Petition for Writ of Certiorari — Rockstead v. City of Crystal Lake (No. 06-1716)

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preme Cou, U.S.

061716 JUN 25 2007

(\) OFFICE OF THE CLERK

No.

IN THE SUPREME COURT OF THE UNITED STATES

SHIRLEY A. ROCKSTEAD and CAROL J. HENDERSON,

Petitioners,

Vv.

CITY OF CRYSTAL LAKE, an Illinois municipal corporation,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

CONSTANTINE JOHN GEKAS

Counsel of Record

GEKAS & ASSOCIATES, LTD.

SUITE 1700

ELEVEN SOUTH LASALLE STREET

CHICAGO, ILLINOIS 60603

(312) 726-4501

QUESTIONS PRESENTED

1. Whether, as suggested by the late Chief Justice

Rehnquist’s concurrence in San Remo Hotel v. County of San

Francisco, 545 U.S. 323, 348, 125 S. Ct. 2491, 2507 (2005)

(joined by three other justices), the state-litigation requirement

of Williamson County Reg’l Planning Comm'n v. Hamilton

Bank of Johnson City, 473 U.S. 172 (1985), whereby a Fifth

Amendment Takings claim is not ripe in federal court until the

landowner first seeks and is denied compensation in state court,

should be reconsidered.

2. Whether Williamson County’s state-litigation

ripeness rule should apply to physical takings cases.

a Whether it is futile to require petitioners to

attempt to fulfill Williamson County’s _ state-litigation

requirement by continuing their state court challenge of well-

established state law doctrine announced by the Illinois

Supreme and appellate courts that unequivocably deny

petitioners a state inverse condemnation remedy.

(i)

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY

Pee WEEE AAD SBOE oo. ce cece eee |

NS ee iy Ass 64 VA's0's eo Vb neg eens 3

Factual and Procedural Background ............ 4

ERE eee y eee rae eee eee 4

ee Caw iy s'scas'sceies WAS NA pO 7

ESERIES MM ry ea 11

REASONS FOR GRANTING THE PETITION ........ 13

i. Williamson County Should Be Reconsidered

Because, When Coupled With The Full Faith

And Credit Statute, It Extinguishes, Not Ripens,

The Right To Bring A Fifth Amendment

Takings Action In Federal Court............... 13

a. The Interaction Of Williamson County’s

Exhaustion Requirement With 28

U.S.C. § 1738 Extinguishes, Not

ili

Ripens, A Federal Court Section 1983

Fifth Amendment Takings Claim. ....... 14

b. The Justifications for Williamson

County’s State-Litigation Requirement

PR TIS ono ss sae cate eke is 20

a Once the Federal Courts Accept Illinois Law,

As They Are Required To Do, It Is Clear That

Further Resort To The Illinois Courts Would Be

PUN ok Woe enw a bx ce cer baw ae eh bos 29

EGR URIINGIE Sto asics eta Shs kk hla kak wk ea 30

APPENDIX

Appendix A - Opinion & Judgment of Seventh Circuit .. la

Appendix B - Opinion & Judgment of District Court .. 13a

Appendix C - Inverse Condemnation Opinion of

McHenry County Circuit Court ........ 29a

Appendix D - Governmental Immunity Opinion of

McHenry County Circuit Court ........ 45a

TABLE OF AUTHORITIES

Cases: Page(s)

Abbott Laboratories v. Gardner,

PT Aes SRE 6s wiv ch ok dann kdambcaeoaean 22, 23

Agostini v. Felton, 521 U.S. 203 (1997) .............. 14

Allen v. McCurry, 449 U.S. 90 (1980) ..............-.. 18

Barry v. Barchi, 443 U.S. 55 (1979) ...... 2.0... eee 25

Beneficial Dev. Corp. v. City of Highland Park,

161 Ill. 2d 321, 641 N.E.2d 435 (1994) ............ 5. 27

Carter v. Stanton, 405 U.S. 669 (1972) ............... 25

City of Chicago v. Int’l College of

Surgeons, 522 U.S. 156 (1997) ............4.. 5, 27, 28

City of Marion v. Howard, 832 N.E.2d 528

Es PUNE iia 6s ie ea pcx cA asin ses ehawwin 27

City of Monterey v. Del Monte Dunes,

TE kia a AP hs cee bck aad 21

Damico v. California, 389, U.S. 416 (1967) ............ 25

Daniel v. County of Santa Barbara,

Be Sie CED Bis Reeves cease eeeenees 3

Daniels v. Area Plan Comm’n of Allen County,

OE oe WD COU OED on eke anes ceeeseess 9, 29

Dei Monte Dunes v. Monterey,

Da Fume PAPO THe, TOIOD oo ids ee ce ee 29

DLX, Inc. v. Kentucky, 381 F.3d 511

SR EE iGo ak oe Sees ks ee A Cane na as 17, 29

Dolan v. City of Tigard, 512 U.S. 374 (1994) .......... 25

Du Page Forklift Serv. v. Material Handling

Servs., 195 Il. 2d 71, 744 N.E.2d 845 (2001) ......... 18

Erie R.R. v. Tompkins, 304 U.S. 64 (1938) ............ 30

Fair Assessment in Real Estate Ass’n v. McNary,

Re Bie, ORE Sac gic i ees cr tnckaekvashanes 26

Forseth vy. Village of Sussex,

POP FG Sis CHEE, BOD nev vce can ccedaes 3,17

Fourth Quarter Props. IV v. City of Concord,

127 Fed. Appx. 648 (4th Cir. 2005) ................. 29

Franco v. District of Columbia, 2006 U.S. Dist.

LEAIS 73534 (DC, Oct. 10; 2006)... oes 17

Gibson v. Berryhill, 411 U.S. 564 (1973) .............- 25

Herget Nat’! Bank v. Kenney,

105 Ill. 2d 405, 475 N.E.2d 863 (1985) ............ 6

Houghton v. Shafer, 392 U.S. 639 (1968) ..........065 25

Johnson v. Fankell, 520 U.S. 911 (1997) ...........6. 30

Key Outdoor, Inc. v. City of Galesburg,

See Pe OU CT BOE aches eke ceisnveeans 5, 28

King v. Smith, 392 US. 309 (1968) .. wc ccc nvewes 25

Kottschade v. City of Rochester, 319 F.3d

SG, BOOED as Ka eieu in vicpers tun ba xeee een 17

Leeper Elec. Servs. v. City of Carmel, 847 N.E.2d

SET CM I OOD 8 asks tak ob be ERE was 5 6b awe

Loretto v. Teleprompter Manhattan CATV Corp.,

Ca GPE Ts ks Sisk oe oh ha Sb SONGS RRR RS

Lucas v. §.C. Coastal Council,

Ee Ch SU OE ee nck ik cat cee ciaweesaceus

Lucas v. South Carolina Coastal Council,

ON Dae Oe Cs POD oo ov sks os'c cows bSeecwes

Luperini v. County of Du Page, 265 Ill. App. 3d 84,

637 N.E.2d 1264 (2d Dist. 1994) ............... a 4

MacDonald, Sommer & Frates v. County of Yolo,

ES Le UA 5s ks tk vs ow 6 MEAS SNe hha ees

Manufactured Home Cmtys., Inc. v. City of

San Jose, 420 F.3d 1022 (9th Cir. 2005) ........... 9,

McNeese v. Board of Education,

BA ae OD eis bases si ce cpe trae eeeedees

Migra v. Warren City Sch. Dist. Bd. of Educ.,

ET ET ok kaka A ood pRB Rea Meas an Sb ewes

Monell v. New York City Dep’t of Social Servs.,

ln ahah hn Ey di > TESS G INS Sete saree eryr Seema gr prea ar

Monroe v. Pape, 365 U.S. 167 (1961) ................

Naegele Outdoor Advertising v. Durham,

SOG Fie 11k CHU Ge NOED ooo ein cot tees vases eis

Vii

Nat'l Park Hospitality Ass’n v. Dep’t of Interior,

DEW Nie OD ION 62k on 55 a KR ds BAS Sos Nee RAR TS 22

Ohio Forestry Ass’n v. Sierra Club,

SE AA AE POE 5 aos SH Need Kee hee veh thee ne 22

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ...... 9, 20

Palomar Mobilehome Park Ass’n v. City of

San Marcos, 989 F.2d 362 (9th Cir. 1993) ........... 20

Parratt v. Taylor, 451 U.S. 527 (1981) ............... 26

Pascoag Reservoir & Dam, LLC v.

Rhode Island, 337 F.3d 87 (1st Cir. 2003) ........... 3,9

Patsy v. Bd. of Regents of Florida,

EF Aue RE Rk aa S46 eaS DOSS EOe OouE 24

Payne v. Tennessee, 501 U.S. 808 (1991) ............ 14

Peduto v. City of N. Wildwood, 878 F.2d

FER CORE, PAE io oa eae k RGN aS SRSA MAK AD Rea 20

Penn Cent. Transp. Co. v. New York City,

Oe te Be ETO occ eet cee ck ce ped vende eu 20

People ex rel. Pratt v. Rosenfield, 399 Ill. 247,

FF Pade TLE is 5k an bs 0s oo es as be 6, 29

Porter v. Nussle, 534 U.S. 516 (2002) ......... Reo 25

Vili

Rosenthal v. City of Crystal Lake, 171 Ill. App. 3d 428,

525 N.E.2d 1176 (2d Dist. 1988) . os. ween es eeces 5

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ..... 26

San Remo Hotel v. County of San Francisco,

545 U.S. 323, 125 S. Ct. 2491 (2005) ........... passim

Smith v. Allwright, 321 U.S. 649 (1944) .............. 14

Steffel v. Thompson, 415 U.S. 452 (1974) ............. 25

Suitum v. Tahoe Reg’l Planning Agency,

ey 288 Oe ye tg eee ee er ee eee 9, 22, 23

Tahoe-Sierra Pres. Council v. Tahoe Reg'l

Planning Agency, 535 U.S. 302 (2002) ........... 23, 24

Teague v. Lane, 489 U.S. 288 (1989) .............4.. 14

Texas v. United States, 523 U.S. 296 (1998) ........... 23

Torcasso v. Standard Outdoor Sales, Inc.,

157 Ill. 2d 484, 626 N.E.2d 225 (1993) ........... 18, 19

United States v. Clarke, 445 U.S. 253 (1980) .......... 21

United States v. Cress, 243 U.S. 346 (1917) .........0.. 8

United States v. Dickinson, 331 U.S. 745 (1947) ....... 21

United States v. Dow, 357 U.S. 17 (1958) ............ 21

United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985) ................. 6

Van Meter v. Darien Park District, 207 lll. 2d 359,

PE Ee CEs ok hs boa p59 boa 08 dk bate ence 5

Vasquez v. Hillery, 474 U.S. 254 (1986) .............. 14

Vieth v. Jubelirer, 541 U.S. 267 (2004) ............... 14

Watson v. City of Chicago, 2000 U.S. Dist.

Re PT ED, BC ni bc a sicecboceecccucsed 17

Wade © Pees, SE Ui 229 (IFAD) co cies secs 30

Wilkinson v. Pitkin County Bd. of County Comm'rs,

ek Oe a, BPO) ons voce eines es ecee 19

Williamson County Reg’! Planning

Comm'n v. Hamilton Bank of Johnson City,

Ee BE BPE CAPO! ci cen cc ches deve cenceene passim

Wilwording v. Swenson, 404 U.S. 249 (1971) .......... 25

Constitutional and Statutory Provisions:

Ss I I BU ME ox b.c'c k's bce Rele'ss vb ceven ewes 18

Re I MI Fe nc es vac tne vecavees passim

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RNS cD SION 6 6 a REN ee CNN eh he 8 4 eo ee 8

tL PSA i 8: SR a araipas sneer marries soan Naa eet 5, 28

po BU. cha Fs Se Qnenpee aay Peraeaen nr an Perrone engine Mocs 30

fe gk SNe foe Ree eee ee gapganm re 2, 11, 14, 17-20

ee MEE BPS 6a 6K A oi BARE AA RE ER ORR passim

735 Ill. Comp. Stat. § 5/7-101, ef seg. ........0 cece eee 5

Fad te SA: Ds DTPA ES ks oo 6S ns a ha oe eh 5

735 Ill. Comp. Stat. § 30/1-1-1, ef seg. .............4.. 5

735 Hil. Comp. Stat. § 30/10-5-65. 0. eee eee ee 5

Rules:

Sy I Si OE a 5 i aS ease Oo eee ee ee 8

Pe I ts es UE secede Oe RSG a bees 8

RE Bae eee vette tener ees 8

ge BS rere ere rhe 8

Other Authorities:

So Ane as BRET LORD 0 os bev enw ad aetaKuaeeees 7

I 6 I i eke 7

Stephen E. Abraham, Williamson County Fifteen

Years Later: When Is a Takings Claim (Ever) Ripe?,

36 Real Prop. Prob. & Tr. J. 101 (2001) ............. 15

Michael M. Berger & Gideon Kanner, Shell Game! You

Can't Get There from Here: Supreme Court Ripeness

Jurisprudence in Takings Cases at Long Last Reaches

the Self-parody Stage, 36 Urb. Law. 671 (2004) ....... 15

Michael M. Berger, Supreme Bait & Switch: The

Ripeness Ruse in Regulatory Takings, 3 Wash. U.J.L.

ee Oe i nw a eve ei cones ween bie s-+ oo a8e 15

Michael M. Berger, Vindicating the Rights of Private

Land Development in the Courts, 32 Urb. Law.

a Bos DERE IEEE ELI EEE FS PEER ET Fe ORO ET 15

Brian W. Blaesser, Closing the Federal Courthouse

Door on Property Owners: The Ripeness and

Abstention Doctrines in Section 1983 Land Use

Cases, 2 Totetra Prop. 1.3. 73 C2968) oc cece eee 15

J. David Breemer, Overcoming Williamson County’s

Troubling State Procedures Rule: How The England

Reservation, Issue Preclusion Exceptions, and the

Inadequacy Exception Open the Federal Courthouse

Door to Ripe Takings Claims, 18 J. Land Use &

BU Sec CONE £5.00 osc ils ee sc vases bWeaweeenes 15

xii

John J. Delaney & Duane J. Desiderio, Survey of

Federal Land Use Takings Cases 1990-1998,

Fe Ty nr ae 15

John J. Delaney & Duane J. Desiderio, Who Will

Clean Up the “Ripeness Mess”? A Call for Reform

So Takings Plaintiffs Can Enter the Federal

Courthouse, 31 Urb. Law. 195 (1999) ............... 15

Field Indicators of Hydric Soils in the United States,

Version 6.0 (G.W. Hurt and L.M. Vasilas eds.,

U.S. Dep’t of Agric., Nat. Resources Conservation

aaa ooh ic a a dee eee 7

Robert H. Freilich, Adrienne H. Wyker

& Leslie Eriksen Harris, Federalism at the Millennium:

A Review of U.S. Supreme Court Cases Affecting State

and Local Government, 31 Urb. Law. 683 (1999) ...... 15

Barry Friedman, Under the Law of Federal

Jurisdiction: Allocating Cases Between Federal

and State Courts, 104 Colum. L. Rev. 1211 (2004) .... 16

Gideon Kanner, Hunting the Snark, Not

the Quark: Has the U.S. Supreme Court Been

Competent in Its Effort to Formulate Coherent

Regulatory Takings Law?, 30 Urb. Law. 307 (1998) ... 16

Timothy V. Kassouni, The Ripeness Doctrine and

the Judicial Relegation of Constitutionally Protected

Property Rights, 29 Cal. W. L. Rev. 1 (1992) ......... 16

Xili

Max Kidalov & Richard H. Seamon, The Missing

Pieces of the Debate Over Federal Property Rights

Legislation, 27 Hastings Const. L.Q. 1 (1999) ........ 16

Kathryn E. Kovacs, Accepting the Relegation of

Takings Claims to State Courts: The Federal Courts’

Misguided Attempts to Avoid Preclusion Under

Williamson County, 26 Ecology L.Q. 1 (1999) ........ 16

Madeline J. Meacham, The Williamson Trap,

Fe TAO GOOD an cede eaen bp eee tasnecs 16

Merriam-Webster’s Collegiate Dictionary

CECE SEER DAREE A SAN RAs a UNSSC KOO ES 17

Gregory Overstreet, The Ripeness Doctrine of

the Taking Clause: A Survey of Decisions Showing

Just How Far Federal Courts Will Go To Avoid

Adjudicating Land Use Cases, 10 J. Land Use &

SN iis Se ROE sdb Wa sk awh RRREK OAS e ew ke eS 16

Thomas E. Roberts, Procedural Implications of

Williamson County/First English in Regulatory

Takings Litigation: Reservations, Removal, Diversity,

Supplemental Jurisdiction, Rooker-Feldman, and

Res Judicata, 31 Envtl. L. Rep. 10353 (2001) ......... 16

Thomas E. Roberts, Ripeness and Forum

Selection in Fifth Amendment Takings Litigation,

11 J. Land Use & Eavil. L. 37 (1995S) ...........005. 16

XIV

Ronald H. Rosenberg, The Non-Impact of the

United States Supreme Court Regulatory Takings

Cases on the State Courts: Does the Supreme Court

Really Matter?, 6 Fordham Envtl. L.J. 523 (1995) ..... 16

Stewart E. Sterk, The Demise of Federal Takings

Litigation, 48 Wm. and Mary L. Rev. 251 (2006) ...... 16

U.S. Army Corps of Engineers Wetlands Delineation

Manual, Technical Report Y-87-] (1987) ............: 7

George A. Yuhas, The Ever-Shrinking Scope of

Federal Court Takings Litigation, 32 Urb. Law.

