A state appeals panel has agreed a consumer fraud class action targeting Exelon and ComEd for alleged bribes doled out to gain the support of now-indicted powerful former House Speaker Michael Madigan can’t continue, because the lawsuit would force the court to question the motivations of lawmakers in approving legislation deemed favorable to the electric utility.
At issue are three Illinois General Assembly bills — the 2011 Energy Infrastructure and Modernization Act, a 2013 trailer to that legislation, and the 2017 Future Energy Jobs Act — and the role they played in a U.S. Department of Justice bribery investigation that implicated former Illinois House Speaker Michael Madigan. ComEd paid $200 million as part of a non-prosecution agreement in which it admitted to bribery. Criminal proceedings, including convictions and sentencing, are ongoing involving several former public and utility officials.
A three-judge panel of the Illinois First District Appellate Courtissued a ruling Nov. 17 explaining why state court isn’t open to ComEd customers who alleged the laws only passed because of bribery and seeking restitution for alleged unjust enrichment.
Michael Madigan
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Justice Freddrenna Lyle wrote the panel’s opinion; Justices Raymond Mitchell and David Navarro concurred.
According to court records, lead plaintiff Randall Kuhn filed his second amended complaint Nov. 9, 2020, in Cook County Circuit Court. A judge dismissed that complaint with prejudice on Dec. 23, 2021. A motion to reconsider and for leave to file another amended complaint failed.
On Oct. 7, 2021, a different group of plaintiffs, with The Burnham Center as lead, filed their own lawsuit against ComEd and parent company Exelon. On Feb. 16, 2022, a Cook County judge dismissed that complaint on the same grounds as Kuhn’s action. Both appeals were consolidated on appeal, as plaintiffs argued they should’ve been allowed another amendment; that Judge Cecilia Horan erred by ruling the separation of powers doctrine deprived the court of jurisdiction; and that they adequately pleaded proximate cause.
The plaintiffs, Lyle wrote, argued “the court dismissed their complaint with prejudice because it thought that they would not be able to show that ComEd’s actions caused the passage of the legislation without inquiring into the legislature’s motivations.”
Had they been allowed to amend, Lyle continued, the plaintiffs contend they could have done so specifically by focusing on Madigan, a legal strategy they said wouldn’t have engendered conflict with the separation of powers doctrine.
“The plaintiffs recite the factors a court should consider when determining if it should grant a motion for leave to amend a complaint,” Lyle wrote. “However, the dismissal with prejudice was a final order. As a result, it was procedurally improper for the court to consider whether an amended complaint would cure purported defects prior to granting the motion for reconsideration.”
The panel said Judge Horan’s dismissal, and its review of that dismissal, is based on the dismissed complaint, not what the plaintiffs might have argued had they been given a chance. As such, it affirmed Horan’s finding of a lack of jurisdiction.
Furthermore, Lyle wrote, “If we were to look at plaintiffs’ appeal liberally, reading it as a challenge to the trial court’s application of existing law, the plaintiffs’ arguments still fail.”
The second amended complaint alleged the deferred prosecution agreement detailed an illegal scheme in which ComEd incentivized Madigan and others to pass certain legislation, an argument the panel said “squarely asks the question of the legislators’ motivations.”
The panel quoted a 1910 Illinois Supreme Court opinion, Murphy v. Chicago, Rock Island & Pacific Railway Company, itself referencing the 1810 U.S. Supreme Court opinion, Fletcher v. Peck, which held: “It is a well known rule of law that the knowledge and good faith of a Legislature are not open to question and its motives cannot be inquired into. Courts must always assume that the legislative discretion has been properly exercised.”
Madigan had the ability to bring a bill to the House floor, Lyle wrote, but it still required sufficient votes to pass in both chambers. As such, she wrote, “Merely creating the condition for the injury, the bribe, without more information, cannot be said to have been the proximate cause for the passage of legislation.”
In order to find a nexus between the bribe and the final votes, the panel said, a circuit court judge would have to investigate the General Assembly’s reasoning, a power that court lacks. Further, even if the panel were to consider the third amended complaint, “the decision would remain the same” because Madigan “could not singlehandedly pass the bills.”
The plaintiffs were represented by lawyers from the Chicago firm DiCello Levitt.
A spokesperson for DiCello Levitt said they would not issue a statement on the ruling.
Other plaintiffs’ attorneys included representatives from the firms of Romanucci & Blandin and Hart McLaughlin & Eldridge, all of Chicago, and Michael Ratshack, of Park Ridge.
ComEd has been represented by Jenner & Block, of Chicago and Washington, D.C.