                                                 Dec 22 2014, 9:51 am

FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEY FOR APPELLEE:

JAMES ALEXANDER TANFORD                      PATRICIA M. MULVIHILL
Bloomington, Indiana                         City of Bloomington
                                             Bloomington, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

ALEXANDER GUL,                               )
                                             )
     Appellant-Plaintiff,                    )
                                             )
            vs.                              )       No. 53A04-1408-MI-378
                                             )
CITY OF BLOOMINGTON,                         )
                                             )
     Appellee-Defendant.                     )


                   APPEAL FROM THE MONROE CIRCUIT COURT
                        The Honorable Valeri Haughton, Judge
                          Cause No. 53C08-1308-MI-1428



                                 December 22, 2014

                            OPINION – FOR PUBLICATION

BAKER, Judge
                                             “Her lawn
                                        Looks like a meadow,
                                     And if she mows the place
                                    She leaves the clover standing
                                    And the Queen Anne’s Lace!”1

    “The grass may be greener on the other side of the fence but you still have to mow it.”2


          Alexander Gul believes that modern day lawn maintenance practices are harmful

to the environment. As a result, he refuses to mow his lawn to comply with an ordinance

requiring that the height of grass in one’s yard may not exceed eight inches. He appeals

the trial court’s order granting summary judgment in favor of the City of Bloomington

(Bloomington) on Gul’s complaint against Bloomington appealing an administrative

conclusion that Gul had violated the grass height ordinance.

          Gul argues that the ordinance at issue (1) violates his freedom of conscience under

the Indiana Constitution; (2) violates his freedom of expression under the United States

and Indiana Constitutions; (3) is facially invalid because it conflicts with two Indiana

Code provisions; and (4) is void for vagueness under the federal Due Process clause.

After cutting through Gul’s arguments, we affirm.




1
    Edna St. Vincent Millay, “Portrait by a Neighbor.”
2
    Anonymous Proverb.
                                                         2
                                                FACTS3

        Gul owns and occupies residential property in Bloomington.                         On multiple

occasions throughout the years, Bloomington has cited Gul for violations of Bloomington

Municipal Code section 6.06.050 (the Ordinance), which prohibits a landowner from

allowing the property to become overgrown with grass that is over eight inches tall.

        Gul allows his yard to grow naturally and does not apply chemicals, mow, water,

or fertilize it. He explains that his decision to maintain a natural yard is a statement of his

sincerely held environmental belief that the overuse of chemicals, water, and

lawnmowers to maintain a traditional lawn is harmful to the environment.

        Bloomington officials disagree and view Gul’s yard as merely overgrown. Over

the course of twelve years, Gul has been cited for violations of the Ordinance thirty-eight

times. He has been assessed fines totaling $1720 and abatement costs of $1100.

        On July 11, 2013, the Bloomington Department of Housing and Neighborhood

Development (HAND) issued Gul a citation for having tall grass and assessed a fine of

$50. Gul appealed the citation to the Bloomington Board of Public Works, and the Board

affirmed the citation and fine on July 30, 2013.

        On August 7, 2013, Gul appealed the Board’s decision to the trial court. On

November 20, 2013, the parties submitted to the trial court joint stipulations of facts, law,


3
  The Appellant has not provided this Court with a full and complete Appendix. All Exhibits provided to
the trial court were not included, and only select and sporadic portions of a transcript relied upon by the
trial court were included. We caution counsel for appellant to be mindful in the future to include all
“pleadings and other documents . . . that are necessary for resolution of the issues raised on appeal[.]”
Ind. Appellate Rule 50(A)(2)(f).
                                                    3
and exhibits.   Based on those documents, Gul filed a motion for judgment on the

stipulated record on December 12, 2013, and Bloomington filed a motion for summary

judgment on January 16, 2014.        The trial court denied Gul’s motion and granted

Bloomington’s motion on January 23, 2014, finding that the Ordinance does not violate

the United States or Indiana Constitutions and that it is not facially invalid. Gul now

appeals.

