Opposition Brief — Rockstead v. City of Crystal Lake (No. 06-1716)

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No. 06-1716

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Petitioners,

CITY OF CRYSTAL LAKE, ILLINOIS,

Respondent.

Ow PETrr10N FoR A Wait of CERTIORARI TO THE

Untrep States Court oF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION

Joun E. Noxton

Counsel of Record

W. AntHony ANDREWS

Brian J. LABARDI

Noxton Mancini & WHILER

109 N. Hale Street

Wheaton, IL 60189

(630) 668-9440

Counsel for Respondent

COUNSEL PRESS

(SBD) 274-3321 + (EOD) 398-4859

QUESTION PRESENTED

Whether Petitioners have presented compelling reasons

to grant the Petition, where the Seventh Circuit’s Opinion

affirming the District Court’s analysis under Williamson

County does not conflict with the decisions of this Court or

a Court of Appeals, and where Petitioners do not claim that

the Seventh Circuit’s ruling implicates an important federal

question that has not been settled by this Court.

li

TABLE OF CONTENTS

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TABLE OF CITED AUTHORITIES ............

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STATEMENT OF THE CASE ......... 002 ceeen

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SOCHINE EOCROTOUING ok as i cc i ces eeewarss

REASONS FOR DENYING THE PETITION ....

I.

The District Court Properly Dismissed the

Petitioners’ Claims Because the Petitioners

Failed to Exhaust Available State Remedies

as Required under Williamson County and

SOR TORU SON 86 co Sa een ee eve cee O

This Courts’ Holding in San Remo Hotel

Expressly Denied the Petitioners’ Argument

that an Exception to § 1738 Should be

Allowed for Takings Claims. ............

Illinois Inverse Condemnation Law is Not so

Firmly Entrenched that Any Attempt to

Distinguish Based Upon Facts Should be

re rey rer

Page

11

13

16

til

Contents

Page

IV. There is No Need to Reconsider Williamson

County because it was Correctly Decided

Under the Plain Text of the Fifth

Pe GAA en eae ee we 17

V. Following the Requirements of Williamson

County, a Section 1983 Fifth Amendment

Takings Claim May be Heard in Federal

RN Se ah wie Ges ce pena kas btwn 18

VI. Acceptance of Petitioners’ Invitation Could

Yield Broad Undesirable Results. ........ 20

EN. Se Coke 65 SKS asa us AA ben SO RRASS 21

iv

TABLE OF CITED AUTHORITIES

Page

CASES

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

161 Ill. 2d 321, 641 N.E. 2d 435 (Ill. 1994) .... 19

Luperini v. County of DuPage 265 lll.App.3d 84,

637.N.E.2d 1264 (2nd Dist. 1994) ........... 8, 16

Parratt v. Taylor, 451 U.S. 527, 101 S.Ct.1908

CORD hase Gas BNA cele a bbSs 4 RARE 20

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

77 Pada Oat Clk: EDRBD): 5h 06k bx cians ceca yes 8, 16

San Remo Hotel v. County of San Francisco,

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

Santini v. Connecticut Hazardous Waste

Management Service, 342 F.3d 118 (2nd Cir.

RPE Rete gee Serene NE RE Te PLC g peg ge 14

Solid Waste Agency of Northern Cook County v. U.S.

Army Corps of Engineers, 531 U.S. 159, 121 S.Ct.

sc ie BARRE SSE ga mmMr Ameer Parga oa gemeren ane pega 7

Williamson County Reg’l Planning Commission v.

