Monday, February 21, 2011

U.S. Court of Appeals short changes Dallas artist's solution to world's water supply

     During the preparation of the next installments I had planned on posting on this Dallas Art History blog, a major artists' rights ruling came down.

     The 7th Circuit U.S. Court of Appeals ruled in favor of the Chicago Park District in the landmark Visual Artists Rights Act of 1990 or VARA case,  Chapman Kelley v CPD. Amazingly, however, in the opening second paragraph of the opinion which the 7th Circuit Appellate Court filed on February 15, 2011, a pivotal sentence describing the Chicago Wildflower Works is MISLEADING. The prejudicial phrasing is "But by 2004 Wildflower Works had deteriorated, (emphasis added) and the City's goals for Grant park had changed." The gratuitous use of "deteriorated," conveys a court as having a dismissive if not outright hostile attitude.  How the trial court's description of the CWW morphed from a fairly neutral "ongoing issues with maintenance" to the appellate court's using "deteriorated," is astonishing; it is a cause for concern, if not ALARM.

     The VARA appellate decision is a setback for all artists in the U.S.  The transformative effect of the arts on one's life is undeniable.  As such, a  work of art is to be respected.  When art is mutilated, altered, destroyed or otherwise disrespected, damage is done to the reputation, integrity, and the personality and moral rights of its creator.  Coined long ago by the Chicago based Industrial Workers of the World, the phrase "An injury to one is an injury to all" captures the essence of the injustice done to Kelley, and by extension, all artists.       

     After discussing this entire mess with John Viramontes of Chicago's Council for Artists' Rights, this is how we see it...

     The unsubstantiated characterization "deteriorated" insults all CWW workers and supporters; it has been picked up by the press across the country and overseas, thus harming the integrity of many devoted and honorable volunteers and supporters, to say nothing of the fact that if the appeal judges were so predisposed from the beginning that CWW was a failure and fraud, no fair judgement of the pending case was possible.

     Over 20 years Chicago Wildflower Works was maintained by over 100 volunteers and Chapman Kelley at no cost to the Chicago Park District. At the rate of $5.00 per sq. ft. that CPD customarily paid for floral displays, this alone saved CPD $6,600,000.00 directly as well as in water savings of 100% for the last 15 years. At one point a section was inadvertently over watered in 1987 and the damage to the CWW was repaired. In the year 2000, after having not used water since 1988, Kelley requested the CPD turn it off at the source, and they complied.

     In 1986-1987 CPD board member Walter Netsch wasted between 1/3 to 1/2 million dollars on a completely and embarrassingly unsuccessful wildflower planting in the heart of downtown Chicago's "Magnificent Mile" on Michigan Avenue between Monroe St. and Randolph St. That personal embarrassment caused Netsch to embark on a retaliation against the successful CWW. Netsch's actions caused Kelley to file a 1st Amendment "art is protected speech" lawsuit. In the end, CPD settled and Kelley prevailed. A consequence of all this was that Walther Netsch resigned from the CPD. It is safe to say he quit as a bitter man.

     Subsequently CPD received a $1,500,000.00 grant to plant wildflowers. Independent documentation shows the plantings progressed toward failure.

     After CWW president Jonathan Dedmon, CWW secretary Maurine Slavin and Chapman Kelley appeared before the CPD board requesting that the watering (no water used since 1988) of the CWW be turned off, Slavin and Kelley were approached by a CPD manager who asked the three to meet with Shirley McMayon their new wildflower expert. Upon touring CWW McMayon and another self-styled expert voiced the opinion that no one could grow the native flowers (the dicot group) without the grasses (the monocot group). CWW proved them wrong. Kelley later had McMayon and her boss for dinner and showed them color slides of efforts in Dallas, Texas and Chicago along with the failures, all of them, including CPD's. McMayon was unhappy. This occurred circa 2001.

     In 1998 CWW was presented the Mayor's Award for naturalized landscaping by the City of Chicago's Department of the Environment. On May 11, 2000 their "Green Team" undertook to transplant over 900 plants furnished by Dr. Darrell Murray of the University of Illinois at Champaign who was kindly assisting CWW upon the recommendation of Floyd Swink of the Morton Arboretum. In each subsequent year they brought the "Green Team" as part of their training about the water saving use of native plants.

     The DOE is the same city department that had Kelley spend one day plus one evening with a group of 47 Japanese people interested in studying water use and savings. And to top it off Mayor Daley's kick-off fundraiser for re-election on December 1, 1998 featured on the cover in color and screened inside in black and white, a photo of Kelley painting in the midst of his CWW!