                             DISCUSSION AND DECISION

       Summary judgment is appropriate where there is no genuine issue as to any

material fact and the movant is entitled to judgment as a matter of law. Pedraza v. City of

E. Chicago, 746 N.E.2d 94, 99 (Ind. Ct. App. 2001). On appeal, the trial court’s order

granting or denying a summary judgment motion is cloaked with the presumption of

validity. Id. The appellant has the burden of persuading this Court that the decision to

grant summary judgment was erroneous. Id. On appellate review, all properly asserted

facts and reasonable inferences that may be drawn therefrom should be resolved against

the movant. Id. We will sustain the trial court’s decision if it is sustainable by any theory

or basis found in the record. Id.

       In this case, Gul argues that the Ordinance is unconstitutional. We apply a de

novo standard of review to determine the constitutionality of a statute or ordinance. Paul

Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1272 (Ind. 2014).




                                             4
                                 I. Freedom of Conscience

       Article 1, Section 3 of the Indiana Constitution provides as follows: “[n]o law

shall, in any case whatever, control the free exercise and enjoyment of religious opinions,

or interfere with the rights of conscience.”           Gul argues that the Ordinance is

unconstitutional because it interferes with his rights of conscience as enshrined in this

Constitutional provision.

       There is a dearth of caselaw interpreting or applying the conscience clause of

Article 1, Section 3, in a non-religious context. Bloomington argues that the conscience

clause is merely an extension of the Constitution’s protection of religious belief. In other

words, “[t]he right of conscience enshrined in § 3 does not give absolute protection to all

beliefs, rather it gives broader protection to the religious beliefs protected in Art. I §§ 2-8

of the Indiana Constitution.” Appellee’s Br. p. 5.

       The Bill of Rights in the Indiana Constitution is contained in Article 1, and

Sections 2 through 8 focus on religion-related freedoms. It has been the case in Indiana

since the 19th century that “the law allows everyone to believe as he pleases” when it

comes to religion—including the right to hold no religious beliefs whatsoever:

          These provisions of the fundamental law not only take away all
          power of the state to interfere with religious belief, but they leave the
          citizen perfectly free to repudiate the faith and belief he once
          professed and adhered to, and adopt a new creed and faith, differing
          from that of the church to which he belonged; or he may repudiate
          his old belief and faith without adopting any new one; and these
          changes he may adopt as often as to him may seem proper, and the
          law will protect him in it.


                                              5
Smith v. Pedigo, 145 Ind. 361, 33 N.E. 777, 779 (Ind. 1893).

       The conscience clause must be interpreted in this context. Judge Rovner of the

Seventh Circuit Court of Appeals has explained the history of the notion of freedom of

conscience as follows:

          . . . “freedom of religion” and “freedom of conscience” were terms
          that were used interchangeably in discussions of religious liberty [at
          the time of the drafting, debate, and adoption of the First
          Amendment’s free exercise clause]. . . . [T]he exercise of religious
          conscience was understood to be a matter between the individual and
          his God—not, perhaps, in the more modern sense of believing
          whatever one wants, but rather as a reflection that the individual
          owed his or her obedience on moral matters directly to God. The
          understanding that the exercise of religions was a matter of the
          individual’s relationship with and obedience to God was also
          consistent with the multiplicity of minority religions practiced in the
          United States by the second half of the 18th century, and a consensus
          that the country should move away from a Colonial history of
          officially established religions (and officially disfavored religions)
          toward religious pluralism.

Korte v. Sebelius, 735 F.3d 654, 700-01 (7th Cir. 2013) (Rovner, J., dissenting) (internal

citations omitted). While this analysis applies to the First Amendment to the United

States Constitution rather than to the Indiana Constitution, its exploration of the meaning

of “conscience” in centuries past is certainly relevant, as is the greater context of the

surrounding Sections that are all devoted to religious liberties.

