Protect Our Parks Inc v. ButtigiegProtect Our Parks Inc v. Buttigieg
This dispute is the latest effort by Plaintiff Protect Our Parks, joined by various individuals and the Nichols Park Advisory Council to block the construction of the Obama Presidential Center (“OPC“) in Jackson Park on the south side of Chicago. Plaintiffs sue the City of Chicago (“City“), the Chicago Park District (“Park District“), the Barack Obama Foundation (“Obama Foundation“) and various federal agencies, bringing eight state law claims and seven federal claims. [1]. The City, Park District and Obama Foundation move to dismiss all of the state law claims, [28]. For the reasons set forth below, the Court grants Defendants’ motion [28] in its entirety.
I. Factual Background1
In 1869, the Illinois General Assembly passed “An Act to Provide for the Location and Maintenance of a Park for the Towns of South Chicago, Hyde Park and
In March 2014, the Obama Foundation initiated a nationwide search for the future site of the OPC. [1] ¶ 39. Both the University of Chicago and the University of Illinois Chicago proposed potential locations in Chicago. Id. ¶ 40. In 2015, the City Counsel passed an ordinance (“2015 Ordinance“) outlining a number of proposed sites for the OPC and authorizing the transfer of a portion of Jackson Park to the City, in the event the Obama Foundation was interested in building and operating the OPC in Jackson Park. Id. ¶ 111; [1-1], Ex. 1. The proposed Jackson Park site lies on the western edge of Jackson Park and includes existing parkland bounded by South Stony Island Avenue on the west, North Midway Plaisance on the north, South Cornell Drive on the east, and East Hayes Drive on the south. [1] ¶ 54; [29-1] (“Report
The Chicago Plan Commission and Chicago City Council reviewed the matter, held public hearings, and subsequently approved this inter-governmental transfer of a portion of Jackson Park. [1] ¶¶ 58-63; [1-1]. As part of its approval, the City Council passed an ordinance (“2018 Ordinance“) allowing the City to accept title to the Jackson Park site from the Park District and to enter into agreements governing the Obama Foundation‘s use of the site. [1] ¶¶ 63-66; [1-1], Ex. 2. One of the agreements authorized by the 2018 Ordinance—the 2018 Use Agreement—sets the terms by which the Obama Foundation may use the Jackson Park site for the OPC. [1-1], Ex. 2 (Ex. D). In addition to the various structures that will comprise the OPC, the site will include new parkland created by vacating portions of streets adjacent to existing parkland. [1] ¶¶ 54-57, 65-67, 73; [29-2] (“May 17, 2018 Report to the Chicago Plan Commission“).3
In May 2018, Plaintiff Protect Our Parks and several individuals sued the City of Chicago and the Chicago Park District seeking to stop the construction of the OPC in Jackson Park, bringing public use doctrine and ultra vires state law claims and multiple federal constitutional claims. This Court granted summary judgment to the defendants on all claims, see Protect Our Parks, Inc. v. Chi. Park Dist., 385 F. Supp. 3d 662 (2019) (POP I); and plaintiffs appealed, see Protect Our Parks, Inc. v. Chicago Park District, 971 F.3d 722, 728 (7th Cir. 2020) (POP II), cert. denied sub nom. Protect Our Parks, Inc. v. City of Chicago, No. 20-1259, 2021 WL 1602736 (U.S. Apr. 26, 2021). The Seventh Circuit affirmed summary judgment on the federal claims but vacated the ruling on the state law claims, finding that the plaintiffs failed to demonstrate
Undeterred, Protect Our Parks, along with new individuals and the Nichols Park Advisory Council (collectively “Plaintiffs“) sue again to stop construction on the OPC. [1]. They again bring familiar public trust doctrine and ultra vires claims (Counts VI and VII), but add six new state law claims for: violation of
Plaintiffs moved for a preliminary injunction based upon their federal claims, which the Court denied. [94]. An appeal of that decision remains pending.4 The City, Park District and Obama Foundation (“Defendants” for purposes of this opinion) also moved to dismiss all eight state law claims, [28], and is now ripe for decision.
