Hampton v. Metropolitan Water Reclamation District

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Supreme Court Date: 2016.09.01

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Hampton v. Metropolitan Water Reclamation District, 2016 IL 119861

Caption in Supreme JENICE HAMPTON et al., Appellees, v. METROPOLITAN

Court: WATER RECLAMATION DISTRICT OF GREATER CHICAGO,

Appellant.

Docket No. 119861

Filed July 8, 2016

Decision Under Appeal from the Appellate Court for the First District; heard in that

Review court on appeal from the Circuit Court of Cook County; the Hon. Neil

H. Cohen, Judge, presiding.

Judgment Reversed and remanded with directions.

Counsel on Ronald M. Hill, Lisa Luhrs Draper, James J. Zabel and Ellen M.

Appeal Avery, of Chicago, for appellant.

Glen J. Dunn, Jr., and Angel P. Bakov, of Glen J. Dunn & Associates,

LTD., and Jeffrey Grant Brown, all of Chicago, for appellees.

Eric G. Patt and Richard Lee Stavins, of Robbins, Salomon & Patt,

LTD., of Glenview, for amicus curiae Village of Glenview.

Roy M. Harsch and John A. Simon, of Drinker Biddle & Reath LLP,

of Chicago, for amicus curiae Illinois Association of Wastewater

Agencies.

Jenifer L. Johnson, of Springfield, for amicus curiae Illinois

Municipal League.

Justices CHIEF JUSTICE GARMAN delivered the judgment of the court,

with opinion.

Justices Thomas, Karmeier, and Theis concurred in the judgment and

opinion.

Justice Burke specially concurred, with opinion, joined by Justices

Freeman and Kilbride.

OPINION

¶1 Plaintiffs, a class of property owners, filed complaints against the Metropolitan Water

Reclamation District of Greater Chicago (the District), based on allegations of flooding on

their properties following a rainstorm. The circuit court consolidated the complaints. Plaintiffs

assert that the District caused the flooding by diverting stormwater into nearby creeks.

Plaintiffs claim that the flooding constitutes a taking for which they are entitled to just

compensation under the Illinois takings clause. The District moved to dismiss the consolidated

complaint based on this court’s decision in People ex rel. Pratt v. Rosenfield, 399 Ill. 247

(1948). The District contends that, based on Pratt, a temporary flooding can never constitute a

taking under the Illinois Constitution. More recently, however, the United States Supreme

Court concluded that temporary flooding can constitute a taking under the federal constitution.

Arkansas Game & Fish Comm’n v. United States, 568 U.S. ___, 133 S. Ct. 511 (2012). The

Cook County circuit court denied the District’s motion to dismiss the Illinois takings clause

claim and certified the following question pursuant to Illinois Supreme Court Rule 308 (eff.

Feb. 26, 2010): “Does Arkansas Game and Fish Commission v. U.S.[,] 133 S. Ct. 511 (2012),

overrule the Illinois Supreme Court’s holding in People ex rel. Pratt v. Rosenfield, 399 Ill. 247

(1948)[,] that temporary flooding is not a taking?”

¶2 The appellate court recognized that the Illinois takings clause provides broader protection

than the federal takings clause but did not address whether a “taking” is defined in the same

way under each clause. The appellate court interpreted Pratt as establishing a “blanket

temporary-flooding exception” and held that Arkansas Game & Fish Comm’n overruled Pratt

to the extent that Pratt held a temporary flooding could never be a compensable taking. We

allowed defendant’s petition for leave to appeal pursuant to Illinois Supreme Court Rule 315

(eff. Jan. 1, 2015).

¶3 BACKGROUND

¶4 Plaintiffs are property owners and residents of the villages of Bellwood, Hillside, and

Westchester. These villages are located within Cook County and within the territory for which

the District is responsible for stormwater management. On or about July 23-24, 2010, Cook

County experienced a heavy rainfall. Plaintiffs allege that, in response to the rain, defendant:

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(1) closed the Lockport Lock and Dam floodgate to the Des Plaines River, which affected the

water levels on Lower Salt Creek, Addison Creek, and the Lower Des Plaines River; (2) closed

the locks to Lake Michigan at the Chicago Water Control Works, which affected the water

level of the Lower Des Plaines River; (3) discharged excess stormwater runoff from the

O’Hare South Detention Basin, the O’Hare North Retention Pond, and Touhy Avenue Flood

Control Reservoir Cells 1 and 2 into the surrounding waterways, which caused an increase in

flow and volume in waterways upstream and downstream of Hillside, Bellwood, and

Westchester; (4) pumped stormwater into Addison Creek, which caused an increase in flow

and volume in Addison Creek; and (5) pumped stormwater from the Mayfair Reservoir into

Lower Salt Creek, which caused an increase in flow and volume in Lower Salt Creek. Plaintiffs

also allege that on or before July 23 and 24, 2010, the District was engaged in maintenance

activity within the Lower Salt Creek and Addison Creek channels. Plaintiffs claim that, as the

result of these activities, Addison Creek and Lower Salt Creek overtopped their banks and

caused flooding on properties owned and occupied by plaintiffs. Plaintiffs also allege these

actions caused sewers to back up, which caused additional flooding.

