As noted in our previous post, the first in this five-entry guest series, our recently published book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), discusses a variety of common-law rules governing who has standing to sue for alleged violations of public rights. In the book itself, standing is only part of the stories, with our focus more frequently being on the primary conduct affecting or proposed for the lakefront.
Yet standing has much to do with the results (or very existence) of the countless cases contesting that conduct and thus with what has occurred—and what has not—on the extraordinary expanse that is Chicago’s lakefront.
So this aspect of the law merits reflection, and, in this series, we are using Lakefront to make some rough generalizations about the pros and cons of the different doctrines governing who has standing to enforce public rights. This post takes up the first of these standing rules, which says that rights common to the general public should be enforced by an officer who is accountable to all members of the general public. We call this the parens patriae model of standing.
1. The Parens Patriae Model
In 1892, in Illinois Central Railroad Co. v. Illinois, the U.S. Supreme Court announced the American experiment with the public trust doctrine to resolve a major-league controversy afflicting the Chicago lakefront, next to the city’s downtown. The case involved the grant by the state legislature, in 1869, of 1,000 acres of submerged land in Lake Michigan to the Illinois Central Railroad, so that the company could construct a harbor in the lake, privately owning and operating it.
Although the legislature had repealed the grant a mere four years later, in 1873, the railroad powerfully argued, based on longstanding doctrine, that the original grant was a vested right under the Contracts Clause and could not be abrogated.
The Court held that the repeal was constitutional because the resource in question was impressed with a trust in favor of open access. Hence, the original grant was revocable, if not void ab initio. Thus was announced the American public trust doctrine.
The State of Illinois was represented in 1892 (and in the underlying litigation) by the state attorney general. Because the state was arguing to uphold the repeal of the grant, there was no conflict between the state’s position and the public right, as it would be characterized by the Court in terms of the public trust idea.
This gave rise, at least implicitly, to the understanding that the state attorney general is the proper party to sue to enforce this newly announced public trust. Again, we can call this the parens patriae model: a legal officer of the state has inherent and exclusive authority to sue to enforce rights common to the general public.
The next several controversies about the application of the public trust doctrine on the lakefront did nothing to dispel this understanding.
For example, in 1894, the state attorney general (a crusading progressive) sued to invalidate a grant of land to private parties, which was intended to help finance the construction of Lake Shore Drive in the area of Chicago now known as Streeterville. (The AG lost in 1896.)
And when the state legislature in 1909 granted 234 acres of submerged land to a steel mill on the far South Side, the governor consulted the attorney general as to whether this was permissible. (The AG—no longer a crusading progressive—said yes.)
2. Parens Patriae and Support Within the Political Establishment for Private Development
The parens patriae model works well when the political establishment has become more or less united in support of the idea that resources should remain open to the public, as in the 1892 case. It does not work so well when the political establishment is united in support of transferring a portion of a public trust resource for private development—a situation of which Lakefront provides a number of instances.
The aforementioned grant in 1909—of 234 acres of submerged land to a steel company—is a good example of the phenomenon of unified support among public officials for private development. The state legislature was lobbied for the grant on the grounds that it would save 10,000 jobs said to be dependent on the steel mill; the governor was supportive; and the attorney general (unsurprisingly) said, in essence, “No problem.” So no effort was made to enforce the trust in court.
Here is another such instance: In the early 1960s, Northwestern University decided that it wanted to double the size of its campus in Evanston, immediately north of Chicago, by landfilling in the lake (a map, Figure 0.2 from Lakefront, prepared by Dennis McClendon of Chicago CartoGraphics, helps provide geographic context). The university did a masterful job of schmoozing the relevant politicians and government actors, and the state legislature obligingly granted 152 acres of submerged land for $100 an acre (using the same price as for the steel mill in 1909). No one inquired of the attorney general whether the public trust doctrine posed any issue.
More recently, in 2014, George Lucas, the movie producer, envisioned a museum that would be built on the Chicago lakefront, just south of the Field Museum and Soldier Field (in the northernmost part of Burnham Park, simply to speak again in the language of the same map as before); this proposed Lucas Museum of Narrative Arts would include display of Star Wars movie props. The mayor and city council, presented with a privately funded $400 million project that would create jobs and increase tourism, were all in favor. The state legislature and every local land-use agency moved with alacrity to approve the proposal.
If the only entity with legal standing to allege a violation of the public trust doctrine had been the state attorney general, the museum would be on the lakefront today. (In fact, the museum was chased out of town only because the parens patriae model no longer ruled the day and because nongovernment organizations were held to have standing under a different, unusual theory, as we will describe in our fifth and final post.)
The same formal political situation presented itself in the case of the Obama Presidential Center, slated for Jackson Park on the South Side. It is an understatement to say that the establishment in Chicago and Illinois more generally is strongly supportive of the project. Here, too, if only the state attorney general could sue, there would have been no litigation seeking to invoke the public trust doctrine against construction of the OPC.
In all events, one can see that, in general, parens patriae standing presents a danger of underenforcement of public rights. It works really well if political forces have come to be aligned in support of public rights (e.g., against a grant of land to a private party). It works not so well if political forces are aligned in opposition to such rights.
3. Parens Patriae and Conflict Within the Political Establishment
A more subtle problem with parens patriae standing occurs when the political establishment is divided about whether to support public rights.
A good example is the bid by the U.S. Steel Corporation in the 1960s and 1970s for an additional grant of submerged land to expand its South Works mill on the far South Side of Chicago (this was the same mill that had received a grant to supplement its property in 1909); once again, the map shows the location. The company argued that the plant had to grow in order to remain competitive with larger mills. The legislature was supportive, granting 194.6 acres of submerged land, for expansion, in 1963. In the next several years, the state attorney general successfully defended the grant in court.
But, for reasons unknown, the steel company did not tender the small amount required ($19,460) until 1973. In the meantime, a new attorney general, William Scott, had been elected. He was angling for the Republican nomination for the U.S. Senate and, through a series of actions, sought to cast himself as a champion of the environment. This included filing a state court suit in 1973 to invalidate the grant to the steel mill under the public trust doctrine. The governor, initially named as a defendant but not to be outflanked on the environment, realigned as a plaintiff.
Scott’s lawsuit posed a conflict between two factions within the political establishment: the legislature on one side and the attorney general and the governor on the other. This was mirrored by a conflict between the company and the steelworker unions, which supported the project, and the growing movement for greater preservation of the lakefront, which was opposed. The state supreme court was essentially cast in the role of arbitrator (it sided with Scott and scuttled the sale).
Such multisided conflicts are perhaps inevitable, and one can argue that the courts are the best institution to resolve them. But under the parens patriae model of standing, it is merely the fortuity of the views of the attorney general, acting as a gatekeeper, that determine whether the conflict goes to court or whether it is simply resolved as a matter of politics. Arguably, this gives the principal legal officer too much power in determining whether public rights will be enforced.
* * * *
These two shortcomings of the parens patriae conception of standing to enforce public rights—too little enforcement, if the political establishment is opposed to those rights, and too much power in the attorney general to act as the gatekeeper in determining whether to seek to enforce such rights—led to the development on the lakefront of rival conceptions of standing to sue. We will discuss these in our next (third) post.
Posted by Joseph D. Kearney and Thomas W. Merrill
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