Opposition Brief — Broeckl v. Chicago Park District
Supreme Court brief1990
Ask Donna
What actually matters in this document.
Text
somnty
re ie D
No. 89-1146 {| FEB 2 199
“TOSEPAFSFANOL,
In The
Supreme Court of the United States
@ctober Cerm, 1989
THOMAS E. BROECKL, JAMES A. BROWN AND
ROBERT D. PHELPS III, INDIVIDUALLY, AND ON
BEHALF OF THOSE SIMILARLY SITUATED,
Petitioners
THE CHICAGO PARK DISTRICT,
A UNIT OF LOCAL GOVERNMENT,
Respondent
BRIEF FOR THE CHICAGO PARK DISTRICT IN
OPPOSITION TO THE PETITION FOR
A WRIT OF CERTIORARI
GEORGE F. GALLAND, JR
Davis, Miner, BARNHILL
& GALLAND, P.C.
14 West Erie Street
Chicago, Illinois 60610
(312) 751-1170
Counsel for Respondent
American Reprographics Management, Inc.™ (312, 332-2764
’
Or.
AS\
x
—
i
QUESTIONS PRESENTED
1. Whether petitioners have waived their right to have this
Court review the constitutionality of a municipal fee system under
the Fourteenth Amendment’s Equal Protection Clause, when
petitioners deliberately refrained in the courts below from relying
on that Clause and instead based their equal protection claim
solely on the Illinois Constitution’s equal protection provision.
2. Whether the L[llinois Supreme Court correctly held that
the Chicago Park District has a rational basis for charging
nonresidents of Chicago a higher price than it charges residents
to rent recreational boat moorings in the District's harbors.
3. Whether petitioners’ “public trust doctrine” theory presents
any federal question so as to invoke the appellate jurisdiction
of this Court.
ul
TABLE OF CONTENTS
QUESTIONS PRESENTED .........------+eeeeeereeeees i
Pig). oh ty 0. eee Rey oe Tere ory l
STATEMENT OF THE CASE ........-----e-eeceeeecreeeee 2
REASONS FOR DENYING THE PETITION ........------. 4
A. Petitioners Have Waived Their Federal Equa!
Protection Argument .........----++eeeeeeeeeecees i
RB. Petitioners’ New Federal Equal Protection
Claim Has No Merit in Any Case.......-..---+---- 6
C. Petitioners’ “Public Trust Doctrine”
Argument Presents No Federal Claim ........ ... 10
COMIC TINIE 6. os on nccvcctodeuevscdesaccndevneeunessoes Bm
MITES, 6 k.kéc06 cv awcsincadewenene! Zope eaeee asses ee
1. Table of Authorities and pages 12-29 from
petitioners’ opening brief in the Illinois
Supreme Court .........----eee eee ereerereeereees la
9 Table of Authorities and pages 12-20 from
petitioners’ reply brief in the Illinois Supreme
CNS sacces gb dswecebaae are ee
SS ee er ee
TABLE OF AUTHORITIES
Cases: Page
Baldwin v. Fish and Game Commission of Montana,
ne ee ewercccvcoececccecs 6,7,9
Bankers Life & Cas. Co. v. Crenshaw, U.sS.——-,
Ne acedccecccoccvccvccscces &
Borough of Neptune City v. Borough of Avon-By-The-Sea,
294 A.2d 47,61 N.E.2d 296 (1972) ....... ccc ccc ccccccces 11
Broecki v. Chicago Park District, 170 Dl.App.3d 1063,
524 N.E.2d 1045 (1st Dist. 1988) ...............ccccecccceeee 8
Broeckl v. Chicago Park District, l.2d , 044
ee lee pccncebevocecovcceovcoess 4
County Board of Arlington, Va. v. Richards, 434
ee da sock bccecéecesceeveces 8
Gibson v. Unites States, 166 U.S. 269 (1897) ................ 10
Martinez v. Bynum, 461 U.S. 321 (1983) ................... 6-9
Michigan v. Long, 463 U.S. 1032 (1983) ...................-. 4
Oregon v. Corvallis Sand & Gravel Co., 429 U.S. 363
GE 10
People ex rel. Scott v. Chicago Park District, 66 01.2d
I WOOO ns crn wcccccvccvcccecececves 11
Phillips Petroleum Co. v. Mississippi, U.S. ——.,
re 10, 11
Shapiro v. Thompson, 394 U.S. 618 (1968) ........... Geass 7,8
Starns v. Malkerson, 401 U.S. 985 (1971), summarily
affirming 326 F.Supp. 234 (D.Minn. 1970) ................. 7
Sturgis v. Washington, 414 U.S. 1057 (1970), summarily
affirming 368 F Supp. 38 (N.D. Wash. 1973) ............... 7
Vlandis v. Kline, 412 U.S. 441 (1973) ........ 0c cee eee eee. 6
Webb v. Webb, 451 U.S. 493 (1983) ..... 00 eee ee eee eee! 5
CONSTITUTIONAL PROVISIONS AND STATUTES
United States Constitution,
Fourteenth Amendment,
Equal Protection Clause ............:eseecesereeveces
Illinois Constitution of 1970,
PE I © 60 0 ont 3s 600 ccteds Hh ocnders sennvnees 3
FN bo oo cs ce cdece cd eiseietesncsdesseonsaeces l
Ill. Rev.Stat. ch. 105,
| kl SSPRPPEETTTTeT TT Terrier erie 2
[ll.Rev.Stat. ch. 105,
EE aa verktvcckeecraCoesvarescessecccosvareebseter? 2
lil. Rev.Stat. ch. 105,
EN Sc s'icdcdbvdcdiceseasan bidet Sacdsieassesyaxes 2
a
No. 89-1146
In The
Supreme Court of the United States
@ctober Germ, 1989
THOMAS E. BROECKL, JAMES A. BROWN AND
ROBERT D. PHELPS III, INDIVIDUALLY, AND ON
BEHALF OF THOSE SIMILARLY SITUATED,
Petitioners
THE CHICAGO PARK DISTRICT,
A UNIT OF LOCAL GOVERNMENT,
Respondent
BRIEF FOR THE CHICAGO PARK DISTRICT IN
OPPOSITION TO THE PETITION FOR
A WRIT OF CERTIORARI
JURISDICTION
The judgment of the Illinois Supreme Court was entered on
September 20, 1989. Petitioners purport to base jurisdiction of
this Court on 28 U.S.C. §1257(a), which gives this Court juris-
diction to review State court final judgments construing the
constitutionality of a State statute under the federal Constitution.
Respondent Chicago Park District denies that this Court has
jurisdiction. The petition purports to seek this Court’s review of
2
the constitutionality of an Illinois statute (1) under the Fourteenth
Amendment’s Equal Protection Clause, and (2) under the Lllinois
“public trust doctrine.” The District’s position is that by failing
to make their Fourteenth Amendment claim in the courts below,
petitioners waived their right to present it to this Court. The
District further asserts that petitioners’ “public trust doctrine”
claim presents no federal question.
STATEMENT OF THE CASE
Petitioners filed this class action in an [llincis State court
to challenge the fees charged by the Chicago Park District for
renting boat moorings in the District’s recreational harbors along
Lake Michigan. Petitioners presented two challenges to the fees.
First, petitioners asserted that the District was required to set
the level of the fees at “cost.” The “at cost” claim, which petitioners
lost, invoked only Illinois law and is not asserted in the petition.
Second, petitioners challenged the District’s 25% fee surcharge
for nonresidents of Chicago. The trial court held this surcharge
unconstitutional, but the Appellate Court of Illinois reversed, and
the Supreme Court of-Illinois affirmed the Appellate Court.
Petitioners seek this Court’s review.
The facts are not disputed. The Chicago Park District is an
Illinois municipal corporation. It owns and operates Chicago’s
park system. The District finances its operations primarily by
taxes levied on property within the city limits of Chicago.
Ill.Rev.Stat. ch. 105, §§333.19, 333.39.
The Illinois legislature has authorized the District to
construct recreational boat harbors along Lake Michigan and
to charge boaters for the use of harbor facilities. Jd., §333.23n.
The same statute provides that “fees charged to nonresidents
need not be the same as fees charged to residents of the district.”
Id., §333.23n(g). Pursuant to this authorization, the District has
constructed over 5,000 boat moorings in eight recreational
harbors. It rents those moorings to boaters on a seasonal basis.
Its fee levels are competitive with those of other marinas on Lake
Michigan. To the basic seasonal fee, the District adds a 25%
surcharge (the “nonresident surcharge” ) for nonresidents of
Chicago. This price distinction is the only measure taken by the
District to promote its own residents’ access to its harbor
+ enenenenne enti
3
moorings. Notwithstanding the surcharge, about half the
moorings have been rented by nonresidents of Chicago.
Petitioners’ complaint in the trial court listed various federal
and Illinois constitutional provisions that were allegedly violated
by the nonresident surcharge. Among these, petitioners listed
the federal Constitution’s Privileges and Immunities Clause, Art.
IV, §2; the Fourteenth Amendment’s Equa! Protection Clause;
and various provisions of the Illinois Constitution. Petition 33a.
The complaint’s single mention of the federal Equal Pro-
tection Clause was the last time petitioners invoked that Clause
in this litigation until they filed their petition for certiorari in
this Court. Although their complaint mentioned the Equal
Protection Clause, the only federal constitutional provision
actually argued by petitioners to the trial court was the Privileges
and Immunities Clause. On October 7, 1985, the trial court held
unconstitutional the nonresident surcharge and the statute
authorizing it. The court did not state what provision of what
Constitution the surcharge offended. Petition 27a.
The District appealed this ruling to the Illinois Appellate
Court. In defending the trial court’s ruling, petitioners did not
argue that the nonresident surcharge offended the federal Equal
Protection Clause. As in the trial court, the only federal con-
stitutional provision petitioners argued in the Appellate Court
was the Privileges and Immunities Clause. The Appellate Court,
reversing the trial court, upheld the constitutionality of the
nonresident surcharge. Broeckl v. Chicago Park District, 170
Ill. App.3d 1063, 524 N.E.2d 1045 (1st Dist. 1988), Petition 14a-
23a.
Petitioners appealed to the Illinois Supreme Court. Once
again, the only federal constitutional provision invoked by
petitioners was the Privileges and Immunities Clause. Petitioners’
briefs in the Illinois Supreme Court did not argue, or even mention,
the federal Equal Protection Clause. (The relevant sections of
those briefs are reprinted as an appendix to this brief.) Petitioners
made an equal protection argument, but expressly limited that
argument to the equal protection guarantee contained in the
Illinois Constitution. See pp. 12a-15a and 33a-35a, infra.
4
The [llinois Supreme Court affirmed the Appellate Court’s
ruling upholding the constitutionality of the nonresident
surcharge. Broeckl v. Chicago Park District, ___ Il.2d ___, 544
N.E.2d 792 (1989), Petition la-13a. First, the court held that as
Illinois residents, petitioners had no standing to invoke the federal
Constitution’s Privileges and Immunities Clause. 544 N.E.2d at
110, Petition 10a. Second, the court rejected petitioners’ equal
protection challenge. Although petitioners had based their equal
protection argument only on the Illinois constitutional provision,
the court stated that the surcharge was constitutional not only
under that provision but under the federal Equal Protection
Clause as well. Jd. at 111, Petition 1la-12a. Third, the court rejected
petitioners’ contention that the surcharge violated the Illinois
“public trust doctrine.” Jd. at 111, Petition 12a.
