Petition for Writ of Certiorari — Schmidling v. City of Chicago

———ee = ee

Q . f* z= 5 J, ; Ruprame |

o J 9) =a

No. + OCT 19 1993

—

IN_THE

Supreme Court of the United States

OCTOBER TERM, 1993

JACK SCHMIDLING, LARRY CLARK,

DEBRA LYNN PETRO and RICH HYERCZYK,

Petitioners,

CITY OF CHICAGO,

Respondent.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

BRET A. RAPPAPORT

Counsel of Record

SCHWARTZ, COOPER, KOLB

& GAYNOR, CHARTERED

20 South Clark Street

Suite 1100

Chicago, Illinois 60603

(312) 845-3026

JAMES A. ROMANYAK

BELL, BOYD & LLOYD

Three First National Plaza

Suite 3300

Chicago, Illinois 60602

(312) 807-4276

Counsel for Petitioners

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTIONS PRESENTED

I. Where conduct does not involve a fundamental right,

does Art. III allow standing to persons seeking a declara-

tory judgment that an ordinance is unconstitutional and to

enjoin its enforcement where two of them were repeated-

ly prosecuted although not convicted, and fifth citizen

engaged in identical conduct is currently being prosecuted.

II. Isthe Art. III standing test announced by the Court

of Appeals too stringent where in order to Satisfy it a

plaintiff must demonstrate facts which implicate Younger

v. Harris.

il

LIST OF PARTIES

The origina] parties in the United States District Court

for the Northern District of Illinois were the plaintiffs,

Jack Schmidling, Larry Clark, Mike Regenfuss, Debra

Lynn Petro and Richard Hyerczyk and the defendants,

the City of Chicago, Illinois and Richard M. Daley, its

mayor, in his official capacity.

Mayor Daley was dismissed by the District Court be-

cause a suit against him in his official capacity is the same

as a Suit against the City. See Kentucky v. Graham, 473

U.S. 159, 165-66 (1985). Mayor Daley was not a party in

the appeal and is not a party.

Mr. Regenfuss has moved from the City of Chicago and

is also not a party to this petition.

iil

TABLE OF CONTENTS

PAG

QUESTIONS PRESENTED .................. i

EE neve cnacceseccce¥eecvenee il

TABLE OF AUTHORITIES ................. iv

RE 1

eS 2

STATUTES INVOLVED ..................-. 2

STATEMENT OF THE CASE ............... 3

REASONS FOR GRANTING THE WRIT:

I.

The Opinion Of The Court Of Appeals Limits

Standing In Non-Fundamental Civil Rights

Cases In Contradiction Of This Court’s Prece-

CU ees es eaunsee vil 546s k5eo5 0 6

II.

Satisfaction Of The Court Of Appeals Test For

Standing Implicates Younger v. Harris ..... 9

rc Un ease au oe an testes es 10

APPENDICES

A—Opinion of the United States Court of Ap-

ED ae. App. 1

B—Memorandum Opinion and Order of the United

States District Court, January 15, 1992 .... App. 16

lV

TABLE OF AUTHORITIES

Cases

Almodavar v. Reiner, 832 F.2d 1138 (9th Cir. 1987) ..

Arlington Heights v. Schroeder, 28 Ill.App.3d 1, 328

N.E.2d 74 (Ist Dist. 1975) ............-00--

Babbit v. United Farm Workers Union, 442 U.S.

ee CU. oe ae a ra eee eer eeae

Bowers v. Hardwick, 478 U.S. 186 (1986) ......

City of Houston v. Hill, 482 U.S. 451 (1987) ....

DeSpain v. Johnson, 731 F.2d 1171 (5th Cir. 1984) ..

Doran v. Salem Inn, 422 U.S. 922 (1975) ..-..

Epperson v. Arkansas, 393 U.S. 97 (1968) .....

Georgetown v. Vanaman, 1988 WL 7388 (Del. Ch.) ..

Kentucky v. Graham, 473 U.S. 159 (1985) .....

Mitchum v. Foster, 407 U.S. 225 (1972) .......

Monaghan v. Deakins, 798 F.2d 632 (8rd Cir. 1986) . .

New Orleans Pub. Serv. v. Council of New Orleans,

G1 UB. SEO UGG) oc ccc twevsccsceviwseses

Newark v. Garfield Development Corp., 25 Ohio

Misc.2d 4, 495 N.E.2d 480 (1986) ...%......

Ohio Civil Rights Comm’n v. Dayton Christian

Schools, 477 U.S. GID (1986) ...........45..

Potomac Electric Power v. Sach, 802 F.2d 1527

NR RR teat Tp eae reg neki ch gan ara pnd

Schmidling v. City of Chicago, 1 F.3d at 501

(Reynolds, J. concurring) ................-.

6,

qn

6

V

Steffel v. Thompson, 415 U. . \52 (1974) ...... 6,8

United States v. SCRAP, 412 U.S. 669 (1973) ...

Valley Forge Christian College v. Americans For

Separation of Church and State, 454 U.S. 464

CI ee Pe ee oe enna een

Statutes Involved

Municipal Code of Chicago § 7-28-120(a}(b) (1990) .. 2

Other Authorities

Cioni, T., The Unkindest Cut of All, MILW.J. (Aug.

es NE a Lav ore Ca daeeueh is cake aceties 7

Nash, J., Gardening Nature’s Way; Back-To-Natives

Movement Bringing Ecological Harmony To

the American Backyard, TIME, May 17, 1993 . 7

Sabastian, P., Mowers, Growers Now Quarreling

Over the Back Fence—New Little Wildlife Habitat

Pop-Up Like Daffodils; Cultivators Are Vexed,

WALL... Ape. Vi, WO nc. ccccécccecsses 7

The Supreme Court, 19 TERM, 85 Harv. L. REv.

| Sara rere resem Dge npr As S48 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

JACK SCHMIDLING, LARRY CLARK,

DEBRA LYNN PETRO and RICH HYERCZYK,

Petitioners,

CITY OF CHICAGO,

Respondent.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

The petitioners Jack Schmidling, Larry Clark, Debra

Lynn Petro and Rich Hyerczyk respectfully pray that a

writ of certiorari issue to review the judgment and opin-

ion of the United States Court of Appeals for the Seventh

Circuit entered in the above-entitled proceeding on July

22, 1993.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is reported at 1 F.3d 494 (7th Cir.

1993). This opinion is reproduced as Appendix A. The

opinion of the District Court for the Northern District

of Illinois, Eastern Division, is reported at 1992 WL 14112.

It is reproduced as Appendix B.

= =

JURISDICTION

Invoking federal jurisdiction under 42 U.S.C. § 19838, the

petitioners brought suit in the Northern District of Illi-

nois. On January 15, 1992, the Northern District granted

the respondent’s motion to dismiss.