     The formally-arranged "official" luncheon meeting with Dr. Margaret Burroughs, a self-described Joan of Arc of Wildflowers and CWW's honorary chairman--she follows in the footsteps of honorary chairman Mayor Harold Washington and Hope McCormick--was to discuss the upcoming 20th Anniversary Celebration of CWW flowering in 2004 and the BP (British Petroleum) Bridge opening at Millennium Park. CWW had reported additional efforts, with Lincoln Park High School Ecology Club, to see that CWW was improving. No one invites the world to see an untended weedy planting--CWW was in excellent condition. Neither Kelley nor over 100 volunteers would have worked free for 20 years except that the public loved CWW and appreciated its contribution to waterless beauty.

     At the Kelley v CPD trial in 2007 a qualified expert from California, who had previously consulted on CWW, even while Dr. Thomas Jefferson Allen guided Kelley, testified that CWW was in great shape. Avid CWW volunteers secretary Maurine Slavin and CWW treasurer Gustavo Trujillo testified to its "better than ever--not one complaint" condition as did Chapman Kelley and CWW's president Jonathan Dedmon.

     Two CPD supervisors--one a Chicago commissioner claimed that CWW was unkempt and weedy for years and was the subject of undocumented complaints. How they got away with this unsubstantiated claim, without one scintilla of evidence whatsoever, is beyond comprehension.

     Without any analysis, ruling or discussion on this conflicting testimony and despite physical evidence supporting the majority opinion of four: an expert witness, Kelley, Slavin, Trujillo--the panel of three judges allowed the use of a pejorative term to be published in the opening paragraphs of the appellate decision.

     One important facet of CWW as art project is the availability of dated copious photo documentation. Compared with CWW's popular and ongoing success, the expensive and embarrassing public failures of CPD plantings and their frustrations is the reason for the destruction of CWW.

     It is intriguing that Federal Bureau of Investigation agent Mr. Diwik places Mayor Richard M. Daley and Shirley "the executioner of the CWW" McMayon, in May of 2004 walking across BP Bridge from Lurie Garden--as they gazed upon both gardens. In May, CWW was beginning to bloom in all its glory which outshone the Lurie's water guzzler. Mayor Daley, according to Agent Diwik, ordered McMayon to "change CWW to be like the usual park design," which she did.   In response to a request for documents in Kelley's lawsuit, the CPD unexpectedly provided, as a matter of public record, a "smoking gun" document that intimates lame duck Chicago mayor Richard M. Daley was aware that the CWW was to be destroyed, and had discussed possible replacements with a CPD employee, Shirley McMahon, who later was found guilty of accepting bribes in connection with CPD work and sentenced to a term in a Federal penitentiary. The previous year, in 2003, Daley was a factor in another controversial CPD destruction--the midnight closing of Chicago's downtown lakefront airport, Meigs Field, in which bulldozers tore up runways--without giving 30-day notice.  According to the Chicago Sun Times, September 19, 2006, the Daley administration agreed "to pay a $33,000 fine and repay $1 million in federal airport development grants--to settle claims stemming from Mayor Daley's infamous midnight destruction of Meigs Field in March 2003."        

     Would any of us have even considered finding in favor of the plaintiff after reading a court document telling of CWW's (unproved) abandonment and (unsubstantiated) deterioration? What might the Board of the CWW, its respectable officers possibly have gained by a 20th Celebration if this alleged condition existed? Are all of them insane and/or legally blind? It is no wonder the appellate court went fishing outside of court testimony to invent new issues of "authorship and fixation" to support a foregone verdict which was conceived earlier at the trial level.

     After the failures of the CPD's $1,500,000.00 experiment with wildflowers, Kelley met the city's landscape architect at the CWW and explained the complexity of its system of maintenance and which Kelley could not have developed without the help of Dr. Thomas Jefferson Allen, Floyd Swink, Dr. Darrell Murray and others. Kelley volunteered to work with CPD so they could succeed with "gardens" just as he had with a work of art which is also necessary to develop a new, different aesthetic acceptable to the public than the one that scarce water supplies already challenges. The architect's reply was that they were aware of that important need but whomever they selected would be a "political" decision. They chose Shirley McMayon and then had to destroy the successful competition the CWW. Oh poor, poor Chicago--it does not deserve such corruption.

     Photo documentation of the above is available and will be published; the public will know how they have been misled and how justice has been perverted. One of the greatest problems for the future of all mankind to continue to exist is the availability of potable water.

     One of the most heralded solutions to a water supply in peril has to do with the use of native plants for landscaping. There are many predicting this possibility but as far as our research shows the CWW is the sole successful example of consecutive flowering through the seasons, aesthetically accepted by the public in a very formal park as well as more informal uses (highways) without any water for 15 years and the absence of using insecticides or fertilizers.

    For this great water saving possibility to be denied by the 7th Circuit Court of Appeals, spread throughout the world creates not only a disservice to those who have dedicated time and wealth to continue the work but does an even greater disservice to the rest of the world.

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