Before the Court considers the merits of Defendants’ motion [28], however, it pauses to address the binding effect of the rulings in the prior iteration of this dispute. This Court‘s prior summary judgment ruling on the state law claims does not implicate res judicata principles, nor does it constitute law of the case, since the Seventh Circuit found the plaintiffs lacked standing. POP II, 971 F.3d at 728. Of course, the Seventh Circuit‘s decision, however, does bind this Court and the parties, and constitutes law of the case.
To survive a motion to dismiss under
IV. Analysis
A. Standing
The Seventh Circuit‘s decision in POP II provided a strong reminder that, before a court can address the merits of any claim, it must assure itself of its jurisdiction. 971 F.3d at 729. Defendants summarily posit that Plaintiffs now sufficiently allege standing, [29] at 11, but the Court will nevertheless spend a moment on standing before proceeding to the merits.
To establish
Here, to establish standing, Plaintiffs newly allege that, for years, the individual Plaintiffs, as well as members of Protect Our Parks and NPAC, have used and enjoyed Jackson Park and the surrounding public areas and intend to continue using them for recreation and to, inter alia, study the architecture and enjoy the aesthetics and animal population. [1] ¶¶ 12-19. The Complaint also alleges that Plaintiffs have standing as municipal taxpayers. Id. ¶ 22
The allegations regarding Plaintiffs’ use and enjoyment of the property suffice to demonstrate a concrete injury cognizable under
In POP II and again here, Plaintiffs’ primary state law claim rests on the public trust doctrine. [1]. As the Seventh Circuit succinctly explained, “the public trust doctrine, established by American law in Illinois Central Railroad Co. v. Illinois, prohibits a state from alienating its interest in public lands submerged beneath navigable waterways to a private party for a private purpose.” POP II, 971 F.3d 722, 729 (7th Cir. 2020). It may only alienate such public land to a private party “if the property will be ‘used in promoting the interests of the public’ or ‘can be disposed of without any substantial impairment of the public interest in the lands and water remaining.‘” Id. (quoting Illinois Central, 146 U.S. at 453).
Although this original doctrine only applied to “navigable waterways,” Illinois has extended the doctrine to other land such that, once the “land has been dedicated to a public purpose,...the government ‘holds the properties in trust for the uses and purposes specified and for the benefit of the public.‘” POP II, 971 F.3d at 730 (quoting Paepcke v. Pub. Bldg. Comm‘n of Chi., 263 N.E.2d 11, 15 (Ill. 1970)). This is precisely how Jackson Park became public trust land pursuant to the Illinois Legislature‘s 1869 grant. See § I, supra.
1. The Standard of Review Applicable to Plaintiffs’ Public Trust Claim.
In moving to dismiss Plaintiffs’ public trust claim, Defendants argue that Illinois law affords different levels of deference to a legislature‘s reallocation of public
Plaintiffs disagree. They do not dispute that Jackson Park constitutes never submerged land. Instead, they argue that Illinois law does not (or perhaps should not) adjust its level of scrutiny based on the type of land at issue. [69] at 20 (arguing that “[w]hether land was currently submerged, formerly submerged or never submerged has absolutely nothing whatsoever to do with the appropriate level of deference“). Plaintiffs contend that the Court cannot look solely to the Museum Act because “[s]imple legislative authorization never satisfies the requisites of the public trust doctrine.” Id. at 19. Plaintiffs argue that the Court must apply Wisconsin‘s five-part test, which Plaintiffs insist the Paepcke Court adopted as the standard to resolve public trust reallocation disputes. Id. at 22 (quoting Paepcke, 263 N.E.2d at 19 and discussing Wisconsin‘s five-part test set out in City of Madison v. State, 83 N.W.2d 674 (Wis. 1957)).
During oral argument on Defendants’ motion, Plaintiffs insisted that “there is no hint in [Paepcke] of any deference that was given to the government.” [113] at 46:7-8. Not so. The Paepcke Court held that “courts can serve only as an instrument of determining legislative intent as evidenced by existing legislation measured against constitutional limitations” and “[i]n this process the courts must deal with legislation as enacted and not with speculative considerations of legislative wisdom.”
