other plaintiffs, the Landmark Council and the National Trust, each have members who live in the so-called "St. Mary's neighborhood" and who are similarly threatened and adversely affected by § 21-69.1.
The plaintiffs seek a declaration that § 21-69.1 is unconstitutional, arguing that it violates the Establishment and Equal Protection Clauses of the Federal and Illinois Constitutions, and that it unlawfully delegates legislative power to religious organizations in violation of the Illinois Constitution. They urge this Court to grant an order permanently enjoining the enforcement of § 21-69.1 on these grounds.
Defendants have filed a motion to dismiss this action contending that (1) plaintiffs lack standing to challenge the constitutionality of § 21-69.1; and (2) § 21-69.1 does not violate either the Establishment or Equal Protection Clause of the Federal Constitution, and that, without these federal question claims, this Court lacks pendant jurisdiction. Because we agree with defendants' contention that plaintiffs lack standing, we need not address the defendants' second ground for dismissal.
The issue of standing is imbedded in Article III of the Constitution, which limits the jurisdiction of federal courts to actual "cases" or "controversies." This limitation is "founded in a concern about the proper -- and properly limited-role of the courts in a democratic society." Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197, 2205 (1975). It relates "to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the power of an unelected, unrepresentative judiciary in our kind of government." Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 3324, 82 L. Ed. 2d 556 (1984) (quoting Vander Jagt v. O'Neill, 226 U.S. App. D.C. 14, 699 F.2d 1166, 1178-79 (D.C. Cir. 1982), cert. denied, 464 U.S. 823, 104 S. Ct. 91, 78 L. Ed. 2d 98 (1983)). This notion is magnified by our strong tradition against deciding constitutional questions unnecessarily where, as in the present case, a court is asked to adjudicate the constitutionality of legislative action. NUI Corp. v. Kimmelman, 765 F.2d 399, 403 (3d Cir. 1985).
These concerns are reflected in the doctrinal development of standing, which has produced a threefold constitutional inquiry. Id. To support standing, a litigant must demonstrate (1) that he has suffered an actual or threatened injury; (2) that is fairly traceable to the challenged conduct; and (3) will likely be redressed by a favorable decision. Jorman v. Veterans Admin., 830 F.2d 1420, 1424 (7th Cir. 1987); City of Evanston v. Regional Transp. Auth., 825 F.2d 1121, 1123 (7th Cir. 1987), cert. denied, 484 U.S. 1005, 108 S. Ct. 697, 98 L. Ed. 2d 649 (1988).
The analysis in this case ends at the first element of this inquiry because the plaintiffs have not alleged a constitutionally sufficient "actual or threatened injury." The plaintiffs argue that either of two injuries is sufficient to meet this requirement of standing. First, they assert that the requirement is met by the threat to their use, enjoyment, and aesthetic appreciation of St. Mary's that is created by the existence and enforcement of § 21-69.1. Second, they argue they are injured because § 21-69.1 denies them the opportunity to take part in a public hearing in which the Landmark Commission would evaluate the public interest in designating St. Mary's as a landmark.
With respect to the plaintiff's first alleged injury, it is clear that harm to aesthetic interests may be sufficient to satisfy the injury-in-fact requirement. Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 1366, 31 L. Ed. 2d 636 (1972). According to the Supreme Court in Sierra :
aesthetic and environmental well-being . . . are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.
Id. at 734. This principle has been reaffirmed by the Supreme Court on several occasions, see e.g., United States v. SCRAP, 412 U.S. 669, 686, 93 S. Ct. 2405, 2415, 37 L. Ed. 2d 254 (1973), and recognized by the Seventh Circuit. See e.g., Alschuler v. Dept. of HUD, 686 F.2d 472, 476-77 (7th Cir. 1982); South East Lake View Neighbors v. Dept. of HUD, 685 F.2d 1027, 1034 (7th Cir. 1982). It has also been applied specifically to the aesthetic and historical value of buildings. See e.g., Neighborhood Dev. Corp. v. Advisory Council on Historic Preservation, 632 F.2d 21, 23-24 (6th Cir. 1980); Committee to Save the Fox Bldg. v. Birmingham Branch of the Federal Reserve Bank of Atlanta, 497 F. Supp. 504, 509 (N.D. Ala. 1980); Weintraub v. Rural Electrification Admin., 457 F. Supp. 78, 88 (M.D. Pa. 1978); Save the Courthouse Comm. v. Lynn, 408 F. Supp. 1323, 1332 (S.D.N.Y. 1975).
