                                       2016 IL 119861



                                         IN THE
                                SUPREME COURT
                                             OF
                          THE STATE OF ILLINOIS



                                    (Docket No. 119861)

          JENICE HAMPTON et al., Appellees, v. METROPOLITAN WATER
           RECLAMATION DISTRICT OF GREATER CHICAGO, Appellant.


                                 Opinion filed July 8, 2016.



        CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion.

        Justices Thomas, Karmeier, and Theis concurred in the judgment and opinion.

        Justice Burke specially concurred, with opinion, joined by Justices Freeman
     and Kilbride.



                                         OPINION

¶1       Plaintiffs, a class of property owners, filed complaints against the Metropolitan
     Water Reclamation District of Greater Chicago (the District), based on allegations
     of flooding on their properties following a rainstorm. The circuit court consolidated
     the complaints. Plaintiffs assert that the District caused the flooding by diverting
     stormwater into nearby creeks. Plaintiffs claim that the flooding constitutes a
     taking for which they are entitled to just compensation under the Illinois takings
     clause. The District moved to dismiss the consolidated complaint based on this
     court’s decision in People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948). The
     District contends that, based on Pratt, a temporary flooding can never constitute a
     taking under the Illinois Constitution. More recently, however, the United States
     Supreme Court concluded that temporary flooding can constitute a taking under the
     federal constitution. Arkansas Game & Fish Comm’n v. United States, 568 U.S.
     ___, 133 S. Ct. 511 (2012). The Cook County circuit court denied the District’s
     motion to dismiss the Illinois takings clause claim and certified the following
     question pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010): “Does
     Arkansas Game and Fish Commission v. U.S.[,] 133 S. Ct. 511 (2012), overrule the
     Illinois Supreme Court’s holding in People ex rel. Pratt v. Rosenfield, 399 Ill. 247
     (1948)[,] that temporary flooding is not a taking?”

¶2       The appellate court recognized that the Illinois takings clause provides broader
     protection than the federal takings clause but did not address whether a “taking” is
     defined in the same way under each clause. The appellate court interpreted Pratt as
     establishing a “blanket temporary-flooding exception” and held that Arkansas
     Game & Fish Comm’n overruled Pratt to the extent that Pratt held a temporary
     flooding could never be a compensable taking. We allowed defendant’s petition for
     leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. Jan. 1, 2015).



¶3                                    BACKGROUND

¶4       Plaintiffs are property owners and residents of the villages of Bellwood,
     Hillside, and Westchester. These villages are located within Cook County and
     within the territory for which the District is responsible for stormwater
     management. On or about July 23-24, 2010, Cook County experienced a heavy
     rainfall. Plaintiffs allege that, in response to the rain, defendant: (1) closed the
     Lockport Lock and Dam floodgate to the Des Plaines River, which affected the
     water levels on Lower Salt Creek, Addison Creek, and the Lower Des Plaines
     River; (2) closed the locks to Lake Michigan at the Chicago Water Control Works,
     which affected the water level of the Lower Des Plaines River; (3) discharged
     excess stormwater runoff from the O’Hare South Detention Basin, the O’Hare



                                            -2-
     North Retention Pond, and Touhy Avenue Flood Control Reservoir Cells 1 and 2
     into the surrounding waterways, which caused an increase in flow and volume in
     waterways upstream and downstream of Hillside, Bellwood, and Westchester; (4)
     pumped stormwater into Addison Creek, which caused an increase in flow and
     volume in Addison Creak; and (5) pumped stormwater from the Mayfair Reservoir
     into Lower Salt Creek, which caused an increase in flow and volume in Lower Salt
     Creek. Plaintiffs also allege that on or before July 23 and 24, 2010, the District was
     engaged in maintenance activity within the Lower Salt Creek and Addison Creek
     channels. Plaintiffs claim that, as the result of these activities, Addison Creek and
     Lower Salt Creek overtopped their banks and caused flooding on properties owned
     and occupied by plaintiffs. Plaintiffs also allege these actions caused sewers to back
     up, which caused additional flooding.

¶5       In asserting their claim of a violation of the Takings Clause, plaintiffs allege
     that their homes, personal belongings, basements, and other private property were
     damaged or destroyed as a result of the flooding. Plaintiffs also allege that members
     of the class were deprived of the use of their homes because of the backup from the
     public sewers and overtopping of the creeks. Plaintiffs’ complaint does not further
     explain how the flooding deprived members of the use of their homes, the extent of
     the damage, how long the properties remained flooded, or whether the damage
     caused by the flooding has been or could be repaired.