¶5 In asserting their claim of a violation of the Takings Clause, plaintiffs allege that their

homes, personal belongings, basements, and other private property were damaged or destroyed

as a result of the flooding. Plaintiffs also allege that members of the class were deprived of the

use of their homes because of the backup from the public sewers and overtopping of the creeks.

Plaintiffs’ complaint does not further explain how the flooding deprived members of the use of

their homes, the extent of the damage, how long the properties remained flooded, or whether

the damage caused by the flooding has been or could be repaired.

¶6 The District moved to dismiss the complaint under sections 2-615 and 2-619 of the Code of

Civil Procedure. 735 ILCS 5/2-615, 2-619.1 (West 2014). The circuit court granted the motion

as to count I and thereby dismissed plaintiffs’ claim based on a violation of the Metropolitan

Water Reclamation District Act. That claim is not at issue in this appeal. Next, the circuit court

denied the District’s motion to dismiss plaintiffs’ takings clause claim, based on its finding that

plaintiffs sufficiently alleged a physical invasion of their properties as a result of the District’s

actions. The circuit court then granted the District’s motion to certify the following question

for interlocutory appeal under Illinois Supreme Court Rule 308: “Does Arkansas Game and

Fish Commission v. U.S.[,] 133 S. Ct. 511 (2012), overrule the Illinois Supreme Court’s

holding in People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948)[,] that temporary flooding is

not a taking?” See Ill. S. Ct. R. 308 (eff. Feb. 26, 2010).

¶7 The appellate court declined to consider the facts of the case and addressed only the

certified question. The appellate court first compared the takings clause of the Illinois

Constitution with the takings clause in the fifth amendment to the U.S. Constitution. The court

found that the “Illinois takings clause provides protection greater than that of its federal

counterpart.” 2015 IL App (1st) 132317, ¶ 14 (citing International College of Surgeons v. City

of Chicago, 153 F.3d 356, 363 (7th Cir. 1998)). The court concluded that, “to the extent that

Pratt holds that temporary flooding of property can never be a compensable taking under the

Illinois Constitution, it is effectively overruled by Arkansas Game & Fish Comm’n.” Id. ¶ 26.

The appellate court remanded the case to the circuit court to address the merits of plaintiffs’

complaint in light of this conclusion. The District filed a petition for leave to appeal to this

court, which we allowed. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015). This court also granted leave to

the Illinois Association of Wastewater Agencies, the Illinois Municipal League, and the

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Village of Glenview to file amicus curiae briefs.

¶8 ANALYSIS

¶9 This court is now asked to review the appellate court’s answer to the certified

question—whether Arkansas Game & Fish Comm’n overruled the Illinois Supreme Court’s

holding in Pratt that temporary flooding is not a taking. Our review of the appellate court’s

ruling on certified questions is governed by Rule 308. DeBouse v. Bayer, 235 Ill. 2d 544, 550

(2009). We review certified questions, which are by definition questions of law, de novo.

Moore v. Chicago Park District, 2012 IL 112788, ¶ 9. Plaintiffs’ claim is based solely on the

Illinois takings clause. This court is the final arbiter of state law. Hope Clinic for Women, Ltd.

v. Flores, 2013 IL 112673, ¶ 79. The U.S. Supreme Court has no authority to overrule a state

court’s declaration of the meaning of state law. Id.; see Bute v. Illinois, 333 U.S. 640, 668

(1948) (“The Supreme court of Illinois has affirmed both sentences ***. It has thus

conclusively established their compliance with Illinois law.”). Therefore, the Supreme Court’s

decision in Arkansas Game & Fish Comm’n could not overrule a decision of this court

regarding the Illinois takings clause.

¶ 10 However, Illinois employs a limited lockstep approach when interpreting cognate

provisions of the Illinois and U.S. Constitutions. Under this approach, there are three possible

scenarios. People v. Caballes, 221 Ill. 2d 282, 289 (2006). If a provision is unique to the state

constitution, it must be interpreted without reference to a federal counterpart. Id. If a provision

in the state constitution is similar to a provision in the federal constitution, but differs from it in

some significant respect, the language of the provision must be given effect. Id. at 289-90.

