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In the United States Court of Appeals

for the Seventh Circuit


IN RE CHICAGO PARK DISTRICT
AND THE CITY OF CHICAGO,
Petitioners.
U.S. District Court for the Northern District of Illinois,
Eastern Division
Case No. 14-cv-9096 (Darrah, J.)
PETITION FOR WRIT OF MANDAMUS
Stephen R. Patton
Corporation Counsel
CITY OF CHICAGO
DEPARTMENT OF LAW
30 N. LaSalle, Suite 1230
Chicago, IL 60602
(312) 744-0220

Christopher Landau, P.C.


Jennifer M. Bandy
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, DC 20005
(202) 879-5000

Brian D. Sieve, P.C.


Sydney L. Schneider
KIRKLAND & ELLIS LLP
300 N. LaSalle
Chicago, IL 60654
(312) 862-2000
Counsel for Petitioner City of Chicago

Richard W. Burke
BURKE, WARREN, MACKAY &
SERRITELLA, P.C.
330 N. Wabash Ave., Suite 2100
Chicago, IL 60611
(312) 840-7000
Counsel for Petitioner Chicago Park District
May 4, 2016

TABLE OF CONTENTS

Page

INTRODUCTION ...................................................................................... 1
STATEMENT OF THE ISSUE ................................................................. 4
STATEMENT OF THE CASE .................................................................. 4
SUMMARY OF ARGUMENT ................................................................. 11
ARGUMENT ........................................................................................... 13
Mandamus Is Warranted To Confine The District Court To Its
Lawful Jurisdiction. ....................................................................... 13
A.

Defendants Have No Other Means To Attain The


Requested Relief. ................................................................... 14

B.

Defendants Have A Clear And Indisputable Right To


Relief. ..................................................................................... 18

C.

1.

Plaintiffs Lack Article III Standing. ............................ 18

2.

Plaintiffs Do Not State A Colorable Federal


Claim. ........................................................................... 22

Issuance Of The Writ Is Appropriate To Protect The


City Of Chicago And The Public Interest. ............................ 28

CONCLUSION ........................................................................................ 30

TABLE OF AUTHORITIES
Page(s)
Cases
Abelesz v. OTP Bank,
692 F.3d 638 (7th Cir. 2012)................................... 14, 15, 16, 18, 28, 30
Allied Chem. Corp. v. Daiflon, Inc.,
449 U.S. 33 (1980)................................................................................. 14
Bank Markazi v. Peterson,
136 S. Ct. 1310 (2016)........................................................................... 26
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)............................................................................... 29
Bi-Metallic Inv. Co. v. State Bd. of Equalization,
239 U.S. 441, 445 (1915) ....................................................................... 24
Brotherhood of Locomotive Engrs & Trainmen v.
Union Pac. R.R.,
707 F.3d 791 (7th Cir. 2013)................................................................. 28
CEnergy-Glenmore Wind Farm No. 1, LLC v. Town of Glenmore,
769 F.3d 485 (7th Cir. 2014)................................................................. 28
Cheney v. United States Dist. Ct. for D.C.,
542 U.S. 367 (2004)............................................................. 13, 14, 18, 29
Chicago United Indus., Ltd. v. City of Chicago,
669 F.3d 847 (7th Cir. 2012)................................................................. 23
Collins v. City of Harker Heights,
503 U.S. 115 (1992)............................................................................... 25
DaimlerChrysler Corp. v. Cuno,
547 U.S. 332 (2006)......................................................................... 19, 20
Dibble v. Quinn,
793 F.3d 803 (7th Cir. 2015)........................................................... 22, 24

ii

Engle v. Isaac,
456 U.S. 107 (1982)............................................................................... 25
Gardner v. City of Baltimore Mayor & City Council,
969 F.2d 63 (4th Cir. 1992)................................................................... 28
Hein v. Freedom from Religion Found., Inc.,
551 U.S. 587 (2007)............................................................................... 19
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013)............................................................... 19, 20, 21
In re Ford Motor Co.,
344 F.3d 648 (7th Cir. 2002)................................................................. 15
In re Hijazi,
589 F.3d 401 (7th Cir. 2009)................................................................. 29
In re Lloyds Register N. Am., Inc.,
780 F.3d 283 (5th Cir. 2015)........................................................... 15, 17
In re Page,
170 F.3d 659 (7th Cir. 1999),
op. supplemented, 179 F.3d 1024 (7th Cir. 1999)................................. 29
In re Petition of Boehringer Ingelheim Pharms., Inc.,
745 F.3d 216 (7th Cir. 2014)................................................................. 28
In re Rhone-Poulenc Rorer, Inc.,
51 F.3d 1293 (7th Cir. 1995)........................................................... 17, 18
In re Sandahl,
980 F.2d 1118 (7th Cir. 1992) ............................................................... 17
Indiana Land Co. v. City of Greenwood,
378 F.3d 705 (7th Cir. 2004)................................................................. 25
Krohe v. City of Bloomington,
789 N.E.2d 1211 (Ill. 2003)................................................................... 24
Kvapil v. Chippewa Cnty.,
752 F.3d 708 (7th Cir. 2014)........................................................... 22, 23

