Quick Takes on Illinois Supreme Court Opinions Issued Friday, January 23, 2026
Leading appellate attorneys review the six Illinois Supreme Court opinions handed down Friday, January 23.
People v. Dobbins, 2026 IL 131187
By Benjamin Lawson, Third District Appellate Court
Majority written by Justice Neville, unanimous
Summary
A petition for a certificate of innocence is not a cause of action that survives the death of the petitioner. Instead, it is a personal statutory right, and it may not be taken up by the petitioner’s survivors or estate.
Following a wrongful conviction for possession of a controlled substance, Gregory Dobbins petitioned for a certificate of innocence (COI) on May 23, 2022. Two weeks before a hearing was set to take place on his petition, he passed away. Dobbins’s life partner and the mother of his minor children, Katrina Crawford, moved to substitute herself as petitioner and proceed with the petition on behalf of his estate. The circuit court denied the motion to substitute, and the appellate court affirmed the denial.
Before the Supreme Court, Crawford requested the Court exercise its supervisory authority and issue an order nunc pro tunc to ensure he received a COI. However, as the Court pointed out, “[t]he purpose of a nunc pro tunc order is to correct the record of judgment, it is not to alter the actual judgment.” Because nothing in the record indicated that the circuit court intended to grant the petition for a COI but failed to do so, issuing an order nunc pro tunc would be inappropriate under the circumstances.
Crawford also requested the Court grant a COI pursuant to “the Tunnell exception.” In Tunnell v. Edwardsville Intelligencer, Inc., the Court permitted a defamation action to continue beyond the plaintiff’s death after a defamation trial where all factual questions had already been resolved and no new trial was required. Here, however, no hearing was held and no decision or judgment was rendered before the plaintiff died. The Court therefore declined to exercise its supervisory authority to remand the case to the circuit court.
Finally, Crawford argued that a petition seeking a COI should persist under the Survival Act, which provides that “[i]n addition to the actions which survive by the common law, the following also survive: *** actions to recover damages for an injury to the person.” 755 ILCS 5/27-6. Applying principles of statutory construction, the Court found that by its plain language the COI statute is not a cause of action to recover damages. The remedies available under the COI statute do not include monetary damages. Instead, they include (1) the issuance of a certificate of innocence, (2) an order expunging the petitioner’s arrest record, (3) an order instructing records to be sealed, and (4) an order removing the petitioner’s name from certain court records. A certificate of innocence is required to seek compensation before the Court of Claims, a separate tribunal from the circuit court established by statute and controlled by the legislative branch. Thus, a COI is a condition precedent to recovering damages, but it is not an “action to recover damages” as contemplated by the Survival Statute.
People v. Chambliss, 2026 IL 130585
By Benjamin Lawson, Third District Appellate Court
Majority written by Justice Theis, joined by Justices Overstreet, Holder White, Cunningham, and Rochford
Justice O’Brien dissented, joined by Justice Neville
Summary
The trial court erred when it failed to conduct a preliminary hearing to establish probable cause. However, that error was not “structural error” requiring reversal because it did not undermine the fairness of the trial or challenge the integrity of the judicial process.
On October 8, 2021, the defendant, Anzano Chambliss, was charged with three counts of aggravated battery for attacking two women outside a convenience store. At the time he was charged, the defendant was represented by an attorney on an unrelated misdemeanor, and prior to arraignment the court spoke on the record with defense counsel. Defense counsel asserted that a fitness evaluation was appropriate because there had been questions about the defendant’s fitness in the past. Accordingly, the defendant’s arraignment and preliminary hearings were postponed by agreement, and a fitness evaluation was ordered. The defendant refused to cooperate or meet with the evaluator. Defense counsel attempted to meet with the defendant and the evaluator at the jail, but the defendant continued to refuse to speak to the evaluator.
The court appointed a different evaluator, and on April 6, 2022, the new evaluator filed a report concluding the defendant was fit to stand trial. The court found the defendant fit, and the defendant insisted on his right to self-representation. The defendant complained that he had never been arraigned and no bond had ever been set in his case. The court set bond, and the defendant demanded a trial. A heated exchange ensued, and the defendant was removed from the courtroom. The court set a pretrial hearing for May 13, 2022, and a jury trial for May 26 and 27. At the pretrial hearing date, the State announced its intention to file a new information abandoning one count and amending the other two.