PSE bay Goya capabn as eeceSawhnabekene scans 16

]

PETITION FOR A WRIT OF CERTIORARI

Shirley A. Rockstead and Carol J. Henderson

respectfully petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Seventh

Circuit in this case."

OPINIONS BELOW

The April 10, 2007 Opinion of the Court of Appeals

(App., infra, 1a-10a) is as yet unreported in the Federal

Reporter. The December 29, 2005 Opinion and Order of the

district court (App., infra, 13a-27a) is reported at 431 F. Supp.

2d 804.

Two Orders of the Circuit Court of the Nineteenth

Judicial Circuit, McHenry County, Illinois (“McHenry County

Circuit Court”) are relevant: the first, entitled “Order on

Pending Motions” was dated July 14, 2004 (App., infra, 45a-

56a), and the second, entitled “Order of Motion for Partial

Summary Judgment,” dated July 27, 2005 (App., infra, 29a-

44a).

JURISDICTION

The judgment of the Court of Appeals was entered on

October 31, 2006 (App., infra, 12a). The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

The Fifth Amendment to the United States Constitution

' For the convenience of the Court, petitioners note that the

Petition for a Writ of Certiorari in McNamara v. City of Rittman,

Ohio (No. 06-1481), filed in this Court on May 10, 2007 and still

pending, presents closely related questions.

provides, in pertinent part: “nor shall private property be taken

for public use, without just compensation.” U.S. Const.

amend. V.

28 U.S.C. § 1738 provides in pertinent part:

The records and judicial proceedings of any

court of any . . . State, Territory or Possession .

. . Shall have the same full faith and credit in

every court within the United States and its

Territories and Possessions as they have by law

or usage in the courts of such State, Territory or

Possession from which they are taken.

42 U.S.C. § 1983 provides in pertinent part that:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shail be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress .. ..

Article I, Section 15 of the Illinois Constitution provides

that:

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.

STATEMENT

This is a § 1983 Fifth Amendment Just Compensation

action involving a physical invasion by reason of flooding

induced by the respondent municipality that has permanently

degraded a substantial part of petitioners’ land into valueless

wetlands.

This case presents important and recurring questions

about the continuing validity of the “state-litigation”

requirement of Williamson County Reg’l Planning Comm'n v.

Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985), i.e.,

that a Fifth Amendment Takings claim under 42 U.S.C. § 1983

is not ripe for adjudication in federal court until the aggrieved

property owner has exhausted all adequate state law

compensation remedies.’

In his concurrence in San Remo Hotel v. County of San

Francisco, 545 U.S. 323, 348, 125 S. Ct. 2491, 2507 (2005),

joined by Justices O’Connor, Kennedy and Thomas, the late

Chief Justice Rehnquist stated his belief that “the Court should

reconsider whether plaintiffs asserting a Fifth Amendment

Takings claim based on the final decision of a state or local

government entity must first seek compensation in state courts.”

545 U.S. at 352, 125 S. Ct. at 2510.

Thus, petitioners seek reconsideration of Williamson

County’s state-litigation rule. In lieu thereof, they seek to

2 This requirement — also called the Williamson County

“exhaustion” requirement — is the second of a two-pronged ripeness

test. The first prong — finality, Williamson County, 473 U.S. at 194

— is automatically satisfied because this case involves a physica!

invasion, as the lower federal courts have repeatedly held. See, e.g.,

Forseth v. Village of Sussex, 199 F.3d 363, 372 n.12 (7th Cir. 2000)

(a physical invasion is a final decision); Pascoag Reservoir & Dam,

LLC v. Rhode Island, 337 F.3d 87, 91 (1st Cir. 2003); and Daniel v.

County of Santa Barbara, 288 F.3d 375, 382 (9th Cir. 2002).

exclude takings by physical invasion from that rule’s operation.

Finally, under the unique facts of this case, they ask that the

Court clarify the so-called futility exception to the state-

litigation rule and find that they need not continue their futile

pursuit of state compensation remedies that are per se

unavailable to them.

Factual and Procedural Background — By this § 1983

action, petitioners Shirley A. Rockstead and Carol J.

Henderson, the co-owners of land in Crystal Lake, Illinois, seek

compensation from respondent City of Crystal Lake, Illinois

(“City”) under the Takings Clause of the Fifth Amendment

because intermittent but regularly recurring flooding caused by

the City’s construction of certain municipal facilities has

degraded much of their land into permanently unusable and

valueless wetlands.’

The Illinois Case — Prior to filing this case, petitioners

pursued eleven fruitless years of Illinois state court litigation

seeking first damages at law, and then “inverse condemnation.”

Petitioners’ state court case seeking damages at law and

an injunction was filed in 1994 in Cook County. After two

years of arguments about venue, the case was transferred to the

McHenry County Circuit Court. Over the succeeding years, the

City repeatedly but unsuccessfully attacked petitioners’ damage

claims on the grounds of municipal immunity. Then, in 2003,

as the case was nearing trial, the Illinois Supreme Court

changed the law on municipal immunity for flooding cases.

-? Petitioners each own an undivided one-quarter interest in

the property as do the heirs of their two deceased sisters. The four

sisters each inherited their one-quarter interest from their mother in

1974. (R. 1: Complaint, § 8). The deceased sisters and their heirs

did not join in petitioners’ attempts to obtain damage relief or just

compensation and thus were not and are not parties in the state court

case or this case.

~ Van Meter v. Darien Park District, 207 Ill. 2d 359; 799 N.E.2d

273 (2003). As a result, in mid-2004, the McHenry County

Circuit Court granted summary judgment against petitioners on

their damage claim on the grounds that the City was, after all,

immune from suit for damages at law. (App., infra, 52a).

Petitioners then added a new claim for inverse

condemnation under the Just Compensation Clause of Article

I, § 15 of the Illinois Constitution.‘

Petitioners did not advance a § 1983 Fifth Amendment

takings claim.°

The City moved for summary judgment on the inverse

* Inverse condemnation is simply a mandamus action

brought by a land owner to compel a governmental body to institute

proceedings under the Illinois Eminent Domain Act. Rosenthal v.

City of Crystal Lake, 171 Ill. App. 3d 428, 437, 525 N.E.2d 1176,

1182 (2d Dist. 1988) (“[w]here there has been a taking without just

compensation, the owner may bring a mandamus action against the

responsible agency to compel the institution of eminent domain

proceedings.”); see also Illinois Eminent Domain Act, 735 ILCS §

5/7-101, et seg. (2006) (current version at 735 ILCS § 30/1-1-1, et

seq.), esp. § 5/7-122 (now § 30/10-5-65) (allowing reimbursement of

costs and fees in inverse condemnation mandamus action as part of

eminent domain award).

> See Argument, infra, p. 26. First, the Illinois Supreme

Court applies Williamson County’s ripeness rules to federal takings

claims filed in the Illinois state courts. Beneficial Dev. Corp. v. City

of Highland Park, 161 Ill. 2d 321, 328, 641 N.E.2d 435, 438 (1994).

Second, the City could have prevented the state court consideration

of the § 1983 claim pursuant to 28 U.S.C. § 1441 and City of

Chicago v. Int'l College of Surgeons, 522 U.S. 156 (1997) by

removing the case to federal court, and then obtaining a ripeness

dismissal of the § 1983 claim and a remand of the state compensation

claim. Key Outdoor, Inc. v. City of Galesburg, 327 F.3d 549 (7th

Cir. 2003).

‘gay:

condemnation claim on the ground that in flooding cases

Illinois eminent domain law allows a compensable taking only

when there was a permanent inundation. The City cited three

decisions that stand for that precise proposition: two from the

Illinois Supreme Court and the third from the Second District

Illinois Appellate Court which has appellate jurisdiction over

the McHenry County Circuit Court. People ex rel. Pratt v.

Rosenfield, 399 Ill. 247, 251, 77 N.E.2d 697 (1948) (no taking

without permanent inundation); Herget Nat’l Bank v. Kenney,

105 Ill. 2d 405, 475 N.E.2d 863 (1985) (same); Luperini v.

County of Du Page, 265 Ill. App. 3d 84, 637 N.E.2d 1264 (2d

Dist. 1994) (same).

The City argued that these precedents — requiring

“permanent surface water, either standing or running on the

property” as a necessary element of a taking by flooding — were

“well-settled” Illinois law. And, argued the City, petitioners

had no proof to meet that requirement. (Circuit Court Record:

2/15/05 City Mot. for Partial SJ).

In response, petitioners conceded that they could show

neither a permanent inundation nor standing or running water

on their property. Indeed, they had never contended that the

flooding of their land was permanent, but only that it was

intermittent but permanently recurring and had permanently

degraded much of their land into unusable valueless wetlands.°

° Compare, United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 129 (1985) (no requirement of permanent surface

inundation or flooding to qualify as wetlands under regulations

promulgated under Clean Water Act).

The regulations of the United States Army Corps of

Engineers (Corps) and Environmental Protection Agency (EPA), the

federal agencies charged with primary responsibility for

administering of the Clean Water Act, define wetlands without any

(continued...)

(App., infra, 35a).

On July 27, 2005, as urged by the City, the McHenry

County Circuit Court granted the City’s Motion for Summary

Judgment on Petitioners’ inverse condemnation claim, ruling

that intermittent flooding did not constitute a compensable

taking under Illinois law. (/d., App., infra, 41a-42a). After

citing the pertinent Illinois decisions and quoting Luperini at

length, the Circuit Court held:

Although this Court believes it creates a harsh

result, it appears that the current state of the law

in the State of Illinois requires that there must

be evidence of permanent surface water on

property caused by the public improvement

before a finding can be made that a physical

invasion tantamount to a taking has occurred.

The Plaintiffs have not and cannot present such

evidence in this case. (Jd, App., infra, 4la-

42a).

This Case — Unlike Illinois law, federal takings law

does seem to require compensation for a taking caused by

§(...continued)

requirement of a permanent surface inundation or flooding. 33

C.F.R. § 328.3(b) (Corps Rule); 40 C.F.R. § 230.3(t) (EPA Rule).

See also Wetlands Research Program Technical Report Y-87-1 (on-

line edition), pp. 9-10 (Jan. 1987), http://www.saj.usace.army.mil/

permit/documents/87manual.pdf and Field Indicators of Hydric Soils

in the United States, Version 6.0.G.W. Hurt and L.M. Vasilas (eds.),

p. 1 (USDA, NRCS 2006) (hydric soils result from repeated periods

of saturation and/or inundation for more than a few days; no

permanent surface inundation required). (Copies lodged with Clerk

of this Court).

ees

intermittent flooding. United States v. Cress, 243 U.S. 316, 328

(1917) (“There is no difference of kind, but only of degree,

between a permanent condition of continual overflow by

back-water and a permanent liability to intermittent but

inevitably recurring overflows; and, on principle, the right to

compensation must arise in the one case as in the other.”)

Thus, instead of appealing the Circuit Court’s orders,

petitioners accepted Illinois law as announced by the Circuit

Court and instead filed this case in federal district court in

Chicago seeking Just Compensation under the Fifth

Amendment Takings Clause.’ Only federal question

jurisdiction under 28 U.S.C. § 1331 was invoked. (R. 1:

Complaint).

In part, petitioners alleged that further resort to the

Illinois court was futile because they could not meet an

essential element for just compensation under Illinois law, i.e.,

permanent flooding. (R. 1: Complaint, §J 33-34). Petitioners

based that futility argument on the suggestion in Williamson

County that exhaustion would be excused when a state

compensation procedure is either “unavailable or inadequate.”

473 US. at 196-197.° The Seventh and other circuit courts of

7 The state court case remains pending on petitioners’

damage claim against the railroad and their injunctive claim against

the railroad and the City. Illinois law provides a procedure for an

interlocutory appeal. Illinois Supreme Court Rules 304 & 308. Of

course, petitioners could also appeal once the case is finally disposed

of. Illinois Supreme Court Rule 303. As the City pointed out to the

District Court in this case (R. 11, p.3), Illinois Supreme Court Rule

301 provides that “an appeal is a continuation of the proceeding.”

® The language of Williamson County in Which the circuits

found this “futility” exception was as follows: “Respondent has not

shown that the inverse condemnation procedure is unavailable or

(continued...)

Pee

; a

appeals have labeled this a “futility” exception to Williamson

County’s exhaustion requirement. See, e.g., Daniels v. Area

Plan Comm’n of Allen County, 306 F.3d 445, 456 (7th Cir.

2002); Manufactured Home Cmtys., Inc. v. City of San Jose,

420 F.3d 1022, 1035 (9th Cir. 2005); and Pascoag Reservoir &

Dam, LLC v. Rhode Island, 337 F.3d at 93.°

The City then reversed course. Whereas it had argued

to the McHenry County Circuit Court that the requirement of

permanent inundation was “well-settled” Illinois law, it argued

to the district court that petitioners should have appealed the

Circuit Court’s ruling since maybe it was not quite so well-

settled after all:

If [petitioners] were to appeal this decision, the

appellate court could disagree with the trial

court’s factual or legal conclusions and hold that

[petitioners] are entitled to compensation under

the current law. Or, [petitioners] could persuade

the appellate court that the current law is indeed

“harsh” and needs to be overruled, enabling

8(__.continued)

inadequate and until it has utilized that procedure, its taking claim is

premature.” 473 U.S. at 196-197. See also Concurrence of Justice

Brennan. 473 U.S. at 201.