Hamilton Bank of Johnson City, 473 U.S. 172,

Se De PEON CLD. sb ea Soa baKbastnaass passim

Vv

Cited Authorities

Page

RULES

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UNITED STATES CONSTITUTION

Lie, SE, aC: AMON. Yok ek as ea oe wees 2, 44, FF

Los. (ONS, Art. AMBNG: ALY. ise ccc kes 5

STATUTES

pS | oth 2 ic BAe: pare 3, 13, 15, 18

bik os So ena a a aren errer 2, ay 4h, 13, 28, 49

a ES Are eer re Perry = reer y 5

735 Ill. Comp. Stat. § 5/7-101, et seg. ......... 8, 11-12

OTHER AUTHORITY

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l

INTRODUCTION

The Petitioners have presented no compelling reasons

for their Petition for a Writ of Certiorari to be granted

(“Petition”). See Sup. Ct. R. 10. Specifically, the Petitioners

fail to demonstrate that the Seventh Circuit’s April 10, 2007,

Opinion (“Opinion”) is in conflict with a decision of this

Court or another Court of Appeals or that the Seventh Circuit

decided an important federal question that has not been

settled by this Court. See Sup. Ct. R. 10(a)-(c). In fact, the

Petitioners have shown in their Petition that the District

Court’s dismissal of their federal claim was in accordance

with this Court’s decisions in Williamson County Reg’l

Planning Commission v. Hamilton Bank of Johnson City, 473

U.S. 172 (1985) and San Remo Hotel v. County of San

Francisco, 545 U.S. 323 (2005). Therefore, the Petition

should be denied’.

The Petitioners claim that they seek reconsideration of

Williamson County’s state litigation rule based on the

concurrence of Chief Justice Rehnquist in this Court’s

unanimous decision in San Remo Hotel in which the Chief

Justice stated in concurrence that, “I believe the Court should

reconsider whether Plaintiff asserting a Fifth Amendment

' The Petitioners note that McNamara v. City of Rittman, Ohio

(No. 06-1481) presently pending for Certiorari before this Court

presents related questions. The questions presented in that case are

separate and distinct from those presented in this matter in that Ohio

law did not initially provide a state procedure for obtaining

compensation but during the pendency of that matter made such a

procedure available thereby creating an issue of which claims were

ripe and which may be barred by the Ohio Statute of Limitations.

No such issue is present in this case as Illinois has always provided

a state procedure for obtaining compensation.

2

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

government entity must seek compensation in state courts.”

Id. at 352.

As Certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication

of a properly stated rule of law, this case presents no

compelling reasons for Certiorari as none are alleged, rather

the Petitioners request that this Court re-examine properly

applied rules of law. (See Sup. Ct. R. 10).

This case does not present the opportunity for

re-examination alluded to by Chief Justice Rehnquist in

San Remo because a final state court decision has not been

rendered in this case. Although the Petitioners’ federal claim

was filed as a § 1983 Fifth Amendment Just Compensation

Action, the Petitioners never filed their § 1983 claim in state

court despite the pendency of the Illinois. Thus, although

Justice Rehnquist in San Remo suggested that the Court might

reconsider Fifth Amendment takings claims based on a final

decision of a state or local government entity, no such final

decision has been made.

The Petitioners also claim that Williamson County should

be reconsidered because, when coupled with § 1738, it

prevents the Petitioners from bringing a Fifth Amendment

takings claim in Federal Court. No compelling reasons are

advanced by the Petitioners beyond the mere assertion that

Williamson County’s requirement that a Fifth Amendment

§ 1983 takings claim requires exhaustion of all state law

remedies prevents an owner from subsequently bringing the

same action in federal court. The relief sought by the

Petitioners here is the very same as that which was considered

and denied by this Court in San Remo.

3

The next claim is that Williamson County’s state litigation

requirements are suspect, in that they present a “Catch 22”,

because of the interaction between the state litigation

requirement and § 1738. Here again the Petitioners present

no compelling reasons for granting their Petition, and they

fail to cite any instances in which Appellate Courts are in

conflict with each other.

Finally, the Petitioners assert that the lower courts are

bound to follow controlling state law decisions, which the

Petitioners admit would bar their claim of inverse

condemnation. Therefore, the Petitioners assert that the lower

courts should have held that the procedure for compensation

under Illinois law was unavailable, thereby making their

federal claim ripe immediately. As Judge Posner stated in

the Seventh Circuit’s opinion, because the remedy available

to the Petitioners is a state common law doctrine which judges

might elect to change, and the Illinois Supreme Court has

not addressed this matter since 1948, it is premature to

conclude that the Illinois Supreme Court would deny relief

on the basis of a mechanical application of the “temporary

accumulations” doctrine.

