than a collateral let back on a base rate that was set by the i c c for natural gas delivery to all customers well known not just the state as this court stated and considers people gas paraphrase going to natural gas delivery that will be incurred in the future there was no plane or bill paid by the i c c or the state the people's guess the submission of the safety report was not only conjunction with a claim for money from the state by the plaintiff's own allegations most importantly the rate making process is a legislative process as for his well aware based on the argument earlier this morning which involves expertise on the part of the commission to determine what is they were mentioned in the case cited by the plaintiffs the madigan repeatedly cited by the plaintiffs because a special infrastructure improvement was being considered a special rider where the maintenance of the gas pipelines were irrelevant in their first a few reports were actually considered in over forty years of i c c opinions there has never been a reference to a safety but more importantly a claim under the fault claim act should not be injected in a rate making legislative process because then determines whether or not it's just a reason by suspending the tariff that's been submitted and by holding hearings there are five commissioners with specialized expertise their staff that testifies to but those rate should be that's why two in jet plane in this situation like this where here i ask in the circuit court to determine what impact this safety report have on ultimately determining the rate that is set for this period of time and once then the circuit court determines this rate based on i'm not sure why because it would be no administrative record player like it would have been before the commission it would have been no specialized expertise like there would have been before the commission then your to support track the amount of the excessive rate and what the rate would have been and there would have been dam but i might add that refund would only go to the state it would not go to all the consumers that also paid that base rate if in fact it was  what would happen it would undermine the base rate concept here that the nation has exclusive jurisdiction over if you were to allow a circuit court to say you're entitled from day one our motion to dismiss this is not a claim and we have said that repeatedly throughout and in that arguments why should not be construed as a plain we've talked about the process by place for this type of claim for this type of allegation to be made because this is not a government government process which is exactly the argument i make in this morning exactly argument we made our briefs here because that's a legislative process and therefore it just doesn't fit so that has not been waived or forfeited from day one we have said this is not a white counsel's also raese issue of the that we're saying the whistleblower act is unconstitutional no we've never said all we're saying is trying to harmonize two different provisions that if you construe them the way the plaintiff wants to would be in conflict if you consume the way we want public utilities that five five two two point one it authorizes the i c c to issue a civil penalty for misrepresentations of fact made to the i c c during the proceeding section five one zero nine provides it woefully making false y where it's legislators giving them jurisdiction to subject public utilities to civil penalties if they falsify or otherwise fail to keep adequate and accurate pipeline safety records all of federal claims act which goes back to the civil war where the government was being taken advantage of by corrupt him initially manufactures where they were charging excessive amounts to the government they were would you forfeit their argument that no you know i don't i don't believe so i mean well first of all we believe that it's not a claim for a variety of reasons and we think the public policy furthermore if it if it was a claim your honor then you would look you could look at some of the other factors in the federal cases that we've decided that first of all the falsity of the claim has to relate or trigger a pain here we're dealing with alleged falsity of safety report where there's nothing in the lead that would indicate that that would trigger some sort of german and some sort of payment what happens is this court is well aware is that soon as it came to the attention of the i c c by a report it could be a report by the company who could have discovered it and then reported that this was going on by some of their management officials it could've been and then the i c c could have imposed in those remedies and as this court well knows a utility is not going to get crossways with the i c c if it comes to our attention we're going to report it because we do not want to have anything that would jeopardize our future relationship with them since we are highly regulated utility we are highly regulated at every step of the way so this false cla m is needed as a remedy and moreover as a matter of public policy this is not a claim because again if it's a claim you're getting into this whole area  not charged and so what you would have under these circumstances is a circuit court making that determination somehow without the expertise to say that this was an excessive r everybody we have intended target in that rate to the state into those consumers indefinitely until there's been a new rate considered by the i c c it just doesn't make approves of terror it becomes a law and to attack a law based upon a false safety report when there are all these other not is it going to be really fun or not how can we judge decide based upon this one multiple we don't know felt safe to report that the rate would have been different and without that expertise you'd be putting the trial court in the very difficult situation to make that type of terminations so we simply believe that there is no way that the plaintiffs under directly undermines the source of jurisdiction of the i c c and for these circumstances and there's no way that you're so and the men to complain as long as we're talking better rate making process would make no sense mistreat on i understand your argument i just want to run this by you that if i understand the allegations of the plaintiff on these changing lee but they were trying to avoid the generation of a record yes and so what  what i want to know is how does the report if it had been generated how would that impact i see she's reliance or not reliance on reaching a rate increase determination or your honor that's a very good dismiss they say that they are lowering it so it's under an hour so it doesn't have to fill out a form and doesn't report a paragraph only to they're saying these reports that private under the time are s to the i c c it makes no sense if they're lowering the amount of time so they don't have to report then they didn't report but then paragraph twenty two says they didn't report so it is unclear to  me but what plaintiff has said another allegation is that once these reports that were purportedly submitted it went to the overall safety record of utility and that somehow that was taken into relevant it doesn't deal with any revenue issue and in the other thing that seem counterintuitive if you're trying to get an increase in rate you would want to have a report that showed that you couldn't meet those be argument really being submitted is