me please the court my name is de roland and i am representing mr your honors the supreme court recently affirmed that it is an injuring part of the judicial duty to exercise reasoned judgment in identifying interests of the persons so fundamental that the state must accord them it respect the u s supreme court relying on this principle as identified many fundamental rights protected under the fourteenth amendment under principles of substantive due process that are not necessarily expressively articulated in the bill of rights these include the right to marry the right to marital privacy the right to have children the right to establish a home and to raise children in that home the right to make decisions concerning the upbringing of your children the right to bodily integrity the right to satisfy intellectual and emotional needs in the privacy of one home one's home these are all fundamental rights that the u supreme court has recognized are protected by principles of substantive due process the analysis that the u s supreme court has prescribed where a plaintiff brings forward a fundamental right for consideration is the court supposed to look and consider whether the asserted right is deeply rooted in the nation's history and tradition it's also supposed to evaluate whether the right is implicit in the concept of order liberty miss dufner has presented not one but two separate fundamental rights that are deeply enmeshed in our nation's legal history dating back even before the republic to  anglo american earth rather than the anglo legal tradition that preceded the establishment of the republic we've noted in our briefs statements by such legal giants as blackstone  cook and john locke and in discussing the idea of property which they treated as one of the fundamental rights of english when they talked about the right of property including the free use enjoyment and disposal of acquisitions even once we formed the republican court started assessing the idea of property the courts talked about the right of property including the owners exercise of exclusive dominion over the use enjoyment and disposal of property the us supreme court said the right to enjoy private property without undue influence or molestation was a right that was protected additionally the missouri supreme court expressly noted that the right of property includes ownership possession the right to use in enjoyment for lawful purposes you're your honour's this is the fundamental right that we are bringing before the court what's that the right to use and enjoy property for of lawful purposes now that's right i'm somewhat constrained for as long as owning ordinances have been constitutional so what specifically about the facts in this case raise this to a constitutional violation so your honor the ordinance that we're dealing with here is not a zoning ordinance zoning ordinances restrict uses of property to areas of a city or jurisdiction where they are thought to be proper because if they are allowed in other parts of the city then there will be some negative impact on the city's development we know this isn't a zoning not so in the careful description of the right that the us supreme court required us to include in our brief we specified that the right were asserting only applies if the property use itself is lawful her grass that would not be lawful that's actually the question your honor so the playoffs unless the law is unconstitutional but that's the same as it with the zoning ordinance allow me to try and explain please all of the flowers and plants that mr has in her yard are perfectly lawful not one of them is unlawful or banned or nuisance they're perfectly lawful what's on lawful is her choice to grow those flowers instead of to grow a government mandated plant that makes her sick that's what's on lawful is the refusal to be a marionette for the city other kinds of use there's nothing unlawful about the house it's just that the law says you can't build it in this location the difference is compulsion your honor as zoning ordinance restricts how a property may be  because the restricted use is thought to be somehow detrimental to the city it does not compel a property owner to do something with their property that they otherwise would not want to do it simply restricts them from doing something ordinances and maintenance you know the doors of fire code have to be complied with you're compelled to certain exits here compelled to have certain ramps for the a t f and so forth ok politician it would be compulsion however our search and we spell this out in our brief is that those are requirements that are directly unambiguous lee related to public health and unless it's a zoning organ or ordinance that is absolutely incorrect john well tell me why i'm wrong because what i hear you saying is that if you have a safety regulation it's got to be subjected to strict scrutiny oh so so you're saying so if someone wanted to bring a challenge we're not requiring the courts to do anything it's well well if somebody does it's kind of mellow right here in the strict scrutiny applies yes ok so so if we assume hypothetically that a citizen says i don't want fire extinguishers in my house or i don't want fire detectors smoke detectors in my house i'm going to challenge the city's authority to force me to have these the court would then apply strict scrutiny and they would say this is clearly related to the public health and safety it's directly related and there's no other way to ensure the safety of a home from fire which is clearly a pub the problem u nless this requirement is complied with that it would survive strict scrutiny absolutely and has any other court ever adopted such a view when it comes to other for fundamental rights yes this is a case of first impression your honor we're very open about that it's a case of first impression but the question for this court is whether the right that we've asserted is deeply embedded in the american tradition