What's most telling about the City of Chicago's arguments in this case is that Chicago concedes that significant noise interference and disturbance caused by O'Hare Airport operations interferes with the education of DuPage County schoolchildren. Nowhere in its voluminous nine-volume response does Chicago challenge or contest the testimony in sworn affidavits of forty-nine teachers and school administrators, showing serious interference and disruption of the educational process caused by aircraft noise emanating from O'Hare operations. [FN 1]

[FN 1] The specific facts of the interference and disturbance at Plaintiffs' schools caused by aircraft operations is set forth in detail at pages 6-10 of Plaintiffs Memorandum of Law In Support of Motion for Summary Judgment and in the detailed affidavits contained in the Appendix thereto.

More than thirty years ago, Allegheny County, Pennsylvania -- the owner and operator of the Greater Pittsburgh Airport -- made and lost arguments before the United States Supreme Court which are virtually identical to those raised by Chicago in this Court:

The County of Allegheny did not operate' or exercise any control over any aircraft in and out of the airport. All flights are regulated by the United States.

All flights are governed by the Federal government, and the County of Allegheny has no right to determine or direct the altitude of flights in and out of the Greater Pittsburgh Airport.

Acknowledging the truth of those statements, the Supreme Court nevertheless held that it is the airport proprietor -- who made the decisions where to locate the airport, what runways to build and where to locate them, and who leased the use of the airport to the airlines -- who is liable to neighboring property owners for noise damage caused by aircraft overflights into and out of the airport, not the federal government.

The airlines that use the airport are lessees of respondent [the proprietor Allegheny County]; and the leases give them, among other things, the right to "land" and "take-off." No flights were in violation of the regulations of the C.A.A.; nor were any flights lower than necessary for a safe landing or take-off.

We think, however, that respondent [the local municipal proprietor], which was the promoter, owner, and lessor [footnote omitted] of the airport, was in these circumstances the one who took the air easement in the constitutional sense. Respondent decided, subject to the approval of the C.A.A., where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed. The Federal Government takes nothing; it is the local authority which decides to build an airport vel non and where it is to be located.

The Supreme Court's decision in Griggs was made in recognition of the reality that virtually all commercial airports in the United States -- e.g., O'Hare, Atlanta's Hartsfield, Los Angeles LAX -- are neither owned nor developed by the federal government. Virtually all commercial airports in this country are owned by municipal governments or other political subdivisions of the states. It is these political subdivisions -- not the federal government -- who engage in entrepreneurial proprietorships. They select a site for the airport, acquire the land, build and locate the runways, and lease the use of those runways and terminals to the airlines, to permit the level of air traffic that arrives and departs from that location. Without the siting, runway location, construction and leasing decisions by the local governmental airport proprietor, there would be no noise injury from aircraft arriving and departing at the airport. It is the developmental decisions of the local governmental airport proprietor which allows the noise injury to occur, and those decisions led the Supreme Court in Griggs to impose liability for aircraft noise injury on the airport proprietor -- not on the federal government. [FN 2]

[FN 2] The airport proprietors did not willingly shoulder the liability imposed by Griggs. After initial attempts to transfer liability to the airlines on a contribution theory failed (See, e.g., City of Las Angeles v. Japan Airlines Co. Ltd., 41 Cal. App. 3d 416, 116 Cal. Rptr. 69 (1974)), the airport proprietors -- including Chicago at O'Hare -- included express clauses in their leases with the airlines requiring the airlines to indemnify the proprietor for any damages awarded against the proprietor for "takings" or "nuisance" due to aircraft noise. For example, at O'Hare, Chicago's lease with the airlines states:

Airlines shall pay, and shall protect and indemnify and save City, its agents, officers and employees, harmless from and against all liabilities...arising out of the following...: (i) Suits alleging a taking of property or interests in property without just compensation, trespass, nuisance, or similar suits based on the use of the Airport ... for the landing and taking-off of aircraft...

Chicago-O'Hare International Airport, Airport Use Agreement and Terminal Facilities Lease (1983), Section 19.01 (emphasis added)

Thus under Griggs, while the technical legal liability rests with Chicago, as airport proprietor, the practical result is that the airlines will pay the costs under the indemnity clause.

[FN 3] Under Griggs and its progeny, airport proprietors have been held liable for the noise injury caused by aircraft arriving and departing from their airports both on theories of "takings" under state constitutional just compensation clauses and under state law of nuisance. See discussion at pages 16-39, infra. Victims of noise who have successfully sued for noise damages have included school districts such as plaintiffs seeking the cost of soundproofing. See, e.g., Highline School District No.401, King County v. Port of Seattle, 87 Wash. 2d 6, 548 P.2d 1085 (1976); Los Angeles Unified School District v. City of Los Angeles (Los Angeles Superior Court, No.956057) (22 million dollar settlement for soundproofing), reported in Berger, Airport Noise In the 1980s: It's time For Airport Operators To Acknowledge The Injury They Inflict On Their Neighbors, published as Chapter 10 of the 1987 Institute on Planning, Zoning and Eminent Domain (See Supplemental Appendix, at 1, filed herewith).

