                            Illinois Official Reports

                                    Appellate Court



          Hampton v. Metropolitan Water Reclamation District of Greater Chicago,
                                2015 IL App (1st) 132317



Appellate Court        JENICE HAMPTON, SHARON BANKS-REVIS, CLAIRE
Caption                BATHERSON, MARK BATHERSON, THERESA BECTON,
                       MAURICE BREWSTER, KIMBERLY DAVIDSON, CLAUDIA
                       DUNCAN, JU WANNA L. ELERY, NANCY ELERY, VALENCIA
                       GOODLOW, RENITA GRIMES, VENETTA JOHNSON, FRANK
                       KOLB, JOHNNIE McCLINTON, MARLA McELROY, CARRIER
                       NAVARRA, JANICE O’CONNER, LaVERM PARTEE, JARVIS
                       REVIS, TERRY REVIS, DAVID ROSELUND, CASSANDRA
                       SANDERS, KIMBERLY SUTTLE, ANITA THOMAS, MARTHA
                       TURNER, GERALDINE WARD, JOSEPH WARD, ROY WHITE,
                       SR., KITTY WILLIAMS, ISABELLE WRIGHT and LENETTE
                       YARBAR, on Behalf of Themselves and All Persons Similarly
                       Situated, Plaintiffs-Appellees, v. METROPOLITAN WATER
                       RECLAMATION DISTRICT OF GREATER CHICAGO,
                       Defendant-Appellant.–ROBERT JACKLIN, DONNA JACKLIN,
                       EARNESTINE PULLEN and SHYREE PULLEN, on Behalf of
                       Themselves and All Persons Similarly Situated, Plaintiffs-Appellees,
                       v. METROPOLITAN WATER RECLAMATION DISTRICT OF
                       GREATER CHICAGO, Defendant-Appellant.



District & No.         First District, Fifth Division
                       Docket No. 1-13-2317



Filed                  August 14, 2015



Decision Under         Appeal from the Circuit Court of Cook County, Nos. 11-CH-25985,
Review                 11-CH-25882 cons.; the Hon. Neil H. Cohen, Judge, presiding.
     Judgment                Certified question answered; case remanded.



     Counsel on              Ronald M. Hill, Lisa Luhrs Draper, James J. Zabel, and Ellen M.
     Appeal                  Avery, all of Metropolitan Water Reclamation District of Greater
                             Chicago, of Chicago, for appellant.

                             Glen J. Dunn, Jr., and Joel T. Finch, both of Glen J. Dunn &
                             Associates, Ltd., and Jeffrey Grant Brown, of Jeffrey Grant Brown,
                             P.C., both of Chicago, for appellees.



     Panel                   JUSTICE GORDON delivered the judgment of the court, with
                             opinion.
                             Presiding Justice Palmer and Justice Reyes concurred in the judgment
                             and opinion.




                                              OPINION

¶1         On July 22, 2011, the plaintiffs, Jenice Hampton, Sharon Banks-Revis, Claire Batherson,
       Mark Batherson, Theresa Becton, Maurice Brewster, Kimberly Davidson, Claudia Duncan,
       Ju Wanna L. Elery, Nancy Elery, Valencia Goodlow, Renita Grimes, Venetta Johnson, Frank
       Kolb, Johnnie McClinton, Marla McElroy, Carrier Navarra, Janice O’Conner, LaVerm
       Partee, Jarvis Revis, Terry Revis, David Roselund, Cassandra Sanders, Kimberly Suttle,
       Anita Thomas, Martha Turner, Geraldine Ward, Joseph Ward, Roy White, Sr., Kitty
       Williams, Isabelle Wright and Lenette Yarbar, on behalf of themselves and all others
       similarly situated, filed a complaint against the Metropolitan Water Reclamation District of
       Greater Chicago (District). The complaint alleged that the plaintiffs’ private property was
       damaged and/or destroyed by flooding following a heavy rainfall on July 23-24, 2010. The
       complaint alleged that the defendant’s control and management of the Chicago Area
       Waterways System was responsible for the flooding and the resulting damage and/or
       destruction of their property.
¶2         Count I of the complaint sought damages under section 19 of the Metropolitan Water
       Reclamation District Act (70 ILCS 2605/19 (West 2010)) (Act). Count II of the complaint
       alleged that the plaintiffs’ private property was taken and damaged by the defendant for
       public use without just compensation in violation of the Illinois Constitution. Ill. Const.
       1970, art. I, § 15. The plaintiffs alleged specifically as follows:
                   “a. The [defendant] utilized the above-referenced flood-relief mechanism to
               prevent flooding in parts of the greater Chicago area and caused significant flooding
               to the private property of the plaintiffs.


