The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Illinois Clean Energy Community Foundation ("ICECF") sued
the state of Illinois in a five-count complaint for claims arising under
the Illinois and United States constitutions in connection with a statute
enacted by the Illinois legislature allowing the state to demand payment
of $125 million from ICECF. Both parties filed for summary judgment. As
discussed in detail below, the Court grants summary judgment in favor of
Defendant on Plaintiff's state-court claims because the Eleventh
Amendment of the United States Constitution bars federal courts from
hearing state-law claims against the state. With respect to Counts I and
IV, the Court grants Plaintiff's motion for summary judgment. The state
legislature's enactment of 220 ILCS 5/6-111.1(d) violates Plaintiff's
constitutional rights of due process and protection from takings. LEGAL STANDARDS
Summary judgment is proper when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). A genuine issue of triable fact exists only if "the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir.
2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 2510 (1986)). The party seeking summary judgment has the
burden of establishing the lack of any genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552
(1986). A party will successfully oppose summary judgment only if it
presents "definite, competent evidence to rebut the motion." Equal
Employment Opportunity Comm'n v. Roebuck & Co., 233 F.3d 432, 437 (7th
Cir. 2000). The Court "considers the evidentiary record in the light most
favorable to the non-moving party, and draws all reasonable inferences in
his favor." Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.
In 1999, the Illinois legislature enacted 220 ILCS 5/16-111.1 ("Section
111.1") as part of the Illinois Public Utilities Act (the "Act"). The Act
authorizes the creation of an "Illinois clean energy community trust or
foundation" for the purpose of providing financial support to public and
private entities with the goal of improving energy efficiency and
supporting environmental projects.*fn1
The underlying history of the Act is somewhat unclear.*fn2
Both parties agree that the Act resulted from a "compromise" between
Commonwealth Edison Company ("ComEd") and the state of Illinois in
connection with the sale of certain power plants. The parties disagree,
however, as to the nature of the compromise. Plaintiff maintains that the
Act merely vested ComEd with the discretion to create a charitable
not-for-profit foundation. (R. 16-1, Pl.'s Resp. to Def.'s Mot. for
Summ. J. p. 4.) Defendant takes a more structured approach, arguing that
the compromise was a "quid-pro-quo" wherein ComEd agreed to fund such a
foundation "as part of the consideration for the State's permission to
reap a far larger profit by selling its coal-powered electricity plants."
(R. 18-1, Def.'s Reply in Supp. of Summ. J. p. 8.) Both parties quote
Illinois Representative Novak's description of the Act's predicate:
You know, Commonwealth-Edison . . . [is] going to
realize a substantial profit [from the sale of the
power plants]. They understand that. Probably beyond
their comprehension So what has occurred is that
Commonwealth-Edison decided well, we need to give some
back. We asked them, you give some back. We're going
to allow you . . . to realize a substantial profit. We
want you to give something back. . . . They're giving
things back by forming a $250,000,000 trust fund So, it is give and take.
Transcript of Proceedings of 91st General Assembly at 46 (Ill. May 27,
Section 111.1 of the Act sets forth certain minimum requirements for
trusts and foundations established under it. Under Section 111.1,
governing documents of such trusts and foundations must conform to
statutory standards regarding the: (1) number of voting and non-voting
trustees, and the appointment of a majority thereof by various state
officials; (2) maximum compensation of trustees; (3) term of trustee
appointments; (4) filling of trustee vacancies; (5) term of the trust or
foundation (until no assets remain); (6) minimum amount of funding ($250
million, unless certain other contributions occur); (7) hiring of
employees, entering into contracts, and maximum allowable expenses; (8)
creation of advisory boards or committees; and (9) required periodic
contributions to the Citizens Utility Board. 220 ILCS 5/6-111.1.
On December 21, 1999, ICECF filed its articles of incorporation with
the Illinois Secretary of State.*fn4 The following day, ComEd
transferred $225 million to ICECF's bank account. Since its inception,
ICECF has "awarded more than 550 grants totaling more than $38 million to
public and charitable entities to improve energy efficiency, develop
renewable energy resources, and preserve and enhance wildlife habitat .
