Judge dismisses lawsuit against OPC; opponents vow to appeal

Protect Our Parks President Herb Caplan (left to right) and Attorneys Mark Roth and Robert Fioretti speak with the press after Federal Court Judge John Robert Blakey ruled that the Obama Presidential Center construction in Jackson Park could move forward. (Photo by Marc Monaghan)

By AARON GETTINGER
Staff writer

DIRKSEN FEDERAL COURTHOUSE — A federal judge dismissed Protect Our Parks’ (POP) lawsuit against the city and the Chicago Park District on Tuesday, clearing a key roadblock to the establishment of the Obama Presidential Center (OPC) in Jackson Park.

Judge John Robert Blakey, whom former President Barack Obama appointed to the bench, listened to an hour of oral arguments between Mark Roth, POP’s attorney, and Michael Scodro of the Mayer Brown law firm, who represented the city. It was standing room only in the courtroom, and Blakey allowed spectators to sit in the jury box.

In the end, Blakey said that the matter was “not a difficult case” to decide and that “the facts are clear.” He called Jackson Park “a park, and not a nature preserve.” While noting that both sides had come before him with good intentions, he dismissed the case.

POP president Herb Caplan, an attorney, University of Chicago alumnus and Lakeview resident who filed the suit, was extremely critical of the ruling.

“The consequences of what was just done today is probably the most damaging legal decision that we could possibly have, because the impact of his ruling means that the city now can take any of the lakefront public parks and, at its discretion, turn it over to private entitles,” Caplan said. “If this decision today were to be upheld, and I’m certain it will not be, it’s in effect destroying the entire public lakefront parks system that we’ve spent hundreds of years trying to preserve and protect.

“As far as the question about the land involved, this is probably the biggest land theft since the Canarsee Indians were persuaded to turn over title to Manhattan to the Dutch for a handful of beads. We’re not going to allow this to happen.”

Roth said the plaintiffs are disappointed with the ruling and that it is not what they expected. “The case lives on,” he said, “and we will live to fight another day.”

Roth said he understood Blakey’s rationales but that neither he nor his client agreed with them. He said that they would appeal. “We need to obtain a stay, because I believe that the 7th Circuit [Court of Appeals] will act with dispatch,” he said in a press conference. “I’m bitterly disappointed, quite honestly, and I’m very surprised the decision came today.”

The ruling means the OPC has cleared a major hurdle towards its construction, but it is far from the final one. Still ahead are four federal reviews: one examining the impact on a historic site, one to gauge the environmental impact, one required because the park is a recreational center, a historic site and a waterfowl refuge, and the fourth to assure that any park land that is lost is replaced elsewhere by the city.

Blakey issued his 52-page written ruling later Tuesday afternoon, noting that “the facts do not warrant a trial, and construction should commence without delay.” He noted that the OPC site is 19.3 acres, or 3.5% of Jackson Park, and that the Obama Foundation’s $10, 99-year use agreement with the city “prohibits the Foundation from using the OPC for political fundraisers or in any manner inconsistent with its status as a tax-exempt entity,” with the city able to terminate the agreement should the Foundation cease to use it for permitted purposes.

He then analyzed the arguments before him, each time favoring the defendants over Protect Our Parks. The gist of the lawsuit concerned the public trust doctrine: that the state holds land in trust for public use. Coincidentally, the case originated out of a dispute over the Illinois Central Railroad, whose successor still runs through Hyde Park, and navigable waterways. Land formerly submerged under Lake Michigan is subject to public trust protection, but Blakey determined that the OPC site has been above water for the past 4,000 years.

Nevertheless, Blakey also noted that state courts have extended the public trust doctrine to Chicago parkland because a 1869 law had granted a predecessor of the Chicago Park District its land “for the recreation, health and benefit of the public, and free to all persons forever.”

“Illinois courts have time and again made clear that museums and other structures — including those with fees — fall within permissible public park purposes and thus do not violate the 1869 Act,” Blakey wrote. He gave deference to the Illinois General Assembly, which amended the state’s Park District Aquarium and Museum Act to authorize cities and park districts “to purchase, erect and maintain … presidential libraries, centers and museums” within public parks.

“The OPC surely provides a multitude of benefits to the public,” Blakey wrote, mentioning its cultural, artistic and recreational opportunities such as a Chicago Public Library branch, spaces for athletic events and the improvement it will bring to Jackson Park. He cited a 1976 state court case that allowed financing for government-owned Soldier Field because of the benefits it would bring to the public.

“In short, if improvements to a football stadium sufficiently benefit the public, the OPC must, too,” he wrote.

Blakey pointedly shot down many of POP’s claims. He rejected their characterization of the OPC’s mission, that it “seeks to preserve and enhance the legacy of the former president and his wife,” as an “attempt to twist this [educational] public benefit into a private purpose.”

He said their “dispute whether Jackson Park is ‘the best’ location for the OPC” — POP had frequently called the Obama Foundation’s decision arbitrary— was misguided: “Illinois law imposes no obligation upon this court to revisit the cost–benefit assessments of state and local lawmakers or otherwise sift through impact studies.”

That the city will charge the Foundation only $10 for use of the site “is also unavailing because, in short, Illinois law controls this case” — state law does not “require the city to charge a ‘reasonable rent’” — and “this court declines to ignore controlling Illinois law in favor of an unprecedented rule.”

He discounted a charge of a violation of due process under the 5th Amendment, that private property cannot be taken without “just compensation,” because “no unconstitutional taking can occur where, as here, the relevant property is already public.”

Louise McCurry, president of Jackson Park Advisory Council, called the ruling a “major victory for our children.” She said it would bring badly needed facilities, jobs and access to Jackson Park.

Obama Foundation CEO David Simas released a statement later on Tuesday: “We are thrilled with the City’s victory and grateful to all of those in Chicago and beyond who have believed in this project and made their voices heard every step of the way. Our vision for the Obama Presidential Center has always been one where the location reinforces the project’s core aims: a celebration of history, a place of connection and engagement for the public, and an investment in community.

“We couldn’t be more excited to move forward on our plans, arm in arm with our neighbors in Chicago, ready to bring investment and jobs to the South Side.”

Mayor Lori Lightfoot also released a statement: “The court today made unequivocally clear that this project may be located in Jackson Park, marking a significant step forward in this historic project and for our entire city. I am committed to ensuring that this community hub creates unprecedented cultural opportunities and economic growth on the South Side.”

“I look forward to working with community stakeholders and the Obama Foundation to ensure that neighboring communities share in this growth,” she said. “Toward that important end, I look forward to meeting with community stakeholders and the Obama Foundation to resolve remaining issues so that the benefits of this important project can be shared by all.”