¶6       The District moved to dismiss the complaint under sections 2-615 and 2-619 of
     the Code of Civil Procedure. 735 ILCS 5/2-615, 2-619.1 (West 2014). The circuit
     court granted the motion as to count I and thereby dismissed plaintiffs’ claim based
     on a violation of the Metropolitan Water Reclamation District Act. That claim is
     not at issue in this appeal. Next, the circuit court denied the District’s motion to
     dismiss plaintiffs’ takings clause claim, based on its finding that plaintiffs
     sufficiently alleged a physical invasion of their properties as a result of the
     District’s actions. The circuit court then granted the District’s motion to certify the
     following question for interlocutory appeal under Illinois Supreme Court Rule 308:
     “Does Arkansas Game and Fish Commission v. U.S.[,] 133 S. Ct. 511 (2012),
     overrule the Illinois Supreme Court’s holding in People ex rel. Pratt v. Rosenfield,
     399 Ill. 247 (1948)[,] that temporary flooding is not a taking?” See Ill. S. Ct. R. 308
     (eff. Feb. 26, 2010).




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¶7          The appellate court declined to consider the facts of the case and addressed only
       the certified question. The appellate court first compared the takings clause of the
       Illinois Constitution with the takings clause in the fifth amendment to the U.S.
       Constitution. The court found that the “Illinois takings clause provides protection
       greater than that of its federal counterpart.” 2015 IL App (1st) 132317, ¶ 14 (citing
       International College of Surgeons v. City of Chicago, 153 F.3d 356, 363 (7th Cir.
       1998)). The court concluded that, “to the extent that Pratt holds that temporary
       flooding of property can never be a compensable taking under the Illinois
       Constitution, it is effectively overruled by Arkansas Game & Fish Comm’n.” Id.
       ¶ 26. The appellate court remanded the case to the circuit court to address the merits
       of plaintiffs’ complaint in light of this conclusion. The District filed a petition for
       leave to appeal to this court, which we allowed. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).
       This court also granted leave to the Illinois Association of Wastewater Agencies,
       the Illinois Municipal League, and the Village of Glenview to file amicus curiae
       briefs.



¶8                                          ANALYSIS

¶9         This court is now asked to review the appellate court’s answer to the certified
       question—whether Arkansas Game & Fish Comm’n overruled the Illinois Supreme
       Court’s holding in Pratt that temporary flooding is not a taking. Our review of the
       appellate court’s ruling on certified questions is governed by Rule 308. DeBouse v.
       Bayer, 235 Ill. 2d 544, 550 (2009). We review certified questions, which are by
       definition questions of law, de novo. Moore v. Chicago Park District, 2012 IL
       112788, ¶ 9. Plaintiffs’ claim is based solely on the Illinois takings clause. This
       court is the final arbiter of state law. Hope Clinic for Women, Ltd. v. Flores, 2013
       IL 112673, ¶ 79. The U.S. Supreme Court has no authority to overrule a state
       court’s declaration of the meaning of state law. Id.; see Bute v. Illinois, 333 U.S.
       640, 668 (1948) (“The Supreme court of Illinois has affirmed both sentences ***. It
       has thus conclusively established their compliance with Illinois law.”). Therefore,
       the Supreme Court’s decision in Arkansas Game & Fish Comm’n could not
       overrule a decision of this court regarding the Illinois takings clause.

¶ 10      However, Illinois employs a limited lockstep approach when interpreting
       cognate provisions of the Illinois and U.S. Constitutions. Under this approach,



                                                -4-
       there are three possible scenarios. People v. Caballes, 221 Ill. 2d 282, 289 (2006).
       If a provision is unique to the state constitution, it must be interpreted without
       reference to a federal counterpart. Id. If a provision in the state constitution is
       similar to a provision in the federal constitution, but differs from it in some
       significant respect, the language of the provision must be given effect. Id. at
       289-90. Lastly, if a provision of the state constitution is identical to or synonymous
       with the federal constitutional provision, federal authority on the provision
       prevails, unless “the language of our constitution, the constitutional convention
       debates and committee reports, or state custom and practice *** indicate that the
       provisions of our constitution are intended to be construed differently.” Hope
       Clinic for Women, Ltd., 2013 IL 112673, ¶ 83. Under this approach, this court will
       follow the lead of the United States Supreme Court when it publishes decisions
       regarding a constitutional provision if it is determined that the relevant provision is
       to be interpreted as synonymous with its Illinois counterpart. The circuit court
       should have avoided the use of the term “overruled” and drafted its certified
       question in a way that would better reflect the role of federal precedent in Illinois
       law. Nevertheless, we will consider whether the decision in Arkansas Game & Fish
       Comm’n ought to be incorporated into this court’s Illinois takings clause
       jurisprudence and, if so, whether that decision conflicts with this court’s decision in
       Pratt.