Further, contrary to Plaintiffs’ insistence, Paepcke did not adopt Wisconsin‘s five-factor approach to resolve reallocation disputes. [69] at 22. Although the Paepcke Court noted the approach that Wisconsin had taken in two cases, it explicitly held that the Wisconsin approach was “not controlling under the issues as presented in this case” because there existed a statute that evinced the requisite legislative intent. 263 N.E.2d at 19; see also Friends of the Parks v. Chi. Park Dist., No. 14-cv-9096, 2015 WL 1188615, at *5 (N.D. Ill. Mar. 12, 2015) (Lucas I) (noting that the “‘Wisconsin test’ . . . was not adopted as applicable in public trust cases, and the Illinois Supreme Court again declined to use the test in Friends of the Parks.” (citing Friends of the Parks, 786 N.E.2d at 170)). Instead, the court merely commented that Wisconsin‘s factors “might serve as a useful guide for future administrative action.”7 Paepcke, 263 N.E.2d at 19.
Notably, although Plaintiffs insist that Paepcke adopted the Wisconsin approach, they acknowledged in their brief, [69] at 23, and at oral argument, [113] at 30:15-21, 40:6-12, that the Seventh Circuit disagrees when it held:
Once such land has been dedicated to a public purpose, the Illinois Supreme Court has explained, the government “hold[s] the properties in trust for the uses and purposes specified and for the benefit of the
public.” Paepcke, 263 N.E.2d at 15. Dedication to a public purpose isn‘t an “irrevocable commitment[],” id. at 16, and judicial review of any reallocation is deferential, particularly if the land in question has never been submerged. Nonetheless, the doctrine requires courts to ensure that the legislature has made a “sufficient manifestation of legislative intent to permit the diversion and reallocation” to a more restrictive, less public use. Id. at 18.
POP II, 971 F.3d at 730. Plaintiffs argue that the Seventh Circuit “inelegantly stitches together three disconnected statements” from Paepcke and “thus misstates” its logic. [69] at 23; see also [131] at 42:6-10, 48:20-49:2. Despite Plaintiff‘s unfounded criticism, however, the Seventh Circuit‘s interpretation controls here.
Finally, Plaintiffs also argue that this case requires a “heightened degree of scrutiny given both the lack of diligence and self-evident insider favoritism” that led to the “flawed transactions that the City and Park District have entered into with the Obama Foundation.” [1] ¶ 235. According to Plaintiffs, this purported heightened scrutiny derives from the private trust context, which imposes fiduciary duties on trustees; and thus, public trusts impose (or perhaps, should impose) the same fiduciary obligations on government actors. [69] at 19-20. (“[A]ny trust over any kind of resource, whether public or private, imposes a standard set of fiduciary duties.“). Because of these purported fiduciary duties, Plaintiffs argue, this Court must “second-guess” the “particular merits of legislative judgments” about reallocation of any public trust land to counter “the evident dangers of self-interest [sic] political actors.” Id. at 21.
As Defendants rightly point out, [29] at 28, Illinois law does not impose public trust fiduciary duties analogous to those in the private trust context, nor does it recognize some “heightened scrutiny” based upon the concept of public trust fiduciary
2. Legislative Intent and The Museum Act
The Court now looks to the legislative intent here. Defendants argue that the Museum Act‘s language reflects the requisite “manifestation of legislative intent.” [29] at 23 (quoting
The Museum Act explicitly authorizes cities and park districts with control or supervision over public parks to:
purchase, erect, and maintain within any such public park or parks edifices to be used as aquariums or as museums of art, industry, science, or natural or other history, including presidential libraries, centers, and museums....
The corporate authorities of cities and park districts...[may] permit the directors or trustees of any corporation or society organized for the
construction or maintenance and operation of an aquarium or museum as herinabove described to erect, enlarge, ornament, build, rebuild, rehabilitate, improve, maintain, and operate its aquarium or museum within an public park...and to contract with any such directors or trustees of any such aquarium or museum relative to the erection, enlargement, ornamentation, building, rebuilding, rehabilitation, improvement, maintenance, ownership, and operation of such aquarium or museum.
Overall, this legislative directive states a clear, broad, comprehensive, and definite intention to allow the City to contract with directors or trustees of the museum (the Obama Foundation) to build a president center (the OPC) in a public park (Jackson Park). See, e.g., People v. Pack, 862 N.E.2d 938, 940 (Ill. 2007) (“The best indication of legislative intent is the statutory language, given its plain and ordinary meaning.“). The above quoted language also reflects the legislature‘s determination that presidential centers, as a type of museum, remain consistent with a parcel‘s designation as public parkland. See, e.g., Furlong v. S. Park Comm‘rs., 151 N.E. 510, 511 (Ill. 1926) (declining to enjoin South Park Commissioner‘s efforts to issue bonds to renovate the Fine Arts Building to include a museum—now the Museum of Science and Industry—in Jackson Park, because park purposes “are not confined to a tract of land with trees, grass and seats, but mean a tract of land ornamented and improved as a place of resort for the public, for recreation and amusement of the public.“); Fairbanks v. Stratton, 152 N.E.2d 569, 575 (Ill. 1958) (upholding construction of an exposition building and auditorium—now McCormick Place convention center on submerged land under the public trust doctrine).
Nonetheless, Plaintiffs argue that the reallocation here also violates the Public Trust Doctrine because the 2018 Use Agreement essentially gave the Obama Foundation the OPC site for free during which time the Obama Foundation will enjoy exclusive use of it and derive all economic value from it. [69] at 32-33. They argue that a trustee may never “transfer any property held in trust to a private party unless, at the very least, he or she receives full compensation for the property transferred.” [69] at 32. Plaintiffs acknowledge that the Use Agreement does not explicitly grant the Obama Foundation exclusive use, but instead insist that discovery must proceed to determine whether the Use Agreement is, in fact, a “lease in disguise and reflective of a transfer equivalent to a sale.” [69] at 33. Overall, Plaintiffs argue that, if the Use Agreement constitutes a lease equivalent to a sale, then the Public Use Doctrine requires that the Obama Foundation pay the City “full compensation” for the sale. Id.
Plaintiffs rely heavily upon Friends of the Park v. Chicago Park Dist., 160 F. Supp. 3d 1060, 1068 (N.D. Ill. 2016) (Lucas II), in which a court evaluated a Park District proposal to enter into a 99-year ground lease with the Lucas Museum of Native Arts under the Museum Act. [69] at 32-35. There, the court denied the plaintiffs’ motion to dismiss public trust doctrine, due process and ultra vires claims, finding that, inter alia, the 99-year ground lease, by its terms, suggested the leaseholders were “owners” in a “constitutional sense” because it gave the
Even assuming that Lucas II was rightly decided (which this Court need not address), that ruling is inapposite. First, it involved formerly submerged land, rather than statutorily-created, never-submerged parkland, and thus the case involved a different level of deference. Id. at 1063. Second, the ground lease at issue there cannot be analogized to the 2018 Use Agreement here. The 2018 Use Agreement—which Plaintiffs attach to the Complaint, [1-2], Ex. 2 (Ex. D)—unambiguously provides that the City retains ownership over the OPC site. Id. §§ 2.1-2.2, 4.4. Further, unlike the lease agreement with the private party in Lucas II, the Obama Foundation will bear the cost to construct the OPC facilities, and then must give the City ownership over the facilities upon completion. Id. Clearly, the City also does not give up control over the OPC site: if the Foundation ceases to use the OPC for its permitted purposes under the Use Agreement, the City may terminate the Agreement. Id. §§ 6.1-6.2. And, as Defendants point out, [29] at 24, the 2018 Use Agreement does not give the Obama Foundation the right to exclude the public from the OPC site but requires it to remain open to the public during Park District hours, [1-2] § 6.2(a)-(c).
Simply put, the 2018 Use Agreement is not a lease agreement giving the Obama Foundation effective “ownership” in the “constitutional sense.” Plaintiffs’ contrary allegations fail as a matter of law. See Forrest v. Universal Savs. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007) (holding that a court need not credit allegations contradicted by exhibits attached to a complaint).
Overall, the Court finds that the OPC does not violate the public trust doctrine as a matter of law, based upon the legislature‘s manifestation of intent in the Museum Act (which is all this Court must examine). Nonetheless, in the alternative, the Court next analyzes Plaintiffs’ public trust claim based upon the level of scrutiny applicable to formerly submerged public trust land for clarity and finality.
