By AARON GETTINGER
Before construction begins, the Obama Presidential Center’s federal Section 106 environmental and historical review processes must conclude in its favor, and a lawsuit filed by the conservation group Protect Our Parks that aims to block its construction in Jackson Park must fail.
An expert on the law and theory of property and local government law expects that it will.
Northwestern University Pritzker School of Law professor Nadav Shoked said that the City will likely file a response to the lawsuit asking the U.S. District Court for the Northern District of Illinois for a summary judgment saying that the plaintiffs have no claim, likely because there is no legal basis for their demands.
If the case is thrown out, the plaintiffs can appeal. Shoked called the likelihood that the U.S. Court of Appeals for the Seventh Circuit would take up the case “exceptionally unlikely.”
The lawsuit hinges on the claim that the City and the Chicago Park District do not have the authority to transfer parkland to the Obama Foundation, a nongovernmental agency, because such an action would be a violation of municipal and state statutes. When sites in Chicago were bidding to host Obama’s presidential library, the Illinois General Assembly modified statute to allow the Park District to give land for the establishment of presidential libraries.
“At least on its face, the statutes are on the city’s side,” said Shoked. “If they’re going after what states did with the statutes, they’re very likely to not succeed because courts in the United States are not particularly willing to interfere on procedural grounds with legislative processes.”
Shoked expects that this is the reason the lawsuit alleges a free speech violation, that, because the Center’s work will be political, taxpayers cannot be compelled to fund it. He called the First Amendment argument “far from clear.”
While the federal Supreme Court’s decision in Janus v. AFSCME last week ruled that public sector employees cannot be compelled to pay union dues in part because of the unions’ political activity, the distinction here is that public sector workers had no choice in representation. The statutes affecting the Obama Presidential Center (OPC) were drafted, however, by freely elected legislative bodies.
“It’s kind of a ludicrous claim, because it means that anything the City does can be struck down on a constitutional claim,” Shoked said. “The City is elected, so if we are unhappy with what they are doing with our tax moneys, we will not elect them.”
Shoked is similarly dubious about the plaintiffs’ due process claims.
“It’s kind of problematic, because the park belongs to everyone. It doesn’t belong to them,” he said. He said due process harms are usually to specific people.
While some have drawn parallels between the plans for the Lucas Museum of Narrative Art and the OPC, Shoked said that the core claim in the former’s case, the doctrine of public trust, was at play because its designated site was once under Lake Michigan.
“All the precedent that we have as pertains to the lakefront in Chicago doesn’t really apply [to the OPC],” he said.
While the Lucas Center relocated as a result of the “war of attrition” waged against it by its opponents, the Friends of the Parks nonprofit, in court Shoked said that the ruling against the Lucas Museum would likely not have stood on appeal and that, by moving to Los Angeles, Lucas simply washed his hands of the matter.
Shoked does not expect the same to occur with the OPC.
Should the Court rule that the state and local actions regarding statutes were procedurally invalid, Shoked simply expects the governmental bodies to redo the actions in accordance with the ruling’s parameters.
“The caveat is when there is success, the success is going to be much smaller. They’re not going to block the thing for the full time,” he said.
While not a legal precedent, a fight over the construction of President Bill Clinton’s presidential library ended with a unanimous Arkansas Supreme Court vote upholding the municipal means of seizing private land through eminent domain to turn into parkland to house the facility.
When asked how the Obama Foundation was responding to the lawsuit, a spokesman said, “Our focus is on the federal review process and continuing to engage with the public on our plans for this historic presidential center and museum that will benefit the public, drive economic opportunity and showcase the South Side to the world.”
“The Foundation is not named in the suit, but we are following it with due attention,” he continued. “We believe that our design is appropriate for the location and that the Center will enhance Jackson Park and create significant public value and new opportunities for this community — both to enjoy the park and benefit from economic development.”
The next Section 106 meeting is scheduled for this month, with the process continuing through December.