State of Ill. v. City of Chicago

• Citation: 137 F.3d 474
• Decision Date: 19 February 1998
• Docket Number: No. 96-3783,96-3783
• Parties: STATE OF ILLINOIS, Plaintiff-Appellant, v. CITY OF CHICAGO, Illinois, and City of Gary, Indiana, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 474

137 F.3d 474

STATE OF ILLINOIS, Plaintiff-Appellant, v. CITY OF CHICAGO, Illinois, and City of Gary, Indiana,

Defendants-Appellees.

No. 96-3783.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 17, 1997.

Decided Feb. 19, 1998.

Roger Flahaven, Office of the Attorney General, Mary E. Welsh (argued), Office of the Attorney General, Civil Appeals Division, James R. Carroll, Quinlan & Crisham, Chicago, IL, for Plaintiffs-Appellants.

Earl L. Neal, Neal & Associates, Lawrence Rosenthal (argued), Benna Solomon, Susan S. Sher, Michael A. Forti, Thomas J. Bamonte, Office of the Corporation Counsel, Appeals Division, Gail A. Niemann, Office of the Corporation Counsel, Litigation Division, Chicago, IL, for City of Chicago.

Darnail Lyles, Meyer, Lyles & Godshalk, Earl L. Neal, Susan S. Sher, Michael A. Forti, Gail A. Niemann, Corinth Bishop, East Chicago, IL, for City of Gary.

Nana Quay-Smith, Karl L. Mulvaney, D. William Moreau, Jr. (argued), Bingham, Summers, Welsh & Spilman, Indianapolis, IN, George F. Fitzpatrick, Jr., Kaaren A. Kunze, Swanson, Martin & Bell, Chicago, IL, for State of Indiana.

Michael V. Casey (argued), Martin H. Redish, John M. Blim, Holleb & Coff, Chicago, IL, for Chicago-Gary Regional Airport Authority.

D. William Moreau, Jr., Daniel T. Hackman, Bingham, Summers, Welsh & Spilman, Indianapolis, IN, George F. Fitzpatrick, Jr., Swanson, Martin & Bell, Chicago, IL, for Frank O'Bannon.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Since 1959 states have had standing permission to join forces with their neighbors to establish regional airports. An exercise of power under the Compact Clause (Art. I § 10 cl. 3), the statute reads: "Congress consents to a State making an agreement, not in conflict with a law of the United States, with another State to develop or operate an airport facility." 49 U.S.C. § 40121, formerly codified as 49 U.S.C. § 44502(e) (1994). In 1963 Illinois delegated its power under this statute to its "governmental units", including cities, provided that the other states to be involved in the regional authority had "reciprocal authorizing legislation". Interstate Airport Authorities Act (IAAA), 70 ILCS 10/1 to 10/7. In 1980 Indiana enacted such a reciprocal law. Ind.Code § 8-22-4-1. In 1995 the Cities of Chicago, Illinois, and Gary, Indiana, created a regional airport authority with jurisdiction over O'Hare International Airport, Midway Airport, and Meigs Field (all in Chicago), Gary Regional Airport, and any new airport to be developed by the authority. Indiana has welcomed this development; Illinois has not. Instead of repealing the 1963 delegation, enacting other legislation to curtail Chicago's home-rule powers, or substituting itself for the City as the party to the agreement, Illinois has undertaken a campaign of litigation. Its suit contesting the use at the Gary Regional Airport of funds raised from passengers emplaning at O'Hare was dismissed for want of standing. Illinois Department of Transportation v. Hinson, 122 F.3d 370 (7th Cir.1997). A suit contesting the decision to close Meigs Field failed on the merits, Aircraft Owners & Pilots Ass'n v. Hinson, 102 F.3d 1421 (7th Cir.1996), although a political compromise has kept that downtown airport open for now. And the current suit, seeking a declaratory judgment dissolving the regional authority as an "assault on state sovereignty", likewise was dismissed for want of standing--and on the merits too. 942 F.Supp. 366 (N.D.Ill.1996).