On petitioners’ appeals, the Seventh Circuit on July 22,

1993, entered a judgment and an opinion affirming the

Northern District’s order and directing that petitioners’

complaint be dismissed. No petition for rehearing was

sought. Jurisdiction in this Court is based on 28 U.S.C.

§ 1254.

STATUTES INVOLVED

Municipal Code of Chicago § 7-28-120(a)-(b) (1990):

(a) Any person who owns or controls property

within the city must cut or otherwise control all

weeds on such property so that the average height

of such weeds does not exceed 10 inches. Any per-

son who violates this subsection shall be subject to

a fine of not less than $50.00 nor more than $150.00.

Each day that such violation continues shall be con-

sidered a separate offense.

(b) All weeds which have not been cut or other-

wise controlled, and which exceed an average height

of 10 inches, are hereby declared to be a public nui-

sance. If any person has been convicted of violating

subsection (a) and has not cut or otherwise controlled

any weeds as required by this section within 10 days

after the date of the conviction, the city may cause

any such weeds to be cut at any time. In such event,

the person who owns or controls the property on

which the weeds are situated shall be liable to the

city for all costs and expenses incurred by the city

in cutting the weeds.

= a

STATEMENT OF THE CASE

Plaintiffs are part of a group of homeowners choosing

to landscape with native plants rather than conventional,

exotic grasses which usually require more fertilizers, pesti-

cides and watering.! “(Depending on your point of view”

the plaintiffs’ yards, cultivated with native Illinois prairie

plants and wildflowers, are a “garden or weed-patch.”’

Schmidling v. City of Chicago, 1 F.3d at 501 (Reynolds,

J. concurring). Generally, these native plants grow higher

than ten inches. The Plaintiffs do not cut these plants;

doing so would destroy them. Chicago’s weed ordinance

says ‘‘any person who owns or controls property within

the city must cut or otherwise controi all weeds on such

property so that the average height . . . does not exceed

10 inches.” By other terms, violators “shall be” fined “not

less than $50.00 nor more than $150.00” for each day the

“weeds” on their property are in violation.

Jack Schmidling cultivates a native landscape of 110

varieties of Illinois prairie, woodland and wetland plants

and wildflowers. By his count, it has attracted 64 different

species of birds. Schmidling was prosecuted for violating

the ordinance in 1987, 1988, and 1989. Each time, prose-

' Plaintiffs, mostly, grow these plants because natural landscapes

increase biodiversity, create habitat beneficial for birds and insects

and provide resting and feeding grounds for migrating birds. Com-

pared with traditional, exotic lawns, natural landscapes are more

environmentally beneficial as the native plants do not suggest the

use of toxic and harmful contaminants. These benefits are recog-

nized by others—including the City of Chicago which cultivates

a native prairie of wildflowers, legumes and grasses at The David

Lee Animal Control Center on the near south side. The Cook

County Forest Preserve District. Chicago Park District and Illinois

Department of Transportation are engaged in similar programs and

also cultivate native prairies in Chicago.

sili

cution stopped after he wrote the City explaining his rea-

sons for growing a native landscape.

Larry Clark cultivates a natural landscape consisting

of a savanna, a prairie, a wetland, and an experimental

garden. He hopes to preserve rare and threatened plants

and educate people on the need to preserve them. Like

Schmidling, Clark has been repeatedly prosecuted for vio-

lating the weed ordinance. Each prosecution was resolved

without conviction.

Debra Petro and Rich Hyerczyk grow native Illinois

prairie and savanna plants. Neither has ever been cited

for violating the weed ordinance, but both allege genuine

fears of prosecution because of the prosecutions of other

natural gardeners. -

Marie Wojciechowski, who is not a plaintiff, is trying

to establish a native landscape at her Chicago home. In

1989, Wojciechowski was prosecuted for allegedly violating

the weed ordinance and, under another ordinance, for ac-

cumulating debris on her property. After a trial, she was

ordered to clean up the debris, cut some plants so that

they wouldn’t encroach on a neighbor’s yard and pay a

$110.00 fine and court costs. She was cited again in 1990

and the case is still pending. If found guilty, she could

be fined under the terms of the weed ordinance at least

$24,000 and at most $72,000. To enforce payment, the city

can impose a lien on her home.?

2 The ordinance at issue here became effective December 20,

1989. The prior version of the law is reprinted in App. A at n.

2. The two versions are not materially different for purposes of

the issues raised in this case.

~

=)

Plaintiffs allege three causes of action:

1. The weed ordinance, on its face and as applied,

violates the Due Process Clause of the 14th Amend-

ment by not definiig the ambiguous and vague term

“weed”;

2. The weed ordinance, on its face uad as applied,

violates the Due Process Clause of the 14th Amend-

ment by not defining what is meant by the term

“average” or specifying the time, place or manner

of determining the ‘‘average”’ height; and

3. The weed ordinance violates the Due Process and

Equal Protection Clauses of the 14th Amendment by

not being rationally related to any articulated govern-

ment interest.

Unlike state law, 505 ILCS 100/1 (1992) (formerly Ill. Rev.

Stat. 1991, ch. 5, ¢ 951); Ill. Admin. Code, ch. 1, § 220.60 (1991

supp.) (containing a list of prohibited plants), the Chicago

weed ordinance does not define the term “weed.” Its com-

mon meaning is simply an unwanted plant. Webster’s New

World Dictionary (2d Ed.). Plaintiffs believe the term is

subjective, arbitrary and vague. See Arlington Heights v.

Schroeder, 28 Ill.App.3d 1, 328 N.E.2d 74, 76 (1st Dist.

1975) (‘“‘weed”’ is ambiguous) and that their due process

rights are being violated. Newark v. Garfield Development

Corp., 25 Ohio Misc.2d 4, 495 N.E.2d 480, 484 (1986) (““weed”

is unconstitutionally vague term); Georgetown v. Vanaman,

1988 WL 73538 (Del. Ch.) (same). “Average” is also not

defined, nor is the manner of computing it, thus com-

pounding the vagueness.

=

REASONS FOR GRANTING THE WRIT

4

The Opinion Of The Court Of Appeals Limits

Standing In Non-Fundamental Civil Rights

Cases In Contradiction Of This Court’s Precedent.

A party has standing to challenge a law if the complaint

alleges some injury in fact that can be fairly traced to

the challenged law and if redress is likely by a favorable

decision. Valley Forge Christian College v. Americans For

Separation of Church and State, 454 U.S. 464, 472 (1982).

The burden is not onerous. United States v. SCRAP, 412

U.S. 669, 689 n. 14 (1973). To fulfill the actual injury re-

quirement in a case challenging a criminal or quasi-crim-

inal statute, the plaintiffs must show “a reasonable threat

of prosecution.”” Ohio Civil Rights Comm’n v. Dayton

Christian Schools, 477 U.S. 619, 625, n.1 (1986); City of

Houston v. Hill, 482 U.S. 451, 459 n.7 (1987); Babbit v.

