Jenner & Block

Illinois Supreme Court Reverses its SWIDA Eminent Domain Decision

State's 'Quick Take' Condemnation Law "Improperly Used", Court Rules

In a victory for the Firm in a case with national interest, the Illinois Supreme Court today reversed by a 5-2 vote an earlier 4-3 decision after rehearing in SWIDA v. National City Environmental.

There is good reason why this case has been watched closely across the country and has been covered by national publications including the Wall Street Journal and the National Law Journal.

At stake was whether Illinois' "quick take" eminent domain statute may allow a state agency to condemn private property and to transfer it to another private party whom the state agency believes can use the property more profitably, or in a manner to generate more tax revenues. "The power of eminent domain is to be exercised with restraint, not abandon," concluded Justice Rita B. Garman, who wrote the 14-page majority opinion in the rare, 5-2 reversal by the state's highest court.   "As this court held in Gaylord, "the public must be to some extent entitled to use or enjoy the property, not as a mere favor or by permission of the order, but by right.'"

Nearly two years ago, the Firm's chairman, Jerold S. Solovy, successfully argued before the Illinois Appellate Court that, in SWIDA, the particular use of this portion of the state's eminent domain law constituted a violation of the Illinois and federal constitutions.  The Appellate Court's majority and concurring opinions carefully studied the historical roots of the eminent domain power and limited the state agency's efforts to expand those powers to allow takings for private use.

The Illinois Supreme Court initially reversed that landmark ruling by the narrowest of margins, 4-3. The Firm's request for a rehearing was granted last summer, in part, because of the statewide implications involved.  Today, the Justices reversed themselves and upheld the Appellate Court by a 5-2 majority.

Oral arguments before the Supreme Court were handled by Mr. Solovy. Barry Levenstam, Co-Chair of the Appellate and Supreme Court Practice, had primary responsibility for the briefs, and was assisted by other Firm attorneys including Associates Jeremy Taylor and Jessie Liu.