We were all set to post our thoughts on the Illinois Supreme Court's recent opinion in Hampton v. Metropolitan Water Reclamation District of Greater Chicago, No. 119861 (July 8, 2016), when we were beaten to the punch by Erin Baker, an associate of our colleague (and fellow U. Hawaii law alum) Julie Tappendorf. They posted "Illinois Supreme Court Addresses Takings Clause in Temporary Flooding Case" on their firm's Municipal Minute blog.
She has all the details, and we recommend you read the post.
Short story is that land was flooded temporarily, allegedly by the Water District to avoid flooding at O'Hare airport, and the plaintiffs brought a claim for a taking under the Illinois Constitution. Since 1948, Illinois has had a judicially-created rule that temporary flooding cannot be a taking. But as we all know, the U.S. Supreme Court recently held that just because flooding isn't permanent doesn't get it a free pass under the Fifth Amendment's Takings Clause. But the District sought dismissal based on the 1948 Illinois case. Trial court said no, but certified this question to the Illinois Court of Appeals:
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?
Slip op. at 2.
Come on, you know the answer: of course it does. Yes, state constitutions can provide more protections for civil rights than their federal counterparts, but they certainly cannot provide less. The whole "floor vs. ceiling" thing. The Court of Appeals so held.
But as Erin notes, that isn't quite how the Illinois Supreme Court saw it. Instead, it held that the 1948 case didn't establish a bright line rule that temporary flooding cannot be a taking, and here (as always) the question must be decided on a "case-by-case" basis. Slip op. at 9 ("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.").
Having avoided a SCOTUS overruling, the court set out some of the things that courts should look at when evaluating claims that less-than-permanent flooding is a taking, including things like whether the flooding occurs more than once, how long the water stays on the land, whether the damage could be repaired, whether the flooding was intentional, and whether the government knew (or should have known) that flooding would result from its actions.
But the complaint here didn't address those things. Slip op. at 12 ("Therefore, plaintiffs’ amended complaint fails to sufficiently allege that the temporary flooding that occurred in this case constitutes a taking under the Illinois Constitution.Case remanded for the trial court to apply those factors."). Case remanded to allow the trial court to look at the complaint again, after the plaintiffs amend it.
A fair enough result, in our view, even though we're not convinced that the 1948 case really didn't establish a bright-line "no takings for temporary flooding" rule. But we understand why a state supreme court would try and avoid the situation where it has to determine that a U.S. Supreme Court opinion overruled an earlier state case. Doing that saves the state court from overruling its own case (which, in our experience, they hate doing), and it armors this case up from any possibility of cert review now. Besides, it doesn't really change the outcome -- Arkansas Game also rejected a bright-line "no takings" rule, and had the Illinois court applied the rule from that case, it also would have remanded. Only the rationale was different, because it was based in state law exclusively. Thus, Arkansas Game is relevant, just not controlling. Potential problem avoided.
Hampton v. Metropolitan Water Reclamation District of Greater Chicago, No. 119861 (Ill. July 8, 2016)
