Earlier this month, the Illinois Supreme Court clarified Illinois constitutional law on compensable takings with its unanimous decision by Chief Justice Garman, reversing in Hampton v. Metropolitan Water Reclamation District of Greater Chicago. Our detailed summary of the underlying facts and lower court decision in Hampton is here.
The plaintiffs in Hampton own property in Cook County, Illinois, within the region for which the defendant is responsible for stormwater management. Plaintiffs allege that in response to a heavy rain in July 2010, the defendant closed various locks and floodgates, diverting excess stormwater runoff away from the neighborhood of O’Hare Airport in a way that caused flooding on their property. Plaintiffs alleged a violation of the Takings Clause, claiming that their homes, personal belongings, basements and other private property were destroyed or damaged.
The Circuit Court dismissed a claim under the Metropolitan Water Reclamation District Act, but declined to dismiss the plaintiffs’ Takings Clause claim. The Circuit Court then certified the question to the Appellate Court of whether the United States Supreme Court’s decision in Arkansas Game and Fish Commission v. United States had overruled the Illinois Supreme Court’s earlier decision in People ex rel. Pratt v. Rosenfield that a temporary flooding could not be a taking as a matter of law. The Appellate Court held that Arkansas Game and Fish had indeed overruled Pratt.
The Supreme Court unanimously reversed. The Court began by pointing out that the certified question made no sense. Arkansas Game and Fish Commission was a decision of the United States Supreme Court under the Federal constitution. Pratt was a decision of the Illinois Supreme Court under the state constitution. By definition, Arkansas Game and Fish Commission could not have “overruled” Pratt. Nevertheless, the Court opted to consider the issues.
Illinois maintains a limited lockstep approach to interpreting the state constitution. Therefore, although Arkansas Game and Fish Commission couldn’t “overrule” Pratt, that didn’t mean it was irrelevant to the issues. However, the two cases weren’t actually in conflict, the Court concluded; Arkansas Game and Fish Commission didn’t establish an across-the-board rule that a temporary flooding was not a taking, and Pratt didn’t either. Both courts held that the facts of a particular case determined whether the property owner’s use and enjoyment of the property had been sufficiently diminished or destroyed to constitute a taking.
The Court noted that it had defined a taking as a physical invasion of private property or the radical interference with a property owner’s use and enjoyment of the property. A taking also occurs when real estate is invaded by “superinduced additions of water . . . so as to effectually destroy or impair its usefulness.” Several factors set forth by the United States Supreme Court were relevant to the issue under Illinois law: the time and duration of the flooding, whether the invasion of the property was intentional or whether it was a foreseeable result of an authorized government action, and the character of the land and the owner’s reasonable investment-backed expectations regarding the land’s use.
The Court concluded that the complaint was not sufficient to allege a taking under the post-Arkansas Game and Fish Commission standards. The plaintiffs hadn’t alleged whether the defendant knew or intended that the diversion of stormwaters would cause flooding, nor had they alleged exactly how they had been deprived of the use of their homes.
Plaintiffs asserted in the alternative that the Illinois takings clause extended beyond the Federal clause by providing a remedy for owners whose property is merely damaged by government action. To state a claim under this aspect of the takings clause, plaintiffs are required to allege a direct physical disturbance of a right (either public or private) which an owner enjoys in connection with his property. The right must give the property an additional value and be disturbed in a way that inflicts a special damage with respect to the property in excess of that sustained by the public generally. Because the lower courts had not considered whether the plaintiffs might have stated a claim for damage to property short of constituting a taking, the Court remanded for consideration of that issue.
Justice Burke specially concurred. She concluded that because the United States Supreme Court cannot overrule a decision of the Illinois Supreme Court on state constitutional law, the Circuit Court erred in certifying the question, and the Appellate Court should accordingly have dismissed the appeal. Nevertheless, since the case was pending before the Court, judicial economy dictated that the Court decide the issue. Justice Burke concluded that Arkansas Game and Fish Commission could not be reconciled with Pratt, and the Court should accordingly overrule Pratt pursuant to the limited lockstep doctrine.