3. Formerly Submerged Land: No Corresponding Benefits Test
The scrutiny used for formerly submerged land holds that a diversion of formerly submerged parkland violates the public trust only if it: (1) does not contain sufficient legislative authorization, pursuant to Paepcke; and (2) primarily benefits a private entity, with no corresponding public benefit. See Friends of the Parks, 786 N.E.2d at 169-170 (citing Paepcke, 263 N.E.2d at 21).
In Friends of the Parks, the Illinois Supreme Court examined a project to improve Burnham Park and Soldier Field and give the Chicago Bears football team certain use rights. Id. The plaintiffs argued that the project (and the legislation that permitted it) violated the public trust doctrine because it allowed a private party (the Bears) to use and control Soldier Field “for its primary benefit with no corresponding public benefit.” Id. The court disagreed. It first noted that the City will continue to own Burnham Park and Soldier Field and did not abdicate control or ownership to the Bears. It also found that the legislature, through the Sports Facilities Authority Act, had manifested clear intent for the park‘s reallocation and renovations. And,
The same holds true here as a matter of law. As discussed above, the City did not abdicate control or ownership of the OPC site to the Obama Foundation and the Museum Act manifests clear legislative intent for the OPC. Further, the Museum Act confirms that presidential centers, like the OPC here, confer a public benefit because they “serve valuable public purposes, including, but not limited to, furthering human knowledge and understanding, educating and inspiring the public, and expanding recreational and cultural resources and opportunities.”
Plaintiffs insist the OPC primarily benefits the Obama Foundation because the 2018 Use Agreement gives to the Obama Foundation all “economic value” associated with it while the City (and public) get virtually nothing in return. [69] at 33. Even if the Court assumes that the Obama Foundation will enjoy all the “economic value“—even though that allegation finds no support in 2018 Use Agreement9—that does not invalidate it under Friends of the Park‘s heightened scrutiny test. Plaintiffs’ narrow focus on the OPC‘s “economic value” ignores the incontrovertible fact that public benefits are not measured merely in terms of “economic value.” As set out above, the OPC will confer public benefits even if they are not “economic” in nature. And, as the Friends of the Park Court made clear, private parties may enjoy private benefits from public land use without it running afoul of the public trust doctrine. 786 N.E.2d at 169-70.
Accordingly, even accepting Plaintiffs’ unsupported “economic value” allegation as true, the OPC does not violate the public trust doctrine under the Friends of the Parks heightened burden standard applicable to formerly-submerged lands. Accordingly, Plaintiffs’ public trust doctrine claim still fails as a matter of law under the heightened (and inapplicable) standard.
Plaintiffs also bring a claim that the City and Park District acted ultra vires based on multiple theories. First, Plaintiffs allege that the Park District‘s transfer of the Jackson Park site to the City violated the
In moving to dismiss, Defendants argue that a plain reading of the relevant statutes dispels Plaintiffs’ theories. [29] at 23-24, 30-33. They also argue that Plaintiffs fail to allege how the City acted beyond its authority during the federal review process; and even if they could marshal such evidence, the City‘s actions during that process have no bearing on whether the Park District could transfer the land to the City, or whether the Foundation may use the OPC site. [78] at 18. Again, the Defendants prevail on the record here.
1. The Property Transfer Act Authorizes the Park District‘s Transfer to the City.
Plaintiffs’ ultra vires theory based upon the
If the territory of any municipality shall be wholly within, coextensive with, or partly within and partly without the corporate limits of any
other municipality . . . and the first mentioned municipality (herein called “transferee municipality“), shall by ordinance declare that it is necessary or convenient for it to use, occupy or improve any real estate held by the last mentioned municipality (herein called the “transferor municipality“) in the making of any public improvement or for any public purpose, the corporate authorities of the transferor municipality shall have the power to transfer all of the right, title and interest held by it immediately prior to such transfer, in and to such real estate, whether located within or without either or both of said municipalities, to the transferee municipality upon such terms as may be agreed upon by the corporate authorities of both municipalities . . .
Id. at 605/2 (emphases added). Plaintiffs contend that this provision only authorizes the Park District to transfer the Jackson Park site if the transferee itself (here, the City) will “use, occupy, or improve” the site. [1] ¶¶ 239-40. Because, according to Plaintiffs, the City impermissibly “transferred exclusive possession to the Obama Foundation,” the Park District‘s transfer violates the Property Transfer Act. Id.
