nature on trial:  fighting for freedom of choice in landscaping

This site documents my experience with natural landscaping and the mowing ordinance in my village. My name is Jason Rohrer, and my wife Lauren Serafin and I own a house in the village of Potsdam, New York.

We bought our house in the summer of 2004 and have been cultivating a natural meadow landscape around it ever since. Our current local ordiance prohibits grass taller than 10 inches. After two run-ins with Village authorities over our landscape, we decided to fight the charges in court. I was arraigned in August of 2005 and plead "not guilty." My trial was on December 15, 2005. I represented myself.

On June 12, 2006, the Court entered a decision of "not guilty" for all charges.

All of the documents posted on this site have been placed in the public domain, so feel free to copy and reuse whatever information you need. Hopefully, the information in these documents will help other natural landscapers who find themselves in similar situations.


Village's Appeal Dismissed
by jcr13Sunday, January 14, 2007 [10:16 am]

In November 2006, I filed a motion with the County Court asking that the Village's appeal be dismissed (on the grounds that their Notice of Appeal attempted to paint my acquittal as a dismissal, and on the grounds that an acquittal is not appealable).

In mid-December, I received notice from the County Court that the my motion had been granted and the appeal had been dismissed.

I will post more details about this when I have a chance.

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Village Appeals My Acquittal
by jcr13Friday, July 21, 2006 [11:04 am]

After I received the decision of "not guilty" from the court, I knew that the long process (nearly a year) of fighting a court battle was finally over. After all, the government cannot appeal an acquittal---such an appeal is forbidden by the double jeopardy clause of the Constition. Jeopardy attaches when the trial starts, and it ends when a verdict of acquittal is issued. An appeal, therefore, would start a second round of jeopardy.

Many people that I talked to after the decision, including village officials, were suprised when I told them that an appeal was impossible. Of course, most people are not all that familar with constituional law or court precedents (nor was I before I got pulled into this ordeal).

You can imagine my shock when, on July 14, 2006, I received a large envelope in the mail from the Village Attorney. That envelope contained a notice of appeal to county court of the "dismissal" and an affidavit of errors.

Note that orders of dismissal (when a judge drops charges before a trial begins) are appealable by the government, but acquittals are not. I suspect that this "mistake" in wording in the notice of appeal was intentional on the part of the Village Attorney---he may be trying to make a unappealable ruling look like an appealable ruling. However, I will probably never know for sure.

On July 17, 2006, I appeared to speak at a meeting of the Village Board.

Before I spoke, I had a brief meeting with the Village Attorney in the hallway. I said that I was suprised about his appeal, given all the caselaw forbidding it on double jeopardy grounds. He said this was not double jeopardy and that the people appeal "dismissals" all the time. I corrected him, saying this was an acquittal, not a dismissal. He said that he thinks the judge was wrong and that it is common practice for county courts to review errors committed in justice courts. He said I could try arguing on double jeopardy grounds if I wanted, but that it was not double jeopardy. I asked for a precedent case on the matter, and he said he was not going to argue about it. I read a few Supreme Court quotes to him about acquittals, and he refused to comment.

I then spoke in front of the Board, explaining double jeopardy to them, and reading lots of Supreme Court quotes about acquittals. I finished by asking them to abide by their oath of office and uphold the Constitution. I asked them to drop their frivolous appeal. My request was covered on Page 2 of the July 18th edition of the Potsdam Massena Courier Observer. The Board seemed to ignore me.

On July 19, I filed a motion with the Village Court that it reject the notice of appeal as defective (since it refers to a "dismissal" which never was issued). After the fact (today), I talked to a lawyer who does not think this motion will fly---the Village Court operates in a relatively mechanical fashion after an appeal is filed. The Court will send its return and the record to the County Court even if the notice of appeal is defective.

So, I may end up arguing in the County Court after all. My initial defense will be relatively easy to argue: double jeopardy forbids this appeal. Every lawyer that I have talked to agrees that this appeal violates double jeopardy protections.

And here I thought that this round of my fight was over.

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Court Decision: Not Guilty
by jcr13Tuesday, June 13, 2006 [12:15 pm]

Yesterday we received a call from the Court clerk: our decision was ready.

My wife and I, with our child Mez in tow, plodded reluctantly to the courthouse with our hearts pounding. My wife was convinced that the verdict would be "guilty."

We were pleasantly shocked to find that the Court ruled in our favor. After all this time and all this uncertainty---I was at a loss for words and almost came to tears right there in the clerk's office.

The decision itself is available here.

To sum up the decision, the judge ruled that the the Village never intended the 10-inch mowing rule to apply to natural areas---indeed, the judge observed, there are many other natural areas in the Village that are not being mowed (such as along the trails in the Clarkson woods, or along the Racquette river banks). The judge stated that he must apply the ordinance equally to all natural areas, including those that are intentionally created on residential lots. He also noted that the wording in the ordinance was vague and, if interpreted literally, overbroad.