iii

Lance v. Coffman,
549 U.S. 437 (2007) (per curiam) ......................................................... 19
Lindner v. Union Pac. R.R.,
762 F.3d 568 (7th Cir. 2014)........................................................... 16, 17
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992)............................................................................... 19
Mansfield, C. & L.M.R. Co. v. Swan,
111 U.S. 379 (1884)............................................................................... 29
Mathews v. Eldridge,
424 U.S. 319 (1976)............................................................................... 22
Miller v. Herman,
600 F.3d 726 (7th Cir. 2010)................................................................. 27
Paepcke v. Public Bldg. Commn of Chicago,
263 N.E.2d 11 (Ill. 1970)............................................... 10, 20, 21, 23, 27
Pro-Eco, Inc. v. Board of Commrs,
57 F.3d 505 (7th Cir 1995).................................................. 24, 25, 26, 27
Rivera v. Illinois,
556 U.S. 148 (2009)............................................................................... 25
Robertson v. Seattle Audubon Socy,
503 U.S. 429 (1992)............................................................................... 26
Roche v. Evaporated Milk Assn,
319 U.S. 21 (1943)................................................................................. 14
Steel Co. v. Citizens for a Better Envt,
523 U.S. 83 (1998)................................................................................. 29
Stein v. KPMG, LLP,
486 F.3d 753 (2d Cir. 2007) .................................................................. 30
United States v. Vinyard,
539 F.3d 589 (7th Cir. 2008)........................................................... 16, 18

iv

Constitution and Statutes


U.S. Const. amend. V .............................................................................. 27
28 U.S.C. 1291 ...................................................................................... 14
28 U.S.C. 1292(b) .................................................................................. 15
28 U.S.C. 1367(a) .................................................................................. 27
28 U.S.C. 1651(a) .................................................................................. 13
70 ILCS 1290/1 1 .......................................................................... 7, 8, 17

INTRODUCTION
There are few areas where federal-court intervention is less
appropriate than local land-use decisions. This case involves one such
decision: the Chicago Park Districts lease of a lakefront site south of
Soldier Field for the construction of a new first-of-its-kind museum in
the world. The Lucas Museum of Narrative Art, which will not require
the expenditure of any public funds, will be dedicated to the collection,
preservation, exhibition, study, and promotion of narrative art and
moving images, from illustration to cinema to the digital media of the
21st century. The City expects the futuristic building, located in the
Citys very heart, to become a Chicago icon, and to burnish the Citys
reputation for bold and innovative architecture. The creation of this
world-class cultural attraction, with incalculable attendant social and
economic benefits, is a matter of enormous importance to the City.
That is why defendants, the City and the Chicago Park District,
now respectfully seek the extraordinary remedy of mandamus.
Plaintiffs

have

absolutely

no

basis

for

invoking

federal-court

jurisdiction here, butabsent mandamusthe district courts denial of


defendants motions to dismiss this lawsuit will derail the entire

project, thereby causing the City and its residents irreparable injury.
The Museum, which is being actively pursued by other cities, is
understandably unwilling to put this project on indefinite hold pending
the final conclusion of this litigation. Both City and state leaders have
done everything possible to bring this important project to fruition.
Federal litigation should not be allowed to thwart local land-use
decisions through a war of attrition.
It is hard to know where to begin with the defects in this case.
Plaintiffs, an organization and two individuals, claim that defendants
violated their asserted beneficial interest in public land by leasing the
lakefront site to the Museum. But plaintiffs lack Article III standing
based on such a generalized interest, which is shared by all other
members of the public. And in any event, plaintiffs federal due-process
claimthe purported basis for federal jurisdiction hereis frivolous,
not only because they have no constitutionally protected property
interest in public property, but because they received all the process
they were due. Indeed, in response to plaintiffs original complaint,
which purported to state a federal due-process claim on the theory that
the Illinois General Assembly had not authorized defendants actions,
2

the General Assembly amended the relevant statute to allow municipal


park districts to lease formerly submerged lands (like the site at issue
here) to museums.

Plaintiffs cannot ask for any more process than

thata democratically elected legislature followed its established


procedures to enact a law.

The district court manifestly erred by

refusing to dismiss that claim on the ground that Plaintiffs have


alleged that, by failing to provide specific approval for the transfer of
the subject land, the General Assembly has acted in violation of
Plaintiffs right to due process. 2/4/16 Mem. Op. & Order [Dkt. 74]
(Tab A), at 6 (emphasis added). Putting aside the fact that the General
Assembly is not even a defendant here, there is no federal due-process
right to a particular degree of specificity in state law.
Defendants recognize that the erroneous denial of a motion to
dismiss is ordinarily insufficient to warrant mandamus relief. But this
is no ordinary case. As noted above, this case involves a public project
of enormous consequence to the City and its residents, andabsent
mandamus reliefthe district courts denial of the motions to dismiss
will kill the project. Only swift vindication of defendants clear and
unequivocal right to dismissal will allow them to retain the Museum.
3

STATEMENT OF THE ISSUE


Whether the district court manifestly erred, and exceeded its
lawful jurisdiction, by refusing to dismiss this federal lawsuit brought
by plaintiffs who lack Article III standing and a colorable federal claim,
where the continuation of this litigation will deprive the City of Chicago
and its residents of a major new cultural attraction.
STATEMENT OF THE CASE
This case arises out of defendants efforts to attract the Lucas
Museum of Narrative Art to Chicago.

The Museum, conceived and

financed by filmmaker George Lucas, will be dedicated to the concept of


art as storytelling and will boast a diverse collection of popular art,
from illustration to comics; fine art, in both traditional and digital
media; and cinema.

See Proposed Ground Lease, First Am. Compl.