The case went to trial on May 26, 2022. The State called five witnesses who established that the defendant launched a sudden and unprovoked attack on two women after briefly engaging one of them in conversation. The defendant, representing himself, cross-examined each witness. His cross-examinations were argumentative, largely irrelevant, and yielded no exculpatory evidence. The defendant testified, stating he was diagnosed with a mental illness and by turns admitting and denying that the attack occurred. The jury convicted the defendant on both counts, and the defendant appealed.
The appellate court (5th District) reversed the defendant’s convictions on the basis that he was afforded neither a preliminary hearing nor a grand jury indictment. The appellate court noted the defendant failed to raise the issue prior to trial and did not file a post-trial motion and thus forfeited the issue. However, it elected to review the alleged error under the plain error doctrine. It found that the error qualified as structural error requiring outright reversal.
Before the Supreme Court, the State argued the defendant not only forfeit but waived his argument when he failed to file a motion to dismiss the case pursuant to 725 ILCS 5/114-1 (which provides for dismissal of the indictment upon written motion for failure to conduct a preliminary hearing). However, the Court analyzed 725 ILCS 5/109-3 (permitting a defendant to move for dismissal of the charges during a preliminary hearing), 725 ILCS 5/109-3.1 (requiring that every person in custody receive either a preliminary hearing or an indictment by grand jury within 30 days), and 725 ILCS 5/114-1. The Court found the defendant had not waived his argument that the trial court violated section 109-3, nor his argument that the court had failed to grant him a “prompt preliminary hearing to establish probable cause” as required by article I, section 7 of the Illinois Constitution. Neither did the defendant invite the error, as the responsibility for providing a preliminary hearing lies with the trial court, and while the defendant’s disruptive behavior may have distracted the court, that behavior did not invite the court to forego a constitutionally required procedure.
Nonetheless, the issue remained forfeit because the defendant failed to object to it or raise it in a post-trial motion. Under the plain error doctrine, an issue that is forfeit may be raised if it amounts to plain error. There are two “prongs” to the plain error doctrine following a clear and obvious error: (1) when the evidence is so closely balanced that the error threatened to tip the scales of justice against the defendant, or (2) when the error itself is so serious that it affects the fairness of the trial and the integrity of the judicial process. The appellate court categorized the failure to provide a preliminary hearing as second prong error. However, the Court observed that establishing second prong error (or “structural error”) is a “high bar” requiring the defendant to establish that the criminal trial was rendered fundamentally unfair or was “an unreliable means of determining guilt or innocence.” Second prong errors are not subject to harmless error analysis. That is, if a reviewing court may conclude that a constitutional error was harmless beyond a reasonable doubt, the error is not second prong plain error.
The Court concluded the error in this case was amenable to harmless error analysis because a preliminary hearing’s purpose is limited to determining whether sufficient probable cause exists to hold the accused for trial. It is not indispensable to a fair trial, and is unrelated to subsequent trial proceedings. It therefore cannot render those proceedings fundamentally unfair. When a trier of fact finds the defendant guilty, it renders the question of whether there was probable cause to detain the defendant meaningless because not only was there probable cause to believe the defendant was guilty, but the defendant was also in fact guilty beyond a reasonable doubt. Based on the facts of this case, and following the reasoning set forth in People v. Howell, 60 Ill. 2d 117 (1975), which the Court found was controlling, the Court held that the defendant was not deprived of a fair or impartial trial and that his forfeiture could not be excused under the second prong of the plain error doctrine. Thus, the Court overturned the appellate court and the defendant’s conviction was affirmed.
Justice O’Brien’s dissent, joined by Justice Neville
Justice O’Brien would have found that failing to conduct a preliminary hearing amounts to second prong plain error because it “adversely reflects on the integrity and reputation of the judicial process and undermines the fairness of a trial.” She observed that, under the majority’s reasoning, neither the State nor the trial court has any obligation to adhere to the statutory and constitutional requirement to hold a preliminary hearing prior to detaining a defendant so long as the defendant is later convicted. Moreover, errors that take place prior to trial may affect the “framework within which the trial proceeds, rather than being merely an error in the trial process itself.” She proceeded to distinguish the cases on which the majority relied in reaching its conclusion. In particular, she noted that Howell (which the majority found to be controlling) was “not an apt comparison” because the defendant there was indicted before the preliminary hearing and was not detained without a preliminary hearing.
