2016 IL 120526

IN THE 

SUPREME COURT 

OF

THE STATE OF ILLINOIS 

(Docket No. 120526) 

PEGGY ZAHN, Appellant, v. NORTH AMERICAN 

POWER & GAS, LLC, Appellee (The People of the State of Illinois ex rel. Lisa Madigan, 

Attorney General of Illinois, Intervenor-Appellant).

Opinion filed December 1, 2016.

 CHIEF JUSTICE KARMEIER delivered the judgment of the court, with 

opinion. 

 Justices Freeman, Thomas, Kilbride, Garman, Burke, and Theis concurred in 

the judgment and opinion. 

OPINION 

¶ 1 The United States Court of Appeals for the Seventh Circuit has certified for 

instruction from this court the following question of Illinois law: Does the Illinois 

Commerce Commission have exclusive jurisdiction over a reparation claim, as 

defined in Sheffler v. Commonwealth Edison Co., 2011 IL 110166, brought by a 
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residential consumer against an alternative retail electric supplier, as defined by 

section 16-102 of the Electric Service Customer Choice and Rate Relief Law of 

1997 (220 ILCS 5/16-102 (West 2014))? Zahn v. North American Power & Gas, 

LLC, 815 F.3d 1082, 1095 (7th Cir. 2016). We accepted the Seventh Circuit’s 

invitation to consider this question pursuant to Illinois Supreme Court Rule 20 (eff. 

Aug. 1, 1992).1

 For the reasons that follow, we answer the question in the negative. 

Under Illinois law, the Illinois Commerce Commission does not have exclusive 

original jurisdiction over such claims. The claims may be pursued through the 

courts.

¶ 2 BACKGROUND 

¶ 3 We take the facts as the Seventh Circuit has stated them in its certification 

ruling. They are simple and straightforward. Peggy Zahn is a residential consumer 

of electric power. North American Power & Gas, LLC (NAPG), is an alternative 

retail electric supplier (ARES) within the meaning of section 16-102 of the Electric 

Service Customer Choice and Rate Relief Law of 1997 (Rate Relief Law) (220 

ILCS 5/16-102 (West 2014)), which is part of the Public Utilities Act (Act) (220 

ILCS 5/1-101 (West 2014)). 

¶ 4 As defined by section 16-102, an ARES is any “person, cooperative, 

corporation, municipal corporation, company, association, joint stock company or 

association, firm, partnership, individual, or other entity, their lessees, trustees, or 

receivers appointed by any court whatsoever, that offers electric power or energy 

for sale, lease or in exchange for other value received to one or more retail 

customers, or that engages in the delivery or furnishing of electric power or energy 

to such retail customers, and shall include, without limitation, resellers, aggregators 

and power marketers,” subject to various exceptions. 220 ILCS 5/16-102 (West 

 

1

In the proceedings before our court, the Illinois Commerce Commission sought and 

was granted leave to file a friend of the court brief pursuant to Illinois Supreme Court Rule 

345 (eff. Sept. 20, 2010) in support of Peggy Zahn, plaintiff in the federal action. The 

Illinois Competitive Energy Association, in turn, requested permission to file a friend of 

the court brief supporting North American Power & Gas, LLC, the defendant in the federal 

action. Its request was also allowed. In addition, we allowed the State of Illinois to 

intervene. As with the Commerce Commission, the State supports Zahn’s position.
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2014). ARESs were authorized by the General Assembly when it enacted the Rate 

Relief Law as part of an effort to partially deregulate our state’s electricity market 

and make it more competitive. Under this new system, consumers are no longer 

confined to purchasing their power from their local public utility. Rather, they have 

the option of buying their power from the local public utility, an electric utility 

other than their local public utility, or an ARES. Zahn, 815 F.3d at 1084-85. 