that absent got yes that but what i'm saying is this of every single land use organize d ordinance is going to fall into this right and so if we have a lot sat back if we have you know certain number of shrubs or trees that are required they're all going to be subjected to this strict scrutiny if there's a compulsion element yes if there's not a compulsion element the know if we thousand yours introduction have compulsion elements to it well if it's a restriction on what you can do with your property that's restrictive it is not compulsory what's compulsory you did say if you've got a requirement you have to plant a certain number of shrubs that would be compulsory and that would be subject to strict scrutiny the government would be required to say why do you actually need this  many cities if you want to build a parking lot you can't just pave the lot and paint a few stripes on it also requirements about lighting requirements about shrubbery  that you're that you're thinking of but i do think that if we're talking about compelling property owners to do something that they otherwise would choose not to do with their property i think that the solution here is from what i understand of your hypothetical the city would not be saying we're going to require you to create a parking lot and to put up all these lights and if you're going to have a parking lot it's going to have these features right but you have the choice do you want to build a parking lot or not ok so if you can choose not to build the parking lot then i would say this this right that we're talking about does not come into play what's the writing king articulated in the fundamental right the right to use property how did you phrase and the right to use your own property for a lawful harmless use of your own choosing or i would not apply to the parking lot example because i'm assuming under the ordinance that we're talking about you would be prohibited from building a parking lot unless you comply with the additional regulations miss dufner does not have the choice not to comply she's required just by virtue of owning residential property in st peters she has an obligation to devote half of her lawn to a plant that makes her sick she cannot choose not to comply unless she's willing to suffer the penalties and as of today the maximum penalty she for this particular requirement of law and they offered a variance she chose not to accept it her choice not to accept it means the same penalties apply she gets no weenie and c on the penalties because  well if you put the grass exactly where we tell you to will reduce the percentage of your lawn that you have to devote to this plant makes you sick but that's not the facts that we have she's out of compliance she's been out of compliance for four years and as a result she's facing fair to say that a claim by definition does not address the merits of the case it was a question of the sufficiency of the pleading what you mean by definition and a failure state a claim is typically it pleading that prevents the court from considering the substance of an argument it cannot it can mean that what you pleaded does not make out a violation of the statute and therefore you lose on the merits or doesn't make out  violation of the constitution and therefore your claim has no merit respectfully your honor i don't think that's the correct standard i believe that missouri courts have said that figure to say the claim does not permit the court ruling on it to address the substance of the case the merits of the case it's merely how do they decide whether maybe it's different in missouri than in federal court but how does a missouri court decided whether a plaintiff has stated a claim does it not compare the allegations to the elements of the cause of action and decide whether it whether it meets them the way the court of appeals decided that particular issue is they said that looking to an eight case that i actually don't think was applicable they said you have to plead that there was i'm sorry i'm drawing a blank on the precise language basically that there was wildly inappropriate i can't remember the specific language but but essentially you had to make a pleading that it was totally irrational i think that's the phrase and because our our pleading did not include that rizal e g they said this miss without present prejudice we still have the option to amend the pleading to include an allegation that the ordinance was totally irrational and we did that we came back in the petition rather than the complaint that we filed in this court or in the eastern district included those allegations and a few more to bolster the case but because the missouri court of appeals never addressed the substance of her constitutional claims  there had never been a ruling on the merits and we spell that out in our reply brief in the district court directly analyzed this on a misery law i hope i still have time to preserve facts that bear on their injury into the petition and assuming all those facts are there then if a court says you haven't got a claim because you don't meet the elements of this particular injury that's dismissal for fair to say to climb based on the absence of an action or recognize client are raising a cut argument and is very simple on the due process claim it is not about the plaintiff's actions after  injury and they did when it goes up to the court of appeals it goes up as a final judgment that's only what that's what courts of appeals review only final judgments and the court of appeals they don't court of appeals says look we're entitled to you know it's a motion to dismiss we look at everything that can be affirmed on some other grounds well we're going to look at that and that's what they did that they affirmed on the grounds that plaintiff had failed to as alleged facts supporting the due process client there any other questions on that point so then as to the subset of due process claim we're talking about a land use regulation