IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS FIRST MUNICIPAL DISTRICT

KATHY CUMMINGS,

) ) Plaintiff, ) v. ) ) CITY OF CHICAGO DEPARTMENT OF ) ADMINISTRATIVE HEARINGS, ) ) CITY OF CHICAGO DEPARTMENT OF ) STREETS AND SANITATION, ) ) CITY OF CHICAGO, a Municipal Corporation, ) ) and RENEE VENTURA, ) ) Defendants. )

No. 2012 M1 450692

Administrative Agency Docket No. 12DS003738 Property Address 2533 W. Thomas Street JURY TRIAL REQUESTED

FIRST AMENDED COMPLAINT FOR ADMINISTRATIVE REVIEW, CIVIL RIGHTS, DECLARATORY JUDGMENT and INJUNCTIVE RELIEF Plaintiff, Kathy Cummings, by and through her attorney, James L. Bowers, for her complaint against defendants City of Chicago Department of Administrative Hearings; City of Chicago Department of Streets and Sanitation; City of Chicago, a Municipal Corporation; and Renee Ventura, states as follows: NATURE OF CLAIM 1. This action arises under the Illinois Administrative Review Law, 735 ILCS 5/3-101, et seq., the United States Constitution, and the laws of the United States, specifically the Civil Rights Act of 1871, 42 U.S.C. 1983, to redress deprivations of the civil rights of the plaintiff through acts or omissions of the defendants committed under color of law. 2. This action is brought to reverse the decision of the City of Chicago Department of Administrative Hearings in which the plaintiff was found guilty of violating the Chicago Weeds
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Ordinance, Chicago Municipal Code 7-28-120(a). It is further brought to vindicate plaintiffs constitutional rights to freedom of expression, due process and equal protection, said rights having been violated through the defendants arbitrary and capricious application of the vaguely worded Chicago Weeds Ordinance to prohibit plaintiffs display of native plants on her own private property. 3. This action seeks relief in the form of a reversal of the decision of the Chicago Department of Administrative Hearings finding plaintiff liable for violation of the Chicago Weeds Ordinance; a declaratory judgment finding said Ordinance unconstitutional on its face and as applied to plaintiff; a mandatory injunction prohibiting enforcement of said Ordinance as written; compensatory and punitive damages; and attorneys fees and costs incurred in this matter.

JURISDICTION AND VENUE 4. This Court has jurisdiction of this claim under the Illinois Administrative Review Law, 735 ILCS 5/3-104. Plaintiffs Federal Constitutional and Civil Rights claims arise out of, and are inextricably intertwined with, plaintiffs administrative review claim, and this court has jurisdiction over those claims pursuant to the Illinois Constitution, Article 6, 9; U.S. Constitution, Amend. I, V, and XIV; and the Civil Rights Act of 1871, 42 U.S.C. 1983. 5. Venue is proper in this circuit under 735 ILCS 5/2-101, 5/2-103, and 5/3-104, all events or omissions giving rise to this claim having occurred in this circuit.

PARTIES 6. Plaintiff is a resident of the State of Illinois, County of Cook and City of Chicago and is the owner of the property located at 2533 W. Thomas Street in Chicago, Illinois, said property having been the subject of the citation issued for violation of the Chicago Weeds Ordinance. 7. Defendant City of Chicago is a municipal corporation, duly organized under the laws of the State of Illinois. Defendant City of Chicago maintained, managed and or operated the Department of Streets and Sanitation and the Department of Administrative Hearings. 8. At all times mentioned herein, defendant Renee Ventura was employed by the Chicago Department of Streets and Sanitation and was acting under color of law and as an employee or agent of the City of Chicago, Illinois. She is being sued in her individual capacity.