¶ 5 In August 2012, Zahn decided to purchase her electricity from NAPG based on 

its promise of lower rates. NAPG sent Zahn a letter stating that she would receive 

its “New Customer Rate” of $0.0499 per kilowatt-hour during her first month of 

service and a “market based variable rate” thereafter. The company also sent her its 

“Electricity Sales Agreement Customer Disclosure Statement.” The statement 

indicated that the term of the agreement was month-to-month and that “[o]ther than 

fixed and/or introductory/promotional rates, all rates shall be calculated in response 

to market pricing, transportation, profit and other market price factors.” It also 

disclosed, under the heading “Open Price,” that its prices were “variable” based on 

“market prices for commodity, transportation, balancing fees, storage charges, 

[NAPG] fees, profit, [and] line losses ***. Your price may be higher or lower than 

your [local public utility] ***.” 

¶ 6 Zahn never received the $0.0499 per kilowatt-hour “New Customer Rate” she 

was promised. During her first two months of service, September and October 

2012, NAPG charged her $0.0599 per kilowatt-hour. Thereafter, from November 

2012 through June 2014, the rate it charged her was always higher than what she 

would have been required to pay her local public utility, Commonwealth Edison 

(ComEd), had she not switched to NAPG. At times, NAPG’s rate was nearly triple 

ComEd’s.

¶ 7 Zahn objected to NAPG’s higher charges and filed a class action against the 

company in the United States District Court for the Northern District of Illinois. 

Zahn’s complaint invoked the court’s diversity jurisdiction (28 U.S.C. § 1332 

(2012)) and sought damages based on violation of the Consumer Fraud and 

Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2014)), 

common-law breach of contract, and unjust enrichment. NAPG moved to dismiss 

Zahn’s complaint for lack of subject-matter jurisdiction and failure to state a claim. 

The district court granted that motion. Zahn then appealed to the United States 
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Court of Appeals for the Seventh Circuit. It is in that appeal that the question before 

us was certified. 

¶ 8 In assessing whether the district court erred in dismissing Zahn’s complaint, the 

Seventh Circuit has concluded that the dispositive threshold issue is whether an 

Illinois state court would have had subject-matter jurisdiction to hear plaintiff’s 

claims or whether exclusive jurisdiction over those claims lies, instead, with the 

Illinois Commerce Commission. The Seventh Circuit reasoned that if the 

Commerce Commission alone has jurisdiction to hear claims of this kind under 

Illinois law and such claims are not within the subject-matter jurisdiction of the 

Illinois state courts, it necessarily follows that a federal district court sitting in 

diversity cannot entertain them either. Zahn, 815 F.3d at 1087 (citing Tacket v. 

General Motors Corp., Delco Remy Division, 93 F.3d 332, 334 (7th Cir. 1996)). 

¶ 9 In Sheffler v. Commonwealth Edison Co., 2011 IL 110166, this court addressed 

the lines of demarcation between the jurisdiction of the Illinois Commerce 

Commission and the jurisdiction of the courts with respect to claims against public 

utilities. Citing section 9-252 of the Public Utilities Act (220 ILCS 5/9-252 (West 

2014)), which pertains to complaints “concerning any rate or other charge of any 

public utility,” and in accordance with precedent from our appellate court, we held 

there that if a claim is deemed to be one for “reparations” rather than for civil 

damages, jurisdiction lies with the Commerce Commission, not the courts. A 

reparations claim is one where the essence of the grievance is that a public utility 

has charged too much for a service. A civil damages claim, by contrast, is one 

where the gist of the complaint is that a public utility has done something else to 

wrong the plaintiff. Sheffler, 2011 IL 110166, ¶¶ 41-42. 

¶ 10 In the case before us, the Seventh Circuit has characterized Zahn’s claims as 

being in the nature of “reparations” as that term is used in Sheffler. There is an 

important difference, however, between this case and Sheffler. Sheffler involved a 

claim against a conventional public utility. The claim asserted here is against an 

ARES. Under section 3-105(b)(9) of the Public Utilities Act (220 ILCS 

5/3-105(b)(9) (West 2014)), ARESs are expressly excluded from the definition of 

public utility. Pursuant to section 16-102 of the Rate Relief Law (220 ILCS 

5/16-102 (West 2014)), ARESs do not qualify as “electric utilities” either. They are 
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merely “nonutilities licensed to sell retail electricity.” Commonwealth Edison Co. 

v. Illinois Commerce Comm’n, 328 Ill. App. 3d 937, 939 (2002). 