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                  b. Members of the class were deprived of the use of their homes from backup
              from the public sewers and overtopping of Addison Creek and Salt Creek.
                  c. Homes, personal belongings, basements, and other private property were
              damaged or destroyed from the flooding, backup from the public sewers, and the
              overtopping of Addison Creek and Salt Creek.
                  d. The [defendant] did not compensate the plaintiffs for the deprivation or damage
              to their homes.”
¶3        The defendant filed a combined motion to dismiss the complaint pursuant to section
     2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2010)) (the Code).
     Pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)), the circuit court
     dismissed count I with prejudice. The court denied the motion as to count II. The court
     rejected the defendant’s contention that temporary flooding was not a taking under the
     Illinois Constitution as the Illinois Supreme Court held in People ex rel. Pratt v. Rosenfield,
     399 Ill. 247 (1948). The court determined that under Arkansas Game & Fish Comm’n v.
     United States, 568 U.S. ___, 133 S. Ct. 511 (2012) whether temporary flooding constituted a
     taking could not be decided as a matter of law.
¶4        On July 25, 2011, the plaintiffs, Robert Jacklin, Donna Jacklin, Earnestine Pullen and
     Shyree Pullen, on behalf of themselves and all others similarly situated, filed a complaint
     identical to the one filed in this case against the defendant. The defendant’s motion to dismiss
     the Illinois constitutional claim had likewise been denied in that case. The circuit court
     granted the defendant’s motion to consolidate the two cases.
¶5        The court denied the defendant’s motion for reconsideration, but granted its motion to
     certify the following question for immediate appeal pursuant to Illinois Supreme Court Rule
     308(a) (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?”
¶6        On July 23, 2013, the defendant filed its petition for leave to appeal which was granted
     by this court on August 7, 2013. On October 23, 2013, this court granted leave to the Village
     of Glenview, the Illinois Association of Wastewater Agencies and the Illinois Municipal
     League to file amicus curiae briefs.

¶7                                            ANALYSIS
¶8                                      I. Standard of Review
¶9       “Illinois Supreme Court Rule 308 provides a remedy of permissive appeal from
     interlocutory orders where the trial court has deemed that they involve a question of law as to
     which there is substantial ground for difference of opinion and where an immediate appeal
     from the order may materially advance the ultimate termination of the litigation.” Goodman
     v. Hanson, 408 Ill. App. 3d 285, 292 (2011) (citing Ill. S. Ct. R. 308 (eff. Feb. 1, 1994)).
     Legal questions presented in a Rule 308 appeal are reviewed de novo. Goodman, 408 Ill.
     App. 3d at 292. De novo consideration means that the reviewing court performs the same
     analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,
     578 (2011).



