workers special assistant attorney general john kelleher on behalf of the on our commerce commission warning we've had a lot of thirty minutes for this case and we can feel like the flexible is only he's in the car this morning but that's not go by the time will be evenly divided between ble and feel free to address that the merits of that motion in your remarks what i'd like to focus on then is our view that the decisions at issue here really should fall on quite a few grounds but for this morning's purposes i'd like to focus on we think it's the first and foremost round and that is that the decisions should fall because of the statutory interpretation of section sixteen one twenty five b of the public utilities that let me underscore the reason why we believe it is particularly important for this court to reverse these decisions is in earl aspects both when it comes to the statutory interpretation and to the decision on the waiver issue the commerce commission essentially written the public utilities act and i'm going to cover that theme in a few different ways as we proceed but but turning to that first issue that the statutory analysis i think all the parties agree that the of the statute is come along that is the statute could not the commission put in their findings it seems like they argue that you were asking for an amendment in effect of amendment by the inclusion of the word single what's your response to that i've not asking for the to modify that for each affected party that is the single or the one of it that's essentially right but i think that the attorney general is trying to hypothetically mr hamel had a situation where the utility different from what happened in this case clearly abandoned their tree maintenance program and during the storm all sorts of trees hit the lines causing all sorts of simultaneous or near simultaneous outages would you consider that to be covered now however so it has to be the same tree hitting the same wind that would cause thirty thousand customers to be affected at one time group we're talking about a treat yes but web movie i'm reading into your question is whether there would be no possible grounds for relief somewhere else for those affected casters there are other duties in the public utilities act and other duties under comments tariffs that would deal with the obligations that would arise in that type of situation we're talking about today is this statute and look does this statute do and justice actually we can look at this in any number of ways we can start anyway we cut it plaintext we were simultaneous just isn't there and has a material difference in the reading of the statute use early other tools of statutory interpretation which were not for people to get it we don't think you need to use other tools but any grapple with the legislative history but it's clear as to why the statute was adopted it couldn't be clear but we don't want to look at that we would want to add the word simultaneous says the commission if you look at the other statutes that were considered at the time they lead to the same result if we look at the other uses of the word interruption here list that you in the commission's regulations they say exactly what we're saying if we work at what the industry interprets the word interruption to me it means exactly what we said if we look at the overall regular no scheme look let's stop with with that one because it is a lot of time spent in the briefs on the interpretation of various people in the industry obviously the people who draft the ledger who vote on the legislation are not in most cases industry people and the fact that a term may have meaning within the industry doesn't have a direct impact on how it should be interpreted in interpret in the language in the statute it may be why someone in industry might interpret the language that way at first blush but you're not suggesting that the industry interpretation would override the legislative meaning that they try to write i completely agree i am not suggesting that we are in the world this conversation that we're having right now he's in the world of what we would be on the plain text so if we will be on the plain text which we don't think we should very to find some meaning to this thing and the word interruption has a statutory meaning it does it means if we look in the remaining provisions of section sixteen one twenty five if we scroll down a bit in the statute you get down to sixteen one twenty five j and that's a good quoting to comment or any any electric utility has to report the number of outages they have every year and they talk about in that part of the statute interaction interruption that affects the it's ten or more customers so we'll assume sixteen or twenty five a few paragraphs down and they're talking there about a single interruption again in the world of the legislature or in the regulations i'm not dealing with the industry experts if you look at the commission's own regulations it's for eleven point one cited in the briefs they have a definition of thing so it also supports our interpretation so what we struggle with is we're trying to find we're in is the counterpunch where is anything from any tool of statutory interpretation that says otherwise and it's just not there the commission found that these interruptions of thirty thousand people were were because no one failure and i was the systemic feature of these tree branches so in that sense there was one cause for thirty thousand people los power it was more that one street but there was one cause and that was the substances dysthymic faded from the trees and begging your pardon just this house but that's not what they found so when we look at their order i would encourage the court to go and look at their order again after after the argument and struck try very hard to find where in the rather talk about tree contact at all as think governing because what they actually say in the discussing about the way that does by saying con ed has complied with its duty systematically complied but then saying well that's not enough and when the rebel or the reasoning for why that's not enough the commission has just here that what the we're really saying was about three contract so we put all that together it's a rewriting of the statute and it's not grounded in the statute itself mr hamel since you crossed over even momentarily into the waiver section i have a question what i want to ask your opinion relating to that in your brief after quoting the statute you repeatedly talk about whether your client was entitled to the waiver and indeed even in my mind surprisingly the the commission used the same language to refute that i ask you about the sentence that says a waiver of the requirements of this section may be granted by the commission et and i guess implicit in your argument is that this is one of those circumstances where may should be read as shall is that correct i think it has to be