BACKGROUND 9. This action is brought to reform an unconstitutional policy of the City of Chicago wherein the defendant City is using the Chicago Weeds Ordinance to raise millions of dollars in municipal revenue on the backs of some of Chicagos poorest and most vulnerable citizens without fair warning as to the prohibited conduct. Raising revenue in this manner, instead of through the more difficult process of enacting tax legislation that is fairly and equitably assessed, has enabled the Mayor and the City Council, in the 2013 Budget Address, to misleadingly claim that they have not raised taxes on the residents of Chicago. 10. The Chicago Weeds 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 ten inches. 7-28-120(a)

11. Unlike the Illinois Noxious Weed Law, 505 ILCS 100/1 et seq., and its regulations, 8 Ill. Admin. Code 220.60, the Chicago Weeds Ordinance contains no definition of the term weed, no list of plants considered to be weeds by the City of Chicago, and no rational means by which a citizen would be able to calculate the average height of all of the undefined weeds on her property. 12. In 2008, in apparent recognition of the vagueness of the Chicago Weeds Ordinance, the City of Chicago Department of Streets and Sanitation and Department of the Environment adopted a Rule and Regulation to provide guidance on determining whether vegetation is a weed(s) within the meaning of Section 7-28-120 of the Municipal Code of Chicago, and as such is subject to the restrictions and abatement measures set forth in Section 7-28-120. The definition contained within the adopted Rule and Regulation provides: Weed or weeds means vegetation that is not managed or maintained by the person who owns or controls the property on which all such vegetation is located and which, on average, exceeds ten inches in height. The aforesaid rule, which apparently has not been communicated to city inspectors and administrative law judges, or is routinely ignored by said employees, does little or nothing to eliminate the subjective nature of the Chicago Weeds Ordinance. 13. The preamble to the aforesaid Rule and Regulation recognizes that the City of Chicago promotes the use of native vegetation as a means to conserve water and reduce carbon dioxide emissions, a policy that would be consistent with the Citys motto, adopted in the 1830s, Urbs in Horto, or City in a Garden. By promoting native vegetation with one hand and citing it as weeds with the other, defendant City of Chicago has engaged in a game of entrapment of the residents of the City of Chicago.

14. On July 28, 2010, in spite of the obvious deficiencies in the Chicago Weeds Ordinance, the Chicago City Council voted unanimously, in a vote of 49 to 0, to increase the penalties for violation of the Chicago Weeds Ordinance, from a range of $100.00 minimum to $300.00 maximum, to a new range of $500.00 minimum to $1000.00 maximum. On November 11, 2010, the Council voted to again raise the penalties for said ordinance to a range of $600.00 minimum to $1200.00 maximum. 15. Under Illinois law, a municipality is prohibited from levying fines for violation of an ordinance in excess of $750.00 for any one violation. 65 ILCS 5/1-2-1. Not only does the Chicago Weed Ordinance maximum penalty exceed the penalty allowed under state law, but the ordinance also arbitrarily provides that each day that such violation continues shall be considered a separate offense to which a separate fine shall apply. 7-28-120(a) Theoretically, the ordinance empowers administrative law judges to assess tens of thousands of dollars in fines for what is really a single violation. 16. In the year 2009, prior to raising the penalties for violation of the Chicago Weeds Ordinance, the City of Chicago issued 5,522 separate citations for violations of that ordinance, and $928,788.81 in City revenue was thereby generated. For the year 2012, the City of Chicago issued 11,104 citations for violation of the Chicago Weeds Ordinance, generating $3,664,334.25 in revenue. For the first three months of 2013, Chicago has issued 3,846 citations for violations of the Chicago Weeds Ordinance, a pace that will easily result in more than 15,000 annual citations. For the past five years, between one- third and one-half of all citations for violations of the Chicago Weeds Ordinance have been issued in five of the Citys poorer West and South side communities (9th, 20th, 24th, 34th, and 16th Wards).

17. In its haste to generate substantial additional revenue through escalating numbers of weeds citations, the City of Chicago has failed to attempt to define the term weeds, has failed to train its inspectors to differentiate between weeds and native vegetation, has failed to require that inspectors adhere to the Citys own rules, regulations and policies with respect to native vegetation, and has encouraged arbitrary and capricious behavior on the part of its inspectors, all to the detriment of the freedom of expression, due process and equal protection rights of thousands of citizens of the City of Chicago every year, including the plaintiff herein.