¶ 11 Because NAPG is an ARES and ARESs are not utilities, the Seventh Circuit 

recognized that Sheffler does not resolve the question of whether claims against 

NAPG by customers seeking reparations for overbilling may only be brought 

before the Commerce Commission. Finding no other decision by this court directly 

on point, the Seventh Circuit looked to the legislature’s stated and implied intent, 

the Rate Relief Law’s consumer protection provisions and remedial measures, an 

unpublished order by our appellate court, an interim order by the Commerce 

Commission in an unrelated case, and a published decision by the appellate court 

involving a reparations claim against a telecommunications carrier in an attempt to 

estimate how we would decide the question if it came before us. The Seventh 

Circuit ultimately concluded that these sources failed to yield a definitive answer. It 

has therefore reached out to us directly here, through the mechanism of a certified 

question, for instruction. 

¶ 12 ANALYSIS 

¶ 13 As set forth above, the viability of Zahn’s state law claims against NAPG in her 

federal diversity action turns on whether an Illinois state court would have had 

subject-matter jurisdiction to hear them or whether, under Illinois law, she would 

have been limited to pursuing those claims in an administrative proceeding before 

the Commerce Commission. The general principles governing this inquiry were 

recently discussed by our court in J&J Ventures Gaming, LLC v. Wild, Inc., 2016 

IL 119870. As we noted there, subject-matter jurisdiction refers to a tribunal’s 

power to hear and determine cases of the general class to which the proceeding in 

question belongs. Id. ¶ 23. The Illinois Constitution vests the circuit courts with 

original jurisdiction of all “justiciable matters” except when our court possesses 

“original and exclusive jurisdiction relating to redistricting of the General 

Assembly and to the ability of the Governor to serve or resume office.” Ill. Const. 

1970, art. VI, § 9. Accordingly, so long as a matter brought before a circuit court is 

justiciable and does not fall within the original and exclusive jurisdiction of our 

court, a circuit court has subject-matter jurisdiction to consider it. McCormick v. 

Robertson, 2015 IL 118230, ¶ 20.
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¶ 14 In this case, there is no issue as to justiciability, and the matter is not one that 

falls within this court’s original and exclusive jurisdiction. The only reason there is 

any doubt as to whether an Illinois circuit court would have jurisdiction to consider 

plaintiff’s claims is that there is a line of Illinois authority holding that our General 

Assembly may vest original jurisdiction in an administrative agency rather than the 

courts when it enacts a comprehensive statutory scheme that creates rights and 

duties that have no counterpart in common law or equity. J&J Ventures Gaming, 

LLC, 2016 IL 119870, ¶ 23.2

 Even if one puts aside the question of whether the 

claims asserted by Zahn in this case can properly be said to involve rights or duties 

unknown in common law or equity, we do not believe that exception is applicable. 

¶ 15 If the legislature intends for exclusive original jurisdiction to lie with the 

agency rather than with the circuit courts when it has enacted such a comprehensive 

statutory scheme, it must make that intention explicit. Id. ¶¶ 23-24. It has not done 

so here. While section 9-252 of the Public Utilities Act (220 ILCS 5/9-252 (West 

2014)) does give the Commerce Commission exclusive original jurisdiction over 

claims that a public utility has charged “an excessive or unjustly discriminatory 

amount for its product, commodity or service,” ARESs are not public utilities. In 

defining public utilities, the Act expressly excludes them. See 220 ILCS 

5/3-105(a)(9) (West 2014). The claims asserted by plaintiff in this case therefore do 

not fall within the Commerce Commission’s exclusive jurisdiction under section 

9-252 of the Act. To hold otherwise would require us to interpret the statute in a 

way that is directly contrary to its express terms. That, of course, is something we 

may not do. No rule of construction authorizes us to declare that the legislature did 

not mean what the plain language of the statute imports, nor may we rewrite a 

statute to add provisions or limitations the legislature did not include. Illinois State 

Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL 117418, ¶ 28. 

