Professional Documents
Culture Documents
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.
B.
C.
1.
2.
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
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
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
(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
Id. 42-56.
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.
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.
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.
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
is
an
extraordinary
remedy,
but
this
is
an
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.
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.
The court
November 2016.
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
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
(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.
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
modest
role
Article
III
envisions
for
federal
courts,
See 3/12/15 Mem. Op. & Order (Tab D), at 5-6 (citing
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
all other members of the public, plaintiffs lack Article III standing, and
the district court exceeded its jurisdiction by concluding otherwise.
2.
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).
Such an
Lease
fundamentally
unfair,
plaintiffs
cannot
state
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.
Because
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.
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
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
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
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