Next, she noted that structural error has been found in situations that threaten the integrity of the justice system, such as violations of the one-act, one-crime principles, convictions on an uncharged but not lesser-included offense, the trial judge’s absence from the courtroom during a jury trial, etc. Justice O’Brien would find that the constitutional deprivation here threatens the integrity of the justice system because “[w]hen a defendant appears before a jury in our criminal justice system, the jurors may reasonably assume there has been a determination of probable cause to support that the person before the jury committed the charged offense or offenses.” The preliminary hearing’s purpose is to provide a safeguard or a check on the initial decision of the State to prosecute the defendant. Its absence “necessarily implicates the framework of a defendant’s trial.”
The three criteria for finding structural error described by the U.S. Supreme Court in Weaver v. Massachusetts, 582 U.S. 286 (2017) are: (1) the right at issue protects the defendant’s interest in something other than a wrongful conviction, (2) the effects of the violation are difficult or impossible to measure, and (3) the error always results in fundamental unfairness. Justice O’Brien would find that all three criteria were met in this case. In short, the majority incorrectly focused on the fairness of the trial itself and not on the unfairness of the process or the effects of the error on the integrity of the judicial system.
People v. Vesey, 2026 IL 130919
By Benjamin Lawson, Third District Appellate Court
Majority written by Justice Holder White, joined by Justices Theis, Overstreet, Cunningham, Rochford, and O’Brien
Special concurrence by Justice Neville
Summary
This case resolves the circumstances under which a trial court is required to provide a jury instruction on self-defense. In a battery case involving a police officer who uses excessive force, the court must apply the “long-standing, six-element test acknowledged by *** People v. Jeffries” and provide the instruction if some evidence of each factor is present. Here, the circuit court abused its discretion when it refused to give the instruction, and the Court reversed and remanded for a new trial.
Courtney Vesey was charged with two counts of aggravated battery to a police officer following an altercation with officers from the Rock Island Police Department. The evidence presented at trial established that Vesey was at a park with his daughter, A.V., and his ex-wife asked police to check on them after receiving a strange text message from A.V. Officer Taylor arrived and patted Vesey down without incident. However, during conversation Vesey began making strange statements and behaving erratically. Vesey’s ex-wife arrived, and the police decided that A.V. should leave with her.
Vesey became angry, and officers placed themselves between him and A.V. Vesey approached the officers, and they gave him verbal commands to stay back. Another officer, Kuhlman, stuck his arm out and touched Vesey’s chest. Vesey pushed his arm away and said, “get your hand off me.” Kuhlman stated he was not injured or in pain, but Taylor, believing Vesey had committed a battery to Kuhlman, moved to arrest Vesey. He decided to effect the arrest by, without warning, tackling Vesey into a grassy area. As he did so, Vesey first tried to push Taylor’s arms away, then wrapped his arms around Taylor’s head, and they both fell backward over a retaining wall into the grass. Body cameras captured the interaction, and videos from those cameras were played for the jury.
At the conclusion of Vesey’s trial, the State initially submitted a self-defense instruction “as a courtesy to the defense” but noted it did not think the instruction was applicable because under 720 ILCS 5/7-7 a person is not authorized to use force to resist an arrest which he knows is being made by a peace officer, even if he believes the arrest to be unlawful. The court found the defendant was not under arrest at the time and applied the six-factor test approved in People v. Jeffries. The six factors are: (1) force is threatened against a person, (2) the person is not the aggressor, (3) the danger of harm was imminent, (4) the threatened force was unlawful, (5) he actually and subjectively believed a danger existed which required the use of the force applied, and (6) his beliefs were objectively reasonable. The court found that only the first element had been established and declined to offer the self-defense instruction. Following deliberations, the jury acquitted Vesey of the aggravated battery of Kuhlman but found him guilty of battering Taylor.
