OPC appeal not likely to win, expert predicts  

By AARON GETTINGER
Staff writer

Northwestern University law professor Nadav Shoked (Herald file photo)
An expert on local and property law sees a dim future for attempts to overturn Judge John Robert Blakey’s decision to dismiss the Protect Our Parks lawsuit to block the establishment of the Obama Presidential Center (OPC) in Jackson Park.

“It’s clearly a total win for the presidential center. It leaves very little doubt that the judge thought there’s no basis whatsoever for the plaintiffs’ claims,” said Northwestern University Pritzker School of Law professor Nadav Shoked. “I also think that, by-and-large, the decision is correct — not just in its results but also in its in analysis, leaving rather little room, if at all, for any hope on the plaintiffs’ side that anyone would ever reverse the decision.”

On June 11, Judge Blakey, whom former President Barack Obama appointed, listened to an hour of oral arguments at the Dirksen Federal Courthouse between Mark Roth, POP’s attorney, and Michael Scodro of the Mayer Brown law firm, who represented the city. Speaking to a packed courtroom, 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” and dismissed the case.

In a subsequent press conference, Roth said he understood Blakey’s rationales but was still “bitterly disappointed” and “very surprised” by it. He promised to petition the Appeals Court for a stay; POP had filed neither a request for a stay nor a notice of a forthcoming appeal by Herald press time.

Shoked sees little chance for a successful appeal because of both substance and procedure. He said Blakey’s judicial reasoning accepted all the assumptions POP had wanted him to make — that their facts were right, that their “generous”  jurisprudential arguments were well-founded — meaning that his unequivocal rejection makes it very unlikely that the next-higher court will be persuaded by an appeals filing arguing that they should still win on legal standards and analysis.

Construction cannot begin immediately — four federal reviews must conclude in the project’s favor: 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 — but once construction begins, the case would become physically manifested, not abstract. “It’s highly unlikely that anyone will bring a wrecking ball and tear it down,” said Shoked.

POP’s action would come in the weeks or months ahead; if the appeals court declines to issue a temporarily injunction, Shoked said it would be indicative of a forthcoming declination to hear the case. An injunction, however, would portend a months- or years-long delay in OPC construction.

The Obama Foundation has said that groundbreaking will occur sometime this year.

POP president Herb Caplan, a University of Chicago alumnus and Lakeview resident, released a statement on June 12, reiterating his willingness to take the case to the Supreme Court: “Blakey’s ruling is not only wrong, but it raises issues of such constitutional importance that it also sets in place the opportunity for a landmark ruling to benefit citizens experiencing similar recurring abuses throughout the United States.”

Caplan cast ire at former Mayor Rahm Emanuel, saying former President Obama’s one-time chief of staff “contrived a con man’s scheme of property-flipping of protected Jackson Park public property to flip off the controlling law [and] violated his oath of office,” but he also castigated Blakey, pointedly noting that Obama appointed him to the federal judiciary: “He refused to acknowledge the shell game taking place and act to stop it, and he could not resist the hidden influences of all the powerful interests hell bent on stealing Jackson Park to indulge their selfish desires.”

Shoked reacted to Caplan’s insinuations against Blakey’s professionalism with disgust. “To say that a judge is not objective because of who appointed him or her goes against the tenets of our system,” he said. “By definition, our judges are nominated by a given president, and this idea that — because of that, they cannot rule against the position of that president — undermines our whole system of courts.”

Neither is there any historic backing for it, Shoked said, recalling two justices whom President Nixon appointed ruled against him in the landmark, Watergate-era United States v. Nixon decision or that Justice Tom C. Clark voted against President Truman in Youngstown Sheet & Tube Co. v. Sawyer, which prevented him from seizing private property without enumerated constitutional or statutory authority in the face of the 1952 steel strike.

In his 52-page ruling, Blakey said the case’s “facts do not warrant a trial, and construction should commence without delay.” He referenced the footprint of the OPC — 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 observed 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.”

Shoked said Blakey’s decision clarified important points about Illinois law and policy: that public trust doctrine “only really applies to land that’s either submerged underwater … or land that was recently submerged under Lake Michigan” — not to “any park out there.” Blakey also “stressed the fact that there’s no good reason to have judges who are not elected and also not experts deciding what should go in our parks.”

“Those are decisions that are to be made by our elected officials, both the mayor and the aldermen, whom we elect, who also enjoy expertise, because they work with city planners,” Shoked said. “I think that’s an important point moving forward that people understand: that if we’re unhappy with something that our city does — and we should often be unhappy with it — we should deal with it with the democratic process by electing different people or by trying to persuade the Planning Commission.”

a.gettinger@hpherald.com