Schmidling v. City of Chicago
| Decision Date | 22 July 1993 |
| Docket Number | No. 92-1410,92-1410 |
| Citation | 1 F.3d 494 |
| Parties | Jack SCHMIDLING, Mike Regenfuss, Larry Clark, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation and Richard M. Daley, in his official capacity, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Bret A. Rappaport, Asst. Atty. Gen., Schwartz, Cooper, Kolb & Gaynor, James A. Romanyak, Bell, Boyd & Lloyd, Gregory A. Stayart, Chicago, IL, for plaintiffs-appellants.
Mary F. Harkenrider, Anita K. Modak-Truran, Office of the Corp. Counsel, Kelly R. Welsh, Benna R. Solomon, Timothy W. Joranko, Office of Corp. Counsel, App.Div., Chicago, IL, for defendants-appellees.
Before MANION and ROVNER, Circuit Judges, and REYNOLDS, Senior District Judge. *
Jack Schmidling, Mike Regenfuss, 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 of Chicago and Mayor Richard M. Daley 1 ("defendants") in federal court claiming a "genuine fear" of prosecution under the City's so-called weed ordinance, Municipal Code of Chicago Sec. 7-28-120 (1990), which requires persons owning or controlling property within the City to keep the weeds on their property at an average height not exceeding ten inches. The district court dismissed the lawsuit because the plaintiffs lacked standing to sue. As an alternative ground for dismissal, the district court cited the doctrine of federal court abstention enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The district court also denied Schmidling and Clark leave to file a second amended complaint. The plaintiffs appeal, and we affirm.
The plaintiffs live in Chicago. Rather than having traditional lawns and gardens on their property, they maintain natural landscapes that include a variety of native Illinois wild flowers and prairie plants. The City of Chicago has a weed ordinance, which states in relevant part:
(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 person 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 considered a separate offense.
(b) All weeds which have not been cut or otherwise controlled, and which exceed an average height of 10 inches, are hereby declared to be a public nuisance. 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.
Municipal Code of Chicago Sec. 7-28-120(a)-(b) (1990).
In June 1991, the plaintiffs sued the defendants in federal court. In their first amended complaint, the plaintiffs sought both a declaratory judgment that the current weed ordinance is unconstitutional and a permanent injunction against the enforcement of the ordinance. They alleged that the ordinance denies them due process because 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 vagueness, the ordinance fails to give adequate notice of prohibited conduct and, thereby, invites arbitrary and discriminatory enforcement. Furthermore, they claimed the ordinance denies them equal protection of the law because it is not rationally related to any legitimate governmental 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 ordinance. (We make this point to give context to their lawsuit with respect to the ordinance and to note the omission from their first amended complaint.)
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 Hyerczyk) 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, 2 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 plaintiffs do not explain the details behind the dismissal of the charges against Clark, they do allege that the City dropped 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" prosecution because the City is currently prosecuting another natural gardener, Marie Wojciechowski, a nonparty to this lawsuit. The City first prosecuted Wojciechowski under the earlier weed ordinance in 1989. According to the plaintiffs' first amended complaint, "[a]fter 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 current weed ordinance. 3 This prosecution was pending when the plaintiffs filed their federal suit.
The plaintiffs further claimed the City selectively enforces the weed ordinance. Although the City is prosecuting 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 County Forest Preserve, and the Chicago Park District. Moreover, the plaintiffs alleged that other villages and municipalities have ordinances that prohibit weeds in excess of a certain height and that natural gardeners have been subject to prosecution under those ordinances. The plaintiffs offered no specifics, however, about which villages and municipalities have such ordinances and about which natural gardeners have been prosecuted under those ordinances.
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 plaintiffs 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 prosecution caused them any immediate coercive consequences. In addition, the district court sua sponte granted the motion to dismiss on the alternative basis of Younger abstention. 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 standing. In the proposed second amended complaint, Schmidling and Clark alleged that the threat of enforcement (the past tickets and the pending prosecution of Wojciechowski) had immediate coercive consequences on them. As examples 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 cultivating a natural garden on his front yard, even though he has useable land. The district court denied the motion to reconsider and the motion to amend the complaint. This timely appeal followed.
We have jurisdiction, 28 U.S.C. Sec. 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 alternative 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.
To invoke a federal court's jurisdiction, a litigant must establish the existence of a case or controversy. U.S. Const. art. III, Sec. 2; Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). To set forth the requisite Article III case or controversy, the litigant "must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone, Realtors...
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