United Farm Workers Union, 442 U.S. 289, 298 (1979).

Here, before suit was filed, two petitioners were re-

peatedly prosecuted for violating the ordinance. Schmid-

ling was prosecuted three times; Clark twice. Additionally,

Wojciechowski was and still is being prosecuted. Peti-

tioners and Wojciechowski engage in the same activity.

As a result of all this, each petitioner has a genuine fear

of prosecution. These facts satisfy the requirements of the

ripeness and standing doctrines. Steffel v. Thompson, 415

U.S. 452, 475 (1974); see, e.g., Bowers v. Hardwick, 478 U.S.

186, 188 (1986) (plaintiff arrested, charges dropped); Hill,

482 U.S. 451 (plaintiff arrested four times, never convicted);

Epperson v. Arkansas, 393 U.S. 97 (1968) (teacher not

criminally charged). .

The court of appeals held that all petitioners lack stand-

ing because the prosecutions of Clark and Schmidling were

an

remote in time, had been discontinued and, therefore, could

not lead to present, genuine fears. But, prosecutions for

gardening in Chicago are only likely to occur in the spring

or summer, not year-round; so, prosecutions should not be

expected any more frequently than annually. The repeated

prosecutions of Clark, three years apart, show the outside

limit (according to the record) of the interval between re-

peat prosecutions. This suit was filed in early June, 1991

in anticipation of what had become a nearly annual rite

of spring.* Moreever, the decision contradicts Hill, 482

U.S. at 459, where standing was based on past prosecu-

tions more remote than these.

The holding that there was or could be no genuine fear

of future prosecution because the prior citations had been

discontinued belies the fact that there had been repeated

prosecutions. No one should be subject to such repeated

citations, regardless of whether they lead to conviction,

without a right to redress constitutional rights in a federal

court.

3 The Complaint alleges that petitioner’s fears of prosecution are

heightened by reports of other cities prosecuting natural land-

scapers. The reports of such prosecutions are wide spread and well

published. See, e.g., P. Sabastian, Mowers, Growers Now Quarrel-

ing Over the Back Fence—New Little Wildlife Habitat Pop-Up

Like Daffodils; Cultivators Are Vexed, WALL.St.J., Apr. 17, 1991

at §1, p.1; J. Nash, Gardening Nature’s Way; Back-To-Natives

Movement Bringing Ecological Harmony To the American Back-

yard, Time, May 17, 1993 at 55-57 (writing of Schmidling that

“{ajlthough his enclave is concealed behind a high fence, [some

neighbors] have reported him to the city, charging that his secret

garden is an overgrown mess.”) In Germantown, Wisconsin, two

police officers accompanied a city crew to cut down the natural

landscape of Curtis and Judy Crane. T. Cioni, The Unkindest Cut

Of All, Mitw.J. at Bl (Aug. 25, 1993).

= =

The court also dismissed the facts that Clark and Schmid-

ling built fences and planted trees to shield their land-

scapes from public view, holding that such actions do not

evidence injury because any fears causing these steps

were imaginary. But, standing limitations are intended to

assure that parties have the incentive to make a real con-

test of a case, providing courts with a better chance of

making an informed decision. Faced with an ordinance be-

lieved to be unconstitutional, a person can continue the

action and be afraid of prosecution or alter his conduct

in an attempt to minimize prosecution.

The Court of Appeals’ distinction of the Wojciechowski

case is also faulty. Because she is simultaneously being

prosecuted for having debris on her property, the court rea-

soned, her prosecution under the weed ordinance is differ-

ent and also does not justify genuine fears by petitioners.

Chicago, however, has distinct statutes, a weed ordinance

and a debris ordinance. Prosecution under one should have

nothing to do with prosecution under the other.

Moreover, the holding that Wojciechowski’s prosecution

“does not necessarily mean the City will definitively pros-

ecute plaintiff,’ App. A at 8, so far departs from this

Court’s accepted standard as to call for the exercise of

this Court’s supervisory power. The court of appeals sets

an impossible hurdle for petitioners in establishing stand-

ing. Prosecution of an individual engaged in the same con-

duct is sufficient to show a genuine fear. Steffel, 415 U.S.

452; Doran v. Salem Inn, 422 U.S. 922 (1975). No one

can ever establish a future event “definitively.” By creat-

ing such a standard for establishing a genuine fear of pros-

ecution, the Court of Appeals guarantees that no one will

have standing to challenge a statute in a non-fundamental

rights case in federal court because the only way to es-

tablish something “definitively” is for it to occur. If that

happens, Younger applies. Infra, II.

_9—

Il.

Satisfaction Of The Court Of Appeals

Test For Standing Implicates Younger v. Harris.

Standing limits access to the federal courts. Younger

abstention sends still others, for comity reasons, back to

state court. These doctrines have, now, wrongly developed

to the point, under Schmidling, where standing requires

allegation of facts implicating Younger. Between the two

there is no access to federal court.

Under Younger, a federal court must abstain where

the plaintiff is subject to a pending criminal prosecution.

Younger v. Harris, 401 U.S. 37 (1971). This Court has

never precisely defined the commencement of a criminal

prosecution. See The Supreme Court, 19 TERM, 85

Harv. L. Rev. 40, 307 (1971) (suggesting the date of the

“first official action against the individual” is the relevant

date to determine if a state action is pending). Case law

does not provide a bright line.

If under Younger, the state prosecution begins before

standing can be met under Schmidling, then, in a non-

fundamental rights case, access to a federal court to chal-

lenge a municipal ordinance is now illusory. Clearly such

4 In some cases, it has been held that indictment or even arrest

of the plaintiff prior to the filing of the federal action is not neces-

sary for Younger to apply. Courts havé an increasingly expansive

notion of when prosecution begins. See Potomac Electric Power

v. Sach, 802 F.2d 1527 (4th Cir. 1986) (Younger applies to target

of state grand jury investigation even though no indictment has

been issued or arrest made); DeSpain v. p< aed 731 F.2d 1171

(5th Cir. 1984) (state welfare agencies request for ex parte order

to investigate allegations of child abuse constituted “ongoing state

prosecution”); but see Monaghan v. Deakins, 798 F.2d 632 (3rd

Cir. 1986) (abstention not proper merely because federal plaintiff

was the target of an ongoing state grand jury investigation); Al-

modavar v. Reiner, 832 F.2d 1138 (9th Cir. 1987) (probation is not

a “pending criminal prosecution’’).

—10—

a result confounds fundamental notions of justice and the

principal of the right to access to federal court for the

redress of federally protected rights. See New Orleans

Pub. Serv. v. Council of New Orleans, 491 U.S. 350 (1989);

Mitchum v. Foster, 407 U.S. 225, 242 (1972).