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¶ 10                                           II. Discussion
¶ 11        As an initial matter, defendant claims that plaintiffs failed to allege that the District
       intentionally created the flooding, and that therefore this case is factually distinguishable
       from Arkansas Game & Fish Comm’n. However, under Rule 308, we will only answer a
       question of law and do not make factual determinations. Goodman, 408 Ill. App. 3d at 292;
       see also Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 469 (1998); Eshaghi v. Hanley
       Dawson Cadillac Co., 214 Ill. App. 3d 995, 998 (1991). The question certified by the trial
       court asks only whether our Illinois Supreme Court’s case of People ex rel. Pratt v.
       Rosenfield, 399 Ill. 247 (1948) has been overruled by the United States Supreme Court’s case
       of Arkansas Game & Fish Comm’n v. United States, 568 U.S. ___, 133 S. Ct. 511 (2012).
       The answer to this question does not require us to analyze the merits of plaintiffs’ case and
       we will not do so. Accordingly, we will not address if the plaintiffs’ case is factually
       distinguishable from Arkansas Game & Fish Comm’n, we will only address if the United
       States Supreme Court’s decision in Arkansas Game & Fish Comm’n overrules the Illinois
       Supreme Court’s holding in Pratt that temporary flooding can never constitute a taking.
¶ 12        Both the United States Constitution and the Illinois Constitution prohibit the taking of
       private property for public use without paying just compensation. City of Chicago v.
       Prologis, 236 Ill. 2d 69, 77 (2010). “[T]he fifth amendment to the United States Constitution,
       made applicable to the states through the fourteenth amendment, provides that private
       property shall not ‘be taken for public use, without just compensation.’ ” Prologis, 236 Ill. 2d
       at 77 (quoting U.S. Const., amend. V). “The Illinois Constitution of 1970 states: ‘Private
       property shall not be taken or damaged for public use without just compensation ***.’ ”
       Prologis, 236 Ill. 2d at 77-78 (quoting Ill. Const. 1970, art. I, § 15). Private property includes
       real, personal, tangible and intangible property. Prologis, 236 Ill. 2d at 78.
¶ 13        “Illinois courts, not federal courts, are the arbiters of state law. No federal court can
       interpret the meaning of our state constitutional provisions.” Hope Clinic for Women, Ltd. v.
       Flores, 2013 IL 112673, ¶ 79. The plaintiffs’ taking claim did not invoke the fifth
       amendment of the United States Constitution. Nonetheless, when a provision in the state
       constitution is identical to or synonymous with the federal constitutional provision, Illinois
       follows a limited lockstep approach when construing the provision. People v. Caballes, 221
       Ill. 2d 282, 309 (2006). Under the limited lockstep approach, where the provisions are
       identical or nearly identical, the reviewing court interprets state constitutional provisions
       consistently with the United States Supreme Court’s interpretation of their federal
       constitutional counterparts unless there is some reason, such as the language of the provision,
       the convention debates and committee reports, or state custom and practice that indicate that
       the state provision is to be construed differently. Hope Clinic for Women, 2013 IL 112673,
       ¶ 83.
¶ 14        The Illinois takings clause provides protection greater than that of its federal counterpart.
       International College of Surgeons v. City of Chicago, 153 F.3d 356, 363 (7th Cir. 1998). The
       greater protection stems from the fact that the Illinois takings clause not only guards against a
       governmental taking of private property but also guards against governmental damage to
       private property. International College of Surgeons, 153 F.3d at 363.
¶ 15        We first turn to the progression of Illinois law regarding takings clause jurisprudence for
       temporary flooding. Prior to the adoption of the 1870 Illinois Constitution, property owners
       had no claim for damages caused by the construction or maintenance of a public