In summary, the Petitioners present no compelling

reasons for the grant of their Writ of Certiorari as their

Petition addresses settled issues which do not merit this

Court’s attention. The assertion that the state litigation rule

of Williamson County should be re-examined merely

reiterates an issue decided by this Court as recently as 2005

in the San Remo case. In fact, their only assertion of error in

the Courts below concerns the claim that the District Court

and the Seventh Circuit Appellate Court erred in failing to

hold that state compensation was unavailable. This claim is

readily disposed of, since the Petitioners admit that they

4

sought relief from the linois state courts under a claim of

inverse compensation under the Just Compensation Clause

of Article I, Section 15 of the Illinois Constitution. Therefore,

the clear letter of the law in Illinois provides a procedure by

_ which the Petitioners may seek compensation for the taking

of their land. Because the Petitioners have failed to carry

their substantial burden of demonstrating that there are any

compelling reasons for the Court to grant their Petition, the

Petition should be denied.

STATEMENT OF THE CASE

Procedure

This matter dates back to a state court action initially

filed in 1994. At that time, the Petitioners, Shirley A.

Rockstead and Carol J. Henderson, alleged certain actions

of the Respondent, the City of Crystal Lake, caused flooding

on their property. The Petitioners argued that this damage

constituted a taking without just compensation in violation

of the Illinois Constitution. On July 27, 2005, the Circuit

Court of McHenry County, Illinois, granted partial Summary

Judgment in favor of Crystal Lake on the Petitioners’ takings

claims. The Court ruled that the City’s actions, even when

considering twelve years worth of evidence in a light most

favorable to the Petitioners, did not constitute a taking. The

state court found that occasional flooding, absent a showing

of a permanent accumulation of surface water on the

Petitioners’ property, was insufficient to establish a physical

taking. Because the Petitioners were unable to establish a

permanent accumulation of surface water on their property,

the court held that the Petitioners’ attempt to compel the City

to institute eminent domain proceedings was without merit.

However, because this ruling was interlocutory and because

5

other claims and parties were named in the state litigation,

the Petitioners could have sought leave to appeal this

ruling under Illinois Supreme Court Rule 304(a) but failed

to do so.

On August 8, 2005, the Petitioners filed their Complaint

with the United States District Court for the Northern District

of Illinois alleging an impermissible taking in violation of

42 U.S.C. § 1983 and § 1988, as well as the Fifth and

Fourteenth Amendments to the United States Constitution.

In their Complaint, the Petitioners alleged that they were

entitled to federal court relief because all remaining state

procedures to obtain recovery on their takings claims were

inadequate and futile. Crystal Lake then filed its Motion to

Dismiss arguing that the District Court lacked subject matter

jurisdiction over the takings claim because the case was not

yet ripe for Federal District Court review. Crystal Lake argued

that in failing to assert their statutory right to appeal the

partial summary judgment to the Appellate Court for the

Second District of Illinois, the Petitioners failed to utilize

all methods of redress available from the State of Illinois.

Crystal Lake argued, therefore, that under the steadfast ruling

of Williamson County, the Petitioners’ complaint was

premature.

The United States District Court for the Northern District

of Illinois granted Crystal Lake’s Motion to Dismiss pursuant

to 12(b)(1) of the Federal Rules of Civil Procedure. In its

written opinion, the District Court concluded that, pursuant

to the U.S. Supreme Court’s ruling in Williamson County, a

plaintiff must exhaust all remedies made available by the

state prior to seeking redress from the Courts of the United

States. (Pet. App. at 20a-21a). The District Court found that

the Petitioners could still» -a relief in the Illinois Appellate

6

Court. The Court ruled, that the Petitioners’ Complaint would

not ripen until the Second District affirmed the McHenry

County Court’s decision granting Crystal Lake’s Motion for

partial Summary Judgment. (Pet. App. at 20a-25a).

On October 31, 2006, the Seventh Circuit heard

arguments on the Petitioners’ appeal and issued a subsequent

written opinion on April 10, 2007 affirming the judgment of

the District Court in dismissing the Petitioners’ federal cause

of action as not ripe. The Seventh Circuit held that because

these issues involve a common law doctrine and the Illinois

Supreme Court has not visited the issue since 1948, it would

be premature to conclude that an Illinois Appellate Court

would deny relief to the Petitioners. (Pet. App. at 7a). Because

the. state court ruling was based on Illinois case law, the

Petitioners need only distinguish that case law on appeal.