First, to the extent Plaintiffs’ claim rests on the theory that the 2018 Use Agreement gives the Obama Foundation “exclusive possession” of the OPC site, the Court already found that it does not. It only gives the Obama Foundation the right to use, maintain, operate and improve the OPC site. [1-1], Ex. 2 (Ex. D).
Second, Plaintiffs fail to read the relevant statutory provisions in context. The Property Transfer Act remains silent as to whether municipalities can contract with third parties to improve, operate or maintain transferred land. See
Moreover, Plaintiffs’ proposed reading of the Property Transfer Act would create the absurd result of prohibiting transferee municipalities from ever contracting with engineers, architects, or builders to improve or manage a site. This Court rejects Plaintiffs’ approach, and instead reads each of the relevant provisions of Illinois law in context, together, and gives each statute effect according to its plain terms.10 Accordingly, Plaintiffs fail as a matter of law to make out a claim that the Park District acted ultra vires when it transferred the property to the City.11
Plaintiffs next allege that the City acted ultra vires because the Museum Act requires the City to lease the site to the Obama Foundation. [1] ¶ 241.12 Again, not so. The Museum Act states that the City “may enter into a lease for an initial term not to exceed 99 years . . . to erect, enlarge, ornament, build, rebuild, rehabilitate, improve, maintain, and operate” a presidential center “together with grounds immediately adjacent“.
3. Plaintiffs Fail to Identify Any other Ultra Vires Actions.
The Court has now addressed Plaintiffs’ ultra vires claims as set forth in their Complaint. [1] ¶¶ 239-41. Nonetheless, in their Response, Plaintiffs conclusorily state that their Complaint “identifies many activities that are ultra vires” including the City‘s conduct during the federal review process. [69] at 43. Specifically,12
Finally, although Plaintiffs assert that the Complaint somehow “identifies many activities that are ultra vires,” [69] at 43, the Court need not accept as true such conclusory allegations, nor will it attempt to divine other theoretical ultra vires acts from the Complaint‘s factual allegations that Plaintiffs have failed to develop in their briefing. In short, Plaintiffs’ Complaint fails to allege a plausible ultra vires claim, and thus, it is dismissed without prejudice.
D. Illinois Constitution Article VIII, Section 1 (Count VIII)
Plaintiffs’ Count VIII alleges that the 2018 Use Agreement also violates
In order to “proceed under article VIII, section 1(a) of the Illinois Constitution, facts must be alleged indicating that governmental action has been taken which directly benefits a private interest without a corresponding public benefit.” Empress Casino Joliet Corp. v. Giannoulias, 896 N.E.2d 277, 293 (Ill. 2008) (quoting Paschen v. Vill. of Winnetka, 392 N.E.2d 306 (Ill. App. Ct. 1979)). Yet, “what is for the public good and what are public purposes are questions which the legislature must in the first instance decide.” Empress Casino, 896 N.E.2d at 294. Thus, “the judgment of the legislature is to be accepted in the absence of a clear showing that the purported public purpose is but an evasion and that the purpose is, in fact, private.” Id.
Defendants move to dismiss, arguing that the Museum Act and City‘s 2018 Ordinance, attached to the Complaint, evinces a clear “public benefit” and Plaintiffs fail to “make a threshold showing that the findings are evasive and that the purpose of the legislation is principally to benefit private interests.” [29] at 33 (quoting Friends of the Parks, 786 N.E.2d at 166-67). In response, Plaintiff insist that their claim must proceed to discovery to determine “who is a primary beneficiary” of the OPC. [69] at 46. They also contend that the City clearly intended to benefit the Obama Foundation and the Complaint alleges numerous “dislocations involved in bringing the OPC to Jackson Park” that support their claim. Id. Once again, Defendants win the day.