On appeal, the appellate court (4th District) analyzed section 7-5 (addressing an officer’s use of force in making arrests), section 7-5.5 (addressing the prohibited use of force by an officer), and section 7-7 (addressing a person’s use of force in resisting arrest). The appellate court concluded that a two-step inquiry was required. First, the trial court must consider whether the record contains sufficient evidence of excessive force (If not, section 7-7 prohibits the defendant from raising self-defense). If there is sufficient evidence of excessive force, then the court must determine whether the record contains sufficient evidence of self-defense as governed by the six-element test. The appellate court distanced itself from the approach taken in People v. Ammons, a 3rd District case suggesting that a jury instruction on self-defense is required where there is any evidence the arresting officer used excessive force.
The Supreme Court rejected both approaches, observing that they each strayed from the six-element test outlined in Jeffries, which still applies in situations where a defendant uses force against a police officer. The Court acknowledged that there are additional considerations under such circumstances, such as whether the officer used unlawful (excessive or otherwise prohibited) force. However, the Court found the core test remains the same whether a person seeks a self-defense instruction for the use of force against a police officer or any other person: the defendant must establish some evidence, however slight, of each of the elements listed in Jeffries. Here, the appellate court applied the wrong evidentiary standard when it required the defendant to provide sufficient evidence, an approach that risked intruding on the jury’s prerogative to weigh the evidence. The Court also overruled Ammons based on its failure to require some evidence of each of the Jeffries elements.
Turning to the facts of this case, the Court first observed that the correct standard of review was for an abuse of the trial court’s discretion and not de novo review. Applying the Jeffries test to this case, the Court found that the circuit court abused its discretion when it refused to provide the self-defense instruction. The Court found there was some evidence that Taylor threatened force against Vesey and some evidence that that force was unlawful as he tackled Vesey into a concrete-brick retaining wall and made no attempt to effect a peaceful arrest. The Court found there was at least some evidence that Taylor’s belief that the level of force he used was necessary was unreasonable since Vesey had made only minimal physical contact with officers prior to Taylor’s arrest. The ultimate question of whether Taylor’s use of force was justified “should have been decided by a jury properly instructed on the issue of self-defense.”
The Court found there was some evidence that Vesey was not the aggressor. He agreed to be patted down, obeyed officers’ directions, and did not use any aggressive words or take any aggressive actions toward the officers. He did not make physical contact with the officers until Kuhlman pushed him in the chest. As to the third element, Vesey did not wrap his arms around Taylor’s neck until after Taylor unexpectedly tackled him and pushed him toward a concrete wall. The trial court and the appellate court found that the fifth and sixth elements (Vesey’s subjective, reasonable belief in the existence of a danger requiring the use of force) were not satisfied because Vesey’s act of wrapping his arms around Taylor’s neck could have either been an automatic reaction or the result of frustration. However, the Court pointed out that this framing misconstrues the analysis, which must be whether the record shows some evidence the defendant had a subjective reasonable belief that his use of force was necessary. Deciding what Vesey’s motivations might have been or whether they were justified are questions for the jury to resolve. Because there was some evidence that Vesey subjectively believed there was danger to himself and some evidence his belief was reasonable, the instruction should have been given.
The Court found the trial court’s abuse of discretion was not harmless error because the State was unable to demonstrate that the verdict would have been the same if the jury had been properly instructed. Accordingly, it reversed the appellate court and remanded the case for a new trial.
Justice Neville, special concurrence
Justice Neville concurred in the reversal of the defendant’s conviction. However, he would have reviewed the trial court’s decision de novo. He disagreed with the majority’s reliance on People v. McDonald, which suggested the decision whether to offer a particular jury instruction should be reviewed for an abuse of the court’s discretion.
Schilling v. Quincy Physicians and Surgeons Clinic, S.C., 2026 IL 131411
By Karen Kies DeGrand, Donohue Brown Smyth LLC
In this medical malpractice case, the Illinois Supreme Court considered the effect of the trial court’s “Prim instruction” telling the jury to continue deliberations after a juror communicated the belief that the defendant physician was negligent and impacted the plaintiff’s care, and that the juror would agree to a verdict only “to end this.” Determining that the instruction guided the jury but did not coerce it to reach a verdict, the Supreme Court affirmed the judgment based on a defense verdict reached shortly after the jury received the instruction.
