ordinance the trial court or the district court conducted an analysis in found that the point is complete was invalid pursuant to a twelve b six motion however we believe the court committed to error in that finding for numerous reasons the first reason is it's clear that the supreme court has interpreted the excessive fines clause to apply to civil fine feel the fourteenth amendment due process clause that would be done in towers versus city of chicago and the united states supreme court interpreted in cooper industries incorporated versus leatherman tool group where the court specifically said the due process clause of the fourteenth amendment to the federal constitution imposes substantive limits on that discretion that clause makes the eighth amendment scroll visions against excessive fines and cruel and unusual punishments a portable to the states and a due process clause of its own force prohibits the states from imposing grossly excessive punishments on tortfeasor so with that it's been it's been said that the excessive fines analysis should proceed in two steps the first step is that sermon whether it's a punitive sanction whether it's payment in cash or in kind as a punishment for some offense and the second step that needs to be determine is whether the particular sanction in question is so large as to be somebody then commits a violation and is fined for dollars and ninety five cents as the constitution been violated no your honor but if the minimum fine why don't we need and some concrete violation and some concrete sanction will in some situations the minimum guideline for example if the minimum sentence was death for speeding surely we wouldn't need the sense for that to challenge a challenge and on its face why wouldn't you well because it's clear that the crime of speeding is knots is not relative or proportional to the if to the actual on joe you think that if the if there is a mandatory punishment of death for killing a police officer somebody who hasn't killed a police officer could sue and say that violates the eighth amendment i was there and yes there is no standing at that point to challenge but standing is determined on whether there is what you would say a threat of enforcement or actual enforcement and here they've been fined one hundred dollars there was ten different cases where they and they continue to get fined here and what defense was made in that suit that brings up the question why we don't ever race judicata defense here there was no defense made all right so you could have made an excessive fine defense to the actual prosecution and didn't well the in the next question my question is why isn't that pretty close to that is not precludes it because it needs to be a finding on the merits furthermore there are a law in illinois and in federal courts is that any argument you could have made which you do so i have not to make you can't separate out and bring in a separate mos i believe it was at the fault of a twelve hundred dollar judgement and the facts are not going to make any difference the fact that you choose not to defend your suit and a judgment is entered doesn't make any difference the other issue is the administrative law courts are not capable and are bound by illinois state laws not being able to determine  questions of constitutionality so presented don't you think they don't take an oath to sustain the constitution of the united states know that's the only supreme court rules because they're not elected officials the illinois supreme court has held that they don't have to the  clause says that the federal constitution trumps state law for every state official correct but you know you think they don't always just defining the supremacy clause of the federal constitution gee i believe so well that was the problem because you can't have piecemeal litigation when you walk into an administrative law court room you should have all your constitutional you should have all your constitutional rights or be able to assert those defenses however here in the administrative law courts you cannot do that and the judges will not allow you to nor can you develop a factual record there and what better an interesting constitutional challenge to that but of course by forfeiting that's going to so but  excessiveness review it misapplied the inquiry or otherwise conducted knowing for now what are you complaining about is that this twelve hundred dollar fine or the six to twelve hundred dollar fine the fact that there's no standard what's the problem with th e problem with the six to twelve hundred dollar fine is that it's not proportionate to the seriousness of the offense it's soley a revenue generating mechanize i don't understand that i'm sorry offense is the  large enough to have a deterrent factor i'd say you don't want to have a ten dollar fine or five dollar fine so how does one decide what is excessive while there's numerous questions and that was the issue here the court to chose to use factors that were used in criminal interim forfeitures where there were criminal activities conducted and other illegal activities releasing and there on lawful activities which are not criminal you know like  like a parking offense and there's a and there's a fine bright what was why is this fine excessive disproportionate well that's the question and that's the actual issue in this case because the court didn't have a sufficiently developed factual record to be able to determine whether it's excessive would make it excessive i moved a hazard after god's full of weeds which  factors would be to look at our what do you think would be a proper final one that's related to the question no no a number what do you think is or would be a reasonable maximum fine for say one hundred fifty dollars anywhere from one hundred to two hundred dollars and the reason being is because the illinois state noxious weeds act says for your first offense it's a hundred and for every offense there after i believe it's one hundred  two hundred the federal constitution doesn't follow the illinois noxious weed statute right that it sounds now like you're making in our state more argument that the city has exceeded its powers under illinois law but i can't imagine an argument saying the right you're making a constitutional argument here where is the constitutional limited use it is it said by state statute is it no place else no it's in cooper industries incorporated versus leatherman tool group which is the united states supreme court case there they used in several cases and there used the sanctions and other cases for comparable misconduct the growing of not just weeds is also the growing of weeds so it's a sanction comparable to other misconduct and you have to look at other factors such as the relationship between the penalty and the harm to the victim and the reprehensible of the of the defense conduct their culpability and the defendant's ability to say i want to bring any and he non criminal