read as shall  nobody expressly did addresses it the that that's all very true the reason why i think i think we think comment is that that problem doesn't exist is because this statute was not designed for the situation will be you can turn around and say well ok i get it hammer you're talking about fires and the sorts of things that lead the statute to be to be drafted in the first place but a poor in the world where the statute more clearly applies the stuff that led it to be passed in the first place and i'm beyond the plain text we're in the world of these massive fires that happen at these at these substations and so forth then the difference between is there eruption and merely whether should they give you a louver doesn't seem to me to be as acute when we start applying the statute to you know i think the number was five thousand something separate eruptions from the july storm alone we start applying there and very obviously is your second issue so assuming we resolve the first one adversely to you it's something we have to deal with short and the problem i have with your supposition that many in this case means shall although there are some cases in some circumstances where courts have found it to be such a his within the same subsection shall is used right above it and so you have a situation where the the legislature is obviously considering the reach of may and reach of shall and have chosen circumstances in the same subsection where they attach to one word rather than the other so  but all of the evidence one hundred percent of the evidence was supporting the way under any way we look at what was provided and presented below there's no contrary argument in fact when you look at the briefs when you look at the decision i was saying that justice house a minute ago you can't see the bottom line of this decision until you get to the briefs and really look at what actually happened below conrad showed that there was a vegetation plan and that followed comment show by location that says it could the wind speeds over sixty miles an hour in the vast majority places what happened in these houses and sure all of this through what was essentially it seems like you got plenty of relief i mean the staff was arguing for a lot more and the commission came back and and every other storm you guys were given a pass except for them so while evan storm i mean what happened here is you had the winter storm you want to end that and you're here appealing that some would call that being a sore winner ok and then you win five out of six or six out of seven and the other storms again sort of redolent of a sore winner but  the fundamental principle seems to me that you're fighting for is that you should have lost on that one storm and the basis of the gerrymandering of the statute by including the word simultaneous so my question to you would be is there any way that the commission's decision could be supported either by the commission itself or by us without the use of the word simultaneous in other words could we affirm their decision and that's why storm without putting the word simultaneous  i don't see any way that you can do that without adding that word to the statute and if you do that the kind of absurd situation becomes real and the absurdity of adding the word simultaneous is even worse than it comes out the briefs and let's just talk about that and whenever you need me to sit down just a sauce i will i will happily sit down but i want to make sure i do it this is i think this is the fundamental point for me let me draw a picture we have a storm that comes through northern illinois comics territory it hits rock the first six am in the morning not some power off or whatever the causes are that the power gets knocked out and lasts for twenty four hours that's tremendous worry down interstate al overlap when everybody's power is out if you put the word simultaneous in the statute which is in their brief i kind of fourteen times maybe it's more yeah it was up it was prominent probably put the word simultaneous once in  statute let alone fourteen times in the brief and boost to interruptions are those thousands really what they are but those two scenarios those are considered simultaneous interruptions and it's even worse because if in the reading of the statute that they and its findings and in the argument of your colleagues here that the statute would never eventuality call for the statue would never occur because you could never have a single interruption that would affect thirty thousand people for four hours what's your response to that and i want to be as as delicate as i can say this but it's a false argument and the reasons falls to come from the testimony of the commission's witness the law mr walker and what his words on the record were and and again coming pretty close to a quote but it's a little bit of a paraphrase he says there's no situation or a single piece of distribution equipment could fail and cause an eruption of this ma before july thirtieth through july one cam ad acknowledged that there were twenty six thousand five hundred twenty four customers without power due to one continuous interruption so that to say you can't get the another's it's we've all driven down the road and you come along the fence and you see the electrical equipment conason they're like in a residential neighborhood stop that's a substation substation has many pieces of aquatic not a single so if a substation gets knocked out that's a a set of interconnected pieces of equipment that are all together that's not to be a single piece of distribution equipment but it's a single history set of pieces of equipment in fact it's knocked out i time i stand up here you know really other thing i would like you just i think i know the answer to this better to hear it from you your other appeal that it's subject of a motion to dismiss you really arguing about the reasoning and not anything that effects your client's interests as far as this particular issue is concerned or indeed that issue that you're trying to have revisited in that commission appeal on the other consolidated part of it is is is addressed within the appeal that there is no motion to dismiss on so that's certainly true and if you give the relief on that a while of a storm it would sort of move the other one but there is that there's that interstate water case from the supreme court yeah you have persuasive to me but the council as to the split on the time i'm going to i think mr hamel took about twenty minutes so i'm going to take about seven or eight minutes of our side that's ok with the court and i'm going to focus solely on the issue of comments liability under section sixteen dash one twenty five he my colleague mr keller will focus on the waiver issue and those issues as the court has recognized or separate the several this court can find it comment was liable whether or not i waiver your honour's during the summer of two thousand and eleven