An Illinois appeals court will be asked to decide whether class action lawsuits can continue against ComEd on behalf of Illinois customers who say they have been overcharged for electricity because ComEd allegedly bribed former state House Speaker Michael Madigan to push through two laws allowing the utility to jack up its rates.
On Jan. 21, attorneys leading the consolidated class actions filed a notice of appeal in Cook County Circuit Court, as they seek to overturn rulings from Cook County Judge Cecelia Horan, denying them the opportunity to pursue potentially hundreds of millions of dollars they say ComEd wrongly gained from electricity customers in an alleged pay-to-play scheme with Madigan’s political operation.
Just before Christmas, Horan had granted a motion from ComEd to dismiss the class actions. Horan then followed that up with an order on Jan. 21 denying the plaintiffs’ request to reconsider that earlier ruling.
Stephan Blandin
| Romanucci & Blandin
In her rulings, Horan both times determined she could not allow the lawsuits to continue, because, to do so, would leave the courts in the position of improperly reviewing the reasons behind the passage of duly enacted laws that do not, in and of themselves, run afoul of either the U.S. or state constitutions.
“Plaintiffs must plead and prove facts supporting their claim that the legislation was ‘illegally obtained,’ and they cannot do that without asking the Court to scrutinize the legislative process giving rise to the legislation,” Horan wrote in an opinion she filed on Dec. 23.
To do so, she said, would violate the “constitutional separation of powers principle” established in prior U.S. Supreme Court rulings, beginning with the 1810 decision known as Fletcher v Peck.
In arguing for reconsideration, the plaintiffs argued Horan misapprehended their allegations.
They said they are not calling into question the votes of the entire Illinois General Assembly. Rather, they said their complaint was focused solely on the conduct of Madigan, whose immense power as Speaker determined when the “legislative process” could actually begin.
“It would be unreasonable for a court to accept Madigan’s corrupt and pecuniary motive to receive bribes as a legislative motive – it was a criminal motive,” the plaintiffs wrote in their motion to reconsider, filed Dec. 30.
“It would further be unreasonable for a court to accept Madigan’s conduct as legislative process – it was criminal process.”
Horan, however, maintained her position in rejecting the motion to reconsider on Jan. 21, prompting the appeal.
The lawsuits have been pending since the summer of 2020. They were filed in the wake of indictments handed down by federal prosecutors against ComEd, as well as some of the electrical utility’s executives and prominent members of Madigan’s political organization.
Those charges allege a long-running pay-for-play bribery scheme, accusing ComEd of agreeing to give patronage jobs and contracts and other favors to associates of Madigan in exchange for efforts by the then-powerful House Speaker to steer legislation favorable to ComEd through the state legislature. Those laws have allowed ComEd to rake in hundreds of millions of dollars, if not billions, more from rate payers than it would have before the new legislation became law, federal prosecutors have asserted.
Madigan has not been indicted. He stepped down from the House Speaker’s chair when he lost the support of the Democrats in the Illinois State House. He then resigned his legislative seat in early 2021.
In the lawsuits, the plaintiffs asserted ComEd should be forced to refund much of that money to its Illinois consumers, because they were the result of illegal actions.
However, lawsuits against ComEd, filed in both Cook County and federal courts, have struggled to gain traction.
In short, judges have ruled the laws may have been the result of ComEd’s alleged bribes to Madigan. But, under the separation of powers doctrine, that is not enough to allow courts to invalidate the laws, or to order ComEd to pay back the rate increases authorized by the state as a result.
Plaintiffs are represented in the Cook County cases by attorneys Stephan D. Blandin and Adam J. Levitt, and others with the Chicago firms of Romanucci & Blandin; DiCello Levitt Gutzler; and Hart McLaughlin & Eldridge.
ComEd is represented by attorneys Terrence J. Truax, Nicole Allen, Ali Alsarraf and Matthew Price, of the firm of Jenner & Block, of Chicago and Washington, D.C.