state or local sanction within within within the realm of constitutional review no only those that are punit ticket for leaving my car and in the alley now do i have some stick which i paid course and i have brought a constitutional case saying no i just left the car in the alley didn't block anything you know that it you could bring the case and the analysis would be conducted on it and most likely the analysis would say no you completely flood the federal courts right every time someone got a parking ticket or go running into clark but that there's a constitutional right it would open the floodgates to challenge every single thing but the problem is the floodgates have to be opened some way for parties to challenge it here because  but excessive i mean excessive you still haven't given us a case that defines except excessive in the context of this heath care it seems to me that it has to be grossly disproportionate it has to it's pretty close to cruel unusual punishment like if the fine was like a minimum six thousand dollars and a maximum of ten thousand dollars we might be getting close to excessive punishment but that's not what we have here right well that's not what we have here because the improper factual in cooper's industry case which said that due process requires these at least these three minimal factors to look at the reprehensible would differ on its conduct their culpability the police relationship between the penalty and the harm to the victim and the sanctions and other cases and  dressing your point with a six to twelve thousand dollar fine while six to twelve thousand dollars fine may not be excessive for warren buffett or bill gates it could be for a woman who has five kids and is a single mother and can't afford to pay the bills then she's stuck in perpetual servitude and so that's the real question maybe six hundred is something for one person but it could be twelve hundred or six hundred could be affecting the widely hood and when you look at the hill realize that the framers of the constitution word here and some black stone blackstone said there's an essential element of justice that everybody be treated equally without regard to wealth correct so your argument is that what blackstone and the founders  requires discrimination against jewish merchants it's not something you want to be so i understand i agree with that your honor but what i'm saying is in the magna carta they looked not only at this era players weren't following magna carta they were following blackstone and maybe coke's institute carta there was an enlightenment or spiritual revolution of restraining government and here basically we're going to summon up the government good issue tickets whenever they want arbitrarily discriminatory  amendment expression of free speech and it is in certain cases i heard it can be inserted came out how can that be because for example cathy cummings made a garden and won an award under the daily so have you presented evidence that these stickley not know when that's the whole problem there wasn't a proper factual analysis conducted in the matter didn't look at the location we were only in a notice pleading state and we satisfied that as a matter of law it creates read lots that are that are beautiful no that's not what we're seeing what we're saying is that gardening is a constitutionally protected form of art and if it's a facial challenge you need to show that it affects that if it's a facial challenge you need to show that it cannot be valid in any conceivable application and one would think that whether or not it can be valid is applied to artistic expression and it can be foul it was applied to we correct but again our position is there was no factual analysis conducted and so the court even in the record does not know what the location was where they were of the you know well i don't have them offhand and there was about ten different violations and again your honor one man's well garrity might be another man's lyric so if one person finds something attractive and that's the whole thing and so our position is there was no factual analysis there could have been two weeds that are twenty interest or twenty two inches tall which when you add up would be twelve inches above the thing on a two thousand square foot you know just making the point that you can't bring this kind of plane strapped you have to bring it as applied to a particular sets of circumstances right and we allege time particular sets of circumstances where they were brought and the court dismissed it as a whole and never entertain the specific factual analysis that's required and that's a whole problem we don't know there were supposed to be some picture analysis to look at what are the enforcement cost to the city what are the costs what are their harms committed what are the actual that's what a legislative committee considers its merit constitutional work ok well thank you very much  good morning and may it please the court this court should affirm the judgment of the of the district court i'd like to direct my comments to the excessive fines challenge the first of them a challenge in the vagueness challenge of the of the pleading requirements a one dollar fine could get passed a motion to dismiss just by the plaintiff are alleging that it's excessive and that's just not enough and because the appellant is not challenged the district court specific analysis of the weed origins here we believe that resolves this claim in that issue in its entirety if this court has concerns we also address that the supreme court has as a recognized them acknowledge has not yet incorporated the eighth amendment the excessive defines clause of the met against the states and because as this court discussed in an hour a decision that of course led to mcdonald that's just an issue for the supreme court given its course the last time we said  is essentially the the analysis in an r a turning to the first amendment challenge to the to the weed ordinance as this court notice noted noted a typical facial challenge requires demonstration that the ordinance cannot be valid in any possible circumstance and that's clearly not the case here at an abandoned lot would certainly not get in any conception involved were you should post any political came along and put a sign on the front of it and regard it is a major work over there i'm not going to have been done by jasper drugs as i said i'm definitely not an art expert so i'll just take the court's word for that  but the problem is that we're not quarreling with the the idea that there may be in some conceivable circumstance some weed that might be also art that might also be that's protected by the first amendment but that doesn't doesn't change the analysis here that doesn't show that every possible application of that weed ordinance isn't valid and it certainly doesn't show over breath that there are few outlier instances in which a weed might be considered art doesn't