STATEMENT OF FACTS 18. For much of her adult life, plaintiff Kathy Cummings has been engaged in expressive activities related to the promotion of natural landscapes and green environmental issues. She has run as a Green Party candidate in Illinois for United States Senate and for the State House of Representatives; she is a founding member of Citizens Act to Protect Our Water (CAPOW!), Milk Outrage Organization (MOO), and Healthy Air; she has registered her yard as a certified waystation for monarch butterflies; she has been a member of the DuPage County Bee Keepers Association; and she was the founder of the literary arts magazine Nit & Wit. 19. In addition to her organizational involvement, plaintiff has, for several years, managed and maintained a natural landscape of native vegetation on her own property at 2533 W. Thomas Street, in the City of Chicago. 20. Plaintiffs natural landscape was planted and maintained as both an expression of her support for environmental issues, as well as a statement of the natural beauty to be discovered in maintenance of a non-traditional garden constructed entirely of native plants. Her front yard

includes over thirty species of native plants, carefully and meticulously planted, displayed and arranged within natural borders constructed of intertwined twigs and branches. 21. In 2004, plaintiffs front yard garden received the first place award in the City of Chicago Landscape Awards Program in the category of native landscapes. That award was based on the evaluation of the planning, maintenance, freedom from weeds, creativity and environmental soundness of plaintiffs native garden. In 2005, plaintiffs garden received an honorable mention award from the City of Chicago. 22. The native landscapes award category was defined by the City as a landscape that provided habitat for wildlife, featured primarily native plants, and utilized conservation practices that minimized watering and maintenance. 23. On or about October 19, 2012, unbeknownst to the plaintiff, defendant Renee Ventura, an employee of the City of Chicago, Department of Streets and Sanitation, conducted an inspection of plaintiffs front yard area, and, subsequent thereto, issued a citation to plaintiff for violation of the Chicago Weeds Ordinance. 24. At the time of the inspection of plaintiffs yard by defendant Renee Ventura, plaintiff maintained a sign in the midst of the yard provided by the national non-profit organization known as Wild Ones. The sign stated Native Plants Natural Landscapes Toward Harmony with Nature. The sign also displayed the telephone number and web site for Wild Ones. 25. On October 19, 2012, and at all times relevant hereto, plaintiff had and has continued to maintain her yards natural landscape in a condition similar to that existing in 2004 at the time of her first place award for native landscaping.

26. Plaintiff timely filed a written request for a hearing to contest the citation for violation of the Chicago Municipal Code with the Chicago Department of Administrative Hearings. 27. The Department of Administrative Hearings scheduled a hearing for November 29, 2012, which proceeded on that date. Prior to the start of any of the hearings on that date, plaintiff understood the Administrative Law Judges opening remarks to all ticketed residents present in his courtroom to include the comment that everyone in the room present for a hearing would receive, at a minimum, a $600.00 fine. 28. At the hearing, the City presented no witnesses, and the only evidence presented by the City consisted of the ticket written by the City inspector, defendant Renee Ventura, for an alleged violation of the Chicago Weeds Ordinance and photographs purportedly taken by that same inspector. 29. Plaintiff, appearing pro se, presented evidence that there were over thirty types of native plants in her yard, that there were no weeds, and that her yard was regularly managed and maintained by herself and her partner. 30. At the conclusion of the hearing, the Administrative law Judge, while recognizing that plaintiffs yard appeared to be in basically the same condition as at the time of plaintiffs award from the City in 2004, stated that, based on his common experience in life, one yellowish green plant, which he did not name or otherwise identify, appeared to be a weed. 31. At the hearing, the City presented no evidence to contradict plaintiffs testimony that her yard was regularly managed and maintained, as required by the City rule. 32. At the hearing, the City presented no evidence of either the inspectors or the Administrative Law Judges expertise in horticultural science, thereby violating the Daubert

standard on admission of expert evidence, announced by the United States Supreme Court in 1993. 33. At the hearing, both the Citys prosecuting attorney and the Administrative Law Judge erroneously stated that the standard under the Chicago Weeds Ordinance was whether there were any weeds taller ten inches, as opposed to whether the average of all weeds exceeded ten inches. 34. Based solely on the Administrative Law Judges observation of one plant in one photograph, the judge entered a finding of liability against the plaintiff and assessed a fine of $600.00, plus $40.00 in court costs.