Lastly, if a provision of the state constitution is identical to or synonymous with the federal

constitutional provision, federal authority on the provision prevails, unless “the language of

our constitution, the constitutional convention debates and committee reports, or state custom

and practice *** indicate that the provisions of our constitution are intended to be construed

differently.” Hope Clinic for Women, Ltd., 2013 IL 112673, ¶ 83. Under this approach, this

court will follow the lead of the United States Supreme Court when it publishes decisions

regarding a constitutional provision if it is determined that the relevant provision is to be

interpreted as synonymous with its Illinois counterpart. The circuit court should have avoided

the use of the term “overruled” and drafted its certified question in a way that would better

reflect the role of federal precedent in Illinois law. Nevertheless, we will consider whether the

decision in Arkansas Game & Fish Comm’n ought to be incorporated into this court’s Illinois

takings clause jurisprudence and, if so, whether that decision conflicts with this court’s

decision in Pratt.

¶ 11 The first step to resolving this question is to determine whether the takings clauses of the

Illinois and U.S. Constitutions are synonymous. The Illinois takings clause states: “Private

property shall not be taken or damaged for public use without just compensation as provided

by law. Such compensation shall be determined by a jury as provided by law.” Ill. Const. 1970,

art. I, § 15. The federal takings clause, in relevant part, provides: “nor shall private property be

taken for public use, without just compensation.” U.S. Const., amend. V. Clearly, the takings

clause is not unique to the Illinois Constitution and therefore does not fall within the first

category described above.

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¶ 12 The District contends that, because the language of the Illinois clause differs from the

language of the federal clause, the two clauses should not be interpreted as meaning the same

thing. The relevant difference in the two clauses is the explicit inclusion in the Illinois clause of

protection for property that is “damaged” and the requirement that compensation be

determined “by a jury as provided by law.” Plaintiffs alleged that their properties were both

taken and damaged. However, the certified question addresses only property that is taken, and

thus we examine first what constitutes a taking under Illinois law in order to determine whether

Arkansas Game & Fish Comm’n is relevant to a takings claim analysis under Illinois law.

¶ 13 We find no convincing evidence that the delegates to the Illinois constitutional conventions

intended for a “taking” to be defined differently from its federal counterpart. See Forest

Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth

amendment’s prohibition of the taking of private property for public use without just

compensation does not preclude the State from taking private property, but only requires the

State pay compensation.’ *** We interpret our present State constitutional protection against

taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois

Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403

Ill. 549, 554 (1949) (noting that the same test is applied by the Illinois Supreme Court and the

federal courts to determine whether real estate has been taken for public use within the

meaning of the takings clauses); see also City of Chicago v. ProLogis, 236 Ill. 2d 69, 77, 80-81

(2010) (analyzing takings claims under the Illinois and United States Constitutions in the same

way and declining to consider whether the Illinois clause provides greater protection, because

the party making the argument failed to raise it in petition for leave to appeal and thus the

argument was forfeited); Cwik v. Giannoulias, 237 Ill. 2d 409, 417-19 (2010) (analyzing

takings claims based on the state and federal constitutions in the same manner); Canel v.

Topinka, 212 Ill. 2d 311, 331-32 (2004) (same); Village of Lake Villa v. Stokovich, 211 Ill. 2d

106, 130 (2004) (same); Southwestern Illinois Development Authority v. National City

Environmental, L.L.C., 199 Ill. 2d 225, 235-42 (2002) (same).

¶ 14 A review of the transcripts from the Constitutional Convention of 1870, when the

“damage” prong of the Illinois takings clause was added, indicates no intent on the part of the

convention delegates to deviate from the federal definition of a taking. The amendment was

made to provide broader protection and establish a constitutional remedy for property owners

whose real estate is damaged but not taken as a result of public improvements. II Debates and

Proceedings of the Constitutional Convention of the State of Illinois 1578 (Apr. 29-30, 1870)

(“This is an innovation—a new principle. It is for the purpose *** of protecting persons whose

property is not immediately taken by the exercise of the right of eminent domain, but by reason

of the adjoining property being taken or a street being leveled or graded up so that their

property is injured.”). Similarly, the discussion of the takings clause at the 1970 convention

does not reveal any intention to interpret a “taking” as something other than what is recognized

as a taking under the federal constitution. 3 Record of Proceedings, Sixth Illinois

Constitutional Convention 1553 (“Presently in our constitution, we have a provision that you

can’t take a man’s property without paying him for it. We also have a provision—which is

different from most states and different from federal rule—that you can’t damage a man’s

property without paying him for it.”).

¶ 15 Furthermore, there is no evidence that state custom and practice dictate a different analysis

under state and federal law. The District and its amici assert that there is a state practice of

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applying a blanket rule that temporary flooding cannot be a taking. This court has never

applied such a blanket rule, and only in Luperini v. County of Du Page and in this case has the

appellate court stated such a categorical ban. Compare Luperini v. County of Du Page, 265 Ill.