(FAC) [Dkt. 63] (Tab B) Ex. A, at Ex. C, p. 49/66. Consistent with its
inspiration, the Museum intends to tell its own stories through
educational programs open to the public; traveling exhibitions that will
bring contemporary art to the City; and film festivals that will regularly
include conversations with filmmakers, scholars, and critics. Id.
The Mayors Lucas Cultural Arts Museum Site Selection Task
Force recommended a site south of Soldier Field. See FAC (Tab B) 13.
4

The site is part of the lakeshore Museum Campus, which features the
Field Museum, the Shedd Aquarium, and the Adler Planetarium. See
FAC (Tab B) Ex. A, p. 1/66. The site consists entirely of lands recovered
from the navigable waters of Lake Michigan, and is currently occupied
by two asphalt parking lots. See FAC (Tab B) 13, 20. On May 20,
2014, the Mayor endorsed the Task Forces recommendation. Id. 14.
In September 2014, defendant Chicago Park District (which owns
the

site)

and

the

Museum

entered

into

Memorandum

of

Understanding. Id. 17. The Memorandum stated that the Museum


would be located on the site recommended by the Task Force. Id. 18.
It further stated that the Park District and the City would cooperate
with the Museum to obtain all necessary permits and approvals. See
Mem. of Understanding, Compl. [Dkt. 1] (Tab C) Ex. A 12.
Plaintiffsa nonprofit advocacy organization and two Illinois
residentsthereafter filed this lawsuit in November 2014 to block the
project.

Compl. (Tab C).

The original complaint claimed that

defendants actions in entering into the Memorandum of Understanding


violated the Due Process and Equal Protection Clauses of the U.S.
Constitution, were ultra vires under Illinois law, and violated the
5

Illinois public-trust doctrine.

Id. 42-56.

The federal due-process

claim rested on the theory that [b]y acting to build or approve the
building of the [Museum] without the prior authorization of the General
Assembly ... Defendants ... will take or deprive or otherwise diminish
the beneficial interest of the Plaintiffs and other citizens in the use of
the trust property. Id. 42.1
On March 12, 2015, the district court denied defendants motion to
dismiss the original complaint. See 3/12/15 Mem. Op. & Order [Dkt. 36]
(Tab D). The court rejected defendants argument that plaintiffs lacked
At the initial status conference, the district court proposed (and
later entered) an order barring defendants, before a February 2015
hearing on defendants motion to dismiss, from making any physical
alteration of the property for the purpose of constructing the Museum
except upon application for leave of court. See 11/25/14 Tr. [Dkt. 82], at
6-8; Order [Dkt. 16]. After that order expired by its terms, the district
court sua sponte reinstate[d] it at a status conference on August 12,
2015, 8/12/15 Tr., at 5, and it remains in force to this day. Defendants
have moved the district court to dissolve the order, which functions as a
preliminary injunction but does not satisfy the requirements of Rule 65,
but the district court declined to address that motion until plaintiffs
(who had the burden of justifying such relief in the first place) have had
a chance to conduct discovery. See Defs. Corr. Mot. to Dissolve Prelim.
Inj. [Dkt. 85]; Corr. Mem. in Support of Mot. to Dissolve Prelim. Inj.
[Dkt. 86]; 3/2/16 Tr. [Dkt. 91], at 13. Regardless of how the district
court ultimately resolves that motion, however, it will not remove the
threat to the project posed by the pendency of this litigation, and thus
does not preempt this motion seeking mandamus review of the district
courts denial of the motion to dismiss.
1

standing and their claims were unripe. See id. at 4-7. As relevant here,
the court held that plaintiffs had a federally protected property right in
the public lands at issue here, and had adequately pleaded a dueprocess claim by alleging that Defendants are transferring control of
the lakefront property to the [Museum] without first obtaining
authorization from the Illinois General Assembly. Id. at 17.
In response to that decision, the General Assembly passed a bill
amending the Park District Aquarium and Museum Act on April 23,
2015, and the Governor signed it into law on May 1, 2015.

See

Amended Act (Tab E), codified at 70 ILCS 1290/1 1. The amended Act
specifically provides that park districts having control or supervision
over any public park or parks, including parks located on formerly
submerged land, are hereby authorized 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. Id.
(emphasis added). A park district may enter into a lease for an initial
term not to exceed 99 years, subject to renewal allowing a corporation
to build and operate such a museum, so long as the lease preserves the
publics right to access the museum grounds and the park districts
7

reversionary interest in the land. See id. Any such museum must also
be available free of charge to Illinois residents 52 days a year and every
day to Illinois schoolchildren accompanied by a teacher. See id.
Consistent with the amended Act, the Park District and the
Museum negotiated a proposed Ground Lease.

Plaintiffs thereafter

amended their complaint. See FAC (Tab B). The amended complaint
alleges that the Ground Lease violates the Due Process Clause of the
Fourteenth Amendment because the amended Museum Act does not
refer specifically to the alienation, forfeiture or disposition of the land
that is the subject of the ground lease, id. 53 (emphasis added), and
the lease of the land under such circumstances would constitute an
unlawful taking of the trust property, id. 67.

The amended

complaint also alleges two ancillary state-law claims: that the Ground
Lease, if allowed to take effect, (1) would be ultra vires under state law
because it was entered without adequate authorization, id. 70; and
(2) would violate the public-trust doctrine by transferring a public asset
belonging to the people of Illinois to a private entity, id. 73.
Shortly after the amended complaint was filed, and following a
public hearing, the Park Districts Board of Commissioner approved the
8

Ground Lease. See Mem. Op. & Order (Tab A), at 2. The Ground Lease
leased a portion of the project area (the Museum Site) to the Museum
for a term of 99 years, subject to renewal. FAC (Tab B), Ex. 1 2.1,
3.1.