Therefore, the Seventh Circuit held that the Petitioners did

not fit within the unavailability exception of Williamson

County and agreed with the District Court that because the

Petitioners had not appealed the adverse state court ruling it

cannot be conclusively determined that resort to the Illinois

appellate system would be futile. Therefore, it cannot be said

that the Petitioners have exhausted their state court remedies

as required under this Court’s ruling in Williamson County.

This appeal followed.

Factual Background

The Petitioners, Shirley Rockstead and Carol Henderson,

are the owners of property located in McHenry County,

Illinois, a portion of which lies in the City of Crystal Lake.

The property is undeveloped and zoned for industrial use.

The City of Crystal Lake is a municipal corporation that owns

and maintains real property, including a sewage disposal plant

7

and storm water detention ponds, which lies adjacent to and

contiguous to the north and east sides of the Petitioners’

property.

In 1968, Crystal Lake officials entered into a license

agreement with Union Pacific Railroad, owners of a right-

of-way running in a northeast-southwest direction to the west

of the Petitioners’ property. In accordance with the license

agreement, the City was permitted to, and did, construct and

maintain a pipeline running along the railroad’s nght-of-way,

next to the Petitioners’ property. The Petitioners allege that

construction of this pipeline resulted in an obstruction of

the natural flow of water from their property.

In 1994, the Petitioners instituted a cause of action

complaining that Crystal Lake, in undertaking to build

pipelines and other structures on Crystal Lake’s own property,

damaged the Petitioners’ property. Specifically, the

Petitioners claimed that building these public improvements

caused water to drain toward, rather than away from, their

land. They alleged that this change of flow lead to flooding,

thereby converting their property to “useless wetlands.”*

The Petitioners filed their Complaint seeking damages at law,

? Although the Petitioners continue to claim that their property

is now “valueless wetlands,” the property remains listed for sale,

and was subject to a $515,000 offer two years ago and a $900,000

offer this summer. In addition, although the Army Corps of Engineers

initially classified the Petitioners’ land as “wetlands,” following this

Court’s ruling in Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675 (2001),

that classification was determined to be outside of the Army’s

jurisdiction by the Chicago district of the Army Corps of Engineers

in 2002. Therefore, at present, there is no classification related

to saturation attached to the Petitioners’ land that restricts its use

or Sale.

8

injunctive relief, and a Writ of Mandamus asking that the

McHenry County Court institute compelled eminent domain

proceedings.

In accordance with the Illinois procedure for inverse

condemnation, the Petitioners sought a writ of mandamus

under Article I, Section 15 of the Illinois Constitution and

under the Illinois Eminent Domain provisions of the Illinois

Code of Civil Procedure, 735 ILCS § 5/7-101 et seq.

However, after extensive discovery, the Petitioners were

unable to establish that the property was flooded with

permanent standing water, which according to Illinois case

law, is a necessary component of a successful Illinois inverse

condemnation action. See People ex rel. Pratt v. Rosenfield

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

DuPage 265 Ill.App.3d 84, 637.N.E.2d 1264 (2nd Dist.

1994).

Accordingly, on July 27, 2005, the McHenry County

Court entered its Order On Motion For Partial Summary

Judgment. The court held:

“The Plaintiffs concede and, in fact, state that it

was never their contention, that the Defendants

have caused permanent standing water on their

property.” (Pet. App. at 35a).

The Court concluded that the Petitioners’ claim was

insufficient for an inverse condemnation action. Though other

counts survived, the Court entered Judgment in the City of

Crystal Lake’s favor on the Petitioners’ inverse condemnation

counts.

9

The Petitioners never pursued their right to appeal the

McHenry County Court’s Order of Partial Summary

Judgment in the Appellate Court for the Second District of

Illinois. Rather, two weeks after the McHenry Court’s Order,

they filed suit in the U.S. District Court for the Northern

District of Illinois. The Petitioners’ Federal Complaint

alleged that:

“After 11 years of fruitless litigation in the Illinois

state courts, plaintiffs have fully exhausted their

state law remedies and it is apparent that the City

and State will not pay them for just compensation.

Therefore, plaintiffs have exhausted their state

remedies which in any event are inadequate and

further resort to them would be completely futile.”

