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April 29, 2004.

ILLINOIS CLEAN ENERGY COMMUNITY FOUNDATION, an Illinois not-for profit corporation, Plaintiff
John B. FILAN, in his official capacity as Director of the Illinois Governor's Office of Management and Budget, Defendant

The opinion of the court was delivered by: AMY J. ST. EVE, District Judge


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. 2002).


  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, 1999).*fn3

  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.)

  B. ICECF's Complaint

  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. ...

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