The decision was covered as the front page (above the fold) headline story in the Potsdam Massena Courier Observer today ("Rohrer Can Keep His Meadow"). The decision was also covered on the front page of the Watertown Daily Times along with a cover photo ("Grass Greener For Potsdam Man") today.

I just finished my interview with the TV reporter from the News 10 Now. The coverage resulted in a 2 minute video story which can be viewed online.

WWNY Channel 7 also ran a story. The video can be viewed online.

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Still still waiting
by jcr13Friday, May 26, 2006 [9:20 am]

Our meadow is filling in nicely, with beautiful tussocks of grass here and there, many now over two feet tall.

I planted sunflower seeds in a few places along our street frontages.

To my delight, we have several great mulleins that have sprouted up in the front yard. We had many in the back yard last year, but those did not come back.

The white clover that we planted is taking over in certain spots, forming dense green blankets.

But we are still waiting for a decision from the court. I talked to the Village Administrator today (not about our trial, but about next week's village-wide aerial BT spraying for forest caterpillars). At the end of the call, he brought up "my grass" and said they have been asking the court for a decision. It has now been more than five months since the trial and more than four months since the summations were filed. He said they need a decision soon, because they need to figure out what to do with my yard. If they do not get a decision soon, they will issue another ticket. I told him that would count as double jeopardy, and that you cannot be tried twice for the same crime. He said that would be nice if it was true---then he could only get one speeding ticket in his life. I responded that multiple acts of speeding count as separate crimes, but this is all one continuous act: my grass was taller than 10 inches last year, it still exceeds that limit, and I have never mowed it. They cannot issue me a new ticket for a crime while I am still on trial for that same crime.

Since the Village has been pestering the court for a decision, I decided to drop my "let sleeping dogs lie" philosophy. I called the court clerk to ask what was going on. She said that she has been reminding Tom (the judge) that a decision is overdue. He is taking a long time because he has been doing a lot of research on the matter. She has given him a deadline of next Wednesday (May 31, 2006). She will call me when I can pick up my copy of the decision.

My wife, Lauren, is convinced that they will decide against me at this level despite all of the caselaw, precedents, science, and logic in my favor. I better get ready to appeal.

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Still Waitng
by jcr13Sunday, April 16, 2006 [11:27 am]

Over four months have passed since my trial (December 15, 2005). I still have heard no word from the court about a decision.

Spring seems to be coming early this year (possibly due to our unusually warm winter), and our meadow is starting to grow again.

Perhaps the judge is waiting to deliver a decision when it actually counts (after all, you cannot mow a meadow that is covered in snow, so a February decision of "guilty" would have been strange). On the other hand, maybe the judge is taking the case seriously and reviewing all of the documents and case law with close attention. At the very least, I am certain that he is taking the case seriously.

I took a walk around our neighborhood yesterday and observed that three of the four nearby meadows (the cornerstones of my equal protection argument) have still not been mowed.

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Summation Filed
by jcr13Monday, December 19, 2005 [6:18 pm]

Today at around 1pm I filed my summation with the court. This 9-page document summarized and analyzed the trial. My understanding is that a summation is basically a closing argument in written form.

My summation ended with the following request:

The testimony, evidence, and case law show that the mowing ordinance is being enforced against our natural landscape in a manner that violates the free speech, equal protection, and due process clauses of the United States and New York constitutions.

I request that the Court return a verdict of "not guilty" on these grounds.

By filing this document, I have completed my last step in this trial. I now must simply wait for the judge's decision.

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Trial Story
by jcr13Monday, December 19, 2005 [5:22 pm]

My trial was on December 15, 2005. Now that a few days have passed, I feel compelled to document my memory of it before I forget some of the finer details.

First of all, it was an experience of a lifetime. The trial lasted over three hours (from 10:30am until after 1:30pm) and the arguments were somewhat subtle and complex.

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[Home] [Account]

Trial Documents:
--About Source Files
--Document Source Files
--Memorandum Of Law
--Defense Witness List
--Trial Notes
--Photograph Map
--Photograph Legend
--2004 Yard Sign
--Questions for Expert Witness
--Defense Summation
--Prosecution Summation
--Court Decision

External Links:
--Related Cases
--Wild Ones
--National Wildlife Federation
--Rappaport on Weedlaws
--EPA's Source Book for Public Officials
--Air Pollution Released from Cut Grass
--Honey, I'm not mowing this year
--NY Criminal Justice System Handbook
--Civil Appeal to County Court

Public Domain Dedication All content on this site is placed in the Public Domain.