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       improvement unless there had been a physical invasion of the property. This was true even
       where property was rendered practically valueless. Horn v. City of Chicago, 403 Ill. 549, 554
       (1949). The framers of the 1870 Illinois Constitution added the provision that “private
       property should not be damaged for public use without just compensation.” Horn, 403 Ill. at
       554. “It is under this last constitutional provision, and none other, that a landowner may
       claim compensation for the destruction or disturbance of easements of light and air, and of
       accessibility, or of such other intangible rights as he enjoys in connection with, and as
       incidental to, the ownership of the land itself.” Horn, 403 Ill. at 554-55.
¶ 16       In People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948), the owners of improved
       property filed an amended complaint for a writ of mandamus seeking to compel the
       defendants to pay damages under the takings clause of the Illinois Constitution (then Ill.
       Const. 1870, art. II, § 13). The plaintiffs alleged that the defendants’ removal of an old
       viaduct and the construction of a new one changed the street elevation and caused their
       property to flood. In order to continue the present use of the properties, the plaintiffs alleged
       that it was necessary to change the buildings’ floor levels to afford street access and to
       prevent further flooding of their property. The plaintiffs further alleged that the flooding
       made their improved properties unfit for their purposes and damaged the equipment,
       machinery and supplies used in their businesses. The trial court dismissed the amended
       complaint. The plaintiffs filed a direct appeal to the supreme court.
¶ 17       On review, our supreme court upheld the dismissal of the amended complaint. The court
       noted that “an abutting property owner is not entitled to have condemnation proceedings
       instituted to determine damages to his property occasioned by public improvement where no
       part of his property is taken.” Pratt, 399 Ill. at 250. The plaintiffs failed to allege that the
       surface water remained in the building, and therefore, the flooding did not amount to a
       physical taking of the property. Pratt, 399 Ill. at 251-52. Where no physical taking of the
       property occurred, the plaintiffs’ remedy was an action at law for damages. Pratt, 399 Ill. at
       251. See Patzner v. Baise, 133 Ill. 2d 540 (1990) (where the claims were for damage to
       personal property and interference with access to the real property and there was no physical
       taking of the property, the property owner was not entitled to eminent domain proceedings
       for compensation; the remedy was a complaint for damages).
¶ 18       In Luperini v. County of DuPage, 265 Ill. App. 3d 84 (1994), the landowners filed a
       complaint for a writ of mandamus to compel the institution of condemnation proceedings.
       The landowners alleged that the construction of a sewer pipe caused their property to flood
       and constituted a physical invasion of their property tantamount to an unconstitutional taking.
       Relying on Pratt and its progeny, the reviewing court held that “[b]ecause eminent domain
       law distinguishes between property that has been physically taken and property that has been
       damaged [citation], the property owner cannot, by mandamus, compel the institution of
       eminent domain proceedings where no part of the land is taken.” Luperini, 265 Ill. App. 3d at
       89. Whether a taking has occurred turns on the “temporal nature of the inundation.” Luperini,
       265 Ill. App. 3d at 89. Temporary accumulations of water caused by the construction of the
       sewer pipe did not constitute a taking without compensation. Luperini, 265 Ill. App. 3d at 89.
¶ 19       Despite the additional protections afforded by the Illinois takings clause, in Pineschi v.
       Rock River Water Reclamation District, 346 Ill. App. 3d 719 (2004), the reviewing court
       noted that the “Illinois takings law appears to track federal takings law insofar as pertinent
       here,” and treated the federal and the Illinois takings clauses as a single theory of recovery.