In lieu of answering the Petitioners’ Complaint, Crystal

Lake filed its Motion to Dismiss under 12(b)(6) of the Federal

Rules of Civil Procedure. In its Motion to Dismiss, Crystal

Lake argued that under Williamson County, the Petitioners

failed to utilize all methods of recovery available by the State

of Illinois, and therefore their takings claim was not ripe for

review. The Petitioners responded that because Illinois law

was so firmly entrenched in the notion that intermittent

flooding is not a taking, any appeal would have been futile.

The United State District Court for the Northern District

of Illinois concluded that, at the time the Petitioners filed

their federal complaint, their case more appropriately

belonged in the Llinois state court. In ruling on Crystal Lake’s

Motion to Dismiss, therefore, the District Court found that,

pursuant to 12(b)(1), it was compelled to dismiss the

Petitioners’ Complaint because it lacked subject matter

jurisdiction over the claim. The Court reasoned that, pursuant

10

to the United States Supreme Court’s ruling in Williamson

County, when a claimant fails to exhaust all state remedies,

any federal claim that follows is not yet ripe for review.

(Pet. App. at 20a-21a, 26a).

The Petitioners then appealed to the United States Court

of Appeals for the Seventh Circuit. In affirming the decision

of the District Court, the Seventh Circuit correctly applied

the Williamson County Rule, holding that the Petitioners had

failed to exhaust all state law remedies and therefore their

federal claim was not ripe for review. Although the Petitioners

argued to the Seventh Circuit that they fall within the

exception to Williamson County because the Illinois

procedure for inverse condemnation should be deemed

“unavailable” because the Illinois case law appears to be

adverse to the successful litigation of their claim, the Seventh

Circuit held that one cannot conclude that resort to the Illinois

appellate system would be futile since the Illinois courts have

not re-visited the issue in almost fifty years. Furthermore,

because the state court ruling was based on case law, the

Seventh Circuit observed that the Petitioners need only

distinguish that case law to overcome the McHenry County

Circuit Court’s grant of partial summary judgment. This

appeal followed.

REASONS FOR DENYING THE PETITION

The decisions below do not conflict with the decisions

of this Court or any Court of Appeals, nor do they implicate

a federal question that has not been decided by this Court.

Accordingly, the Petitioners have not sustained their burden

of demonstrating any “compelling reasons” for the Petition

to be granted under Supreme Court Rule 10.

11

I. The District Court Properly Dismissed the Petitioners’

Claims Because the Petitioners Failed to Exhaust

Available State Remedies as Required under

Williamson County and San Remo Hotel.

In order to bring an inverse condemnation claim in

Federal Court pursuant to § 1983 and the Fifth Amendment,

a Plaintiff must first exhaust all avenues available in the state

court to recover for allegedly damaged property. Williamson

County, 194. In Williamson County, this Court found that

the Plaintiff's claim was not ripe for federal review because,

in seeking compensation, the claimant did not utilize all

procedures made available by the state prior to seeking

federal redress. /d. In so ruling, the Supreme Court declared

this a new “exhaustion requirement” for takings claims

brought against a state, reasoning:

“If a state provides an adequate procedure for

seeking just compensation, the property owner

cannot claim a violation of the just compensation

clause until it has used the procedure and been

denied just compensation.” Jd. at 195.

The Williamson County state exhaustion requirement was

reaffirmed by this Court in a similar context dealing with

the effect of the exhaustion requirement and the full faith

and credit clause as recently as 2005 in the case of San Remo

Hotel v. City and County of San Francisco, California,

454 U.S. 323 (2005).

Just as does Tennessee in the Williamson County case,

Illinois provides a procedure for seeking just compensation

from a governmental entity in the context of a takings claim.

(See Illinois Inverse Condemnation Statute, 735 ILCS 5/7-

12

101). In this case, the Petitioners initiated the proceeding of

an Illinois inverse condemnation action in order to seek

redress under the Illinois Constitution. However, the

Petitioners abandoned these proceedings once the city

prevailed on its motion for partial summary judgment in state

court. Less than two weeks after that ruling, the Petitioners

filed their complaint in Federal Court, rather than seeking

leave to appeal the adverse ruling of the Circuit Court of

McHenry County. The Petitioners justify this course of action

by arguing that, because they cannot recover under Illinois

case law, it would be futile to proceed further and therefore

the Illinois procedure is unavailable to them.

