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TONG v. CHICAGO PARK DISTRICT

April 29, 2004.

ROBERT TONG and MILDRED TONG, Plaintiff's
v.
THE CHICAGO PARK DISTRICT, an Illinois unit of local government, Defendant



The opinion of the court was delivered by: RUBEN CASTILLO, District Judge

MEMORANDUM OPINION AND ORDER

This case presents important issues of First Amendment law and highlights the friction that the Free Speech and Establishment Clauses generate when they come into close contact. In 2002, the defendant Chicago Park District ("CPD") approved and oversaw a park fundraiser in which community members were invited to purchase a brick that would be engraved with an inscription chosen by the donor and included in a walkway in a neighborhood park. Plaintiff's Robert and Mildred Tong (the "Tongs") submitted a proposal for a brick engraving that included the phrase "Jesus is the cornerstone." The CPD rejected the Tongs' proposal based on its religious content, and the Tongs filed the present action seeking declaratory and injunctive relief, and nominal damages. The CPD argues that the brick walkway is a nonpublic or limited public forum and that its policy of rejecting proposed engravings with religious content was reasonable and viewpoint neutral. The Tongs argue that the CPD had no coherent policy for reviewing proposed brick engravings and that CPD officials had unbridled discretion in analyzing whether to accept or reject a brick. The Tongs further argue that the CPD's decision to reject their proposed engraving was based on unconstitutional viewpoint discrimination. The Tongs and the CPD have filed cross-motions for summary judgment. (R. 26-1, Def.'s Mot.; R. 30-1, Pls.' Mot.) At issue in this case is whether the CPD's decision to reject the Tongs' proposed engraving violated the Tongs' Free Speech, Free Exercise, and Equal Protection rights under the United States and Illinois Constitutions. We conclude, for the reasons set forth herein, that the CPD's actions violated the Tongs' First Amendment rights. Therefore, we deny the CPD's motion, (R. 26-1), and grant the Tongs' motion, (R. 30-1).

RELEVANT FACTS*fn1

  The CPD is a governmental unit that is empowered by Illinois law to supervise and control the operation of parks in Chicago and to create regulations in furtherance of that power. (R. 27, Joint Stip. Facts, ¶¶ 5-6.) The CPD is also empowered to create park "advisory councils." (Id. ¶ 13.) Advisory councils are groups of volunteers that work with CPD staff to help ensure that Chicago parks function effectively. (R. 33, Def.'s Resp, to Pls.' Facts, ¶¶ 13-17.) With the CPD's permission and oversight, advisory councils can plan and carry out fundraisers using park property in order to generate money for park improvements. (Id. ¶¶ 21-22.) A. Buy-a-Brick Programs Generally

  One method that advisory councils use to generate funds for Chicago parks is to solicit donations through "buy-a-brick" programs. Buy-a-brick programs provide members of the public with the opportunity to purchase a brick engraved with an inscription chosen by the donor. The engraved bricks are then installed in a designated walkway located in a Chicago park. (Id. ¶¶ 23-24.) An advisory council must obtain the CPD's approval to implement a buy-a-brick program and CPD project managers participate in the programs from start to finish. (Id. ¶¶ 34-35.) The CPD retains the right to review and approve proposed brick engravings, and makes the final decision as to whether a particular engraving will be accepted or rejected. (Id. ¶¶ 36-37.)

