Our preceding post, the second in a five-part series, described how the original assumption about standing to enforce the public trust doctrine was based on the parens patriae model. If the trust protects a right shared by all members of the public, then, it was assumed, the natural party to enforce that right is a legal officer accountable to the general public: namely, the state attorney general.
We also suggested that this model has two shortcomings: (1) If the political establishment (including the attorney general) favors private development, the trust will not be enforced; and (2) if the political establishment is divided about a proposed development, the attorney general may have too much gatekeeping power to decide whether the dispute gets to court.
Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), our recently published book, recounts how the parens patriae model was eventually replaced by a radically different understanding: specifically, that private citizens (taxpayers) also have standing to enforce the public trust doctrine. Before coming to this most permissive of rules, however, the Illinois Supreme Court endorsed an intermediate model of standing—one that, at least in theory, went beyond the attorney general to allow private citizens to sue in special circumstances.
1. The Special-Injury Rule
For some four decades, up through the 1960s, the Illinois courts stated support for the notion that there was an exception to the parens patriae model of standing. Private plaintiffs (as well as the attorney general) could sue to enforce the public trust if they could show “special injury”—that is, injury qualitatively different from that experienced by other members of the public.
This was based on an analogy to public nuisance law. Public nuisance doctrine assumes that public officials (prosecutors) will generally be the ones to sue to abate a public nuisance, but individual members of the public can also sue, if they can show that they have suffered injury qualitatively different from the general harm. Public nuisances are “collective bads” (such as blocking a navigable waterway); the public trust protects collective goods (such as preserving access to a navigable waterway). So arguably the analogy made sense.
The Illinois Supreme Court held in 1928, in McCormick v. Chicago Yacht Club, that a Michigan Avenue property owner could not pursue a public trust doctrine challenge to the construction of a yacht club situated east of Grant Park, in Lake Michigan, because the owner could not show special injury from the project. And in 1933, in Koehler v. Century of Progress, the court refused to entertain a public trust suit by a private citizen to enjoin the World’s Fair, to be situated on landfill in the lake, because she could not demonstrate special injury.
It is true that no case (of the public trust doctrine sort) held that the special-injury requirement had been satisfied. But perhaps this was because no private plaintiff emerged who could claim injury grounded in the traditional rationale for the public trust doctrine: denial of access to engage in commerce or fishing on navigable waters. And private-party standing was upheld any number of times, on the basis of special injury, in the public nuisance context that had provided the concept.
In all events, in the 1960s and early 1970s, with the environmental movement emerging and then burgeoning, pressure developed for a more expansive conception of standing to enforce the public trust doctrine. In 1963, the Illinois legislature approved a grant of 194.6 acres of submerged land for a lakeward expansion of U.S. Steel’s South Works plant, on Chicago’s far South Side (shown at the bottom of this map from Lakefront). The political establishment supported the plan, at least initially—jobs and tax revenues were the winning arguments—and the attorney general defended the grant in court.
Such a defense was required because sentiment was different in Hyde Park, the enclave surrounding the University of Chicago, a couple of miles north of the South Works. One Albert Droste, an insurance broker living in the neighborhood, filed a lawsuit seeking to enjoin the sale. Droste described himself as “a private citizen trying to combat special-interest legislation at the expense of future public recreational facilities.” He argued, with considerable plausibility, that the sale of the submerged land violated the public trust doctrine.
When Droste v. Kerner reached the Illinois Supreme Court, the justices engaged in an embarrassing series of gyrations. At first the court ruled, following the earlier precedent, that Droste had no standing to raise the public trust issue. Then on rehearing, it held that he had standing and that the grant was unconstitutional under a state constitutional provision prohibiting special legislation. Finally, in 1966, after granting rehearing again, the court decided, in one opinion, both that the grant was constitutional and then, in a curious inversion of issues, that Droste did not have standing because he could not show special injury.
A dissenting opinion in Droste filed by Justice Walter V. Schaefer, himself a product of Hyde Park, recounted extensive Illinois authority holding that individual taxpayers had standing to challenge the misappropriation of public funds or the government’s expenditure of funds under an illegal contract. These decisions, he concluded, were based on a legislative policy that taxpayers should not be forced “to rely solely upon the efforts of public officers for the protection of public rights.” 34 Ill. 2d 495, 511, 217 N.E.2d 73, 83 (1966) (dissent). Although he could cite no decision that “squarely involved the disposition of public property of the state, as distinguished from the disbursement of its public funds,” he perceived “no reason” why the two situations should be protected by a different standing rule. Id. at 512, 217 N.E.2d at 83 (dissent).