Because Illinois provides for a state inverse

condemnation proceeding and because the Petitioners have

not appealed the denial of their state inverse condemnation

claim in the Illinois court, the Petitioners have not exhausted

all available means of redress provided by Illinois. As a result,

the Petitioners’ federal claim is not ripe for a determination

under the rule expressed in Williamson County. Therefore,

the District Court correctly held that it lacked subject matter

jurisdiction over this case.

Furthermore, as held by the District Court and affirmed

by the Seventh Circuit Court of Appeals, the existence of

unfavorable case law does not render an appeal futile, nor

does it constitute the constructive unavailability of an Illinois

inverse condemnation procedure. As observed by the Seventh

Circuit, if a statute or constitutional provision provided that

inverse condemnation procedure cannot be used when

intermittent flooding is at issue, recourse to state remedies

would be pointless and not required. (Pet. App. at 4a).

However, when as in this case, the denial of the Petitioners’

claim rests on state common law, the Petitioners need only

13

distinguish the controlling case law in order to prevail on

appeal. Indeed, the Petitioners do not pursue here their

argument that state court relief is unavailable, only not yet

resolved.

Therefore, because the Petitioners may appeal the state

court grant of summary judgment against them but have

chosen not to do so, instead filing a § 1983 Claim in federal

court, it cannot be said that the Petitioners have met the

requirement enunciated by this Court in Williamson County.

Hence, the District Court’s dismissal of the Petitioners’

federal takings claim was consistent with this Court’s

decisions in Williamson County and San Remo Hotel and

does not present any reason for this Court to now revisit those

issues.

Il. This Courts’ Holding in San Remo Hotel Expressly

Denied the Petitioners’ Argument that an Exception

to § 1738 Should be Allowed for Takings Claims.

Although the Petitioners phrase their argument that

Williamson County’s exhaustion requirement when viewed

in combination with 28 U.S.C. § 1738 precludes the

subsequent filing of a federal takings claim in new

phraseology, the Petitioners are asking this Court to create

an exception to Section 1738 in takings claims cases. This

issue is identical to that addressed and specifically denied

by this Court in San Remo Hotel.

In San Remo Hotel, this Court granted certiorari to

determine whether an exception should be given to § 1738

in takings claims to allow for federal review once a state

court has denied compensation. At the time, the decision by

the Ninth Circuit Court of Appeals holding that federal review

14

of a takings claim was not ripe conflicted with that of the

Second Circuit Court of Appeals decision in Santini v.

Connecticut Hazardous Waste Management Service, 342 F3d

118 (2nd Cir. 2003). Therefore, unlike the current situation,

when San Remo was reviewed in 2005, there existed between

the Circuits a disagreement of the application of this law.

Indeed, the Petitioners’ argument in San Remo is

strikingly similar to that advanced by the Petitioners at bar.

In San Remo, the court observed:

“The essence of the Petitioners’ argument is as

follows: because no claim that a state agency has

violated the federal takings clause can be heard

in federal court until the property owner has “been

denied just compensation” through an available

state compensation procedure, federal courts

[should be] required to disregard the decision of

the state court in order to ensure that federal

takings claims can be considered on the merits in

... federal court.” San Remo 545 U.S. at 338.

While the Petitioners in San Remo complained of the

same procedural situation as presented here, namely that

litigation of their federal takings claim in state court barred

them from subsequently bringing that claim in federal court,

this Court held that

“there is, in short no reason to believe that

Congress intended to provide a person claiming a

federal right an unrestricted opportunity to

re-litigate an issue an issue already decided in state

court simply because the issue arose in a state

proceeding in which he would rather not have been

engaged at all.”

15

San Remo, at 343. The Court further reasoned that the

argument that an exception should be made to § 1738 for

takings claims fails because it assumes that courts may create

exceptions to § 1738 whenever deemed appropriate. “Such

a fundamental departure from traditional rules of preclusion,

enacted into federal law, can be justified only if plainly stated

by Congress.” San Remo, at 344. “An exception to § 1738

will not be recognized unless a later statute contains an

expressed or implied partial repeal. Congress must clearly

manifest its intent to depart from § 1738.” San Remo,

344-345.