CONCLUSION

For these reasons, the petition for certiorari should be

granted.

Respectfully submitted,

BRET A. RAPPAPORT

Counsel of Record

SCHWARTZ, COOPER, KOLB

& GAYNOR, CHARTERED

20 South Clark Street

Suite 1100

Chicago, Illinois 60603

(312) 845-3026

JAMES A. ROMANYAK

BELL, BOYD & LLOYD

Three First National Plaza

Suite 3300

Chicago, Illinois 60602

(312) 807-4276

Counsel for Petitioners

APPENDICES

App. 1

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 92-1410

JACK SCHMIDLING, MIKE REGENFUSS,

LARRY CLARK, et al.,

Plaintiffs-Appellants,

VU.

CITY OF CHICAGO, a municipal corporation

and RICHARD M. DALEY, in his official capacity,

Defendants-A ppellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 91 C 3506—Harry D. Leinenweber, Judge.

ARGUED NOVEMBER 12, 1992—DecipEp JuLy 22, 1993

Before MANION and Rovner, Circuit Judges, and

REYNOLDS, Senior District Judge.*

MANION, Circuit Judge. Jack Schmidling, Mike Regen-

fuss, Larry Clark, Debra Lynn Petro, and Rick Hyerczyk

(“plaintiffs”), reside in the City of Chicago and cultivate

natural gardens on their property. They sued the City

* Hon. John W. Reynolds, Senior District Judge for the Eastern

District of Wisconsin, is sitting by designation.

App. 2

of Chicago and Mayor Richard M. Daley! (‘‘defendants’’)

in federal court claiming a “genuine fear”’ of prosecution

under the City’s so-called weed ordinance, Municipal Code

of Chicago § 7-28-120 (1990), which requires persons own-

ing or controlling property within the City to keep the

weeds on their property at an average height not exceed-

ing ten inches. The district court dismissed the lawsuit

because the plaintiffs lacked standing to sue. As an alter-

native ground for dismissal, the district court cited the

doctrine of federal court abstention enunciated in Younger

v. Harris, 401 U.S. 37 (1971). The district court also de-

nied Schmidling and Clark leave to file a second amended

complaint. The plaintiffs appeal, and we affirm.

I. Background

The plaintiffs live in Chicago. Rather than having tradi-

tional lawns and gardens on their property, they main-

tain natural landscapes that include a variety of native

Illinois wild flowers and prairie plants. The City of Chi-

cago has a weed ordinance, which states in relevant part:

(a) Any person who owns or controls property

within the city must cut or otherwise contro] all

weeds on such property so that the average height

of such weeds does not exceed 10 inches. Any per-

son who violates this subsection shall be subject to

a fine of not less than $50.00 nor more than $150.00.

Each day that such violation continues shall be con-

sidered a separate offense.

(b) All weeds which have not been cut or other-

wise controlled, and which exceed an average height

of 10 inches, are hereby declared to be a public

1 The district court properly dismissed Mayor Daley, sued in his

official capacity, as a party to this action. A lawsuit against Mayor

Daley in his official capacity is the same as a lawsuit against the

City of Chicago. See Kentucky v. Graham, 473 U.S. 159, 165-66

(1985). Consequently, Mayor Daley is not a party to this appeal.

App. 3

nuisance. If any person has been convicted of vio-

lating subsection (a) and has not cut or otherwise con-

trolled any weeds as required by this section within

10 days after the date of the conviction, the city may

cause any such weeds to be cut at any time. In such

event, the person who owns or controls the proper-

ty on which the weeds are situated shall be liable

to the city for all costs and expenses incurred by the

city in cutting the weeds.

Municipal Code of Chicago § 7-28-120(a)-(b) (1990).

In June 1991, the plaintiffs sued the defendants in fed-

eral court. In their first amended complaint, the plain-

tiffs sought both a declaratory judgment that the current

weed ordinance is unconstitutional and a permanent in-

junction against the enforcement of the ordinance. They

alleged that the ordinance denies them due process be-

cause it is vague and ambiguous; in particular, they claimed

it fails to define the term ‘‘weed” or the term “average’”’

and does not delineate the manner in which the “average

height” of the weeds should be measured. The plaintiffs

further alleged that because of its ambiguity and vague-

ness, the ordinance fails to give adequate notice of .pro-

hibited conduct and, thereby, invites arbitrary and dis-

criminatory enforcement. Furthermore, they claimed the

ordinance denies them equal protection of the law because

it is not rationally related to any legitimate governmen-

tal interest.

Although not alleged in their first amended complaint,

the plaintiffs state in their Initial Brief that the plants

used in natural landscapes generally grow taller than ten

inches in height. Apparently, the height of the plaintiffs’

plants, not to mention the appearance of their plants, is

one of the implicit reasons the plaintiffs are concerned

the City will prosecute them under the current weed ordi-

nance. (We make this point to give context to their law-

suit with respect to the ordinance and to note the omis-

sion from their first amended complaint.)

App. 4

To demonstrate their standing to sue, the plaintiffs

claimed they “genuinely fear” the City will prosecute

them under the current weed ordinance. Although three

of the plaintiffs (Regenfuss, Petro, and Hyerezyk) have

never been cited or prosecuted under any weed ordinance,

the City has cited Clark and Schmidling in the past. In

1984 and 1987, the City cited Clark for allegedly violating

the previous version of the weed ordinance,? and the City

cited Schmidling under the same ordinance in 1987, 1988,

and 1989. The City dropped each charge, however, before

either man was fined or penalized. Although the plain-

tiffs do not explain the details behind the dismissal of the

charges against Clark, they do allege that the City drop-

ped each citation against Schmidling after receiving a

letter from him explaining his reasons for cultivating his

natural garden.

The plaintiffs also claimed they “genuinely fear’ prose-

cution because the City is currently prosecuting another

natural gardener, Marie Wojciechowski, a nonparty to this

2 The version of the weed ordinance that preceded the current

version stated in pertinent part:

99-9. All weeds including weeds which due to pollination are

a menace to health and weeds otherwise injurious to public

health or welfare are hereby declared to be a public nuisance.

It shall be unlawful for any person owning or controlling any

plot of ground to permit the growth of such weeds thereon.

All such weeds shall be cut, pulled, destroyed or chemically

sprayed ... by the owner or person in control of said plot

of ground at least twice a year... .

The failure to destroy such weeds within the designated

periods shall constitute a violation of this section.

When the owner or person in control of any plot of ground

fails to destroy or spray weeds growing thereon as provided

herein, the city official charged with the enforcement of this

section shall destroy the said weeds, and any expense incurred

by the city in so doing shall be a charge against the owner

so failing, which may be recovered in an appropriate action

in law instituted by the corporation counsel.

Municipal Code of Chicago § 99-9 (1970) (amended to current form

Dec. 20, 1989).