A. Structure Of This Brief.

This brief is organized into three major sections:

• Section One sets forth the legal and historical framework for proprietor liability for aircraft noise damages under Griggs and its progeny -- both for takings under federal and state constitutional just compensation clauses, and under state law nuisance doctrines. This framework is essential for this Court to be apprised as to the overwhelming authority rejecting the arguments raised by Chicago in its brief before this Court.

• Section Two is the Plaintiffs' reply to Chicago's brief, only in so far as it is a response in opposition to Plaintiffs' Motion for Summary Judgment, and exclusive of Chicago's own arguments for summary judgment in its favor. This is to prevent Chicago's unorthodox filing of a "joint memorandum" from succeeding as a device for circumventing the rules of motion practice, so as to secure for the City an unauthorized surreply on all matters. Chicago's cross-motion has been filed on three limited grounds, and Chicago is entitled to file a reply brief pertaining to these three specific areas, only. Plaintiffs will adamantly oppose any attempt by the City to reargue its opposition to Plaintiffs' Motion for Summary Judgment in its reply brief on its cross-motion.

• Section Three is Plaintiffs' response to Chicago's Cross-Motion for Summary Judgment. Chicago alleges three bases for summary judgment in its favor: (1) accord and satisfaction; (2) federal preemption; and (3) alleged factual and legal deficiencies in Counts I-Ill of the Plaintiffs' Complaint (Plaintiffs' causes arising out of the constitutional mandate for high-quality public education for the People of Illinois). [Editor's note: Section Three is not included on this website.]

B. Chicago's Arguments And The Standard For Summary Judgment On Plaintiffs' Motion.

As to the central facts of noise interference and disruption, Chicago does not claim that there are any material issues of disputed fact that are unresolved. Consequently, if this Court concludes that these undisputed facts establish a legal right to recover damages for the correction of the noise injury, then this Court is duty bound to render summary judgment on behalf of the school districts. See Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 592 N.E.2d 1098, 1100 (1992) ("Summary judgments are desirable when, according to the pleadings, affidavits, and depositions on record, no genuine issue of material fact exists."); Hudlin U. City of East St. Louis, 227 m. App. 3d 871, 591 N.E.2d 541, 550 (5th Dist.), cert. denied, 146 III. 2d 627, 602 N.E.2d 452 (1992) (affirming summary judgment on the issue of liability: "[I]f the opponent fails to controvert the proofs offered in support of the motion and the movant's showing of uncontradicted facts would entitle him to judgment as a matter of law, then summary judgment is proper").

1. Chicago's Strategy.

Rather than making a frontal attack on the fact of harm to the educational process caused by the aircraft noise, Chicago proceeds by indirection. Distilled down to its basics, Chicago's strategy is two-fold:

• Accepting the uncontested affidavit testimony as to the harm caused by aircraft noise, Chicago first argues that there is no legal right to recover. The intended net effect of this argument is an assertion that -- accepting the uncontested reality of the noise interference and disturbance -- there is no legal theory that allows the school districts to recover damages from the airport proprietor/operator.

• Chicago's second line of defense is that -- even granting legal theories which allow recovery -- there are additional facts, unrelated to the uncontested existence of the harm -- which are supposedly relevant to the legal theory of recovery, which remain contested and unresolved, and which thus preclude the entry of summary judgment.

2. A Summary Of Plaintiffs' Responses To Chicago's Arguments.

Plaintiffs' response to each of Chicago's arguments can be summarized as follows: [FN 4]

[FN 4] The "summary of facts and legal issues" contained at pages 5-6 of Chicago's brief does not track well with or include all of the arguments raised by Chicago in the body of its brief, nor does it separate out those arguments that are in response to Plaintiffs' Motion for Summary Judgment, and the three specific arguments raised in Chicago's cross-motion. In order to facilitate the Court's review, this summary of Chicago's arguments and the Plaintiffs' responses follows the "summary of facts and legal issues" set forth at pages 5-6 of Chicago's brief. The main body of this brief is structured and divided more logically according to: 1) the arguments raised by Chicago in response to Plaintiffs' Motion for Summary Judgment; and 2) the arguments raised in Chicago's Cross-Motion For Summary Judgment.