REASONS FOR DENYING THE PETITION
There are three reasons to deny this petition. First, petitioners
have waived their claim that the nonresident surcharge violates
the Fourteenth Amendment’s Equal Protection Clause, because
they failed to present that claim in the courts below. Second,
aside from being waived, petitioners’ equal protection arguments
present no issue worth this Court’s review. Third, the other theory
offered by petitioners - that the nonresident surcharge violates
the “public trust doctrine” - presents no federal question, but
is an issue of Illinois law.
A. Petitioners Have Waived Their Federal
Equal Protection Argument
In the Appellate Court and Supreme Court of Illinois,
petitioners carefully avoided relying on the Fourteenth Amend-
ment’s Equal Protection Clause. Instead, they limited their equal
protection argument to the Illinois Constitution’s equal protection
guarantee. This decision was a deliberate gamble. Petitioners
hoped that the Illinois Supreme Court would avoid relying on
the federal Constitution and would instead strike down the
surcharge under the Illinois Constitution. Such a result, resting
solely on a State constitutional guarantee, could have insulated
petitioners from further review by this Court. See Michigan v.
Long, 463 U.S. 1032, 1040-1041 (1983).
+ ieee eee me
5
However, petitioners’ gamble failed. They lost in the Illinois
Supreme Court. They now want this Court to review the federal
equal protection claim that for tactical reasons they suppressed
below.
Such a tactic is impermissible. To have this Court review
their federal equal protection claim, petitioners must have
“adequately presented” that claim in the State courts. Webb v.
Webb, 451 U.S. 493, 496-497 (1983). Petitioners did not present,
much less “adequately present,” their federal equal protection
claim in the Illinois courts. To the contrary, in the [Illinois
Appellate and Supreme Courts, they suppressed that claim. They
thereby waived their right to present the federal claim to this
Court. See Bankers Life & Cas. Co. v. Crenshaw, __ U.S. __,
108 S.Ct. 1645, 1650 (1988): “At the minimum, there should be
no doubt from the record that a claim under a federal statute
or the federal Constitution was presented in the State courts...”
(emphasis in original).
Any other holding would place litigants in a posture of “heads
I win, tails you lose.” Litigants like petitioners could bring equal
protection challenges based solely on State constitutional
guarantees, knowing that if they win, they could prevent review
by this Court, but that if they lose, they could switch to an
analogous federal theory and get review by this Court.
In rejecting petitioners’ [llinois equal protection claim, the
Illinois Supreme Court stated that the nonresident surcharge also
passed muster under the federal Equal Protection Clause as well.
Petition, lla. This comment is a pure example of a dictum: a
statement seeming to decide a claim that petitioners had
deliberately refrained from asking the court to decide. Such a
dictum does not change the fact that petitioners deliberately
avoided relying on the federal Equal Protection Clause in the
courts below. That conduct waived their right to obtain review
under the Clause in this Court. That waiver is not excused by
the Illinois Supreme Court’s reference to the federal Clause in
its decision.
6
B. Petiti ers’ New Federal Equal Protec-
tion Ciaim Has No Merit in Any Case
Petitioners’ claim under the federal Equal Protection Clause
would have no merit even if it had been preserved for review.
Classifications based on residency pass equal protection
muster if they have any rational basis. Martinez v. Bynum, 461
U.S. 321, 325-326 (1983); Baldwin v. Fish and Game Commission
of Montana, 436 U.S. 371, 379 (1979). As the Illinois Supreme
Court held, the surcharge is supported by an eminently rational
basis.
First, the surcharge rationally helps the District promote its
own residents’ access to scarce harbor moorings. This Court has
repeatedly held that when a governmental jurisdiction constructs
facilities for public use, it has a rational basis under the Equal
Protection Clause for favoring its own residents’ use of those
facilities. Vlandis v. Kline, 412 U.S. 441, 452-453 (1973); Martinez
v. Bynum, 461 U.S. 321, 328 (1983). On similar grounds, in
Baldwin v. Fish & Game Commission of Montana, supra, this
Court held that the state of Montana had a rational basis for
preserving its own citizens’ access to the finite supply of elk in
the State. 436 U.S. at 388-390. This Court therefore rejected an
Equal Protection Clause attack on Montana’s huge nonresident
surcharge on hunting licenses for elk.
Vlandis, Martinez, and Baldwin demolish plaintiffs’ equal
protection claim. As the Illinois Supreme Court noted, the
District’s harbor moorings are a finite resource. Just as a school
district may constitutionally favor its own children’s access to
limited school facilities (Martinez), and just as Montana may
constitutionally use fee distinctions to preserve the state’s finite
game supply for the benefit of its own residents (Baldwin), the
Chicago Park District may constitutionally impose a modest
surcharge on nonresidents as an allocation device to preserve
its own residents’ access to the finite supply of harbor moorings.
Second, the nonresident surcharge is a rational method of
compensating for nonresidents’ lesser contribution to the physical
and administrative infrastructure that makes the harbors
possible. This Court has repeatedly affirmed lower courts who
=
/
upheld, using this rationale, the constitutionality of nonresident
surcharges. See Starns v. Malkerson, 401 U.S. 985 (1971),
summarily affirming 326 F.Supp. 234 (D.Minn. 1970) (three-judge
court); Sturgis v. Washington, 414 U.S. 1057 (1970), summarily
affirming 368 F.Supp. 38 (N.D. Was. 1973) (three-judge court).
In Baldwin, supra, this Court noted that Montana’s 2,500%
nonresident surcharge for elk hunting licenses could be justified,
among other reasons, on this ground. This Court wrote that only
Montana residents contributed, with their taxes, to the infras-
tructure that made elk hunting possible. 436 U.S. at 389.
As the Illinois Supreme Court held, this rationale justifies
the nonresident surcharge. The Chicago Park District’s harbors
are embedded in, and depend on, a magnificent park system
that Chicago residents support with their taxes and nonresidents
do not. Moreover, the taxes paid by Chicago’s residents support
not only this physical infrastructure, but also an expensive
administrative infrastructure. The harbors demand continuous
attention from the District’s top management, its financial
officers, its Department of Personnel, its Law Department, its
construction tradesmen, its security department, and more. The
nonresident surcharge rationally helps compensate for the fact
that Chicago residents’ taxes support this infrastructure.
Petitioners’ arguments against these rational bases for the
mooring surcharge have no merit. First, petitioners claim that
this Court has held that “a state cannot discriminate between
its citizens based soley [sic] on past payment of real estate taxes.”
Petition at 12, citing Shapiro v. Thompson, 394 U.S. 618 (1968).
Shapiro holds no such thing. It involved a challenge not to a
bona fide residency requirement, but to a durational residency
requirement for receiving welfare benefits. Bona fide residency
requirements base distinctions on where people live; durational
residency requirements base distinctions on how long people have
lived where they do. Unlike bona fide residency requirements,
durational residency requirements sometimes implicate the right
to travel, as the requirement did in Shapiro. They therefore can
be subjected to a higher standard of scrutiny under the Equal
Protection Clause. Martinez v. Bynum, supra, 461 U.S. at 325-
326, 328 n.7. Using this heightened standard, Shapiro declined
to sustain a durational residency requirement for welfare on the
8
ground that the plaintiffs had not paid past taxes in the
jurisdiction affording the benefits.
But as to bona fide residency requirements, things are
different. This Court routinely upholds bona fide residency
requirements on the rationale that residents pay more to support
local facilities and services than nonresidents pay. See Martinez
v. Bynum, supra, 461 U.S. at 325-329, which refused to apply
the holding of Shapiro v. Thompson to a bona fide residency
requirement that charged tuition to nonresident schoolchildren
but not to resident schoolchildren.
Second, petitioners claim that a municipality may not
constitutionally favor its own residents’ use of “public property”
over nonresidents’. Petition at 14. No citation is given for this
assertion; none exists. Martinez and other cases hold precisely
the opposite. See, e.g., County Board of Arlington, Va. v. Richards,
434 U.S. 5, 7 (1977), which upheld a municipal ordinance that
denied nonresidents the right to park on certain streets.
Third, even though this Court’s decisions recognize the
District’s interest in promoting its own citizens’ access to scarce
facilities, petitioners claim that “rather than being scarce and
limited facilities, the moorings are an expanding asset.” Petition
at 15. Petitioners ask this Court to take “judicial notice” of a
flyer in which the District discusses a plan to increase the number
of moorings. Petitioners airily claim that there are “unused miles
and miles” of Lake Michigan shoreline where new harbors could
be built. -
It is hard to imagine a poorer argument. While the District
may build more moorings in the future, those moorings will
continue to be limited-capacity facilities whose supply is exceeded
by the demand for them. Indeed, it is the heavy demand for
these scarce moorings that may induce the District to undertake -
the huge investment needed to build new harbors. The record
in this case shows that demand for these moorings has sub-
stantially exceeded the supply, resulting in waiting lists. Petition
at 37a. Nothing in the record suggests that this will not continue
to be true. So long as it is, the District may legitimately take
steps to keep its own citizens from being crowded out of the
harbors by nonresident boaters. The allocation measure it has
9
thus far chosen — a modest price break to Chicago residents
— is a highly rational means of carrying out this permissible
government objective.
Fourth, petitioners try to distinguish Baldwin by arguing
that its rationale is applicable only to discrimination by States
against citizens of another State. Petition at 16. Nothing in
Baldwin supports this reading. Petitioners confuse Baldwin’s
discussion of the Equal Protection Clause with its entirely
separate discussion of the Privileges and Immunities Clause. The
Court’s discussion of the Privileges and Immunities Clause
necessarily focused on State discrimination against citizens of
other States, since that is the only kind of discrimination that
the Clause deals with. But in discussing the validity of Montana’s
nonresident surcharge under the Equal Protection Clause, this
Court upheld the surcharge for reasons that are applicable to
residency requirements imposed by any level of government,
whether federal, state, or local. 436 U.S. at 389. And other
decisions of this Court have applied the equal protection principles
discussed in Baldwin to residency discrimination by municipal-
ities. See Martinez v. Bynum, supra.
Fifth, petitioners suggest that upholding the District’s
nonresident surcharge will invite municipalities to use such
surcharges to discriminate on the basis of race. Petition at 18.
The answer to this argument is that petitioners have never alleged
that the Chicago Park District imposes its nonresident mooring
surcharge for that purpose.
Sixth, petitioners say that an Illinois constitutional provision
known as the “Uniform Fees” clause requires this Court to treat
residency as a “suspect” classification, and therefore requires
the nonresident surcharge to be subjected to “strict scrutiny”
under the federal Equal Protection Clause. Petition at 17, 20-
21. No authority or logic supports this attempt to have the Illinois
tail wag the federal dog. Federal law, not State law, dictates
which classifications are “suspect” under the Fourteenth
Amendment. As discussed above, bona fide residency is not a
“suspect” criterion under the Equal Protection Clause. It
implicates no “fundamental right” and receives only the usual
“rational-basis” review underthe Clause. As the Illinois Supreme
10
Court rightly held, the District’s nonresident surcharge easily
passes that review.
C. Petitioners’ ‘‘Public Trust Doctrine’’
Argument Presents No Federal Claim
The Illinois Supreme Court rejected petitioners’ argument
that the nonresident surcharge violates [linois’ “public trust
doctrine.” Petitioners seek this Court’s review of that holding,
claiming that it “conflicts” with holdings by courts in other States.
Petition at 18-19. However, the holding is purely one of linois
law, so that this Court has no appellate jurisdiction to review
it.
The “public trust doctrine” originated in the common law.