The majority opinion in San Remo noted that the

requirement that the property owners must seek compensation

through state procedures does not preclude a state court from

simultaneously deciding the property owner’s claim under

state law, and a claim that, in the alternative, the denial of

the compensation would violate the Fifth Amendment of the

Federal Constitution. Jd. 346. Because of this juxposition,

the Court noted that most of the cases in takings jurisprudence

appear before this Court on certiorari from state courts of

last resort. /d., 347.

The concurrence of Chief Justice Rehnquist joined by

Justices O’Connor, Kennedy, and Thomas upon which the

Petitioners place their hope for the grant of this Petition

concludes, along with the remainder of the Court, that there

is no basis to exempt takings claims from § 1738 absent

express direction by Congress. Jd. 348. The Chief Justice

noted that he believed the Court should reconsider whether

plaintiffs asserting a Fifth Amendment takings claim based

on the final decision of a state or local government entity

should first seek compensation in state court. Id. 352.

16

Despite the Petitioners’ contention that this is an

opportunity to re-examine the state litigation requirement of

Williamson County, in the present case there has been no

final state decision as the Petitioners failed to seek leave to

appeal the Circuit Court of McHenry County’s grant of

summary judgment against their inverse condemnation claim

and instead filed a § 1983 claim in federal court. Thus, the

final decision sought to be re-examined by Chief Justice

Rehnquist in concurrence in San Remo has not been rendered

in this case as the remainder of the Petitioners’ claims are

still pending in state court.

III. Illinois Inverse Condemnation Law is Not so Firmly

Entrenched that Any Attempt to Distinguish Based

Upon Facts Should be Rendered Futile.

The Petitioners argue that because some judicial

decisions are unfavorable to their takings claims the

Petitioners may not win on appeal, and therefore pursuing

an appeal would be futile. See generally Luperini v. County

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

1994), People exrel Pratt v. Rosenthal, 399 Ul. 247, 251, 77

N.E.2d 697 (Ill. 1948). These cases hold that if a state’s

actions cause flooding on a land owner’s property, the

property owner is entitled to inverse condemnation

proceedings only when the flooding causes permanent

standing water on the property, leaving these land owners

with simply a cause of action for damages or injunctive relief.

Luperini, 637 N.E.2d at 1268.

The Petitioners argue that any attempt to distinguish their

own case from these cases would be futile alleging that

Illinois law absolutely bars the Petitioners from pursuing

inverse condemnation as a remedy.

17

Notwithstanding the Seventh Circuit's observation that

all the Petitioners need do is distinguish the present factual

situation from those in the controlling case law on appeal,

the Petitioners in the present matter have not brought their

claims before the state court at all. Rather, they have filed

this claim in federal court. As such, the Petitioners cannot

conclusively derive a negative outcome for a claim not before

or ruled upon by the state court as a reason for adducing the

unavailability exception under Williamson County.

IV. There is No Need to Reconsider Williamson County

because it was Correctly Decided Under the Plain Text

of the Fifth Amendment.

The holding in Williamson County correctly follows the

language of the Fifth Amendment which does not proscribe

the taking of property, but rather prohibits its taking without

just compensation. As noted in Williamson County, if the

government has an adequate process for obtaining

compensation and if resort to that process yields just

compensation, then a property owner has no claim against

the government for a taking. Williamson County, 194. Indeed,

the Court in Williamson County recognized that if a state

provides an adequate procedure for seeking just

compensation, the property owner cannot claim a violation

of the just compensation clause until using the procedure

and being denied just compensation. /d. 195. Thus, no

Constitutional violation occurs until just compensation has

been denied. This Court in Williamson County recognized

that the Fifth Amendment is satisfied by a reasonable and

adequate provision for obtaining compensation once a taking

has occurred. Jd.

18

As the Fifth Amendment does not require compensation

to be paid in advance of a taking but only that a procedure

for compensation be made available once a taking has

occurred, and a state’s action in taking is not complete until

the state fails to provide compensation, Williamson County

is correctly applied when, as here, the takings claimant has

yet to exhaust state remedies for compensation.

