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KATHY CUMMINGS and JERE ROBINSON, ) Individually and on behalf of a class of ) others similarly situated, ) ) Plaintiffs, ) v. ) ) CITY OF CHICAGO DEPARTMENT OF ) ADMINISTRATIVE HEARINGS, et al ) ) Defendants. )

No. 2012 M1 450692

PLAINTIFFS MOTION TO CERTIFY CASE AS A CLASS ACTION Pursuant to Section 5/2-801, et seq., of the Illinois Code of Civil Procedure, 735 ILCS 5/2-801, and all other applicable rules of practice and procedure, Plaintiffs, by and through counsel, move this Court to order that this case may be maintained as a class action on behalf of: All persons ticketed by the City of Chicago from June 20, 2011, to the date of entry of judgment, for violation of the Chicago Weeds Ordinance, Chicago Municipal Code, 728-120(a). In support of this motion, Plaintiffs state as follows: 1. 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. 2. Unlike many modern municipalities, the Chicago Weeds Ordinance does not define the term weeds, does not provide citizens with a list of plants considered to be noxious, provides no guidance for citizen compliance with the ordinance, and does not specify whether the terminology average height applies to an entire piece of property or to a single, isolated

clump of plants. Theoretically, one ten foot tall sunflower could unfairly skew the average height calculation. The vagueness of the ordinance is only magnified by the fact that the ordinance, apparently based on antiquated and arbitrary aesthetic values, may not even reach the conduct that the ordinance is intended to reach, i.e., tall, uncut grass, which may or may not be considered a weed, depending upon who is applying the ordinances proscriptions. 3. Plaintiffs contend that during the year 2010, the City of Chicago, finding itself short of revenue it could raise through legal and equitable means, instituted a policy of raising the fines under the Chicago Weeds Ordinance from $100.00 to an outrageous and confiscatory $1200.00 per day, far exceeding the maximum penalty that a municipality is allowed to assess under State law. 65 ILCS 5/1-2-1. 4. Freedom of Information Act responses produced by the City of Chicago establish that in excess of 20,000 citizens have been ticketed for violation of the Chicago Weeds Ordinance during the past two years, and that over $7,000,000 in fines have been collected from those citizens. The Freedom of Information Act responses further establish that enforcement of the Chicago Weeds Ordinance has been arbitrarily and inequitably concentrated in certain impoverished neighborhoods in the City of Chicago. 5. Plaintiffs anticipate that the evidence will show that it is not uncommon for ticketed lots to be bordered on either side by wholly unkempt vacant lots owned by the City of Chicago. Plaintiffs further anticipate that the evidence will show City of Chicago is citing residents for violation of the Chicago Weeds Ordinance, despite the fact that the alleged weeds are the same native plants that the City is encouraging residents to plant and grow for environmental reasons. 6. Plaintiffs contend that each of these 20,000 citations were issued pursuant to an unwritten municipal policy authorizing Streets and Sanitation Department employees to

aggressively and arbitrarily pursue enforcement of an ordinance that is unconstitutional on its face and as applied. 7. Plaintiffs further contend that many residents have simply paid the fines, rather than appeal them, out of a sense of fear and duress imposed by the factually inaccurate and threatening language on the tickets, as well as by the possibility of the issuance of much more exorbitant, and potentially bankrupting, penalties in the event of loss at hearing or on appeal. The conduct of the hearing process itself subjects innocent residents, generally appearing pro se, to exertion of extreme pressure by the Citys prosecuting attorneys, who, on information and belief, are given conviction quotas that they are expected to reach. 8. Plaintiffs contend that the municipal policy of aggressive and arbitrary enforcement of the Chicago Weeds Ordinance has resulted in a sweeping up of people engaged in wholly lawful conduct, including citizens desiring to exercise their First Amendment rights by expressing the environmental ethic embraced by the cultivation of native plants. Plaintiffs further contend that this municipal policy, as authorized by the Chicago Weeds Ordinance, places unbridled discretion in the hands of each Department of Streets and Sanitation inspector to issue tickets to persons who are engaged in lawful conduct. These contentions are common to all members of the class. 9. Plaintiffs are seeking a declaration that the Chicago Weeds Ordinance is unconstitutional and in violation of the First, Fifth and Fourteenth Amendments to the United States Constitution. The constitutionality of the ordinance is the common question and dominant issue with respect to each and every class member. The Constitutional rights of every person cited under the Chicago Weeds Ordinance has been violated, entitling them to damages for violation of their civil rights under the Civil Rights Act of 1871, 29 U.S.C. 1983. Those