       At most, the rights of conscience referred to in Article 1, Section 3 extend only to

the right to hold whatever beliefs one desires. In other words, the government may not

punish citizens solely for the opinions that we hold. We cannot conclude, however, that

the drafters of the Indiana Constitution intended to enshrine a right to believe whatever

                                              6
one desires and also to exercise those beliefs with no regard for the law. For example,

one is free to hold a sincere belief that cigarette smokers should be able to smoke

anywhere they would like to do so. But one is not free to smoke in, for example, buses,

restaurants, libraries, or hospitals, as doing so would violate Bloomington Municipal

Code 6.12.030. One is free to believe that rabies vaccinations are harmful to dogs and

cats. But one is not free to refrain from vaccinating one’s pets, as that would violate

Bloomington Municipal Code 7.44.010.

       To rule as Gul asks us to would be tantamount to declaring nearly every statute

and ordinance on the books in Indiana unconstitutional, as it is possible to find someone,

somewhere, with a sincere belief that contravenes every law. We cannot, and do not,

believe that Article 1, Section 3 countenances that result. Furthermore, we agree with the

trial court that

           [i]f rights of conscience were meant to be given the right to practice,
           they would have been included in Section 2. Section 3 . . . protects
           only the right to opinion. The ‘free exercise and enjoyment’
           protected in Section 3 protects against unequal treatment under law
           for holding an opinion for reasons of conscience, but it does not
           grant a right to the practice of those opinions.

Appellant’s App. p. 14.

       In sum, we find that Article 1, Section 3 was intended to apply to religious, rather

than non-religious, matters of conscience. But even if it includes non-religious matters of

conscience, it protects only the right to hold one’s own opinions, and does not protect the

right to act on one’s own opinions in contravention of the law. Here, Gul’s belief


                                             7
regarding the environmental harm of modern day lawn care is undisputedly sincerely

held. But it is not a religious belief. And even though he has the right to hold this belief,

Section 3 does not protect him from legal consequences if he violates local ordinances in

the name of this belief. We find that the Ordinance does not violate Article 1, Section 3

of the Indiana Constitution.

                                 II. Freedom of Expression

                      A. First Amendment to the U.S. Constitution

       Next, Gul argues that the Ordinance violates his freedom of expression under the

First Amendment to the United States Constitution. For the First Amendment to be

implicated, we must first determine whether Gul’s actions herein constitute protected

expressive conduct. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,

547 U.S. 47, 66 (2006).        To determine whether the First Amendment applies to a

particular situation, we must determine first, whether there is an intent to convey a

particularized message, and second, whether there is a great likelihood that the message

will be understood by those who view it. Texas v. Johnson, 491 U.S. 397, 404 (1989).

The United States Supreme Court has held that “[t]he fact that . . . explanatory speech is

necessary is strong evidence that the conduct at issue . . . is not so inherently expressive

that it warrants protection under [the First Amendment].” Rumsfeld, 547 U.S. at 66

(applying United States v. O’Brien, 391 U.S. 367 (1968)).

       In this case, it is undisputed that by refraining from mowing his lawn, Gul

intended to convey a particularized message. Therefore, we move to the second prong of

                                             8
the test, and must determine whether there is a great likelihood that Gul’s message was

understood by those who viewed it. Gul stipulated that no one was aware of his reasons

for refraining from mowing until he explained it:

       13.      The City of Bloomington was not aware of Alexander Gul’s
                reasons for not keeping his grass at a height below eight inches
                until he verbalized those reasons.

       14.      Individuals owning property in the same neighborhood as
                Alexander Gul’s property . . . were not aware of Alexander Gul’s
                reasons for not keeping his grass at a height below eight inches
                until he verbalized those reasons.

Appellant’s App. p. 27.       It is undisputed, therefore, that Gul’s message was not

understood by those who viewed it.