show it that a substantial amount of first amendment activity has is being regulated is being restricted relative to the weed ordinances legitimate scope in the run of the mill case as we as we explain our brief we don't it's covers the circumstances in which we are just left to run rampant that it's a completely a maintain watch it's a lawn that hasn't been managed for some time that's the average case that this ordinance addresses and i have just kind of a practical question do owners get a separate notice and hearing for each violation of the first notice a long we have existed here for months so you're charged with thirty violations how does it work practically i'm not entirely familiar with that i the what i've seen from my limited experience with the with the actual enforcement of weed ordinance which occurs through the city's department ministry of hearing in this case in particular it was just a single violation on this date weeds were seen above a certain height that is of the be typical of the b pictures of the of the lot of the lawn whatever the the property y a and entirely no utilitarian object and if it's a it's a famous artist then that counts as a work of w weed lots well good that couldn't that create problems i don't believe to create a problem for the city it may be one of those rare circumstances in which a week could be considered art like i said we're not going to quarrel with that i don't think that we can responsibly quarrel with the thought that i don't think i thought that a draft burning a draft card would have been their first name activity until the context in which burning a draft card became a symbol of the the anti war movement came along but at the same time there does it a supreme court held in o'brien that to be regulated as long as it was without regard to the express you got correct correct but my point was only any claim here that were being prosecuted only when there showed an artist oh and that's that's certainly not not the case is not the allegation here and this ordinance would certainly pass the o'brian test rights that just seems incredibly bizarre if that were how the city were going about such regulation so even if it even if no bryan challenge from brought up this this ordinance would certainly pass muster i want to ask you about dismissal counts for through seven were discount made no argument can we affirm the waiver finding on the basis of page limits even though the district court didn't say that was his reason i think i think so just discount that that was an issue raised in the in the district court that was race a district court and i believe that this court could affirm on that ground it was properly raised that it discounted was already over the page limit so nothing merit since the district court did not address that address that issue i have nots research that issue because the district court decided on narrow grounds that it was waived we just have not to address that issue i believe that the claims are without merit but i do not want to speak one way of out of risk of misrepresenting what those claims are and what the role of analysis would be it simply was not presented for purposes of this appeal discount may no argument that its claims would have would have moved forward absent the district court's waiver finding abandonment finding might be more accurate finally just on the the vagueness issues  regarding both the weed or in some the fencing ordinance i'll start with the fencing ordinance there's simply nothing vague about this ordinance that it's quite clearly says every any open lot in the city has to be surrounded by a fence by oh by a non that what a side yard would be so there is no conceivable vagueness problem there as for the we ordinance management take maintain our words they both have common understanding of english language a result person could just very briefly the the problem is is that the city is complaining about we dangerous but they take about four months to issue a notice and get someone into court so if you're fine in january or you're fine let's just say in august when they're summer you'll get the ticket in the winter so it's not really that dangerous they take no steps to bait it they take no other steps there's no statute of limitations which means they can do whatever they please for as long as they please and gather these tickets there's all conducted on hearsay there's no a ctual stepping on the property to measure it and then with regard to the the whether the judge chose to evolve the papers being over the page limits in that case if it's not clear whether the judge accepted nomic being over the page limits because he can waive the local rule requirements or whether he didn't and so that's ambiguous it seems that he entertained it but he doesn't say he says we have banned it by not responding but he doesn't list while and the other comings and this is the most important part had a guardian that was given an award under the daily administration and she but she's a native gardener under the rahm emanuel administration she was giving a ticket for the same garden so clearly the definition of weeds and managed to maintain in the way it goes is subject to arbitrary discriminatory forces and the most important part is that these fine seem to have gained the chief i'm sorry she did and she was convinced she was convicted she was she was assessed a six hundred dollars fine and the articles attach in the reply and the problem is is that i think what will list it i mean did she did she argue that in light of her prize this this  yes it's all in the reply brief and it says that this was art this was art this was my garden and she was still assess because the guy said i it's a weed to me and it was milk weeds and so what we have is a serious during the civil rights movements and things like that where the state courts were not enforcing the constitutional right so this is our vehicle whether it's corruption or discrimination or whatever reasons this is the vehicle that was given to the people to get to the federal court and there's nothing wrong with bringing it pursuant to an eighth amendment fourth amendment or whatever it second amendment or first amendment claims if it's open to want to manage should be open to all but the main thing the look at and what what is interesting is that right around the economic downturn the properties were being a banded and who would end up owning these properties the banks and so the banks weren't taking care of these properties and they were leaned up now when the bank gets rid of these properties the liens have to be paid and you can see that the original fines were one to three hundred as opposed to six to twelve hundred i mean we're talking six to twelve hundred dollars for not cutting your grass when you can drive and blow a red light and almost kill somebody and you'll get a maximum five hundred dollars fine i mean this is a little bit out of hand and ok well