exercise the right of eminent domain by condemnation proceedings. 70 ILCS 210/5f(1955).
Further, Illinois case law supports this conclusion. The case of People ex rel. Coutrakon v. Lohr, 9 Ill. 2d 539, 138 N.E.2d 471 (1957) establishes that this act thus creates a municipal corporation, not a private corporation because the powers of the Authority are proprietary rather than governmental. Further, subsequent cases of the Illinois courts have found that the attorney general has standing under common law powers to assert claims on behalf of the state which relate to the Authority's contracts based on common-law fraud. See People ex rel. Hartigan v. E & E Hauling, Inc., 153 Ill. 2d 473, 607 N.E.2d 165, 180 Ill. Dec. 271 (1992). Thus, we can conclude that indeed defendant is a state actor that is subject to the requirements of the United States constitution.
Defendant's memorandum in opposition to plaintiff's motion for a temporary restraining order fails to specifically articulate defendant's position, but it seems to assert that defendants are indeed a private entity, not subject to constitutional restrictions. At the outset, let us establish that there is an absence of merit in this position. Defendant asserts that its operation of the Pier is not intended to be supported by tax dollars -- lease and licensing fees are designed to cover all operating expenses at the Pier. Further, defendant asserts that they have a substantial interest in ensuring the commercial success of the Pier's tenants, because they depend on license and lease revenues. Let us say, very emphatically, that defendant cannot have its proverbial cake and eat it too. In other words, defendant cannot rely on the relationship it has with the city of Chicago and the state of Illinois to increase its overall profit and revenue while asserting that its commercial and recreational aspects are a purely private venture, in an effort to avoid the proper constitutional characterization and applicable standards under the First Amendment.
Illinois legislation has established and defined the Metropolitan Pier and Exposition Authority sufficient for us to conclude that it is an actor "with the authority of the state" sufficient for constitutional standards to apply. See Sherman, 8 F.3d at 1168. Further, we can conclude, without much analysis, that there is indeed a symbiotic relationship between defendant and the State sufficient to support this conclusion. In the words of defendant, Navy Pier has become "one of Chicago area's principal tourist destinations". That is, as the defendant is commercially successful, the City of Chicago and the State of Illinois are also successful -- that is, these entities are in close association and may prove to "be of benefit to each other" in the future. See Burton, 365 U.S. at 721.
Concluding this, we can now address the nature of defendant's property. As already mentioned, our determination process to conclude that defendant's property is indeed a designated public forum requires us to, first, examine the policy and practice of defendant.
Navy Pier was constructed in 1916 and owned by the City of Chicago. The Pier was originally built to be several things, but it was largely a freight, passenger boat and ship port. At the east end of the Pier, the ballroom and related buildings were used primarily for entertainment. However, during World War I and World War II, the Navy took over the Pier and used it as a training ground. After the war, in response to the GI Bill, the University of Illinois moved into the Pier and operated the Pier as a campus until the mid 1950's, when the City took it over again.
At that same time, the St. Lawrence Seaway project was being completed in the hope that Chicago would become a major port. In approximately 1955-56, the south dock of Navy Pier was added at that time to encourage shipping. Although the St. Lawrence project never lived up to its billing, Lake Calumet Harbor was developed and shipping since that time has gone there.
In 1989, the state legislature amended the act of what had been the Metropolitan Fair & Exposition Authority, which historically operated McCormick Place, and gave the Authority power to operated the Navy Pier. The city then transferred the Pier to the authority by deed. Between 1989 and 1995, the Authority expended over $ 200 million dollars to renovate Navy Pier.
Reopened in June 1995, the Pier now includes specialty shops, restaurants, a movie theater, an outdoor stage, a children's museum and recreational attractions, such as a ferris wheel in the summer and an ice skating rink in the winter. Along the south side of the Pier, a number of commercial passenger vessels exist, including tourist and dinner cruise boats.
With respect to the Pier's stated objective of operating the Pier as a commercial venture, Pier management has instituted various policies to ensure that visitors encounter "a pleasant atmosphere conducive to shopping, dining and other commercial and recreational operations of the Pier's tenants". Defendants allege that they have enforced a two-fold policy consistently since 1995 which addresses expressive conduct in the public areas of the Pier. In order to engage in expressive conduct on the Pier, a speaker must satisfy two conditions: (1) that speaker must be a tenant or other licensee and (2) that conduct must be in furtherance of the commercial purpose of the Pier either by promoting the lessee's business or, in the case of hired performers, by providing entertainment for visitors to the Pier and thereby making the Pier an attractive alternative to a shopping mall. Non-tenants are prohibited from engaging in any type of solicitation, demonstration, leafletting and protesting on Navy Pier without their permit application being approved.
Policy requires a non-tenant to utilize the procedure which requires the organization or individual to fill out a permit. In some cases, individuals can fill out the permit and proceed with their demonstration upon its completion. In any instance, no commercial solicitation, advertisement or related activity is permitted at Navy Pier or Gateway Park without a valid lease or license from the MPEA, both of which require application and qualification pursuant to published procedures.
Navy Pier's "Pier Wide Policies and Procedures", assumedly created on June 21, 1995, provides the following in subsection 16, on Pg. 7, with regard to public demonstrations:
Public demonstrations are prohibited unless there is a permit granted by Navy Pier Management. Upon approval, the demonstration may occur only at the time, place and manner authorized by management.
With regard to literature distribution, subsection 12, Pg. 6 provides the following: