Chicago Area Recycling Group v. Illinois Commerce Commission

• Decision Date: 27 March 1978
• Docket Number: No. 76-1631,76-1631
• Citation: 16 Ill.Dec. 233,374 N.E.2d 1008,58 Ill.App.3d 769
• Parties: , 16 Ill.Dec. 233 CHICAGO AREA RECYCLING GROUP, Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1008

374 N.E.2d 1008

58 Ill.App.3d 769, 16 Ill.Dec. 233

CHICAGO AREA RECYCLING GROUP, Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellee.

No. 76-1631.

Appellate Court of Illinois, First District, First Division.

March 27, 1978.

James U. Hamersley, Alexandria, Va., Howard Elliott Kilberg, Chicago, for plaintiff-appellant.

William J. Scott, Atty. Gen. of Ill., Hercules F. Bolos, Rodney C. Howard, Mary C. Ubatuba, Asst. Attys. Gen., Chicago, for Illinois Comm. Commission.

Joseph M. Wells, Paul E. Goldstein, James Hinchliff and Freddi L. Greenberg, Chicago, for Peoples Gas.

McGLOON, Justice.

Intervenor Peoples Gas, Light, and Coke Company filed a rate increase with defendant Illinois Commerce Commission. The Commission determined that hearings concerning the propriety and reasonableness of the proposed rate increase were appropriate and allowed plaintiff Chicago Area Recycling Group to intervene. Plaintiff Chicago Area Recycling Group is an unincorporated association. After full hearings, the proposed rate increase was granted. Plaintiff Chicago Area Recycling filed an application for rehearing, alleging that the Commerce Commission applied the wrong standards in determining whether the rate increase was justified. Also alleged was that intervenor Peoples Gas made statements before the Federal Power Commission that contradicted statements made before defendant Illinois Commerce Commission, indicating that rates were too low. The application for rehearing was denied and plaintiff appealed to the circuit court of Cook County. Thereafter intervenor Peoples Gas successfully petitioned to intervene. Intervenor Peoples Gas subsequently filed a motion to dismiss on the grounds that as an unincorporated association, plaintiff Chicago Area Recycling Group lacked standing to appeal an order of the Illinois Commerce Commission. The motion was granted and plaintiff appeals.

We reverse and remand with directions.

The facts are not disputed. On February 2, 1975, intervenor Peoples Gas, Light, and Coke Company, (hereinafter referred to as Peoples) filed for a rate increase with defendant Illinois Commerce Commission, (hereinafter referred to as the Commission). The rates were to become effective on March 15, 1975. In the interim, the Commission determined that hearings concerning the propriety and reasonableness of the proposed rate increase should be held. Plaintiff Chicago Area Recycling Group, an unincorporated association, was allowed to intervene and thereafter, participated in the hearings. The purpose of Peoples' proposed rate increase was to increase rates for 637 of its off-peak and interruptible service customers.

On July 24, 1975, the Commission granted Peoples' proposed rate increase. Within the time for filing, plaintiff filed an application for rehearing. The petition was primarily based on newly discovered evidence that came into plaintiff's possession. Specifically, the new evidence consisted of a document entitled "Comments of the Peoples Gas, Light, and Coke Company Opposing Proposed Rulemaking for the Federal Power Commission." The document was dated June 9, 1975 and contained statements by Peoples that plaintiff felt were contrary to the position taken by Peoples during the Commerce Commission hearings. During the Commerce Commission hearings, Peoples based their request for a rate increase on the premise that rates for off-peak consumers were too low, while in its document before the Federal Power Commission it stated:

"Peoples has very little low priority industrial usage and none of it is low priced." (Emphasis Added.)

Plaintiff argued that the quoted language indicates that Peoples did not really believe that a rate increase was justified and that the result of this and other misstatements led the Commerce Commission to believe that off-peak rates were too low. Consequently, plaintiff argued that the Commission should grant a rehearing in order to consider the alleged contradictions.

Plaintiff's application for rehearing also alleged that the Commission misapplied the criteria used for determining whether a rate increase is justified, the standard being enunciated in Produce Terminal Corp. v. Illinois Commerce Comm. (1953), 414 Ill. 582, 112 N.E.2d 141.

When the Commission denied plaintiff's application for rehearing, plaintiff appealed to the circuit court of Cook County. Peoples intervened and filed a motion to dismiss. The motion was denied. Peoples filed a second motion to dismiss, arguing that as an unincorporated association, plaintiff lacked standing to appeal an order of the Illinois Commerce Commission unless all members of said association were joined as parties. This motion was granted.

On appeal, plaintiff argues that the trial court erroneously found that they lacked standing to appeal an order of the Commission, inasmuch as they actively participated in the hearings before that body.

We agree. Section 72 of the Public Utility Act (Ill.Rev.Stat.1975, ch. 1112/3, par. 72) states in relevant part that:

"(W)ithin 30 days after service of any order or decision of the Commission refusing an application for a rehearing of any order * * * of the Commission, any person or corporation affected by such order * * * may appeal to the Circuit Court of the county in which the subject matter of the hearing is situated."

The quoted section has been interpreted to include unincorporated associations that participated in the hearings before the Commission. In Illinois Telephone Ass'n v. Illinois Commerce Comm. (1977), 67 Ill.2d 15, 7 Ill.Dec. 76, 364 N.E.2d 63, an unincorporated association of telephone utilities attempted to appeal an order of the Commission to the circuit court of Sangamon County. Appealed was the Commission's denial of the Association's application for rehearing. The Commission moved to dismiss the appeal, asserting that the Association failed to perfect its appeal, was not a "person or corporation" affected by the order, and was therefore without standing to appeal. The circuit court denied the motion and reversed the order of the Commission.

The Commission appealed the denial of the motion to dismiss. Reversing, the appellate court held that an unincorporated association could sue or be sued in its own name only if all of its members were joined as parties. (38 Ill.App.3d 740, 348 N.E.2d 490.) Since this was not the case, the court concluded that the Association was without standing to appeal the order of the Commission.

The Illinois Supreme Court reversed the appellate court and held that the Association had standing to perfect an appeal because it had participated in the Commission hearings and was accorded all of the panoplies of the adversary process. The Court stated:

"Here the Illinois Commerce Commission not only allowed the Illinois Telephone Association to be heard but allowed it to intervene and accorded it party status in the proceedings. As such, it had the right to examine and cross-examine witnesses, to submit evidence, to file exceptions to the findings of the Commission, and to make applications for rehearing and reconsideration. However, the Commerce Commission urges it did not have the right to seek judicial review in the circuit court of an adverse ruling. It would seem that to allow an intervenor the status of party and to accord it all the panoplies of the adversary process but to deny it the statutory right of appeal requires a great leap of the imagination to satisfy the fundamentals of simple fairness." (Emphasis supplied.)

67 Ill.2d at 22-23, 7 Ill.Dec. at 78, 364 N.E.2d at 65-66.

We therefore conclude that plaintiff had standing to appeal the order of the Commission denying its motion for rehearing. As in...