                             2015 IL App (1st) 132317
                                  No. 1-13-2317
                           Opinion Filed August 14, 2015
                                                                   Fifth Division
______________________________________________________________________________

                                     IN THE

                        APPELLATE COURT OF ILLINOIS

                                FIRST DISTRICT
______________________________________________________________________________

JENICE HAMPTON, SHARON BANKS-REVIS,       )     Appeal from the
CLAIRE BATHERSON, MARK BATHERSON,         )     Circuit Court of
THERESA BECTON, MAURICE BREWSTER,         )     Cook County.
KIMBERLY DAVIDSON, CLAUDIA DUNCAN,        )
JU WANNA L. ELERY, NANCY ELERY,           )
VALENCIA GOODLOW, RENITA GRIMES,          )
VENETTA JOHNSON, FRANK KOLB,              )     Nos. 11 CH 25985
JOHNNIE MCCLINTON, MARLA MCELROY,         )     and 11 CH 25882 Cons.
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            )     Honorable
DISTRICT OF GREATER CHICAGO,              )     Neil H. Cohen,
                                          )     Judge Presiding.
      Defendant-Appellant.                )
______________________________________________________________________________

ROBERT JACKLIN, DONNA JACKLIN,              )
EARNESTINE PULLEN and SHYREE PULLEN,        )
On Behalf of Themselves and All Persons     )
Similarly Situated,                         )
                                            )
     No. 1-13-2317


           Plaintiffs-Appellees,               )
                                               )
           v.                                  )
                                               )
     METROPOLITAN WATER RECLAMATION            )
     DISTRICT OF GREATER CHICAGO,              )
                                               )
           Defendant-Appellant.                )
     ______________________________________________________________________________

                  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, Renital 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, 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. 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)) (the Act). Count II of the

        complaint alleged that the plaintiffs' private property was taken and damaged by the



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        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.

                     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

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        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). 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 answer only 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 State's 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




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          ***.' " 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 allege 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


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          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 "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 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

          taking 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

          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


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          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 Court's

          consideration of the World War II temporary takings cases (internal quotation marks

          omitted)).


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¶ 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




             1
                 " '[O]r not.' " Black's Law Dictionary 1589 (8th ed. 2004).

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          compensable taking under the Illinois Constitution, it is effectively overruled by Arkansas

          Game & Fish Comm'n.

¶ 27                                          CONCLUSION

¶ 28         Certified question answered; case remanded.




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