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       Pineschi, 346 Ill. App. 3d at 725. See Henderson v. City of Columbus, 827 N.W.2d 486, 493
       (Neb. 2013) (even though the takings clause of the state constitution provided broader
       protection than the federal constitution, in analyzing compensable taking or damaging for
       public use claims, the reviewing court treated federal and state constitutional law as
       coterminous).
¶ 20       In Pineschi, the plaintiff brought an action for damages, alleging that the Rock River
       Water Reclamation District’s actions caused a sewage backup into his home, forcing his
       family to vacate the premises for several days. The District failed to appear, and the trial
       court entered a default judgment and awarded damages to the plaintiff. The appellate court
       upheld the trial court’s denial of the District’s section 2-1401 motion to vacate the default
       judgment (735 ILCS 5/2-1401 (West 2000)) on the ground that the District failed to establish
       a meritorious defense under the takings clauses of the United States and Illinois
       Constitutions.
¶ 21       Treating the federal and the Illinois takings clauses as a single theory of recovery, but
       without distinguishing Pratt or otherwise addressing the holding in that case, the court held
       that the allegation that the District’s acts caused a sewage backup, resulting in so much
       damage that the plaintiff and his family were forced to evacuate their residence for several
       days, constituted a taking requiring compensation even though the deprivation was temporary
       rather than permanent. Pineschi, 346 Ill. App. 3d at 727 (citing First English Evangelical
       Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 318
       (1987)).
¶ 22       We now turn to Arkansas Game & Fish Comm’n. In Arkansas Game & Fish Comm’n,
       the Arkansas Game and Fish Commission (Commission) sued the government alleging that
       over a six-year period, authorized temporary deviations from a water control plan instituted
       by the United States Army Corps of Engineers caused flooding, which resulted in the
       destruction of timber, changes in the character of the terrain and necessitated costly
       reclamation measures. The Commission maintained that the temporary deviations constituted
       a taking of property entitling the Commission to compensation. Following a bench trial, the
       Court of Federal Claims ruled in favor of the Commission and awarded damages. Arkansas
       Game & Fish Comm’n v. United States, 87 Fed. Cl. 594 (Fed. Cl. 2009). On review, the
       Federal Circuit Court reversed. From its review of prior United States Supreme Court
       decisions, the court determined that flooding cases were treated differently than other takings
       cases. The court concluded that government-induced flooding gave rise to a taking claim
       only if the flooding was permanent or inevitably recurring. Arkansas Game & Fish Comm’n
       v. United States, 637 F.3d 1366, 1378 (Fed. Cir. 2011).
¶ 23       The Supreme Court reversed the Federal Circuit Court’s judgment. Based on its own
       review of its precedents in which it had held that government-induced flooding could
       constitute a taking and that takings need not be permanent to be compensable, the Court
       determined that the temporary duration of a government-induced flood did not determine its
       compensability. The Court maintained that it had never authorized a “blanket
       temporary-flooding exception to our Takings Clause jurisprudence,” and declined to create
       one in the present case. Arkansas Game & Fish Comm’n, 568 U.S. at ___, 133 S. Ct. at
       519-20 (the Court explained that the reference to “permanent invasion of the land” in
       Sanguinetti v. United States, 264 U.S. 146 (1924) was in reference to prior flooding cases, all
       of which involved permanent rather than temporary flooding, and it was decided prior to the

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       Court’s consideration of the World War II temporary takings cases (internal quotation marks
       omitted)).
¶ 24        The Court concluded by saying:
                    “We rule today, simply and only, that government-induced flooding temporary in
                duration gains no automatic exemption from Takings Clause inspection. When
                regulation or temporary physical invasion by government interferes with private
                property, our decisions recognize, time is indeed a factor in determining the existence
                vel non[1] of a compensable taking.” Arkansas Game & Fish Comm’n, 568 U.S. at
                ___, 133 S. Ct. at 522.
¶ 25        In contrast to the blanket temporary-flooding exception holding in Pratt, the Supreme
       Court instructed that temporary physical invasions should be assessed on the facts of the
       particular case. Arkansas Game & Fish Comm’n, 568 U.S. at ___, 133 S. Ct. at 521-22
       (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 n.12 (1982)).
       Moreover, like other takings cases, flooding cases should be assessed on their facts and not
       by resorting to blanket exclusionary rules. Arkansas Game & Fish Comm’n, 568 U.S. at ___,
       133 S. Ct. at 521 (citing United States v. Central Eureka Mining Co., 357 U.S. 155, 168
       (1958)). The Supreme Court set forth three factors relevant to determining whether there has
       been a compensable taking: (1) the duration, (2) the intended or foreseeable result of
       authorized government action and (3) the character of the land and the owner’s reasonable
       economic expectations regarding the use of the property. Arkansas Game & Fish Comm’n,
       568 U.S. at ___, 133 S. Ct. at 522.
¶ 26        Generally, a single instance of flooding may not constitute a taking. However, we find
       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.

¶ 27                                          CONCLUSION

¶ 28      Certified question answered; case remanded.




          1
           “ ‘[O]r not.’ ” Black’s Law Dictionary 1589 (8th ed. 2004).

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