COUNT I JUDICIAL REVIEW UNDER ILLINOIS ADMINISTRATIVE REVIEW LAW (735 ILCS 5/3-101 et seq.) 35. Paragraphs 1 34 are incorporated herein by reference. 36. On November 29, 2012, a final administrative decision affecting the rights of the plaintiff (Decision) was issued by the City of Chicago Department of Administrative Hearings. 37. Plaintiff has timely filed this action seeking judicial review of the Administrative Hearing Decision within 35 days from the date a copy of the Decision was served upon plaintiff. 38. The plaintiff has exhausted all available remedies under the Administrative Review law and has no further plain, speedy, adequate remedy under the law. 39. The plaintiff desires a judicial review of the Decision, a copy of which is attached as Exhibit 1, because it is clearly erroneous and otherwise not in accordance with the law. 40. Given that the administrative agency failed to properly consider municipal law in the form of defendant Citys rules and regulations interpreting the ordinance at issue, plaintiff requests that the Decision be reversed or remanded for further hearing or proceedings.
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41. Given that the Administrative Law Judge lacked statutory authority to make constitutional findings, plaintiff requests that the Decision be reversed on constitutional grounds or that the matter be remanded for the taking of additional evidence where from the state of the record it appears that such action is just. 42. Given that the City failed to introduce evidence identifying the alleged weed at issue, plaintiff requests that the Decision be reversed or that the matter be remanded for the taking of additional evidence. 43. The City of Chicago Department of Administrative Hearings is requested to file an answer consisting of the complete administrative record of the proceeding resulting in the Decision, including the transcript of all preliminary remarks and admonitions made by the Administrative Law Judge prior to the start of the hearings, the transcript of the evidence, the report of proceedings, and all exhibits and submissions by the parties. WHEREFORE, plaintiff requests that the Court enter judgment reversing or remanding the decision of the Chicago Department of Administrative Hearings, and granting such other and further relief as the Court deems equitable and proper.

COUNT II VIOLATION OF CIVIL RIGHTS PURSUANT TO 42 U.S.C. 1983 (FIRST AMENDMENT EXPRESSIVE CONDUCT) 44. Paragraphs 1-34 are incorporated herein by reference. 45. Plaintiff requests a trial by jury on this count. 46. The citation of plaintiff for violation of the Chicago Weeds Ordinance has had a chilling effect on plaintiffs fundamental right to engage in expressive conduct and symbolic speech under the First Amendment to the U.S. Constitution, as made actionable by and through

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42 U. S.C. 1983, and has resulted in humiliation, embarrassment, extreme stress and other injuries to plaintiff. 47. The Chicago Weeds Ordinance was promulgated for the protection of an arbitrary and historically changing sense of aesthetic values and is not narrowly tailored for that purpose and is therefore facially unconstitutional because of overbreadth in sweeping up protected expressive conduct. 48. The public, organizations for the promotion and preservation of art, legislatures and courts of law have recognized that native plants, such as Chapman Kellys Wildflower Works installation in Chicagos Grant Park can constitute a form of site-specific environmental art. 49. By virtue of the myriad types of plants in plaintiffs yard, the carefully maintained twig borders and erected signage, it was or reasonably should have been obvious to defendant Renee Ventura that plaintiffs yard was managed and maintained in full compliance with the Chicago Weeds Ordinance and, at the same time, constituted an expression by plaintiff of an environmental ethic. 50. Defendant City of Chicago, through enforcement of its express policies, failure to adequately train its inspectors, push for increased citations under a fatally overbroad and vague ordinance, and promulgation of increasingly excessive and confiscatory fines, has violated plaintiffs right to expressive conduct, as guaranteed by the United States Constitution. WHEREFORE, plaintiff requests that the Court enter judgment in her favor and against defendants City of Chicago and Renee Ventura, awarding plaintiff general and special damages, punitive damages against the individual defendant, reasonable attorneys fees and costs, declaring the Chicago Weeds Ordinance unconstitutional on its face and as applied, granting a

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mandatory injunction prohibiting enforcement of the ordinance, and such other and further relief as may be equitable and proper.