Under English common law, title to lands under navigable or
tidal waters was held by the King in trust for public use. In
America, title to such lands passed after independence to the
United States, subject to the same public trust. This Court held
early on that when States were admitted to statehood, they
acquired title to these “public trust lands,” subject to a paramount
“navigational servitude” in favor of the United States to insure
that they remain available for navigation. See Phillips Petroleum
Co. v. Mississippi, __ U.S. ___, 108 S.Ct. 791, 796 (1988); Oregon
v. Corvallis Sand & Gravel Co., 429 U.S. 363, 375-376 (1977).
Once a State has acquired title to public trust lands, federal
law in general ceases to govern the use of those lands. In Oregon
v. Corvallis Sand & Gravel Co., supra, this Court held that issues
of ownership of a State’s public trust lands are governed by the
law of the State, not by federal common law. And this Court
has long made it clear that “the individual States have the
authority to define the limits of the lands held in public trust
and to recognize private rights in such lands as they see fit.”
See Phillips Petroleum Co. v. Mississippi, supra, 108 S.Ct. at 794.
Federal law impinges on State-owned public trust lands in
only two limited particulars. First, such lands remain subject
to a “navigational servitude” in favor of the United States. See
Gibson v. United States, 166 U.S. 269, 271-272 (1897). Second,
in land title disputes between States and private citizens, it is
sometimes necessary to determine whether certain lands were
11
in fact public trust lands owned by the United States at the
time Congress passed the statehood act admitting the State in
question. If they were, then the State acquired title to them
through the federal statehood act, and the private claimants lose.
See, e.g., Phillips Petroleum Co. v. Mississippi, supra.
Neither of these federal issues, of course, is involved in this
lawsuit. No one claims that the Chicago Park District’s price
_ structure for the seasonal rental of boat moorings interferes with
the paramount right of the United States to assure the continued
navigability of Lake Michigan. And this case raises no issue
of whether title to the lands underlying the District’s harbors
did or did not pass to Illinois by virtue of the federal act admitting
Illinois to statehood. Accordingly, while the lands underlying
the District’s harbors are “public trust lands,” no federal issue
is raised by their status as such.
In invoking the “public trust doctrine,” petitioners mistake
a state-law doctrine for a federal one. Over the years, a number
of State courts have had occasion to decide what uses of public
trust lands owned by the State in question (or a municipality
of that State) serve the “public trust.” See, e.g., People ex rel.
Scott v. Chicago Park District, 66 T.2d 65, 360 N.E.2d 773 (1976);
Borough of Neptune City v. Borough of Avon-By-The-Sea, 294
A.2d 47, 61 N.E.2d 296 (1972). Such decisions have been decided
under the law of the particular State in question. These courts
have not claimed to be interpreting federal law. They have not
claimed to be enforcing a federal standard of what the “public
trust” is. Rather, they are defining Statelaw standards for the
use of lands that are owned by the State in question or its political
subdivisions.
For this reason, the “conflict” claimed by petitioners between
different States’ “public trust doctrine” decisions does not involve
federal law, and in fact is not a conflict. Instead, these decisions
reflect variations in different States’ views of what uses of land
serve the public trust as each of those States defines that concept.
For example, New Jersey thinks that the public trust requires
beach fees to be equal for everyone (see Neptune City, supra).
Illinois thinks that the public trust allows reasonable municipal
price distinctions based on residency (see the decision below).
Our federal system is designed to allow (and encourage) such
12
varying views among States. Neither view implicates federal law,
much less conflicts with any federal definition of the “public
trust.”
Petitioners failed to persuade the Illinois Supreme Court that
the public trust, as defined by Illinois law, forbids the District’s
administrative pricing distinction between residents and non-
residents of Chicago. This Court has no appellate jurisdiction
to review that statelaw decision.!
CONCLUSION
The District respectfully requests that the petition for certiorari
be denied.
Respectfully submitted,
GEORGE F. GALLAND, JR.
Davis, Miner, BARNHILL
& GALLAND, P.C. _
14 West Erie Street
Chicago, Illinois 60610
(312) 751-117
Counsel for Respondent
1 One further argument in the petition deserves only a footnote.
Petitioners assert that the Illinois Supreme Court deprived them of
federal due process by failing to hold that the nonresident surcharge
violates a provision of the Illinois Constitution requiring uniform fees
and taxes. Petition at 22-23. This argument unmistakably says that
because petitioners lost one of their State constitutional claims, they
have been denied federal due process. Not so.