* This Court has considered futility only in connection with

the finality prong of Williamson County. Palazzolo v. Rhode Island,

533 U.S. 606, 624 (2001) (repeated applications to other state

agencies would be futile and were not required to meet finality

prong); Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 734

(1997) (only finality prong at issue); MacDonald, Sommer & Frates

v. County of Yolo, 477 U.S. 340 (1986) (scaled-down development

applications might be approved and therefore not futile to require

them to reach a final decision).

[petitioners] to be compensated. Either way, the

appellate court could provide [petitioners] with

just compensation, rendering this federal case

unnecessary. (R. 11: City’s Mot. to Dis., p. 4).

On those grounds, the district court dismissed this case

on the grounds of lack of Williamson County ripeness, ruling

that petitioners should have appealed the McHenry County

Circuit Court’s dismissal of their state inverse condemnation

claim to the Illinois appellate courts.

First, the district court held that the Williamson County

exhaustion requirement includes state court appellate

procedures that must be exhausted before any § 1983 claim will

be ripe in federal court. (App., infra, 19a-20a).

Second, even though Illinois law is so clearly against

petitioners’ position, the district court refused to accept the

Illinois rule of law, long-standing and carefully applied by the

state trial court to petitioners’ land, that permanent flooding was

a required prerequisite to an inverse condemnation claim under

Illinois law. Thus, the district court rejected petitioners’

argument that their state court appeal was inadequate and

therefore futile. In the district court’s view, flooding is “a

question of degree,” and the McHenry County Circuit Court’s

ruling turned on an interpretation of facts and law. Thus, the

district court suggested, an Illinois appellate court might

distinguish this case from the controlling Illinois decisions that

require permanent flooding. Further, the district court saw no

indication that the Illinois appellate court had “dug in its heels”

on the requirement of permanent flooding. Therefore, said the

district court, petitioners must appeal and that they “may lose

on the merits, is neither here nor there.” (App., infra, 25a)

(citations and internal quotation marks omitted).

Although not briefed by the parties, the district court

also alluded to what has become known as the “Williamson

trap,” i.e., that under the preclusive “full faith and credit” effect

of 28 U.S.C. § 1738, Petitioners’ failure to raise their federal

takings claim in state court will bar them from ever raising it in

federal court. Citing San Remo Hotel, 545 U.S. at 345-46, 125

S. Ct. at 2506, the District Court stated the matter as follows:

A party cannot avoid the full faith and credit

clause by reserving federal claims for litigation

in federal court. The San Remo decision affirms

that despite the preclusive effect that a state

court decision may have on a future federal

case, plaintiffs must still first seek

compensation in state courts.

This Appeal — Petitioners timely appealed to the

Seventh Circuit. They moved for an early argument and

expedited consideration so that they could promptly return to

state court, if necessary, and fully protect their rights and pursue

any further appellate remedies, albeit inadequate, on their

Illinois takings claim and protect by whatever means necessary

their federal takings claim. (See Appellant’s May 1, 2006

Motion to Schedule Oral Argument for July 11 or 12 and for

Accelerated Consideration of Appeal).

The case was argued on October 31, 2006, and that

afternoon the Court of Appeals entered an order that

“{j Judgment is affirmed, opinion to follow.” (App., infra, 12a).

The Opinion and Judgment of affirmance were entered

on April 10, 2007. Also committing petitioners to the state

court by requiring an appeal of the Circuit Court’s no inverse

condemnation without permanent flooding ruling, the panel ©

relied on a slightly different incarnation of the district court’s

conclusion that the Illinois state appellate court might well

reconsider its hard and fast rule that only permanent flooding

amounts to a taking:

Intermittent flooding ... [which transforms] an

Owner’s property into permanent wetlands is

hard to distinguish from permanent flooding. . .

. (App., infra, 6a).

We see a glimmering of recognition of this

point in Luperini [the controlling Illinois

appellate precedent] (/d.).

The Supreme Court of Illinois has not weighed

in on the issue since . . . 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. (App.,

infra, at 7a).

In sum, like the district court, the Seventh Circuit

simply refused to accept the long-standing “permanent

flooding” rule adopted by the Illinois appellate courts and

applied by the McHenry County Circuit Court to petitioners’

land. Thus, in strict conformance with Williamson County’s

state-litigation requirement, the Court ruled that petitioners

must pursue the state inverse condemnation to its inevitable

unhappy conclusion in the Illinois appellate courts on the

chance that this long-established rule of Illinois inverse

condemnation law might not be “mechanically appli[ed}.” (/d.).

Moreover, the Panel suggested that, by asserting that

they had no remedy under Illinois inverse condemnation law,

petitioners “[shot] themselves in the foot” and would find that

sentence quoted against them by the respondent City once

litigation resume¢ = state court. (App., infra, 7a-8a). The

Court made nothing of the fact that the respondent City argued

in the McHenry County Circuit Court that the permanent

flooding rule was settied, but then reversed course in the district

court and argued that the rule might somehow be subject to

question. And, more importantly, the Court of Appeals made

no mention of the fact that, as petitioners will now show,

continued pursuit of their inverse condemnation claim in state

court would extinguish, not ripen, petitioners’ right to later file

their Fifth Amendment takings claim in federal court.

REASONS FOR GRANTING THE PETITION

Concurring in San Remo, the late Chief Justice

Rehnquist, joined by Justices O’Connor, Kennedy, and Thomas,

recommended that “in an appropriate case,” 545 U.S. at 352,

125 S. Ct. at 2510, this Court should reconsider the exhaustion

prong of Williamson County, because it “may have been

mistaken.” 545 U.S. at 348, 125 S. Ct. at 2507.

This is that case. Williamson County’s “justifications

for its state-litigation requirement are suspect [and] its impact

on takings plaintiffs is dramatic.” Jd Therefore, that

requirement should be overruled. In any event, there are no

legitimate prudential or constitutional reasons for the blind

application of this state-litigation requirement to cases, like this

one, involving only physical takings. Finally, if the rule is to

remain in place and if it must include physical takings case,

petitioners have fully met their burdens by pursuing a futile

state claim in the state trial court.

1. Williamson County Should Be Reconsidered

Because, When Coupled With The Full Faith

And Credit Statute, It Extinguishes, Not

Ripens, The Right To Bring A Fifth

Amendment Takings Action In Federal

Court.

Petitioners do not blithely ask this Court to overturn one

of its holdings, but note instead that “when governing decisions

are unworkable or are badly reasoned, ‘this Court has never felt

constrained to follow precedent.’” Vieth v. Jubelirer, 541 U.S.

267, 306 (2004) (quoting Payne v. Tennessee, 501 U.S. 808,

827 (1991) (quoting Smith v. Allwright, 321 U.S. 649, 665

(1944))).

Stare decisis “is at its weakest” when a prior decision

involved the interpretation of the United States Constitution

because that interpretation can be altered only by constitutional

amendment or by this Court. Agostini v. Felton, 521 U.S. 203,

217 (1997).

Furthermore, stare decisis is of substantially less force

when a precedent is “outdated, ill-founded, unworkable, or

otherwise legitimately vulnerable to serious reconsideration.”

Vasquez v. Hillery, 474 U.S. 254, 266 (1986); see also Teague

v. Lane, 489 U.S. 288, 333 (1989) (Brennan, J., dissenting)

(quoting Vasquez).

Since the issue presented involves at bottom an

interpretation of the Just Compensation Clause of the Fifth

Amendment, the stare decisis effect of Williamson County has

less force. The polite puzzlement of the lower federal courts

and their struggles to apply Williamson County, and the

firestorm of scholarly criticism (see Note 10, infra, p. 15),

suggest that the exhaustion rule is “outdated, ill-founded, [and]

unworkable.” But surely Chief Justice Rehnquist’s San Remo

concurrence demonstrates that Williamson County’s state-

litigation requirement is legitimately vulnerable to serious

reconsideration.

Thus, Petitioners respectfully submit that recon-

sideration of Williamson County’s exhaustion requirement is

fully warranted.

a. The Interaction Of Williamson County’s

Exhaustion Requirement With 28 U.S.C. §

1738 Extinguishes, Not Ripens, A Federal

Court Section 1983 Fifth Amendment

Takings Claim.

As Chief Justice Rehnquist’s San Remo concurrence

noted: the exhaustion prong of “Williamson County all but

guarantees that claimants will be unable to utilize the federal

courts to enforce the Fifth Amendment’s just compensation

clause.” 545 U.S. at 351, 125 S. Ct. at 2509.

This is the “catch-22,” the “Williamson trap,” referred

to by the district court, (App., infra, 26a), that has provoked an

outpouring of scholarly comment'® most critical, some

'° Stephen E. Abraham, Williamson County Fifteen Years

Later: When Is a Takings Claim (Ever) Ripe? , 36 Real Prop. Prob. &

Tr. J. 101 (2001); Michael M. Berger & Gideon Kanner, Shell Game!

You Can’t Get There from Here: Supreme Court Ripeness

Jurisprudence in Takings Cases at Long Last Reaches the

Self-parody Stage, 36 Urb. Law. 671 (2004); Michael M. Berger,

Supreme Bait & Switch: The Ripeness Ruse in Regulatory Takings,

3 Wash. U.J.L. & Pol’y 99, 102 (2000); Michael M. Berger,

Vindicating the Rights of Private Land Development in the Courts,

32 Urb. Law. 941 (2000); Brian W. Blaesser, Closing the Federal

Courthouse Door on Property Owners: The Ripeness and Abstention

Doctrines in Section 1983 Land Use Cases, 2 Hofstra Prop. L.J. 73

(1988); J. David Breemer, Overcoming Williamson County's

Troubling State Procedures Rule: How The England Reservation,

Issue Preclusion Exceptions, and the Inadequacy Exception Open the

Federal Courthouse Door to Ripe Takings Claims, 18 J. Land Use

& Envtl. L. 209, 210 (2003); John J. Delaney & Duane J. Desiderio,

Survey of Federal Land Use Takings Cases 1990-1998, 31 Urb. Law.

202 (1999); John J. Delaney & Duane J. Desiderio, Who Will Clean

Up the “Ripeness Mess”? A Call for Reform So Takings Plaintiffs

Can Enter the Federal Courthouse, 31 Urb. Law. 195, 246 (1999);

Robert H. Freilich, Adrienne H. Wyker & Leslie Eriksen Harris,

Federalism at the Millennium: A Review of U.S. Supreme Court

Cases Affecting State and Local Government, 31 Urb. Law. 683

(continued...)

surprisingly harsh, and that has perplexed the lower federal

'__.continued)

(1999); Barry Friedman, Under the Law of Federal Jurisdiction:

Allocating Cases Between Federal and State Courts, 104 Colum. L.

Rev. 1211 (2004); Gideon Kanner, Hunting the Snark, Not the

Quark: Has the U.S. Supreme Court Been Competent in Its Effort to

Formulate Coherent Regulatory Takings Law?, 30 Urb. Law. 307

(1998); Timothy V. Kassouni, 7he Ripeness Doctrine and the

Judicial Relegation of Constitutionally Protected Property Rights,

29 Cal. W. L. Rev. 1, 22-24 (1992); Max Kidalov & Richard H.

Seamon, The Missing Pieces of the Debate Over Federal Property

Rights Legislation, 27 Hastings Const. L.Q. 1, 5 (1999) (“The U.S.

Supreme Court has developed rules that make it almost impossible

for federal courts to remedy violations of the Just Compensation

Clause by local land-use agencies.”); Kathryn E. Kovacs, Accepting

the Relegation of Takings Claims to State Courts: The Federal

Courts’ Misguided Attempts to Avoid Preclusion Under Williamson

County, 26 Ecology L.Q. 1, 2 (1999); Madeline J. Meacham, The

Williamson Trap, 32 Urb. Law. 239 (2000); Gregory Overstreet, The

Ripeness Doctrine of the Taking Clause: A Survey of Decisions

Showing Just How Far Federal Courts Will Go To Avoid

Adjudicating Land Use Cases, 10 J. Land Use & Envtl. L. 91,92 n.3

(1994); Thomas E. Roberts, Procedural Implications of Williamson

County/First English in Regulatory Takings Litigation: Reservations,

Removal, Diversity, Supplemental Jurisdiction, Rooker-Feldman,

and Res Judicata, 31 Envtl. L. Rep. 10353 (2001); Thomas E.

Roberts, Ripeness and Forum Selection in Fifth Amendment Takings

Litigation, 11 J. Land Use & Envtl. L. 37 (1995); Ronald H.

Rosenberg, The Non-Impact of the United States Supreme Court

Regulatory Takings Cases on the State Courts: Does the Supreme

Court Really Matter? , 6 Fordham Envtl. L.J. 523 (1995); Stewart E.

Sterk, The Demise of Federal Takings Litigation, 48 Wm. and Mary

L. Rev. 251 (2006); and George A. Yuhas, The Ever-Shrinking Scope

of Federal Court Takings Litigation, 32 Urb. Law. 465 (2000).

courts,"

On its face, the state-litigation prong of Williamson

County seems to mean that once such state compensation

remedies are unsuccessful, the concomitant federal claim,

having been thereby “ripened,” can then be asserted (or re-

asserted) in federal court. Williamson County’s use of the

adjective “premature” to describe the federal claim suggests as

much,”? 473 U.S. at 185-86, 194-95, 197 & 200. The Seventh

and Eighth Circuits have so concluded. Forseth v. Village of

Sussex, 199 F.3d at 373. (“Should Plaintiffs sufficiently pursue

their case in state court only to be denied relief, they may then

seek relief in federal court on their federal substantive due

process and takings claims.”); Watson v. City of Chicago, 2000

U.S. Dist. LEXIS 5947 (N.D. Ill. 2000) (same, following

Forseth); Kottschade v. City of Rochester, 319 F.3d 1038, 1042

(8th Cir. 2003) (“This action is without prejudice to the right of

the plaintiff, ifhe files a state-court case and loses, to file a new

action in a federal court and make whatever arguments he

wishes with respect to the effect of the prior state-court

adjudication.”).

The fact is, however, that due to the preclusive effect of

the full faith and credit statute, 28 U.S.C. § 1738 -—

encompassing, as it does, the doctrines of res judicata (issue

preclusion) and collateral estoppel (claim preclusion) — the

process of “ripening” the federal claim actually bars a federal

'l See, e.g., DLX, Inc. v. Kentucky, 381 F.3d 511, 518 (6th

Cir 2004) (referring to this dilemma as “[t}he catch-22 of the

“Williamson trap”); Franco v. District of Columbia, 2006 U.S. Dist.

LEXIS 73534, at *18 (D.D.C. Oct. 10, 2006).

'2 Premature: happening, arriving, existing, or performed

before the proper, usual, or intended time. Merriam-Webster's

Collegiate Dictionary (11th ed. 2003).

court from hearing it.'* San Remo, 545 U.S. at 336, 125 S. Ct.

at 2500 (quoting Allen v. McCurry, 449 U.S. 90, 94-96 (1980)).

And, as Chief Justice Rehnquist’s concurrence in San Remo

recognizes, there is likely nothing a claimant can do to avoid

that effect. 545 U.S. at 351, 125 S. Ct. at2509. The reasons are

simple:

San Remo held that, if state law so provides, any issues

that form a part of a federal Just Compensation claim and were

previously decided in a state court case cannot be relitigated in

a federal court even though the state court may have resolved

those issues as part of deciding state law Just Compensation

claims. San Remo, 545 US. at 347, 125 S. Ct. at 2507. More

precisely, if state law bars relitigation of an already-decided

issue in state courts, § 1738 gives that bar rule full faith and

credit and bars relitigation of that issue in federal court. Simply

stated, § 1738 requires a federal court to honor the issue

preclusion rules of state law.