       There is nothing inherent to an overgrown yard that would lead an average person

of ordinary sensibilities to conclude that any message at all was being conveyed, much

less a specific environmental message. Until Gul explained the reasons for his actions,

the community was mystified. Under these circumstances, we do not find that Gul’s

decision to refrain from mowing his yard constitutes expression that is protected by the

First Amendment to the United States Constitution.

                                  B. Indiana Constitution

       Gul also contends that the Ordinance violates Article 1, Section 9 of the Indiana

Constitution, which provides as follows: “No law shall be passed, restraining the free

interchange of thought and opinion, or restricting the right to speak, write, or print, freely,

on any subject whatever:       but for the abuse of that right, every person shall be

responsible.”
                                              9
        When reviewing whether the State has violated Article 1, Section 9, we employ a

two-step analysis. Blackman v. State, 868 N.E.2d 579, 584-85 (Ind. Ct. App. 2007).

First, we must determine whether state action has restricted a claimant’s expressive

activity. Id. at 585. Second, if it has, we must decide whether the restricted activity

constituted an “abuse” of the right to speak. Id. We will assume for argument’s sake that

Gul’s actions herein constitute expressive activity that was restricted by state action. See

Ogden v. Robertson, 962 N.e.2d 134, 141 (Ind. Ct. App. 2012) (holding that “the Indiana

Constitution more jealously protects freedom of speech guarantees than does the United

States Constitution”), trans. denied.

        Turning to the second prong, Gul must prove that “the State could not reasonably

conclude that the restricted expression was an ‘abuse.’” Whittington v. State, 669 N.E.2d

1363, 1369 (Ind. 1996). Generally, when we review the State’s determination that a

claimant’s expression was an abuse of the right of free speech, we need only find that the

determination was rational. Blackman, 868 N.E.2d at 585. If, however, the expressive

activity was political in nature,4 the State must demonstrate that it did not materially

burden the claimant’s opportunity to engage in political expression. Id. This Court has

explained that “[e]xpressive activity is political if its aim is to comment on government


4
  Gul contends that the heightened scrutiny applies to expression that is non-political in nature such as
activity that addresses a matter of public concern, comments on or criticizes official conduct or policies,
or proposing new political ideas. He cites to Ogden v. Robertson, 962 N.E.2d 134 (Ind. Ct. App. 2012),
in support of this proposition. To the contrary, however, the Ogden Court focused solely on whether the
speech at issue was political, focusing primarily on whether “the purpose of his expression was . . .
political.” Id. at 142 (emphasis original). Finding that because his purpose was not political, the Court
concluded that there was no violation of Article 1, Section 9. Nothing in Ogden leads us to conclude that
the application of heightened scrutiny applies beyond political speech.
                                                    10
action, including criticism of an official acting under color of law.” Id. Gul bears the

burden of proving that his expression was political, and we find that he has not met that

burden.     There is no evidence in the record that Gul’s intent was to comment on

government action; instead, the evidence establishes that his intent was to comment on

the actions of the citizens in his community and the way in which they maintain their

lawns.

         We must determine, therefore, whether Bloomington’s determination that Gul had

abused his right to expression was rational. There is evidence in the record that Gul’s

failure to maintain his lawn in accordance with the Ordinance was harmful to the public

welfare. Specifically, a realtor stated that the values of properties in Gul’s neighborhood

have dropped as a result of the condition of his yard and that it has been difficult to sell

properties in that area for that reason. Appellant’s App. p. 35-36; see also Field v. Area

Plan Comm’n of Grant Cnty., 421 N.E.2d 1132, 1139 n.6 (Ind. Ct. App. 1981) (holding

that a person’s deleterious effect on his neighbors’ abilities to enjoy their own properties

and on the value and marketability of his neighbors’ properties is considered harmful).