. . across Illinois." (R. 8-1, Aff. of James Mann ¶ 9.) A. The Amendment to the Act
In June 2003, the Illinois legislature amended the Act to impose an
additional requirement on foundations created under the Act. The
legislature added Section 111.1(d), which requires the trustees of a
foundation created under the Act to contribute up to $125 million to the
Illinois state treasury and state environmental agencies upon written
demand by the Director of the Bureau of the Budget. 220 ILCS 5/6-11
1.1(d). According to the Act, the purpose of these diverted funds is to
(1) assist with the repayment of general obligation bonds, and (2) assist
in funding the state's environmental programs. Id.
In July 2003, Defendant*fn5 requested that ICECF transfer $9 million
to the General Obligation Bond Repayment and Interest Fund, and $116
million into the General Revenue Fund, which includes funds administered
by environmental agencies. (R. 6-2, Def.'s Statement of Facts ¶ 20.)
ICECF has not transferred these funds. (Id. ¶ 21.)
ICECF filed a five-count complaint against the state. Count I alleges a
violation of the takings clause of the Fifth Amendment of the United
States Constitution; Count II alleges a violation of the takings clause
of the Illinois Constitution; Count III alleges a violation of the
special legislation clause of the Illinois Constitution; Count IV alleges
a violation of the due process clause of the Fourteenth Amendment of the
United States Constitution; and Count V alleges a violation of the due
process clause of the Illinois Constitution. Defendant now moves for
summary judgment on all counts of Plaintiff's complaint. Plaintiff moves
for partial summary judgment on Counts I and IV.
I. Eleventh Amendment Bars State Claims
Counts II, III, and V allege violations of the Illinois Constitution.
Defendant moves for summary judgment on these claims, arguing that the
Eleventh Amendment of the United States Constitution prohibits private
parties from pursuing state-law claims against the state itself in
federal court. The Court agrees.
The Eleventh Amendment provides that "[t]he Judicial power of the
United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign
State." U.S. Const. Am. XL Despite its narrow language, "the amendment
has been construed to forbid suits prosecuted against a state by its own
citizens as well." Benning v. Board of Regents of Regency Univ.,
928 F.2d 775, 777 n. 1 (7th Cir. 1991) (citing Hans v. Louisiana,
134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)).
A claim that a state official in his official capacity violated state
law is a claim against the state, which is protected by the Eleventh
Amendment. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89,
121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984); Radaszewski v. Garner, No.
01 C 9551, 2002 WL 31430325, at *5 (N.D. Ill. Oct. 21, 2002). The Supreme
Court has held that Eleventh Amendment protection applies even though a
plaintiff's state claims are subject to pendent jurisdiction: "[w]e
concluded above that a claim that state officials violated state law in
carrying out their official responsibilities is a claim against the State
that is protected by the Eleventh Amendment. . . . We now hold that this
principle applies as well to state-law claims brought into federal court under pendent jurisdiction."
Pennhurst, 465 U.S. at 121, 104 S.Ct. at 919.
Plaintiff argues that, under Benning, the Court must apply state rules
of immunity when considering state law claims. Plaintiff further argues
that Illinois has abolished sovereign immunity. Benning, however,
squarely comports with Pennhurst, noting that the Eleventh Amendment
"forbids a federal court from ordering state officials to conform their
conduct to state law, reasoning that such relief is unnecessary to
vindicate the supreme authority of federal law and contravenes the
principles of federalism. . . ." Benning, 928 F.2d at 778. The Supreme
Court and the Seventh Circuit have spoken decisively on the application
of the United States Constitution, thus state law is inapplicable here.
Plaintiff's state-law claims are before the Court by virtue of
supplemental jurisdiction under 28 U.S.C. § 1367.*fn6 As the Pennhurst
and Benning opinions made clear, however, Plaintiff may not make an end
run around the Eleventh Amendment using supplemental jurisdiction.
ICECF's state-law claims are barred by the Eleventh Amendment of the
United States Constitution. ...