la
POINTS AND AUTHORITIES
Page
BRIEF AND ARGUMENT FOR PLAINTIFF-APPELLANTS
5. RMR DUI TEINS voce ccc ccvcencrscavcssecen l
2. ISSUES PRESENTED FOR REVIEW .................. 2
el Leip pe paaane sea eeeneeew wnt 3
Illinois Supreme Court Rule 302(a) ...................022055. 3
Illinois Supreme Court Rule @15(a) ...................0.0005. 3
4. CONSTITUTIONAL PROVISIONS AND STATUTES
ai ee ol cL kanen Wea semeeansekwaes’ 4
Hee ty ny, 7
ARGUMENT
I. THE APPELLATE COURT WAS WITHOUT JURIS-
DICTION TO HEAR THE APPEAL OF THE CHI-
CAGO PARK DISTRICT ON THE LOWER COURT'S
RULING THAT THE NON-RESIDENT SURCHARGE
See AARP REE EINES 8 55 cbs cv evanscdesebevecncees 9
Lombard v. Elmore,
112 011.2d 467. 493 N.E.2d 1063,
os en ce ne eke hepa eee eens 11
Illinois Supreme Court
re Cit ea an a ote a ene es 9,11
er CcL lo. aaa coca ie dee ac ane rhea ee eee ees 9,10
ee is nec cao abuse bowk necks ChEs ae eeeuh eats 9
Ill. Rev. Stat., Chap. 105, Sec. 333.23n(g) ..............00000- 9
UW. THE COURT ERRED IN HOLDING THAT THE
CHICAGO PARK DISTRICT MAY DISCRIMINATE
AGAINST NON-RESIDENTS OF THE DISTRICT BY
CHARGING THEM A SURCHARGE. ................ 12
4a
Page
People ex. rel Scott v. Chicago Park District,
66 [li.2d 65, 360 N.E.2d 773, 4 Ill.Dec. 660 (1977) ........... 23
Village of Braceville v. Doherty,
Cee ee ed erat eesemae 23
W.C.M. Window Co., Inc. v. E. Allen Bernardi,
I 9k 4.n 6 otha caes caksckecdenacaeden 24
Il. Rev. Stat., Chap. 48, para. 39s - 1 et seq. ................. 24
E. The State Statute Which Authorizes That Fees Charged
To Nonresidents Need Not Be The Same As Residents
Must Be Interpreted to Mean That The Fees May Be
Larger Only If Additional Burdens Are Imposed On The
Park As A Result of Nonresident Usage. ............... 25
Douglas v. Village of Melrose Park,
389 Il. 98, 101, 58 N.E.2d 864, 865 (1945) ............0.... 25
Williams v. City of Chicago,
66 Ill.2d 423, 362 N.E.2d 1030 (1977) ................0 cue. 26
Illinois Revised Statutes _
a ccbuwebesseseccens 27
Chapter 105, Section 333.23n(g) ....................0005- 25
Chicago Park District Code
a ee eT od oe cm anecbabae 26
ERT a a 24
F. The Park District’s Own Ordinances Prohibit
Discrimination: Fees Must Be Uniform ................ 27
Chicago Park District Code
Dee aaa pceshowa 28
G. The Same Panel Of The Appellate Court Has Issued
An Opinion Exactly Opposite To Its Opinion In This
MG cs os Giada ck ca cvadssccbcvebéecdevneudecness 28
Bobrowicz v. City of Chicago,
168 Dl.App.3d 227, 522 N.E. 2d 663, 669.
ee ee ea en undue ws bkbdsenes 28
Il. THE COURT ERRED IN HOLDING THAT THE
CHICAGO PARK DISTRICT CAN MAKE A PROFIT
ON ITS NON-BONDED FACILITIES. ................ 29
Ward Baking Co. v. City of Chicago,
UD Ee Ee UG, REM es ATE CRUD oo ssc vss ece ce cesnceuy's 29
Il. Rev. Stat., Chap. 105, Sec. 333.23 (p) .... 2.2... cece sceees 29
A. TheChicago Park District, A Unit Of Local Government,
Has No Implied Powers, to “Rent” Its Moorings At A
Profit, Or Otherwise Under The Illinois Constitution of
eae Sy ad ga eet SN PMO gd ORES, PS Ce RBar 30
Nlinois Constitution
Ne ne ea yaeees aokneu Ueeees 31
Eo he cent eeeener an 30
Illinois Revised Statutes
Chapter 106, Gectiom BIS.Dp) .... ww ccc cece ese cccnsss 31
Cy SU NN IN ig can cucesbcsnccuccancsdanses 31
B. The Chicago Park District Exercises A Governmental
Or Police Power When It Licenses Non-Bonded Moorings
For Revenue By Making A Profit - It Does Not Have
A Proprietary Power To “Rent” Moorings. ............. 32
Bauer v. City of Chicago,
eee ee el a esac sc cenhandeheeedeas can 36
City of Bloomington v. Ramey,
393 Ill. 467, 66 N.E. 2d 385 (1946) ... 0... ccc eee e eee 37
City of Carrollton v. Bagette,
Se es ee EE ET CIID ww ceae ccc cnctccecnccsececes 38
2a
Page
A. Residency-Based Discrimination Is Not Permissible
Under The United States Constitution Unless It Is
Reasonably Related To Some Additional Burdens
Imposed By The Non-Residents ....................44. 12
Baldwin v. Fish and Game Commission of Montana,
ee GEE ss Shc a wb ceecedeusaveenenaceies> passim
B. The Court’s Opinion Is Contrary To The Equal Protec-
tion And Uniform Fees Clauses Of The Illinois
NAT Ee LS TIO IEE FG: et AE ES OE EN 16
Anderson V. Wagner,
61 Dl.App.3d 822, 378 N.E.2d 805, 809 (4th Dist. 1978),
affirmed 79 Tll.2d 295, 402 N.E.2d 558 (1980) .............. 16
Baldwin v. Fish and Game Commission of Montana,
I rc hws 17
Corfield v. Coryell,
6 F. Cas. 546, 551-52 (No. 3, 230) (CCED Pa. 1825) ......... 17
People ex. rel. Scott v. Chicago Park District,
66 Il.2d 65, 360 N.E.2d 773 (1977)... 2.2... cece eee 17
Searle Pharmaceuticals, Inc. v. Department of Revenue,
117 D.2d 4544, 512 N.E.2d 1240 (1987) ................ 17,18
Illinois Constitution
Article I, Section 2
Article IX, Section 2 .............. cc cece cece ee ees passum
C. The Appellate Court’s Opinion Is Contrary To The
Illinois Public Trust Doctrine. ..................0.0005. 19
Basker v. West Chicago Park Commissioners,
66 TLApp. 507, 510 (1886) ..... 0... ccc ccc cecnccees Sam iche 21
Borough of Neptune City v. Borough of Avon-By-The-Sea,
61 N.J. 296, 294 A.2d 47 (1972)... ccc ce eee eee 19
|
AS th Nl i LE
3a
Page
Lincoln Park Traps v. Chicago Park District,
323 DL.App. 107, 114, 55 N.E. 2d 123 (1944)................ 21
Love v. Glencoe Park District,
I Att I iin sd anavueibeacsestueas ean 21
People ex. rel. Scott v. Chicago Park District,
66 Ill.2d 65, 360 N.E.2d 773, 4 Il.Dec. 660 (1977) ........... 19
Quinn v. Irving Park District,
ee ns a ccccchcese ences ena ecinnses 21
10 McQuillin on Municipal Corporations
SERRE ae RELY, vy ya <8 Pee a Ea Pa rE CB 20
10 L.L.P. Cities, Villages, and Other Municipal Corporations
CRT ot ct ch eunut e Comenie rat nbameenaecie es 21
D. The Opinion Of The Appellate Court Is Contrary To
92 Years of Illinois Case Law Prohibiting Discrimination
I CL Re Las atau an awe ces wd kan hin
American Baking Co. v. City of Wilmington,
ps fp EB foe toby fh ee eee
Borough of Neptune City v. Borough of Avon-By-The Sea,
61 N.J. 296, 294 A.2d 47, 57 A.L.R. 3d 983 (1972) ..........
City of Carrollton v. Bazzette,
SN ee eas ie b bcsevs ck paudncde need ees
City of Elgin v. Winchester,
ee Ee, Me es PAE) 5a ccc scans cvececncnccces y
Larson v. City of Rockford,
371 Ill. 441, 21 N.E. 2d 396 (1939) .....................0..
Lucas v. City of Macomb,
ear ds ive Cues leuawas deen tae eia we
People ex. rel Bernardi v. Leary Construction Company,
102 Il.2d 295, 464 N.E.2d 109, 80 Ill.Dec. 36 (1984)......... |
6a
Page
City of Chicago Heights v. Public Service Company,
GA Be, OF Bee CHD Whin cdivcccnccccccccccccess 40
City of Chicago Heights v. Western Union Telegraph Co.,
406 Ill. 428, 94 N.E.2d 306 (1950) ............. cece eee ee eee 40
City of Peoria v. Gugenheim,
ee irc ska vec tkdanveeesnstisccececes 39
City of Peoria v. Postal Telegraph Cable Co.,
es ED ov cccdcccvdccvecvessevcces 39
Condon v. Village of Forest Park,
Be BP EMEED Sc cscs ccnccvvccvocieccvs 41
Great Plains Resources, Inc. v. Benton,
ED one cccccccctctscecesecuseees 34
Herb Bros. v. City of Chicago,
ee, Ee NONI coco cccccdncccocccccesooes 38
Lamere v. City of Chicago,
nt os ess cekenedeceeoteses 34, 37
McNeil v. Chicago Park District,
ee co dicaccecerdscsscoevctrecvnsvess 32
Nature’s Rival Co. v. City of Chicago,
aU eee ie. ek weeeewanewens 36
Quad Canteen Service Corp. v. Ruzak,
85 Ill.App.3d 256. 40 Ill.Dec. 610 (1980) ................... 40
Rozner vu. Korshak,
55 Ill.2d 430, 303 N.E.2d 389, 390 (1973) .................. 34
Ward Baking Co. v. City of Chicago,
Se Bn FRE BEE CEOOED ccc cccccvccccccocsonsscves 35
Wiggins v. City of Chicago,
Be sas ce aee ene ned spvienbueees 38
Illinois Constitution of 1970
ee. aL she akuwpadabencsasees 33
i ee . . ceecvcdeeuceevevereenvena 34
Page
Illinois Revised Statutes
Chapter 106, Section 3382.23(p)........ccccccceccsccces 34, 41
Chicago Park District Code
eee al ine hd kdee ge deearnen eee 33
10 McQuillin on Municipal Corporations
REIN ae eh en ee 39
C. This Court Has Rejected The “Implied Rental” Theory
Relied Upon By The Appellate Court In Its Decisions
ee youn ae a. es wkisieneraeeet es 42
City of Chicago Hts. v. Western Union,
a ie a rer 42, 43
Village of Lombard v. Illinois Bell Telephone Co.,
pF ES POP OCT EE PECTE ETT CCETET ECT ETE EET 42
Illinois Revised Statutes
Chapter 105, Section 3383.23n(g) ...........-ccsscccceeeee 44
D. The Court’s Reliance On A Supposed “Statutory
Scheme” Is Erroneous Because The Cited Statutes Relate
Only To Bonded Facilities, While This Case Deals Only
dd i ccsncnvecctoneussess. 44
Illinois Revised Statutes
I II ED go cs vcccccccssccnccnscsocces 46
ee os cet ecccasracccecetusee 46
Chanter 106, Section 383.23q .........cccccccccaccccscces 46
Chapter 105, Section 333.23r .............cccceseeee .. 44, 46
Ce PI RITE) on cnc ccccvccccccceccoseecs 44
Chapter 105, Section 333.236 .......cccccccccccccccces 45, 46
COE BE I IG oo vc cewccvdnccnsccvcsscnce 46
Ce Se ID oo ccc vvvccesivesevavscvesess 47
E. The Appellate Court Effectively Overruled This Court’s
Prior Decisions That Fees Charged By Units Of Local
Government Are Subject To Judicial Review When It
Refused To Review The 500% Profit Charged By The
DRL occ ue duyassaueeNnncae dora cras arsine ase 50
8a
Page
Condon v. Village of Forest Park,
eo eens Revaebb aces ees 52
McNeil v. Chicago Park District,
RE SR ee ee 50, 51
F. The “Implied Rental” Authority Found By The Appellate
Court Is Contrary To The Evidence Produced In The
ee eae ee anaes seen 53
McNeil v. Chicago Park District,
401 DL. 556 (1948)
Illinois Revised Statutes
I ND ove ccc c eb ercccccvercsccnens 53
Chicago Park District Code
AEE TE ee Aa ee Poe 54
Black’s Law Dictionary 1298 (4th ed. 1968) .............. 53, 54
G. No Ordinance Of The Park District Allows Profits To
Be Made On Mooring Fees Or Permits An Unreasonable
Pesca uN UCU NASsEd dae eee eceENRAbhdesdneksdeeccerce 56
Chicago Park District Code
ete el Us lata kes baa heaadeeh pee wane 56
H. The Decisions Of The United States Supreme Court Are
Uniform That Fees Must Approximate Costs, Cont: ary
To The Holding Of The Appellate Court. ............... 56
American Airlines v. Massachusetts Port Authority,
a ee ee FED sok i bee wncdicdeccicccnncsss 56
Evansville-Vanderburgh Airport Authority District v. Delta
Airlines, 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed. 2d 620
Ee ee ra sera dbs ude woe wwe 8 6.6 56
SCs cdushaseebeveedesetacadnaebee swe 57
PEE iS bik ceasuersoeicsindsevecsennacs 58
a oe
9a
I.
THE COURT ERRED IN HOLDING THAT THE
CHICAGO PARK DISTRICT MAY DISCRIMI-
NATE AGAINST NON-RESIDENTS OF THE
DISTRICT BY CHARGING THEM A SUR-
CHARGE
Discrimination by an [linois Park District against certain
citizens of the State of Illinois who are nonresidents of the Park
District, contrary to the opinion of the appellate court, is illegal
and void under the United States and [Illinois Constitutions and
under the “Public Trust Doctrine” fashioned by this Court and
the appellate courts governing the use of parks in Lllinois. The
appellate court in its opinion addressed only the federal consti-
tutional aspects of the Plaintiffs’ arguments as to the invalidity
of the non-resident surcharge imposed by the Chicago Park
District. The appellate court erred in its analysis under the United
States Constitution but, more disturbingly, the appellate court
failed to even address Plaintiffs’ arguments under the Lllinois
Constitution and the case law establishing the Public Trust
Doctrine, under which the surcharge was found to be void, illegal,
and unconstitutional by the trial court.
A. Residency-Based Discrimination Is Not Permis-
sible Under The United States Constitution Unless
It Is Reasonably Related To Some Additional
Burdens Imposed By The Non-Residents.
The appellate court based its entire opinion for overturning
the trial court’s order regarding the non-resident surcharge on
Baldwin v. Fish and Game Commission of Montana, 436 U.S.
371 (1979). The Baldwin case upheld a Montana hunting license
system, which charged non-residents of the state a substanitally
higher fee than residents for a license to hunt elk and other
game. The Baldwin Court discussed at length the relationship
between citizens of different states. In discussing the Privileges
and Immunities clause, the Court pointed out that its only concern
in that decision was with the relationship of residents of one
state to another state. See 436 U.S. at 380-82. The appellate court’s
faith in the power of this case is misplaced. The trial court’s
succinct and accurate summation of its irrelevency was as follows:
10a
“THE COURT: I don’t have any trouble with
Baldwin. Baldwin dealt with non-residents of a state
as opposed to residents of a state. The class of people
that we are dealing with are all residents and taxpayers
of the same state.” (R.373, p. 19)
It is obvious from Baldwin that the Court there was dealing
with the relationship of Citizens of one state with another state.
This is not issue in this case. The issue here is whether the Chicago
Park District can charge an Illinois citizen who is a resident
of, e.g., Wilmette or Evanston, an extra fee for use of its harbor.
Baldwin is therefore totally irrelevant to a determination of this
issue. Even the Baldwin Court recognized that the case did not
apply to discrimination among residents of the same state when
it stated as follows:
“It appears to have been generally accepted that
although the States were obligated to treat all those
within their territory equally in most respects, they
were not obligated to share those things they held in
trust for their own people.” 436 U.S. at 384.
Thus, the Court acknowledges that a higher level of scrutiny
would attach to discrimination based on residency within a state.
The U.S. Supreme Court, in a case decided six years later, held
that discrimination based upon municipal residency is subject
to the “substantial reason” test of the Privileges and Immunities
Clause. United Building and Construction Trades Council of
Camden County and Vicinity v. City of Camden, 465 U.S. 208,
79 L.Ed. 249, 104 S.Ct. 1020 (1984).
Even under the standards of Baldwin, however, the non-
resident surcharge in the present case must fall. The Supreme
Court applied the standard “additional burdens imposed”
analysis used in privileges and immunities cases in Baldwin.
Under the facts of that case, the Court held that the nonresidents’
use of Montana hunting facilities did create additional burdens
on the State of Montana (436 U.S. at 390) which justified a higher
fee to be imposed on nonresidents. In the case at bar, there are
absolutely no additional burdens imposed on the Chicago Park
District in providing moorings to nonresidents, which the
appellate court acknowledged. (Op. p. 4).
eee OK om
wo meres til
lla
Furthermore, Baldwin does not deal with property “heid in
trust for the equal benefit of all the people” that must not be
operated “in such a manner that a preferential use thereof is
granted to any one person or to any group of persons.” Lincoln
Park Traps v. Chicago Park District, 323 Il. App. 107, 114, 55
N.E.2d 123 (1944). Finally, the Baldwin Court was not confronted
with a state constitution which prohibits non-uniform fees.
(linois Constitution, Art. IX, sec. 2). In fact, as illustrated by
the Baldwin majority in the quote above, and as clearly expressed
by the dissent, a fundamental right long recognized of every
citizen is to be treated equally as every other citizen of his or
her state by that state in regards to “taxes and impositions.”
436 U.S. at 395, 56 L. Ed. at 373 (Brennan, J., dissenting), quoting
Mr. Justice Washington in Corfield v. Coryell, 6 F. Cas. 546,
551-52 (No. 3,230) (CCED Pa. 1825).
Of even greater import is the decision by the U.S. Supreme
Court that holds the Privileges and Immunities Clause applies
to laws that discriminate among state residents on the basis
of municipal residencey. In United Building and Construction
Trades Council of Camden County and Vicinity v. Mayor and
Council of the City of Camden, 465 U.S. 208, 79 L.Ed.2d 249,
104 S. Ct. 1020 (1984), at issue was the ordinance of Camden,
New Jersey, which required that 40% of the employees of
contractors working on city projects be Camden residents. The
Court specifically addressed the question of whether the Priv-
ileges and Immunities Clause of the United States Constitution
applied to a municipal ordinance. In holding that it did, the Court
said at 79 L.Ed. 256:
“(A) municipality is merely a political subdivision of
the State from which its authority derives. (Citation)
It is as true of the Privileges and Immunities Clause
of the Equal Protection Clause that what would be
unconstitutional if done directly by the State can no
more readily be accomplished by a city deriving its
authority from the State.”