¶ 11       The first step to resolving this question is to determine whether the takings
       clauses of the Illinois and U.S. Constitutions are synonymous. The Illinois takings
       clause states: “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.” Ill. Const. 1970, art. I, § 15. The federal
       takings clause, in relevant part, provides: “nor shall private property be taken for
       public use, without just compensation.” U.S. Const., amend. V. Clearly, the takings
       clause is not unique to the Illinois Constitution and therefore does not fall within
       the first category described above.

¶ 12       The District contends that, because the language of the Illinois clause differs
       from the language of the federal clause, the two clauses should not be interpreted as
       meaning the same thing. The relevant difference in the two clauses is the explicit
       inclusion in the Illinois clause of protection for property that is “damaged” and the
       requirement that compensation be determined “by a jury as provided by law.”




                                                -5-
       Plaintiffs alleged that their properties were both taken and damaged. However, the
       certified question addresses only property that is taken, and thus we examine first
       what constitutes a taking under Illinois law in order to determine whether Arkansas
       Game & Fish Comm’n is relevant to a takings claim analysis under Illinois law.

¶ 13        We find no convincing evidence that the delegates to the Illinois constitutional
       conventions intended for a “taking” to be defined differently from its federal
       counterpart. See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448,
       458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private
       property for public use without just compensation does not preclude the State from
       taking private property, but only requires the State pay compensation.’ *** We
       interpret our present State constitutional protection against taking property without
       just compensation in the same way.” (quoting Beverly Bank v. Illinois Department
       of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill.
       549, 554 (1949) (noting that the same test is applied by the Illinois Supreme Court
       and the federal courts to determine whether real estate has been taken for public use
       within the meaning of the takings clauses); see also City of Chicago v. ProLogis,
       236 Ill. 2d 69, 77, 80-81 (2010) (analyzing takings claims under the Illinois and
       United States Constitutions in the same way and declining to consider whether the
       Illinois clause provides greater protection, because the party making the argument
       failed to raise it in petition for leave to appeal and thus the argument was forfeited);
       Cwik v. Giannoulias, 237 Ill. 2d 409, 417-19 (2010) (analyzing takings claims
       based on the state and federal constitutions in the same manner); Canel v. Topinka,
       212 Ill. 2d 311, 331-32 (2004) (same); Village of Lake Villa v. Stokovich, 211 Ill. 2d
       106, 130 (2004) (same); Southwestern Illinois Development Authority v. National
       City Environmental, L.L.C., 199 Ill. 2d 225, 235-42 (2002) (same).

¶ 14       A review of the transcripts from the Constitutional Convention of 1870, when
       the “damage” prong of the Illinois takings clause was added, indicates no intent on
       the part of the convention delegates to deviate from the federal definition of a
       taking. The amendment was made to provide broader protection and establish a
       constitutional remedy for property owners whose real estate is damaged but not
       taken as a result of public improvements. II Debates and Proceedings of the
       Constitutional Convention of the State of Illinois 1578 (Apr. 29-30, 1870) (“This is
       an innovation—a new principle. It is for the purpose *** of protecting persons
       whose property is not immediately taken by the exercise of the right of eminent




                                                -6-
       domain, but by reason of the adjoining property being taken or a street being
       leveled or graded up so that their property is injured.”). Similarly, the discussion of
       the takings clause at the 1970 convention does not reveal any intention to interpret a
       “taking” as something other than what is recognized as a taking under the federal
       constitution. 3 Record of Proceedings, Sixth Illinois Constitutional Convention
       1553 (“Presently in our constitution, we have a provision that you can’t take a
       man’s property without paying him for it. We also have a provision—which is
       different from most states and different from federal rule—that you can’t damage a
       man’s property without paying him for it.”).

¶ 15       Furthermore, there is no evidence that state custom and practice dictate a
       different analysis under state and federal law. The District and its amici assert that
       there is a state practice of applying a blanket rule that temporary flooding cannot be
       a taking. This court has never applied such a blanket rule, and only in Luperini v.
       County of Du Page and in this case has the appellate court stated such a categorical
       ban. Compare Luperini v. County of Du Page, 265 Ill. App. 3d 84, 89 (2d Dist.
       1994) (summarizing Pratt as holding that, “[w]here the public improvement causes
       only temporary accumulations of water on the subject property, a taking has not
       occurred”), with Pineschi v. Rock River Water Reclamation District, 346 Ill. App.
       3d 719, 726-27 (2d Dist. 2004) (holding that the plaintiff had a valid taking claim
       where he was forced to evacuate his house for several days due to a
       government-caused sewer backup, despite the fact that the taking was temporary);
       see In re Petition of Commissioners of Sny Island Levee Drainage District, 130 Ill.
       App. 3d 959, 967 (4th Dist. 1985) (noting that, in Pratt, “[t]he supreme court
       affirmed, noting that none of plaintiffs’ property was taken by the improvement and
       that the damages complained of were not of a sufficiently lasting nature to amount
       to a taking”); County of Winnebago v. Kennedy, 60 Ill. App. 2d 408, 412 (2d Dist.
       1965) (“The diversion of surface water onto property by means of altering the
       natural drainage can constitute a taking. [Citations.] Whether the diversion of water
       onto property constitutes a ‘taking’ of the property, or merely ‘damage’ to it,
       depends, obviously, upon the facts of the case.”); see also Rockstead v. City of
       Crystal Lake, 486 F.3d 963, 967 (7th Cir. 2007) (“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.”).



                                                -7-
¶ 16       Therefore, United States Supreme Court decisions regarding what constitutes a
       taking are relevant for purposes of determining whether a plaintiff has sufficiently
       alleged a taking under the Illinois Constitution. See International College of
       Surgeons, 153 F.3d at 363 (“Although it is true that the Illinois Takings Clause
       provides protection greater than that provided by its federal counterpart *** [t]he
       greater protection provided by the Illinois Takings Clause stems from the fact that
       the clause not only guards against a governmental taking of private property but
       also guards against governmental ‘damage’ to private property. *** If the plaintiff
       cannot make this showing, then his claim is analyzed under the same standard
       employed under the federal constitution ***.”).

¶ 17       The United States Supreme Court’s decision in Arkansas Game & Fish
       Comm’n and the Illinois Supreme Court’s decision in Pratt both address whether
       temporary flooding constitutes a taking under the United States and Illinois
       Constitutions, respectively. Plaintiffs assert that the rule in Arkansas Game & Fish
       Comm’n is directly contrary to the rule in Pratt. The District contends that these
       cases are distinguishable. We conclude these cases are consistent with one another.

¶ 18       In Pratt, the plaintiffs alleged that their properties were damaged when an old
       viaduct was removed and replaced. 399 Ill. at 248. In replacing the viaduct, the
       grade of the street bordering the plaintiffs’ properties was changed. Id. at 249. The
       plaintiffs alleged that, as a result, surface water ran into their buildings, requiring
       them to change the floor levels in order to continue using the buildings. Id. The
       plaintiffs filed a petition for a writ of mandamus requiring the city and related
       agencies and officials to file a petition to determine damages. Id. The defendants
       refused to pay the damages or institute eminent domain proceedings. Id. The
       supreme court noted that “[i]t [was] not alleged that the[ ] waters accumulate and
       remain on the premises and thereby prevent the use thereof,” and that the
       “[r]unning surface waters are not constantly present but are temporary and come as
       a result of rain or snow.” Id. at 251. Based on these findings, the court concluded
       that “[t]he allegations [were] not sufficient to indicate a physical invasion *** and
       there [was] no showing that any property was actually taken in connection with the
       improvement.” Id. at 252. Therefore, the court affirmed the circuit court’s dismissal
       of the petition for a writ of mandamus. Id.




                                                -8-
¶ 19       The District and the appellate court read Pratt as establishing a bright-line rule
       that temporary flooding is not a taking. 2015 IL App (1st) 132317, ¶ 25. As already
       discussed, this court has never viewed Pratt as stating a categorical bar, and neither
       have most panels of our appellate court.

¶ 20       The court in Pratt merely held that the flooding that occurred in that case did
       not cause the type of damage to the property that would constitute a taking. Pratt,
       399 Ill. at 252 (“In [Kane v. City of Chicago, 392 Ill. 172 (1945),] we said, ‘We are
       of the opinion that the case before us does not, on the facts alleged, bring plaintiff’s
       case within the definition of a taking of property by invasion ***.’ What was there
       said applies here and in our opinion the allegations of the amended petition are not
       sufficient to show a taking of any of appellants’ property.”). In particular, the Pratt
       court’s focus on the issue of whether the damage “prevent[ed] the use” of the
       property indicates that damage that does prevent the use of property may constitute
       a taking. Id. at 251.

