The opinion of the court was delivered by: Myron L. Gordon, Senior District Judge.
The plaintiff, Marjorie Lundquist, filed this action
pursuant to 42 U.S.C. § 1983, asserting a claim for violation
of her fifth and fourteenth amendment due process rights. Ms.
Lundquist seeks injunctive relief and damages for injuries she
has allegedly suffered as a result of certain action taken and
threatened by agents of the defendant City of Milwaukee (the
City) with respect to the vegetation growing in her yard.
On July 11 and 23, 1986, the court heard oral arguments on
the plaintiff's motion for a temporary restraining order to
enjoin the City from enforcing Milwaukee City Ordinance § 80-17
(1970) (as amended), entitled "Hay Fever Weeds, etc." By virtue
of the City's appearance at and full participation in the
hearing on the plaintiff's motion, the court will treat the
application as one for a preliminary injunction. See Levas and
Levas v. Village of Antioch, Ill., 684 F.2d 446, 448 (7th Cir.
1982). Treated as such, the plaintiff's motion will be denied.
Ms. Lundquist owns and occupies the property located at 2735
North Humboldt Boulevard in the City of Milwaukee. On June 23,
1986, she received notice from the City's Bureau of Sanitation
that her property was in violation of § 80-17 of the Milwaukee
City Ordinances. Section 80-17 provides in pertinent part as
(1) TO BE CUT. It shall be unlawful to permit
within the City of Milwaukee, the pollenization
of any grasses or weeds which cause or produce
hay fever in human beings. In order to prevent
such pollenization, none of the following
grasses, and no weeds of any kind shall be
permitted to grow or stand more than one (1) foot
high on any premises in the City. . . . (emphasis
(5) PENALTY. Any person, firm, or corporation
who shall be convicted of a violation of this
section shall be subjected to a penalty of up to
one hundred dollars ($100) for each and every
offense, together with the costs of prosecution,
and in default of payment of any such penalty or
fine such person shall be imprisoned in the county
jail or house of correction of Milwaukee county not
in excess of 60 days, or until such penalty and
costs shall be paid. . . . (emphasis supplied)
It is undisputed that at the time Ms. Lundquist received
notice that her property was in violation of § 80-17(1) there
was vegetation in her yard which exceeded one-foot in height.
However, she contends that § 80-17 is unconstitutionally vague
because it does not provide notice of which weeds are to be cut
"with sufficient specificity to allow a person of ordinary
intelligence to comply with the Notice and Ordinance." See
plaintiff's complaint at par. 5. She also contends that agents
of the City have threatened to sanction her failure to bring
her premises into compliance with § 80-17(1) in a manner
unauthorized by § 80-17(5), "without prior notice and
opportunity for a hearing prior to imposition of such a
sanction. . . ." See plaintiff's complaint at par. 9.
As a preliminary matter, the court has been informed that
Ms. Lundquist has complied with the June 23, 1986, weed
destruction notice and that at the present time no prohibited
grasses or weeds in excess of one-foot high blemish her
property and neighborhood. The question thus arises whether
the issues in this action have been rendered moot. Because the
vegetation in her yard is likely to follow nature's way upward
and over the one-foot mark, however, "[i]t can reasonably be
assumed that [Ms. Lundquist] will be subjected to a similar"
destruction notice in the future. See Press-Enterprise Co. v.
Superior Court, ___ U.S. ___, 106 S.Ct 2735, 2739, 92 L.Ed.2d 1
(1986). Moreover, because of the short time period the notice
provides for compliance (3 days), the matter is likely to evade
judicial review in time to effectuate any order the court may
enter. Id. Accordingly, I conclude that the case is not moot.
Id.; see also County of Los Angeles v. Davis, 440 U.S. 625,
631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979), citing United
States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897,
97 L.Ed. 1303 (1953), recognizing that "as a general rule,
`voluntary cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the case,
i.e., does not make the case moot.'"
Having hacked away at the underbrush in this case, I will
turn to the merits. At this stage of the proceedings, the
issue before me is whether the plaintiff is reasonably likely
to prevail on her claim that § 80-17(1) is unconstitutionally
vague on its face, in violation of due process. Under Hoffman
Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 497, 102
S.Ct. 1186, 1192, 71 L.Ed.2d 362 (1982), to succeed on her
claim Ms. Lundquist "must demonstrate that the [ordinance] is
impermissibly vague in all of its applications." "The root of
the vagueness doctrine is a rough idea of fairness." Colten v.
Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d
Section 80-17(1) of the Milwaukee City Ordinances is not
impermissibly vague in violation of due process. As in
Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294,
2299, 33 L.Ed.2d 222 (1972), " . . . it is clear what the
ordinance as a whole prohibits." Section 80-17(1) provides in
part that " . . . no weeds of any kind shall be permitted to
grow or stand more than one (1) foot high. . . ." The words
"no" and "any" are used to indicate the maximum or whole of a
number or quantity. As such, they are well chosen to place a
person of ordinary intelligence on notice that every weed over
without exception is prohibited. Ms. Lundquist does not
contend that the City is without power to enact such a blanket
The contention that the word "weeds" is impermissibly vague
cannot be sustained. As its title indicates, the ordinance as
a whole is designed to limit the growth of grasses and weeds
which cause or produce hay fever in human beings. Section
80-17(1)'s failure to distinguish between wild vegetative
growth over one-foot high which does and does not cause hay
fever in human beings simply illustrates the practice
difficulties in drafting cogent public health ordinances.
Cf. Colten, supra, 407 U.S. at 110, 92 S.Ct. at 1957. However,
the vagueness doctrine "is not a principle designed to convert"
such practical difficulties "into a constitutional dilemma."
Id. Indeed, if the ordinance were broken down scientifically
into groups of weeds which do and do not cause hay fever in
human beings, I think it would be even more difficult for a
person of ordinary intelligence to understand and act upon than
the way it currently reads.
In short, the design, purpose, and context of § 80-17(1)
demonstrate the overall weakness of Ms. Lundquist's challenge.
"The words of the [Milwaukee] ordinance are marked by
`flexibility and reasonable breadth, rather than meticulous
specificity.'" Grayned supra, 408 U.S. at 110, 92 S.Ct. at
2299, citing Esteban v. Central Missouri State College,
415 F.2d 1077, 1088 (8th Cir. 1969). The word "weeds" as used
therein, moreover, is sufficiently well-rooted in the English
language that "`citizens who desire to obey [the ordinance]
will have no difficulty in understanding it. . . .'" See
Colten, supra, 407 U.S. at 110, 92 S.Ct. at 1957, citing Colten
v. Commonwealth 467 S.W.2d 374, 378 (Ky.App. 1971). Therefore,
I conclude that Ms. Lundquist has failed to demonstrate a
reasonable likelihood that § 80-17 is impermissibly vague in
all of its applications." Hoffman Estates, supra, 455 U.S. at
497, 102 S.Ct. at 1192.
Ms. Lundquist's allegations concerning the threats made by
the defendant's agents to sanction her failure to comply with
§ 80-17(1) in a manner unauthorized by § 80-17(5) are
uncontroverted in the record. These allegations, at paragraph 9
of the plaintiff's complaint and paragraph 8 of her affidavit,
indicate that agents of the City have threatened to order a
private contractor to come onto her property and cut her weeds,
at her ...