It restricted use of the Museum Site to the construction,

maintenance, and operation of the Museum for the benefit of the public,
see id. 2.3, and specified that failure to comply with these
requirements would trigger reversion of the Site (as well as the
building) to the Park District. Id. 3.3, 3.5. The remainder of the
project area, not leased to the Museum, would be converted at the
Museums expense into 200,000 square feet (about five acres) of new,
landscaped green space for public use. Id. 2.13. The Chicago Plan
Commission subsequently approved the Museum, see Municipal Code of
Chicago, 16-4-010, and the City Council authorized a zoning
amendment to permit the construction of the Museum in the project
area, see Mem. Op. & Order (Tab A), at 3.
Meanwhile, defendants moved to dismiss the first amended
complaint.

With respect to plaintiffs federal due-process claim,

defendants argued that (1) plaintiffs had identified no property


interest protected by Due Process Clause of the Fourteenth Amendment
9

and, in any event, (2) the enactment of the amendments to the Museum
Act satisfied any due-process requirements associated with the lease of
the Museum Site.

With respect to the state-law claims, defendants

argued that the action was not ultra vires because it was authorized by
the Museum Act and did not violate the public-trust doctrine because it
conveyed only leasehold, not ownership, rights to the land and did so for
the benefit of the public.
The district court denied the motion. See Mem. Op. & Order (Tab
A). The court reasoned that, under state law, each taxpayer of Illinois
has a fractional beneficial interest in the property that the state of
Illinois holds in trust for them, so as to create a protectable property
interest, and that plaintiffs had adequately pleaded a due-process
claim based on the General Assemblys failure to refer specifically to the
land subject to the Ground Lease. Id. at 5-6 (citing Paepcke v. Public
Bldg. Commn of Chicago, 263 N.E.2d 11, 18 (Ill. 1970)). The court
concluded that plaintiffs had adequately pleaded that the action was
ultra vires for the same reason, id. at 9, and had adequately pleaded a
violation of the public-trust doctrine by alleging that the Ground Lease
removed public-trust land from the States control, see id. at 12-13.
10

After the denial of their second motion to dismiss, defendants


sought to resolve this dispute consensually by exploring an alternative
site for the Museum at the Lakeside Center at McCormick Place East.
See 5/2/16 Defs. Unopposed Mot. to Stay Case [Dkt. 104]. Under that
proposal, the Museum would have remained on the lakefront but would
have replaced an existing building, and created twelve acres of new
parkland owned by the Park District but maintained by the Museum at
its sole expense. See id. 2-3. To allow the parties time to pursue
that proposal, defendants filed an unopposed motion to stay this
litigation. Id. On the following day, however, the Executive Director of
plaintiff Friends of the Parks publicly announced that the organization
opposed the proposal.

See Decl. of Christopher Landau, Exs. A-C

(Tab F). Accordingly, defendants immediately withdrew their motion.


See 5/3/16 Notice of Withdrawal of Mot. [Dkt. 107].
This petition follows.
SUMMARY OF ARGUMENT
Mandamus

is

an

extraordinary

remedy,

but

this

is

an

extraordinary case. At issue here is the fate of one of Chicagos most


important civic projects in decades. Extraordinary relief is necessary to
11

confine the district court to its lawful jurisdiction, because this


litigation has no basis in law or fact and, if allowed to proceed, will
irreparably harm the City and its residents.

Each of the three

conditions for mandamus relief is amply satisfied.


First, mandamus represents defendants only means to attain the
requested relief. They cannot immediately appeal the district courts
denial of the motion to dismiss, but must await the final conclusion of
the entire litigation in the district court, which may be years away.
Such delay will irreparably harm the City and the public, as the
Museumwhich is being actively pursued by other citiesis unwilling
to put the project on such indefinite hold.
Second, defendants have a clear and unequivocal right to relief.
As a threshold matter, plaintiffs lack standing to pursue this litigation
in federal court: their alleged injury is common to every other member
of the public, and thus insufficient to satisfy Article III. In addition,
they have no colorable federal due-process claim on the merits, as they
lack a constitutionally protected private property interest in the public
property at issue here, and, in any event, were afforded all the process
they were due when the Illinois General Assembly enacted a statute
12

authorizing the Ground Lease. In the absence of any colorable federal


claim, plaintiffs have no business burdening the federal courts with
their state-law land-use claims. The district court therefore manifestly
exceeded its jurisdiction by refusing to dismiss this action.
And third, issuance of the writ is appropriate here because the
public interest will suffer a grievous blow if private plaintiffs are
effectively allowed to use litigation to veto a major public project. All
relevant authoritiesincluding the Park District, the City, the General
Assembly, the Mayor, and the Governorhave manifested their
approval of this project, and, absent mandamus relief, the incalculable
public benefits the project offers the City and its residents will be lost.
ARGUMENT
MANDAMUS IS WARRANTED TO CONFINE THE DISTRICT
COURT TO ITS LAWFUL JURISDICTION.
The common-law writ of mandamus against a lower court is
codified at 28 U.S.C. 1651(a): The Supreme Court and all courts
established by Act of Congress may issue all writs necessary and
appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles of law. Cheney v. United States Dist. Ct. for
D.C., 542 U.S. 367, 380 (2004). The traditional use of this writ by
13

appellate courts has been to confine [the court against which


mandamus is sought] to a lawful exercise of its prescribed jurisdiction.
Id. (quoting Roche v. Evaporated Milk Assn, 319 U.S. 21, 26 (1943)); see
also Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). Because
the writ is one of the most potent weapons in the judicial arsenal, three
conditions must be satisfied before it may issue. Cheney, 542 U.S. at
380 (internal quotation omitted).