Plaintiffs' Response To Chicago's Asserted Factual Issues

In Chicago's "summary of the issues" the following 'factual issues" are asserted (Chicago's brief, pages 5-6):

(a) Quality education is provided in DuPage County in spite of noise interference. Chicago argues that because the school districts have been providing a high-quality education -- despite the noise interference and disturbance -- Chicago is entitled to summary judgment on Counts I-Ill. This argument does not provide a basis for summary judgment in favor of Chicago, nor does it raise a material issue of fact to defeat Plaintiffs' Motion, because none of the material submitted by Chicago contests the fact that there has been serious interference with and disturbance of the educational process at Plaintiffs' schools as a result of aircraft noise. Rather, Chicago appears to argue that, notwithstanding undeniable injury, there should be no recovery, so long as, in spite of the noise interference, some acceptable level of education is achieved.

The simple answer to this argument is that it begs the question. Chicago's argument would apply equally if; for example, there were holes in the roof; the furnace did not work, or the electrical power was out, and yet students still managed to pass tests. The Illinois Constitution mandates that school districts provide "an efficient system of high-quality educational institutions...." Under applicable case law, these school districts have a direct constitutional cause of action against third parties who interfere with the school districts' performance of this mandate. No one would seriously argue that the school districts' performance of this mandate would not be seriously impaired if the furnace were broken, and the children shivered; or if the roof leaked, and the children were soaked -- even if a dedicated faculty and student body "overcame" these problems to the extent that the students tested well. Similarly, Chicago cannot negate the uncontested sworn affidavits -- showing severe interference by aircraft noise with this constitutional mandate -- by claiming that the school children tested well, in spite of the admitted and undeniable noise interference.

(b) Societal benefits from O'Hare outweigh the nuisance harm to Plaintiffs. Chicago argues that there is a factual issue under the nuisance count (Count IV), of whether the societal benefits from O'Hare outweigh the injury inflicted on noise victims (Chicago's brief, pages 2-8, 5, 42-48). Chicago argues that the absence of evidence to allow for the weighing of the societal benefits against the harm precludes summary judgment. [FN 5]

[FN 5] "This Court cannot even begin to consider summary disposition until it is provided with sufficient facts to weigh the benefits of O'Hare against the alleged harm to Plaintiffs." (Chicago's brief, page 43)

[FN 6] Plaintiffs question the validity of the concept that a weighing of benefits against harm is appropriate even in the injunction situation. But since no injunction is sought here, the question of balancing benefits in an injunction context is immaterial, and so is not addressed in this brief.

These issues -- like the basic issue of liability of the airport proprietor -- were resolved by the courts long ago, against Chicago's position. In United States v. Causby, 328 U.S. 256 (1946), and in Griggs v. Allegheny County, 369 U.S. 84 (1962), the Supreme Court held that aircraft overflights satisfy the physical invasion requirement, and thus constitute a taking. Here it is uncontested that the Plaintiff schools have been impacted by noise coming from overflights. Further, the Supreme Court in Griggs held that the navigational airspace defense did not constitute a defense to a taking claim against the municipal proprietor, and the navigable airspace defense has been consistently rejected by the courts since Griggs (See discussion at pages 72-75, infra).

(d) Alleged absence of particularized damage, and balancing of benefits to property. Solely with respect to the Plaintiffs' claim for damaging of property without just compensation (Count VI), Chicago claims that Plaintiffs: (1) have failed to demonstrate particularized damage for a damaging claim in not showing a difference between their injury and injury to others; (2) have failed to show actual economic harm; and (3) have not balanced benefits against the damage to property (Chicago's brief, pages 5-6, 57-61). [FN 7] In this regard Chicago's expert Richard Roddewig -- who expressly admits that aircraft noise has an adverse impact on property values -- criticizes the Affidavit of Mary Linberger because it does not include analysis of highest and best use, and does not weigh O'Hare benefits (principally, regional employment) against the damage to the school properties (Chicago's brief, pages 60-61).

[FN 7] This argument is easily confused with the "societal benefits" argument Chicago makes against the nuisance count, because Chicago in essence continues to speak of general societal benefits, which (as shown below) have no bearing whatsoever in a suit sounding in inverse condemnation (Plaintiff's' Counts V and VI). The question of "special benefits" to land arising in the inverse condemnation context is a wholly separate issue, involving a separate body of legal authority, equally fatal to Chicago's argument (See discussion at pages 83-87, infra).