App. 5

lawsuit. The City first prosecuted Wojciechowski under

the earlier weed ordinance in 1989. According to the plain-

tiffs’ first amended complaint, “{alfter a trial on the

merits, the judge ordered Ms. Wojciechowski to clean up

certain debris in her yard, cut the plants so that they

would not encroach on her neighbors [sic] yard and pay

a $110.00 fine and court costs.” In 1990, the City began

its second prosecution of_ Wojciechowski under the cur-

rent weed ordinance.* This prosecution was pending when

the plaintiffs filed their federal suit.

The plaintiffs further claimed the City selectively en-

forces the weed ordinance. Although the City is prose-

cuting Wojciechowski, they claimed it has not prosecuted

the following government agencies that also maintain

natural landscapes: the David Lee Animal Control Center,

the Illinois Department of Transportation, the Cook Coun-

ty Forest Preserve, and the Chicago Park District. More-

over, the plaintiffs alleged that other villages and munici-

palities have ordinances that prohibit weeds in excess of

a certain height and that natural gardeners have been

subject to prosecution under those ordinances. The plain-

tiffs offered no specifics, however, about which villages

and municipalities have such ordinances and about which

3 Because the plaintiffs do not give any specifics in their first

amended complaint or in their appellate briefs about the current

prosecution of Wojciechowski, we have reviewed the initial com-

plaint and first amended complaint in her state-court suit on our

own initiative. See Green v. Warden, 699 F.2d 364, 369 (7th Cir.),

cert. denied, 461 U.S. 960 (1983). The City is charging Wojciechow-

ski with having weeds in excess of ten inches in height on her

property, thereby causing a public nuisance, and with storing

pieces of lumber and stacks of bricks on her property. City of Chi-

cago v. Wojciechowski, No. 90-MCI1-322079 Gir. Ct. Cook County,

Ill.). The fact that the City is prosecuting Wojciechowski for having

bricks and lumber on her property separates her situation from

the pristine gardeners who carefully nurture their yards. The sec-

ond prosecution against Wojciechowski appears to have resulted

from her not doing what the state trial judge ordered her to do

after her first prosecution. As of oral argument, Wojciechowski’s

case was still pending in the Cook County Circuit Court.

App. 6

natural gardeners have been prosecuted under those ordi-

nances.

Despite the plaintiffs’ allegations of a ‘‘genuine fear”’

of prosecution, there are no pending citations against any

of them for violating the current weed ordinance. None

of the plaintiffs has ever been fined or penalized under

either version of the weed ordinance, and the City has

never threatened to enforce the current weed ordinance

against any of the plaintiffs.

In November 1991, the defendants moved to dismiss the

first amended complaint on the ground that the plain-

tiffs lacked standing to maintain the lawsuit. Relying on

Nuclear Engineering Co. v. Scott, 660 F.2d 241 (7th Cir.

1981), the district court granted the motion because the

plaintiffs had not alleged that their “genuine fear’ of pros-

ecution caused them any immediate coercive consequences.

In addition, the district court sua sponte granted the mo-

tion to dismiss on the alternative basis of Younger absten-

tion. The court ruled that abstention was apropos in light

of the City’s ongoing prosecution of Wojciechowski. The

court wrote: “It would be an unwarranted interference

in federal-state relations for this court to interpret a

municipal ordinance and decide its constitutionality at a

time that a state court is in the process of doing the same

thing.”’

The plaintiffs then moved the district court to reconsider

the judgment against them or, in the alternative, for leave

to allow just Schmidling and Clark to file a second amended

complaint to correct the pleading defects regarding stand-

ing. In the proposed second amended complaint, Schmid-

ling and Clark alleged that the threat of enforcement (the

past tickets and the pending prosecution of Wojciechowski)

had immediate coercive consequences on them. As exam-

ples of these consequences, Schmidling and Clark alleged,

among other things, that they both erected fences around

their yards to block the view of their natural landscapes

from the street and that Schmidling refrains from culti-

vating a natural garden on his front yard, even though

App. 7

he has useable land. The district court denied the motion

to reconsider and the motion to amend the complaint. This

timely appeal followed.

II. Analysis

We have jurisdiction, 28 U.S.C. § 1291, to consider the

three issues the plaintiffs raise on appeal. First, whether

the district court erred in dismissing their lawsuit on the

ground that they lacked standing. Second, whether the

district court erred in basing its dismissal on the alter-

native ground of Younger abstention. Third, whether the

district court abused its discretion in denying Schmidling

and Clark the right to file a second amended complaint.

A. Standing

To invoke a federal court’s jurisdiction, a litigant must

establish the existence of a case or controversy. U.S.

Const. art. III, § 2; Lewis v. Continental Bank Corp., 494

U.S. 472, 477 (1990). To set forth the requisite Article III

case or controversy, the litigant “must show that he per-

sonally has suffered some actual or threatened injury as

a result of the putatively illegal conduct of the defendant.”

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91,

99 (1979). A litigant “‘ ‘does not have to await the consum-

mation of threatened injury to obtain preventive relief.

If the injury is certainly impending, that is enough.’ ”’

Babbitt v. United Farm Workers Nat’l Union, 442 U.S.

289, 298 (1979).

The injury, however, cannot be abstract. O’Shea v. Little-

ton, 414 U.S. 488, 494 (1974). “It must be alleged that

the plaintiff ‘has sustained or is immediately in danger

of sustaining some direct injury’ as the result of the chal-

lenged statute or official conduct.” Jd. “The injury or

threat of injury must be both ‘real and immediate,’ not

‘conjectural’ or ‘hypothetical.’ ”’ Jd. Of course, ‘{t]he dif-

ference between an abstract question and a ‘case or con-

troversy’ is one of degree . . . and is not discernible by

App. 8

any precise test.” Babbitt, 442 U.S. at 297; accord Golden

v. Zwickler, 394 U.S. 103, 108 (1969).

In addition, “the litigant must satisfy the ‘causation’ and

‘redressability’ prongs of the Art. III minima by show-

ing that the injury ‘fairly can be traced to the challenged

action,’ and ‘is likely to be redressed by a favorable deci-

sion.’ ’’ Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).

A litigant must clearly and specifically set forth these Ar-

ticle III standing requirements with sufficient facts,

because ‘‘[a] federal court is powerless to create its own

jurisdiction by embellishing otherwise deficient allegations

of standing.” Jd. at 155-56.

In their first amended complaint, the plaintiffs did not

allege any actual injury; as a result, we examine de novo

their first amended complaint to determine whether they

have alleged a sufficiently immediate threat of injury. See

Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.

1991). In so doing, we accept as true all the material al-

legations in the complaint and construe the complaint in

favor of the plaintiffs. See Warth v. Seldin, 422 U.S. 490,

501 (1975); Prince, 940 F.2d at 1106.