The Court further held that discrimination based on munic-
ipal residency was equally bad as that based on state residency
and that both came under the Privileges and Immunities Clause.
The Court said at 79 L.Ed. 257:
12a
“We have never read the Clause so literally as to apply
it only to distinctions based on state citizenship. For
example, in Mullaney v. Anderson, 342 U.S. 415, 410-
420, 96 L.Ed. 458, 72 S. Ct. 428 (1952), the Court held
that the Alaska Territory had no more freedom to
discrimnate against those not resident in the Territory
than did any State to favor its own citizens...A
person who is not residing in a given State is ipso
facto not residing in a city within that State. Thus,
whether the exercise of a privilege is conditioned on
state residency or on municipal residency he will just
as surely be excluded.”
The appellate court’s holding is without basis in the law
and the facts of the case. It sets a dangerous precedent. Can
it be seriously doubted that Park Districts throughout the Chicago
metropolitan area and the entire State seeking ways to invidiously
discriminate against their neighbors welcome the appellate
court’s opinion with open arms, and cannot hesitate to draw
this sword from their sheath? The potential for abuse is enormous.
B. The Court’s Opinion Is Contrary To The Equal
Protection and Uniform Fees Clauses of The
Illinois Constitution.
Article I, Section 2 of the Illinois Constitution of 1970 (the
Illinois Equal Protection Clause”) provides as follows:
“No person shall be deprived by life, liberty or property
without due process of law nor be denied the equal
protection of the laws.” (Emphasis added.)
It is undisputed that no additional burden has been imposed
by non-residents on the Park District, thus raising serious
questions under the Illinois Constitution of 1970 as to the unequal
treatment of non-residents. Significant by its absence is any
_ mention of the [Illinois Constitution in the appellate court’s
opinion, even though the statute at issue was found unconsti-
tutional under it. Not one word is used to attempt to show how
a subdivision of the State (the Park District) can discriminate
against state citizens based upon their residence when the State
itself cannot do so under the Illinois Constitution. The appellate
unned ids
et. Pe me! Der
13a
court did not even discuss the residency issue even though it
raises a stricter level of scrutiny. As the court stated in Anderson
v. Wagner, 61 Ill. App. 3d 822, 378 N.E.2d 805, 809 (4th Dist.
1978), affirmed 79 [l.2d 295, 402 N.E.2d 558 (1980), in discussing
the tests to be applied in Equal Protection analysis:
“The yardstick for measuring equal protection argu-
ments has a number of sides. The traditional test for
equal protection is not whether a statute results in
unequal treatment, but whether the statutory inequal-
ity of treatment has a reasonable basis in fact.
(McGowan v. Maryland (1961), 366 U.S. 420, 425-26.)
A more exacting test known as the strict scrutiny test
is employed in cases concerning ‘suspect classifica-
tions’ (e.g., race, sex ethnic background, residency, and
alienage) or ‘fundamental interests’ (e.g., the right to
travel freely or to practice a religion).” (Emphasis
added.)
Here, where residency-based disrimination exists in an area
well known for communities highly-segregated by both race and
economic wealth, heightened scrutiny is called for. Furthermore,
under Illinois law, the privilege of Illinois citizens to share equally
the recreational resources of the state is a “fundamental” interest
demanding more than cursory review. See People ex rel. Scott
v. Chicago Park District, 66 I1l.2d 65, 360 N.E.2d 773 (1977). See
also, Baldwin, 436 U.S. at 395, 56 L. Ed. at 373 (Brennan, J.,
dissenting), quoting Mr. Justice Washington in Corfield v.
Coryell, 6 F. Cas. 546, 551-52 (N. 3,230) (CCED Pa. 1825).
In addition, Article IX, Section 2 of the Illinois Constitution
of 1970 (the “Uniformity Clause” or “Uniform Fees Clause”)
provides as follows:
“In any law classifying the subjects or objects of non-
property taxes or fees, the classes shall be reasonable
and the subjects and objects within each class shall
be taxed uniformly.” (Emphasis added)
The Uniformity Clause of Article IX, Section 2, where
applicable, attaches a stricter standard of review than the Illinois
Equal Protection Clause. Searle Pharmaceuticals, Inc. v.
l4a
Department of Revenue, 117 Ill.2d 454, 512 N.E.2d 1240 (1987).
The appellate court should have applied the stricter standard
of the Uniformity Clause to the Park District’s practice of
discriminating against non-residents, but failed to even consider
the provision. The Park District charged a fee 25% greater to
nonresidents that to residents, while admitting that there are
no additional costs for supplying moorings to nonresidents than
to residents. The Park District’s actions thus violate Article IX,
Section 2 of the [Illinois Constitution, which provides further
support for affirming the trial court’s ruling on the surcharge
and reversing the appellate court.
This Court, in Searle Pharmaceuticals, Inc. v. Department
of Revenue, 117 Iil.2d 454, 512 N.E.2d 1240 (1987), explained in
detail the Uniformity Clause’s limitations on non-property taxes
and fees. In Searle, this Court, after reviewing the history behind
Article IX, Section 2 (117 Ill.2d at 468-69, 512 N.E.2d at 1245-
46), held that “a broader limitation on the legislative power to
classify for non-property purposes was intended to be included
in the language of section 2 than the limitation of the equal
protection clause.” 117 Ill.2d at 469, 512 N.E.2d at 1246.
The non-resident surcharge cannot withstand scrutiny under
even the rational basis test under the Equal Protection Clause
employed by the appellate court, for the basis found by the court
to support the discrimination is fallacious and illusory. The
appellate court’s basis was given as follows:
“(Where a local public entity has recreational resources
which are finite, it has a justifiable interest in favoring
the utilization of those resources by its residents over
nonresidents.” (Opinion p. 8.)
No authority is given by the appellate court for its above
conclusion. Certainly there is none which will support it. The
stated reason is fallacious, because it permits discrimination in
every instance - since ail recreational facilities and resources can
be considered finite. It is illusory also because it ignores the strong
public policy of this State, embodied in the Public Trust Doctrine,
of preserving the natural resources of this State not just for a
segment of its citizenry, but for all citizens equally.
es
a a ee eee
ee! aa ne Peas a
a rd
lda
Under any constitutional test the Park District residency
discrimination fails to pass muster.
C. The Appellate Court’s Opinion Is Contrary To The
Illinois Public Trust Doctrine.
This Court, in People ex rel. Scott v. Chicago Park District,
66 Ill.2d 65, 360 N.E.2d 773, 4 Ill.Dec. 660 (1977), discussed the
history of the “Public Trust Doctrine” when it invalidated an
enactment of the legislature based upon that doctrine. This Court
cited as authority Borough of Neptune City v. Borough of Avon-
By-The-Sea, 61 N.J. 296, 294 A.2d 47 (1972) (which invalidated
a beach fee where non-residents of a municipality were charged
a higher fee than residents, although all users were citizens of
the same state), when it stated that the use of “Lake Michigan
is a valuable natural resource belonging to the people of this
State in perpetuity,” and that the use of said resource by the
government “has to withstand a most critical examination.” 66
0l.2d at 79, 360 N.E.2d at 781. In Scott, this Court states as
follows:
“When a state holds a resource which is available
for the free use of the general public, a court will look
with considerable skepticism upon any governmental
conduct which is calculated either to reallocate that
resource to more restricted uses or to subject public
uses to the self-interest of private parties.’ [Sax, The
Public Trust Doctrine in Natural Resource Law:
Effective Judicial Intervention, 68 Mich.L.Rev. 471, 490
(1970).] And it may be pointed out that, in considering
what is the public interest, courts are not bound by
inflexible standards.
‘We have no difficulty in finding that, in this latter
half of the twentieth century, the public rights in tidal
lands are not limited to the ancient prerogatives of
navigation and fishing, but extend as well to recrea-
tional uses, including bathing, swimming and other
shore activities. The public trust doctrine, like all
common law principles, should not be considered fixed
or static, but should be molded and extended to meet
changing conditions and needs of the public it was
l6a
created to benefit.’ Borough of Neptune City v. Borough
of Avon-By-The-Sea (1972); 61 N.J. 296, 309, 294 A.2d
47, 54-55, and cases and authorities cited therein; see
also Marks v. Whitney (1971), 6 Cal.3d 251, 98 Cal.Rptr.
790, 491 P.2d 374.” Id.
The Public Trust Doctrine is stated succinctly in 10 McQuillin
on Municipal Corporations, Sec. 28.52, p.160:
“Parks are for the benefit of, and are held in trust
by the municipality for, the public.”
As stated in 10 L.L.P. Cities, Villages, and Other Municipal
Corporations, Sec. 1761:
“The facilities of a park district, such as its parks and
boulevards, are held for the general public or the People
of the State at large, and not merely for those person
residing in the park district or in the immediate vicinity
of the park facilities.”
The public trust doctrine has been cited with approval in
numerous Illinois cases, dating back to 1896:
(a) “It follows, therefore, that the park, swimming tank
and gymnasium located therein are held for the use
of the citizens of the State generally and not for the
exclusive use of the citizens of the park district, and
the ordinance which seeks to limit the use to the citizens
of the district is null and void”. (Quinn v Irving Park
District, 207 Tl. App. 449, 457 [1917])
(b) “The parks and boulevards owned and controlled
by the park board are held for the use of the public
generally, as well as for the public in their immediate
vicinity. West Chicago Park Commissioners v. The
City of Chicago, 152 Ill. 393”. (Basker v. West Chicago
Park Commissioners, 66 Ill. App. 507, 510 [1896)}).
(c) “The fact that the park district, as created by the
act, is carved out of a particular section or portion of
. another municipality does not take from it the con-
_ trolling feature of its public use. Its enjoyment and
amusement are not limited to the particular park
17a
district, but are for the benefit. health and recreation
of the public generally.” (Love v. Glencoe Park District,
270 Il. App. 117, 120 [1933]).
(d) “It is clear from the foregoing authorities that all
lands, the title to which is in commissioners of park
districts, are held in trust for the equal benefit of all
of the people of the State, that the facilities of park
districts are for the equal benefit of all the people of
the State and that park districts cannot operate their
facilities or permit them to be operated in such a
manner that a preferential use thereof is granted to
any one person or to any group of persons.” (Lincoln
Park Traps v. Chicago Park District, 323 Ill. App. 107,
114, 55 N.E.2d 123 [1944]).
The effect of the appellate court’s ruling is to emasculate
the Public Trust Doctrine, and to replace it with a system akin
to feudalism, whereby the privilege to use a particular park or
facility becomes an incident of one’s birth. Moreover, it encour-
ages park districts across the State to build Great Walls of
discrimination around each district, to keep out the non-resident
infidels, who are not worthy to share equally the privileges to
which the residents were accidently born.
D. The Opinion Of The Appellate Court Is Contrary
To 92 Years Of Illinois Case Law Prohibiting
Discrimination Based On Residency.