As discussed above, the Museum Act clearly indicates that museums and presidential centers like the OPC have a public purpose and provide important public benefits. Here, Plaintiffs allege nothing to demonstrate that this legislative finding is evasive or deceptive.14 That ends the matter. But Plaintiffs disagree, asserting that their Complaint purportedly contains numerous “dislocations involved in bringing the OPC to Jackson Park” that support the claim. [69] at 46. Plaintiffs do not explain what “dislocations” they mean by this undeveloped argument, but14
Nevertheless, such “dislocations” are not material to whether the OPC site has a public purpose.15 Even if these “dislocations” constitute costs, Plaintiffs fail to explain how they undermine the OPC‘s public purpose set out in the Museum Act. Plaintiffs fail to cite any legal authority that no public purpose exists if the record also includes incidental public costs,16 or that the Public Purpose Clause requires that property be used for public purposes that confer the highest net public benefit (as defined by a court, rather than the legislature). Based upon the clear legislative determination that the OPC site has a public purpose and confers a public benefit, the Court denies Count VIII as a matter of law.
E. Violation of Illinois Constitution Takings Clause (Count IX)
In the prior case before this Court, the plaintiffs asserted a due process claim based upon the
Unsatisfied, Plaintiffs seek another bite at the apple with their takings clause theory, but this time bring it under the
Plaintiffs’ new version of the old claim fares no better, and indeed, it runs directly contrary to the Seventh Circuit‘s findings in POP II. Like the federal Takings Clause, Illinois’ Takings Clause states that “[p]rivate property shall not be taken or damaged for public use without just compensation as provided by law.”
F. Plaintiff‘s Procedural and Substantive Due Process Claim Pursuant to Illinois Constitution Article I, Section 2 (Count XII)
In the prior case before this Court, the plaintiffs also brought a federal procedural due process claim. The Seventh Circuit affirmed dismissal on summary judgment. POP II, 971 F.3d at 737-38. Now, Plaintiffs try again, this time bringing a state law procedural and substantive due process claim. [1] ¶¶ 259-63. They allege that the City and Park district violated their state due process rights by allowing the Obama Foundation to control decision-making, and “by rubber stamping” the Foundation‘s demands to transfer critical public trust land to it. Id. They also allege that the City accelerated the improper approval process during the ongoing coronavirus pandemic, which curtailed Plaintiffs’ rights to meaningfully participate in the City‘s meetings and reviews. Id. ¶ 264. Defendants move to dismiss arguing the claim fails as a matter of law. [29] at 41-44.
Like its federal counterpart, Illinois due process protections “pertain to deprivations of life, liberty or property” and a procedural due process claim cannot succeed without a threshold showing that the government interfered with one of these
Regardless, even if Plaintiffs possessed a cognizable property interest, Plaintiffs fail to adequately allege any deprivation of that interest. The Court found above that the General Assembly—through the Museum Act—authorized the OPC. Further, Plaintiffs’ Complaint agrees that the City took four separate votes to approve aspects of the OPC. [1] ¶¶ 42, 58-63. As the Seventh Circuit held in affirming dismissal of the federal due process claims in the last case, “legislative determination provides all the process that is due” and if “one legislative determination is enough, then five determinations are overkill.” POP II, 971 F.3d at 738. The same holds true for Plaintiffs’ state law procedural due process claim and it fails as a matter of law.18
Turning to Plaintiffs’ substantive due process claim, Defendants argue that the City‘s 2018 Ordinance approval must only meet the rational basis test. [29] at 43. Plaintiffs disagree, arguing that Paepcke requires a heightened showing because it
The Court already found that Paepcke affords significant deference to decisions involving statutorily-created public trust land. Nothing in that opinion indicates that courts should apply a heightened standard to a substantive due process claim over such legislative decisions. The rational basis test applies.
Under Illinois law, a rational basis exists if the Court can “hypothesize” one, even if it is “based on rational speculation unsupported by evidence or empirical data” and even if that basis did not actually motivate the legislative action. People ex rel. Lumpkin v. Cassidy, 703 N.E.2d 1, 4 (Ill. 1998). Here, the Museum Act offers a rational basis for the 2018 Ordinance and the OPC: “furthering human knowledge and understanding, educating and inspiring the public, and expanding recreational and cultural resources and opportunities.”
Of course, Plaintiffs believe that any public benefits that the OPC may provide do not compare, in their view, to the benefits that Jackson Park provided in its former glory. But as the Paepcke Court emphasized:
[T]he issues presented in this case illustrate the classic struggle between those members of the public who would preserve our parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an
increasingly complex society, find it necessary, in good faith and for the public good, to encroach to some extent upon lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts.
