Chapmpan Kelley V. Cpd (cpd Reply Brief)

Case: 08-3701

Document: 21

Filed: 06/24/2009

Pages: 12

Nos. 08-3701 & 3712 _____________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT _________________________________________________ Chapman Kelley, Plaintiff-Appellant, Cross- Appellee, v. Chicago Park District, Defendant-Appellee, Cross-Appellant ____________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 04- CV-07715 The Honorable David H. Coar _____________________________________________________________________ REPLY OF DEFENDANT-APPELLEE, CROSS-APPELLANT, CHICAGO PARK DISTRICT _____________________________________________________________________ David R. Donnersberger Nelson A. Brown, Jr. CHICAGO PARK DISTRICT 541 North Fairbanks Ct., 3rd floor Chicago, Illinois 60611 Annette M. McGarry Marianne C. Holzhall McGarry and McGarry, LLC 120 North LaSalle Street, Chicago, Illinois 60602 Counsel for Cross-Appellant Chicago Park District Dated: June 24, 2009

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TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................................... ii I.

ARGUMENT ................................................................................................................ 1 A.

Kelley’s Interpretation of the Park Act Violates Well-Settled Principles of Statutory Construction.................................................................................................................. 1

B.

The Parties’ Course of Dealing Prior to 1994 Reflects the Proper Interpretation of the Park Act. ................................................................................................................. 4

II.

CONCLUSION ............................................................................................................. 5

CERTIFICATE OF COMPLIANCE ...................................................................................... 6 CIRCUIT RULE 30(D) STATEMENT ................................................................................... 7 CIRCUIT RULE 31(E) CERTIFICATION ............................................................................ 8 CERTIFICATE OF SERVICE................................................................................................ 9

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TABLE OF AUTHORITIES Cases Gillespie v. Trans Union Corp., 482 F.3d 907 (7th Cir. 2007).................................................. 1, 3 Kelley v. Chicago Park District, No. 04 C 7715, 2008 WL 444986 (N.D. Ill., Sept. 29, 2008) ........................................................................................................... 1 People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 198 (Ill. 1980) ...................................................... 3 People v. McCarty, 223 Ill. 2d 109, 858 N.E.2d 15 (2006).......................................................... 1 Statutes 5 ILCS 120/2.............................................................................................................................. 3 70 ILCS 1505/4 .......................................................................................................................... 3 70 ILCS 1505/7.01 ..................................................................................................................... 2

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I. ARGUMENT A.

Kelley’s Interpretation of the Park Act Violates Well-Settled Principles of Statutory Construction.

Kelley advances an indefensible statutory interpretation of the Chicago Park District Act (“Park Act”), 70 ILCS 1505/0.01 et seq., asserting that an offhand comment by a single member of the Park District’s Board of Commissioners at a luncheon extended his permit to maintain Wildflower Works in the Daley Bicentennial Plaza. Even the district court expressed doubt about the validity of Kelley’s interpretation. Kelley v. Chicago Park District, No. 04 C 7715, 2008 WL 444986 *8 n.6 (N.D. Ill., Sept. 29, 2008). That doubt was well-founded. Kelley’s interpretation of the Park Act both mocks a plain-language interpretation of statute and, by neglecting to interpret the statute as a whole, violates the fundamental principle of in pari materia: Under the doctrine of in pari materia, two statutes dealing with the same subject will be considered with reference to one another to give them harmonious effect. People v. Taylor, 221 Ill. 2d 157, 161 n.1, 850 N.E.2d 134, 302 Ill. Dec. 697 (2006). The doctrine is also applicable to different sections of the same statute, and is consistent with the fundamental rule of statutory interpretation that all the provisions of a statute must be viewed as a whole. People v. McCarty, 223 Ill. 2d 109, 133, 858 N.E.2d 15, 31 (2006). Moreover, courts seek to avoid interpretations of statutes that would render words or other sections superfluous. Gillespie v. Trans Union Corp., 482 F.3d 907, 909 (7th Cir. 2007). Using its power of de novo review, this Court should reject Kelley’s and the district court’s interpretation of the Park Act. Kelley violated both the principles of plain-language interpretation and of in pari materia by failing to integrate the two sections of the Park Act into a unified whole. Kelley’s so-called “plain language interpretation” of 70 ILCS 1505/7.01 grants to each individual commissioner the