thousands of people went without power just three summers ago they had to leave their homes they had to abandon business is they suffer damages and they'll come it comes before the court with a very narrow and strange interpretation to claim it's not responsible in any way for a single dollar for any of this to compensate tens of thousands of people who suffered were so affected by electrical failure the failure of the company systems were ever located in june 's not right about the the statutory interpretation is a total universe of thirty five thousand or so affected customers the company hinges its total lack of liability on the meaning analysis and then a moment later he wants to ensure industry standards and said legislative history which you as you correctly pointed out just this afternoon which is relevant under the four corners thousands of people in one part of the city wards can't be taken into account with the power loss that leaves on refrigerated food in hundreds of homes just a few blocks away because two different trees on two different adjacent or e interpretation that goes essentially tree by tree writer by wire and writing strike by lightning strike as as the panel recognized it's an overly technical legal wish to control the creation of parsons cause and effect essentially one branch at a time and it loses all sight of consumers rights if you do it really doesn't matter as a matter of law or language whether we say interruption or interruptions comments is the meaning will be altered because repeated uses of the word interruption in the provision this down to the level of the consumer not the technical experts or the industry witnesses or whoever it was involved in the crafting of this legislation we didn't pass this legislation each person or municipality is affected by the interruption it's that interruption that was felt in the house of the family and the record that had to move out because it son suffered from asthma and couldn't couldn't breathe in the heat and this family might be experiencing perceiving interruptions for four hours or maybe they interrupted they experience interruption if first the power wane and then fail well it's the interruption or interruptions however they see it in rolling meadows and that's where the power went out for there damages here to be sure and this is a remedial statute am responders in that town had to deal with down wires and check on the day will be a great expense to switch to these consumers it doesn't matter but the consumer will be affected whether it's whether they're consumers one of many consumers who gets affected or want to forty thousand and the reach of the statute wouldn't help that people if they were only one of ten people who got power loss because of it so we're dealing with this statute mr siegel and i think that's that's something that we're sort of not communicating very well back and forth on well under the law comment interpretation can stand up to the sta recognizes that nouns and nouns are the same oral or singular vice versa and on page six of comments reply or if they're wrong about the statute on statutes they say it's an absurd and assert consequence will result if again example in one suburb is considered with an adage in a different town even if from the same storm and they keep on bringing in this imagery of fought far flung locations across the illinois putting aside the fact that thousands of people were without power that rather baldly rather clearly uses the word simultaneous that's nowhere in sixteen one twenty five and that is true but by the same how is that appropriate well i don't think it's simultaneously it because the concept that simultaneously addresses that people were affected in different locations it doesn't have anything to do you do with continuously and again it goes back to this idea that each of these consumers is experiencing an interruption but mr hemmer pointed out and does in his brief that the commission uses the word single simultaneous or simultaneously fourteen times interestingly comment interposes the words best words and concepts don't appear anywhere in section sixty one twenty five they don't modify the words the work interruption does i mean what we have here is a bit of parsing to use a moment clintonian word that is going on and and one side you folks are saying well they can't win unless they use the word single in there and the other side is saying well look at the very use of simultaneous all the time that i mean that's what we're we have to work fight with it and again oh come back to what the illinois equating plural and singular downstairs and doesn't change the meaning when you're talking about adding two propositions to a ballot con ed says in this instance will be manipulating the statute but there was no manipulation in the tome case and there are many other instances when they are treated in outkast lead you know but ultimately it doesn't really matter if the commission or this court regards a mass scale outages one interruption or series of interruptions or a sliding scale a combination of both because critically i come back again to the point that combat has lost sight of the purpose of the statute which is to protect consumers  they pay lip service to this idea but that only if they're one of at least thirty thousand others correct we have to get to that threshold and that and that is where the waiver issue comes in we're fighting the argument comes down to twenty six thousand or so tree with single and discreet after after the word after the fact were temporary a second point quickly like to address with their argument is they say on page seven of the reply brief that we favored a singular interpretation below and now we've switched sides and now we're advocating plural no we're saying that they're the same and that's not a new argument what we said exactly this is an essay separate appendix fifteen and i think it's our singular was purposeful and it was addressing an entirely different issue that frankly i when we think helps calm that it has to do with the avoiding aggregation of minutes across many many different hours to get to four hours and i know the work each in our formulation compels the use of the word singular but the word each doesn't appear in the statute so there's no opportunism here comments were just a final point the court lacks jurisdiction over the winter case as the court is noted for doesn't issue advisory opinion so in the summer case and the record from the summer cases before this work some would ask for a holding that recognizes that com as liability was triggered under section sixteen dash one twenty five he regardless of how this court rules on the waiver issue which my co counsel now dress thank you waiver but one thing i want to mention is the simultaneous argument is really a case of no good deed goes unpunished because what that was throughout our brief is we're discussing things and what's fair and i don't