¶ 16 NAPG argues that section 9-252 alone is not dispositive and that, in assessing 

the legislature’s intentions regarding the Commerce Commission’s jurisdiction, we 

should consider the overall statutory framework. There is support for this approach 

 

2Although our precedent refers to the “jurisdiction” of administrative agencies, that is 

something of a misnomer. The term “jurisdiction” is not strictly applicable when referring 

to an administrative agency. We use it as shorthand for describing the agency’s authority to 

act. J&J Ventures Gaming, LLC, 2016 IL 119870, ¶ 23 n.6. 
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in J&J Ventures Gaming, LLC, 2016 IL 119870, where we recently held that 

legislative intent to divest circuit courts of jurisdiction and to place exclusive 

original jurisdiction in an administrative agency may be discerned by considering 

the statute as a whole, with the relevant provisions construed together and not in 

isolation and with an eye toward the reason for the law, the problems sought to be 

remedied, and the purposes to be achieved. Id. ¶¶ 24-25. Application of that 

approach, however, does not support NAPG’s assertion that the legislature 

intended for the Commerce Commission to have exclusive jurisdiction over claims 

such as plaintiff asserted against ARESs. 

¶ 17 The Rate Relief Law, which created ARESs, is a component of the Public 

Utilities Act (220 ILCS 5/1-101 et seq. (West 2014)), and it is the Public Utilities 

Act that provides the foundational statutory scheme at play in this case. The Public 

Utilities Act was enacted to assure the provision of efficient and adequate utility 

service to the public at a reasonable cost. Local 777 v. Illinois Commerce Comm’n, 

45 Ill. 2d 527, 535 (1970). The Commerce Commission was created under the Act 

as the body responsible for maintaining “a balance between the rates charged by 

utilities and the services performed.” Sheffler v. Commonwealth Edison Co., 2011 

IL 110166, ¶ 40. 

¶ 18 The rate-making process is a complicated one. See, e.g., Ameren Illinois Co. v. 

Illinois Commerce Comm’n, 2012 IL App (4th) 100962, ¶¶ 8-13 (describing how 

the Commerce Commission establishes the rates a public utility may charge its 

customers). The legislature’s decision to place responsibility for that process on the 

Commerce Commission is a reflection of that complexity. In creating the 

Commerce Commission, the legislature understood that insuring that a public 

utility’s rates are just and reasonable and that its services are adequate would 

require consideration of complex technological and scientific data and expert 

opinion, and it determined that such matters are best addressed by a tribunal that is 

itself capable of passing upon complex data. See Sheffler, 2011 IL 110166, ¶ 40. 

¶ 19 When the legislature established the regulatory structure for public utilities 

under the Public Utilities Act and then conferred on the Commerce Commission 

responsibility for determining whether rates charged by those utilities are just and 

reasonable, it also vested exclusive jurisdiction in the Commerce Commission to 

consider complaints that a utility has charged an amount for its product, commodity 
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or service that is excessive or unjust. Id. ¶ 41; 220 ILCS 5/9-252 (West 2014). This 

is entirely logical. If technical expertise is needed to determine whether a utility 

rate is just and reasonable, it follows that the same technical expertise may be 

necessary to ascertain whether the rate subsequently charged by the utility is unjust 

or excessive. The two go hand in hand. 

¶ 20 Such considerations are not present, however, when it comes to ARESs. 

ARESs were not part of the traditional regulatory system established to govern 

public utilities. They were introduced under the Rate Relief Law as part of an effort 

to partially deregulate Illinois’s electricity market (Zahn, 815 F.3d at 1084-85). 

As we have already pointed out, ARESs are expressly excluded from the definition 

of “public utility” under the Public Utilities Act (220 ILCS 5/3-105(b)(9) (West 

2014)) and are not “electric utilities” under section 16-102 of the Rate Relief Law 

(220 ILCS 5/16-102 (West 2014)). They are simply “nonutilities licensed to sell 

retail electricity” (Commonwealth Edison Co. v. Illinois Commerce Comm’n, 328 

Ill. App. 3d 937, 939 (2002)). As such—and there is no dispute on this point—the 

prices they are permitted to charge are not established by the Commerce 

Commission through the conventional rate-making process and do not have to be 

submitted to the Commerce Commission for approval under the “just and 

reasonable” standard. In contrast to public utilities, an ARES’s prices are a matter 

of contract between the ARES and its customers. The technical and regulatory 

expertise of the Commerce Commission does not come into play. Accordingly, the 

justification for giving the Commerce Commission exclusive original jurisdiction 

over the disputes involving rates charged by public utilities is absent where, as here, 

the complaint concerns overcharging by an ARES. 