¶ 21       Consistent with this conclusion, the United States Supreme Court in Arkansas
       Game & Fish Comm’n held that temporary flooding can give rise to a takings
       claim, when the flooding directly and immediately interferes with the owner’s
       enjoyment and use of the land. 568 U.S. at ___, 133 S. Ct. at 519. In Arkansas
       Game & Fish Comm’n, the United States Army Corps of Engineers released
       upstream waters in such a way that the Commission’s property was flooded during
       the peak growing season for timber. Id. at ___, 133 S. Ct. at 516. The flooding was
       temporary but recurred consistently over a period of six years. Id. at ___, 133 S. Ct.
       at 516. The Commission owned the property for the purpose of growing timber and
       to protect the wildlife that lived there. Id. at ___, 133 S. Ct. at 515-16. The flooding
       made it impossible for timber to grow productively on the property, and, as a result,
       the wildlife ecosystem was destroyed. Id. at ___, 133 S. Ct. at 517. The
       Commission filed suit against the government, claiming the temporary but
       recurring flooding was a taking. Id. at ___, 133 S. Ct. at 516. The Supreme Court
       noted that it has previously held that government-induced flooding can constitute a
       taking (Pumpelly v. Green Bay Co., 80 U.S. 166 (1871)), that seasonally recurring
       flooding could constitute a taking (United States v. Cress, 243 U.S. 316 (1917)),
       and that “[a] temporary takings claim could be maintained as well when
       government action occurring outside the property gave rise to ‘a direct and
       immediate interference with the enjoyment and use of the land.’ ” Arkansas Game




                                                -9-
       & Fish Comm’n, 568 U.S. at ___, 133 S. Ct. at 519 (quoting United States v.
       Causby, 328 U.S. 256, 266 (1946)). Thus, the Court concluded that
       “government-induced flooding of limited duration may be compensable.” Id. at
       ___, 133 S. Ct. at 519.

¶ 22       Neither Arkansas Game & Fish Comm’n nor Pratt imposes a bright-line rule or
       exception regarding whether temporary flooding constitutes a taking. Id. at ___,
       133 S. Ct. at 519 (“No decision of this Court authorizes a blanket
       temporary-flooding exception to our Takings Clause jurisprudence, and we decline
       to create such an exception in this case.”). Both indicate that courts must look to the
       facts of each case to determine whether the property owner’s use and enjoyment of
       the property has been diminished or destroyed. Therefore, these cases are
       consistent, and both decisions should inform Illinois courts when addressing
       takings claims based on temporary flooding. To the extent the appellate court in
       Luperini held that temporary flooding could not constitute a taking, that decision is
       overruled. Luperini, 265 Ill. App. 3d at 89.

¶ 23       Having established that in some circumstances temporary flooding can
       constitute a taking, the court is now faced with the question of whether plaintiffs
       sufficiently alleged a violation of the Illinois takings clause. “ ‘When this court
       accepts an appeal involving a question of law identified under Rule 308, interests of
       judicial economy and the need to reach an equitable result oblige us to go beyond
       the question of law presented and consider the propriety of the order that gave rise
       to the appeal.’ ” Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 153 (2007)
       (quoting Bright v. Dicke, 166 Ill. 2d 204, 208 (1995)). “Determining whether there
       has been an actionable taking is a question of law,” which this court reviews
       de novo. ProLogis, 236 Ill. 2d at 77. The District challenged plaintiffs’ takings
       clause claim by filing a motion to dismiss. “The critical inquiry in determining
       whether a pleading should be dismissed *** is whether the allegations, when
       construed in the light most favorable to the plaintiff, are sufficient to establish a
       cause of action upon which relief may be granted.” Sorrells v. City of Macomb,
       2015 IL App (3d) 140763, ¶ 22 (citing Kanerva v. Weems, 2014 IL 115811, ¶ 33).

¶ 24       The court has defined a taking as a physical invasion of private property or the
       radical interference with a private property owner’s use and enjoyment of the
       property. Forest Preserve District, 161 Ill. 2d at 456-57. This court has also held




                                               - 10 -
       that a taking occurs when real estate is physically invaded “by superinduced
       additions of water *** so as to effectually destroy or impair its usefulness.” Horn,
       403 Ill. at 554. Flooding that does not cause this level of destruction is not a taking.
       Pratt, 399 Ill. at 252; see Hartwig v. United States, 485 F.2d 615, 619 (Ct. Cl. 1973)
       (“ ‘The essential inquiry [in taking cases arising out of a flood situation] is whether
       the injury to the claimant’s property is in the nature of a tortious invasion of his
       rights or rises to the magnitude of an appropriation of some interest in his property
       permanently to the use of the Government.’ ” (quoting National By-Products, Inc.
       v. United States, 405 F.2d 1256, 1273-74 (Ct. Cl. 1969))).

¶ 25       The Court in Arkansas Game & Fish Comm’n set forth additional factors that
       assist in determining whether a temporary flooding constitutes a taking. 568 U.S. at
       ___, ___, 133 S. Ct. at 519, 522-23; see Sorrells, 2015 IL App (3d) 140763, ¶ 27.
       As we have already determined that a “taking” is defined in the same way under
       federal and state law, we find the factors used by the federal court helpful in
       analyzing a taking claim under the Illinois Constitution. We recognize that
       Arkansas Game and Fish Comm’n had not yet been decided when plaintiffs filed
       their complaints. However, because the incorporation of this decision does not
       involve a significant change in Illinois law, we find it appropriate to consider these
       factors when reviewing plaintiffs’ consolidated complaint. These factors include
       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. Arkansas Game & Fish Comm’n, 568 U.S. at
       ___, 133 S. Ct. at 522-23.

