STATE OF ILLINOIS, Plaintiff-Appellant, v. CITY OF CHICAGO, Illinois, and City of Gary, Indiana, Defendants-Appellees.
No. 96-3783.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 17, 1997. Decided Feb. 19, 1998.
137 F.3d 474
However, in relying on Robinson, the defendant fails to give a complete characterization of the case. In Robinson, this Court went on to hold that the prеjudice from the prosecutor‘s improper questioning of the defendant Robinson regarding his prior conviction was harmless and did not deprive the defendant of a fair trial. Id. at 411. This was due to the fact that: (1) evidence of the defendant‘s guilt was overwhelming; (2) the district judge had told the jury to disregard the improper questions and answers; (3) the prosecutor did not refer to the prior сonviction again during the trial; and (4) the improper material amounted to a minuscule three pages in a trial transcript exceeding 2,400 pages. Id. We likewise hold that the prejudice resulting from the prosecutor‘s questioning of Klehm was harmless.
See also: 102 F.3d 1421; 122 F.3d 370.
IV. CONCLUSION
Although we agree with the vast majority of the trial judge‘s rulings, we are forced to disagree with his instruction dealing with the requirement that the jury rеach a unanimous verdict, and order a reversal and remand for a new trial.
REVERSED.
Roger Flahaven, Office of the Attorney General, Mary E. Welsh (argued), Office of the Attorney General, Civil Appeals Division, James R. Carroll, Quinlan & Crisham, Chicago, IL, for Plaintiffs-Appellants.
Earl L. Neal, Neal & Associates, Lawrence Rosenthal (argued), Benna Solomon, Susan S. Sher, Michael A. Forti, Thomas J. Bamonte, Office of the Corporation Counsel, Aрpeals Division, Gail A. Niemann, Office of the Corporation Counsel, Litigation Division, Chicago, IL, for City of Chicago.
Darnail Lyles, Meyer, Lyles & Godshalk, Earl L. Neal, Susan S. Sher, Michael A. Forti, Gail A. Niemann, Corinth Bishop, East Chicago, IL, for City of Gary.
Nana Quay-Smith, Karl L. Mulvaney, D. William Moreau, Jr. (argued), Bingham, Summers, Welsh & Spilman, Indianapolis, IN, George F. Fitzpatrick, Jr., Kaaren A. Kunze, Swanson, Martin & Bell, Chicago, IL, for State of Indiana.
Michael V. Casey (argued), Martin H. Redish, John M. Blim, Hollеb & Coff, Chicago,
D. William Moreau, Jr., Daniel T. Hackman, Bingham, Summers, Welsh & Spilman, Indianapolis, IN, George F. Fitzpatrick, Jr., Swanson, Martin & Bell, Chicago, IL, for Frank O‘Bannon.
Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.
EASTERBROOK, Circuit Judge.
Since 1959 states have had standing permission to join forces with their neighbors to establish regional airports. An exercise of power under the Compact Clause (
Illinois has two objections to the Chicago-Gary agreement (which following the parties’ usage we call the Compact, without suggesting that it is an interstate compact as the Constitution uses that term). First, Illinois submits that
What an odd duck this case is. Illinois either is attacking the validity of its own statute (the IAAA) and every agreement based on that law, or it is asserting that Chicago exceeded the powers delegated by that statute. If the latter understanding is correct, then the case arises under state rather than federal law, and the potential status of a trans-border agreement as a “compact” outside of state control would be a defense to that state-law claim. If the former understanding is best, then Illinois encounters substantial problems in addition to standing. How can а state complain about its own statute? Relieving a state of the consequences of a self-inflicted wound would be a novel mission for a federal court—especially when the state‘s adversary is a city, a subordinate political body. Cities generally can‘t sue their states (for a statement of the rule, and an exception, see Chicago v. Lindley, 66 F.3d 819, 823 n. 6 (7th Cir. 1995)), and a claim by the state against the city has even weaker foundation, for the city exists at the state‘s sufferance. Even if the Compact has passed beyond the control of Illinois (because any change requires Gary‘s or Indiana‘s approval), Chicago is not beyond Illinois’ power. Illinois could reclaim the powers Chicago now exercises, and the fact that the balаnce of political power in Illinois may render this impossible at the moment is a poor reason for a federal court to readjust the allocation of functions between the city and the state. Illinois does not suffer the kind of proprietary loss that justified inter-department litigation in United States v. ICC, 337 U.S. 426, 69 S. Ct. 1410, 93 L. Ed. 1451 (1949); its claim is based on a belief that the powers of government ought to be аpportioned to one body rather than another, the sort of contention that cases such as Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 128-29, 115 S. Ct. 1278, 1284-85, 131 L. Ed. 2d 160 (1995), say must be worked out politically. Moreover, it is hard (if not impossible) to locate the source of a right of action. Illinois points to
Injury is an indispensable element of a case or controversy. That means a palpable harm to a concrete interest. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992); Illinois Department of Transportation v. Hinson, 122 F.3d at 371-72. We held in Illinois Department of Transportation that Illinois could not establish injury from thе transfer of funds to the Gary Regional Airport, because the money raised from emplaning passengers did not belong to the state in the first place, and it could not demonstrate any other financial consequence. Today‘s case is the same (non) controversy as Illinois Department of Transportation, but without even the pretense of a financial stake. Illinois does not object to anything thе Chicago-Gary Regional Airport Authority has done; it objects to the Authority‘s existence. If the existence of an unwelcome governmental body injured the state, then it would have had standing in Illinois Department of Transportation.