The courts of Illinois reflect this fundamental principle

of the law of judgments, whether coined as a matter of res

judicata or collateral estoppel, and bar relitigation of issues

already decided in an earlier case. Torcasso v. Standard

Outdoor Sales, Inc., 157 Ill. 2d 484, 490, 626 N.E.2d 225, 228

(1993) (“res judicata extends . . . to every matter that was

actually determined in the prior suit... .”); Du Page Forklift

Serv. v. Material Handling Servs., 195 Ill. 2d 71, 78, 744

N.E.2d 845, 849 (2001) (“once a court has decided an issue of

fact or law necessary to its judgment, that decision is conclusive

3 The full faith and credit statute arises from Article IV, §

1 of the United States Constitution that provides: “Full Faith and

Credit shall be given in each State to the public Acts, Records, and

judicial Proceedings of every other State. And the Congress may by

general Laws prescribe the Manner in which such Acts, Records and

Proceedings shall be proved, and the Effect thereof.”

in a subsequent suit based on a different cause of action

involving a party to the prior litigation.”).

Thus, if an issue that forms a part of a Fifth Amendment

Just Compensation claim is decided in a state court proceeding,

it is barred from relitigation in the subsequent federal court

takings case promised by Williamson County. San Remo, 545

U.S. at 347, 125 S. Ct. at 2507.

This has two permutations: first, if a claimant does

assert a Fifth Amendment Takings claim in his required state

court proceeding and loses, or, second, if an element of such a

federal claim coincides with an element of state compensation

law and is lost, the matter is concluded: the claimant is barred

from relitigating that claim or element in federal court if he or

she would be barred from relitigating either in a subsequent

state court action.

Conversely, under the usual rules of res judicata, if a

just compensation claimant does not assert a federal Just

Compensation claim in the state court action required by

Williamson County, relitigation of that claim in federal court is

barred. If state law so provides, § 1738 requires a federal court

to honor the res judicata rule barring litigation of a claim that

could have been, but was not, advanced in state court. Migra v.

Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 85 (1984)

(state-court judgments have res judicata claim-preclusive

effects in § 1983 actions, barring constitutional claims not

brought in prior state-court contract action). This is precisely

the rule in Illinois. Torcasso, 157 Ill. 2d at 490, 626 N.E.2d at

228 (“[R]es judicata extends not only to every matter that was

actually determined in the prior suit but to every other matter

that might have been raised and determined in it.”) (emphasis

added).

Therefore, a federal takings claim not brought in the

state court action cannot be considered in a subsequent federal

court action. Several federal circuits have so held. Wilkinson

v. Pitkin County Bd. of County Comm'rs, 142 F.3d 1319, 1324

(10th Cir. 1998); Palomar Mobilehome Park Ass’n v. City of

San Marcos, 989 F.2d 362, 364-65 (9th Cir. 1993); Peduto v.

City of N. Wildwood, 878 F.2d 725, 729 (3d Cir. 1989).

The effect of the interaction of Williamson County’s

exhaustion rule with § 1738 is simply to bar federal court

consideration of § 1983 Just Compensation claims in almost all

conceivable situations. Williamson County treats that claim as

premature for federal court adjudication, but once the process

of ripening the claim is complete, § 1738 extinguishes it. A

claimant cannot litigate a federal Just Compensation claim in

federal court, whether that claim or an essential part of it was or

was not litigated in state court.

This is the “dramatic effect” on takings plaintiffs

suggested by the late Chief Justice’s Sam Remo concurrence,

545 U.S. at 348, 125 S. Ct. at 2507. It is the “catch-22,” “The

Williamson trap,” described by the lower courts and

commentators.

There’s the rub that brings petitioners to this Court.

b. The Justifications for Williamson County’s

State-Litigation Requirement Are Suspect.

It is difficult to reconcile the counter-intuitive

interaction of Williamson County’s state-litigation requirement

and § 1738 with the “concepts of ‘fairness and justice’ that

underlie the Takings Clause.” Palazzolo v. Rhode Island, 533

U.S. at 633 (internal citations omitted). Though those concepts

may be “less than fully determinate,” id., and though they may

relate largely to the protecting citizens from the unjust and

unfair imposition of public obligations on the few, Penn Cent.

Transp. Co. v. New York City, 438 U.S. 104, 124 (1978), surely

the procedural route toward the vindication of this important

Constitutional right should be just and fair as well. One thing

is for sure: citizens should not confront a “catch-22” or a “trap”

as to where, how and when they invoke judicial remedies to

vindicate a constitutional right. Moreover, the reasons

underlying any rule that excludes citizens from the federal

courts should have reasoned support in law and policy and

should at least be defensible. Petitioners respectfully submit

that Williamson County fails those tests. In the late Chief

Justice’s words, the “justifications for [Williamson County’ s]

state-litigation requirement are suspect.” 545 U.S. at 352, 125

S. Ct. at 2509-10.

The Basis for the State-Litigation Requirement — Is It

Constitutional or Prudential? — Williamson County suggested

that the state-litigation requirement stemmed from the Fifth

Amendment: “The nature of the constitutional right . . . requires

that a property owner utilize procedures for obtaining

compensation before bringing a § 1983 action.” Williamson

County, 473 U.S. at 194-95 & n.13. The rationale is that the

Fifth Amendment does not prevent takings but only takings

without compensation, so that the Takings Clause is not

violated until a claimant has “unsuccessfully attempted to

obtain just compensation through the procedures provided by

the State.” Jd.

While that concept recurs in this Court’s more recent

takings cases, see City of Monterey v. Del Monte Dunes, 526

U.S. 687, 714 (1999), it is directly contrary on its face to the

line of this Court’s decisions in physical takings cases that the

constitutional violation occurs at the time of the taking. In

United States v. Dickinson, an intermittent flooding case, the

Court stated that “the land was taken when it was taken and an

obligation to pay for it then arose.” 331 U.S. 745, 751 (1947).

United States v. Dow, a physical taking case, held that “if the

United States has entered into possession of the property prior

to the acquisition of title, it is the former event which

constitutes the act of taking.” 357 U.S. 17, 22 (1958). United

States v. Clarke, another physical taking case, quoted Dow and

held that “[w]hen a taking occurs by physical invasion . . . the

usual rule is that the time of the invasion constitutes the act of

taking, and ‘[it] is that event which gives rise to the claim for

compensation and fixes the date as of which the land is to be

valued.’” 445 U.S. 253, 258 (1980) (alteration of quotation in

original).

Thus, if Williamson County’s _ state-litigation

requirement is constitutionally based on the Takings Clause, it

is incongruent, if not downright contradictory to the rule, at

least in physical takings cases, that the constitutional takings

claim accrues or arises or occurs at the time of the taking."

Perhaps because of this incongruity, at least one

decision of this Court has referred to the state-litigation rule as

merely a “prudential requirement.” Suitum v. Tahoe Reg'l

Planning Agency, 520 U.S. 725, 733-734 (1997). Indeed, San

Remo uses the same rubric as well. 545 U.S. at 342, 125 S. Ct.

at 2504.

But, an incongruity lurks here too. “Ripeness is a

justiciability doctrine designed ‘to prevent the courts, through

avoidance of premature adjudication, from entangling

themselves in abstract disagreements over administrative

policies, and also to protect the agencies from judicial

interference until an administrative decision has been

formalized and its effects felt in a concrete way by the

challenging parties.”” Nat’! Park Hospitality Ass’n v. Dep’t of

Interior, 538 U.S. 803, 807-808 (2003) (quoting Abbott

Laboratories v. Gardner, 387 U.S. at 148-149; accord, Ohio

Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732-733 (1998).

But, a prudential ripeness rule requires the evaluation of “both

the fitness of the issues for judicial decision and the hardship to

'* Petitioners respectfully submit that, for this reason alone,

if Williamson County is to survive, it should exclude physical takings

cases.

the parties of withholding court consideration.” Suitum, 520

U.S. at 743 (quoting Abbott Laboratories v. Gardner, 387 U.S.

136, 149 (1967); accord, Texas v. United States, 523 U.S. 296,

301 (1998).

Thus, if Williamson County’s state-litigation rule is

prudential, then an evaluation of the fitness of the issues for

judicial decision and the hardship on the parties seems to be

required, especially if the concepts underlying the Fifth

Amendment’s Takings Clause are “justice and fairness.”

Because of the lack of guidance on the basis of the

Williamson County state-litigation rule, neither the district court

nor the Court of Appeals herein gave either factor any

consideration. Surely, petitioners’ claim of a permanent

physical taking — here by intermittent but recurring flooding —

is fit for review. Physical takings cases “are relatively rare,

easily identified and usually represent a greater affront to

individual property rights.” Tahoe-Sierra Pres. Council v.

Tahoe Reg’! Planning Agency, 535 U.S. 302, 324 (2002). And,

“Tw]hether a permanent physical occupation has occurred

presents relatively few problems of proof.” Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 437

(1982)."°

So there is no difficult balancing required in

'S And this case does not fall within the class of intermittent

flooding cases alluded to in Tahoe-Sierra, 535 U.S. at 436, because

the flooding here has so saturated petitioners’ land that it has been

permanently degraded to wetlands even though inundations of the

surface come and go. Indeed, as in Lucas v. S.C. Coastal Council,

505 U.S. 1003, 1012 (1992), petitioners have made no claim of a

temporary taking in the courts below. Therefore, because a

temporary taking issue is not presented, this case can be decided “on

the permanent taking theory that both the trial court and the State

Supreme Court had addressed.” Tahoe-Sierra, 535 U.S. at 330.

determining the existence or extent of the alleged taking.

Instead, a per se rule of compensation applies: “When the

government physically takes possession of an interest in

property for some public purpose, it has a categorical duty to

compensate the former owner . . . regardless of whether the

interest that is taken constitutes an entire parcel or merely a part

thereof.” Tahoe-Sierra, 535 U.S. at 322 (citation omitted).

Moreover, the hardship to petitioners from not hearing

this case is manifest. Each year, petitioners’ inheritance

degrades even more. With the law’s delay, the City has

masterfully frustrated petitioners’ efforts to gain Just

Compensation. With all the insolence of office, the City piled

up a mound of dirt and hid the drainage pipe that first cut off

the drainage and inexorably flooded petitioners’ land. Taking

arms, petitioners sought damages at law in the state court and

failed. They sought constitutional compensation under the

Illinois Constitution but failed because of a quirk in Illinois law.

Then, they are told that until they seek to change that rule by

recourse to the Illinois appellate courts, their Fifth Amendment

Just Compensation claim cannot be heard by the federal courts.

If Williamson County’s state-litigation rule is prudential, surely

these hardships weigh somewhere in the balance.

Of the many categories of § 1983 plaintiffs, why must

only Takings Claimants exhaust state remedies? — This result

is the more puzzling because of the different rule for most other

§ 1983 actions. As the late Chief Justice Rehnquist’s San Remo

concurrence points out, “it is not obvious that either

constitutional or prudential principles require claimants to

utilize all state compensation procedures before they can bring

a federal takings claim.” 545 U.S. at 349, 125 S. Ct. at 2508.

His concurrence cites Patsy v. Bd. of Regents of Florida, 457

U.S. 496 (1982) for the proposition that a § 1983 plaintiff is not

required to exhaust state administrative remedies. In virtually

all other § 1983 situations, this is a firmly established principle.

“Ordinarily, plaintiffs pursuing civil rights claims under

42 U.S.C. § 1983 need not exhaust administrative remedies

before filing suit in court.” Porter v. Nussle, 534 U.S. 516, 523

(2002). Beginning with McNeese v. Board of Education, 373

U.S. 668, 671-673 (1963), this Court has on numerous

occasions rejected the argument that a § 1983 action should be

dismissed where the plaintiff has not exhausted state

administrative remedies. See Barry v. Barchi, 443 U.S. 55, 63

n.10 (1979); Gibson v. Berryhill, 411 U.S. 564, 574 (1973);

Carter v. Stanton, 405 U.S. 669, 671 (1972); Wilwording v.

Swenson, 404 U.S. 249, 251 (1971); Houghton v. Shafer, 392

U.S. 639, 640 (1968); King v. Smith, 392 U.S. 309, 312 n.4

(1968); Damico v. California, 389 U.S. 416 (1967).

Indeed, as Steffel v. Thompson held, “[w]hen federal

claims are premised on [§ 1983] — as they are here — we have

not required exhaustion of state judicial or administrative

remedies, recognizing the paramount role Congress has

assigned to the federal courts to protect constitutional rights.”

415 U.S. 452, 472-473 (1974). Moreover, from the time of

Monroe v. Pape, 365 U.S. 167 (1961) overruled on other

grounds, Monell v. New York City Dep’t of Social Servs., 436

U.S. 658 (1978), a § 1983 claimant has not been required to

exhaust state judicial remedies.

This Court has not explained why only takings

claimants must exhaust state remedies before seeking the

protection of the federal court. But, Williamson County’s state- .

litigation rule does just that. Thus, yet another incongruity,

since it seems hard to reconcile the state-litigation rule with this

Court’s explanation that “the Takings Clause of the Fifth

Amendment, as much a part of the Bill of Rights as the First

Amendment or Fourth Amendment, should [not] be relegated

to the status of a poor relation ....” Dolan v. City of Tigard,

512 U.S. 374, 392 (1994). This difference justifies a reasoned

consideration by this Court.'®

The state courts do not have any greater expertise in

resolving challenges to land use regulations — The late Chief

Justice’s concurrence adequately questions San Remo’s reliance

on the principle of comity on tax matters reflected in Fair

Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100

(1981) as a justification for the state-litigation rule. As he

explained, there is no comparable history of comity in the area

of land use regulations. 545 U.S. at 349, 125 S. Ct. at 2508.

Petitioners need add nothing more and only stress his point that

the federal courts routinely are involved in challenges to

municipal land use regulations under the First Amendment and

Equal Protection Clause. 545 U.S. at 350-51, 125 S. Ct. at

2509 (citing cases).

Defendants can arguably prevent a plaintiff from

'€ The late Chief Justice’s concurrence notes the arguments

of two ~mici therein that two cases Williamson County cites —

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 2862 (1984) and

Parratt v. Taylor, 451 U.S. 527 (1981) — provide[] limited support”

for the state-litigation rule. 545 U.S. at 349 n.1, 125 S. Ct. at 2508.

- Length limitations prevent an extended discussion of that

point in this Petition. However, one thing seems clear: Williamson

County was wrong in stating that Monsanto “held that taking claims

against the Federal Government are premature until the property

owner has availed itself of the process provided by the Tucker Act.”

Williamson County, 473 U.S. at 195. Simply as a matter of facial

logic, this cannot be. For, it is the Tucker Act that provides the

judicial remedy for a claimant to sue the Federal Government in the

U.S. Court of Claims for an alleged taking. Thus, it is a tautology to

describe Monsanto as saying that a claimant must pursue all

remedies under the Tucker Act before suing under the Tucker Act.

But that is what Williamson County says, a mischaracterization that

at least facially undercuts the force of Williamson County’s state-

litigation requirement.

asserting a § 1983 federal takings claim in state court — As the

late Chief Justice’s San Remo concurrence noted, some state

courts “themselves apply the state-litigation requirement from

Williamson County” and refuse to entertain a federal takings

claim until all state law compensation has been denied. 545

U.S. at 351 n.2, 125 S. Ct. at 2509. Indeed, the Illinois

Supreme Court has adopted Williamson County’ s ripeness rule

in that context. Beneficial Dev. Corp. v. City of Highland Park,

161 Ill. 2d 321, 328, 641 N.E.2d 435, 438 (1994). Hence,

petitioners herein did not advance a § 1983 takings claim in

their state court action because it was not ripe there either.