V. Following the Requirements of Williamson County, a

Section 1983 Fifth Amendment Takings Claim May be

Heard in Federal Court.

The Petitioners argue that due to the interaction of

William County’s state exhaustion requirement and § 1738,

the result is that a claimant who brings a takings claim in

state court and loses will be subsequently barred from

bringing that claim in federal court by res judicata and/or

collateral estoppel. This interaction however, does not

preclude a claimant from presenting their § 1983 claim in

federal court if they comply with the state exhaustion

requirement of Williamson County. San Remo, 545 U.S., 346.

In this case, rather then assert their § 1983 claim in state

court, the Petitioners advanced only a state inverse

condemnation claim. When that was denied, the Petitioners

filed their federal claim in District Court. Had the Petitioners

asserted their § 1983 claim in state court, they could have

sought redress through the Illinois appellate court procedure

whereby an adverse ruling on their § 1983 claim by the

Illinois Supreme Court could be appealed to this Court.

The Petitioners’ argument that they did not advance a

§ 1983 takings claim in state court because the Illinois

Supreme Court has adopted Williamson County’s ripeness

19

rule in a takings context is without merit. The Petitioners

cite Beneficial Dev. Corp. v. City of Highland Park, 161 Iil.

2d 321, 641 N.E. 2d 435 (Ill. 1994) for the proposition that

the Illinois Supreme Court has adopted Williamson County’s

ripeness rule in a federal takings context thus precluding them

from bringing a § 1983 claim in state court.

In Beneficial Dev. Corp., the plaintiffs asserted on appeal

that the City of Highland Park violated § 1983 by

conditioning the issuance of a building permit to Beneficial.

641 N.E.2d at 438. Because Beneficial stipulated at trial that

it never applied for the building permit, the Illinois Supreme

Court ruled that Beneficial’s § 1983 claim was premature

and did not consider it further. Jd. Beneficial’s § 1983 claim

that they were denied the issuance of a building permit did

not involve a takings issue and the Illinois Supreme Court’s

determination not to consider it was essentially premised on

Beneficial’s own stipulation that they had not been damaged

hy the city’s denial of a permit Beneficial never requested.

This is a far cry from the Petitioners’ assertion that the

Illinois Supreme Court adopted Williamson County’s ripeness

rule in a federal takings context. At most, the Illinois

Supreme Court’s view of § 1983 in Beneficial can be said to

stand for the proposition that a § 1983 claim in general is

premature when the basis for such a claim is shown not to

have occurred. Thus, the Petitioners have failed to

conclusively demonstrate that Illinois case law would prevent

them from filing a § 1983 claim along with their state court

claims in accordance with San Remo.

20

VI. Acceptance of Petitioners’ Invitation Could Yield Broad

Undesirable Results.

Beyond rejecting century-old precedent, acceptance of

the Petitioners’ invitation would yield numerous alleged state

taking victims to inundate the federal courts with petitions

seeking similar relief.

The near unanimous twenty-two (22) year old precedent

set forth in Williamson County based upon precedents which

go back more than a century has been uniformly applied

countless times by the Federal courts. Overruling long-

standing precedent is something that this Court traditionally

avoids.

Further, the relief which the Petitioners here are seeking,

would result in sending countless state land disputes into

federal court without the benefit of state court review.

Increased federal litigation and the attendant docket

management is also a concern of this Court.

Reconsideration of Williamson would logically call for

the reconsideration of the parallel Due Process line of cases

discussed by this Court in Williamson County such as Parratt

v. Taylor, 451 U.S. 527, 101 S.Ct. 1908 (1981) as well as

those lines of authority requiring claimants against the federal

government to pursue their remedy in the United States Court

of Federal Claims. Should certiorari be granted on

Williamson, these and multiple other established lines of

precedent would logically become subject to reconsideration

as well.

21

CONCLUSION

The Petitioners have not established any compelling

reasons for this Court to grant the Petition. Therefore,

Respondents respectfully request that the Petition be denied.

Respectfully Submitted,

JoHN E. Norton

Counsel of Record

W. ANTHONY ANDREWS

BriAN J. LABARDI

Norton MANCINI & WEILER

109 N. Hale Street

Wheaton, IL 6018

(630) 668-9440

Counsel for Respondent