In the latest twist to the Obama Presidential Center saga, appeals court judges are questioning whether a lawsuit against the center’s construction in Jackson Park has any standing in federal court — a query they made after they’d already heard oral arguments in the appeal last week.
Following the hearing, the plaintiff, Protect Our Parks, and defendant, the Chicago Park District, received an order to file supplemental briefs addressing whether they have standing to bring their public trust doctrine claim in federal court. The parties were given until June 4 to comply.
The formal order was a surprise request, said Herbert Caplan, founder of the advocacy group Protect Our Parks, particularly considering that not even the defendant had previously challenged the matter of standing.
Judge Amy Barrett, a 2017 appointee to the United States Court of Appeals for the Seventh Circuit, broached the question of jurisdiction during oral arguments, which Caplan said he thought attorney Richard Epstein, arguing the case on behalf of Protect Our Parks, adequately affirmed. Benna Solomon, deputy corporation counsel for the appeals division of the City of Chicago Law Department, concurred that the case had federal standing.
“It was sort of a clue that at least one and maybe the entire panel (Judges Barrett, Daniel Manion and Michael Brennan) is looking for a way to just kind of duck making a decision on the case,” Caplan said. “I think they’re going through the same kind of anxiety that a lot of people have because former President (Barack) Obama is the central figure, even though he’s not a party to the lawsuit, and I think the judges don’t want to get into the middle of anything that smacks of a political dispute, or could turn into a political dispute. I think their desire and their intention is to get rid of this case fast. That’s why I think they’re looking for ways to get rid of it even faster.”
In its appeal, Protect Our Parks seeks to overturn a lower court decision handed down in June 2019, in which U.S. District Judge John Blakey ruled that the Obama Presidential Center could move forward, dismissing the advocacy group’s objections to the use of historic public parkland.
At the crux of Protect Our Parks’ case is the status of Jackson Park as public trust land. Their assertion is that in handing over public trust land to a private entity, for a total of $10 over the course of a 99-year lease, the city is abdicating its fiduciary responsibility.
Blakey ruled it was a fair exchange, stating that the center “surely provides a multitude of benefits to the public” including “a range of cultural, artistic, and recreational opportunities.”
Protect Our Parks begs to differ.
Where the city cites the Obama Center’s footprint at 19 acres, or a mere 3.4% of Jackson Park’s total, it’s more like 90-95% once you subtract the park’s lagoon and driving range and factor in roadwork (like widening Lake Shore Drive to accommodate the center) that would eat up even more land, said Epstein, law professor emeritus at the University of Chicago, during the appeals court hearing.
“This is a massive transfer, disrupting all previous uses,” Epstein said. “This is a transfer of at least a half a billion dollars.”
Barrett countered that the city had already weighed the financial implications, and Solomon referenced the city’s long history of pairing cultural institutions with parks as precedent.
Caplan said there’s more at stake than just the Obama Center’s future in Jackson Park. Blakey’s ruling, he said, creates open season on parks.
“Under the decision that Blakey entered, he said that all the city has to do, to build anywhere on the public property in the public parks, is show that there’s any kind of a benefit, to articulate any kind of a benefit, big, small, disputed or not,” said Caplan. “Which means that if a future mayor decided that they wanted to put a Disneyland on the Oak Street beach, they could do it, and they’d cite Blakey’s opinion as the precedent. So that’s why we’re fighting, and we’re not going to let go until we get a final ruling on the constitutional issues that we’ve raised.”
Regardless of how the appeals court rules, either on the issue of standing or the merits of the appeal itself, Caplan said Protect Our Parks hasn’t exhausted its legal avenues.
Backed by a $200,000 grant from the Logan Foundation for legal fees, Protect Our Parks has the means to take its case all the way to the U.S. Supreme Court, he said.
“It seems from everything I’ve heard, and our experience, I think the defendants in this case think they can outlast us. And all they have to do is just keep resisting our lawsuit and eventually we’ll run out of money, we’ll run out of energy, and we’ll just give up and they will prevail,” Caplan said. “That’s the very thing we’re intent on never doing; we’re not going to just fold.”
While the lawsuit continues to work its way through the courts, construction on the $500 million Obama Center remains on hold, but not altogether stalled. A Federal Highway Administration review of changes to roadways in and around Jackson Park is ongoing, with an emphasis on soliciting feedback from the community regarding how to mitigate the impact of those alterations, as opposed to whether they should occur at all.
“It focuses on suggestions that are the equivalent of moving the deck chairs on the Titanic,” according to the organization Jackson Park Watch, which, like Protect Our Parks, isn’t opposed to the Obama Center itself, but rather its insistence on the Jackson Park site.
“You don’t destroy something that’s good, especially if there’s no need,” said Caplan. “We’re all in favor of an Obama Center, as long as it doesn’t work to destroy what is actually a world famous public park.”
His organization, Jackson Park Watch and Friends of the Parks have all identified a site across from nearby Washington Park as more suitable and less destructive.
“As far as jobs and tourism, if it (the Obama Center) would produce any of that stuff, it would still produce it if it were just a few blocks west in the Washington Park neighborhood,” said Caplan. “It would be like a twofer. You could come in and enjoy Jackson Park for all its natural wonders and then you could go to the Obama Center and enjoy all the knickknacks from the Obama administration. Just move it over several blocks west and then everybody will be happy.”
Contact Patty Wetli: @pattywetli | (773) 509-5623 | [email protected]