App. 3d 84, 89 (2d Dist. 1994) (summarizing Pratt as holding that, “[w]here the public

improvement causes only temporary accumulations of water on the subject property, a taking

has not occurred”), with Pineschi v. Rock River Water Reclamation District, 346 Ill. App. 3d

719, 726-27 (2d Dist. 2004) (holding that the plaintiff had a valid taking claim where he was

forced to evacuate his house for several days due to a government-caused sewer backup,

despite the fact that the taking was temporary); see In re Petition of Commissioners of Sny

Island Levee Drainage District, 130 Ill. App. 3d 959, 967 (4th Dist. 1985) (noting that, in

Pratt, “[t]he supreme court affirmed, noting that none of plaintiffs’ property was taken by the

improvement and that the damages complained of were not of a sufficiently lasting nature to

amount to a taking”); County of Winnebago v. Kennedy, 60 Ill. App. 2d 408, 412 (2d Dist.

1965) (“The diversion of surface water onto property by means of altering the natural drainage

can constitute a taking. [Citations.] Whether the diversion of water onto property constitutes a

‘taking’ of the property, or merely ‘damage’ to it, depends, obviously, upon the facts of the

case.”); see also Rockstead v. City of Crystal Lake, 486 F.3d 963, 967 (7th Cir. 2007) (“The

Supreme Court of Illinois has not weighed in on the issue since the Pratt case in 1948, more

than half a century ago. It is premature to conclude that if faced with a case such as this it

would deny relief on the basis of a mechanical application of the ‘temporary accumulations’

doctrine.”).

¶ 16 Therefore, United States Supreme Court decisions regarding what constitutes a taking are

relevant for purposes of determining whether a plaintiff has sufficiently alleged a taking under

the Illinois Constitution. See International College of Surgeons, 153 F.3d at 363 (“Although it

is true that the Illinois Takings Clause provides protection greater than that provided by its

federal counterpart *** [t]he greater protection provided by the Illinois Takings Clause stems

from the fact that the clause not only guards against a governmental taking of private property

but also guards against governmental ‘damage’ to private property. *** If the plaintiff cannot

make this showing, then his claim is analyzed under the same standard employed under the

federal constitution ***.”).

¶ 17 The United States Supreme Court’s decision in Arkansas Game & Fish Comm’n and the

Illinois Supreme Court’s decision in Pratt both address whether temporary flooding

constitutes a taking under the United States and Illinois Constitutions, respectively. Plaintiffs

assert that the rule in Arkansas Game & Fish Comm’n is directly contrary to the rule in Pratt.

The District contends that these cases are distinguishable. We conclude these cases are

consistent with one another.

¶ 18 In Pratt, the plaintiffs alleged that their properties were damaged when an old viaduct was

removed and replaced. 399 Ill. at 248. In replacing the viaduct, the grade of the street bordering

the plaintiffs’ properties was changed. Id. at 249. The plaintiffs alleged that, as a result, surface

water ran into their buildings, requiring them to change the floor levels in order to continue

using the buildings. Id. The plaintiffs filed a petition for a writ of mandamus requiring the city

and related agencies and officials to file a petition to determine damages. Id. The defendants

refused to pay the damages or institute eminent domain proceedings. Id. The supreme court

noted that “[i]t [was] not alleged that the[ ] waters accumulate and remain on the premises and

thereby prevent the use thereof,” and that the “[r]unning surface waters are not constantly

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present but are temporary and come as a result of rain or snow.” Id. at 251. Based on these

findings, the court concluded that “[t]he allegations [were] not sufficient to indicate a physical

invasion *** and there [was] no showing that any property was actually taken in connection

with the improvement.” Id. at 252. Therefore, the court affirmed the circuit court’s dismissal of

the petition for a writ of mandamus. Id.

¶ 19 The District and the appellate court read Pratt as establishing a bright-line rule that

temporary flooding is not a taking. 2015 IL App (1st) 132317, ¶ 25. As already discussed, this

court has never viewed Pratt as stating a categorical bar, and neither have most panels of our

appellate court.

¶ 20 The court in Pratt merely held that the flooding that occurred in that case did not cause the

type of damage to the property that would constitute a taking. Pratt, 399 Ill. at 252 (“In [Kane

v. City of Chicago, 392 Ill. 172 (1945),] we said, ‘We are of the opinion that the case before us

does not, on the facts alleged, bring plaintiff’s case within the definition of a taking of property

by invasion ***.’ What was there said applies here and in our opinion the allegations of the

amended petition are not sufficient to show a taking of any of appellants’ property.”). In

particular, the Pratt court’s focus on the issue of whether the damage “prevent[ed] the use” of

the property indicates that damage that does prevent the use of property may constitute a

taking. Id. at 251.