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"full power to manage and control all the officers and property of the district, and all parks . . . maintained to such district or committed to its care and custody." (Response and Reply Brief of Plaintiff-Appellant, Cross-Appellee Chapman Kelley (“Kelley Response”) at 26-27) In fact, Section 1505/7.01 states “[t]he commissioners of such district constitute the corporate authorities thereof . . .” 70 ILCS 1505/7.01. Kelley’s interpretation allows an individual commissioner to legally bind the Park District to obligations at his or her whim, without consulting with the other commissioners in some formal setting. This is no way to run a public body. The Park District’s interpretation of Section 1505/7.01 makes more sense. The plainlanguage interpretation of the expression that “commissioners . . . constitute the corporate authorities thereof” means that the commissioners acting together, in a formal setting as provided for in the Park Act and in the Code of the Chicago Park District, control the Park District’s activities. This interpretation allows the Park District to operate with orderly and transparent procedures. If one statutory interpretation offers the orderly and open operation of public business and the other guarantees conflict, uncertainty and confusion, it should not be difficult to conclude which interpretation the legislature had in mind. Moreover, not only does the Park District’s interpretation comport with the plain-language interpretation – and common sense - but it also is consistent with the principle of in pari material, both when the Park Act is examined as a whole and when the Act is considered in relation to other laws. Sections 1505/4 and 1505/7.01 of the Park Act, examined together, establish that individual commissioners can take “official action” in managing Park District affairs only when they meet in formal meetings and approve such action with the affirmative votes of at least four commissioners. Section 1505/4 of the Park Act unambiguously vests the power to bind the Park District with the entire Board of Commissioners, stating that “[n]o official action shall be taken 2

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except upon the favorable vote of 4 commissioners.” 70 ILCS 1505/4. If, as Kelley asserts, each commissioner has full authority to individually and unilaterally manage and control all of the Park District's officers, property and parks, it is impossible to imagine what other “official action” might possibly require the four votes mandated by Section 1505/4. Yet Kelley’s proposed construction of the Park District Act would require this Court to disregard Section 1505/4, r e n dering it superfluous in violation o f long-established principles of statutory interpretation. See, e.g., Gillespie v. Trans Union Corp., 482 F.3d 907, 909 (7th Cir. 2007). Moreover, Kelley’s interpretation of the Park Act conflicts with other statutes governing the actions of the Board of Commissioners. For example, the Park District’s corporate authorities must operate under the Open Meetings Act, 5 ILCS 120/1.01 et seq. The Open Meetings Act requires the Park District to conduct most of its public business at open public meetings: “All meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a [5 ILCS 120/2a].”5 ILCS 120/2; see also, People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 198 (Ill. 1980) (meetings of less than all governing officials where final decisions are made must comply with the Opening Meetings Act). Although Section 120/2(c) lists 24 subjects that may be discussed in a closed meeting, none would apply to a Park District decision to permit a private party to occupy public land for something like the Wildflower Works. Unless the Open Meetings Act and the Park Act are irrelevant superfluities, this Court must reject Kelley’s contention that individual commissioners are empowered to legally bind the Park District. Kelley’s interpretation is a prescription for chaos.

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B.

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The Parties’ Course of Dealing Prior to 1994 Reflects the Proper Interpretation of the Park Act.

Furthermore, the course of dealing between Kelley and the Park District dispels any notion that he could lay claim to a couple of acres of lakefront Chicago Park District property by an admittedly confusing exchange with a single commissioner during a get-together at the Pearl Restaurant. Margaret Burroughs, the commissioner who Kelley contends extended his permit, testified unequivocally that she had no individual authority to issue permits. (A0434, A0437) Kelley’s own trial exhibits demonstrate that each of Kelley’s permits and extensions was proposed to the Board of Commissioners of the Park District, and not to any single commissioner. (See, A0029-34, A0041-46) Each extension of Kelley’s permit from 1988 to 1994 was acted upon at a meeting of the Board of Commissioners, by proposal of a resolution to extend the permit, a motion that the resolution be adopted, and a vote of the Board as a whole adopting the resolution, all duly recorded in the minutes of the meeting. (A0047-51) None of his permit extensions through 1994 was granted by way of a cryptic comment of a single commissioner at a luncheon. Finally, the record is devoid of any evidence concerning the terms of the extension. Jonathan Dedmon, the president of Wildflower Works, Inc. and a guest of Dr. Burroughs at the Pearl, expressed puzzlement as to what she meant by the offhand comment, “Well, you’re there.” (A0112, A0121) Kelley himself exhibits confusion about the terms and the very validity of his permit to have a wildflower garden in Grant Park. Kelley repeatedly confirmed that he had consciously incorporated the vents of the Monroe Street Parking Garage into the design of the garden, and he planted the garden on the roof of the garage. (A0181, A0134, A0359) Now, however, he contends that he never consented to the incorporation of Wildflower Works into the

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garage roof, because his permit was for a wildflower garden in Daley Bicentennial Plaza, and not the Monroe Street Parking Garage. (Kelley Response at 21) If that is the case, then Kelley never had a permit, extended or not, to plant Wildflower Works where he planted it. II. CONCLUSION For the foregoing reasons, the Chicago Park District asks that this Court reverse the rulings of the district court that the Park District had extended Kelley’s permit to operate the Wildflower Works breached an implied contract with Kelley and that the Park District violated this extended permit when it reconfigured the Wildflower Works. Respectfully submitted,

CHICAGO PARK DISTRICT

By:

David Donnersberger Nelson A. Brown, Jr. (No. 3123202) CHICAGO PARK DISTRICT 541 North Fairbanks Ct. 3E Chicago, Illinois 60611 (312) 742-4610 (312) 742-5328 Annette M. McGarry (No. 6205751) Marianne C. Holzhall (No. 6204057) McGarry & McGarry, LLC 120 North LaSalle Street Suite 1100 Chicago, Illinois 60602 312-345-4600 312-345-4601(fax)

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____________________________ One of Its Attorneys

Case: 08-3701

Document: 21

Filed: 06/24/2009

Pages: 12

CERTIFICATE OF COMPLIANCE Pursuant to Circuit Rule 32(a)(7)(B), the undersigned counsel certifies that this brief complies with the type-volume limitation of Fed. R. App. P. 32(1)(7)(B) because this brief contains 1,355 words. Counsel further certifies that this brief complies with the typeface requirements of Fed. R. App. P. 32(1)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word 2000® in Times New Roman type style and 12 point type in the body of the brief and 11 point type in the footnotes.

DATED: June 24, 2009

Respectfully submitted, CHICAGO PARK DISTRICT

By:

David Donnersberger Nelson A. Brown, Jr. (No. 3123202) CHICAGO PARK DISTRICT 541 North Fairbanks Ct. 3E Chicago, Illinois 60611 (312) 742-4610 (312) 742-5328 Annette M. McGarry (No. 6205751) Marianne C. Holzhall (No. 6204057) McGarry & McGarry, LLC 120 North LaSalle Street Suite 1100 Chicago, Illinois 60602 312-345-4600 312-345-4601(fax) 6

____________________________ One of Its Attorneys

Case: 08-3701

Document: 21

Filed: 06/24/2009

Pages: 12

CIRCUIT RULE 30(D) STATEMENT Pursuant to Circuit Rule 30(D), I hereby certify that all material required by Circuit Rule 30(a) and (b) are included in the Appendices of the Opening Briefs of Appellant and CrossAppellant. The material required by Circuit Rule 30(a) is included in the appendix. The material required by Circuit Rule 30(b) is separately filed.

DATED: June 24, 2009

Respectfully submitted, CHICAGO PARK DISTRICT

By:

David Donnersberger Nelson A. Brown, Jr. (No. 3123202) CHICAGO PARK DISTRICT 541 North Fairbanks Ct. 3E Chicago, Illinois 60611 (312) 742-4610 (312) 742-5328 Annette M. McGarry (No. 6205751) Marianne C. Holzhall (No. 6204057) McGarry & McGarry, LLC 120 North LaSalle Street Suite 1100 Chicago, Illinois 60602 312-345-4600 312-345-4601(fax)

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____________________________ One of Its Attorneys

Case: 08-3701

Document: 21

Filed: 06/24/2009

Pages: 12

CIRCUIT RULE 31(E) CERTIFICATION Pursuant to Circuit Rule 31(E), the undersigned counsel certifies that a digital version of this brief and all of the appendix items that are available in non-scanned portable documents format have been filed with the Court on a CD-ROM, that the digital version is in PDF format and was generated by printing the PDF from the original word processing file and that the CDROM containing the digital version is virus free.

DATED: June 24, 2009

Respectfully submitted, CHICAGO PARK DISTRICT

By:

David Donnersberger Nelson A. Brown, Jr. (No. 3123202) CHICAGO PARK DISTRICT 541 North Fairbanks Ct. 3E Chicago, Illinois 60611 (312) 742-4610 (312) 742-5328 Annette M. McGarry (No. 6205751) Marianne C. Holzhall (No. 6204057) McGarry & McGarry, LLC 120 North LaSalle Street Suite 1100 Chicago, Illinois 60602 312-345-4600 312-345-4601(fax)

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____________________________ One of Its Attorneys

Case: 08-3701

Document: 21

Filed: 06/24/2009

Pages: 12

CERTIFICATE OF SERVICE

I, Annette M. McGarry hereby certify that on June 24, 2009, I did cause a true and correct copy of the foregoing REPLY OF DEFENDANT-APPELLEE, CROSS-APPELLANT, CHICAGO PARK DISTRICT, as well as a digital version of this brief to be served by overnight mail upon the following:

Alex L. Karan Micah E. Marcus Hector C. Bove Kirkland & Ellis LLP 300 North LaSalle Chicago, Illinois 60654

_________________________________ David Donnersberger Nelson A. Brown, Jr. (No. 3123202) CHICAGO PARK DISTRICT 541 North Fairbanks Ct. 3E Chicago, Illinois 60611 (312) 742-4610 (312) 742-5328 Annette M. McGarry (No. 6205751) Marianne C. Holzhall (No. 6204057) McGarry & McGarry, LLC 120 North LaSalle Street Suite 1100 Chicago, Illinois 60602 312-345-4600 312-345-4601(fax)

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