  The CPD has no written policy specific to buy-a-brick programs that outlines the procedure or criteria that the CPD uses to determine whether to accept or reject a proposed brick engraving. (R. 42, Pls.' Resp, to Def.'s Facts, ¶ 21.) However, the CPD does have a written policy entitled "Guidelines for Plaques, Markers and Donor Recognition in Parks" (the "Donor Guidelines"), which applies "[w]here the primary purpose of a sign, plaque, or marker is to acknowledge donors. . . . " (R. 29, Joint Exs., Ex. 4.) On their face, some of the criteria in the Donor Guidelines are permissive, while others are mandatory. On the one hand, the Donor Guidelines state that "[w]henever possible, the sign should acknowledge a group, rather than the individuals comprising that group[,]" and "[w]here possible, text on signage should recite the significant community service/public contributions of individuals and groups, rather than personal or individual accomplishments . . . " (Id.) On the other hand, the Donor Guidelines state that "[w]hen the proposal is to include names as an integral element of a larger installation, e.g., on pavers in a plaza or on the base of a sculpture . . . [n]o logos, seals or other corporate identities are permitted." (Id.) The Donor Guidelines do not contain any express prohibition on religious messages. (R. 33, Def.'s Resp, to Pls.' Facts, ¶ 41.)

  The Donor Guidelines further state that "[p]laques, boulders, or other signage intended primarily to commemorate or memorialize persons, activities, events, locations, or communities for non-donor recognition purposes shall be considered `public art' and shall be subject to the Park District's guidelines for acceptance of public art." (Id.) The CPD's guidelines for acceptance of public art are located in the CPD Guidelines and Rules of Operation for Public Art Work ("Public Art Guidelines"). (R. 29, Joint Exs., Ex. 9.) The Public Art Guidelines outline a two-phase review procedure in which a proposed work of public art is reviewed by both the CPD's Committee on Recreation, Permits, Park Management and Related Institutions ("Recreation Committee"), and the CPD's Board of Commissioners. (Id.) The Public Art Guidelines dictate that the Recreation Committee shall not recommend acceptance of public art works:
(1) depicting or commemorating individuals who are still living or who have not been deceased for at least five years; (2) depicting or commemorating an event until at least five years after the end of that event; (3) endorsing or advocating religion or a specific religious belief; (4) depicting obscenity or that malevolently portrays, demeans, or intimidates any racial or ethnic group; or (5) of inferior or substandard workmanship.
(Id.)

  The CPD maintains a separate policy for "Naming and Renaming of Parks and Park Features" ("Naming Guidelines"), which lists criteria applicable to proposed names of parks or park features. (R. 33, Def.'s Resp, to Pls.' Facts, ¶ 40; R. 29, Joint Exs., Ex. 7.) The Naming Guidelines state that "[n]o proposed park or park feature name shall (i) duplicate the name of another park or park feature within the City of Chicago; (ii) endorse or advocate religion or a specific religious belief; (iii) have obscene connotations; or (iv) malevolently portray, demean or intimidate any racial or ethnic group." (R. 29, Joint Exs., Ex. 7,)

  The CPD has no written policy that describes how, if at all, the Donor Guidelines, Public

  Art Guidelines, or Naming Guidelines apply to proposed engravings for buy-a-brick programs. (R. 42, Pls.' Resp, to Def.'s Facts, ¶ 21.) While the CPD maintains the right to review all proposed brick engravings, it has no written policy that outlines what procedures are used to review proposed brick engravings or which CPD staff are responsible for that review. (Id.; R. 27, Joint Stip. Facts, ¶ 19.) The CPD's unwritten policy is to deny brick engravings that "contain (a) obscene material or connotations; (b) endorse or advocate religion or a specific religious belief; (c) endorse a specific political party or belief; or (d) malevolently portray, demean or intimidate any racial or ethnic group," and to prohibit engravings "of a political, religious or social nature." (R. 28, Def.'s Facts, ¶ 31.)