The party seeking the writ must

establish (1) that it has no other adequate means to attain the relief
[it] desires; (2) that it has a clear and indisputable right to the
issuance of the writ; and (3) that the writ is appropriate under the
circumstances. Id. at 380-81. Each of these conditions is met here.
A.

Defendants Have No Other Means To Attain The


Requested Relief.

This petition is defendants only means to obtain appellate review


of plaintiffs claims before this litigation kills the project entirely.
Defendants cannot obtain appellate review of the district courts
denial of their motion to dismiss. Such a ruling is not immediately
appealable as either a final judgment or a collateral order. See, e.g.,
Abelesz v. OTP Bank, 692 F.3d 638, 651 (7th Cir. 2012); 28 U.S.C.
1291. Defendants could seek certification of an interlocutory appeal
14

under 28 U.S.C. 1292(b), but such certification lies entirely within the
district courts discretion in the first instance, and a request for such
relief is not a prerequisite to mandamus relief, see, e.g., In re Ford
Motor Co., 344 F.3d 648, 654 (7th Cir. 2002); cf. In re Lloyds Register N.
Am., Inc., 780 F.3d 283, 288 & n.1 (5th Cir. 2015) (Section 1292(b) is
not an adequate substitute for mandamus.).
Nor does the prospect of an appeal at the conclusion of the
litigation provide defendants with an adequate means to obtain the
desired relieffull dismissal of the suits against them. Abelesz, 692
F.3d at 652. The district court has shown no inclination to resolve this
case on an expedited basis; indeed, in response to defendants proposed
scheduling order, which suggested expedited proceedings, the court
responded that I have 400 pending cases and expedited basis is a
relative term. If you want to contact the other 399 people and ask if you
can go first, be my guest.

2/17/16 Tr. [Dkt. 83], at 5.

The court

informed the parties that, with respect to discovery, my inclination is


to order both sides to produce anything the other side thinks is
relevant. Id. at 4. The current scheduling order does not set a trial
date, but contemplates preliminary proceedings at least through
15

November 2016.

See Order [Dkt. 94].

Even if defendants were to

prevail in those preliminary proceedings (or in a subsequent trial),


appellate proceedings would be expected to linger through the following
year. The Museum, which is now being courted by other cities, has
specified that it is not willing to place this project on hold for an
indefinite period of time to allow this litigation to run its course in the
district court and on appeal over the next several years. See Decl. of
Angelo A. Garcia (Tab G) 11-12.
This is not a case, in other words, where litigants seek mandamus
merely to avoid the expense and inconvenience of litigation.

Cf.

Lindner v. Union Pac. R.R., 762 F.3d 568, 572-73 (7th Cir. 2014).
Rather, defendants seek mandamus because there will be no more
litigation absent such extraordinary relief, because the Museum will
abandon its efforts to locate in Chicago, thereby mooting this dispute.
Cf. Abelesz, 692 F.3d at 652-53 (granting mandamus relief where
district courts erroneous denial of motion to dismiss may place intense
pressure on the defendants to settle); see also United States v. Vinyard,
539 F.3d 589, 591 (7th Cir. 2008) (The [mandamus] petitioner must
ordinarily demonstrate that something about the order, or its
16

circumstances, would make an end-of-case appeal ineffectual or leave


legitimate interests unduly at risk.) (quoting In re Rhone-Poulenc
Rorer, Inc., 51 F.3d 1293, 1294 (7th Cir. 1995)). Absent mandamus, in
other words, the prospect of relief is not just expensive but effectively
unobtainable. Lloyds, 780 F.3d at 289. Under these circumstances,
the consequences of denying [mandamus] review are much greater
than those ordinarily attending the rules barring piecemeal appeals.
Lindner, 762 F.3d at 573.
The loss of the Museum would cause the City and its residents
irreparable harm. In re Sandahl, 980 F.2d 1118, 1119 (7th Cir. 1992)
(emphasis omitted; equating such harm with the lack of an adequate
remedy by way of direct appeal or otherwise). As noted above, the
Museum will offer a unique collection of popular art, with a focus on the
boundless potential of the digital medium. It will be open for free to
Illinois residents 52 days each year and to schoolchildren accompanied
by a teacher every day. See 70 ILCS 1290/1. It will conduct public
outreach and education about its collection, see FAC (Tab B) Ex. A, Art.
1, and will provide the public with access without charge to a new
education center, library, and observation deck, id. 2.3, along with five
17

acres of new park land, id. Recital J. Its unique focus and mission is
expected to draw visitors from all over the world.

If the Museum

abandons this project, Chicago will be unable to replace it.


B.

Defendants Have A Clear And Indisputable Right To


Relief.

Defendants also have a clear and indisputable right to the relief


requesteddismissal of these claims.