Moreover, it was rational for Bloomington to conclude that Gul’s actions “provide[d] an

attractive nuisance . . . , lure[d] uninvited scavengers, provide[d] cover and breeding

grounds for rodents and insects, and generally constitute[d] a threat to the health, safety

and welfare of neighborhood residents.” Id. Under these circumstances, we find that

Bloomington’s determination that Gul had abused his right to expression was rational,

and we do not find a violation of Article 1, Section 9 of the Indiana Constitution.

                                            11
                             III. Facial Validity of the Ordinance

                               A. Interplay with Indiana Code

       Gul next contends that the Ordinance and other, related ordinances are void

because they conflict with two provisions in the Indiana Code. The Ordinance provides

as follows:

          It is unlawful for the owner of any lot or tract of ground within the
          city to allow it to become overgrown with weeds, grass, or noxious
          plants beyond the height of eight inches or to such extent that the
          growth is detrimental to the public health and constitutes a nuisance.

Bloomington Mun. Code § 6.06.050. Gul directs our attention to Indiana Code section

36-7-10.1-3, which provides, in pertinent part, as follows:

          (a) The legislative body of a municipality or county may by
              ordinance require the owners of real property located within the
              municipality or the unincorporated area of the county to cut and
              remove weeds and other rank vegetation growing on the
              property. . . .

          (b) An ordinance adopted under subsection (a) must specify the
              following:

                                             ***

              (2)    The definitions of weeds and rank vegetation.

Gul argues that because the Ordinance does not define “rank vegetation,” it runs afoul of

the Indiana Code and must be found void on its face. We cannot agree.

       As noted by the trial court, the Ordinance does not use the term “rank vegetation.”

Consequently, it would be nonsensical to require Bloomington to provide a definition of

that term. Gul argues that


                                              12
          if tall grass is not a type of rank vegetation, then the city is not
          authorized to regulate it in the first place because section 36-7-10.1-
          3 only authorizes cities to regulate “weeds and other rank
          vegetation.” If tall grass is a type of rank vegetation then the city
          may regulate it but must define it. Either way the ordinance is
          invalid.

Appellant’s Br. p. 26 n.15. Gul is correct that the statutory provision set forth above

authorizes municipalities to regulate weeds and other rank vegetation. But the statute

does not limit municipalities from regulating other types of growth as well. Indiana Code

section 36-1-4-11 provides that as a general matter, “[a] unit may adopt, codify, and

enforce ordinances.” Bloomington’s decision to regulate grass in addition to weeds does

not conflict with Indiana Code section 36-7-10.1-3, it complements it, and it was within

its authority to adopt and codify ordinances. See Ind. Code § 36-8-2-4 (providing that a

municipal unit “may regulate conduct, or use or possession of property, that might

endanger the public health, safety, or welfare”).        Consequently, we find that the

Ordinance does not violate Indiana Code section 36-7-10.1-3.

       Next, Gul directs our attention to other ordinances in the Bloomington Municipal

Code that provide that enforcement of violations of the Ordinance takes place initially in

an administrative proceeding before the Bloomington Board of Public Works.

Bloomington Mun. Code §§ 6.06.070, 6.06.080.           Indiana Code section 36-1-6-9(c)

provides, in relevant part, that “[a]n ordinance may not be designated . . . for enforcement

through an administrative proceeding unless the ordinance restricts or prohibits actions

harmful to the land . . . .” Gul argues that because the act of growing tall grass is not


                                            13
harmful to the land, Bloomington may not designate violations of the Ordinance for

enforcement through an administrative proceeding.