The leading case in [llinois holding that nonresidents may
not be discriminated against by being charged higher fees is
City of Elgin v. Winchester, 300 Ill. 214, 133 N.E 205 (1921). In
that case a $300 fee was levied on nonresidents distributing
advertisements. Residents were charged no fee. This Court held
the ordinance invalid and went into the subject of discrimination
in detail on pages 216 and 217 as follows:
“In our judgment, under the authorities, the ordinance
is void as being discriminatory between residents and
nonresidents as to the payment of license fees. A citizen
of the city may procure a permit without the payment
of a license fee and distribute advertisements concern-
18a
ing sales by such citizens. Beyond question the ordi-
nance permits local merchants to advertise by the
distribution of circulars or pamphlets. A statute or
ordinance which in imposing a license tax dis-
criminates in favor of the residents of a State
or city and against non-residents of the same
class is unconstitutional. (McGraw v. Town of
Marion, 98 Ky. 673; Eales v. City of Barbourville, 177
id. 216; State of North Carolina v. Williams, 158 N.C.
610; 40 L.R.A. (N.S.) 279, and cases cited in note; City
of Saginaw v. Circuit Judge, 106 Mich. 32; Clements
v. Town of Casper, 4 Wyo. 494; 25 Cyc. 610; 17 R.C.L.
510; 2 Dillon on Munc. Corp. Sec. 593, and cases cited
in note; 2 McQuillin on Munc. Corp. Sec. 739; Ward
v. Maryland, 79 U.S. 418; Ex parte Thornton, 12 Fed.
538.) While this court seems never to have had this
precise question before it for consideration, its reason-
ing in cases where similar principles are involved
would tend to uphoid the conclusions of the decisions
above cited from other States. (City of Carrollton v.
Bazzette, 159 Ill. 284; City of Monmouth v. Popel, 183
id. 634; Tugman v. City of Chicago, 78 id. 405.) While
other cases have been cited by appellee as supporting
the validity of the ordinance we do not consider them
controlling. By reason and the great weight of author-
ity the conclusion must be reached, in our judgment,
that the provision in question under which the fine
was entered against appellant renders the ordinance
discriminatory and therefore void.” (Emphasis added)
The rule was reaffirmed in American Baking Co. v. City
of Wilmington, 370 Ill. 400, 19 N.E.2d 172 (1938), and in Larson
v. City of Rockford, 371 Ill. 441, 21 N.E. 2d 396 (1939), at page
445 as follows:
“Arbitrary discrimination between residents and
nonresidents in the issuance of licenses or the fees
charged will invalidate a municipal ordinance... ”
Numerous decisions before the City of Elgin case had struck
down ordinances favoring residents. E.g., Village of Braceville
v. Doherty, 30 Il. App. 645 (1889); Lucas us. City of Macomb,
19a
49 Ill. App. 60 (1892); City of Carrollton v. Bazzette, 159 Ill. 284
(1896).
Because of its inclusion in A.L.R. and adoption by this Court
in People Ex. Rel Scott v. Chicago Park District, 66 Ill.2d 65,
360 N.E.2d 773, 4 Il.Dec. 660 (1977), the leading case nationally
on this subject is Borough of Neptune City of Borough of Avon-
By-The-Sea, 61 N.J. 296, 294 A.2d 47, 57 A.L.R. 3d 983 (1972).
In that opinion the court considered the subject at length and
stated:
“We are convinced it has to follow that, while munic-
ipalities may validly charge reasonable fees for the
use of their beaches, they may not discriminate in any
respect between their residents and nonresidents.” (57
A.L.R. 3d 994)
Supporting the doctrine that nonresident citizens of the same
state may not be discriminated against are two recent cases
holding the Illinois Preference Act to be unconstitutional. The
Preference Act (Ill. Rev. Stat. Ch. 48, para. 39s - 1 et seq.) provided
that only Illinois laborers would be used on state or other
governmental construction contracts. The Act was contested in
both the federal and the state courts. In the federal case, W.C_M.
Window Co., Inc. v. E. Allen Bernardi, 730 F.2d 486 (7th Cir.
1984), the Court of Appeals held that the law violated both the
commerce clause and the privileges and immunities clause of
the United States Constitution. It went so far as to say that
the law suffered from “prima facie invalidity.” In the state case
this court also found the law to be violative of the privileges
and immunities clause. People ex rel. Bernardi v. Leary Con-
struction Company, Inc., 102 [ll.2d 295, 464 N.E. 2d 1019, 80
Ill. Dec. 36 (1984).
Both cases resoundingly condemned residency-based dis-
crimination, even in a situation where there was no public trust
doctrine applicable to the government involved - as there is here
with park district property. Sanctioning residency discrimination
is contrary to the case law oi Dlinois.
20a
E. The State Statute Which Authorizes That Fees
Charged To Nonresidents Need Not Be The Same
As Residents Must Be Interpreted To Mean That
The Fees May Be Larger Only If Additional
Burdens Are Imposed On The Park District As
A Result Of Nonresident Usage.
The trial court struck down as unconstitutional and void
Section 333.23n(g) of the Chicago Park District Code, which reads
as follows:
“The Chicago Park District, to carry out the purposes
of this section, has all the rights and powers over its
harbor as it does over its other property, and its rights
and powers include but are not limited to the following:
*~* *
(g) To establish and collect fees for all facilities and
services, and compensation for materials furnished.
Fees charged non-residents of such district need
not be the same as fees charged to residents of
the district.” [ll]. Rev. Stat., ch. 105, Sec. 333.23n(g)
(1987) (emphasis supplied).
The Park District relies on this statute for authority for
charging non-residents more than residents for mooring permits.
However, in the case at bar the Park District has admitted that
the cost of providing non-resident moorings is the same as
providing resident moorings, and has coupled that admission
with the admission that it makes a huge profit even on resident’s
mooring permit fees; thus, there is no rational basis for the 25%
surburban surchage. A state statute cannot overrule the consti-
tutional provisions mandating that citizens not be treated
unequally without a rational basis.
It is a long-standing doctrine that if at all possible, a statute
must be interpreted as being in accord with constitutional
provisions; if it cannot, then it must be struck down as uncon-
stitutional. As stated in Douglas v. Village of Melrose Park, 389
Ill. 98, 101, 58 N.E. 2d 864, 865 (1945):
“Legislative enactments should be construed in a
2la
manner which will prevent their running counter to
constitutional provisions.”
Thus, in order for the statute permitting fees to be charged
to nonresidents at a different rate from residents, to be consti-
tutional on its face, it must be interpreted to mean that non-
residents can be charged more only if the Park District incurs
additional burdens as a result of their usage of the facilities.
To interprete the statute otherwise would not be in accord with
prior case law (Williams v. City of Chicago, 66 [1l.2d 423, 362
N.E.2d 1030 [1977]) and the constitutional principles enunciated
in the cases holding that nonresidents cannot be charged more
that residents. Even under such an interpretation of the statute,
which plaintiffs urge the Court to adopt, the above-cited statute
is unconstitutional as applied to plaintiffs. The Park District’s
practice of charging non-residents a surcharge fee for a mooring
permit cannot stand where there is absolutely no basis for the
surcharge.
Plaintiffs point out that although the above statute applies
only to the Chicago Park District, this issue affects the entire
state through the Illinois Park District Code, applicable to all
other park districts within the state. Section 8-1 of that Code
provides:
“Every park district shall... have and exercise the
following powers:
** *
(h) To establish fees for the use of the facilities of the
district. Fees charged non-residents need not be
the same as fees charged to residents of the
district.” Ill. Rev. Stat. ch. 105, sec. 8-1(h) (1987)
(emphasis supplied).
This Court must make a clear pronouncement to the entire
State the arbitrary discrimination against non-residents based
on these statutes shall nut be tolerated. Each park district may
impose a surcharge upon non-residents for the use of park district
facilities only on the basis of an additional burden imposed by
the non-residents.
22a
F. The Park District’s Own Ordinances Prohibit
Discrimination: Fees Must Be Uniform.
The additional(non-uniform) charge imposed on nonresi-
dents is in direct contravention of the Park District’s own code.
The higher charge is mentioned in the Schedule of User Fees
of the Park District in the budget of each year and carries the
following footnote on all Marine Fees (R. 482 et seq.)
“A non-resident surcharge of 25% of the base fee is
assessed on all permits issued to boaters residing
outside the City of Chicago.”
No ordinance of the Chicago Park District exists which authorizes
a 25% higher fee for non-residents. Contrary thereto, Sec. 30-8
of the Chicago Park District Ordinance provides as follows (R.
186):
“The Park Board or the General Superintendent may
fix and collect reasonable fees for the use of park
facilities. Such fees may be fixed at a uniform rate
to all users of such facility or facilities.” (Emphasis
added.)
Thus, a non-resident surcharge of 25% additional fee is not in
the ordinance, is contrary to the Park District’s own ordinances,
and yet the appellate court failed to even discuss this mandate
of uniformity.
G. The Same Panel Of The Appellate Court Has
Issued An Opinion Exactly Opposite To Its
Opinion In This Case.
Two months prior to its decision here, the appellate court
(in fact, the same Division, per Justice McNamara, with Justices
Rizzi and Freeman concurring) affirmed a trial court’s summary
judgment in a class action striking down a surcharge imposed
by the City of Chicago’s Metropolitan Sanitary District on non-
resident users of the system, because (i) the charges were
unreasonable, and (ii) the charges were discriminatory. Stated
the appellate court in Bobrowicz v. City of Chicago, 168 Ill. App.
3d 227, 522 N.E.2d 663, 669, 119 Ill. Dec. 1, 7 (1988):
“The result of the surcharge is to impose upon residents
23a
of unincorporated areas a 50 percent higher rate than
that charged residents of Chicago, or residents of
municipalities to whom Chicago sells water. This, in
our estimation, is an arbitrary imposition of a sur-
charge on the plaintiff class and clearly in violation
of defendant’s common law duty not to charge unrea-
sonable or discriminatory rates.”
Inexplicably, the same panel ignored its own prior case law,
i.e., the common law duty (Illinois Public Trust Doctrine in this
case) and the Illinois constitution, in writing its opinion in this
case. The arbitrariness condemned by the appellate court in
Bobrowicz cannot be countenanced in this case.
ITI.
THE COURT ERRED IN HOLDING THAT THE
CHICAGO PARK DISTRICT CAN MAKE A
PROFIT ON ITS NON-BONDED FACILITIES.
The Chicago Park District has not been given the power
to raise revenue through mooring fees by the general assembly
and is precluded from assessing taxes on the harbor or its personal
property. Ill.Rev.Stat ch. 105, sec.333.23(p). Since they are a
limited unit of local government, without the state authority to
raise revenue through mooring fees, it is irrelevant whether the
fees charged are called permit fees or “implied rent” (profits by
definition are taxes). Stated this Court in Ward Baking Co. v.