The issue regarding the instruction, derived from the Supreme Court’s decision in People v. Prim, 53 Ill. 2d 62 (1972), arose during the trial in plaintiff Robert Schilling’s lawsuit contending that defendants, Dr. Kreg Love and his employer, Quincy Physicians & Surgeons Clinic, S.C., misdiagnosed a fracture in plaintiff’s leg as an infection. According to plaintiff, the misdiagnosis led to the amputation of his leg below his knee. Deliberations began at 2:25 p.m. following six days of testimony, much of it complex expert testimony. At 7 p.m., the jury sent a note to the trial court stating it was “obvious” that the jurors would not come to a unanimous verdict even if it deliberated for “hours and hours.” By agreement of the parties, the court responded: “Please continue your deliberations. We will check back in with you shortly.” At 7:55 p.m., the court released the jury. Deliberations resumed the next morning at 9:02 a.m. At 9:40, the judge informed the lawyers that an unidentified juror sent the judge a note stating the juror would sign the verdict for Dr. Love despite the juror’s “firm support” for Mr. Schilling–only to “put an end” to deliberation. Arguing that the note, which the parties referred to as “the Surrender Note,” established the jury was deadlocked, plaintiff’s attorney moved for a mistrial. On questioning by the judge, the foreperson stated he understood that the jury was deadlocked. The trial court denied plaintiff’s motion for a mistrial and, orally and in writing, gave the jury an instruction saying:
“The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to it. Your verdict must be unanimous. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But, do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans. You are judges—judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.” Illinois Pattern Instructions, Civil, No. 1.05.
At 11:00 a.m., the jury informed the court that it reached a verdict, and plaintiff’s counsel requested the court to poll the jury. After the defense verdict was announced, the court asked each juror: “Was this then and is this now your verdict?” Each juror said “yes,” including juror 34, who gave his answer after pausing and loudly sighing. Arguing that juror 34 may have written the Surrender Note, plaintiff’s counsel moved the court for further polling. The trial court denied the request for additional polling and plaintiff’s motion for a mistrial.
As did the trial and appellate courts, the Supreme Court rejected plaintiff’s two arguments for a new trial: that the judge erred in denying his motion for a mistrial made when the court received the Surrender Note and subsequently in denying the request for additional polling of the jury. On the first issue, plaintiff argued the Surrender Note established a juror’s refusal to continue deliberations, which plaintiff characterized as juror misconduct necessitating a mistrial. The Supreme Court emphasized the broad discretion of the trial court in ruling on a motion for a mistrial based on the contention that a jury is hopelessly deadlocked and observed that the “discretionary decision implies a range of acceptable outcomes.” Citing People v. Kimble, 2019 IL 122830, the Supreme Court considered the “nonexhaustive factors” for reviewing a trial court’s denial of a motion for a mistrial based on jury deadlock: the jury’s statements about inability to agree and communications to the judge, the length and complexity of the trial, the duration of deliberations, and the potential prejudice of continued forced deliberations. The Supreme Court noted the relatively short period of time (4 and one-half hours) the jury deliberated before indicating it could not agree and the timing of the trial court’s receipt of the Surrender Note. The Supreme Court agreed with the appellate court’s analysis that the Surrender Note, written before the Prim instruction was given, reasonably could be interpreted not as juror misconduct but as the author’s effort to gain the trial court’s attention about the perceived deadlock and as a “plea for guidance” rather than abandonment of the juror’s duties.
The Supreme Court also rejected plaintiff’s argument that the instruction was inherently coercive. The Court distinguished cases involving the equivalent to an “Allen charge” (Allen v. United States, 164 U.S. 492 (1896)), in which a trial court in essence instructs the jury it must arrive at a verdict and does not leave open the option of returning no verdict in the event the group could not reach a consensus. The Supreme Court allowed that here, when initially notified of a deadlock, the trial judge directed the jurors to continue deliberating without providing guidance. However, after receiving the Prim instruction, which left open the option of returning no verdict in the absence of consensus, the jury continued to deliberate and reached a verdict less than an hour later. The Supreme Court found the facts, including the jurors’ responses during polling, supported the conclusion that the instruction provided guidance consistent with the purpose of the instruction. Noting the trial judge is best positioned to determine whether a potentially deadlocked jury can reach a fair verdict if it continues to deliberate, the Court found no abuse of the trial court’s discretion in denying the motion for mistrial or in issuing the Prim instruction.
