Posted by: Patricia Salkin | October 22, 2018

7th Circuit Court of Appeals Affirms Dismissal of Due Process Claims Related to Six Month Delay in Notice of Municipal Ordinance Citation

This post was authored by Matthew Loeser, Esq.

In February 2015, Tucker purchased a vacant lot on her neighborhood block through Chicago’s “Large Lot Program” and intended to convert it into a community garden. Defendant Sonya Campbell, an inspector for Chicago’s Department of Streets and Sanitation, inspected Tucker’s property and concluded its vegetation violated the city’s yard weed ordinance. Six months later, another city employee served Tucker with a citation for the alleged violation. The administrative law judge ruled in favor of the city and imposed a $640 fine against Tucker. While Tucker could have appealed the fine to the Circuit Court of Cook County, she instead paid it “under protest.” That same day, she filed this putative class action, alleging 42 U.S.C. § 1983 claims against Campbell and the city, as well as a “failure-to-train” claim against the city. The district court dismissed Tucker’s original complaint, as well as her amended complaint.

As to the due process claim, Tucker did not dispute that she received a hearing, in which she was represented by counsel, presented evidence in her defense, and made legal arguments. At the hearing the administrative law judge considered the parties’ evidence, adjudicated the city’s allegation, and imposed a fine. Tucker claimed the city’s delay caused her prejudice in that she was unable “to make any measurements of the average height of the vegetation on her lot at or near the time of inspection” or to use “photographs taken contemporaneously with the date of the alleged violation.” The court noted that while the delay in this case was six months, it was still considerably shorter than prosecutorial delays accepted in other contexts. Additionally, the interest at stake here was monetary, which was less significant than one’s liberty interest in a criminal prosecution, or even property interest in continued employment.

Tucker next contended that the defendants maintained a policy of misinterpreting the city’s yard weed ordinance. Specifically, Tucker claimed the city incorrectly asked its inspectors to determine only whether some weeds exceeded ten inches, while the plain text of the ordinance required that “the average height” of the offending weeds exceeded ten inches. However, even assuming Tucker was right that the city’s interpretation of its ordinance was incorrect, federal due process protection was not a guarantee that state governments would apply their own laws accurately. Moreover, if Tucker believed the administrative law judge’s interpretation of the ordinance was legally incorrect, she could have appealed her fine to Illinois’s state courts. As Tucker’s amended complaint made no attempt to establish the inadequacy of that avenue of redress its dismissal was affirmed.

Tucker v City of Chicago, 2018 WL 5095151 (7th Cir. CA 10/19/2018)

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