damages include the reimbursement of all fines, court costs, and appeal fees, as well as compensatory damages for stress, humiliation, embarrassment and the loss of liberty and time entailed in undertaking efforts to oppose the imposition of unconstitutional fines. 10. As further set forth in the Complaint in this cause, the named class representatives will fairly and adequately protect the interests of the class in that both named class representatives have received citations for violations of the Chicago Weeds Ordinance. 11. An ordinance similar to the Chicago Weeds Ordinance was found unconstitutional by the First District Appellate Court in 1975. Village of Arlington Heights v. Schroeder, 28 Ill.App.3d 1, 328 NE2d 74. The only cases in which the City of Chicagos ordinance has been challenged have found the standing of the named plaintiffs wanting and have therefore not reached a consideration of the constitutionality of the Chicago Weeds Ordinance on the merits. Shachter v. City of Chicago, 356 Ill. Dec. 901, 962 NE2d 586 (Ill.App. 1 Dist. 2011); Schmidling v. City of Chicago, 1 F.3d 494 (7th Cir. 1993) Furthermore, those cases were not brought under the federal Civil Rights Act, which invokes the Supremacy Clause of federal laws over state laws. 12. Plaintiff is represented by competent counsel with combined legal experience in excess of 75 years, including experience in prosecuting class actions, and counsel will adequately represent the proposed class. 13. Class certification to prohibit continuation of the policy and practice challenged in this case is appropriate because the policy and practice is applied to persons who have not engaged in any wrongdoing, and because the policy and practice places the constitutional rights of every man and woman within the City of Chicago in the hands of petty officers and employees of the City of Chicago.

14. The class is so numerous that joinder of all members is impracticable. The class includes every person cited under the Chicago Weeds Ordinance during the relevant time period, including those who paid the fine at the outset, those who challenged the citation at an administrative hearing and/or on appeal and were ultimately found not guilty, and those who challenged the citation at an administrative hearing or on appeal and were either found guilty or their case remains pending. Every proposed class member suffered damages of a type long recognized under the Civil Rights Act of 1871, involving challenges to the constitutionality of actions undertaken by a local government and its employees. 15. Class certification to secure damages for each member of the class is an appropriate method for the fair and efficient adjudication of the controversy because the common question of the constitutionality of the ordinance predominates over questions affecting only individual members and because the proposed class is manageable. Fiorito v. Jones, 39 Ill.2d 531, 236 NE2d 698 (1968); Rosen v. Village of Downers Grove, 19 Ill.2d 448, 167 NE2d 230 (1960). 16. The Illinois Code of Civil Procedure provides, at 735 ILCS 5/2-802, that the court shall determine the propriety of maintenance of an action as a class action as soon as practicable after the commencement of an action. To the extent that Defendants oppose certification of this action as a class action, Plaintiffs request that this motion be entered and continued in order that Plaintiffs may conduct appropriate discovery on the certification issues. WHEREFORE, Plaintiffs pray that the Court order that this case may be maintained as a class action on behalf of: All persons ticketed by the City of Chicago from June 20, 2011, to the date of entry of judgment, for violation of the Chicago Weeds Ordinance, Chicago Municipal Code, 728-120(a).

Plaintiffs further request that this Court grant Plaintiffs any and all other relief to which they are legally or equitably entitled. Respectfully submitted,

June 25, 2013 ________________________ James L. Bowers

James L. Bowers Attorney at Law 631 N. Central Avenue Chicago, IL 60644 (312) 343-6326 Attorney No. 16009 CERTIFICATE OF SERVICE I, James L. Bowers, an attorney, hereby certify that I personally served a copy of this Motion for Class Certification on an attorney for the City of Chicagos Corporation Counsels Office in open court on this 25th day of June, 2013.

______________________________ James L. Bowers