Second Try Results In Dismissal Of Appeal. Wrong Court Doesn’t Matter. That’s Just Venue.

Strategic Energy asked the Illinois Commerce Commission for authority to act as an alternative retail electrical supplier (ARES). The electrical workers union opposed Strategic, and over Strategic’s objection was allowed to intervene. The Commission ultimately granted Strategic’s application to operate as an ARES. All parties appealed, and moved to dismiss the others’ appeals.

Unhappy with the ruling allowing the union to intervene, Strategic filed a petition for direct review in the Second District Court of Appeals. The union and the Commission moved to dismiss that appeal on the basis that Strategic did not exhaust its administrative remedies. The first time the Second District ruled, it denied the motions to dismiss.

The union and the Commission filed their appeal of the ruling granting Strategic’s application. They filed their appeal in the Fifth District Court of Appeals. The Fifth District clerk transferred those appeals to the Second District, where they were consolidated with Strategic’s appeal. Strategic moved to dismiss them as a nullity, having been filed in the wrong appellate district.


In their appellate briefs, the union and the Commission argued that Strategic’s appeal should be dismissed for failure to exhaust administrative remedies, the same argument the court rejected in the motions to dismiss. Strategic moved to strike the portions of the Union’s and the Commission’s briefs, asserting that the court already decided the question when it denied the motions to dismiss Strategic’s appeal.

The Second District Appellate Court denied Strategic’s motion, stating: “The denial of a motion to dismiss an appeal is not final, and the question of our jurisdiction to hear a case may be revisited at any time before final disposition of the appeal.” So the lesson here is never give up on your motion to dismiss, at least if it’s based on lack of appellate jurisdiction. The court can, and will if it wants to, look at the question more than once.

Strategic took it on the chin again when the court then dismissed its appeal of the ruling that allowed intervention. The Second District agreed with the Commission’s argument that Strategic could not appeal because it prevailed on its application to operate as an ARES. “The appellate forum is not afforded to successful parties who may not agree with the reasons, conclusions, or findings below . . . The union’s intervention did not result in any alteration of the complete relief awarded to Strategic, and we see no reason to depart from this general rule . . .”

Just in case that wasn’t enough, the Second District stated that Strategic’s appeal should be dismissed anyway for failure to exhaust administrative remedies. The court found that Strategic’s failure to file an application for rehearing before the Commission on the issue of intervention was fatal.

There was more for Strategic to endure. Its motion to dismiss the Commission’s and the union’s appeals was denied. Strategic argued that its appeal vested the Second District with appellate jurisdiction, and that the union’s and the Commission’s later appeals filed in the Fifth District therefore were null.

But the Second District rejected Strategic’s argument. The opinion contains a historical review of how the Illinois appellate districts came to comprise “one unitary appellate court.” The court relegated the later appeals in the Fifth District to a venue issue, and stated it was appropriate for the clerk there to transfer to the Second District for consolidation.

This was a tough appeal for Strategic. The court dismissed Strategic’s appeal of the intervention order. Strategic’s separate motion to dismiss the Commission’s and the union’s appeals was denied. And ultimately, the court reversed the Commission’s order that granted Strategic’s application to operate as an alternative electrical supplier. This is a must read for appellate practitioners. You can get the whole opinion, Strategic Energy v. Illinois Commerce Commission, Nos. 2-05-0685, 5-05-0465 (11/29/06), by clicking here.

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