City of Chicago, 340 Ill. 212, 214, 172 N.E. 171 (1930):
The city has no power to exact such a license fee solely
for the purpose of raising revenue. In the exercise of
police power for the purpose of regulation the authority
of a municipality is limited to such a charge for
a license as will bear some reasonable relation
to the additional burdens imposed upon the
municipality by the business or occupation
licensed and the necessary expense involved in
police supervision. [Citations.}”’
Regardless of the nomenclature, the Chicago Park District
is precluded from raising revenue by this means and thus the
500% profit is illegal. The mooring permit fees should be “limited
to such a charge... as will bear some reasonable relation” to
the
Page
POINTS AND AUTHORITIES
PLAINTIFFS’ COMBINED REPLY BRIEF TO BRIEF
AND ARGUMENT FOR DEFENDANT-RESPONDENT,
BRIEF OF THE ILLINOIS MUNICIPAL LEAGUE AND
BRIEF OF THE ILLINOIS ASSOCIATION OF PARK
I So de ae ano calc éeb eneleees 1
Illinois Supreme Court Rule 341(f),(e) (6) ...............-.045. 2
I. THE CHICAGO PARK DISTRICT JUSTIFIES ITS
DISCRIMINATING AGAINST NONRESIDENTS
AND MAKING PROFITS ON MOORING FEES BY
VERE Ue Gee BREe MEE EE 0 vnc cc sc ccccccdsceccccsces 3
Paepcke v. The Public Building Commission of Chicago,
46 T1234 330, 968 W.E3d 11, IB (IGTO) ... ccccccccccccccees 3
Illinois Constitution of 1970
FE er ee i 5
Illinois Revised Statutes
Ce I RID oc vce cicvcscccconccctévesecees 3
ll. THE PARK DISTRICT IS NOT PERMITTED TO
MAKE A PROFIT ON THE FEES CHARGED FOR
THE SERVICES AND FACILITIES IT SUPPLIES. ....6
A. The MacNeil Case Holds That Fees Must Be
Eat AEE BR Ron ty OE ans PD RG oy eae 6
MacNeil v. Chicago Park District, 401 Ill. 556 (1948) ........ 6,7
B. The Bond Statute Relates to Facilities Constructed With
Bond Proceeds Only And Does Not Govern Pre-Existing
Nonbonded Facilities Or Harbors. ...................5-. 8
C. Section 333.23r(1) Is Cited Out Of Context. .............. y
Chicago Park District v. City of Chicago, 111 [l.2d 7,
ee I NUE oc nc Caccccecevuessecdcvedestec 10
23a
Page
Illinois Revised Statutes
ee iiss iseccccedbocnsnecepase 9
D. There Is Neither Logic Nor Fairness Behind Permitting
The Park District To Make a Profit On Its Fees. ........ 11
Illinois Revised Statutes
occ ccscccccsdvcdvessee ses 11
Chapter 105, Section 333.23n(g) ........-.2-eeeeeeeeeeees 11
ns icccvcsencnsessacbon’ 11
Ill. THERE IS NO JUSTIFICATION FOR CHARGING
NONRESIDENTS A GREATER FEE THAN RESI-
DENTS FOR THE SAME SERVICES. ................ 12
A. The Park District Receives State Funds And Is Therefore
Supported Ey WomresiGemts. ... 0... ccc cccesccccevocees 12
Illinois Revised Statutes
nl np wapeadbcee war ences seen 12
B. The Park District's Arguments Are Bottomed On
EELS OF PO PCC C EET ET CTTCTEE 12
(1) This case does not deal with scarce resources....... 13
Baldwin V. Montana Fish and Game Commission
GF RECTOR, GEE Ue OF CD cose cc ceccccencnvocsvcces 13
Chicago Park District v. City of Chicago, 111 [l.2d 7,
ge G8 ER ee 13
(2) Levying a surcharge on nonresidents is the same
as denying use of the facilities .................... 13
C. The Park District’s Arguments And Laws Are
Misleading And Erroneous. .......... pnbeteeeeseseees 15
(1) The Park District misstates the holding and
reasoning of the Camden case. ..............22++. 15
Association of Data Processing Service Organization v.
CO Ge SE SG SEED 5 sk dcccesceseosncecvasonvere 16
26a
Page
City of Chicago us. Vokes, 28 Il.2d 475 (1963) .............. 17
Gilligan v. Korzen, 56 Ill.2d 387 (1974) ...............20000- 16
Heartt v. Village of Downers Grove, 278 Tl. 92 (1917) ........ 16
Illinois Housing Development Authority v. Van Meter,
GE GUE 6 SuiWicbccea ccs ectuenctade xeon taneres 16
Jenkins v. Wu, 102 IlL.2d 468 (1984) ........................ 16
United Building and Construction Trades Council v.
City of Chicago, 465 U.S. 208 (1984) .................. 15, 16
(3) There is no support in the cases cited for the
proposition that courts have sustained the right to
impose a surcharge on nonresidents. .............. 17
Baldwin v. Fish & Game Commission of Montana,
SD UE Bers te hans Kioe secs wencnbiee cbikas tocecnnes 17
Bastian v. The Personnel Board of City of Chicago,
¥ § bag: Eager ee yt 74199 ota re 18
Fagiano v. Police Board of the City of Chicago,
re ee and warn 00 58 Hae EA eR eee cess 18
Harvey Firemen’s Association v. City of Chicago,
Fe CED 6 koa 3 Gunns chan renee eh scan skeet: 18
Johns v. Redeker, 406 F.2d 878 (8th Cir. 1969) .............. 18
Martinez v. Bynum, 461 U.S. 321 (1983) .................... 17
McClain v. South Pasadena, 318 P.2d 199
errs ory peer Pe er er ore ee ee 17
Quinn v. Irving Park District, 207 Ill.App. 449 (1917) ........ 18
Sturgis v. Washington, 368 F.Supp. 38 (N.E. Wash. 1970)
(three-judge court), summarily affirmed
Sas Se Ce Boho eh ied ee ck bke eee Rks bc enceses 18
Vaswedis w. Bane, 4UB UB. O68 CTE onc cccccccccscccesccces 17
27a
Page
(4) The Public Trust Doctrine in Illinois prohibits
the Park District from imposing a surcharge
Re RG es SEE re 19
Borough of Neptune City v. Borough of Avon-by-the-Sea,
EE ORO oc codec ccncntvsscecvcces 20
Gerwirtz v. City of Long Beach, 330 N.Y.S.2d 495 (1972) ..... 20
Hyland v. Borough of Allenhurst, 148 N.J.Super. 437,
eee ce aces dbicpeessudonescere 19, 20
Hyland v. Borough of Allenhurst, 78 N.J. 190, 393
re skh pb epbbenebvrececeese 20
Paepcke v. The Public Building Commission of Chicago,
46 Ti. 2a 330, 263 N.E.2d 11, 13 (1970) ..........2.-0eceees 19
People ex rel. Scott v. Chicago Park District, 66 U1.
2d 65, 360 N.E.2d 773, 4 Ill. Dec. 660 (1976) ............... 19
Quinn v. Irving Park District, 207 Dl.App. (1917)............ 20
Van Ness v. Borough of Deal, 145 N.J.Super. 368, 367
ee ee iwcheecthnesoo sessed 19
Van Ness v. Borough of Deal, 78 N.J. 174,
LE ee 20
(5) The use of the word ‘may’, in the Park
District's Ordinances, must be read as man-
Ne ee oe occa nkneth ees ves ss 20
City of Chicago v. Grafman, 42 Ill_App. 3d 139, 354 N.E.2d
572 (1976), reversed and remanded on other grounds,
68 T11.2d 112, 368 N.E.2d 891, 11 Ill.Dec. 283 (1977)......... 21
Figures v. Swank, 128 fl.App. 2d 211, 263 N.E.2d
a os el is eater abee ve eecese aes 20
Heartt v. Village of Downers Grove, 278 Ill. 92, 96 (1971)..... 21
Village of Woodridge v. Bohnen Intern., Inc., 60 Il_App.
3d 692, 17 Ill. Dec. 931, 933, 377 N.E.2d 121 (1978).......... 20
28a
Page
Williams v. City of Chicago, 66 I1l.2d 423, 362 N.E.2d
TE cc ete OIG Lace cauau dae ntddek Peweenseenes 21
Chicago Park District Code -
OU OC. Ua ce ke enta va ee debe voes taweweus 20
ee oo eet eee ees eean ee 20
(6) The Park concedes that Article IX Section 2
of the Illinois Constitution applies to any fees
that are in the nature of taxes. ................... 21
Illinois Constitution of 1970
oe ai nc seh rene cacneunsee sea baud’ 21
(7) Bobrowicz is applicable to the case at bar ......... 22
Bobrowicz v. City of Chicago, 168 Ill.App.3d 227,
nnn e eda e eke abb aaeestade 22
Illinois Revised Statutes
os ons va bib veceusa ese nnenc’s 22
Co ee I ED oo cecscccceuwecevwvesewns 22
IV. THE ILLINOIS MUNICIPAL LEAGUE CITES NO
AUTHORITY WHICH SUPPORTS A 100% TO 500%
Sy yee foe | ots). re 22
A. Dillon’s Rule Does Not Support The Chicago Park
No hic 00 904 6 oa SARS AN SS REEW SHORT ARE CuCe Ch ane 22
Chariton v. Champaign Park District, 110 Dl.App.3d
554, 442 N.E.2d 915, 917, 66 Ill. Dec. 354, 356 (1982) ........ 23
Illinois Constitution of 1970
rac ve kanes be eaeness 23
B. Impact Fees Are Limited To Costs..................... 24
Larsen & Zimet, Impact Fees: Et Tu, Illinois?, 21 J. Mar.
pe cute cha cvansebepsiesees 24
Page
V. PLAINTIFFS HAVE NOT WAIVED ANY OF THEIR
Se 5s ec ca bco ake ke eae Rakiuees atas 24
Hux v. Raben (1967), 38 Ill.2d 223, 224, 230 N.E.2d 831 ...... 25
Schutzenhofer v. Granite Steel Co. (1982), 93 Ill.2d 208,
SEF GS Fee es Oe GE onan ck in civascrcsennce 25
Spinelli v. Immanuel Lutheran Evangelical Congregation,
Inc., 118 Tl.2d 389, 515 N.E.2d 1222, 1227, 113 Ill.Dec.
ee SD 3 ios oss cicadas kee aedenne bik eek eae eel eees 25
CA onc ck ob ache cues tadeseetectdranseseeugtaese 26
ia 30a
ITI.
THERE IS NO JUSTIFICATION FOR CHARG-
ING NONRESIDENTS A GREATER FEE THAN
RESIDENTS FOR THE SAME SERVICES.
The Park District devotes almost 60 percent of its brief to
defending its surcharge on nonresidents. It never comes to grips
with the rule in this State parks are for all the citizens of the
state, not for just the residents of the district.
A. The Park District Receives State Funds And Is
Therefore Supported By Nonresidents.
The Park District’s argument that the residents of Chicago
solely support the District’s activities and facilities and should
therefore be able to discriminate against non-residents of Chicago
because they do not support the activities of the Park, flies in
the face of the amount the Park District receives from the State
of Illinois Personal Property Replacement Fund (Ill..Rev.Stat. ch
85, Sec. 616), which in 1983 amounted to $9,164,152, as contrasted
with the $3,402,113 the the Park received from its harbor
operations (R. 432, “Comptroller of the Chicago Park District
Annual Report 1983”, p. 17). Since this tax is collected state wide
and taxing districts in Cook County receive 51.65% of the proceeds
of the tax, all nonresidents of the Chicago Park District subject
to the Personal Property Replacement Tax subsidize the Chicago
Park District each and every year just as if their real estate were
taxed in Cook County. The Chicago Park District is directly and
indirectly financially supported by nonresidents of Chicago.
B. The Park District’s Arguments Are Bottomed On
Specious Foundations.
There are several dominant and recurring themes that
pervade the arguments of the CPD that are specious.
(1) This case does not deal with scarce
resources.
In an attempt to bring this case under Baldwin v. Montana
Fish and Game Commission of Montana, 436 U.S. 371 (1983),
the CPD claims that its harbors and facilities are “scarce” and
“limited.” Disregarding the interstate aspects of Baldwin, there
ee
3la
are two things wrong with this claim. First, there is nothing
in the record to show it to be true. (Contrast that with the evidence
produced in Baldwin.) Second, it is just not true. Harbors are
not wasting assets. They use up only a minute fraction of the
shore space available to the Park District. There are unused miles
and miles of potential harbors. As this Court stated in Chicago
Park District v. City of Chicago, 111 Il.2d 7, 488 N.E.2d 968,
972 (1986) “This [a decrease in the waiting list] was accompanied,
however, by a steady increase in the number of moorings
available from 3,674 in 1978 to 5,090 in 1983.” This growth is
continuing. Plaintiffs ask the court to take judicial notice of the
CPD’s Director of Harbors announcement, circulated to the class
members, that the Chicago Park District is adding a new Turning
Basin Marina and has plans for additional harbors (Appendix
B attached hereto, p.2). Rather then being scarce and limited
facilities, CPD moorings are an expanding asset.