that hasn't since  courts have looked at land use regulations or use regulations with and suburbia and cities they have always they have never identified a fundamental property rights a fundamental  property or liberty interest and they have always applied a rational basis standard the district court got all of that exactly right including its brief review of the history in you know private property within a city is subject to reasonable use regulations all of the blackstone commentary in that legal scholars in the supreme court have been consistent on that the first case or one of the after the fourteenth amendment was adopted they said use restrictions are perfectly valid and do not impact any fundamental liberty or property interests of council even looking at this on a rational basis that this kind of push the limits of rational government regulation in having such a stringent requirement for loans that someone who can create a beautiful artistic long without using something that is physically offensive to them and physically potentially harmful to them why is that not something that rational government would say we don't have to ha exactly this way i have three points to make in response to the first we have a framework i mean if you talk to folks and they say hey you know there's a requirement that you have a amount of your long in grass and that seems silly or something right will we have a framework that the supreme court has set down and this circuit has adopted to analyze whether it's quote unquote rational or sillier or whatever and the district court did that work so you identify a legitimate there it must be a legitimate state interest that's one element and then you must figure out whether or not the use regulation bears a relationship to that interest and remember the burden is upon the plaintiffs in that scenario to say doesn't it sounds like it wouldn't be that big of a deal to do school and say for someone with a health issue zero percent green right but they're not challenging the barrier decision about can we make an exception to this person and they must prove a hardship not brought on by themselves so what did the board of varian say about why they would go to five percent but not see well interestingly the the  ordinance the fifty percent requirement was adopted in two thousand and ten and what the board said was well it back in two thousand and nine what was the state of your yard where was the grass and what had what it what it looked like and there was evidence by the city not by the doctors necessarily but by the city that ok back in two thousand and nine about five percent of the yard had turfgrass on it and it was located along aside so the board of adjustment st and making the exception available board of address but again plaintiffs are challenging that they're challenging the fifty percent requirement of the order so that's what we look to at least before this court and so the first question we'd ask is would salute legitimate state interest w landscape or streetscape long in suburbia and this is superb is promoted by this ordinance which requires a minimum use of your yard as turfgrass and it also allows flexibility in this was in the record before the looking at is whether or not it bears reasonable relationship to the legitimate state interests i'm not meaning to downplay her allergic reaction but we all recognized i think at bottom on land use regulations if you want to live in the united states tree city which is the city of st peters it is the tree city of the united states for several years if you want to live in that community you understand that you're going to be subject to certain types of regulations if you want to live in a different community you're going to you understand are going to be subject to different types of regulations we all accept our subservience to the land use regulations that are that are properly adopted and promote a purpose when we purchase our homes and when we do work in our homes and make beds and so on and so forth so i'm not saying that she doesn't have the we don't we i don't mean to downplay her injury but i mean that it's not relevant to the point of the  neighborhood who spoke out in opposition to any exception so sometimes a city is faced with a politics you know that that are that are different folks who are not in favor of others and usually wanted uniformity  we two considerations i think is this court has put it one is what is the legislature said in this case the missouri legislature says the range of fines is ten dollars to fifty a day ten days in prison writers and we give some sage all deference to the legislative body because they they are the ones that are looking at violations and how they should be punished the city has the city's fine and penalty in this case is exactly within that ra and then we compare the gravity of the offense to the potential penalty imposed and in this case the we're looking for gross proportionality is it is rosalee out of whack with proportion and in this case we've got an ordinance land use regulation which is important to the city with respect to its streetscapes and to its communities and it's an aesthetic concern and the fine is minimal will give you a minute in rebuttal to be if you will give you your response i have a few points your honour's the binding precedent if we're not going to find a fundamental right is necked versus city of cambridge hundred eight us supreme court case striking down the zoning ordinance because it was not substantially related to the accomplishment of a legitimate government interest that's binding on this court the proportionality assessment was not applied in the district court this does not advance an interest in a statics because mr could have complied with this by planning the required grass in her back yard where no one would see it every resident the city could plant the required grass in the backyard and it would not accomplish the government's decision to course