The plaintiffs alleged that they have a “‘genuine fear”

of prosecution under the current weed ordinance specifical-

ly because the City has ticketed two of them in the past

for allegedly violating the previous version of the weed

ordinance and because the City is currently prosecuting

Wojciechowski under the present version of the ordinance.

Even though the City is prosecuting Wojciechowski under

the current version of the weed ordinance, that does not

necessarily mean the City will definitively prosecute the

plaintiffs.4 Wisconsin’s Envtl. Decade, Inc. v. State Bar

4 Although the plaintiffs claim that they and Wojciechowski en-

gage in the same type of gardening behavior, the record is unclear

regarding the similarity between her garden and those of all the

plaintiffs. Also, the City cited Wojciechowski not only for having

weeds on her property, but for storing bricks and lumber on her

property as well. Supra note 3. The existence of the bricks and

(Footnote continued on following page)

App. 9

of Wis., 747 F.2d 407, 412 (7th Cir. 1984), cert. denied,

471 U.S. 1100 (1985); People v. General Elec. Co., 683 F.2d

206, 210 (7th Cir. 1982), cert. denied, 461 U.S. 913 (1983).

To establish standing, the plaintiffs must also show that

the City has threatened them with immediate prosecution

under the current weed ordinance. See Gladstone, Realtors,

441 U.S. at 99; Steffel v. Thompson, 415 U.S. 452, 459

(1974). The plaintiffs have failed to do so. The plaintiffs

have instead claimed that the City ticketed Schmidling

and Clark in the past for allegedly violating the earlier

version of the ordinance. (The City dropped the tickets

before either man was fined or penalized.) These allega-

tions are deficient to establish a case or controversy.

In the first place, the ticketing of Schmidling and Clark

is too attenuated in time to show a sufficiently immediate

threat that the City will prosecute the plaintiffs. The

plaintiffs brought their lawsuit in 1991. The last ticket

Clark received was in 1987. The last ticket Schmidling

received was in 1989. Since those dates, in addition to

amending the ordinance, the City has neither prosecuted

nor threatened to prosecute either man, see, e.g., O’Shea,

414 U.S. at 495-96 (noting that “[pJast exposure to illegal

conduct does not in itself show a present case or contro-

versy . . . if unaccompanied by any continuing, present

adverse effects’), and the City has never cited, fined,

prosecuted, or threatened the other three plaintiffs with

prosecution under either version of the ordinance. The

plaintiffs may consider the new ordinance unacceptable

and they apparently think they are violating it, but with-

out a showing of imminent enforcement, they have no

Article III injury.

In the second place, a violation under the earlier ordi-

nance is different from a violation under the present ordi-

4 continued

lumber may have created some other hazard, nuisance, or health

problem that motivated the City to issue the citation, and the ex-

istence of the bricks and lumber is a difference between Wojcie-

chowski’s situation and the plaintiffs’ situation.

App. 10

nance. The earlier ordinance set no height limit on weeds.

The ordinance stated: “All weeds including weeds which

due to pollination are a menace to health and weeds other-

wise injurious to public health or welfare are hereby de-

clared to be a public nuisance.” Municipal Code of Chicago

§ 99-9 (1970) (amended to current form Dec. 20, 1989). In

contrast, the current ordinance requires property owners

or those who control property to cut all weeds so that

their average height is no greater than ten inches. /d.

§ 7-28-120(a) (1990). Accordingly, Schmidling and Clark

could have been subject to prosecution for violating the

earlier ordinance, but not necessarily be subject to pros-

ecution for violating the current ordinance. Thus, the al-

legations of the past tickets—absent allegations of any

immediate threat of prosecution under the current ordi-

nance—fail to show a realistic danger that the City will!

certainly prosecute the plaintiffs under the present weed

ordinance. See Babbitt, 442 U.S. at 298; O’Shea, 414 U.S.

at 495-96; Wisconsin’s Envtl. Decade, Inc., 747 F.2d at

412; General Elec. Co., 683 F.2d at 209-10.

Moreover, although the plaintiffs have alleged that they

have a “genuine fear” of being prosecuted, their allega-

tions are inadequate to show that the City has caused

that fear. We find no allegations in the first amended com-

plaint that the City has threatened the plaintiffs in any

way with prosecution under the current ordinance. For

the purposes of determining standing, we are initially and

primarily concerned with the threat of prosecution, not

with a litigant’s anticipation of it. Gladstone, Realtors, 441

U.S. at 99; Warth, 422 U.S. at 499. The reason: anticipa-

tion, fervor of advocacy, speculation, or even fear is not

enough by itself to establish standing. See Valley Forge

Christian College v. Americans United for Separation of

Church & State, Inc., 454 U.S. 464, 485-86 (1982); Nuclear

Eng’g Co. v. Scott, 660 F.2d 241, 252 (7th Cir. 1981), cert.

denied, 455 U.S. 993 (1982). A credible threat of direct

injury to the litigant must exist. See Babbitt, 442 U.S.

at 298; O’Shea, 414 U.S. at 494. As such,because the

plaintiffs have not alleged sufficient facts to show that

the City has threatened them with prosecution under the

App. 11

current weed ordinance, we find their claims of “genuine

fear” unrealistic. Steffel, 415 U.S. at 459; O’Shea, 414 US.

at 494. Indeed, because the plaintiffs are not engaged in

any constitutionally protected conduct or expression, this

is not one of those cases where the mere existence of a

law can under the correct circumstance serve as a suffi-

cient threat in and of itself to give a litigant standing to

sue. Babbitt, 442 U.S. at 298 (“When the plaintiff has

alleged an intention to engage in a course of conduct ar-

guably affected with a constitutional interest, but pro-

scribed by a statute, and there exists a credible threat

of prosecution thereunder, he ‘should not be required to

await and undergo a criminal prosecution as the sole

means of seeking relief.’ ’’); e.g., New York State Club

Ass’n v. City of New York, 487 U.S. 1, 8-10 (1988) (a con-

sortium of private clubs obtained standing to sue because

its member associations could have established standing

on behalf of their members who were suffering immediate

or threatened injury to their associational rights because

of the enactment of a law, even though none had been

charged); Epperson v. Arkansas, 393 U.S. 97, 98-102 (1968)

(biology teacher, although not yet charged criminally, ob-

tained standing to challenge law that prohibited the

teaching of evolution); Kucharek v. Hanaway, 902 F.2d

513, 516 (7th Cir. 1990) (sellers of sexually explicit ma-

terials obtained standing to challenge newly enacted

obscenity statute based on their reasonable fear of pros-

ecution, even though they were not charged criminally),

cert. denied, 498 U.S. 1041 (1991). But see Younger, 401

U.S. at 42 (‘{Plersons having no fears of state prosecu-

tion except those that are imaginary or speculative, are

not to be accepted as appropriate plaintiffs. . . .”).