we're immune from the whistleblower because it's a practical result it doesn't matter whether there was or wasn't something that we withheld there is no remedy and to say that the remedy is well the commission could enter a fine it's if you look at the overall amount of money issue that's really nothing they can issue a criminal charge which again hearing there's no claim because really none of this is money well a rate is money rate is money you charge a rate and you're paid that rate the state of illinois  argument people's guesses are saying that the court is it doesn't matter whether there are falsified it really doesn't matter whether the state of illinois because of these reports paid more than it should because the i c c has and try to dance the line the essence of the act is something done to the detriment of the governor here you would have to be able to establish that the payment made by the government was excessive i the rate is there a dichotomy between the whistleblower act on one hand and the jurisdiction of the i c c perhaps but their argument is the since the i c c se and they say well we didn't say it's unconstitutional they are because it's unconstitutional as applied it's completely ineffective we inferi it a utility could engage in this the i c c and that the circuit court via private player is the best place to resolve whether or not the rate was proper or not under the circumstances well there presumes and misreading the is always is is a good lawyer very eloquent but the bottom line is yes what he's saying is only the i c c can deal with the issues under the whistleblower whistleblower it does not confer jurisdiction called this portion would ever profits they made from their false will which is and again consuls correct it goes back to the civil war if you contractor who is profiting it to the detriment of the government you make we're going to run into the same art again they may suspend it they may order it changed people's gasol then complain well you can't change your rate once you have it in the bottom line just as burke is the same is she or do we have a unique situation you have a utility that is if you accepted all fixes troops as conducted itself in a manner that goes back to the sixty's you can't do things and they're effectively immune from any form of remedial measure and that we need your measured goes to the people of the state of illinois but they can't get it here because the commerce commission can't give a special circumstance i'm not aware that there's anything that excludes them justice thomas i don't see any reason why not again this would be a sham issue and that's what a trial court does is decides six  c is not a trial court and frankly it's not something this is an issue of whether there was a false report submitted not what normal rate making is so the i c c is not we're not going to say they all focused on the argument you heard today we are not subject this is remediate all rape making the case should be dismissed on its face for that reason but i can't look you in the eye and say yes there there's nothing that they were prepared it's not the best lead or you can't look here and say i would have loved to have the opportunity to draft it but that's under six fifteen my client should have the opportunity to draft it when the focus of the going to determine what part these alleged statements made in the rate making process and then fashion a remedy out of it as to what to do with the rate presumably you would the court could hear from the people who actually submitted the rate that your real people's gas lawyer management would be permitted to review the effect that this would hear on the overall process we can't get around the fact that it is going to him have an impact not necessarily on the rate but on the amount of money that people's is retained and continues to implement the whistleblower act which they are not they don't have the jurisdiction to do and i agree with the court it might have been faster i let me just say ok i'm not asking anything but i think mr eaton would say that the whistleblower act is not an appropriate way to go when the remedy to be crafted is the changing of a rate i mean that's the other way to look at it right so which my response would be then you have really undercut the historic and existin basis of the whistleblower in the whistleblower act was created there was a determination made by federal government lawyer state government that we want to have these things reported we want to create an incentive because here you have an employee who's putting his job at risk he's putting his wife really good at risk and if the only thing that comes out of this is the i c c might impose a twenty dollar fine or a hundred dollar fine or whatever that isn't the intent of the act and i agree that what you're talking about would it would it cause the rate reduced no it would cause disgorgement at least as to foreseen the court found was affected by this i really you know and i understand this reasons visitation i could make the same argument with a completely straight face it's a problem you have there is no way to reconcile east might have to reconcile the whistleblower act and the concept that only the i c c can change res if we say that we're not changing the rate we're analyzing them it filed no and that might be a completely different remedy that again it's bypassing what has been a critical actual rule hundred years fifty so there is a purpose for this act which frankly has been it makes it's gone there is no way to impose any type of user user friendliness or use its eternity general did take this  or demand for money or property which is made to the state that provision is alive and well that we sent a bill to the state to pay for something where we perhaps raises a question to everyone that buys gas not just to the state it was not handed to reach something that would be this prop it's just or held in c of e versus exxon mobil is a very important case is where the agency entrusted with the responsibility to provide for a met or reclamation project was then challenge in a private lawsuit by citizens this court was faced with the issue of how do we reconcile the two particularly when the private lawsuit was challenging whether the permit should have been issued in the first place this court probably reconcile those two provisions by finding that the citizens sued in that case would be limited to whether one person was operating without  two in violation of the permit that reconcile the two provisions because this court believed it was important to have the people who were issuing the permit at the expertise to do it i think it was the only department natural resource and that pays likewise here is this court found in shop you look at the expertise of the commission to decide this particular issue and when you're dealing with a fraud on the home market  c is the best to make those types terminations and what they can do ultimately is within their jurisdiction side are they going to suspend the base rate because of this report of false p report what are they going to do there in the best position to make that determination and that's why the legislature has given them the exclusive jurisdiction all we are saying  pointing out the policy implications of doing and the nightmare that that would create with the uncertainty of base rates are set by the agency that has that type of activities so we would respect until nine thirty tomorrow morning