However, the fact that an injury of this nature is judicially cognizable is not sufficient to meet the injury-in-fact requirement under the circumstances of this case. An alleged threat of injury must also be "both real and immediate, not conjectural or hypothetical."
City of Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S. Ct. 1660, 1665, 75 L. Ed. 2d 675 (1983) (citations and quotations omitted). Thus, a "plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Pennell v. City of San Jose, 485 U.S. 1, 8, 108 S. Ct. 849, 855, 99 L. Ed. 2d 1 (1988) (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S. Ct. 2301, 2308, 60 L. Ed. 2d 895 (1979)) (emphasis added). If the plaintiff fails to demonstrate such a danger, its alleged threatened injury is not sufficient to confer standing.
The plaintiffs in this case seem to miss this fundamental point. They argue that the "threat of injury" is sufficient; but do not address the likelihood that they will sustain the injury that is the subject of that threat. This is where their argument fails. The plaintiffs will suffer the alleged aesthetic injury only if St. Mary's is altered or changed in a way that deleteriously affects its aesthetic value. Yet, the plaintiffs have not alleged any facts which suggest that this is even a vague likelihood. They do not allege that church officials are presently considering, or have ever considered, the possibility of altering St. Mary's. They merely allege that as a result of § 21-69.1 there is nothing to prevent church officials from doing so. Thus, at most, they allege that there is a possibility St. Mary's will someday be altered in an injurious way. This simply does not constitute the "real and immediate" threat of injury necessary to confer standing under Article III. See United Transp. Union v. I.C.C., 282 U.S. App. D.C. 38, 891 F.2d 908, 912 (D.C. Cir. 1989) (claims founded on baseless "predictions of future events (especially future actions taken by third parties)" are generally too "speculative" to support standing), cert. denied, 497 U.S. 1024, 110 S. Ct. 3271, 111 L. Ed. 2d 781 (1990); cf. Oriental Health Spa v. City of Fort Wayne, 864 F.2d 486, 489 (7th Cir. 1988) (plaintiff does not have standing to challenge the license suspension and revocation provisions of ordinance where it has never been threatened with such action); Evans v. City of Chicago, 689 F.2d 1286, 1299 (7th Cir. 1982) (class of tort judgment creditors lacked standing to challenge statutory procedures for payment of judgements because city never invoked procedures or threatened to invoke them); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (mining companies lack standing to challenge warrantless search statute absent allegation that statute had been applied or threatened to be applied to them), cert. denied, 454 U.S. 1031, 70 L. Ed. 2d 474, 102 S. Ct. 567 (1981); see also Golden v. State B. of Law Examiners, 614 F.2d 943, 945 (4th Cir. 1980) (plaintiff lacks standing to challenge rule requiring state residence as a prerequisite to state bar admission where she has not yet passed the bar examination).
None of the cases that the plaintiffs cite are contrary. While they cite a number of cases that accord standing based on the aesthetic and historical value of a building, none of these cases rest standing on the mere possibility of future alteration. Instead, each case involves the imminent demolition of the building or buildings in question. Neighborhood Dev., 632 F.2d at 23 (two of the three buildings in question were scheduled for demolition and the other had been demolished); Committee to Save the Fox Building, 497 F. Supp. at 507 (contract executed with demolition company and permits issued); Weintraub, 457 F. Supp. at 82 (demolition had commenced); Save the Courthouse Comm., 408 F. Supp. at 1328-29 (demolition plan approved and contract awarded). In the instant case, on the other hand, plaintiffs have not alleged that St. Mary's is in any greater danger of demolition or alteration than any other building in Chicago, or in the country for that matter. Indeed, it is certainly possible that this contingency will never occur and that, even if it were to occur at some time in the future, that none of the plaintiffs will be in a position to suffer harm at the time. To address the constitutionality of § 21-69.1 under such circumstances, where the anticipated injury is patently remote, would be a gratuitous exercise of federal jurisdiction and well beyond the reasonable limits of Article III. Thus, the plaintiffs' first alleged injury does not satisfy the injury-in-fact requirement of the standing inquiry.