¶ 26       The complaint in this case addresses only one instance of flooding. Plaintiffs
       have not alleged that the flooding is recurring or that the water remained on their
       properties for a prolonged period of time. They do not allege that the damage
       caused could not be satisfactorily repaired. In their brief before this court, plaintiffs
       state that they are seeking “compensatory damages for the value of lost possessions
       and the cost of repairing their homes.” Plaintiffs have not addressed whether the
       flooding was intentional or whether the District knew or should have known that
       the flooding of plaintiffs’ properties would occur. In their brief, plaintiffs assert that
       the District’s acts were intentional and imply that the District acted to avoid
       flooding at O’Hare International Airport. Their complaint does not, however,




                                                 - 11 -
       address whether the District intended or knew that the diversion would cause the
       creeks to overflow or otherwise that the actions taken would cause the flooding.
       Finally, the properties involved are residential properties. Therefore, plaintiffs have
       an investment-backed expectation that they will be able to use their properties for
       the purpose of maintaining homes. However, plaintiffs’ complaint states only that
       “Members of the class were deprived of the use of their homes.” They offer no
       explanation for how they were deprived of the use of their home or otherwise
       support this claim. Therefore, plaintiffs’ amended complaint fails to sufficiently
       allege that the temporary flooding that occurred in this case constitutes a taking
       under the Illinois Constitution.

¶ 27       Alternatively, plaintiffs assert in their complaint that they are entitled to
       compensation under the takings clause for damage to their properties. As discussed,
       the Illinois takings clause reaches beyond the scope of the federal takings clause
       and provides a remedy for owners whose property is damaged by some government
       action. When “the owner of property is seeking to recover the just compensation
       guaranteed by the constitution for the lawful damaging of private property for
       public use, the burden is upon such owner to establish the existence and amount of
       the damage he claims.” Kane v. City of Chicago, 392 Ill. 172, 177 (1945). Property
       is considered damaged for purposes of the takings clause if there is “any direct
       physical disturbance of a right, either public or private, which an owner enjoys in
       connection with his property; a right which gives the property an additional value; a
       right which is disturbed in a way that inflicts a special damage with respect to the
       property in excess of that sustained by the public generally.” Citizens Utilities Co.
       of Illinois v. Metropolitan Sanitary District of Greater Chicago, 25 Ill. App. 3d
       252, 256 (1974) (discussing the definition of “damaged” established in Rigney v.
       City of Chicago, 102 Ill. 64 (1881)). Where no property is actually taken, an owner
       of damaged property may assert a right to compensation in an action at law. Illinois
       Power & Light Corp. v. Peterson, 322 Ill. 342, 347 (1926). Whether claimed by the
       owner as a plaintiff in an action at law or as a defendant in an eminent domain
       proceeding, “the right to damages is the same and is based on the [takings clause].”
       Id.

¶ 28       The certified question on appeal is limited to the meaning of “takings” alone,
       not of damaged property within the Illinois takings clause. Therefore, the lower
       courts have not yet had the opportunity to review whether plaintiffs have alleged a




                                               - 12 -
       sufficient claim for compensation for damaged property. We decline to review the
       merits of this argument at this time.

¶ 29       We reverse the judgment of the appellate court and remand this cause to allow
       the circuit court to consider the entirety of plaintiffs’ claim in light of this opinion.
       Plaintiffs should have the opportunity to amend their takings clause claim on
       remand.



¶ 30                                      CONCLUSION

¶ 31        The takings clause of the Illinois Constitution provides greater protection for
       property owners than its counterpart in the United States Constitution, because it
       provides a remedy for property that is damaged, in addition to property that is
       taken. However, what constitutes a taking is the same under both clauses.
       Therefore, the Supreme Court’s holding in Arkansas Game & Fish Comm’n is
       relevant to the determination of whether government-induced temporary flooding
       is a taking pursuant to the Illinois Constitution.

¶ 32       The holding in Arkansas Game & Fish Comm’n does not conflict with the
       holding in Pratt to any extent, because the court in Pratt did not hold that
       temporary flooding can never constitute a taking. The court in Pratt merely held
       that the flooding that occurred in that case did not rise to the level of a taking.
       Similarly, the facts alleged in plaintiffs’ amended complaint are not sufficient to
       allege a taking under the Illinois takings clause. The complaint does not allege that
       the flooding “radically interfered” with plaintiffs’ use and enjoyment of their
       properties.