Illinois has two objections to the Chicago-Gary agreement (which following the parties' usage we call the Compact, without suggesting that it is an interstate compact as the Constitution uses that term). First, Illinois submits that § 40121, like the Compact Clause itself, applies only to agreements between or among "States", excluding all possibility that cities may form compacts. Second, Illinois believes that, even if cities may forge agreements across state borders, Chicago and Gary exceeded their powers by signing a document that purports to preempt state law. According to the Compact, the regional airport authority is exempt from all state law other than environmental statutes and the IAAA, and is exempt as well from the ordinances of political subdivisions other than Chicago and Gary. Illinois fears that if the Compact has the status of federal law under the Constitution and § 40121, then Chicago could boss around both the state legislature and its neighboring municipalities on issues relating to airports--could, for example, override any legislation the state enacts to tax the airports, carriers, or passengers, or annex another city's land to build a new airport. Chicago and Gary (with the support of the State of Indiana and the Chicago-Gary Regional Airport Authority, both of which have intervened as defendants) contend that who exercises the power of a state is a question for the state itself to decide, see Union Carbide Corp. v. Board of Tax Commissioners, 69 F.3d 1356, 1358 (7th Cir.1995) (collecting cases), and that the IAAA (and the cognate Indiana law) have delegated to cities authority to act on behalf of the states. If they have exceeded the delegated authority, the cities insist, the error is one of state rather than federal law and should be dealt with by a quo warranto action in state court. (Illinois has advanced such a claim under the supplemental jurisdiction, 28 U.S.C. § 1367.) To this Illinois replies that the main issue is one of federal law: whether § 40121 authorizes cities to "preempt" state statutes.

What an odd duck this case is. Illinois either is attacking the validity of its own statute (the IAAA) and every agreement based on that law, or it is asserting that Chicago exceeded the powers delegated by that statute. If the latter understanding is correct, then the case arises under state rather than federal law, and the potential status of a trans-border agreement as a "compact" outside of state control would be a defense to that state-law claim. If the former understanding is best, then Illinois encounters substantial problems in addition to standing. How can a state complain about its own statute? Relieving a state of the consequences of a self-inflicted wound would be a novel mission for a federal court--especially when the state's adversary is a city, a subordinate political body. Cities generally can't sue their states (for a statement of the rule, and an exception, see Chicago v. Lindley, 66 F.3d 819, 823 n. 6 (7th Cir.1995)), and a claim by the state against the city has even weaker foundation, for the city exists at the state's sufferance. Even if the Compact has passed beyond the control of Illinois (because any change requires Gary's or Indiana's approval), Chicago is not beyond Illinois' power. Illinois could reclaim the powers Chicago now exercises, and the fact that the balance of political power in Illinois may render this impossible at the moment is a poor reason for a federal court to readjust the allocation of functions between the city and the state. Illinois does not suffer the kind of proprietary loss that justified inter-department litigation in United States v. ICC, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949); its claim is based on a belief that the powers of government ought to be apportioned to one body rather than another, the sort of contention that cases such as Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 128-29, 115 S.Ct. 1278, 1284-85, 131 L.Ed.2d 160 (1995), say must be worked out politically. Moreover, it is hard (if not impossible) to locate the source of a right of action. Illinois points to 28 U.S.C. § 1331 and § 2201, but the former is a grant of jurisdiction and the latter of a particular remedy; neither dispenses with the need to find a source of rights. (If they did, the long-running debate about the propriety of inferring private rights of action from silent statutes would be unnecessary, and holdings such as Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), and Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), would be incomprehensible.) Neither the Compact Clause nor § 40121 creates a private (or public) right of action. The usual basis of constitutional litigation, 42 U.S.C. § 1983, is unavailable to Illinois, for a state is not a "person" under that statute, see Arizonans for Official English v. Arizona, 520 U.S. 43, ---- - ----, 117 S.Ct. 1055, 1069-70, 137 L.Ed.2d 170 (1997); Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), and therefore can be neither plaintiff nor defendant in a § 1983 case. ^d Because Illinois has not established injury, however, we do not have a case or controversy within the meaning of Article III and need not continue the search for authority to litigate.

Injury is an indispensable element of a case or controversy. That means a palpable harm to a concrete interest. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Illinois Department of Transportation v. Hinson, 122 F.3d at 371-72. We held in Illinois Department of Transportation that Illinois could not establish injury from the transfer of funds to the Gary Regional Airport, because the money raised from emplaning passengers did not belong to the state in the first place, and it could not demonstrate any other financial consequence. Today's case is the same (non) controversy as Illinois Department of Transportation, but without even the pretense of a financial stake. Illinois does not object to anything the Chicago-Gary Regional Airport Authority has done; it objects to the Authority's existence. If the existence of an unwelcome governmental body injured the state, then it would have had standing in Illinois Department of Transportation.

Illinois complains about the dignitary insult it perceives from the...