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.
541 North Fairbanks Ct., 3rd floor
Chicago, Illinois 60611
Annette M. McGarry
Marianne C. Holzhall
McGarry and McGarry, LLC
120 North LaSalle Street,
Counsel for Cross-Appellant

Chicago Park District
Dated: June 24, 2009
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
i
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
ii
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
1
"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 plain-
language 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
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.
3
B. 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
4
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,
By: ____________________________
One of Its Attorneys
David Donnersberger
Nelson A. Brown, Jr. (No. 3123202)
541 North Fairbanks Ct. 3E
(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
312-345-4600
312-345-4601(fax)
5
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,
By: ____________________________
David Donnersberger
(312) 742-4610
(312) 742-5328

Suite 1100
312-345-4600
312-345-4601(fax)
6
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 Cross-
Appellant. The material required by Circuit Rule 30(a) is included in the appendix. The material
required by Circuit Rule 30(b) is separately filed.
By: ____________________________
David Donnersberger
(312) 742-4610
(312) 742-5328

Suite 1100
312-345-4600
312-345-4601(fax)
7
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 CD-
ROM containing the digital version is virus free.
By: ____________________________
David Donnersberger
(312) 742-4610
(312) 742-5328

Suite 1100
312-345-4600
312-345-4601(fax)
8
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
_________________________________
David Donnersberger
(312) 742-4610
(312) 742-5328

Suite 1100
312-345-4600
312-345-4601(fax)

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Case: 08-3701 Document: 21 Filed: 06/24/2009 Pages: 12

Nos. 08-3701 & 3712

On Appeal from the United States District Court

REPLY OF DEFENDANT-APPELLEE, CROSS-APPELLANT,

Counsel for Cross-Appellant

TABLE OF AUTHORITIES ................................................................................................... ii

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

II. CONCLUSION ............................................................................................................. 5

CERTIFICATE OF COMPLIANCE ...................................................................................... 6

CIRCUIT RULE 30(D) STATEMENT ................................................................................... 7

CIRCUIT RULE 31(E) CERTIFICATION ............................................................................ 8

Kelley v. Chicago Park District, No. 04 C 7715, 2008 WL 444986

People v. McCarty, 223 Ill. 2d 109, 858 N.E.2d 15 (2006).......................................................... 1

70 ILCS 1505/4 .......................................................................................................................... 3

70 ILCS 1505/7.01 ..................................................................................................................... 2

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

Kelley’s interpretation of the Park Act both mocks a plain-language interpretation of

Plaintiff-Appellant, Cross-Appellee Chapman Kelley (“Kelley Response”) at 26-27) In fact,

thereof . . .” 70 ILCS 1505/7.01. Kelley’s interpretation allows an individual commissioner to

commissioners in some formal setting. This is no way to run a public body.

language interpretation of the expression that “commissioners . . . constitute the corporate

a whole and when the Act is considered in relation to other laws.

1505/4, r e n dering it superfluous in violation o f long-established principles of statutory

B. The Parties’ Course of Dealing Prior to 1994 Reflects the Proper

this extended permit when it reconfigured the Wildflower Works.

CHICAGO PARK DISTRICT

Annette M. McGarry (No. 6205751)

point type in the footnotes.

DATED: June 24, 2009 Respectfully submitted,

CHICAGO PARK DISTRICT

Annette M. McGarry (No. 6205751)

CIRCUIT RULE 30(D) STATEMENT

required by Circuit Rule 30(b) is separately filed.

DATED: June 24, 2009 Respectfully submitted,

CHICAGO PARK DISTRICT

Annette M. McGarry (No. 6205751)

CIRCUIT RULE 31(E) CERTIFICATION

ROM containing the digital version is virus free.

DATED: June 24, 2009 Respectfully submitted,

CHICAGO PARK DISTRICT

Annette M. McGarry (No. 6205751)

correct copy of the foregoing REPLY OF DEFENDANT-APPELLEE, CROSS-APPELLANT,

mail upon the following:

Annette M. McGarry (No. 6205751)

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