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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1132%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

Ww”

No. 06-1716

CO | we 24

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

(QUES EEUIN FURMRORN AED cee ca teecteseteace

TAR A” RAT RENEE: SAAR ei cade eweeereaees

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

SIE RUE Von ons 56sec nesantacuserdeae

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

ne Ee een a ae

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
ee Oe TNA) i is 5,9
GAs ON: ikea keer deed ec caee See ws 5
I REE is ick bce sean wk eucanae ney wine ee ae
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

eS 2 rere errr ee rer rrr ee err 4,8

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1132%3A2. Public record. Not legal advice.