The Supreme Court also found no abuse of discretion in the refusal to conduct additional polling. Plaintiff argued that the polling merely affirmed that the author of the Surrender Note voted solely to end deliberations and that the trial court should have conducted additional questioning to determine whether the juror had reconsidered the statements made in the note. Disagreeing, the Supreme Court found the juror had the opportunity to voice coercion, mistake or dissent during the polling process. The trial court asked the approved question, “Was this then and is this now your verdict?” All of the jurors answered “yes” when asked whether the verdict was their verdict, unlike cases in which a juror signaled dissent to a verdict or hesitated to respond during polling. In the Court’s view, the pause and sigh before answering “yes” did not express ambivalence or disagreement with the verdict. The Court cautioned that while the polling process should determine the juror’s intent, it should not provide another arena for deliberations.
The unanimous court affirmed the judgments of the appellate and trial courts.
Concerned Citizens & Property Owners, et al. v. The Illinois Commerce Commission, 2026 IL 131026
By Amanda J. Hamilton, Akerman LLP
In Concerned Citizens & Property Owners v. The Illinois Commerce Commission, the Supreme Court addressed whether the Illinois Commerce Commission (“ICC”) properly granted a certificate of public convenience and necessity (“CPCN”) to applicant and appellant Grain Belt Express, LLC (“GBX”) and whether a showing of “current and present capability” is a condition precedent to the issuance of a CPCN under the Public Utilities Act.
GBX sought a CPCN from the ICC to construct and operate a high-voltage direct current (“HVDC”) transmission line. The line would originate at wind-generating facilities in Kansas, travel through Missouri, traverse nine Illinois counties, and end at an electricity substation in Indiana. GBX filed its application with the ICC under Public Utilities Act Sections 8-406(b-5) and 8.406.1. Multiple parties intervened and objected, including but not limited to the Concerned Citizens & Property Owners, the Illinois Agricultural Association (also known as the Illinois Farm Bureau), the Concerned People Alliance, and others (hereafter collectively referred to as “Concerned Citizens”), while several other groups, including but not limited to Clean Grid Alliance, Hanson Aggregates Midwest, Greyrock, LLC and Citizens Utility Board, and the Illinois Manufacturers Association intervened in support of GBX’s application. Concerned Citizens argued that GBX failed to comply with statutory requirements and challenged the constitutionality of the statute.
In its application, GBX explained that its HVDC transmission line project was designed to deliver energy to buyers in Missouri, Indiana, Illinois and to other states within the Midcontinent Independent System Operator (MISO) and PJM Interconnection LLC (PJM) grids through the grid’s existing infrastructures. To fund the project, GBX provided evidence that GBX was a wholly owned subsidiary of Invenergy Transmission, LLC, and affiliate of Invenergy Renewables, LLC (“Invenergy”) and was created as a special purpose entity to construct, own, and operate the project without any assets, debt, or liabilities. Cost recovery would come through sales, leases, and agreements with transmission service customers. GBX would not finance or recover its infrastructure costs from Illinois ratepayers; rather, GBX and its investors would be assuming all market risk.
GBX had already secured regulatory approvals from Missouri, Kansas, and Indiana before it filed its application with Illinois. It explained that it would use the “project finance” method of funding construction (which was common in the industry), whereby GBX would enter into long-term contracts and commercial agreements with customers for transmission of capacity once preliminary development and regulatory permitting was completed. GBX would then use those contracts as security to execute project-specific financing with lenders and investors. These lenders and investors generally require that the project developer already have secured the necessary permits and approvals, have secured financing commitments beyond the lender’s funding, and have a high degree of certainty on the project’s budget and timeline before they will financially commit. GBX’s financing would therefore depend on finding transmission service customers who will pay charges for the service.