Cheney, 542 U.S. at 380-81

(internal quotation omitted); see also Abelesz, 692 F.3d at 651 (granting
mandamus where, among other things, petitioners right to relief was
crystal clear); Vinyard, 539 F.3d at 591 (mandamus warranted where,
among other things challenged order so far exceed[s] the proper
bounds of judicial discretion as to be legitimately considered usurpative
in character, or in violation of a clear and indisputable legal right, or, at
the very least, patently erroneous) (quoting Rhone-Poulenc, 51 F.3d at
1295). That demanding standard is readily satisfied here.
1.

Plaintiffs Lack Article III Standing.

As a threshold (and dispositive) matter, plaintiffs lack standing to


pursue any of their claims in federal court, and the district court has
manifestly exceeded its jurisdiction by entertaining this lawsuit. The
core component of the requirement that a litigant have standing to
18

invoke the authority of a federal court is an essential and unchanging


part

of

the

case-or-controversy

requirement

of

Article

III.

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

To satisfy this

requirement, a plaintiff must prove that he has suffered a concrete and


particularized injury that is fairly traceable to the challenged conduct,
and is likely to be redressed by a favorable judicial decision.
Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013). A concrete and
particularized injury is the antithesis of a general interest common to
all members of the public. Lance v. Coffman, 549 U.S. 437, 440 (2007)
(per curiam) (emphasis added) (internal quotation omitted). For that
reason, courts have repeatedly rejected taxpayer standing. See, e.g.,
Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 593 (2007);
DaimlerChrysler, 547 U.S. at 345-46.
Plaintiffs have identified no concrete and particularized injury-infact.

The only interest they assert is common to millions of other

members of the public: a beneficial interest in the disposition of public


property. If they can sue here, then any of Illinois 12.8 million people
can sue to block any public project on any public property. Just as
19

affording state taxpayers standing to press such challenges ... would


interpose the federal courts as virtually continuing monitors of the
wisdom and soundness of state fiscal administration, contrary to the
more

modest

role

Article

III

envisions

for

federal

courts,

DaimlerChrysler, 547 U.S. at 346 (internal quotation omitted), so too


would affording members of the public standing based on a beneficial
interest in public property.
The district court, however, held that plaintiffs have standing to
bring this federal lawsuit because the Illinois Supreme Court has
allowed members of the public to pursue public-interest claims under
state law.

See 3/12/15 Mem. Op. & Order (Tab D), at 5-6 (citing

Paepcke, 263 N.E.2d at 18).

But a state cannot confer Article III

standing in the absence of Article III injury; that is the lesson of the
U.S. Supreme Courts recent decision in Hollingsworth. See 133 S. Ct.
at 2665. That case involved a challenge to Californias Proposition 8,
which defined marriage as between a man and a woman. California
officials refused to defend the law, and the official proponents of
Proposition 8 intervened to defend it.

Id. at 2660.

Although the

California Supreme Court had held that the intervenors were


20

authorized under California law to appear and assert the states


interest in the validity of Proposition 8, the U.S. Supreme Court
concluded that such authorization was insufficient to confer Article III
standing. Id. at 2664 (internal quotation omitted). The intervenors
were private parties whose only interest in the matter was the type of
generalized grievance suffered by every citizen in the State when its
duly-enacted laws are enjoined. Id. at 2662-63. A State, in other words,
cannot by ipse dixit create Article III standing where it otherwise would
not exist.
The lesson of Hollingsworth applies here.

The only interest

plaintiffs claim is an interest as members of the public in lands held in


trust for the public. See, e.g., FAC (Tab B) 48 (Plaintiffs and other
Illinois citizens will suffer an irreparable injury to their beneficial
interest in the property held in trust for them by the State of Illinois.).
Regardless of whether that interest allows plaintiffs to sue in state
court, see Paepcke, 263 N.E.2d at 18, it does not allow them to sue in
federal court. Because the concrete injury alleged by plaintiffsthat
public property is imminently in danger of being altered by the actions
of public officials, 3/12/15 Mem. Op. & Order (Tab D), at 6, is shared by
21

all other members of the public, plaintiffs lack Article III standing, and
the district court exceeded its jurisdiction by concluding otherwise.
2.

Plaintiffs Do Not State A Colorable Federal


Claim.

Although plaintiffs lack of standing is a sufficient ground on


which the district court should have dismissed the case, it is far from
the only such ground. In addition, plaintiffs federal due-process claim
is meritless on its face, and there is no basis for the district court to
exercise supplemental jurisdiction over the state-law claims.
As a threshold matter, plaintiffs federal due-process claim
requires them to identify a private property interest protected by the
Fourteenth Amendment. See, e.g., see Kvapil v. Chippewa Cnty., 752
F.3d 708, 713 (7th Cir. 2014); see generally Mathews v. Eldridge, 424
U.S. 319, 335 (1976). That Amendment itself does not create such an
interest; rather, that provision protects property interests that are
created and defined by existing rules or understandings that stem from
an independent source such as state law. Dibble v. Quinn, 793 F.3d
803, 808 (7th Cir. 2015) (internal quotation omitted). To rise to the
level of a constitutionally protected property interest, a plaintiff must
identify a secure and durable property right, a legitimate claim of
22

entitlement. Kvapil, 752 F.3d at 713 (quoting Chicago United Indus.,


Ltd. v. City of Chicago, 669 F.3d 847, 851 (7th Cir. 2012)).
Plaintiffs asserted beneficial interest in the public property at
issue here does not remotely satisfy this standard. Although, as noted
above, the Illinois Supreme Court has held that plaintiffs have standing
under state law to sue based on an alleged violation of the public-trust
doctrine, the Court based that holding on a state-law public property
right. See Paepcke, 263 N.E.2d at 17-18. The Court did not hold that
members of the public have a legally protected private property right in
public property; to the contrary, the Paepcke Court rejected precisely
such a claim.