  A CPD staff member designated by the CPD to explain the formulation of its brick approval policy testified that the CPD decides whether brick engravings will be accepted based on the recommendations of a subgroup known as the Enhancement Committee. (R. 30-3, Pls.' Facts, Ex. 6, Steele Dep. at 89.) A member of the Enhancement Committee, Robert Megquier, testified that if a brick engraving acknowledged someone or something other than the donor, it would become a "public art issue" and would go to the Enhancement Committee for review and recommendation. (Id., Ex. 9, Megquier Dep. at 19, 30-31.) He also testified that no proposed brick engraving has ever come to the Enhancement Committee for review. (Id., Ex. 9, Megquier Dep. at 32, 39, 45-46.) Megquier explained that brick engravings that refer to something other than the donor "could be rejected by people involved with carrying out the guidelines. They would say that's not appropriate and they would tell the advisory council most likely that's not appropriate." (Id., Ex. 9, Megquier Dep. at 32.) Megquier did not identify who "the people involved with carrying out the guidelines" are. The parties agree, however, that the CPD Enhancement Committee does not regularly review proposed buy-a-brick engravings and that the CPD law department reviews some, but not all, proposed buy-a-brick engravings. (R. 33, Def.'s Resp, to Pls.' Facts, ¶¶ 49, 53.)

 B. The Senn Park Buy-a-Brick Program

  Senn Park is owned and supervised by the CPD and is located in Chicago's Edgewater neighborhood. (R. 27, Joint S tip. Facts, ¶ 8.) In approximately June 1999, Kathryn "Kate" Thomas resurrected the previously-defunct Senn Park Advisory Council, became President of the Council, and approached the CPD about generating funds to refurbish Senn Park.*fn2 (R. 33, Def.'s Resp, to Pls.' Facts, ¶¶ 61-63.) Thomas proposed a Senn Park buy-a-brick program to raise the necessary funds, and the CPD approved that program. (Id. ¶¶ 65-66.) The engraved bricks generated through the Senn Park buy-a-brick program would be placed at the entryway to Senn Park. (R. 28, Def.'s Facts, ¶ 31.) A primary purpose of the Senn Park walkway is to provide a safe path leading into the park, (Id.) That walkway "was opened to residents of the community for the limited purpose of allowing commemorative messages recognizing donations." (Id.)

  After receiving the CPD's approval to run the Senn Park buy-a-brick program, Thomas contacted the CPD's Community Outreach Manager of the Department of Intergovernmental Community Affairs, Robert Steele, and asked him for information on how to administer the buy-a-brick program. In response, Steele sent Thomas a copy of the CPD's Donor Guidelines. (Id. ¶¶ 6, 67-68; see also R. 29, Joint Exs., Ex. 4.) Steele did not send Thomas a copy of the Public Art Guidelines or the Naming Guidelines. (R. 33, Def.'s Resp, to Pls.' Facts, ¶¶ 67-68.) The Senn Park project manager, Elizabeth Koreman, instructed Thomas to create a spreadsheet of the donors and proposed engravings for the Senn Park buy-a-brick program and to provide that spreadsheet to the CPD for approval before sending the proposals to the brick vendor for engraving. (Id, ¶ 74.)

  Thomas circulated approximately 1500-2000 hard copies of advertisements and applications for the Senn Park buy-a-brick program to community members, and posted a copy of the application on the Internet. (Id. ¶¶ 69-70.) The CPD did not review those advertisements before Thomas circulated them. (R. 27, Joint Stip. Facts, ¶ 22.) The Senn Park buy-a-brick advertisements indicated that applicants could "Leave Your Mark on Senn Park" and "Choose Your Words." (R. 29, Joint Exs., Ex. 2.) In response to these solicitations, the Senn Park Advisory Council received a number of applications for buy-a-brick donations.

  The Senn Park buy-a-brick applications included proposals for bricks reading: "Peace on Earth;" "Proudly supporting the children of Edgewater State Senator Carol Ronen;" "Bootsie Albert Brennan Best Cat Ever!;" "Plenty of grace be to this place. The Weyandt Family;" "Respect Nature Seek Understanding Truman & Emily;" "Manchester Commons Condo Association 2002;" and "If you build it, they will play. The Cvetas Family." (R. 29, Joint Exs., Exs. 11-13.) Among the applications was a proposed engraving which read as follows: "Your neighbor Immanuel Lutheran Church-With thanks to God for our neighbors." (R. 27, Joint Stip. Facts, ¶ 31.) Also included in the applications was the Tongs' proposal for an ...


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