¶ 21 Consistent with this conclusion, the United States Supreme Court in Arkansas Game &

Fish Comm’n held that temporary flooding can give rise to a takings claim when the flooding

directly and immediately interferes with the owner’s enjoyment and use of the land. 568 U.S.

at ___, 133 S. Ct. at 519. In Arkansas Game & Fish Comm’n, the United States Army Corps of

Engineers released upstream waters in such a way that the Commission’s property was flooded

during the peak growing season for timber. Id. at ___, 133 S. Ct. at 516. The flooding was

temporary but recurred consistently over a period of six years. Id. at ___, 133 S. Ct. at 516. The

Commission owned the property for the purpose of growing timber and to protect the wildlife

that lived there. Id. at ___, 133 S. Ct. at 515-16. The flooding made it impossible for timber to

grow productively on the property, and, as a result, the wildlife ecosystem was destroyed. Id. at

___, 133 S. Ct. at 517. The Commission filed suit against the government, claiming the

temporary but recurring flooding was a taking. Id. at ___, 133 S. Ct. at 516. The Supreme

Court noted that it has previously held that government-induced flooding can constitute a

taking (Pumpelly v. Green Bay Co., 80 U.S. 166 (1871)), that seasonally recurring flooding

could constitute a taking (United States v. Cress, 243 U.S. 316 (1917)), and that “[a] temporary

takings claim could be maintained as well when government action occurring outside the

property gave rise to ‘a direct and immediate interference with the enjoyment and use of the

land.’ ” Arkansas Game & Fish Comm’n, 568 U.S. at ___, 133 S. Ct. at 519 (quoting United

States v. Causby, 328 U.S. 256, 266 (1946)). Thus, the Court concluded that

“government-induced flooding of limited duration may be compensable.” Id. at ___, 133 S. Ct.

at 519.

¶ 22 Neither Arkansas Game & Fish Comm’n nor Pratt imposes a bright-line rule or exception

regarding whether temporary flooding constitutes a taking. Id. at ___, 133 S. Ct. at 519 (“No

decision of this Court authorizes a blanket temporary-flooding exception to our Takings

Clause jurisprudence, and we decline to create such an exception in this case.”). Both indicate

that courts must look to the facts of each case to determine whether the property owner’s use

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and enjoyment of the property has been diminished or destroyed. Therefore, these cases are

consistent, and both decisions should inform Illinois courts when addressing takings claims

based on temporary flooding. To the extent the appellate court in Luperini held that temporary

flooding could not constitute a taking, that decision is overruled. Luperini, 265 Ill. App. 3d at

89.

¶ 23 Having established that in some circumstances temporary flooding can constitute a taking,

the court is now faced with the question of whether plaintiffs sufficiently alleged a violation of

the Illinois takings clause. “ ‘When this court accepts an appeal involving a question of law

identified under Rule 308, interests of judicial economy and the need to reach an equitable

result oblige us to go beyond the question of law presented and consider the propriety of the

order that gave rise to the appeal.’ ” Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 153

(2007) (quoting Bright v. Dicke, 166 Ill. 2d 204, 208 (1995)). “Determining whether there has

been an actionable taking is a question of law,” which this court reviews de novo. ProLogis,

236 Ill. 2d at 77. The District challenged plaintiffs’ takings clause claim by filing a motion to

dismiss. “The critical inquiry in determining whether a pleading should be dismissed *** is

whether the allegations, when construed in the light most favorable to the plaintiff, are

sufficient to establish a cause of action upon which relief may be granted.” Sorrells v. City of

Macomb, 2015 IL App (3d) 140763, ¶ 22 (citing Kanerva v. Weems, 2014 IL 115811, ¶ 33).

¶ 24 The court has defined a taking as a physical invasion of private property or the radical

interference with a private property owner’s use and enjoyment of the property. Forest

Preserve District, 161 Ill. 2d at 456-57. This court has also held that a taking occurs when real

estate is physically invaded “by superinduced additions of water *** so as to effectually

destroy or impair its usefulness.” Horn, 403 Ill. at 554. Flooding that does not cause this level

of destruction is not a taking. Pratt, 399 Ill. at 252; see Hartwig v. United States, 485 F.2d 615,

619 (Ct. Cl. 1973) (“ ‘The essential inquiry [in taking cases arising out of a flood situation] is

whether the injury to the claimant’s property is in the nature of a tortious invasion of his rights

or rises to the magnitude of an appropriation of some interest in his property permanently to the

use of the Government.’ ” (quoting National By-Products, Inc. v. United States, 405 F.2d

1256, 1273-74 (Ct. Cl. 1969))).