¶ 21 NAPG correctly points out that ARESs are subject to numerous statutory 

requirements that are under authority of the Commerce Commission. For example, 

there are provisions obligating ARESs to obtain certificates of service authority 

from the Commerce Commission before serving residential customers (220 ILCS 

5/16-115(a) (West 2014)); that forbid ARESs from discriminating against 

customers based on race, gender, or income (220 ILCS 5/16-115A(d) (West 

2014)); that require them to obtain authorization in prescribed form before 

switching customers from another supplier (220 ILCS 5/16-115A(b) (West 2014)); 

and that impose standards regarding their marketing and billing practices (220 

ILCS 5/16-115A(e) (West 2014)). Under section 16-115B(a) of the Rate Relief 
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Law (220 ILCS 5/16-115B(a) (West 2014)), complaints alleging violation or 

nonconformance with these or other provisions of the law applicable to ARESs 

may be entertained by the Commerce Commission. If the Commerce Commission 

determines that an ARES is in violation or noncomformance, it may order the 

ARES to cease and desist; impose financial penalties; or alter, modify, revoke, or 

suspend the ARES’s certificate of service authority. 220 ILCS 5/16-115B(b) (West 

2014). 

¶ 22 Zahn, the State, and the Commerce Commission differ somewhat in their 

assessment of the significance of these additional provisions. In the State’s view, 

they should be read as permitting claims such as those asserted by Zahn to be heard 

and disposed of by the Commerce Commission if an aggrieved residential 

consumer elects to pursue them in that forum. The Commerce Commission itself 

suggests that, at the most, its jurisdiction extends only to claims that an ARES’s 

rates or services are impermissible because they contravene the particular factors 

set forth in section 16-115A(d) of the Rate Relief Law (220 ILCS 5/16-115A(d) 

(West 2014)), a situation not present here. As for Zahn, she asserts that 

notwithstanding whatever other authority the Commerce Commission may 

possess, the absence of a provision expressly authorizing it to order reparations to 

consumers precludes a construction of the law that would confer exclusive 

jurisdiction over such claims on the Commerce Commission. 

¶ 23 We express no view on the relative merits of these respective positions, for it is 

unnecessary for us to do so. Whatever the precise scope of the Commerce 

Commission’s authority to consider claims asserted by residential consumers 

against ARESs, it is clear that nothing in the additional sections of the Public 

Utilities Act, including the provisions of the Rate Relief Law cited by NAPG, can 

fairly be read as expressing an explicit intention by the legislature that the 

Commerce Commission has exclusive original jurisdiction over those claims. 

Where the General Assembly has intended to confer exclusive jurisdiction on the 

Commerce Commission regarding a particular issue, it has said so specifically. See, 

e.g., 220 ILCS 5/16-125(h) (West 2014) (‘[r]emedies provided for under this 

Section [governing transmission and distribution reliability] may be sought 

exclusively through the Illinois Commerce Commission as provided under Section 

10-109 of [the Public Utilities] Act”). NAPG can cite no similar language with 

respect to claims of overcharging asserted by residential consumers against 
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ARESs. Consideration of the statute as a whole, as well as the reason for the law, 

the problems sought to be remedied, and the purposes to be achieved, therefore 

reaffirms the conclusion we reached at the outset of this opinion based our 

examination of section 9-252 of the Public Utilities Act: the claims of the type 

asserted by plaintiff in this case do not fall within the Commerce Commission’s 

exclusive jurisdiction. That being so, an Illinois circuit court would have 

subject-matter jurisdiction to entertain them. 

¶ 24 CONCLUSION 

¶ 25 For the foregoing reasons, we answer the certified question “Does the Illinois 

Commerce Commission have exclusive jurisdiction over a reparation claim, as 

defined in Sheffler v. Commonwealth Edison Company, 2011 IL 110166, brought 

by a residential consumer against an alternative retail electric supplier, as defined 

by section 220 ILCS 5/16–102?” in the negative.

¶ 26 Certified question answered.