It seems no answer (as the Opinion for the Court in San

Remo says) that Williamson County “does not preclude” state

courts’ consideration of a claimant’s Fifth Amendment Just

Compensation claim simultaneously with, and in the

alternative, to a state law claim. San Remo, 545 U.S. at 346,

125 S. Ct. at 2506. As the Chief Justice pointed out, that is so

only if ripeness is prudential rather than constitutional, the

considerably difficult problem discussed above, Argument,

supra, pp. 21-24, that neither Williamson County nor San Remo

answers. 545 U.S. at 351 n.2, 125 S. Ct. at 2509. In any event,

on the grounds of failure to exhaust state remedies, state courts

are still refusing to hear § 1983 claims appended to state court

cases. See, e.g., Leeper Elec. Servs. v. City of Carmel, 847

N.E.2d 227 (Ind. App. 2006); but see City of Marion v.

Howard, 832 N.E.2d 528, 533 (Ind. App. 2005).

In another curious twist, however, the resolution of that

problem is beside the point because by invoking the removal

jurisdiction of the federal court, a takings defendant can prevent

a State court from considering such a federal claim in all events.

It seems a fair reading of City of Chicago v. Int’l College of

Surgeons, 522 U.S. 156 (1997), that ifa compensation claimant

includes a federal Fifth Amendment Just Compensation claim

in his or her state court case, a state court takings defendant can

remove that case to federal court under 28 U.S.C. § 1441. Once

there, it is obvious that a defendant can obtain both a dismissal

of the federal takings claim for lack of ripeness, and remand of

the rest of the case back to state court. This is the necessary

result of the interaction of Jnt’] College of Surgeons removal

rule with Williamson County’s ripeness rule.

And, this is no theoretical exercise. In Key Outdoor,

Inc. v. City of Galesburg, 327 F.3d 549 (7th Cir. 2003), the

defendant City removed such a state court case that advanced

a federal and state takings claims. The Seventh Circuit ruled

that once removed the federal claim was properly dismissed as

unripe, and that the state law compensation claim should be

remanded to the state court.!”

It is difficult to understand why a defendant can remove

to federal court an unripe federal claim that a plaintiff could not

file in federal court in the first instance. But, more seriously,

this difference in treatment gives takings defendants a relatively

'7 Equally as puzzling is the possibility that a state court will

consider only a federal takings claim without reference to what

compensation state law might provide or whether state law remedies

had been exhausted. This is precisely what happened in Lucas v.

South Carolina Coastal Council, 404 S.E.2d 895 (S.C. 1991)

(Hartwell, J., dissenting) (“Having determined that [there was] a

taking under the Constitution of the United States, it is not necessary

to examine whether it constitutes a taking under the South Carolina

Constitution.” ), rev ‘d on other grounds, 505 U.S. 1003 (1992). This

further reveals the frailty in the logic of both the state-litigation rule

and San Remo’s suggestion that nothing prevents a state court from

hearing a federal takings claim along with state law claims. In fact,

it seems a state court can simply ignore any state law claim and

instead proceed to decide the § 1983 federal takings claim that

Williamson County says is not ripe for decision. Thus, Williamson

County’s state-litigation rule, pointless in reasoning, is pointless as

well in effect.

easy way to prevent a state court from considering a federal

takings claim at all. This is yet another Williamson County

anomaly.

In finding the challenge in Williamson County to be

premature, this Court somewhat cryptically noted that the

landowner had “not shown that the inverse condemnation

procedure [was] unavailable or inadequate.” 473 U.S. at

196-197. The Seventh Circuit has characterized this as a

“limited exception to its exhaustion requirement based on the

futility of seeking state court relief.” Daniels v. The Area Plan

Commission of Allen County, 306 F.3d 445, 456 (7th Cir.

2002). Other Circuits have recognized this rule as well. DLX,

Inc. v. Kentucky, 381 F.3d 511, 525 (6th Cir. 2004); Pascoag

Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 92 (1st

Cir. 2003); Del Monte Dunes v. Monterey, 920 F.2d 1496, 1501

(9th Cir. 1990); Manufactured Home Cmtys., Inc. v. City of San

Jose, 420 F.3d 1022, 1035 (9th Cir. 2005); and Naegele

Outdoor Advertising v. Durham, 844 F.2d 172, 175 (4th Cir.

1988). See also Fourth Quarter Props. IV v. City of Concord,

127 Fed. Appx. 648, 651 (4th Cir. 2005).

2. Once the Federal Courts Accept Illinois Law,

As They Are Required To Do, It Is Clear

That Further Resort To The Illinois Courts

Would Be Futile.

The district court and Seventh Circuit simply refused to

accept long-standing Illinois law that inverse condemnation

under the Illinois Constitution and Illinois condemnation statute

is only triggered by permanent flooding. This was error.

At bottom, petitioners’ state law inverse condemnation

claim required the interpretation and application of the Just

Compensation Clause of the Illinois Constitution, Ilinois

Const. Art. I, § 15, which was the central focus of the

controlling Illinois decisions. People ex rel. Pratt v. Rosenfield,

399 Ill. 247, 251, 77 N.E.2d 697 (1948), and Luperini v. County

of Du Page, 265 Ill. App. 3d 84, 637 N.E.2d 1264 (2d Dist.

1994).

The district court’s and Seventh Circuit’s refusal to

follow these controlling state law decisions clearly announcing

rules of Illinois state constitutional and statutory law simply

does not comport with the requirement that the lower federal

courts must follow state law as announced by the state courts.

28 U.S.C. § 1652 (Rule of Decision Act). The decisions of

higher and intermediate state courts are definitive on such

matters of state law even if the federal court thinks they are

wrong. West v. AT&T, 311 U.S. 223, 237 (1940); Johnson v.

Fankell, 520 U.S. 911, 916 (1997) (a federal court cannot

construe a state statute differently than the highest court of the

state). Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

In fact, Illinois law absolutely bars petitioners from

pursuing inverse condemnation. This is the classic case of

futility — petitioners should not be forced to pursue a remedy

that is unavailable as a matter of clearly announced state law.

This Court should so rule.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

CONSTANTINE JOHN GEKAS

Counsel of Record

ELEVEN SOUTH LASALLE STREET

SUITE 1700

CHICAGO, ILLINOIS 60603

(312) 726-4501

JUNE 2007

APPENDIX A

United States Court of Appeals

For the Seventh Circuit

No. 06-1286

SHIRLEY A. ROCKSTEAD and CAROL J. HENDERSON,

Plaintiffs-Appellants,

CITY OF CRYSTAL LAKE,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 4485—James B. Moran, Judge.

ARGUED OCTOBER 31, 2006—DECIDED OCTOBER 31, 2006°

OPINION APRIL 10, 2007

Before POSNER, WOOD, and EVANS, Circuit Judges.

POSNER, Circuit Judge. The Constitution does not

* With a notation that an opinion would follow.

(1a)

forbid government to take private property for public use;

it merely requires that, if it does so, it pay the owner just

compensation. Therefore the Constitution is not violated

until the government refuses to compensate the owner.

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172, 194-95 and n. 13 (1985).

When, as alleged in this case, the government (a town in

Illinois) takes the property without a condemnation

proceeding, the owner must, if the government refuses to

pay, file a suit in state court—what is called an "inverse

condemnation" suit-to obtain the compensation due him,

and he must exhaust his state judicial remedies, if

necessary by appealing an adverse decision. Daniels v.

Area Plan Commission, 306 F.3d 445, 454-55 (7th Cir.

2002). He must proceed in that way because unless and

until the state courts turn him down, his right to just

compensation has not been infringed. Gamble v. Eau

Claire County, 5 F.3d 285, 285-86 (7th Cir. 1993).

The plaintiffs started down that path, but before

completing their state-court proceeding (which remains

pending) filed the present suit, in federal court, seeking

just compensation under federal constitutional law. They

justify this short-circuiting of the state courts on the

ground that state law is so clearly against them that it

would be futile to proceed to final judgment in those

courts. The district court disagreed and granted the town's

motion to dismiss.

The plaintiffs own a parcel of land that on its west

side is adjacent to a railroad right of way and on its north

side to storm-water detention ponds and a waste water

treatment facility; the ponds and the treatment facility are

owned by Crystal Lake. The plaintiffs' land drained

through a ditch in the railroad right of way until the town

installed a pipeline in the ditch at an angle that cut off the

plaintiffs' drainage, resulting in intermittent but recurring

flooding of their land from the ponds that transformed it

from productive farmland into worthless wetlands. It is the

resulting impairment of the value of their land that the

plaintiffs ciaim is a taking entitling them to just

compensation.

They argue that under Illinois law, as authoritatively

declared in People ex rel. Pratt v. Rosenfield, 77 N.E.2d

697, 699-700 (Ill. 1948), it is plain that a suit for inverse

condemnation ("inverse" because brought by the

landowner, complaining of the taking, rather than brought

by the condemnor to obtain title to the land) will not lie for

damage caused by intermittent flooding, whatever the

consequences of the flooding. And so the state trial court

ruled in the pending state court litigation, before the

plaintiffs, contending that the intermittent flooding of their

property resulted in a taking as a matter of federal

constitutional law, turned to federal court. The state judge's

ruling was interlocutory because other claims and parties

remain in the state litigation, but the plaintiffs could have

sought the judge's leave to appeal the ruling under IIlinois's

counterpart to Fed. R. Civ. P. 54(b). See Ill. S. Ct. R.

304(a); In re Marriage of Lentz, 403 N.E.2d 1036, 1039

(Ill. 1980). They still can obtain appellate review of the

ruling, when the state litigation concludes. But they say

there's no point in continuing in state court because the

outcome is foreordained by state law.

Ifa state statute or constitutional provision provided

that inverse condemnation was inapplicable to an

impairment of land values that was due to intermittent

flooding, recourse to state remedies would indeed be

pointless and would therefore not be required. Williamson

County Regional Planning Commission v. Hamilton Bank,

supra, 473 U.S. at 197; Daniels v. Area Plan Commission,

supra, 306 F.3d at 456-58. But the situation is different

when as in this case the obstacle to the remedy is a state

common law doctrine. SGB Financial Services, Inc. v.

Consolidated City of Indianapolis, 235 F.3d 1036, 1037-39

(7th Cir. 2000); Samaad v. City of Dallas, 940 F.2d 925,

934 (Sth Cir. 1991); Austin v. City & County of Honolulu,

840 F.2d 678, 680-81 (9th Cir. 1988). Judges do not make

statutes or constitutions and cannot change them, but they

do make, and they can—and do—change, common law

doctrines. Such doctrines (such as the intermittent-flooding

doctrine of the Pratt decision) tend, moreover, to be

flexible in application. The "black letter" rules that

restaters and treatise writers derive from common law

decisions are usually standards rather than hard-and-fast

rules—generalizations that yield to the particulars of the

individual case. Holmes went too far when he stated

without qualification that "general propositions do not

decide concrete cases," Lochner v. New York, 198 U.S. 45,

76 (1905) (dissenting opinion), but one sees what he was

driving at. So when a question of the meaning or

application of a state common law doctrine is at issue,

"instead of asking a federal judge to guess what a state

court is likely to do, why not ask the state court?” SGB

Financial Services, Inc. yv. Consolidated City of

Indianapolis, supra, 235 F.3d at 1038.

The Illinois cases that hold that intermittent

flooding does not create the sort of damage for which

compensation is required rest on the common sense view

that ordinarily such flooding does not do permanent

damage. Illustrative is Luperini v. County of Du Page, 637

N.E.2d 1264, 1269 (Ill. App. 1994), where we read that

"the evidence did not establish that plaintiffs were

prevented from the use of their premises because of

permanent accumulations of water." Many of us have had

our basements flooded from time to time but we do not

expect such incidents to cause a permanent reduction in the

value of the house. Flood waters recede and the flooded

buildings or land normally recover their previous value.

But the situation has changed with the rise of severe

legal restrictions (especially those imposed by the Clean

Water Act, 33 U.S.C. §§ 1251 et seq.) on the use that a

property owner may make of land declared to be wetlands.

E.g., Palazzolo v. Rhode Island, 533 U.S. 606, 621 (2001);

Rapanos v. United States, 126 S. Ct. 2208, 2225-27 (2006)

(plurality opinion); Kelly v. EPA, 203 F.3d 519, 520-22

(7th Cir. 2000); Hoffman Homes, Inc. v. Administrator,

999 F.2d 256, 258 (7th Cir. 1993); Smith v. City of

Clearwater, 383 So. 2d 681, 684-85 (Fla. App. 1980).

Such a declaration, while good news for certain birds and

other types of animal and for the health of the environment

in general, is bad news for the owner of the property, who

may find himself forbidden to build improvements on it or

otherwise put it to what the market would consider a

productive use. E.g., Bayou Des Familles Development

Corp. v. United States, 130 F.3d 1034, 1039-40 (Fed. Cir.

1997); Loveladies Harbor, Inc. v. United States, 28 F.3d

1171, 1180-82 (Fed. Cir. 1994). Intermittent flooding the

cumulative effect of which is to transform an owner's

property into permanent wetlands is hard to distinguish

from permanent flooding that puts the land permanently

underwater. Soggy and submerged are not synonyms but in

the modern era of wetlands protection may have the same

effect on property values.

We see a glimmering of recognition of this point in

Luperini v. County of DuPage, supra. The case involved

the same kind of intermittent flooding as_ this

case—flooding due to the county's having installed a storm

sewer on property adjacent to the plaintiffs’ property that

diverted water onto their property. In ruling against the

plaintiffs in their inverse condemnation suit on the ground

that “where the public improvement [the storm sewer]

causes only temporary accumulations of water on the

subject property, a taking has not occurred," the court

noted evidence that "the plaintiffs’ property had been

subject to occasional flooding prior to the storm sewer

being installed and that an undefined portion of the

property was previously classified as jurisdictional

wetlands." 637 N.E.2d at 1268. The implication is that if

the flooding created "jurisdictional wetlands," this might

be deemed a taking under Illinois law. There was also

evidence that despite the intermittent flooding the plaintiffs

could continue to use the property as they had been doing,

albeit at a higher cost; and there was also evidence that

they might be able to eliminate the problem created by the

storm sewer by installing a covered conduit conveyance

system. Jd. at 1269. All this evidence may just have been

icing on the cake, but the court's recital of it suggests that

had the evidence been more favorable to the plaintiffs they

might have won.

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.

For us to rule otherwise would actually do a

disfavor to property owners such as these plaintiffs, who,

in order to bring the case within a "futility" exception find

themselves arguing against themselves, as when they say

in their brief: "The matter is not remotely debatable. The

Owners have no remedy under [Illinois inverse

condemnation law." The first sentence is definitely wrong,

and the second sentence may well be wrong. But when the

plaintiffs, disappointed in this court, resume the litigation

in the state court, they will find those sentences quoted

against them by their adversaries.

A "futility" exception broad enough to embrace this

case not only would induce owners to shoot themselves tn

the foot, but would reflect an exaggerated conception of

the rigidity of common law doctrines, make the right to sue

in federal court depend on uncertain predictions about

what state courts would do in a similar case, and curtail the

evolution of state common law by keeping cases that

challenge the existing doctrine out of state court where

they could influence the law.