GBX presented evidence that it would finance 65% to 80% of the estimated $6.5 billion project through debt with loans from commercial banks and the US Department of Energy. The rest would be raised from equity investors, including investments from its parent company, Invenergy, and its affiliates. GBX presented testimony that these entities have capital resources to undertake initial development and permitting costs and that Invenergy had long-term successful relationships with several large commercial lenders whom GBX could turn to for financing. GBX also presented evidence from executives from both GBX and Invenergy regarding the individuals’ experience in financing large-scale energy projects and that Invenergy had previously developed and financed 191 large-scale clean power projects in the United States.
The ICC’s senior financial analyst testified that he recommended requiring GBX obtain financial commitments for the entire project before it began construction on any easement property in Illinois, whereas GBX proposed it should only have to obtain financing for only the Illinois phase of the project.
The ICC issued the CPCN, finding that GBX was a qualifying applicant, that the project was a qualified project, and that GBX was “capable of financing” the project without “significant adverse financial consequences for GBX or its customers.” The ICC noted that the project finance method was commonly used in the energy infrastructure industry, that it had reviewed GBX’s capitalization, experience, and financial relationships, and that it concluded there would be sufficient transmission contracts to support the financing and that the revised financing condition recommended by the ICC financial analyst would protect Illinoisans. It further noted that GBX agreed that it would not allocate the costs of the project construction and operation to Illinois ratepayers without ICC approval and that there was no evidence that the project would adversely affect property values.
Concerned Citizens sought direct administrative review in the Fifth District Appellate Court. The appellate court reversed the ICC’s order, finding the GBX did not establish that it is capable of financing the project without significant adverse financial consequences for itself or its customers. The appellate court called the project finance method “speculative financing” and further held that Section 8-406.1(f)(3) was a condition precedent to the issuance of a certificate.
GBX and the ICC’s petition for leave to appeal to the Supreme Court was granted and several amicus briefs were filed in support of GBX. In its analysis, the Supreme Court agreed with the ICC that GBX was a “qualified direct current applicant” and that the project was a “qualified direct current project” Section 8-406(b-5).
As to the requirements of Section 8-406.1(f)(3), which requires a showing that “the public utility is capable of financing the proposed construction without significant adverse financial consequences for the utility or its customers,” the Supreme Court noted that GBX argued for a “forward-looking” requirement, whereas Concerned Citizens argued that the statute requires an applicant to demonstrate a “current capability to finance the project.” In analyzing the statute, the Supreme Court agreed with GBX’s interpretation, finding that “capable” included “traits conducive to or features permitting the project financing,” and that the ICC was correct to reject Concerned Citizens’ more narrow interpretation which required the ability to finance the project “at present.” The Supreme Court noted that this interpretation also aligned with the legislature’s express commitment to reduce the state’s dependency on fossil fuels and to move to renewable energies.
As to the issue of whether GBX sufficiently demonstrated that it was capable of financing the proposed construction, the Supreme Court held that GBX presented “substantial evidence” in support of such a finding, and further held that Section 8-406.1(f)(3) did not specify what type of evidence needs to be presented and did not specifically require the evidence to be in the form of financial statements. The Supreme Court reviewed the revised financing conditions proposed by the ICC and agreed that the conditions were sufficient to protect GBX and its customers.
The Supreme Court further held that the Fifth District Appellate Court improperly rejected witness testimony and disregarded evidence presented, further stating: “The court’s reweighing of the evidence and substituting its conclusions for those of the ICC were contrary to the canons of statutory construction.”
In concluding, the Supreme Court stated: “We find the record presents substantial evidence supporting the ICC’s finding that GBX ‘is capable of financing the project without significant adverse financial consequences’ to it or its customers and that the revised financing condition ensures that GBX will not begin construction until it can pay for the entire project. Proof of GBX’s current and present financial capability was not a condition precedent to the issuance of the CPCN. Instead, evidence of the industry’s method of financing the construction of large-scale energy projects, along with unrefuted evidence that such projects do not generate revenue until regulatory permits are issued and customer contracts are executed, supports the ICC’s decision to issue a CPCN to GBX.”
The unanimous opinion was authored by Justice O’Brien, with Justice Holder White taking no part in the decision.
