As defendants and intervenor-defendant have noted, the taking is not certain to occur, and the nature of the taking were it to occur is uncertain. The structure of the Act anticipates that Kerr-McGee is to be reimbursed for clean-up expenditures from the fees. 420 ILCS 42/15(b). Therefore, until Kerr-McGee has been refused such reimbursement a takings claim is not ripe. Kerr-McGee has expressed fear that the state will never repay it; but the ripeness doctrine is meant to avoid litigation over such fears -- only actual harms, not fears, state an actual case or controversy. If Kerr-McGee concludes it is wronged by the state in the operation of the Act, it may then be able to pursue a remedy. This is a situation in which the facts are not developed enough for the court to resolve the dispute.
Furthermore, a claim of unconstitutional taking in violation of the fourteenth amendment presents special ripeness problems. A takings claim is analyzed under the general two-part Abbott Laboratories test with a special gloss. A claim of taking to be ripe must have been preceded by a state inverse condemnation proceeding, where one is available. Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194, 105 S. Ct. 3108, 3121, 87 L. Ed. 2d 126 (1985) ("If a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation."); see also Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 463-64 (7th Cir. 1988). The logic here is straightforward: There cannot be a ripe claim of taking without just compensation until it is determined that the state refuses to compensate. A "taking" with just compensation, after all, is perfectly constitutional.
Illinois does provide for such an inverse condemnation proceeding. See 735 ILCS 5/7-101 ("Private property shall not be taken or damaged for public use without just compensation . . . ."); see also Mahoney Grease Serv., Inc. v. City of Joliet, 85 Ill. App. 3d 578, 583-84, 406 N.E.2d 911, 915, 40 Ill. Dec. 708 (1980). Therefore, plaintiffs failure to pursue (or at the very least failure to allege pursuing) its state remedy would leave its takings claim unripe even if the alleged confiscation had already occurred.
Count IV is therefore dismissed under Rule l2(b)(1) for lack of jurisdiction.
COUNT V: DUE PROCESS
Evaluation of the due process claims in Count V must be broken down into subparts because the due process count contains a number of separate aspects.
The count alleges that the statute is unconstitutionally vague. Here the court's analysis gains little, if anything, by a more developed factual record, and so the court considers that aspect of the count ripe.
The count also claims Illinois gains an unfair bargaining advantage, and that aspect of the count is similarly ripe. The burden alleged would be happening now, so hardship is present. The claim appears ready for review for the same reason -- what harm Kerr-McGee alleges would be happening now.
Finally, the count alleges "arbitrary confiscation of property." For the reasons discussed regarding the ripeness of the takings claim (Count IV), the court considers this aspect of Count V not ripe. Until Illinois is given an opportunity to implement the Act, Kerr-McGee's fears and suspicions are just that. Kerr-McGee asks the court to assume, despite statutory assurances of reimbursement, that Illinois will not reimburse. This the court will not do. Therefore, the court holds that the "arbitrary confiscation of property" aspect of Count V is not ripe for review.
Failure to State a Claim
As intervenor-defendant West Chicago notes, plaintiff failed in its reply brief to defend the legal sufficiency Count V's vagueness allegation, and therefore effectively concedes that, as to that allegation, the count fails to state a claim upon which relief can be granted. Nonetheless the court independently examines all aspects of the count, and concludes that those aspects of the count now ripe do not state a claim upon which relief can be granted.
Most clearly, plaintiff will not be able to make out a claim that the Act is vague. "An unconstitutionally vague statute is one compelling a person of average intelligence to guess and resort to conjecture as to its meaning and/or as to its supposedly mandated application." United Nuclear Corp. v. Cannon, 553 F. Supp. 1220, 1233 (D.R.I. 1982) (citing Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926)). Here the Act's meaning and mandated application are clear; certainly clear enough to satisfy the constitution's proscription of vagueness. Nothing in plaintiff's entire summary allegation of vagueness contradicts this reading of the Act. (Complaint P 65)
Also, plaintiff's claim that the Act was enacted for an illegitimate purpose -- gaining an unfair bargaining advantage with plaintiff -- does not withstand a motion to dismiss. As defendants note, legislative "purpose" is not in this situation a valid grounds for declaring the statute unconstitutional. See United States v. O'Brien, 391 U.S. 367, 382-83, 88 S. Ct. 1673, 1682, 20 L. Ed. 2d 672 (1968). This is not to say that intent of the legislature is never a part of constitutional analysis. However, an otherwise constitutional statute is not to be examined for bad motive on the part of the legislature. If a statute "could be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it," then allegations of stated intent do not make out a claim of unconstitutionality. United States v. O'Brien, 391 U.S. at 384, 88 S. Ct. at 1683. That part of Count V alleging arbitrary confiscation of property is dismissed for failure to state a claim upon which relief can be granted.
Accordingly, plaintiffs motion to dismiss as to Count V is granted in part for failure to state a claim upon which relief can be granted, Rule 12(b)(6), and in part for lack of jurisdiction, Rule l2(b)(1).
Accordingly, defendants' Rule 12 motion to dismiss is granted in part and denied in part. Specifically, defendants' motion is granted as to Count I under Rule l2(b)(1), as to Count III under Rule 12(b)(6), as to Count IV under Rule l2(b)(1), and as to Count V under Rule 12(b)(1) in part and Rule 12(b)(6) in part; defendants' motion is denied as to Count II.
Date: November 10, 1993
JAMES H. ALESIA
United States District Judge