COUNT III VIOLATION OF CIVIL RIGHTS PURSUANT TO 42 U.S.C. 1983 (FIFTH AND FOURTEENTH AMENDMENT DENIAL OF DUE PROCESS) 51. Paragraphs 1-34 are incorporated herein by reference. 52. Plaintiff requests a trial by jury on this count. 53. The citation of plaintiff for violation of Chicagos Weeds Ordinance violated her due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution, as made actionable by and through 42 U.S.C. 1983. The municipal administrative hearing procedures are fundamentally unfair in that plaintiff and others in her position were and are denied the right to a neutral and impartial city inspector and hearing officer, the right to fully develop a factual record, the right to have her evidence and testimony weighed in a manner equal to that of the non-present city inspector, and the right to have notice and fair resolution of issues involving scientific expertise. 54. The citation of plaintiff for violation of the Chicago Weeds ordinance also violated her due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution in that the municipal fine structure for violation of the ordinance exceeded the municipalitys legislative grant of authority and, in essence, constituted imposition of a tax without the requisite procedures, public hearings, and notice. 55. The citation of plaintiff for violation of the Chicago Weeds ordinance further violated her due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution in that the ordinance, on its face and as applied to plaintiff, contained vague, ambiguous and undefined terminology and imposed a standard that is impossible to apply, other
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than arbitrarily, impermissibly delegated police powers and basic policy considerations to the City, its employees and inspectors, and to administrative hearing officers. 56. The violation of plaintiffs due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution, as made actionable by and through 42 U.S.C. 1983, has resulted in humiliation, embarrassment, extreme stress and other injuries to plaintiff. WHEREFORE, plaintiff requests that the Court enter judgment in her favor and against defendants City of Chicago and Renee Ventura, awarding plaintiff general and special damages, punitive damages against the individual defendant, reasonable attorneys fees and costs, declaring the Chicago Weeds Ordinance unconstitutional on its face and as applied, granting a mandatory injunction prohibiting enforcement of the ordinance, and such other and further relief as may be equitable and proper.

COUNT IV VIOLATION OF CIVIL RIGHTS PURSUANT TO 42 U.S.C. 1983 (FOURTEENTH AMENDMENT DENIAL OF EQUAL PROTECTION) 57. Paragraphs 1-33 are incorporated herein by reference. 58. Plaintiff requests a trial by jury on this count. 59. The citation of plaintiff for violation of Chicagos Weed Ordinance has violated plaintiffs right under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution to not be arbitrarily treated differently from other similarly situated individuals. 60. Defendant Renee Ventura, in citing plaintiff for violation of the Chicago Weeds Ordinance, intentionally discriminated against plaintiff for the purpose of arbitrarily increasing municipal revenue, in spite of the fact that a clear municipal rule and common sense should reasonably have alerted defendant that there was no rational basis for issuance of the citation.

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61. The violation of plaintiffs equal protection rights under the Fourteenth Amendment to the U.S. Constitution, as made actionable by and through 42 U.S.C. 1983, has resulted in humiliation, embarrassment, extreme stress and other injuries to plaintiff. WHEREFORE, plaintiff requests that the Court enter judgment in her favor and against defendants City of Chicago and Renee Ventura, awarding plaintiff general and special damages, punitive damages against the individual defendant, reasonable attorneys fees and costs, declaring the Chicago Weeds Ordinance unconstitutional on its face and as applied, granting a mandatory injunction prohibiting enforcement of the ordinance, and such other and further relief as may be equitable and proper.

Dated: May 9, 2013

/s/ James L. Bowers_____________ James L. Bowers

James L. Bowers Attorney at Law 631 N. Central Avenue Chicago, IL 60644 (312) 343-6326

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