¶ 33       Plaintiffs alternatively claim that the flooding damaged their properties and
       therefore that they are entitled to compensation under the Illinois takings clause.
       The Illinois takings clause provides that the owner of damaged property has a right
       to just compensation, but the parties have not briefed this court on the issues
       surrounding plaintiffs’ damage claim. We remand this case to the circuit court for
       further proceedings consistent with this opinion.




                                                - 13 -
¶ 34      Reversed and remanded with directions.



¶ 35      JUSTICE BURKE, specially concurring:

¶ 36       While I agree with the judgment rendered in this case, my reasoning differs in
       certain respects from that of the majority.

¶ 37       At the outset, the question certified by the circuit court asks whether the United
       States Supreme Court, in Arkansas Game & Fish Comm’n v. United States, 568
       U.S. ___, 133 S. Ct. 511 (2012), “overruled” this court’s decision in People ex rel.
       Pratt v. Rosenfield, 399 Ill. 247 (1948). Supra ¶ 2. There is a problem with this
       question that is immediately apparent. Arkansas Game & Fish Comm’n was a
       decision that interpreted the takings clause of the federal constitution (U.S. Const.,
       amend. V). Pratt, on the other hand, was a decision that interpreted the takings
       clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 15).

¶ 38       Under the supremacy clause of the United States Constitution (U.S. Const., art.
       VI, cl. 2), the United States Supreme Court can, through its interpretation of the
       federal constitution, establish separate federal law that must be given effect over
       any conflicting state law. But the Supreme Court has long held that it has no
       authority to overrule a state court’s declaration of the meaning of state law. See,
       e.g., North Carolina v. Butler, 441 U.S. 369, 376 n.7 (1979) (“this Court must
       accept whatever construction of a state constitution is placed upon it by the highest
       court of the State”); Garner v. Louisiana, 368 U.S. 157, 166 (1961); Murdock v.
       City of Memphis, 87 U.S. (20 Wall.) 590 (1874). As Judge Easterbrook has noted,
       “a federal court may not disagree with the state courts’ construction of state law.
       [Citation.] State law means what state judges say it means, just as federal law
       means (for the purposes of judges of inferior federal courts) what the Supreme
       Court of the United States concludes it means.” United States ex rel. Garcia v.
       O’Grady, 812 F.2d 347, 356 (7th Cir. 1987) (Easterbrook, J., concurring).

¶ 39       To warrant certification under Illinois Supreme Court Rule 308 (eff. Feb. 26,
       2010), the proffered question must be one over “which there is substantial ground
       for difference of opinion.” Because it is black letter law that the United States
       Supreme Court has no authority to overrule this court’s interpretation of our state




                                               - 14 -
       constitution, there can be no “substantial ground for difference of opinion” over
       whether Arkansas Game & Fish Comm’n overruled Pratt. The circuit court
       therefore erred in certifying the question.

¶ 40        Plaintiffs’ complaints alleged only a violation of the takings clause of the
       Illinois Constitution. The circuit court believed that this court’s interpretation of the
       Illinois takings clause in Pratt differed from the United States Supreme Court’s
       interpretation of the federal takings clause in Arkansas Game & Fish Comm’n.
       Given this fact, the circuit court was bound to follow and apply Illinois law to
       plaintiffs’ claims. Plaintiffs were always free to file separate federal claims. 1

¶ 41       Because the circuit court erred in certifying the question, the appellate court
       was bound to dismiss the appeal. However, since the issue is now before us, the
       question remains whether this court should now incorporate the reasoning of
       Arkansas Game & Fish Comm’n into our Illinois takings clause jurisprudence. In
       the interest of judicial economy, I agree with the majority that we should address
       this question. However, I cannot agree with the majority’s reasoning for adopting
       Arkansas Game & Fish Comm’n as a matter of Illinois law. The majority holds that
       we should adopt the analysis in Arkansas Game & Fish Comm’n because it is
       “consistent” with Pratt and “does not involve a significant change in Illinois law.”
       Supra ¶¶ 17, 21, 22, 25. This is patently incorrect on the face of these decisions.