Griffith Foods International, Inc. v. National Union Fire Insurance Company of Pittsburgh, P.A., 2026 IL 131710
By Amelia Buragas, Illinois State University
In this insurance coverage matter, the Illinois Supreme Court considered the meaning and scope of pollution exclusion provisions that are common in standard-form commercial general liability (CGL) policies. Specifically, the Court considered whether and to what degree a permit or other government regulation authorizing emissions impacts the application of a pollution exclusion contained in a standard-form CGL policy. The Court ultimately held that the existence of regulations or a permit has no relevance in assessing the application of the pollution exclusion, explaining that to find otherwise would “undermine the pollution exclusion’s very purpose.”
The underlying litigation arose when residents of DuPage County alleged that a medical-equipment sterilization facility located in the Village of Willowbrook emitted ethylene oxide (EtO) and that these emissions caused residents to experience a range of illnesses, including cancer and other serious diseases. This led to the filing of multiple personal injury lawsuits, which the plaintiffs in this matter submitted to their insurance carrier, National Union Fire Insurance Company of Pittsburgh, P.A. The insurance company denied coverage and refused to defend the lawsuits, citing a pollution exclusion provision in the CGL policy that barred coverage for injuries arising out of the discharge of contaminants or pollutants. The policyholders filed a lawsuit in federal court and the district court held that the insurer had a duty to defend, finding that the pollution exclusion did not apply because the ethylene oxide was emitted pursuant to a permit issued by the Illinois Environmental Protection Agency. The Seventh Circuit observed an existing “tension” in Illinois law on the question of coverage and certified the question to the Illinois Supreme Court “to illuminate a clear path on this issue.”
The Illinois Supreme Court began its analysis with its decision in American States Insurance Co. v. Koloms, 177 Ill. 2d 473 (1997) in which the Court considered and limited the scope of the environmental exclusion to injuries caused by “traditional environmental pollution” and not by “more commonplace emissions.” Under Koloms, the Court explained, a leak of carbon monoxide from a residential furnace or excess chlorine in a backyard swimming pool would not fall under the exception because of their “commonplace” nature. The Court then considered a case from the Third District, Erie Insurance Exchange v. Imperial Marble Corp., 2011 IL App (3d) 100380. In Imperial Marble, the appellate court held that the pollution exclusion of an insurance policy was “arguably ambiguous” as to whether the emission of hazardous materials in levels permitted by the IEPA constituted “traditional environmental pollution” and resolved the issue in favor of the policyholder. The Fifth District subsequently considered substantially the same issue in Country Mutual Insurance Co. v. Bible Pork, Inc., 2015 IL App (5th) 140211, and reached the same result: the language of the pollution exclusion was ambiguous and liberally construed it in favor of the policyholder. The Supreme Court also analyzed Scottsdale Indemnity Co. v. Village of Crestwood, 673 F.3d 715 (7th Cir. 2012) in which the Seventh Circuit reached the opposite conclusion and found that the pollution exclusion applied to alleged groundwater contamination even though the amount of contaminant in the water was below the maximum level permitted by environmental regulations.
The defendants in this case urged the Supreme Court to follow the Seventh Circuit’s reasoning in Scottsdale, arguing that if the court were to hold that the pollution exclusion did not apply to permitted emissions, it would be the first state to reach such a holding. The policyholders, on the other hand argued that the Illinois appellate courts correctly concluded that the language of the exclusion was ambiguous as to whether permitted emissions were “traditional environmental pollution” under Koloms. The Supreme Court disagreed with the policyholders’ argument.
The Court explained that the pollution exclusion, which is now standard in CGL policies and was drafted in response to concerns about costly environmental litigation, specifically excludes coverage from pollution harms as they are ordinarily understood. The Court then observed that the plain language of the standard-form pollution exclusion bars coverage for litigation involving the “the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water.” The discharge of EtO emissions into the atmosphere “fits squarely within that plain language.” The Court also found that these emissions align with the plain and ordinary meaning of “traditional environmental pollution” or “pollution harms as ordinarily understood” and that the IEPA permit “does not change this analysis.” The Court noted that the language of the exclusion is silent on the question of permits and that the existence of a permit “did not change the character or substance” of the emissions. Both Imperial Marble and Bible Pork were overruled to the extent that they conflicted with this conclusion.
Justice Cunningham wrote the unanimous opinion. Justice Rochford took no part in the decision.