Paepcke, 263 N.E.2d at 21. There exists a rational basis for the 2018 Ordinance. Thus, Plaintiffs’ substantive due process claim fails as a matter of law.
G. Illinois Constitution—Improper Delegation of Authority (Count XI)
Plaintiffs’ Count XI alleges that the City violated
WHEREAS, While the City Council is confident in the quality and thoroughness of both UIC‘s and UChicago‘s proposals, the City defers to the sound judgment of the President and his Foundation as to the ultimate location of the Presidential Library.
Id. (quoting [1-1], Ex. 1 (2015 Ordinance)).
Defendants move to dismiss, arguing that the ordinances and laws at issue demonstrate, as a matter of law, that “only the appropriate legislative bodies have determined what the law shall be with respect to use of the Jackson Park site.” [29] at 38.19 Plaintiffs disagree, arguing that the 2015 Ordinance does not speak “in terms of mere ‘advice’ but of ‘deference‘” to the Obama Foundation and, therefore, it conferred “on a powerful private party an unfettered choice of location for its own private development.” [69] at 37.
The 2015 Ordinance found that the City identified numerous locations proposed by University of Illinois-Chicago (“UIC“) and University of Chicago (“UChicago“), and noted various benefits, risks and challenges as to each. [1-1], Ex. 2. Although the 2015 Ordinance states that “the City defers to the sound judgment of the President and his Foundation as to the ultimate location of the Presidential Library“, this plainly refers to the Foundation‘s ongoing nationwide selection process and the City‘s desire to offer proposals to the Obama Foundation that give “our City the greatest chance for selection” by the Foundation. Id. The 2015 Ordinance also makes clear that, if the Foundation likes a site located in a Chicago parkland, then20
Read in full, the 2015 Ordinance did not abdicate the City‘s decision-making authority regarding public parkland use to the Obama Foundation. Instead, it reaffirmed its desire to have the OPC in Chicago and held that the City would consider and vote on a second ordinance if the Obama Foundation wished to build and operate the OPC on public parkland. And that is exactly what happened: the City considered and approved the Jackson Park site through the 2018 Ordinance. Simply put, Plaintiffs’ claim fails as a matter of law because the 2015 and 2018 ordinances belie their allegations. The Court dismisses Count XI with prejudice.
H. Violation of Illinois Constitution Article I, Section 16 (Count XIII)
Count XIII alleges that the City‘s 2018 Ordinance, which approved the 2018 Use Agreement, violated
Plaintiffs’ theory fails as a matter of law. As the Court already found, the 2018 Use Agreement did not transfer ownership of the OPC site to the Obama Foundation nor did it give the Foundation any irrevocable rights to it. Instead, it gives the Obama
In addition, as Defendants correctly point out, Illinois law also states that a contract or law giving special privileges to a certain group does not violate
I. Violation of Illinois State Agency Historic Preservation Act (Count XV)
Plaintiffs’ final state law claim relies on
Defendants move to dismiss arguing that Illinois’ State Agency Historic Preservation Act does not apply where there has been a federal Section 106 review, which occurred in this case. [29] at 46. In response, Plaintiffs agree that Illinois’ State Agency Historic Preservation Act does not apply if a federal Section 106 process is applicable, but they insist their claim may still be viable because the “federal agencies improperly declined review of the adverse effects of the OPC based on what they claimed were purely ‘local’ issues associated with” it. [69] at 40. That is, Plaintiffs agree that their state law claim fails if the federal review improperly declined to review alternatives, because then federal review will need to be reopened and will take precedence. Id. But, they argue, if the federal review properly avoided a review of alternatives, then the Illinois State Agency Historic Preservation Act applies. Id.
As a matter of law, the plain language of the Illinois State Agency Historic Preservation Act easily defeats Plaintiffs’ theory. It states that, when an “undertaking is being reviewed pursuant to Section 106 of the National Historic Preservation Act of 1966, the procedures of this law shall not apply.”
V. Conclusion
For the foregoing reasons, the Court grants Defendants’ motions to dismiss [28]. The Court dismisses with prejudice Counts VI, VIII, IX, XI, XII, XIII and XV and dismisses without prejudice Count VII.
Dated: March 29, 2022
Entered:
John Robert Blakey
United States District Judge