       The only case interpreting Indiana Code section 36-1-6-9 is BBL, Inc. v. City of

Angola, 2014 WL 26093 (N.D. Ind. 2014). In BBL, the district court considered whether

an ordinance setting forth an administrative enforcement proceeding for the denial of

sexually oriented business licenses violated Indiana Code section 36-1-6-9. The court

acknowledged that the operation of such a business is not harmful to the land, but

ultimately found that the ordinance did not run afoul of Indiana Code section 36-1-6-9:

             if the party seeking the license doesn’t request a hearing, the
             Building Commissioner’s written notice of intent to deny, suspend,
             or revoke a license becomes a final decision on the thirtieth day after
             it is issued; that decision is subject to judicial review. The party
             challenging the Building Commissioner’s decision, therefore, isn’t
             compelled to take part in an administrative proceeding before
             seeking judicial review. The party can simply forgo the hearing and
             wait thirty days for the decision to become final. Consequently, the
             licensing and regulatory ordinance doesn’t violate Indiana Code §
             36–1–6–9.

Id. at *9.

       In the instant case, as in BBL, participation in the administrative proceeding is not

mandatory. As explained by the trial court:

             Under the framework for enforcement provided in BMC 6.06.070,
             after an NOV [Notice of Violation] is issued, the property owner has
             seven days to file a written appeal with the board of public works.
             After seven days, liability for the fine attaches. Since fines imposed
             under BMC 6.06.050 can be appealed to the Monroe County Circuit
             Court, all a property owner needs to do to bypass the administrative
             proceeding is wait seven days after receiving the NOV, at which


                                               14
          point liability for the fine attaches and the property owner may
          contest the fine in the Monroe County Circuit Court.

Appellant’s App. p. 10. In other words, the relevant ordinances do not mandate use of

the administrative proceeding. Consequently, there is no violation of Indiana Code

section 36-1-6-9.

                                     B. Due Process

       Finally, Gul argues that the Ordinance is void under the Due Process Clause

because it fails to define “grass” and, as a result, is unconstitutionally vague. A panel of

this Court has previously explained the way in which we review vagueness challenges to

municipal ordinances:

          When reviewing a constitutional challenge to a municipal ordinance,
          we treat the ordinance as if it stands on the same footing as an act of
          the legislature. Thus, a municipal ordinance is presumed to be
          constitutional, and we place the burden upon the party challenging
          the ordinance to show unconstitutionality.          An ordinance is
          unconstitutionally vague only if individuals of ordinary intelligence
          cannot adequately comprehend the ordinance so as to inform them of
          the prohibited conduct. An ordinance need not list with exactitude
          each item of prohibited conduct; rather, an ordinance need only
          inform an individual of the generally prohibited conduct.

Lutz v. City of Indianapolis, 820 N.E.2d 766, 768 (Ind. Ct. App. 2005) (internal citations

omitted) (emphasis added). When a word in an ordinance is undefined, it is given its

plain, common, and ordinary meaning. Cracker Barrel Old Country Store v. Town of

Plainfield, 848 N.E.2d 285, 290 (Ind. Ct. App. 2006).

       Gul points out that there are 10,000 species of grass, including ornamental grasses,

turf grasses, native grasses, and plants such as corn and sunflowers. Some of these

                                            15
grasses do not require mowing, whereas others do.        Gul contends that because the

Ordinance does not define “grass” to explain to citizens which types must be mowed, it is

unconstitutionally vague.

      We cannot agree. Bloomington’s reliance on the common and ordinary meaning

of the word “grass” does not render the Ordinance void for vagueness. We find that the

term “grass” has a sufficiently precise and commonly understood meaning for a person of

ordinary intelligence to reasonably understand it. The Ordinance specifies a definite and

specific height restriction, and we find that a person of ordinary intelligence would

understand that turf grass in their yard cannot be allowed to grow over eight inches high.

See Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (holding that an anti-noise

ordinance was “marked by flexibility” but that it was “clear” what the “ordinance as a

whole prohibits”). The “vast majority” of Bloomington’s population understands how to

maintain their lawns to avoid violating the Ordinance—indeed, it appears to be only Mr.

Gul who claims the Ordinance is too vague to understand. Appellant’s App. p. 11. We

find that the Ordinance is not void for vagueness under the Due Process Clause.

      The judgment of the trial court is affirmed.

MAY, J., and BARNES, J., concur.




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