So a flag was planted in favor of giving any Illinois taxpayer the right to sue for a violation of the public trust.
2. Taxpayer Standing
The special-injury rule remained the law in Illinois for only four more years. A suit by another Hyde Parker, Paepcke v. Public Building Commission, challenged a proposal to transfer a corner of Washington Park, adjoining Hyde Park to the west, for the construction of a new middle school. The named plaintiff, Elizabeth Nitze Paepcke, was the daughter of a prominent University of Chicago professor and spouse of a wealthy Chicago industrialist; she and Walter Paepcke were prime movers behind the development of ski resorts and cultural institutions in Aspen, Colorado. There was no evidence that she could claim any special injury from the diversion of part of Washington Park for the use of a public school.
Nevertheless, the court upheld Paepcke’s standing to sue. To get there, it forthrightly overruled the standing decision in Droste and “any other former decisions” requiring proof of special injury for a citizen to challenge a disposition of public property under the public trust doctrine. 46 Ill. 2d 330, 341, 263 N.E.2d 11, 18 (1970). Adopting Justice Schaefer’s dissent in Droste as the better position, the court concluded that any Illinois taxpayer should have standing to raise a public trust claim. The court wrote that telling citizens and taxpayers “that they must wait upon governmental action is often an effectual denial of the right for all time.” Id.
The only plausible explanation for this about-face is that the Illinois Supreme Court, or at least the author of its Paepcke opinion, Justice Marvin F. Burt, was eager to expand the scope and enforcement of the public trust doctrine. The change in the law of standing, along with other language in the opinion suggesting that the trust covers a much broader scope of public resources than navigable waterways, was not necessary to the outcome. In fact, the decision was unanimous in rejecting the merits of the public trust challenge to the school’s construction in the park.
3. From Under- to Over-enforcement?
For the fifty-plus years since Paepcke, taxpayer standing to enforce the public trust has been the law in Illinois. In practice, this means universal standing. The effect has been to expand gatekeeper authority to bring public trust issues to court, beyond the attorney general, now to include nongovernmental organizations (NGOs) that have a strong bent toward preservation of the resources protected by the public trust doctrine.
The four most recent public trust controversies all fit this pattern (again, this most general of our various Lakefront maps, prepared by Dennis McClendon of Chicago CartoGraphics, may be helpful). In 1990, a legislatively authorized proposal to expand Loyola University’s campus on the North Side was challenged by a group then called the Lake Michigan Federation. In 2003, a legislatively authorized plan to rebuild Soldier Field to make it more attractive to the prime tenant, the Chicago Bears, was challenged in the Illinois Supreme Court by the Friends of the Parks. In 2014, a legislatively authorized proposal to build the Lucas Museum of the Narrative Arts on the lakefront, just south of Soldier Field (or, for map-viewing purposes, toward the northern end of Burnham Park), was taken to court by the Friends of the Parks. And most recently, a legislatively approved plan to construct the Obama Presidential Center in Jackson Park, which abuts the lake on the South Side, elicited a suit by a group called Protect Our Parks.
If the law were clear, litigation were costless, and the delays attendant to litigation did not often have an outcome-determinative effect, perhaps turning over enforcement decisions to NGOs would not matter. In fact, the public trust doctrine satisfies these conditions even less than does much else of the law.
The result has been to transfer authority over public trust resources from politically accountable institutions such as the legislature and the attorney general to advocacy groups and courts exercising broad discretion. In three of the four most recent cases, this has meant a single federal district judge insulated from the political process. This transformation is problematic as a matter of both democratic theory and comparative institutional advantage.
Arguably, a compromise position like the special-injury rule would strike a better balance between under- and over-enforcement. Before considering that possibility, we will turn, in our next (fourth) post, to yet another standing rule that emerged on the lakefront.
Posted by Joseph D. Kearney and Thomas W. Merrill
I have thought so many times of entering the blogging world as I love reading them. I think I finally have the courage to give it a try. Thank you so much for all of the ideas!
Posted by: Donald Rain | July 17, 2021 at 06:20 PM