Prof predicts OPC lawsuit will fail ultimately

Prof Nadav Shoked (Photo courtesy of Northwestern University)

By AARON GETTINGER
Staff Writer

The federal judiciary will permit or deny the construction of the Obama Presidential Center (OPC) in Jackson Park, after district court judge John Robert Blakey decided the plaintiffs in Protect Our Parks v. Chicago Park District have standing to sue under the public trust doctrine. He did not rule on the lawsuit’s merits; his was a procedural response to the defendants’ motion to dismiss the lawsuit.

But the development comes as an unmistakable blow to the defendants, the Obama Foundation and other OPC supporters. Whichever way Blakey eventually rules — and he has indicated a decision will come quickly — the decision will be appealed, further tying up the massive investment into the South Side that has tested the patience of all involved.

In an interview with the Herald last summer, Northwestern University law professor Nadav Shoked, whose areas of expertise include local government and property law, predicted that the case would ultimately fail. He still believes that it will, but “the portion that [Blakey] kept — that is to say the part of the claim he’s willing to move forward with — is the one that’s probably most problematic to the Center.”

“In the last couple of days, the Center has tried to put a positive twist on this, but this was not a win for them,” Shoked said. “Again, the caveat is that it’s a preliminary decision. It’s procedural, and the judge highlighted the fact that he said nothing about the merits.”

“Again, it’s way too early to say that the Center is dead.”

An Obama Foundation spokesperson reiterated the organization’s position that the lawsuit is without merit on Tuesday, Feb. 19, when Blakey’s word came out: “We are confident that our plan for the Obama Presidential Center is consistent with Chicago’s rich tradition of locating world-class museums in its parks, and we look forward to developing a lasting cultural institution on the South Side.”

Ed Siskel, the city’s corporation counsel, said the defendants “are pleased that the court dismissed some of the claims and made clear that the proceedings will move forward expeditiously.”

But Mark Roth, the plaintiffs’ attorney, said Blakey “entered a very detailed and considered ruling.” “The vast majority of the claims remain,” Roth said, “and we will aggressively litigate those claims.”

Protect Our Parks president Herbert Caplan called the city’s use agreement with the Obama Foundation for the OPC a charade. “All the land-flipping is just a calculated way to avoid the legal restrictions that exist,” he said. “All the procedural manipulations that have taken place are really irrelevant, because it was illegal from the very beginning.”

Asked if his lawsuit was in any way provoked by personal animosity to former President Barack Obama, Caplan said it was not, that he was an independent.

“We don’t care if it was Donald Trump or St. Benedict on the legal issue, because we think that’s important. Whatever happens with respect to this in Jackson Park would be a precedent for further invasions of the public parks system,” he said, adding that they would drop their lawsuit if they Obama Foundation would abandon plans to build in Jackson Park.

“We were hoping that somehow the city would be stimulated to want to enter into discussions with us. We were waiting for the right moment to formally back them into a corner and say, ‘This is what we would like to accomplish,’” Caplan said. He hopes Blakey’s decision will make the defendants “more agreeable to form a compromise, which basically is simply just relocating to one of the other locations.”

Caplan rejected comparisons between the film director George Lucas’ Museum of Narrative Art, which abandoned a lakefront location in favor of Los Angeles in the face of court challenges, and the OPC, because of Obama’s connections to the South Side.

“Frankly, I think the people who think that [Obama] is so narrow-minded and petty that, if he couldn’t build in this one spot, in Jackson Park, that he would pick up his marbles and leave town, I think they do a disservice to former President Obama,” Caplan said. “He announced that his desire was to benefit the people who live on the South Side, so why would he suddenly pick up and leave when he could build anywhere he wanted on the South Side and benefit the people who live there?” He said people who fear that the lawsuit will provoke the OPC’s departure from the South Side “are insulting the former president.”

Erin Adams, a South Shore resident and head of Southside Together for Hope, disagrees and thinks that, if the city and Park District lose, the OPC will relocate out of the South Side.

“Whether it be in Chicago or another state is our huge concern, but also if it’s moved to Washington Park, we have to think about South Shore and Woodlawn, how the benefits are going to change for those communities,” she said. “People talk about using different locations. They don’t really realize that that folds very much into this discussion about community benefits agreements and where the job training is going to be focused.”

“The community is really our main concern at this point,” Adams said. “This is a major investment for our community.”

At a Feb. 21 meeting of the community development organization 1Woodlawn, Apostolic Church of God pastor Byron T. Brazier tried to assuage attendees’ concerns.

“I don’t want anyone in this room to be worried about what the outcome may or may not be. Whatever we’re doing together here will continue, even if they have to move the library someplace else, which I don’t believe they will,” he said. “But if that were to happen, this — 1Woodlawn, the Network of Woodlawn and everything that you’ll hear today — will continue, because we have the self-determination to make what we envision actually happen.”