Illinois complains about the dignitary insult it perceives from the Regional Airport Authority, which it labels an “assault on state sovereignty.” But what has the Authority done that injures its concrete interest? Illinois fears what the Authority might do in the future, should Illinois enact legislation the Authority opposes, but Article III does not permit federal courts to referee hypothetical disputes. Otherwise people could litigate about laws not yet enacted, indeed not yet introduced. The future effects of laws may create injury today because of the costs of prеparing to operate under them, see Virginia v. American Booksellers Association, Inc., 484 U.S. 383, 393, 108 S. Ct. 636, 643, 98 L. Ed. 2d 782 (1988); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Hays v. Urbana, 104 F.3d 102 (7th Cir. 1997), but in these cases the laws had been enacted; what Illinois fears is the outcome of a clash between laws Illinois has yet to enact and regulations the Authority has yet to adopt.
According to Illinois, any state concerned about the effect of preemption may litigate without the need to establish other injury; the fact that one‘s laws have been preempted is injury to a sovereign, the state insists. This argument falls short for two reasons. First, the Authority has not attempted to override any particular state law; the Compact proclaims the authority to do this, but a claim of authority differs from an exercise of authority. Only the exercise yields a concrete dispute. Seе Raines v. Byrd, — U.S. —, 117 S. Ct. 2312, 138 L. Ed. 2d 849 (1997) (enactment of a line-item
Forget the Compact Clause for a moment. If Chicago were to legislate inconsistently with a state statute—for example, declining to indemnify an employee held liable for a constitutional tort, when state law provided for indemnification, see Wilson v. Chicago, 120 F.3d 681 (7th Cir. 1997)—and if this exceeded the city‘s home-rule powers, the right litigant would be the person who would recover under the state law but not under the ordinance. The State‘s bare disagreement with the City‘s ordinance would be a political rather than a legal dispute. Just so here. If the Regional Airport Authority should decide to close Meigs Field despite a state law requiring it to remain open, the right plaintiff would be a pilot who wanted to land there or some other injured person, not the Stаte of Illinois. A role as lawmaker does not confer a role as litigant in federal court.
Although the district court likewise concluded that Illinois had not presented a justiciable controversy, it also expatiated about the merits of the dispute, opined that Illinois’ arguments were unpersuasive, and entered this judgment: “IT IS ORDERED AND ADJUDGED that judgment is entered in favor of the defendants’ [sic] аnd against the plaintiffs’ [sic].” Illinois asked the district judge to conform the judgment to the jurisdictional holding, so that it could litigate the merits in state court (if more relaxed notions of justiciability prevail there) or on a more propitious occasion (if in the future it should suffer injury). Illinois also wanted the judgment to be explicit that the state-law quo warranto claim had not been addressed at all. The district judge refused to amend the judgment, stating:
Although the opinion [discusses] how plaintiffs lacked standing to pursue their claim even if they had stated one, the primary thrust of the opinion is that plaintiffs failed to state a claim upon which relief could be granted. For that reason, plaintiffs’ federal claim is dismissed for failure to state a claim. Plaintiffs’ state law claims are dismissed, not оn the merits, but for lack of subject matter jurisdiction. Because dismissal for failure to state a claim is a decision on the merits, entry of final judgment was proper.
Because the state-law claim was dismissed for want of jurisdiction (though it would have been more accurate to say that the court relinquished supplemental jurisdiction under
RIPPLE, Circuit Judge, concurring.
This case presents a very unique situation. It calls for a very narrow disposition if we are to avoid unnecessary and questionable twists in difficult areas of law that ought to be decided only when squarely presented by the record. Here, the State of Illinois cannot come close to demonstrating that it has a sufficiently concrete and particularized injury to satisfy the injury prong of Article III standing analysis. See Bennett v. Spear, — U.S. —, —, 117 S. Ct. 1154, 1163, 137 L. Ed. 2d 281 (1997). First, the problem Illinois presents is one of its own making and, as matters stand now, entirely within its оwn powers to remedy. The City of Chicago was only able to create the alleged assault on Illinois’ sovereignty because of the explicit authorization granted to it by Illinois in the IAAA. Because Chicago is a subordinate entity of the State, Illinois may revoke Chicago‘s authority to enter into such agreements by repealing the IAAA or by taking some other legislative аction.
Perhaps more importantly, Illinois can point to no specific action by the Authority that contravenes its laws or threatens, in any immediate way, a concrete interest of the State. Although the Compact appears to claim the authority to take such action,1 as my colleagues note, “a claim of authority differs from an exercise of authority.” Ante at 477. In this setting, that difference is fatal to Illinois’ case. The injury alleged here, an abstract assault on Illinois’ sovereignty by the Authority, is simply too hypothetical at this stage to constitute injury.
The suggestion in the majority‘s discussion that Illinois could never allege sufficient injury to have standing is far too speculative to warrant, or permit, definitive adjudication at this time. Had the Authоrity taken irreversible action, ostensibly preemptive of state law2 and detrimental to the sovereignty of the State of Illinois, the State might well have the sort of injury that would give it standing to obtain a declaration of its rights in federal court. See Illinois Dep‘t of Transp. v. Hinson, 122 F.3d 370, 372 (7th Cir. 1997) (citing Alaska v. United States Dep‘t of Transp., 868 F.2d 441, 443 (D.C. Cir. 1989) for the proposition that a state has standing where it “complains that a federal regulation will preempt one of thе state‘s laws“); see also Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607-08, 102 S. Ct. 3260, 3269, 73 L. Ed. 2d 995 (1982) (stating, in the context of state standing in parens patriae actions, that states have an “interest in securing observance of the terms under which it participates in the federal system“).
Because the disposition of this case properly rests on the threshold issue of standing, it is unnecessary to reach the important and delicate question of whether Illinois would have, given the appropriаte injury, a cause of action under the Compact Clause and
To the extent that my colleagues rest their decision on the absence of a justiciable question becausе Illinois lacks standing, I join the judgment of the court.