from the Appellate Court for the First District; heard in
that court on appeal from the Circuit Court of Cook County;
the Hon. Neil Review H. Cohen, Judge, presiding.
M. Hill, Lisa Luhrs Draper, James J. Zabel and Ellen M.
Avery, of Chicago, for appellant.
J. Dunn, Jr., and Angel P. Bakov, of Glen J. Dunn &
Associates, LTD., and Jeffrey Grant Brown, all of Chicago,
G. Patt and Richard Lee Stavins, of Robbins, Salomon &
Patt, LTD., of Glenview, for amicus curiae Village of
Harsch and John A. Simon, of Drinker Biddle & Reath LLP,
of Chicago, for amicus curiae Illinois Association of
Jenifer L. Johnson, of Springfield, for amicus curiae
Illinois Municipal League.
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.
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).
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 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
Creek; 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).
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.
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, 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 ...