In sum, we affirm the district court for granting the

defendants’ motion to dismiss. We do not find the allega-

tions in the first amended complaint to have demonstrated

that the plaintiffs are in real and immediate danger of

sustaining some direct injury as a result of the operation

or enforcement of the weed ordinance. Babbitt, 442 U.S.

at 298; O’Shea, 414 U.S. at 494; General Elec. Co., 683

App. 12

F.2d at 210. Our reason for affirming the district court

varies somewhat from the one the court advanced in dis-

missing the amended complaint. The district court relied

on Nuclear Engineering to determine that the plaintiffs

lacked standing. In that case, the Nuclear Engineering

Company (“NEC’’) brought a federal suit after hearing

the Illinois Attorney General announce at a press confer-

ence his intent to commence lawsuits at some future date

against those persons, including NEC, whom he thought

were violating Illinois environmental protection laws.

Nuclear E'ng’g Co., 660 F.2d at 243-44, 252. We ruled that

for NEC to establish standing based on this threat of

future prosecution, it had to show that “the threat of en-

forcement [had] immediate coercive consequences of some

sort upon [it].” Jd. at 252. Therefore, in applying Nuclear

Engineering, the district court here determined that the

plaintiffs lacked standing because they did not demon-

strate some immediate coercive consequence. For the dis-

trict court to have reached that conclusion, though, it had

to first find that the City had threatened the plaintiffs

with future prosecution under the current weed ordinance.

Yet, based on our de novo review of the first amended

complaint, we conclude that the City has not threatened

the plaintiffs with either immediate or future prosecution

under the current weed ordinance.

B. Abstention

The plaintiffs also argue that the district court erred

in abstaining swa sponte on the basis of Younger v. Harris,

401 U.S. 37 (1971), which the court used as an alternative

basis for granting the defendants’ motion to dismiss.

“Under Younger-abstention doctrine, interests of comity

and federalism counsel federal courts to abstain from juris-

diction whenever federal claims have been or could be pre-

sented in ongoing state judicial proceedings that concern

important state interests.” Hawai Housing Auth. v. Mid-

kiff, 467 U.S. 229, 237-38 (1984). Because we have already

affirmed the district court on the basis that the plaintiffs

App. 13

lacked standing to bring their lawsuit, we do not need to

reach this point on appeal.

C. Motion to Amend

After the district court dismissed the plaintiffs’ first

amended complaint, the plaintiffs moved the court to re-

consider the judgment against them. The court denied

that motion. In the alternative, the plaintiffs moved for

just Schmidling and Clark to file a second amended com-

plaint to resolve the pleading defects the district court

had noted in its order of dismissal. In that order, the

district court stated that even though the plaintiffs had

alleged a “genuine fear” of prosecution, they had to show

that they suffered some immediate coercive consequences

to achieve standing. In light of the court’s conclusion,

Schmidling and Clark alleged in their proposed second

amended complaint that the threat of prosecution (the past

tickets and the Wojciechowski suit) caused them to suf-

fer immediate coercive consequences. For instance, they

alleged that they had to build fences around their yards

to block the view of their natural landscapes from the

street. The court denied the motion to amend.

In their proposed second amended complaint, Schmid-

ling and Clark rely on the same claims of threatened pros-

ecution the plaintiffs raised in the first amended com-

plaint, that is, the past tickets and the prosecution of

Wojciechowski. We have already ruled that those allega-

tions do not demonstrate a credible or realistic threat that

the City will prosecute any of the plaintiffs under the cur-

rent ordinance now or in the future. See Babbitt, 442 U.S.

at 298. Thus, the actions Schmidling and Clark allege they

have taken do not represent steps taken in response to

some genuine threat of future prosecution, but represent

steps taken in response to their speculative and imaginary

fear of prosecution. See, e.g., id. If anything, these pru-

dent measures reduced the possibility of prosecution under

the current ordinance. Consequently, the district court did

not abuse its discretion in denying the motion to file a

App. 14

second amended complaint. See Perkins v. Silverstein, 939

F.2d 463, 471-72 (7th Cir. 1991); Villa v. City of Chicago,

924 F.2d 629, 632 (7th Cir. 1991).

III. Conclusion

The district court properly dismissed the lawsuit on the

basis of standing; as such, we do not need to reach the

abstention question. The district court also did not abuse

its discretion in denying the motion to file a second

amended complaint. Accordingly, the district court is

AFFIRMED.

REYNOLDS, Senior District Judge, concurring. I disagree

with the majority’s conclusion that plaintiff-appellant Jack

Schmidling lacks standing to challenge the Chicago weed

ordinance. Schmidling was three times threatened with

prosecution under the previous ordinance, the most re-

cent citation having been issued in 1989, less than two

years before this lawsuit was filed. The ordinance was

amended in 1990, but not in any way that reduces the

likelihood of Schmidling being cited again. Another natural

gardener, Marie Wojciechowski (not a party to this action),

has been cited and prosecuted under both versions of the

ordinance, and her garden (or weed-patch, depending on

your point of view) is identical to Schmidling’s for pur-

poses relevant to the weed ordinance.

Under these eireumstaneces, I think Schmidling has

established a “credible threat of prosecution,” thereby

satisfying the case or controversy requirement of Article

Ill. Babbit v. United Farm Workers Nat’l Union, 442

U.S. 289, 298 (1979). See Steffel v. Thompson, 415 U.S.

452, 459 (1974) (two prior warnings to cease handbilling,

combined with prosecution of plaintiffs “‘handbilling com-

panion” create Article III controversy). The majority’s

characterization of Schmidling’s fear of prosecution as

App. 15

“speculative and imaginary” should be, and usually is,

reserved for cases in which the plaintiff ‘“feel[s] inhibited”’

by the mere existence of a law; it is not an appropriate

characterization where the plaintiff has received actual,

formal threats of prosecution. Younger v. Harris, 401 U.S.

37, 42 (1971); Steffel, 415 U.S. at 459.

Nevertheless, I concur with the result reached by the

majority because I believe plaintiffs have no hope of pre-

vailing on the merits of their constitutional claims. Were

the issue to be reached, the weed ordinance would be

found neither unconstitutionally vague nor irrational.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 16

APPENDIX B

[Filed January 15, 1992]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACK SCHMIDLING, MIKE

REGENFUSS, LARRY CLARK,

DEBRA LYNN PETRO and

RICH HYERCZYK, CASE NO.

Plaintiffs, 91 C 3506

JUDGE

CITY OF CHICAGO and RICHARD LEINENWEBER

)

)

)

)

)

V. )

)

)

M. DALEY, in his official capacity, _)

)

)

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs, six Chicago homeowners who call themselves

natural gardeners, reject traditional turf-lawn type yards

in favor of natural landscapes employing native plants, wild

flowers, legumes and grasses. City of Chicago (“City”) or-

dinance Section 7-28-120 (the ‘‘weed ordinance’) provides

that ‘“‘any person who owns or controls property within

the City must cut or otherwise control all weeds on such

property so that the average height of such weeds does

not exceed 10 inches.”’ Violators are subject to a fine of

not less than fifty dollars nor more than one-hundred fifty

dollars for each day of violation.