Blakey did reject some of the plaintiffs’ claims. He rejected the plaintiffs’ standing on the basis of an aesthetic and environmental harm, saying the individual plaintiffs “fail to allege that they use, visit or enjoy Jackson Park in any way; and that the alleged aesthetic and environmental harm will affect them personally.”

The plaintiffs argued that their city tax dollars will go towards subsidizing the messaging of a prominent Democrat’s presidential center and museum, which they called a free speech violation. Blakey rejected this, saying the Chicago plaintiffs’ First Amendment standing claim “rests upon multiple levels of wild factual speculation,” agreeing with the defendants that the government will not fund the OPC’s construction or upkeep and that the Obama Foundation is to be strictly limited in its actions by their use agreement with the city.

Blakey rejected Wilmette, Illinois, plaintiff Charlotte Adelman’s First Amendment standing regarding the supposed free speech issue, because she does not pay Chicago taxes. He rejected the other plaintiffs’ First Amendment standing because their “claim rests upon multiple levels of wild factual speculation,” agreeing with the defendants that the government will not fund the OPC’s construction or upkeep and that the Obama Foundation is to be strictly limited in its actions by their use agreement with the city government.

But Protect Our Parks does have standing on the public trust doctrine as it exists under Illinois law. “The reason I think it doesn’t bode well for the Center is that, at least implicitly, the court was applying [that] there’s a public trust doctrine, and the core argument of the Center, which I personally believe is correct, is that this space is not covered by the public trust,” Shoked said. “The first line of defense for the Center has faltered.”

Nevertheless, the defendants still have arguments to make, and, again, Blakey has not ruled that the land upon which the OPC is to be built is covered by the public trust doctrine. Shoked identified three possible outcomes:

  • That Blakey will rule the land is not covered by the doctrine
  • That he will rule it is covered, but the OPC can be admissibly built there
  • That it is covered, and the OPC cannot be built there

Operating under the assumption that the planned OPC campus in Jackson Park is in public trust, Shoked said the defendants will claim that the OPC will remain government property. Under the use agreement the City Council passed last fall, the Obama Foundation will build the OPC, but it will remain owned by the city. The Obama Foundation will occupy the campus for 99 years for $10, and their use is subject to strong stipulations.

Blakey could decide that the OPC is in the public’s interest — Shoked said this is the judge’s decision to make — and therefore permissible under the public trust doctrine.

The public trust doctrine is complicated. It holds that certain properties held by the government are different because the government holds them on behalf of the public at large and cannot give them over to private entities. The doctrine coincidentally originates in the U.S. Supreme Court’s 1892 decision in Illinois Central Railroad Co. v. Illinois; the Illinois Central tried to lay tracks on lakefront formerly submerged under Lake Michigan and could not grant title unless the grant did not impair the public interest or if it improved the public trust. Land under public trust must remain open to the public at large.

Shoked said Protect Our Parks is arguing that the public trust doctrine applies to parkland, even though the public trust doctrine generally only includes shorelines and areas once underwater.

He suspects Protect Our Parks will lose because the Illinois General Assembly amended the state’s Museum Act to specifically allow presidential centers in parkland. He said there is nothing in the Illinois Constitution about the public trust doctrine.

“The grounding for the claim that the park is covered by the public trust doctrine and hence the state legislature cannot decide to put a presidential center on it is very weak,” Shoked said. Protect Our Parks’ claim is that the public trust doctrine includes parks in general, not just lake-adjacent Jackson Park.

Shoked said the 7th District Court of Appeal has not ruled recently on a case like Protect Our Parks v. Chicago Park District and that all the cases Blakey cited also were decided in district court. The appeals court will likely issue its own ruling if Blakey’s decision is appealed and establish precedence.

Since Blakey is likely to just rule on the legal arguments and evidence before him, Shoked said his decision come out in March. If Protect Our Parks loses, construction on the OPC can begin, provided ongoing federal historical and environmental reviews conclude, unless the appeals court issues a temporary injunction staying Blakey’s ruling.

“The real obstacle here often ends up being just a delay. If the process plays out — you get all the decisions, you get all the appeals — I think it’s very important to say that two courts, including a court of appeal with more than one judge, will decide that this is illegal. It’s so unlikely given the law,” Shoked said.

“Given how the law has been applied, for the last basically hundred years, the argument of the plaintiffs just doesn’t have a lot of grounding in existing law,” he continued. “Of course, courts can always change law, even without saying so, so that’s why we can’t commit to anything. But it does seem unlikely that given the long precedent in the field that you’d find enough judges, including in the court of appeal, who would be willing to go with such an innovative interpretation in a doctrine that could have very far reaching in its effects.”

a.gettinger@hpherald.com