¶ 25 The Court in Arkansas Game & Fish Comm’n set forth additional factors that assist in

determining whether a temporary flooding constitutes a taking. 568 U.S. at ___, ___, 133 S. Ct.

at 519, 522-23; see Sorrells, 2015 IL App (3d) 140763, ¶ 27. As we have already determined

that a “taking” is defined in the same way under federal and state law, we find the factors used

by the federal court helpful in analyzing a taking claim under the Illinois Constitution. We

recognize that Arkansas Game and Fish Comm’n had not yet been decided when plaintiffs

filed their complaints. However, because the incorporation of this decision does not involve a

significant change in Illinois law, we find it appropriate to consider these factors when

reviewing plaintiffs’ consolidated complaint. These factors include the time and duration of

the flooding, whether the invasion of the property was intentional or whether it was a

foreseeable result of an authorized government action, and the character of the land and the

owner’s reasonable investment-backed expectations regarding the land’s use. Arkansas Game

& Fish Comm’n, 568 U.S. at ___, 133 S. Ct. at 522-23.

¶ 26 The complaint in this case addresses only one instance of flooding. Plaintiffs have not

alleged that the flooding is recurring or that the water remained on their properties for a

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prolonged period of time. They do not allege that the damage caused could not be satisfactorily

repaired. In their brief before this court, plaintiffs state that they are seeking “compensatory

damages for the value of lost possessions and the cost of repairing their homes.” Plaintiffs have

not addressed whether the flooding was intentional or whether the District knew or should

have known that the flooding of plaintiffs’ properties would occur. In their brief, plaintiffs

assert that the District’s acts were intentional and imply that the District acted to avoid flooding

at O’Hare International Airport. Their complaint does not, however, address whether the

District intended or knew that the diversion would cause the creeks to overflow or otherwise

that the actions taken would cause the flooding. Finally, the properties involved are residential

properties. Therefore, plaintiffs have an investment-backed expectation that they will be able

to use their properties for the purpose of maintaining homes. However, plaintiffs’ complaint

states only that “Members of the class were deprived of the use of their homes.” They offer no

explanation for how they were deprived of the use of their home or otherwise support this

claim. Therefore, plaintiffs’ amended complaint fails to sufficiently allege that the temporary

flooding that occurred in this case constitutes a taking under the Illinois Constitution.

¶ 27 Alternatively, plaintiffs assert in their complaint that they are entitled to compensation

under the takings clause for damage to their properties. As discussed, the Illinois takings clause

reaches beyond the scope of the federal takings clause and provides a remedy for owners

whose property is damaged by some government action. When “the owner of property is

seeking to recover the just compensation guaranteed by the constitution for the lawful

damaging of private property for public use, the burden is upon such owner to establish the

existence and amount of the damage he claims.” Kane v. City of Chicago, 392 Ill. 172, 177

(1945). Property is considered damaged for purposes of the takings clause if there is “any

direct physical disturbance of a right, either public or private, which an owner enjoys in

connection with his property; a right which gives the property an additional value; a right

which is disturbed in a way that inflicts a special damage with respect to the property in excess

of that sustained by the public generally.” Citizens Utilities Co. of Illinois v. Metropolitan

Sanitary District of Greater Chicago, 25 Ill. App. 3d 252, 256 (1974) (discussing the definition

of “damaged” established in Rigney v. City of Chicago, 102 Ill. 64 (1881)). Where no property

is actually taken, an owner of damaged property may assert a right to compensation in an

action at law. Illinois Power & Light Corp. v. Peterson, 322 Ill. 342, 347 (1926). Whether

claimed by the owner as a plaintiff in an action at law or as a defendant in an eminent domain

proceeding, “the right to damages is the same and is based on the [takings clause].” Id.

¶ 28 The certified question on appeal is limited to the meaning of “takings” alone, not of

damaged property within the Illinois takings clause. Therefore, the lower courts have not yet

had the opportunity to review whether plaintiffs have alleged a sufficient claim for

compensation for damaged property. We decline to review the merits of this argument at this

time.

¶ 29 We reverse the judgment of the appellate court and remand this cause to allow the circuit

court to consider the entirety of plaintiffs’ claim in light of this opinion. Plaintiffs should have

the opportunity to amend their takings clause claim on remand.

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¶ 30 CONCLUSION

¶ 31 The takings clause of the Illinois Constitution provides greater protection for property

owners than its counterpart in the United States Constitution, because it provides a remedy for

property that is damaged, in addition to property that is taken. However, what constitutes a

taking is the same under both clauses. Therefore, the Supreme Court’s holding in Arkansas

Game & Fish Comm’n is relevant to the determination of whether government-induced

temporary flooding is a taking pursuant to the Illinois Constitution.