We did say in the SGB case that "in principle one

could imagine a precedent with the same effect as the lack

of an inverse-condemnation law. Suppose, for example, the

Supreme Court of Indiana had held that regulatory takings

as a class are never compensable under the state's

inverse-condemnation law." SGB Financial Services, Inc.

v. Consolidated City of Indianapolis, supra, 235 F.3d at

1039; see also Bateson v. Geisse, 857 F.2d 1300, 1306 (9th

Cir. 1988); Austin v. City & County of Honolulu, supra,

840 F.2d at 680-81. We have found only one case to fit

SGB's example—Del Monte Dunes at Monterey, Ltd. v. City

of Monterey, 920 F.2d 1496, 1506-07 (9th Cir. 1990),

which allowed a landowner to bypass the state courts

because the state's highest court had held that landowners

could not seek compensation for a regulatory taking

through inverse condemnation proceedings (or otherwise).

Agins v. City of Tiburon, 598 P.2d 25 (Cal. 1979). But ours

is not such a case; it is a case in which state law is

uncertain because of the antiquity of the ruling state

supreme court decision, and the intervening change in the

legal status of wetlands. Recall the intimation in Luperini

that flooding that creates "jurisdictional" (legally

protected) wetlands might be deemed a compensable

taking under Illinois law.

So the plaintiffs’ federal case was rightly dismissed,

and that raises the question of what will happen to their

federal claim pressed futilely on us. In state court they

were seeking relief under Illinois state law, not, so far as

we are aware, under the federal Constitution. Although the

Williamson line of cases that requires the property owner

to seek compensation in the state courts speaks in terms of

"exhaustion" of remedies, that is a misnomer. For if, as the

present plaintiffs will have to do, the property owner goes

through the entire state proceeding, and he loses, he cannot

maintain a federal suit. The failure to complain of the

taking under federal as well as state law is a case of

_ "splitting" a claim, thus barring by virtue of the doctrine of

res judicata a subsequent suit under federal law. For the

general principle, see Torcasso v. Standard Outdoor Sales,

Inc., 626 N.E.2d 225, 228-29 (Ill. 1993), and People ex rel.

Burris v. Progressive Land Developers, Inc., 602 N.E.2d

820, 824-25 (Ill. 1992), and for its application to cases

such as this see American Nat'l Bank & Trust Co. v. City

of Chicago, 636 F. Supp. 374, 378-80, 384 (N.D. Ill. 1986)

(illinois law); Wilkinson v. Pitkin County Board of County

Commissioners, 142 F.3d 1319, 1322-25 (10th Cir. 1998)

(per curiam); Palomar Mobilehome Park Ass'n v. City of

San Marcos, 989 F.2d 362, 364-65 (9th Cir. 1993). The

litigation in state court is the end of the road, see 28 U.S.C.

§ 1738, unless the state itself allows relitigation of the

constitutional question. San Remo Hotel, L.P. v. City &

County of San Francisco, 545 U.S. 323, 341-48 (2005).

10a

It is unclear whether the plaintiffs have even raised

their federal claim in the pending state court proceeding.

(They have not pressed it.) If they have not done so but

still can, they would be well advised to do so.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

lla

United States Court of Appeals

For the Seventh Circuit

April 10, 2007

Before

Hon. Richard A. Posner, Circuit Judge

Hon. Diane P. Wood, Circuit Judge

Hon. Terence T. Evans, Circuit Judge

No. 06-1286

SHIRLEY A. ROCKSTEAD and CAROL J. HENDERSON,

Plaintiffs-Appellants,

CITY OF CRYSTAL LAKE,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 4485-—James B. Moran, Judge.

JUDGMENT - WITH ORAL ARGUMENT

The judgment of the District Court is AFFIRMED,

with costs, in accordance with the decision of this court

entered on this date.

12a

United States Court of Appeals

For the Seventh Circuit

October 31, 2006

Before

Hon. Richard A. Posner, Circuit Judge

Hon. Diane P. Wood, Circuit Judge

Hon. Terence T. Evans, Circuit Judge

No. 06-1286

SHIRLEY A. ROCKSTEAD Appeal from the

and CAROL J. HENDERSON, United States District

Plaintiffs-Appellants, Court for the Northern

District of Illinois,

v. Eastern Division.

CITY OF CRYSTAL LAKE,a No. 05 C 4485

municipal corporation,

Defendant-Appellee. James B. Moran,

Judge.

ORDER

The judgment is AFFIRMED, opinion to follow.

13a

APPENDIX B

United States District Court,

Northern District of Illinois,

Eastern Division

No. 05 C 4485

SHIRLEY A. ROCKSTEAD and CAROL J. HENDERSON,

Plaintiffs-Appellants,

Vv.

CITY OF CRYSTAL LAKE, a municipal corporation,

Defendant-Appellee.

December 29, 2005

MEMORANDUM OPINION AND ORDER

MORAN, Senior Judge. Plaintiffs Shirley Rockstead

and Carol Henderson brought this action against defendant

City of Crystal Lake, alleging that defendant took their

property without providing compensation, when it

constructed various structures and facilities that created

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flooding conditions on plaintiffs’ property. Invoking the

“takings clause” of the Fifth Amendment of the U.S.

Constitution, plaintiffs seek just compensation. Defendant

now moves to dismiss the action under Fed. R. Civ. P.

12(b)(6). For the following reasons, defendant's motion is

granted.

BACKGROUND

The following facts are taken from plaintiffs'

complaint. Plaintiffs' property is located in McHenry

County, Illinois, and is partially contiguous to property

owned by defendant. The natural drainage on plaintiffs’

property was obstructed after defendant constructed

culverts, pipelines, flood control and sanitary treatment

facilities on the portion of its property that is adjacent to

plaintiffs' property. As a result of defendant's additions,

plaintiffs claim that water now drains toward, instead of

away from, their land (cplt. at J 11, 21). Plaintiffs claim

that that land, which was previously cultivatable and used

as productive farmland, has been reduced to useless

wetlands (id. at J§ 3, 16).

In 1994 plaintiffs filed an action seeking damages

and equitable reliefagainst defendant. See Rockstead, et al.

v. City of Crystal Lake, No. 96 CH 297. This action has

languished in state court for over a decade now, during

which time plaintiffs have failed to recover damages or

compensation. On July 14, 2004, the circuit court in

McHenry County ruled that immunity shielded defendant

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from damages. Then, on July 27, 2005, the circuit court

held that plaintiffs’ claim for inverse condemnation failed

because they failed to show that their land was actually

taken under Illinois law. This latter decision did not end

plaintiffs' action in state court, as the circuit court found “a

genuine issue of material fact as to the timeliness of the

cause of action” (def. ex. B at 7). Less than two weeks

after the circuit court denied plaintiffs compensation,

plaintiffs filed a complaint in federal court. In their federal

complaint, they claim that they have exhausted their state

remedies and further action in state court would be futile.

Subsequent to filing that complaint, plaintiffs and

defendant settled a condemnation action brought by

defendant in state court.

Defendant argues that the action is not ripe for

federal review because plaintiffs failed to exhaust their

state remedies. Defendant alternatively argues that even if

the case is ripe for review, abstention is proper due to the

ongoing state proceedings. Lastly, defendant contends that

transfer of venue to the district court in the Western

Division of the Northern District of Illinois is proper.

Plaintiffs riposte that the case is ripe because appealing the

circuit court’s order is futile. They further contend that

their inability to obtain relief in state court renders

abstention improper, and that their federal action does not

otherwise conflict with the ongoing state action. Plaintiffs

also find the Eastern Division to be the most convenient

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forum.

DISCUSSION

Prior to assessing the parties’ arguments, we

address several issues surrounding the proper standard of

review. Defendant brings its motion to dismiss under Rule

12(b)(6), and it thus challenges the sufficiency of the

complaint, not the underlying merits of plaintiffs’ action.

Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.

1990). But by claiming that the case is not ripe for

adjudication under the special ripeness rules that apply to

“takings claims,” defendant essentially argues the court

lacks subject matter jurisdiction. See Greenfield Mills, Inc.

v. Macklin, 361 F.3d 934, 957-58 (7th Cir. 2004). Thus,

the motion should have been brought pursuant to Rule

12(b)(1).

While a Rule 12(b)(6) motion challenges the

sufficiency of the complaint and is generally limited to the

four corners of the complaint, with limited exceptions

(Thompson v. Illinois Department of Professional

Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Venture

Associates Corp. v. Zenith Data Systems Corp., 987 F.2d

429, 431 (7th Cir. 1993)), under Rule 12(b)(1) a court

“look[s] behind the plaintiff's allegations and make[s]}

factual findings for purposes of assessing its subject matter

jurisdiction” (Palay v. United States, 349 F.3d 418, 424

(7th Cir. 2003); see also Long v. Shorebank Dev. Corp.,

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182 F.3d 548, 554 (7th Cir. 1999)). Documents external to

the complaint are central to this motion. Not all of those

documents are referred to in the complaint. Defendant does

not challenge the allegations of jurisdiction in the

complaint, and instead focuses on the truth of the facts

alleged, specifically plaintiffs’ claims of futility. See Royal

Towing, Inc. v. City of Harvey, 350 F. Supp. 2d 750, 752

(N.D. Ill. 2004).

We choose to proceed under Rule 12(b)(1), even

though defendant failed to invoke that rule. Doing so is

faithful to our obligation to police subject matter

jurisdiction. See Cook v. Winfrey, 141 F.3d 322, 325 (7th

Cir. 1998). Under Rule 12(b)(1), we accept as true all well-

pleaded factual allegations and draw reasonable inferences

in favor of plaintiffs. Capitol Leasing Co. v. FDIC, 999

F.2d 188, 191 (7th Cir. 1993).

Generally, a plaintiff need not exhaust judicial

remedies as a precondition to bringing a federal civil rights

suit. Gamble v. Eau Claire County, 5 F.3d 285, 288 (7th

Cir. 1993) (citing Patsy v. Board of Regents, 457 U.S. 496,

500 (1982)). However, in Williamson County Regional

Planning Commission v. Hamilton Bank, 473 U.S. 172

(1985), the Supreme Court established “special ripeness

standards for constitutional property rights claims.” Patel

v. City of Chicago, 383 F.3d 569, 570 (2004). The two-

pronged Williamson County ripeness standard requires that

Neleraan Sse

sae

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“plaintiff must demonstrate that he or she received a 'final

decision’ from the relevant government entity” and “the

plaintiff must have sought ‘compensation through the

procedures the State has provided for doing so.’ Forseth

v. Village of Sussex, 199 F.3d 363, 372 (7th Cir. 2000)

(quoting Williamson, 473 U.S. at 186-87, 194). The first

prong has been dubbed the “final decision requirement,”

and the second, the “exhaustion requirement.” Jd. Because

this case involves a physical, as opposed to regulatory

taking,' the final decision requirement has been met. See

id. at 372 n.12 (physical invasion constitutes a “final

decision”); Pascoag Reservoir & Dam, LLC v. Rhode

Island, 337 F.3d 87, 91 (1st Cir. 2003). The “streamlined

inquiry” focuses on Williamson County's exhaustion

requirement. Greenfield Mills, 361 F.3d at 958.

The exhaustion requirement generally refers “to

administrative and judicial procedures by which an injured

party may seek review of an adverse decision and obtain a

remedy ifthe decision is found to be unlawful or otherwise

inappropriate.” Williamson County, 473 U.S. at 193. The

Court forged an exception to the exhaustion requirement

when it noted that a plaintiff may be excused from

' Williamson County focused on a regulatory taking, but the ripeness

rules announced therein have been extended to physical takings. See

Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 380 (2d Cir.

1995); McKenzie v. City of White Hall, 112 F.3d 313, 317 (8th Cir.

1997); Arnett v. Myers, 281 F.3d 552, 563 (6th Cir. 2002).

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exhausting available state procedures if he demonstrates

that such procedures are “unavailable or inadequate.” Jd.

at 197. Thus, a plaintiff need not first resort to state

procedures if doing so would be futile. Daniels v. Area

Plan Commission, 306 F.3d 445, 456 (7th Cir. 2002).

Plaintiffs claim that they are excused from exhausting their

state remedies by appealing the circuit court's decision

because the remedy they seek is unavailable under Illinois

law and an appeal would be futile. But first we must

inquire whether an appeal is ordinarily required.

Both parties appear to assume that seeking appellate

review is necessary to exhaust state remedies. In the vast

majority of cases dismissed for failing to satisfy the

exhaustion requirement, the plaintiff bypasses all state

court opportunities for compensation. See, e.g., Forseth,

supra; Gamble, supra; Hager v. City of W. Peoria, 84F .3d

865, 869 (7th Cir. 1996); Kennedy v. Village of Oak Lawn,

2000 U.S. Dist. LEXIS 16783; Popp v. City of Aurora,

2000 U.S. Dist. LEXIS 5708; Ostergren v. Village of Oak

Lawn, 125 F. Supp. 2d 312 (N.D. Ill. 2000); Vigilante v.

Village of Wilmette, 88 F. Supp. 2d 888 (N.D. Ill. 2000). In

contrast, plaintiffs have actually sought compensation in

state court, and the state court dismissed their claim.

In Williamson County, the Court observed that “no

constitutional violation occurs until just compensation has

been denied,” which therefore obligates the “property

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owner [to] utilize procedures for obtaining compensation

before bringing a § 1983 action.” Williamson County, 473

U.S. at 194 n.13. Illinois law provides for inverse

condemnation actions, which allow a landowner to recover

compensation for a taking of his property in the absence of

condemnation proceedings. Lamar Whiteco Outdoor Corp.

v. City of Chicago, 355 Ill. App. 3d 352, 823 N.E.2d 610,

622, 291 Ill. Dec. 318 (Ill. App. 2d Dist. 2005). Section

735 ILCS 5/7-101 establishes the procedures for

recovering compensation for the taking of property.

Section 5/7-101 specifically focuses on trial procedures

when it requires compensation to be ascertained by a jury,

unless waived. The statute contains no provisions

specifying necessary appellate procedures. Neither party

claims that the circuit court's summary judgment order is

non-appealable. Defendant cites IL Sup. Ct. R. 301, which

states that “an appeal in a continuation of the proceeding,”

but this does not indicate that Williamson County compels

mandatory appeals. To the contrary, a case is ripe after

compensation has been sought and denied after utilizing

“available avenues of state judicial review.” Wisconsin

Cent. Ltd. v. Public Service Com'n of Wisconsin, 95 F.3d

1359, 1369 (7th Cir. 1996).

We conclude that because appellate review is an

available avenue of state judicial review, a plaintiff does

not satisfy the exhaustion requirement until such review is

sought. The word “available” often precedes “review” or

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“remedies” in the cases. See, e.g., SGB Fin. Servs. v.

Consolidated City of Indianapolis-Marion County, 235

F.3d 1036, 1037 (7th Cir. 2000); Sprint Spectrum L.P. v.

City of Carmel, 361 F.3d 998, 1003-04 (7th Cir. 2004).

Requiring all “available” resources to be used strongly

suggests that a plaintiff has not exhausted state remedies

after losing at the trial level. Further, permitting plaintiffs

to seek federal review prior to pursuing state appellate

review short-circuits Williamson County's exhaustion

requirement and would allow a litigant who prefers federal

court to obtain an adverse judgment in state court

posthaste. Such a ruling could also provide incentives for

litigants to withhold arguments in order to avoid the effect

of res judicata in federal court. Moreover, if the appellate

court were to rule in plaintiffs’ favor, there would be no

case or controversy for this court to adjudicate. See, Sprint

Spectrum, 361 F.3d at 100+. The message of Williamson

County is that in takings cases, litigants must avail

themselves to state procedures, except if those procedures

are unavailable or inadequate. We turn now to the parties’

arguments concerning the futility of appellate review.