¶ 42       In Arkansas Game & Fish Comm’n, the Supreme Court held that, because
       government-induced flooding can constitute a taking of property, and because a
       taking need not be permanent to be compensable, “government-induced flooding of
       limited duration may be compensable” under the federal takings clause. Arkansas
       Game & Fish Comm’n, 568 U.S. at ___, 133 S. Ct. at 519. In so holding, the Court
       emphasized that the particular facts and circumstances of each case must be
       evaluated in determining whether temporary flooding constitutes a taking. Id. at
       ___, 133 S. Ct. at 521. In particular, the Supreme Court instructed that the
       following factors are to be considered: (1) the length of time of the physical
       invasion; (2) the “degree to which the invasion is intended or is the foreseeable
       result of authorized government action”; (3) “the character of the land at issue and


           1
            Plaintiffs moved in the circuit court for leave to amend their complaints to include a claim
       based on the federal takings clause. It appears from the record that the motion remains pending.




                                                    - 15 -
       the owner’s ‘reasonable investment-backed expectations’ regarding the land’s
       use”; and (4) the “[s]everity of the interference.” Id. at ___, 133 S. Ct. at 522. 2

¶ 43       Importantly, Pratt did not consider any of the above factors as relevant to the
       required Illinois takings clause analysis. In Pratt, the court noted the “grave” nature
       of the damages to plaintiffs’ property from government-induced temporary
       flooding. Pratt, 399 Ill. at 251-52. These damages included damaged or destroyed
       valuable equipment, machinery, and supplies, as well as the necessity to change the
       floor levels, at great expense to the plaintiffs. Id. at 251. Nevertheless, the court
       held, because the floodwaters were merely temporary and not “constantly present,”
       plaintiffs were unable to state a claim under the Illinois takings clause. Id. Thus, the
       Pratt court rejected plaintiffs’ claim solely based on the temporary nature of the
       flooding. This court did not recognize the Arkansas Game & Fish Comm’n factors,
       much less give them any weight in our takings analysis, because we did not even
       recognize a cause of action for a temporary flooding.

¶ 44       The majority now finds that Arkansas Game & Fish Comm’n is completely
       consistent with Pratt. This is clearly incorrect. Because the two cases cannot be
       reconciled, incorporating Arkansas Game & Fish Comm’n into Illinois takings law
       means that we are now implicitly overruling our own decision in Pratt. In my view,
       this court should explicitly overrule Pratt.

¶ 45        Under the “limited lockstep” approach for interpreting cognate provisions of
       our state and federal constitutions, when the language of the provisions within our
       constitutions is nearly identical, departure from the United States Supreme Court’s
       construction of the provision will generally be warranted only if we find an
       indication in the language of our constitution, debates, or committee reports of the
       constitutional convention that the provisions of our state constitution are to be
       construed differently than are similar provisions in the federal constitution. Hope
       Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶ 47. While the language in the
       Illinois takings clause is not identical to the federal takings clause, the part of the
       clause referring to “[p]rivate property *** taken *** for public use without just

           2
             The majority expressly incorporates into Illinois law the first three factors discussed in
       Arkansas Game & Fish Comm’n but makes no mention of the fourth, the “severity of the
       interference” caused by the invasion. Supra ¶ 25. The majority offers no explanation for this
       discrepancy.




                                                   - 16 -
       compensation” is identical. Ill. Const. 1970, art. I, § 15; U.S. Const., amend. V.
       Thus, courts have traditionally defined a “taking” under the Illinois takings clause
       in the same way that federal courts define a “taking” under the federal takings
       clause. See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448,
       455-58 (1994); Muscarello v. Winnebago County Board, 702 F.3d 909, 913 (7th
       Cir. 2012). No language in the constitution, debates, or committee reports dictates a
       different result. Thus, pursuant to the limited lockstep doctrine, it is appropriate to
       overrule Pratt and to adopt the multifactor test set forth in Arkansas Game & Fish
       Comm’n for purposes of determining whether temporary flooding constitutes a
       “taking” under the Illinois Constitution.

¶ 46       Finally, I agree with the majority that adopting the analysis in Arkansas Game
       & Fish Comm’n requires us to allow plaintiffs to amend their claims upon remand
       to the circuit court. Supra ¶ 29. Plaintiffs’ complaints were filed in July 2011.
       Arkansas Game & Fish Comm’n, which determined that temporary,
       government-induced flooding may give rise to a claim under the federal takings
       clause, was decided in December 2012. Not only was Arkansas Game & Fish
       Comm’n decided more than a year after plaintiffs filed their complaints, it was not
       until today’s opinion—more than four years after plaintiffs filed their
       complaints—that the reasoning of Arkansas Game & Fish Comm’n was first
       incorporated into Illinois law. Thus, it is appropriate that, upon remand to the
       circuit court, plaintiffs should be allowed to amend their complaints to address the
       factors in Arkansas Game & Fish Comm’n, if they are able to do so. See Karas v.
       Strevell, 227 Ill. 2d 440, 461 (2008).

¶ 47      For the foregoing reasons, I specially concur.

¶ 48      JUSTICES FREEMAN and KILBRIDE join in this special concurrence.




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