The plaintiffs also argue that, even if the alleged possibility of aesthetic injury is insufficient, they meet the injury-in-fact requirement because § 21-69.1 denies their opportunity to participate in a St. Mary's landmark designation hearing. Of course, the plaintiffs are right that because § 21-69.1 precludes St. Mary's designation, it consequently obviates the need to conduct a public hearing on the matter. Accordingly, the plaintiffs are denied the "reasonable opportunity . . . to present testimony or evidence" concerning the appropriateness of designation at a public hearing. Municipal Code § 21-71. This alone, according to the plaintiffs, is sufficient injury to confer standing. We disagree.
The denied opportunity to participate in a designation hearing is insufficient to support standing because it fails to meet the injury-in-fact requirement; but it does not fail for the same reason as the alleged aesthetic injury. It certainly cannot be said the loss of this opportunity is not "real and immediate." The plaintiffs have in fact been denied this opportunity and will continue to be denied this opportunity unless § 21-69.1 is declared unconstitutional. Rather, this alleged injury fails to meet the requirement because it is not sufficiently concrete or "distinct and palpable" to warrant judicial protection. Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975). The question in this regard is whether an alleged injury is "too abstract or otherwise not appropriate to be considered judicially cognizable." Allen v. Wright, 468 U.S. 737, 752, 104 S. Ct. 3315, 3325, 82 L. Ed. 2d 556 (1984). Here, the answer is in the affirmative. The denial of an opportunity to participate in a designation hearing merely to express one's views and concerns is not a judicially cognizable injury.
The plaintiffs' vain arguments to the contrary are based on the confusion and misunderstanding of two separate but related standing concepts. First, plaintiffs rely on a line of cases that can be characterized as "lost opportunity cases." 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3531.4 at p. 430-32 (2d ed. 1984). These cases arise where the plaintiff is denied some procedural opportunity which, if afforded, could render some benefit or prevent some harm. Standing in such cases does not rest on the denial of the opportunity itself but instead on the potential harm or anticipated benefit. Accordingly, standing depends on the likelihood of suffering the potential harm or realizing the anticipated benefit. See Planned Parenthood Ass'n of Chicago v. Kempiners, 700 F.2d 1115, 1135 (7th Cir. 1983); Doherty v. Rutgers School of Law-Newark, 651 F.2d 893, 899 (3d Cir. 1981) (although standing to challenge admission policy will be accorded to plaintiff with realistic chance of successful admission but for the challenged policy, it will not be accorded to plaintiff without realistic chance); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3531.4 (2d ed. 1984).
A particularly lucid example of this principle is found in Planned Parenthood, upon which the plaintiffs incorrectly rely. In this case, Planned Parenthood Association of Chicago ("Planned Parenthood") challenged the constitutionality of an Illinois statute that authorized the Illinois Department of Health to award grants to nonprofit organizations that provided services relating to problem pregnancies. Id. at 1117. However, a provision of that statute precluded grants to organizations that "refer or counsel for abortion." Id. Thus, because Planned Parenthood's counseling program included a discussion of abortion, it was absolutely denied the opportunity of "competing freely for the funds." Id. at 1119. Although each of the three judges on the panel filed a separate opinion, none of the judges argued that this lost opportunity was itself sufficient to confer standing. Instead, the question with respect to standing was whether, if afforded that opportunity, Planned Parenthood had a sufficient likelihood of obtaining the funds. As stated by Judge Posner:
Planned Parenthood has standing to challenge this proviso if there is a reasonable probability that striking it down would result in a tangible benefit to Planned Parenthood: namely, receiving money under the program.. . . [If this] is only a remote possibility, Planned Parenthood's tangible stake in the outcome of this lawsuit is too slight to give it standing.
This much I expect is common ground among the judges of this panel and the disagreement is over whether Planned Parenthood has shown a reasonable probability that it will obtain funds if the proviso that disqualifies it is invalidated.