On Petition for Writ of Certiorari to the Illinois Appellate Court, Second District
PETITION FOR WRIT OF CERTIORARI
Story Behind Monica J. Sadler v.
By Evan McKenzie
Published September 17, 2007
How would you feel if you had to pay a water bill every month, but your property was not even connected to the water system, and your CC&Rs said you didn’t have to pay for water until that connection was made?
This is the situation that faced Monica
Sadler and thousands of other owners at the Oak Run development in eastern
You may be asking yourself, “Didn’t the HOA object to this rate increase?” The Oak Run Property Owners’ Association challenged various aspects of the proposed increases. But they didn’t raise the basic unfairness of forcing people to pay charges that appeared to be prohibited by the terms of the covenants—especially when they weren’t even receiving any water. The board of directors of ORPOA was controlled by people who had homes in Oak Run with water meters, not “availability” customers who owned undeveloped lots.
As soon as she understood the situation
and realized that the ORPOA wasn’t going to protect the interests of
availability customers, Monica took it upon herself to go to
All by herself, Monica began to review the 6000 page electronic record of the rate proceeding and research the rules for intervening in an administrative action. Soon she had a Petition to Intervene on file in the rate increase proceeding before the ICC. In the petition, she made it clear that her reason for intervening was to introduce in evidence the CC&Rs and ask the ICC to rule that the availability charges were a violation of the terms of these contracts.
The Administrative Law Judge eventually granted her Petition to Intervene. But in the same order, he marked the record of the proceeding “heard and taken” two days before the date of her intervention. That meant that, while Monica was now a party to the proceeding, she could not present any evidence. The contracts would not be allowed into the record.
Of course, this frustrated the entire
purpose of her intervention. She was in the action, but she couldn’t prove the
claims that were her reason for intervening.
She filed motions to challenge this ruling. She cited sections of
Every claim that she raised was denied. The Administrative Law Judge ruled that she had intervened too late in the proceeding, and that hearing evidence and argument from both sides on the contract claims would take too much time. Acting on his rulings, the Illinois Commerce Commission raised water rates in Oak Run, including the availability charges.
Monica then retained my services, and we
appealed from this ruling to the Illinois Court of Appeals for the Second
Appellate District. We raised
a variety of issues of
The appellate court ruled against us, and accepted the argument that the ALJ had discretion to rule that it was too late to hear more evidence. But, amazingly, the court also held that Monica had not even raised the constitutional claims before the ICC. In a petition for rehearing, we pointed out with infinite specificity the exact locations in the record where she raised these claims. She had even gone so far as to quote the entire text of the contract clause, word for word, in motions before the Administrative Law Judge, and all this was in the record of the administrative proceeding.
The petition for rehearing was denied. We then petitioned the Illinois Supreme Court for leave to appeal. That, too, was denied. The Illinois Supreme Court has the power to decide which cases it is going to hear, and it declined to hear this one without ruling on the merits one way or the other.
The only avenue left was the United States Supreme Court.
Consider the position Monica found herself in. She had by this time asked the Administrative Law Judge, the Illinois Commerce Commission, the appellate court, and now the Illinois Supreme Court just to read and consider the contracts that appeared to prohibit the availability charges that people had been paying for decades. She had tried to get these agencies of state government to at least consider that these charges violated the contracts and constitutional rights of thousands of Oak Run residents. But every arm of state government had refused even to hear that claim. The rate proceeding was like a railroad train speeding down the tracks, and it seemed that a statutory and constitutional claim brought by a single property owner was not going to be allowed to stand in its path.
Monica decided that she wanted to
petition the Supreme Court for a Writ of Certiorari, and we have done so.
We argue in the petition that the ICC and the
We know that the Supreme Court receives almost 10,000 petitions every year and ends up granting full review with briefing and oral argument to fewer than 80 of them. Another 100 or so will be summarily decided without oral argument. The rest will just be denied review, without explanation. Petitioning the Supreme Court is always a long shot, no matter who you are. The Supreme Court has enormous discretion to hear whatever cases it chooses. The Court does this by having law clerks read the petitions and make recommendations to the justices, and then the justices take a vote. It takes four votes out of nine for the Court to review a case. The decision to review a case is not based on whether an error appears to have been committed, because the Supreme Court is not in the business of correcting errors by lower courts. The Supreme Court is a policy making court. The decision to take up a case is based on the importance of the issue to four members of the Court. We have tried to convince the Court that this case matters, because the Court should protect the rights of individuals who dare to stand up to a powerful utility company, a powerful state agency, and a powerful state court.
We know that the odds are long. But Monica is one of those rare people who are guided by a strong sense of right and wrong. She refuses to accept injustice if there is any way to fight it. Most of all, she stands up for other people who are victims of injustice and for whatever reason are not able to stand up for themselves. And her view of this situation is that thousands of Oak Run owners, without their knowledge or understanding, have been gouged for decades by a regulated utility company, in violation of their contracts and their constitutional rights.
homeowner association is not going to represent their interests or defend their
rights. Neither are the state regulators or the
PETITION FOR WRIT OF CERTIORARI