According to plaintiffs, an appeal of the circuit

court’s ruling would be futile because under Illinois law

land is not taken when it is only subjected to intermittent,

as opposed to permanent flooding. Plaintiffs concede that

defendant’s construction projects have caused only

intermittent flooding, and thus claim that they will never

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recover under state law. In response, defendant states that

inverse condemnation proceedings are adequate and

available, and Williamson County’s exhaustion prong

requires that plaintiffs appeal, despite their predictions of

sure defeat.

In Daniels, the plaintiff sought an injunction in

federal court prior to first seeking relief in state court. The

court excused the plaintiff from exhausting state court

remedies because the plaintiff could only obtain monetary

damages through the state inverse condemnation

proceedings. It would have been futile for the plaintiff to

seek injunctive relief in state court when that remedy was

unavailable. Daniels, 306 F.3d at 456. Unlike the scenario

depicted in Daniels, no state statute precludes plaintiffs

from recovering for the alleged taking. Plaintiffs only

claim that they cannot obtain damages due to adverse case

law. In Daniels, for the plaintiff to obtain injunctive relief

in state court would have required the judicial nullification

of a legislative act. Here, plaintiffs need only seek to

distinguish prior case law. The futility analysis often

focuses on the inadequacy or availability of procedures,

and plaintiffs do not identify any procedures from the

inverse condemnation proceeding that are inadequate. See

Harbours Pointe of Nashotah, LLC v. Village of Nashotah,

278 F.3d 701, 704 (7th Cir. 2002) (“If a state provides

adequate procedures for seeking just compensation, a

property owner cannot state a claim under federal law until

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he has used those procedures and been denied

compensation.”). Plaintiffs are not barred from arguing

that they are entitled to compensation.

As the plaintiffs argue here, in SGB, supra, the

plaintiff argued that, based on prior state court decisions,

the state courts would not entertain the argument it

intended to make, and that pursuing a state court action

was consequently futile. The court rejected that argument

and held that the Williamson. County exhaustion

requirement does not turn on a plaintiff's expectation of

success. SGB, 235 F.3d at 1038 (“State remedies do not

become unavailable just because resort to them may fail.”’).

Plaintiffs argue that SGB is distinguishable because the

plaintiff there completely bypassed state court, whereas

plaintiffs say their fruitless state court litigation supports

their declaration of futility. The logic of SGB, however,

would not permit a plaintiff who lost in state court, at the

trial level, to take his case to federal court; it noted that

plaintiffs cannot declare state remedies “futile ex ante,

without ever being tried.” Jd. As discussed above, we

believe exhaustion of remedies requires appealing an

adverse trial court decision. We would have a different

case if the circuit court's summary judgment ruling

involved the application ofa statutory rule in a manner that

is not open to dispute. But the circuit court's ruling turned

on interpretation of facts and law, and that decision is not

a bar that “would block all consideration of a claim.” Jd. at

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1039.

On appeal, plaintiffs could argue that the cases that

the circuit court relied on do not set forth a “permanent

standing water” requirement, as the circuit court concluded

(see def. ex. B at 7). Plaintiffs could contend that when

cultivatable land is transformed into land that is

“permanently wet enough to be designated wetlands” (def.

ex. B at 7), the water “permanently inundates” in a manner

that has been held to be “a physical invasion tantamount to

a taking.” Luperini v. County of DuPage, 265 Ill. App. 3d

84, 637 N.E.2d 1264, 1268, 202 Ill. Dec. 528 (Ill. App. 2d

Dist. 1994). Luperini was the primary focus of the circuit

court's analysis. Indeed, the circuit court only cited —

Luperini and one other case on which Luperini relied.

The land in Luperini was subjected to intermittent

flooding after an adjacent construction project; however,

prior to the completion of that project portions of the land

experienced flooding, and the court identified a cause

independent of the construction project that contributed to

the flooding. Here, the limited record shows that plaintiffs’

land was cultivatable, but now is classifiable as wetlands.

Also, the record does not disclose an alternate

source of flooding. A takings analysis involving flooding

is ultimately a question of degree (Winnebago County v.

Kennedy 60 Ill. App. 2d 408, 208 N.E.2d 612 (Ill. App. 2d

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Dist. 1968)), not an inflexible doctrine that precludes all

review once it is discovered that the subject land is not lost

under several feet of water.

We offer these observations not to cast doubt on the

circuit court’s decision (the evaluation of which is for the

Illinois Appellate Court), but, instead, to illustrate why we

disagree with plaintiffs' declaration of futility. The

appellate court has discretion to find that a taking has

occurred, and Luperini does not indicate that the appellate

court has “dug in its heels” and made clear that it would

reject plaintiffs' claim. Murphy v. New Milford Zoning

Comm'n, 402 F.3d 3[4]2, 349 (2d Cir. 2005). There is thus

a state court to hear plaintiffs’ arguments, and that

plaintiffs may lose on the merits is “neither here nor there.”

Id. at 1039; see also Greenfield Mills, 361 F.3d at 958;

Unity Ventures v. County of Lake, 841 F.2d 770, 776 (7th

Cir. 1988). This case is not ripe because if the appellate

court decided that a compensable taking occurred, then

there would be no basis for relief under section 1983, and

no case or controversy. SGB, 235 F.3d at 1038.

We observe that plaintiffs may raise their federal

claims in state court. It is not clear whether they have

actually done so. The Supreme Court recently reaffirmed

the ability of state courts to entertain federal constitutional

claims in San Remo Hotel v. County of San Francisco, 125

S. Ct. 2491, 2506 (2005). In San Remo, the Court held that

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in takings cases that are first raised in state court under

Williamson County, federal courts must afford state court

decisions full faith and credit under 28 U.S.C. § 1738. A

party cannot avoid the full faith and credit clause by

reserving federal claims for litigation in federal court. The

San Remo decision affirms that despite the preclusive

effect that a state court decision may have on a future

federal case,” plaintiffs must still first seek compensation

in state courts. In addition to the full faith and credit

clause, the Rooker-Feldman doctrine may also block a

federal claim. See San Remo, 125 S. Ct. at 2509

(Rehnquist, C.J., concurring); Zealy v. City of Waukesha,

153 F. Supp. 2d 970, 980 (E.D. Wis. 2001). Again, it is not

clear whether plaintiffs raised their federal claims in state

court, but in light of San Remo, failing to raise those

claims may preclude future consideration in federal court.

We offer these points here only because they appear

central to this case, and they were absent in the parties'

memoranda.

In sum, plaintiffs' case is not ripe for federal review

because plaintiffs have not satisfied Williamson County's

exhaustion requirement. Having found the case is not ripe,

? This catch-22 has been described as the “Williamson trap.” See

DLX, Inc. v. Kentucky, 381 F.3d 511, 518 n.3 (6th Cir. 2004);

Madeline J. Meacham, Zhe Williamson Trap, 32 Urb. Law. 239

(2000).

we do not reach the abstention and venue arguments.

CONCLUSION

For the foregoing reasons, defendant's motion to

dismiss is granted.

s/ James B. Moran

JAMES B. MORAN

Senior Judge, U.S. District Court

December 29, 2005.

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United States District Court,

Northern District of Illinois,

Eastern Division

No. 05 C 4485

SHIRLEY A. ROCKSTEAD and CAROL J. HENDERSON,

Plaintiffs, |

v. |

CITY OF CRYSTAL LAKE, a municipal corporation, |

Defendant.

JUDGMENT IN A CIVIL CASE

S) Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury rendered its verdict.

. Decision by Court. This action came to trial or

hearing before the Court. The issues have been tried

or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that

defendant's motion to dismiss the action under

Fed.R.Civ.P. 12(b)(6) is granted.

Michael W. Dobbins, Clerk of the Court

s/ Linda Garth, Deputy Clerk

Linda Garth

Date: 12/29/2005

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APPENDIX C

Nineteenth Judicial Circuit Court,

McHenry County, Illinois

No. 96 CH 297

SHIRLEY A. ROCKSTEAD and CAROL J. HENDERSON, ef ai.,

Plaintiffs,

CITY OF CRYSTAL LAKE, a municipal corporation,

Defendants.

July 27, 2005

ORDER ON MOTION FOR PARTIAL SUMMARY

JUDGMENT

This cause has been before the Court on the Motion

of Defendants, City of Crystal Lake and Union Pacific

Railroad, for Partial Summary Judgment as to Counts IV

and V of Plaintiffs’ Second Amended Complaint which

seeks relief on the basis of inverse condemnation theory.

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This litigation has a long and complicated history,

but the position taken by the Defendant’s in this current

motion is quite simply stated on page 2 of the motion:

“5 @S a matter of law, Plaintiffs’ inverse

condemnation action fails as (1) the Plaintiffs can

never establish the primary element of that form of

relief - a permanent taking, and (2) that the action

was untimely filed.”

The Court has reviewed the Defendants’ Motion for

Partial Summary Judgment, Plaintiffs Response to said

Motion and Defendants’ Reply. The Court has also

reviewed the other written materials submitted which,

among other things, included statements of facts and

counter statements of facts, deposition excerpts, affidavits,

pleadings, court transcripts, discovery responses,

photographs and a video tape. The Court has reviewed the

citations to legal authorities. The Court has heard the oral

arguments presented.

The Court will not recite the underlying facts of the

case because the facts are well known to the parties and are

not in serious dispute in the context of the present motion.

The seemingly simple issue before the Court is whether or

not the Plaintiffs have presented sufficient evidence in this

case to prove an essential element of their claim - that the

facts of this case establish that there has been a taking of

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property without just compensation.

The issue in the Motion for Summary Judgment can

be resolved by reference to the relatively recent Second

Appellate District case of Luperini vs. County of DuPage,

265 Ill. App. 3d 84 (2nd Dist. 1994).

In Luperini, supra, the Plaintiffs-Property Owners

brought a Complaint for Mandamus seeking to compel the

institution of condemnation proceedings because the

Defendants had installed a storm water sewer line on

adjacent property that caused a diversion of run off water

onto their property resulting in a physical invasion of their

property which was tantamount to a constitutional taking.

The facts of the Luperini case have certain similarities to

the facts in the case now before this Court, but the

circumstances are not totally the same.

In Luperini, supra, at pages 88-89, the Appellate

Court summarized the facts of the case as follows:

‘The facts material to this determination are not

disputed. Sometime in either 1983 or 1987 a storm

sewer pipe was installed near plaintiffs’ property in

order to alleviate occasional flooding of a housing

subdivision to the south of the subject property. As

a consequence of the storm sewer installation,

storm water runoff was diverted onto and across

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plaintiffs’ property, which resulted in flooding of

plaintiffs’ house, garage, and basement.

Additionally, when it rains, the Sawmill Creek

backs up causing flooding on plaintiffs’ property.

The flooding has caused a proliferation of wetland

vegetation and an increase in size of the floodplain

on plaintiff's property. There was no evidence,

however, that the flooding caused a permanent

accumulation of water on plaintiffs’ property, and

some evidence was presented to suggest that

plaintiffs’ property had been subject to occasional

flooding prior to the storm sewer being installed

and that an undefined portion of the property was

previously classified as jurisdictional wetlands.”

Further, in Luperini, supra, at page 89 the Appellate

Court specifically discusses the analysis of takings

involving inundation with water resulting from the

construction of public improvements:

“Where an adjacent or abutting landowner is

inundated with water resulting from _ the

construction ofa public improvement, the question

of whether a taking has occurred turns on the

temporal nature of the inundation. (See generally

Herget National Bank v. Kenney (1985), 105 Ill. 2d

405; Pratt, 399 Ill. at 251) Where the public

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improvement causes only temporary accumulations

of water on the subject property, a taking has not

occurred. (Pratt, 399 Ill. at 252.) In contrast, where

water occasioned from the construction of a public

improvement permanently inundates the subject

property, it has been held that a physical invasion

tantamount to a taking has occurred. Herget, 105

Ill. 2d at 410.”

Further, in Luperini, supra, at page 90, the

Appellate Court found in that case as follows:

“The undisputed facts of the present case are

controlled by Pratt. Although the deposition

excerpts attached to plaintiffs’ response and motion

allow for a reasonable inference that each time it

rained their house, garage and basement were

damaged because of flooding, there is no evidence

that the accumulations of water were permanent.

Furthermore, the evidence did not establish that

plaintiffs were prevented from the use of their

premises because of permanent accumulations of

water. In his August 22 letter, plaintiffs’ expert

nowhere stated that plaintiffs were prevented from

the use of their property resulting from permanent

accumulations of water. Instead, he stated that

“t]he sustained length of time and increased rate of

flow in the channels that cross the property will

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greatly increase the costs and difficulty involved in

maximizing the productivity of the property.”

Furthermore, plaintiffs’ expert expressed his view

that the erosion and sediment accumulation in the

Sawmill Creek and the water diversion resulting

from the sewer pipe installation could be corrected

through excavation and the provision of a covered

conduit conveyance system, which would eliminate

the conditions conducive to the formation of

wetlands vegetation.”

As mentioned in the previous quotation, the

Appellate Court in Luperini, supra, at page 90 relied on the

Illinois Supreme Court Decision in People ex rel Pratt vs.

Rosenfield, 399 Ill. 247 (1948) as a precedent upon which

to base its decision concerning what constitutes a physical

taking of property. In Pratt, supra, at page 252, the Illinois

Supreme Court stated:

“As to whether the alleged damages are such as to

amount to a physical taking of property, we note the

allegations that surface waters run into the

buildings and make them unfit for the uses to which

they are now devoted and will damage or destroy

valuable equipment, machinery and supplies

therein; that it will be necessary to change the floor

levels and that because of the materials of which

the buildings are constructed the change of floor

levels will require large expenditures of money. It

: . } ess

: ere

SETS a 9 Pe

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is not alleged that these waters accumulate and

remain on the premises and thereby prevent the use

thereof, but it is claimed that by reason of their

running into the buildings the damages are

occasioned. Running surface waters are not

constantly present but are temporary and come as a

result of rain or snow.”

In summary, this Court believes Defendants

position in this motion to be that Plaintiff cannot establish

a permanent physical taking of its property because

Plaintiffs cannot establish permanent surface water, either

standing or running on the property, as required by the

Pratt decision, supra and adopted by the Second District

Appellate Court in Luperini, supra. The Plaintiffs concede

and, in fact, state that it was never their contention, that

Defendants have caused permanent standing water on their

property.

The Plaintiffs claim that the actions of the

Defendants have caused their property to be permanently

inundated with water.

In an affidavit entitled “Supplemental Declaration

of First E. John Schumacher”, the Plaintiffs’ expert

witness, Mr. Schumacher states as follows:

“6. | have reexamined my report and the same

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documentary material in preparation for an

inspection of the property at issue in this

case which I conducted on February 20,

2005.

At that time, I found that it is obvious that in

the past five years that the hydrology has

changed even more drastically over the

intervening five years so that the ground

remains permanently inundated with water,

although to more or less degrees depending

on the weather and other conditions.

It is my opinion, to a reasonable degree of

engineering certainty, that the Geske

property has been permanently altered so

that it is permanently inundated with water,

although to varying degrees, that the water

accumulate and remain on the Geske

property and in the soil, and that the

wetlands present on the land are

permanently and continually wet. The direct

and immediate, though slowly manifesting,

cause of this change is the gradual effect of

the 1994 construction and modification of

the City’s holding ponds directly adjacent to

the property which has altered the water

table of the land surrounding the ponds,

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including the Geske property, so that it is

now continually saturated and inundated

with water. This change has occurred since

my original work in 1999 and Report in

2000.”

In his deposition taken on May 16, 2005, E. John

Schumacher at page 55 beginning on line 21 and through

page 56 line 12, was asked these questions by Defendants

attorney and gave these answers.