See id. at 16-17 (rejecting argument that plaintiffs,

owners of land adjoining public parks, had a private property right to


continuation of park use). Plaintiffs interest in public property in their
capacity as members of the public does not amount to a secure and
durable property right, a legitimate claim of entitlement, Kvapil, 752
F.3d at 713 (internal quotation omitted), as a matter of law.
And even if plaintiffs had the requisite private property interest,
their federal due-process claim would fail as a matter of law because
they received all the process they were due. Governing bodies may
23

enact generally applicable laws, that is, they may legislate, without
affording affected parties so much as notice and an opportunity to be
heard. Pro-Eco, Inc. v. Board of Commrs, 57 F.3d 505, 513 (7th Cir
1995); see also Dibble, 793 F.3d at 809. That is because the rights of the
public are protected in the only way that they can be in a complex
society, by their power, immediate or remote, over those who make the
rule. Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441,
445 (1915).

The Ground Lease was executed pursuant to generally

applicable legislation passed by the General Assembly and signed by


the Governor. That legislation granted clear textual authority to the
Park District to enter into the Ground Lease, and indeed the whole
point of that legislation was to clear up the legal uncertainty created by
the district courts decision to deny the original motion to dismiss in this
case. See Illinois 99th General Assembly 4/23/15 Sen. Tr. 107, 109 (Tab
H); see also Krohe v. City of Bloomington, 789 N.E.2d 1211, 1214 (Ill.
2003) ([A] statutes legislative history and debates are valuable
construction aids in interpreting an ambiguous statute.) (internal
quotation omitted). Any process plaintiffs were due with regard to lease
of the Museum Site was satisfied.
24

It is no answer to assert, as have plaintiffs, that both the General


Assembly and the City violated the public-trust doctrine.

Such an

assertion does not establish a federal due-process violation. At most,


plaintiffs assert a mere error of state law, and such an alleged error is
not a denial of due process. Rivera v. Illinois, 556 U.S. 148, 158 (2009)
(quoting Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982)); see also Indiana
Land Co. v. City of Greenwood, 378 F.3d 705, 711 (7th Cir. 2004) ([A]n
error of state law is not a violation of due process.); Pro-Eco, 57 F.3d at
514 (same).

It follows that the district courts observation that

[p]laintiffs have alleged that, by failing to provide specific approval for


the transfer of the subject land, the General Assembly has acted in
violation of Plaintiffs right to due process does not support the courts
conclusion that Plaintiffs have sufficiently stated a procedural dueprocess claim under the Fourteenth Amendment. Mem. Op. & Order
(Tab A), at 6. Without identifying any procedural flaw that renders the
Ground

Lease

fundamentally

procedural due-process claim.

unfair,

plaintiffs

cannot

state

(Plaintiffs have not advanced, and

realistically could not advance, a substantive due-process claim. See,


e.g., Collins v. City of Harker Heights, 503 U.S. 115, 125-29 (1992).)
25

Certainly, nothing in the Due Process Clause entitles plaintiffs to


a more specific statute than the one enacted by the Illinois General
Assembly in response to the district courts denial of the original motion
to dismiss in this case; to the contrary, if anything, the more specific a
statute, the greater the federal due-process concern that the legislature
is crossing the line from legislating to adjudicating. See, e.g., Bank
Markazi v. Peterson, 136 S. Ct. 1310, 1322-23 (2016); Robertson v.
Seattle Audubon Socy, 503 U.S. 429, 438-41 (1992). As this Court has
recognized, [t]he fact that a statute (or statute-like regulation) applies
across the board provides a substitute safeguard. Pro-Eco, 57 F.3d at
513 (internal quotation omitted). It is only when legislation affects
only a tiny class of peoplemaybe a class with only one member that
this Court has expressed due-process concerns. Id. (internal quotation
omitted). Plaintiffs contention that the General Assembly denied them
due process by promulgating a generally applicable law, rather than a
rifle-shot provision directed at this specific parcel of land, thus turns
federal due-process law upside down.
And plaintiffs federal due-process claim fares no better insofar as
it is based on a takings theory. Plaintiffs allege that the transfer of the
26

trust property on the terms set forth in the 99-year ground lease and
future leases without any adequate, fair or reasonable compensation
from the [Museum] for the use of trust property and without the
approval of the General Assembly constitutes an unlawful taking of the
trust property by the local defendants from the plaintiffs and people of
Illinois. FAC (Tab B) 67. The district court did not address that
allegation in its order denying defendants motion to dismiss, and for
good reasonit hardly merits a response. The Takings Clause protects
private property [from] be[ing] taken for public use, without just
compensation.

U.S. Const. amend. V (emphasis added).

Because

plaintiffs have no private property interest in the public property at


issue here, see, e.g., Paepcke, 263 N.E.2d at 16-17, there can be no
taking as a matter of law, see, e.g., Pro-Eco, 57 F.3d at 508-12.
In light of plaintiffs failure to state a colorable federal claim,
there is no basis for federal jurisdiction here, and the entire lawsuit,
including the supplemental state-law claims, should be dismissed. See
28 U.S.C. 1367(a); Miller v. Herman, 600 F.3d 726, 738 (7th Cir.
2010).