The amended complaint alleges that the City filed com-

plaints for violation of the weed ordinance against two

of the plaintiffs in the past. However, in each instance,

App. 17

the prosecution was dropped after a letter of explanation

was received by the City. The complaint further alleges

that the City is currently prosecuting Marie Wojciechow-

ski (“Wojciechowski”), a fellow natural landscaper, for vio-

lation of the weed ordinance. As a result of these past

complaints and the ongoing prosecution, plaintiffs fear that

they wil! in the future be prosecuted by the City for vio-

lating the weed ordinance. The amended complaint con-

tends that the weed ordinance denies plaintiffs due proc-

ess because the ordinance fails to define “weed” and is

for that reason unconstitutionally vague. The amended

complaint also contends that the ordinance denies equal

protection of the laws to plaintiffs because the ordinance

is not rationally related to a legitimate government in-

terest. They seek declaratory judgment and an injunction.

The City has filed a motion pursuant to Fed.R.Civ.P.

12(bX1) and 12(bX6) to dismiss the amended complaint be-

cause plaintiffs lack standing to maintain this suit and,

in the alternative, their complaint fails to state a cause

of action because the weed ordinance is not unconstitu-

tionally vague and is, in fact, rationally related to a legiti-

mate government interest.

The gist of the City’s lack of standing argument rests

on its claim that none of the plaintiffs have alleged an

actual injury as a result of the weed ordinance so as to

comply with the “case or controversy” requirement of Ar-

ticle III of the United States Constitution. The city argues

that plaintiffs’ “fear of prosecution” claim is insufficient

to meet this actual injury requirement. It cites Nuclear

Engineering Co. v. Scott, 660 F.2d 241, 252 (7th Cir. 1981),

in support. In response, plaintiffs argue that ‘‘a reasonable

fear of prosecution is sufficient to meet the case or con-

troversy requirement.” They cite a number of cases from

both the United States Supreme Court and the Seventh

App. 18

Circuit in support, e.g., So. Suburban. Housing Ctr. v. Bd.

of Realtors, 935 F.2d 868, 878 (7th Cir. 1991); Valley Forge

Christian College v. Americans for Separation of Church

& State, 454 U.S. 464, 472 (1982); Ohio Civil Rights Comm’n.

v. Dayton Christian Schools, 477 U.S. 619, 625 n.1 (1986);

Babbit v. United Farm Workers Union, 442 U.S. 289, 298

(1979); and Durharel v. Hanaway, 902 F.2d 513, 516-7 (7th

Cir. 1990).

In Nuclear Engineering, the plaintiff was engaged in

hazardous waste disposal. The Illinois Attorney General

stated at a press conference that he believed that the

plaintiff was violating Illinois environmental protection

laws and that he intended to commence a suit against the

plaintiff. The plaintiff then filed its lawsuit against the

attorney general for declaratory judgment and an injunc-

tion. The appeals court dismissed the lawsuit for failure

to present a case or controversy. It held that if a plain-

tiff was going to rely on the threat of a lawsuit to create

a justiciable controversy, the threat “must have immediate

coercive consequences” on the plaintiff. In other words,

the plaintiff must have succumbed to the pressure created

by the threat by incurring costs or by altering its be-

havior in some manner against its will.

In this case, plaintiffs each allege that they feared pros-

ecution but there is nothing in the amended complaint

that in any way alleges that any of them had altered his

behavior in any manner as a result of this fear. The

amended complaint alleges that each plaintiff continues

to cultivate his yard in its natural state in apparent dis-

regard of his fear of prosecution under the weed ordi-

nance. So it would appear that on the authority of Nu-

clear Engineering that plaintiffs fail to allege a case or

controversy in the Article III sense, unless plaintiffs’ cases

require otherwise.

~

ci~

Se |

App. 19

The cases relied upon by plaintiffs are readily distin-

guishable. In each of plaintiffs’ cases, the “reasonable

threat of prosecution” that created an Article III case

or controversy stemmed from a statute that sought to

inhibit constitutionally protected conduct, e.g., Dayton

Christian Schools (religion), Babdit (speech and associa-

tion), or there were allegations or evidence that the plain-

tiff was actually deterred from acting by the statute, e.g.,

Kucharek v. Hanaway (sale of pornographic materials),

So. Suburban Housing Ctr. (affirmative marketing of real

estate). On the contrary, plaintiffs here are not engaged

in a constitutionally protected activity and have not modi-

fied their conduct in fear of prosecution under the weed

ordinance.

There is an additional prudential consideration why this

court should not get involved in determining the constitu-

tionality of a municipal ordinance in this case. Plaintiffs

make reference to the ongoing prosecution against Wojcie-

chowski in the Circuit Court of Cook County for alleged-

ly violating the weed ordinance. It would be an unwar-

ranted interference in federal-state relations for this court

to interpret a municipal ordinance and decide its consti-

tutionality at a time that a state court is in the process

of doing the same thing. Federal courts usually deny

standing to contest the constitutionality of an ordinance

or statute on vagueness grounds where the conduct regu-

lated is of a type that could be regulated by a properly

drawn statute, and where there is a state court interpre-

tation of the ordinance or statute that cures the vague-

ness. Younger v. Harris, 91 S.Ct. 746, 752 n.4 (1971).

Accordingly, the motion of City of Chicago to dismiss

pursuant to Rule 12(bX1) for lack of jurisdiction is granted.

The motion to dismiss Mayor Richard M. Daley, who is

sued in his official capacity, is likewise granted. Suits

App. 20

against a mayor in his official capacity are the same as

those against the City itself. Kentucky v. Graham, 105

S.Ct. 3099, 3105 (1985).

IT IS SO ORDERED.

/s/ Harry D. LEINENWEBER

HARRY D. LEINENWEBER, Judge

United States District Court

DATED: JAN 15 1992

App. 21

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JUDGMENT IN A CIVIL CASE

Jack Schmidling, Mike Regenfuss,

Larry Clark, Debra Lynn Petro Case Number:

and Rich Hyerczyk 91 C 3506

v.

City of Chicago and Richard M. Judge

Daley, in his official capacity Leinenweber

Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

™ Decision by Court. This action came before the Court.

The issues have been tried or heard and a decision

has been rendered.

IT IS ORDERED AND ADJUDGED that the motion of

City of Chicago to dismiss for lack of jurisdiction is

granted. The motion to dismiss Mayor Richard M. Daley,

who is sued in his official capacity, is likewise granted.

Date January 15, 1992

H. STUART CUNNINGHAM

Clerk

/s/ Wanda Parker

(By) Deputy Clerk