(2) Levying a surcharge on nonresidents is
the same as denying use of the facilities.
One of the Park District’s more pervasive sophistries is its
insistence that it is not denying or limiting access to its facilities
by requiring a nonresident to pay a 25% surcharge over the fee
charged residents. By the District's own admission, one (and
the predominant one) of the purposes of its own surcharge is
to exclude nonresidents. On pages 56 to 58 of its brief the Park
District tells us the extra fee will not deny nonresidents the use
of its facilities. On pages 34 to 37, though, it argues that the
surcharge does just exactly that, to wit: It protects residents from
not having the facilities available to them because nonresidents
have crowded them out. According to the caption, the surcharge
is a “rational means of preserving scarce recreational amenities
for the benefit of the District’s residents.” (CPD, p.34) The Park
District’s arguments have the consistency of an archer with the
hiccups.
The Park District’s argues that “history” has shown that
it has not happened. (CPD, p.44) All “history” is not in the record
in this case. If it were, it would show that the opposite were
true: that it is becoming a common practice for park districts
to attempt to exclude nonresidents by imposing higher fees on
them, as an article from the Chicago Tribune of February 15,
32a
1987, attached hereto as Appendix C. shows, giving lie to the
Park District’s statement. Lake Forest has beaches and wants
to make sure nonresidents don’t use them; they therefore require
a $750 fee from nonresidents. As the article states:
“City officials in Lake Forest are up front about their
motives for planning to charge 15 times what they used
to charge for lakefront parking: They don’t want
outsiders cluttering up their nice new beach.”
Further giving lie to the “historical” answer of the Park
District are the amici briefs. The LAPD admits that 95% of the
park districts in Illinois (p.8) discriminate against nonresidents
and both amici want this court to approve residency
discrimination.
C. The Park District’s Arguments And Law Are
Misleading And Erroneous.
The CPD has cited in its brief a number of cases not cited
by Plaintiffs. Because these decisions’ factual foundations are
substantially and meaningfully distinguishable, their stated
rationale do not stand as conflicting authority from Plaintiffs’
positions.
(1) The Park District Misstates The Holding
And Reasoning Of The Camden Case.
The Park District deliberately quotes from United Building
and Construction Trades Council v. City of Camden, 465 US.
208 (1984), out of context to make it appear that Camden says
something that it does not. On page 30 of its brief the District
says:
“Such discrimination [by a state against nonresidents]
can be attacked only ‘at the behest of out-of-state
residents.’” 465 U.S. at 218.
The quoted phrase is lifted from language that said some-
thing completely different. The omitted language preceding the
CPD’s quotation is:
“We conclude that Camden’s ordinance is not immune
from Constitutional! review at the behest of out-of-state
33a
residents merely because some in-state residents are
similarly disadvantaged.” Jd.
As the full quotation shows, the quote by the CPD does not
at all support the meaning of Camden. The quotation does
buttress the meaning of the case as posited by Plaintiffs. however.
It is encapsulated in another quotation from the case:
“A person who is not residing in a given state is ipso
facto not residing in a city within that state. Thus
whether the exercise of a privilege is conditioned on state
residency or on municipal residence he will just as surely
be excluded.” (79 L.Ed. at 257.)
In support of its misleading interpretation of Camden, the
District cites (p. 30) Association of Data Processing Service
Organization vs. Camp, 397 U.S. 150, 158 (1950). Ite bearing on
the instant case is nonexistent.
(2) The Park District Misstates The Hold-
ings Of The Cases Cited Under The Equal
Protection Clause.
The Park District cites five Illinois cases and two federal
cases on pages 32 to 34 of its brief to support its argument that
the discrimination against nonresidents is supported by the Equal
Protection Clause. None do so.
Jenkins us. Wu, 102 Il.2d 468 (1984), dealt with the right
of access to medical files and is irrelevant, both in facts and
law. The Illinois Housing Development Authority v. Van Meter,
82 I1.2d 116 (1980), case is even wider of the mark. It dealt with
the State Housing Development Act’s eligibility requirement that
was based on wealth. The Gilligan v. Korzen, 56 [1].2d 387 (1974),
case dealt with a motor vehicle tax on residents of unimproved
areas of a county where the levying authority was home rule
unit and the tax was within the powers granted it. The court
rested its decision on the Heartt v. Village of Downers Grove,
278 Ill. 92 (1917). Both Gilligan and Heartt support Plaintiffs’
position in this case. City of Chicago v. Vokes, 28 Il.2d 475 (1963),
case is merely one of a long series of taxicab cases that have
dealt with the prosecution of a taxicab driver who was not licensed
in Chicago, but picked up a customer in Chicago.
36a
considerable skepticism upon amy governmental con-
duct which is calculated either to reallocate that
resource to more restricted uses or to subject public uses
to the self-interest of private parties.” [emphasis in
originals, Paepcke v. The Public Building Commission
of Chicago, 46 T11.2d 330, 263 N.E.2d 11, 16 (1970); People
Ex Rel. Scott v. Chicago Park District, 66 111.2d 65, 360
N.E.2d 773, 780, 4 Ill. Dec. 660, 667 (1976)]
The CPD ignores the relevant aspect of the doctrine: reallocating
public resources to more restricted uses. The CPD is violating
the first restriction by reallocting the mooring facilities from the
general public to the residents of the CPD. Not one authority
cited by the CPD supports its contention that it can promote
its own residents over nonresidents. See discussion of Paepcke
at page 4 of this reply.
The CPD cites, at pp. 54-56, intermediate-level New Jersey
case law as authority for the supposed proposition that the Public
Trust Doctrine does not extend to the use of man-made facilities.
However, both Van Ness v. Borough of Deal, 145 N.J.Super. 368,
367 A.2d 1191 (1976), and Hyland v. Borough of Allenhurst, 148
N.J.Super. 437, 372 A.2d 1133 (1977), cited and relied on by the
CPD were reversed by the Supreme Court of New Jersey, based
on the Public Trust Doctrine established in Borough of Neptune
City v. Borough of Avon-by-the-Sea, 61 J.J. 296, 294 A.2d 47
(1972). See Van Ness, 78 N.J. 174, 393 A.2d 571 (1978); Hyland,
78 N.J. 190, 393 A.2d 579 (1978). Other cases have applied the
Public Trust Doctrine to public lands including any improve-
ments thereon. See, e.g., Quinn v. Irving Park District, 207 T.App.
(1917); Gewirtz v. City of Long Beach, 330 N.Y.S.2d 495 (1972)
(citing Neptune City).
The CPD cannot avoid the application of the Public Trust
Doctrine which invalidates their discriminatory surcharge on
non-residents.
37a
(5) The Use Of The Word “May”, In The Park
District’s Ordinances, Must Be Read As
Mandatory, Not Permissive.
The CPD’s assertion that its Sec. 30-3 controls the amount
that can be charged (CPD, p.59) is in error. The ordinance says
nothing concerning the amount of the fee or how it is to be
assessed, all of which is covered in Sec. 30-8. The CPD cites
no authority for its assertion that the word “may” in Sec. 30-
8 is permissive. Contrary thereto, the word “may” is mandatory
in Sec 30-8, requiring that fees be uniform to all users and
reasonable in amount. The sentence would otherwise make no
sense since “permission” is always available to those setting the
fees. Under the case law the word is mandatory, otherwise the
sentence would have to be considered superfluous. Village of
Woodridge v. Bohnen Intern., Inc., 60 IApp. 3d 692, 17 Ill. Dec.
931, 933, 377 N.E.2d 121 (1978); Figures v. Swank, 128 Ill. App.
2d 211, 263
34a
Neither of the two federal cases is any more relevant than
the five Illinois cases.
(3) There is no support in the cases cited for
the proposition that courts have sus-
tained the right to impose a surcharge
on nonresidents.
The Park District cites three U.S. Supreme Court cases as
support for its right to impose a surcharge on nonresidents. These
are Baldwin v. Fish & Game Commission of Montana, 436 U.S.
371 (1977), Martinez v. Bynum, 461 U.S. 321 (1983), and Viandis
v. Kline, 412 U.S. 441 (1973). Baldwin has already been discussed
at length.
The issue in Viandis was not whether a right to discriminate
had taken place, but whether an irrebuttable presumption of
nonresidence was valid. The quotation printed by the Park
District was actually part of what the court was careful to
emphasize was not being decided in the case. The line imme-
diately following the words quoted is:
“We hold only that a permanent irrebuttable presump-
tion of nonresidence . . . is violative of the Due Process
Clause... .”
Thus Viandis did not deal at all with the issues in this case.
Nor did Martinez. The parents of Martinez lived in Mexico and
Martinez left to live with his sister in Texas in order to go to
school. The question was whether Texas could exclude him from
the in-state tuition rates. The court held it could, but the case
does not support the right of a park district to impose a surcharge
on residents of other communities within the same state.
Nor do either of the two lower holdings (in California and
New York) cited on page 36 of the CPD’s brief support this
position. In fact McClain v. South Pasadena, 318 P.2d 199 (Cal.
App. 1957) permitted total exclusion of nonresidents from the
park facilities which is contrary to Illinois Law. See Quinn v.
Irving Park District, 207 Tl.App. 449 (1917).
The CPD cites two other tuition residency cases on page
38. Both of them were concerned with the definition of “resi-
35a
dency”, not the reasonableness of the fees. However, in Sturgis
v. Washington, 368 F.Supp. 38 (N.D. Wash. 1970) (three-judge
court), summarily affirmed 414 U.S. 1057 (1973), we find the court
concerned with whether the nonresident was being overcharged,
and the court found that nonresidents were not being charged
more than their share of expenses:
“{TJhe only evidence before this court which relates to
the actual cost of higher education in the State of
Washington shows that the fees for a non-resident
student are directly related to the cost of educating that
student. Thus, the non-resident student merely pays his
way and no penalty can correctly be said to have
attached to the non-resident status.”
See also Johns v. Redeker, 406 F.2d 878 (8th Cir. 1969) (same
holding as Sturgis - non-resident students merely paying the per
pupil cost of education).
The Illinois cases cited by the CPD — Fagiano v. Police
Board of the City of Chicago, 98 012d 277 (1983), Bastian v.
The Personnel Board of City of Chicago, 98 U11.2d 277 (1983),
and Harvey Firemen’s Association v. City of Harvey, 75 U0l.2d
358 (1979) — similarly did not deal with the issues of this case.
Both Fagiano and Bastian dealt with whether residency require-
ments were definite or ambiguous. In both, the courts held that
the requirements contained sufficient standards to meet [Illinois
law. The issue in Harvey was what powers had been granted
by the General Assembly and is obviously unrelated to the issues
in this case.
(4) The Public Trust Doctrine In Illinois
Prohibits The Park District From Im-
posing A Surcharge On Nonresidents.
The CPD attempts to evade the Public Trust Doctrine by
focusing on an irrelevant aspect of the doctrine: ceding ownership
of public land to private interests. There is more than one aspect
to the Public Trust Doctrine in Illinois. The public trust doctrine
as enunciated by this court is as follows:
“When a state holds a resource which is available for
the free use of the general public, a court will look with
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.