A federal appeals panel has upheld a lower court’s ruling Chicago ordinance inspectors did not violate a woman’s right to due process by waiting six months after an inspection to cite her for allegedly having overgrown weeds, saying that period was not excessive and she got her due process at her administrative hearing.
The Oct. 19 decision was penned by Circuit Judge Michael Brennan, with agreement from Circuit Judges Frank Easterbrook and Michael Kanne of the U.S. Court of Appeals for the Seventh Circuit, which sits in Chicago. The decision went against Nanette Tucker in her dispute with the city of Chicago.
In February 2015, Tucker bought a vacant lot from the city for $1, through the city’s program that offers to the public low-value parcels, which are costly for the city to maintain. Tucker planned to convert her lot into a community garden.
In June 2015, a city inspector visited the lot and said she found it allegedly overgrown with weeds, but issued no citation for a violation of the city’s vegetation ordinance.. However, a different inspector mailed Tucker a citation the following December. Tucker contested the citation at an administrative hearing Dec. 29,2015, arguing weeds were not high, but she lost and was fined $640.
Tucker paid the fine under protest Feb. 2, 2016. The same day she sued the city in Chicago federal district court, contending the six-month delay between inspection and citation violated her right to due process. District Judge Robert Dow Jr. dismissed the case, finding Tucker failed to plausibly allege due process was breached.
Tucker appealed, arguing the administrative hearing may have given her due process, but she suffered a “prehearing denial of due process,” because of the six-month holdup.
At the Seventh Circuit, the judges were not persuaded.
“The delay between [the] inspection and the citation is relevant only to whether the hearing itself was constitutionally adequate. The delay alone does not constitute a due process violation,” Brennan concluded.
Brennan pointed out a statute of limitations is the usual way of preventing undue delay in prosecution, but Chicago’s weed ordinance has no such limitation. At any rate, Brennan quoted the U.S. Supreme Court as saying due process has “a limited role to play in protecting against oppressive delay.”
Further, Brennan noted the Seventh Circuit has ruled in previous cases, that delays longer than six months were acceptable in prosecutions involving much more serious matters than weeds.
In addition, if Tucker’s argument was accepted, then the city would be required to give “near instantaneous” notice of alleged ordinance violations, according to Brennan. Besides, Tucker has failed to mention any authority indicating law enforcement must immediately initiate prosecutions.
Tucker also argued the ordinance says a violation occurs if the “average height” of offending weeds exceed ten inches, but inspectors incorrectly check whether “some” weeds are over ten inches. This alleged misinterpretation also violates due process, in Tucker’s eyes.
Brennan countered the possible misinterpretation of a municipal ordinance does not involve the U.S. Constitution.
“Interpretation of state or local law is a question of legal substance, not process. A litigant is not deprived of due process merely because a local law enforcement agency does not agree with her legal interpretation,” Brennan said.
Federal due process protection does not guarantee lower levels of government have to accurately apply their laws. If the situation was otherwise, federal courts would effectively sit as appellate tribunals over every state proceeding, in Brennan’s view.
Tucker has been represented by the Chicago firm of James R. Fennerty & Associates and Chicago lawyer James L. Bowers.
Chicago has been defended by city attorneys Ellen Wight McLaughlin, Myrian Kasper, Kerrie Laytin and Thomas P. McNulty.