“Though there are periods when there is standing

water and there are periods when there’s not

standing water, we don’t know how frequently that

the case that there’s standing water versus

non-standing water at least as you sit here today

given the breadth of your assignment?

That’s correct.

But there’s little doubt in your mind that the

soils are wet enough to still permit for the

designation of wetlands or —

That’s my opinion.

And that’s not changed, there’s continually

— they’re going to be permanently wet

Pe SO eS eee Se ee eae ee ee ee eee ee eee oe

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enough to support the definition of

wetlands?

A. Under the existing conditions, yes.”

On page 57 of his deposition on lines 15 through

21, Schumacher was asked these questions by the

attorney for the Plaintiffs and Schumacher gave

these answers:

“Q. That the property has been permanently

_changed so it is continually wet; right?

A. Correct.

Q. And what you don’t know is whether or not

the water is standing on there all the time;

right?

A. Correct.”

Also, in the deposition of E. John Schumacher;

beginning on page 32 at line 23 and ending on page 33 at

line 20, the following questions by Defendants attorney

and the following answers were given by Mr. Schumacher:

“Q. What is your definition of inundation, John?

Is that a term of art or just a — in your

39a

business or —

Just a general definition?

Yeah.

Inundation is when the surface is covered

with water.

Does inundation tell us anything about the

time period that the surface is covered with

water, you know, just the term inundation as

you use it in your work?

No. It’s a simple condition.

For example, unlike wetlands, we know

something about the time period of a

condition known as wetlands because you

know it takes a long time to get to that point;

right?

Yes.

Okay. But the term in your business of

inundation doesn’t mean anything about —

there’s no temporal component to

inundation, it’s just a stated condition at a

40a

time given?

A. That’s correct.”

Also in the deposition of E. John Schumacher

beginning on page 39 line 7 through page 40 at line 8, the

following questions were asked by the Defendants’

attorney and the following answers were given by Mr.

Schumacher:

“Q. So when you say that on the 27" of February

‘05 at around 8:00 a.m. there was a quarter

to 3/16 inch of ice, you don’t know one way

or the other whether that ice or the water

equivalent was present for any period of

time thereafter? I mean, I’m going to say

month, but you can’t even tell me the next

day; is that fair to say?

Mr. Gekas: Well, you asked him that now

at least twice, but go ahead

and answer it, John.

BY THE WITNESS :

A. No, there is no way of knowing.

BY MR. ANDREWS :

Q. So you don’t know if that standing water —

4la

evidence of standing water you saw on the

half acre to an acre was temporary, sporadic,

permanent or any other adverb you care to

use, but you just know it was there that one

day?

A. _ That’s right.

Q. You don’t know if it was permanent;

correct?

A. That’s correct.”

Although in paragraph 7 of his Supplemental

Declaration, Mr. Schumacher stated that the ground

remains permanently inundated with water” and further on

page 33 of his deposition Mr. Schumacher stated that

“inundation is when the surface is covered with water”, it

is clear from reading the entirety of Mr. Schumacher’s

deposition testimony and his Supplemental Declaration

and, frankly as conceded by the Plaintiffs, that the

Plaintiffs evidence does not establish permanent standing

water on their property caused by the public improvement

in this case. Taken in the light most favorable to the

Plaintiffs, the evidence establishes soils that are

permanently wet enough to be designated wetlands and,

that on occasion there is standing water on the property.

Although this Court believes it creates a harsh

42a

result, it appears that the current state of the law in the

State of Illinois requires that there must be evidence of

permanent surface water on property caused by the public

improvement before a finding can be made that a physical

invasion tantamount to a taking has occurred. The

Plaintiffs have not and cannot present such evidence in this

case.

Based upon the foregoing, this Court finds that the

Defendants Partial Motion for Summary Judgment as to

Counts IV and V of the Second Amended Complaint

should be granted on the basis that the Plaintiffs can never

establish under the current law that there is a permanent

taking.

As to the Defendants second point in the Motion for

Partial Summary Judgment, the Court believes that there is

a genuine issue of material fact as to the timeliness of the

cause of action and the Court will not grant the Partial

Motion for Summary Judgment on that basis.

THEREFORE, IT IS ORDERED:

l. Defendants Motion for Partial Summary

Judgment as to Counts [V and V of the

Second Amended Complaint is granted.

y Judgment is entered on Count IV and V of

43a

the Second Amended Complaint in favor of

the Defendants and against the Plaintiffs.

3. The cause is continued for status on the

remaining Counts to August 19, 2005 at

9:00 am. without further notice.

ENTERED July 27, 2005 ENTERED s/ Michael Sullivan

DISTRIBUTION TO:

Constantine J. Gekas

Gekas & Assoc., LTD

Suite 1700

11 S. LaSalle Street

Chicago, IL 60603

Fax No. 312-726-4505

John E. Norton and

Anthony Andrews

Norton, Mancini, Weiler & De Anno .

109 N. Hale Street

P.O. Box 846

, Seem

WF ay

a soe 4

44a

Wheaton, IL 60189-0846

Fax No. 630-668-9489

William I. Caldwell

Caldwell Berner & Caldwell

100 1/2 Cass Street

P.O. Box 1289

Woodstock, IL 60098

Fax No. 815-338-0015

PROOF OF SERVICE

The undersigned certifies that the foregoing instrument

was served upon all parties to the above cause by

depositing a copy thereof in the U.S. Mail, postage

prepaid, in envelopes addressed to each of the attorneys

of record herein at their respective addresses disclosed on

the pleadings, on __ July 23. 2005 _.

s/ Joyce Brady

45a

APPENDIX D

Nineteenth Judicial Circuit Court,

McHenry County, Illinois

No. 96 CH 297

SHIRLEY A. ROCKSTEAD and CAROL J. HENDERSON, ef al.,

Plaintiffs,

CITY OF CRYSTAL LAKE, a municipal corporation,

Defendants.

July 14, 2004

ORDER ON PENDING MOTIONS

This cause was before the Court on four Motions

for Summary Judgment and Motion to Amend. This

Motion’s for Summary Judgment listed by date of filing

are:

46a

l. Motion for Summary Judgment filed by the

City of Crystal Lake, a Municipal

Corporation on December 12, 2003 and

based upon the following arguments:

a. Plaintiffs’ Claim four Damages is

barred by application of the one year

limitations period of Section 8-101 of

the Tort Immunity Act (745 ILCS

10/8-101).

b. Plaintiffs’ Claim for Injunctive

Relief is barred by laches.

¢. Plaintiffs’ Claim for Damages is

barred by application of the

immunity provisions of Section

2-201 of the Tort Immunity Act (745

ILCS 10/2-201), Section 3-103 of the

Tort Immunity Act (745 ILCS

10/3-103) and Section 2-105 of the

Tort Immunity Act (745 ILCS

10/2-105).

d. Plaintiffs have failed to produce

competent evidence of any damage.

y & Plaintiffs partial Motion for Summary

47a

Judgment filed on March 8, 2004 seeking

partial Summary Judgment on the City of

Crystal Lake’s affirmative defenses of

statute of limitation and laches.

Motion for Partial Summary Judgment

against railroad Defendant on its limitations

and laches defenses against both Defendants

on causation filed on April 26, 2004.

Defendant, Chicago Northwestern Railway

Company’s Motion for Summary Judgment

filed June 21, 2004 which is based upon the

following arguments:

a. The railroad is entitled to possession

of the affected land under the

Doctrine of Adverse Possession

and/or is entitled to continue to use

the same land under the Doctrine of

Prescriptive Easement.

b. Plaintiff's Claim for Damages is

barred by the statute of limitations.

c. Plaintiff's Claim for Injunctive

Relief is barred by the Doctrine of

Laches.

48a

- & Plaintiffs’ Motion for Leave to File Second

Amended Complaint and for Substitution of

Parties filed Mach 12, 2004.

The parties have presented substantial written

materials in support of or in opposition to the various

motions. The Court will not list these materials but the

Court does acknowledge receipt of the materials and has

reviewed and considered same. The Court has also heard

and considered oral arguments by counsel. The Court has

further reviewed and considered the relevant statutory and

case law citations presented by the parties.

This cause was filed by the Plaintiffs on October 19,

1994 as Case Number 94 CH 9413 in the Circuit Court of

Cook County and transferred to the Circuit Court of

McHenry County on August 14, 1996 as Case Number 96

CH 297. On March 14, 1997, an Amended Complaint was

filed.

The Court will not attempt to recite all the factual

materials presented in the respective statements of fact and

responses thereto as the facts are contained in the written

materials and are well known to the parties. The Court will

make such reference to factual materials as is necessary to

an understanding of this Order.

In 1968, the City of Crystal Lake installed a 36 inch

49a

storm sewer pipeline in the Chicago Northwestern Railway

Company right of way. This right of way is immediately

adjacent to and contiguous with the Northwestern

boundary of the Plaintiffs property. The Plaintiffs’ claim

that the actions of the City of Crystal Lake and the Chicago

Northwestern Railway Company in constructing and

maintaining the pipeline and the City by other activities on

its property have cut off the natural flow of water off,

across and around the Plaintiffs property and thereby

caused substantial and continuing damages to Plaintiffs

property.

After having considered all of the written

submissions, oral arguments and citations of statutory and

case law authorities, the Court will discuss its rulings as to

each motion separately.

i: Motion for Summary Judgment filed by City

of Crystal Lake, a Municipal Corporation,

on December 12, 2004.

The Court finds that the City of Crystal Lake

has met its burden to establish that it is

entitled to summary judgment on the basis

of immunity under Section 2-201 of the Tort

Immunity as to Plaintiffs damage claims.

The Court comes to this conclusion based

upon the method of analysis as set forth by

50a

the Illinois Supreme Court in Ven Meter vs.

Darien Park District, 207 Ill. 2" 359 (2003).

This Court finds that the City of Crystal

Lake has presented sufficient support in the

record to establish the City’s action in this

case were (1) the result of a policy decision

and (2) discretionary. Based upon this

immunity, the Court finds that the Plaintiffs

Claim for Damages against the City of

Crystal Lake is barred. The Court does not

find that the Illinois Supreme Court

Decision in Snyder vs. Curran Township,

167 Ill. 2" 466 (1995) is inconsistent with a

finding of immunity under the facts of this

case.

The Court further finds that the city has not

met its burden to establish that it is entitled

to Summary Judgment on the basis of

immunity under either Section 3-103 or

Section 2-105 of the Tort Immunity Act in

the circumstances of this case.

With regard to the City’s argument that the

one year statute of limitation of Section

8-101 of the Tort Immunity Act controls, the

Court finds that Zimmer vs. Village of

Willowbrook, 242 Ill. App. 3d 437 (2™ Dist.,

Sla

1993) is still good law and controls in the

Second Appellate District. This Court does

not believe that the ruling of the Illinois

Supreme Court in Tosado vs. Miller, 188 Il.

2™ 186 (1999) in any way impairs the

validity of the Zimmer decision.

As to the City’s argument that the Plaintiffs’

Action for Injunctive Relief is barred by the

Doctrine of Laches, the Court finds that the

City has failed its burden of proof necessary

to establish the Plaintiffs failed to bring their

cause of action for injunctive relief within

the 20 year limitation period recognized by

the Illinois Supreme Court in Meyers vs. —

Kissner, 149 Ill. 2™ 1 (1992). The Court

believes that a question of fact exists as to

whether the Plaintiffs claim arises from a

single overt act as alleged by the city or

from a continuing nuisance from which

claimant may select his own time to bring an

action.

As to the damage issue, the Court finds that

the Plaintiffs’ evidence is sufficient to

overcome the request for summary

judgment.

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52a

Plaintiffs Motion for Partial Summary

Judgment filed on March 8, 2004 seeking

Summary Judgment on the City of Crystal

Lake’s Affirmative Defenses of Statutes of

Limitations and Laches.

While the Court has not granted the City’s

Motion for Summary Judgment on either the

statute of limitations or laches bases, the

Court does believe there are genuine issues

of material fact in existence in this case that

also require the Plaintiffs’ motion to be

denied as to the statute of lim ‘ations and

laches affirmative defenses.

Motion for Partial Summary Judgment

against the railroad defendant on its

limitations and laches defenses and against

both defendants on causation filed April 26,

2004.

For the same reasons stated above, the Court

will not grant the Plaintiffs’ Partial Motion

for Summary Judgment as to the railroad

defendant on the affirmative defenses. On

Plaintiffs’ motion as it relates to casation,

the Court finds the record establishes there

is a genuine issue of material fact as to the

53a

causation in this matter. The credibility and

weight to be given to the two opinion

witnesses in this case is of great importance

in this case. If the trier of fact accepts the

testimony of the Defendants’ witness as to

the deficits in the Plaintiffs’ opinion expert’s

analysis and the lack of necessary

information upon which to base any opinion,

the ability of the Plaintiffs to meet their

burden of proof on the issue of causation is

in doubt.

Defendant, Chicago Northwestern Railway

Company’s Motion for Summary Judgment

filed June 21, 2004. :

The Court finds that the Defendant railroad

has not established that it is entitled to

Summary Judgment on the bases of either

adverse possession or prescriptive easement.

Additionally, for the same _ reasons

previously stated in regard to the Motion of

the City of Crystal Lake, the Court finds that

the Defendant railroad is not entitled to

Summary Judgment on the bases of either

statute of limitations or laches.

54a

Plaintiffs’ Motion for Leave to File Second

Amended Complaint and for Substitution of

Parties filed March 12, 2004.

The Court will grant the Motion of the

Plaintiffs for Leave to File a Second

Amended Complaint and for Substitution of

Parties without prejudice to the Defendants

ability to file any appropriate responsive

pleading.

THEREFORE, IT IS ORDERED THAT:

The Motion of the City of Crystal Lake for

Summary Judgment as to Plaintiffs’ damage

claim is granted on the basis of immunity

granted by 745 ILCS 10/201 and that

Plaintiffs claim for damages against the City

of Crystal Lake is dismissed.

The Motion of the City of Crystal Lake for

Summary Judgment on the bases of

immunity under 745 ILCS 10/3-103 and

10/2-105, limitations under 745 ILCS 10/8-

101 or laches is denied.

Both of Plaintiffs’ Partial Motions for

Summary Judgment are denied.

55a

4. Defendant, Chicago and Northwestern

Railroad Company’s Motion for Summary

Judgment is denied.

a Plaintiff is granted leave to file their Second

Amended Complaint adding additional

counts and substituting parties within seven

days of this Order and Defendant’s are

granted 21 days to answer or otherwise

plead to the Second Amended Complaint.

6. The case is set for a case management

hearing on August 27, 2004 at 9:00 a.m.

ENTERED July 14, 2004 ENTER _s/ Michael Sullivan

Michael J. Sullivan

CIRCUIT JUDGE

56a

DISTRIBUTION TO:

Constantine J. Gekas

Gekas & Associates, LTD

Suite 1700

11 S. LaSalle St.

Chicago, IL 60603

Fax No. 312-726-4505

John E. Norton and

Anthony Andrews

Norton, Mancini, Weiler & De Anno

109 N. Hale Street

P.O. Box 846

Wheaton, IL 60189-0846

Fax No. 630-668-9489

William I. Caldwell

Caldwell Berner & Caldwell

100 1/2 Cass Street

P.O. Box 1289

Woodstock, IL 60098

Fax No. 815-338-0015

PROOF OF SERVICE

The undersigned certifies that the foregoing instrument

was served upon all parties to the above cause by

depositing a copy thereof in the U.S. Mail, postage

prepaid, in envelopes addressed to each of the attorneys

of record herein at their respective addresses disclosed

on the pleadings, on __July 14, 2004 .

s/ Joyce Brady

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.