Our reports on the oral arguments of the Illinois Supreme Court’s September term continue with Toftoy v. Rosenwinkel.

Toftoy is an interesting case because it presents a textbook example of a clash between two classic forms of legal analysis. Professor Ward Farnsworth discusses the distinction at length in his classic book The Legal Analyst: the conflict between ex post and ex ante reasoning.

As Professor Farnsworth explains, ex post reasoning looks backward, asking what remedy is appropriate in connection with a completed incident. Ex ante reasoning – a form of analysis lawyers have in common with economists – analyzes what effects will result moving forward from any remedy proposed for the incident. The classic conflict between ex post and ex ante — again, borrowing Professor Farnsworth’s examples — is whether or not to pay ransom to a hostage taker. Ex post reasoning might argue that a hostage taker should be paid ransom to save the victim’s life; ex ante reasoning rejects paying ransom because it will encourage future hostage takers.

Which brings us to Toftoy and Illinois’ "Right to Farm Law" – the Farm Nuisance Act, 740 ILCS 70/1. Our summary of the facts and holding below is here. The statute provides that no farm can become a private or public nuisance "because of any changed conditions in the surrounding area" so long as the farm has been in operation for a year.

Defendants bought farmland in a rural area. Across the street was a large plot containing a farm house; a tenant lived there when defendants took possession of their plot, but by the time they started a cattle operation a year later, the farm house was empty, and so it remained for years after. In 1997, plaintiffs demolished the old farmhouse; seven years later, the plaintiffs completed a new house on what was by then a small subdivided plot and moved in. Plaintiffs sued the defendants in 2007, alleging that their cattle operation was a nuisance because it was causing massive fly infestations.

Ex post versus ex ante. The plaintiffs tell a compelling story of the disruptions to their lives caused by the flies. Ex post, one might think that some remedy would be appropriate. But the argument ex ante is the same argument which has compelled many states around the country to enact Right to Farm laws in the first place: when new residential areas impinge on farm land, allowing the residents to sue the farmers in nuisance at minimum discourages investment in farming, and can wind up driving farmers out of business entirely.

The defendants moved for summary judgment, arguing that the Farm Nuisance Suit barred the suit. The trial court denied the motion, entered a declaratory judgment for plaintiffs, and the Appellate Court affirmed.

Counsel for the cattle farmers led off the arguments. Justice Thomas asked whether the case hinged on how broadly the Court interpreted the statute. Counsel responded that the broad interpretation was correct, but the defendants should prevail under either interpretation. Justice Karmeier asked whether it made a difference that there was a residence across the street when the cattle ranch began operations — albeit a vacant one — but counsel responded that plaintiffs were not using the property as a residence when the cattle operation began. Justice Garman asked whether the changed condition for purposes of the statute was the change in ownership, or the demolishing of the old house, or both. Counsel responded that both events amounted to a changed condition. Justice Burke asked whether the result would have been different if the former farmhouse on the property had been remodeled rather than torn down. Counsel responded that there had been no use of the property for more than a year at the time the defendants began their operation. Counsel asked the Court to remand for application of the Farm Nuisance Act and the assessment of statutory fees and costs.

Counsel for the plaintiffs pointed out that the property across the street had contained a farmhouse for nearly a century, and was still a farmhouse today. Justice Thomas posed a hypothetical: what if the plaintiffs had lived in the property for one year a century ago, and then the property had been left vacant. If the defendants began a cattle operation and the plaintiffs subsequently returned, would that be a changed condition? Counsel responded that a causal connection was necessary between the changed condition and the nuisance; if the property merely progressed from one house to another, that prerequisite was not satisfied. Counsel argued that if occupancy alone was a changed condition, owners would have to worry about losing a tenant. Justice Theis asked whether the change in title or the subdivision of the property factored in; counsel responded that the property had always been a residence. Justice Garman asked whether it would make a difference if the house across the street was vacant, and counsel responded "no." Justice Thomas stated that he was having trouble with the occupancy issue. He pointed out that no one had been in the house when defendants began the cattle operation — why wasn’t the change in condition for purposes of the statute the fact that the house was now occupied? Counsel answered that the standard proposed was a slippery slope, suggesting a hypothetical of a strip mall which became vacant for a couple of years in a recession, and then couldn’t be used again because a cattle operation began across from it.

Justice Karmeier asked whether somebody who wants to start a cattle operation was required to research the property across the street to determine whether it had ever been a private residence, or else face the risk of a nuisance suit. Counsel responded that no research was necessary, since there was somebody living in the home when defendants took possession. Justice Garman wondered whether it would make any difference if the house was dilapidated or in good condition. Counsel insisted that his clients the plaintiffs were farmers as well; the property was their family farm, and the residence was a farm house. Justice Thomas suggested that plaintiffs seemed to be arguing that "condition" meant "use" for purposes of the statute; if that was so, since the legislature didn’t actually say "use," shouldn’t that incline the Court to a broad construction of the statute? Counsel responded that the statute should be interpreted based upon the statutory command that the nuisance occurred "because" of the changed condition.

Counsel for the defendants ended his rebuttal with another appeal to an ex ante result, arguing that an affirmance would commit the farming industry in Illinois to long-term historical uses of the property surrounding their farm properties.