• The school district properties are "special use" properties dedicated to the performance of a necessary governmental function. Under the law of Illinois, and elsewhere, such special use properties are not subject to a "highest and best use" analysis or market value estimation. Rather, the universally recognized measure of damages for a taking or a damaging of special use property, such as a public school, is, according to the circumstances, either the cost of providing a substitute facility, or the cost to cure. County of Cook v. City of Chicago, 84 Ill. App. 2d 801, 228 N.E.2d 188, 186 (1967); Highline School District No.401, King County v. Port of Seattle, 87 Wash. 2d 6, 548 P.2d 1085, 1090 (1976); Board of Education of Louisville v. Commonwealth of Kentucky, Dept. of Highways, 528 S.W.2d 657, 658 (Ky. 1975); City of Tulsa v. Mingo School Dist. No.16, 559 P.2d 487, 498 (Old. App. 1977); State of New Jersey v. Board of Education of City of Elizabeth, 116 N.J. Super. 805, 282 A.2d 71, 78 (1971); Commonwealth of Kentucky, Department of Highways v. City of Winchester, 431 S.W.2d 707, 708, 710 (Ky. 1968); City of Wichita v. Unified School District No.259, 201 Kan. 110, 439 P.2d 162, 166 (1968); State of Texas V. Waco Independent School District, 364 S.W.2d 263, 266 (Texas Civ. App. 1963) (same); and Reorganized School District No.2 V. Missouri Pacific Railroad Co., 503 S.W.2d 153.157-159 (Mo. App. 1973) (See discussion at pages 75-79, 82-83, infra). Thus, Mary Linberger's cost to cure an analysis is correct and Richard Roddewig's criticism is invalid.

• It is uncontested that much of the noise injury is caused by flights over the school properties. Injury from overflights constitutes a taking. Illinois law prohibits the balancing of economic benefits from an improvement against a taking. County Board of School Trustees of Ogle County v. Elliott, 14 Ill. 2d 440, 152 N.E.2d 873, 876 (1958); Kane V, City of Chicago, 392 Ill. 172, 64 N.E.2d 506, 508 (1945); Department of Public Works v. Barton, 371 Ill.11, 19 N.E.2d 935, 936-37 (1939) (See discussion at pages 23-29, 75, infra). Regardless of whether Illinois were to follow the more stringent federal rule (that overflights constitute the requisite physical invasion necessary for a taking), or the rule almost universally followed in the state courts (that both overflights and adjacent lateral noise injury constitute takings), there has been a taking in this case, against which economic benefits cannot be offset.

• Even if there were only "damaging" here, as opposed to taking, under Illinois law only "special benefits" to the specific property can be applied to set off damages. The testimony of Chicago's own witnesses demonstrates clearly that the benefits from O'Hare are general regional benefits, which do not set off damage to property (See discussion at pages 75-79, 82-83, infra).

• Finally, regarding airports, the case law is clear that the test for finding particularized damage is whether those who live near the airport suffer more injury than those who live along air routes further removed from the airport. The courts have consistently held that residents who live around the airport suffer a special damage different than those who live along air routes, but away from the airports. Aaron v. City of Los Angeles, 40 Cal. App. 3d 471, 115 Cal. Rptr. 162 (Cal. Ct. App. 1974); Parker v. City of Los Angeles, 44 Cal. App. 3d 571, 118 Cal. Rptr. 687 (Ct. App. 1975) (See discussion at pages 80-82, infra).

Plaintiffs' Response To Chicago's Alleged Legal Deficiencies

In Chicago's summary of the issues, the following "legal deficiencies" are alleged (Chicago's brief, at page 6):

(a) Article X. Section 1 of the Illinois Constitution creates no enforceable duties or rights. Regarding Counts I-III, Chicago argues that Article X, Section 1 of the Illinois Constitution does not impose enforceable duties on school districts (Chicago's brief, pages 6, 32-34). On the contrary, the Illinois Constitution clearly imposes a mandate on the school districts to provide for an efficient system of high-quality educational institutions. Applicable case law confirms a direct constitutional cause of action -- enforceable by the school districts -- against any third parties who interfere with the performance of this mandate (See discussion at pages 124-38, infra).

(b) "Educational malpractice" is not recognized a cause of action. Chicago challenges Counts I and II with an argument that other jurisdictions have not recognized a cause of action for "educational malpractice" (Chicago's brief, pages 6, 34-37). Obviously, the rejection of common law "educational malpractice" claims is not relevant to the instant case. Counts I and II are founded on a clear and unequivocal duty imposed on the school districts, a concomitant constitutional right of the People under the Illinois Constitution, and direct constitutional causes of action against a party interfering with the performance of that duty, and depriving the People of that right -- causes well recognized by the Illinois courts (See discussion at pages 131-32, infra).

(c) Plaintiffs do not show a specific malicious intent to interfere with education. Regarding Count III, Chicago argues that Plaintiffs do not show specific intent to interfere with any obligations, supposedly a requisite element of a tortious interference claim (Chicago's brief, pages 6, 37-38). On the contrary, the intent element of an interference claim is met if the actor knows that the interference is substantially certain to occur; no showing of actual malice is required (See discussion at pages 138-42, infra). There can be no doubt that Chicago knows that aircraft operations arriving or departing from O'Hare result in noise injury. Further, there can be no doubt that Chicago knows and always has known that the consequence of these actions is noise injury to Plaintiffs' schools. Under both the Restatement Of Torts 2d and applicable Illinois law, knowledge that injury is the probable result of the defendant's actions satisfies the element of intent for an interference claim.