois Appellate Cases

Shay Phillips 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 Phillips attorneys William Shay and Melissa Schoenbein, 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 Phillips 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 Phillips attorneys William Shay, John Albers, and Melissa Schoenbein drafted the appellate briefs on behalf of the Plaintiffs. William Shay argued the case before the Second District on June 13, 2018.