remember that being in the commission's order what this was  if you if you look at the the record there was more than one hundred eleven thousand people without power because of the storm six hundred thousand of them were without power for more than four hours and your last point that age forty five  people that were out of power simultaneously at the same time continuously for four hours and the question it was incest my guess was trying to apply what in this statute is should you just stick with you know should it be simultaneous or can you take four hour interruptions from all over and step but it was fair to limited to just when thirty thousand people have their power interrupted and it continues for four hours that's when statute applies and so that's all reall i don't recall it in sufficient detail for the statute that we're arguing about here today says a waiver of the requirements of this subsection may be granted by the commission in instances in which a utility can show that the power interruption was a result of any one of the five causes and goes on and then above that in the same statute they used the word shall for a different provision so my question although your brief adopted the point of argument that mr hamill's brief introduced which is that they were entitled to this waiver the question of who work for utilities for more than twenty years who ran a vegetation department and has been with this the staff the commission now for about another thirteen years differed with them on the one point which is tree contact and he said in his opinion  s tree contacts are preventable and to get the waiver you have to prove you have to prove that something is unpreventable so you wanted to a great deal of detail i will i will admit you that the commission's order is not a model of clarity as to how it wanted its way to its conclusion because they are right there in summarizing steps testimony which clearly does mention three contact that summer didn't make it into the order and then when the commission got to the end of it it said that it adopted staffs approach in its application and it didn't really there was nowhere in the order that specifically finds the tree contacts are preventable it just took a post data request for staff and the parties listed the total numbers that step still believed to be preventable and while in the committed the commission looked at that needs more cuts in it and said no there's there's another twenty or so thousand people that we think that that particular damage was preventable and it up to thirty four thousand five hundred ninety nine me ask you the direct question then are we here because that ranting the waiver in the july eleventh storm when waivers worker granted in the others what's the critical distinction that we ought to focus on to legitimize with commission was doing commission found that there were thirty four thousand five hundred ninety nine instances of consumer or customer outage that were preventable ok and so you don't and so that kept about the thirty thousand thirty thousand customer level and does that then get to what you're just talking about a moment ago that the order was not the paragon of clarity in terms of nailing it down to the tree issue there correct because you didn't mention tree contect in the order and it's in twenty five preventable and and and steph gave its reasons and so on and so the commission isn't you know one way or the evidence it didn't mention it and discuss it but it did except it so what what i'm saying is they did have a problem with the whe e and let me ask you the question i asked your colleague can we write an opinion in this case affirming what the commission did without using the word simultaneous and if so how i'm fine with you writing simultaneous out what it's going to do is tend to come up with more situations where there they face liability it was done as a limitation to say it all has to be something done at once you can't be think we're looking at a constitutional issue we put a constitutional argument in the brief it's something that i don't think the court needs to reach because there are ways that frankly whom the way we're suggesting it doesn't take you there but i think we would be in a world  commission said no we're not going to entertain the way we're going to take the most discretionary approach of the word may your hypothetical to me earlier we just don't want to go there would be the hypothetical right we don't have to we may we may not but but that they don't necessarily have to go there we're not going to consider it because we don't feel like it it's acoustic they could say that under these circumstances they're not going to exercise their discretion for a number of  and reasons in which case we're we're in that discussion that we've been having that we say that those reasons don't exist on this right i second thing in reply it was this is question on the statute a statute and i really don't see how it comes into play here faced on how we've read it under law there's one other word the justice lab you kept ask me or yes me asked counsel about whether we were saying that the word single was in the statue i said it's not reading the statute or what it says  least in the statute is continuous and i think that word really jettisons gets rid of the statute statutes arguments and the arguments by the police on how to construe the statute and let me tell you what i would i would think that the decision that we're advocating for would read like particularly on the work continues i would think it would read like this english grammar requires that each customer be subject to should be subjected to was aggregated among two through thirty thousand customers and that's why i don't think it's as clear as it is as you argue it to be i think we're talking about miles of clarity obviously the statute is is not something anyone is going to hold up as a paragon of great clarity or it wouldn't be having this argument here today but i don't think your argument is is a clincher on that issue because it could just as easily apply to deciding whether an individual should be aggregated within the the group of thirty thousand plus to arrest the sort it's not a gotcha point right you quote somebody breach of or we're talking about interruption the point of the passage is the statute has to be interpreted as it's written since it's written in the singular that's why that passage maps it's something that i think correct applies whether it's a custom or interruption to and there would be on this but i actually think the statute is clear i don't think it could be clear on the fact that we're talking about a single  get to the tools of statutory interpretation you know the legislative history all that but we never had to get there because i think when the singular is used the singular is meant to be used and we can't throw in the last minute devices like the statu on statutes to try to change that me that