¶ 32 The holding in Arkansas Game & Fish Comm’n does not conflict with the holding in Pratt

to any extent, because the court in Pratt did not hold that temporary flooding can never

constitute a taking. The court in Pratt merely held that the flooding that occurred in that case

did not rise to the level of a taking. Similarly, the facts alleged in plaintiffs’ amended complaint

are not sufficient to allege a taking under the Illinois takings clause. The complaint does not

allege that the flooding “radically interfered” with plaintiffs’ use and enjoyment of their

properties.

¶ 33 Plaintiffs alternatively claim that the flooding damaged their properties and therefore that

they are entitled to compensation under the Illinois takings clause. The Illinois takings clause

provides that the owner of damaged property has a right to just compensation, but the parties

have not briefed this court on the issues surrounding plaintiffs’ damage claim. We remand this

case to the circuit court for further proceedings consistent with this opinion.

¶ 34 Reversed and remanded with directions.

¶ 35 JUSTICE BURKE, specially concurring:

¶ 36 While I agree with the judgment rendered in this case, my reasoning differs in certain

respects from that of the majority.

¶ 37 At the outset, the question certified by the circuit court asks whether the United States

Supreme Court, in Arkansas Game & Fish Comm’n v. United States, 568 U.S. ___, 133 S. Ct.

511 (2012), “overruled” this court’s decision in People ex rel. Pratt v. Rosenfield, 399 Ill. 247

(1948). Supra ¶ 2. There is a problem with this question that is immediately apparent.

Arkansas Game & Fish Comm’n was a decision that interpreted the takings clause of the

federal constitution (U.S. Const., amend. V). Pratt, on the other hand, was a decision that

interpreted the takings clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 15).

¶ 38 Under the supremacy clause of the United States Constitution (U.S. Const., art. VI, cl. 2),

the United States Supreme Court can, through its interpretation of the federal constitution,

establish separate federal law that must be given effect over any conflicting state law. But the

Supreme Court has long held that it has no authority to overrule a state court’s declaration of

the meaning of state law. See, e.g., North Carolina v. Butler, 441 U.S. 369, 376 n.7 (1979)

(“this Court must accept whatever construction of a state constitution is placed upon it by the

highest court of the State”); Garner v. Louisiana, 368 U.S. 157, 166 (1961); Murdock v. City of

Memphis, 87 U.S. (20 Wall.) 590 (1874). As Judge Easterbrook has noted, “a federal court may

not disagree with the state courts’ construction of state law. [Citation.] State law means what

state judges say it means, just as federal law means (for the purposes of judges of inferior

federal courts) what the Supreme Court of the United States concludes it means.” United States

ex rel. Garcia v. O’Grady, 812 F.2d 347, 356 (7th Cir. 1987) (Easterbrook, J., concurring).

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¶ 39 To warrant certification under Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), the

proffered question must be one over “which there is substantial ground for difference of

opinion.” Because it is black letter law that the United States Supreme Court has no authority

to overrule this court’s interpretation of our state constitution, there can be no “substantial

ground for difference of opinion” over whether Arkansas Game & Fish Comm’n overruled

Pratt. The circuit court therefore erred in certifying the question.

¶ 40 Plaintiffs’ complaints alleged only a violation of the takings clause of the Illinois

Constitution. The circuit court believed that this court’s interpretation of the Illinois takings

clause in Pratt differed from the United States Supreme Court’s interpretation of the federal

takings clause in Arkansas Game & Fish Comm’n. Given this fact, the circuit court was bound

to follow and apply Illinois law to plaintiffs’ claims. Plaintiffs were always free to file separate

federal claims.1

¶ 41 Because the circuit court erred in certifying the question, the appellate court was bound to

dismiss the appeal. However, since the issue is now before us, the question remains whether

this court should now incorporate the reasoning of Arkansas Game & Fish Comm’n into our

Illinois takings clause jurisprudence. In the interest of judicial economy, I agree with the

majority that we should address this question. However, I cannot agree with the majority’s

reasoning for adopting Arkansas Game & Fish Comm’n as a matter of Illinois law. The

majority holds that we should adopt the analysis in Arkansas Game & Fish Comm’n because it

is “consistent” with Pratt and “does not involve a significant change in Illinois law.” Supra

¶¶ 17, 21, 22, 25. This is patently incorrect on the face of these decisions.