That is particularly true in the context of a local land-use

dispute. Precisely because federal courts ... are not zoning boards of
27

appeal ... [s]tate and local land-use decisions are entitled to great
deference when constitutional claims are raised in federal court.
CEnergy-Glenmore Wind Farm No. 1, LLC v. Town of Glenmore, 769
F.3d 485, 487 (7th Cir. 2014); see also Gardner v. City of Baltimore
Mayor & City Council, 969 F.2d 63, 68 (4th Cir. 1992) ([F]ederal courts
should be extremely reluctant to upset the delicate political balance at
play in local land-use disputes.). In the absence of a colorable federal
claim, this Court should not allow a district court to act as a roving
land-use commission under state law, particularly where, as here, the
fate of a major public project hangs in the balance.
C.

Issuance Of The Writ Is Appropriate To Protect The


City Of Chicago And The Public Interest.

Although not every egregious denial of a motion to dismiss will


warrant the issuance of a writ of mandamus, see, e.g., Abelesz, 692 F.3d
at 651, this one does.

It fits squarely within the traditional use of

mandamus to confine a lower court to the lawful exercise of its


jurisdiction, id. (internal quotation omitted); see also In re Boehringer
Ingelheim Pharms., Inc., 745 F.3d 216 (7th Cir. 2014); Brotherhood of
Locomotive Engrs & Trainmen v. Union Pac. R.R. Co., 707 F.3d 791,
794-95 (7th Cir. 2013); In re Page, 170 F.3d 659 (7th Cir. 1999), op.
28

supplemented, 179 F.3d 1024 (7th Cir. 1999), and issuance of the writ is
both necessary and appropriate to protect the public interest.
This case only highlights the importance of this historic role for
the writ. Without jurisdiction the court cannot proceed at all in any
cause. Steel Co. v. Citizens for a Better Envt, 523 U.S. 83, 94 (1998)
(internal

quotation

omitted).

Indeed,

[t]he

requirement

that

jurisdiction be established as a threshold matter spring[s] from the


nature and limits of the judicial power of the United States and is
inflexible and without exception. Id. (quoting Mansfield, C. & L.M.R.
Co. v. Swan, 111 U.S. 379, 382 (1884)). To allow a suit to proceed in the
clear absence of federal jurisdiction is worse even than allowing a
plaintiff with a largely groundless claim to take up the time of a
number of other people, with the right to do so representing an in
terrorem increment of the settlement value.

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 558 (2007) (internal quotation omitted). It is to


aggrandize the federal courts at the expense of the Constitution and the
federal balance of power. Just as separation-of-powers concerns may
weigh in favor of a writ of mandamus, Cheney, 542 U.S. at 382, In re
Hijazi, 589 F.3d 401, 411 (7th Cir. 2009), federalism concerns also
29

should weigh in favor of the writ, see also Stein v. KPMG, LLP, 486 F.3d
753, 761 (2d Cir. 2007) ([T]he assertion of ancillary jurisdiction over
matters that are otherwise outside the jurisdiction conferred by the
Constitution and the Congress can be justified only by compelling needs
arising in the exercise of the jurisdiction that is conferred.).
Federalism concerns are particularly compelling here, where the
litigation goes to the heart of local autonomy and state sovereignty.
The land in question is owned by the Chicago Park District pursuant to
state law. The elected representatives of the people of Illinois have
authorized the Park District to lease that land for the construction of
museums. To allow a federal court to exceed its jurisdiction to meddle
in a sensitive land-use issue would be troubling enough. To allow it to
do so when it might cause the City of Chicago and the State of Illinois to
lose this Museum would be devastating.

In these extraordinary

circumstances, defendants respectfully submit that a writ of mandamus


is both necessary and appropriate. See Abelesz, 692 F.3d at 653.
CONCLUSION
For the foregoing reasons, this Court should grant a writ of
mandamus directing the district court to dismiss this case.
30

May 4, 2016

Respectfully submitted,
/s/ Christopher Landau

Stephen R. Patton
Corporation Counsel
CITY OF CHICAGO
DEPARTMENT OF LAW
30 N. LaSalle Street, Suite 1230
Chicago, IL 60602
(312) 744-0220

Christopher Landau, P.C.


Jennifer M. Bandy
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, DC 20005
(202) 879-5000
Brian D. Sieve, P.C.
Sydney L. Schneider
KIRKLAND & ELLIS LLP
300 N. LaSalle Street
Chicago, IL 60654
(312) 862-2197

Counsel for Petitioner City of Chicago


Richard W. Burke
BURKE, WARREN, MACKAY &
SERRITELLA, P.C.
330 N. Wabash Ave., Suite 2100
Chicago, IL 60611
(312) 840-7000
Counsel for Petitioner Chicago
Park District

CERTIFICATE OF SERVICE
I hereby certify that, on May 4, 2016, the foregoing petition was
served by hand on the following:
The Hon. John W. Darrah
U.S. District Court for the Northern District of Illinois
Everett McKinley Dirksen U.S. Courthouse
219 South Dearborn Street
Chicago, IL 60604
(312) 435-5619
Thomas H. Geoghegan, Esq.
Michael P. Persoon, Esq.
Sean Morales-Doyle, Esq.
77 West Washington St., Suite 711
Chicago, IL 60602
(312) 372-2511
/s/ Christopher Landau
Christopher Landau, P.C.
KIRKLAND & ELLIS LLP
655 Fifteenth Street, NW
Washington, DC 20005
(202) 879-5000
clandau@kirkland.com

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