¶ 42 In Arkansas Game & Fish Comm’n, the Supreme Court held that, because

government-induced flooding can constitute a taking of property, and because a taking need

not be permanent to be compensable, “government-induced flooding of limited duration may

be compensable” under the federal takings clause. Arkansas Game & Fish Comm’n, 568 U.S.

at ___, 133 S. Ct. at 519. In so holding, the Court emphasized that the particular facts and

circumstances of each case must be evaluated in determining whether temporary flooding

constitutes a taking. Id. at ___, 133 S. Ct. at 521. In particular, the Supreme Court instructed

that the following factors are to be considered: (1) the length of time of the physical invasion;

(2) the “degree to which the invasion is intended or is the foreseeable result of authorized

government action”; (3) “the character of the land at issue and the owner’s ‘reasonable

investment-backed expectations’ regarding the land’s use”; and (4) the “[s]everity of the

interference.” Id. at ___, 133 S. Ct. at 522.2

¶ 43 Importantly, Pratt did not consider any of the above factors as relevant to the required

Illinois takings clause analysis. In Pratt, the court noted the “grave” nature of the damages to

plaintiffs’ property from government-induced temporary flooding. Pratt, 399 Ill. at 251-52.

These damages included damaged or destroyed valuable equipment, machinery, and supplies,

as well as the necessity to change the floor levels, at great expense to the plaintiffs. Id. at 251.

Nevertheless, the court held, because the floodwaters were merely temporary and not

1

Plaintiffs moved in the circuit court for leave to amend their complaints to include a claim based

on the federal takings clause. It appears from the record that the motion remains pending.

2

The majority expressly incorporates into Illinois law the first three factors discussed in Arkansas

Game & Fish Comm’n but makes no mention of the fourth, the “severity of the interference” caused by

the invasion. Supra ¶ 25. The majority offers no explanation for this discrepancy.

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“constantly present,” plaintiffs were unable to state a claim under the Illinois takings clause. Id.

Thus, the Pratt court rejected plaintiffs’ claim solely based on the temporary nature of the

flooding. This court did not recognize the Arkansas Game & Fish Comm’n factors, much less

give them any weight in our takings analysis, because we did not even recognize a cause of

action for a temporary flooding.

¶ 44 The majority now finds that Arkansas Game & Fish Comm’n is completely consistent with

Pratt. This is clearly incorrect. Because the two cases cannot be reconciled, incorporating

Arkansas Game & Fish Comm’n into Illinois takings law means that we are now implicitly

overruling our own decision in Pratt. In my view, this court should explicitly overrule Pratt.

¶ 45 Under the “limited lockstep” approach for interpreting cognate provisions of our state and

federal constitutions, when the language of the provisions within our constitutions is nearly

identical, departure from the United States Supreme Court’s construction of the provision will

generally be warranted only if we find an indication in the language of our constitution,

debates, or committee reports of the constitutional convention that the provisions of our state

constitution are to be construed differently than are similar provisions in the federal

constitution. Hope Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶ 47. While the language

in the Illinois takings clause is not identical to the federal takings clause, the part of the clause

referring to “[p]rivate property *** taken *** for public use without just compensation” is

identical. Ill. Const. 1970, art. I, § 15; U.S. Const., amend. V. Thus, courts have traditionally

defined a “taking” under the Illinois takings clause in the same way that federal courts define a

“taking” under the federal takings clause. See Forest Preserve District v. West Suburban Bank,

161 Ill. 2d 448, 455-58 (1994); Muscarello v. Winnebago County Board, 702 F.3d 909, 913

(7th Cir. 2012). No language in the constitution, debates, or committee reports dictates a

different result. Thus, pursuant to the limited lockstep doctrine, it is appropriate to overrule

Pratt and to adopt the multifactor test set forth in Arkansas Game & Fish Comm’n for purposes

of determining whether temporary flooding constitutes a “taking” under the Illinois

Constitution.

¶ 46 Finally, I agree with the majority that adopting the analysis in Arkansas Game & Fish

Comm’n requires us to allow plaintiffs to amend their claims upon remand to the circuit court.

Supra ¶ 29. Plaintiffs’ complaints were filed in July 2011. Arkansas Game & Fish Comm’n,

which determined that temporary, government-induced flooding may give rise to a claim under

the federal takings clause, was decided in December 2012. Not only was Arkansas Game &

Fish Comm’n decided more than a year after plaintiffs filed their complaints, it was not until

today’s opinion—more than four years after plaintiffs filed their complaints—that the

reasoning of Arkansas Game & Fish Comm’n was first incorporated into Illinois law. Thus, it

is appropriate that, upon remand to the circuit court, plaintiffs should be allowed to amend their

complaints to address the factors in Arkansas Game & Fish Comm’n, if they are able to do so.

See Karas v. Strevell, 227 Ill. 2d 440, 461 (2008).

¶ 47 For the foregoing reasons, I specially concur.

¶ 48 JUSTICES FREEMAN and KILBRIDE join in this special concurrence.

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