Vague or subjective ordinance standards: In the court’s opinion they stink! Part 2

A recent Court of Appeals case reinforces that government regulations must be clear and specific. Previous cases provide principles helpful in reviewing an ordinance for vagueness.

Part one of this two-part Michigan State University Extension article reviews the specifics of the Michigan Court of Appeals case of People v. Gasper (Published Opinion No. 324150, March 8, 2016) in which the court found the City of Grand Rapids’ noise ordinance to be unconstitutionally vague. Local governments might use this case as a reason to review their various ordinances for standards that might be perceived as vague. In doing so, it will also be helpful to keep in mind that the Court of Appeals has provided a summary of the principles used when determining whether an ordinance is void for vagueness. This article reviews those principles.

First, all statutes and ordinances are given a strong presumption of constitutionality. Taylor Commons v Taylor, 249 Mich App 619, 625; 644 NW2d 773 (2002). Accordingly, “‘courts have a duty to construe a statute as constitutional unless unconstitutionality is clearly apparent.’” Wysocki v Felt, 248 Mich App 346, 355; 639 NW2d 572 (2001), quoting Mahaffey v Attorney General, 222 Mich App 325, 344; 564 NW2d 104 (1997). In Wysocki, supra at 356, the Court of Appeals wrote “‘the court will not go out of its way to test the operation of a law under every conceivable set of circumstances. The court can only determine the validity of an act in the light of the facts before it. Constitutional questions are not to be dealt with in the abstract.’” Id., quoting General Motors Corp v Attorney General, 294 Mich 558, 568; 293 NW 751 (1940). These same rules govern the review of the constitutionality of an ordinance. Plymouth Twp v Hancock, 236 Mich App 197, 199; 600 NW2d 380 (1999).

Second, it is the burden of the party challenging the validity of the ordinance to establish that the ordinance is clearly unconstitutional. Gora v Ferndale, 456 Mich 704, 711-712; 576 NW2d 141 (1998). In Dep’t of State v Michigan Education Ass’n—NEA, 251 Mich App 110, 116; 650 NW2d 120 (2002), the Court of Appeals set forth the three ways in which to challenge an ordinance on the basis that it is unconstitutionally vague. A statute may qualify as void for vagueness if:

  1. it is overbroad and impinges on First Amendment freedoms,
  2. it does not provide fair notice of the conduct it regulates, or
  3. it gives the trier of fact unstructured and unlimited discretion in determining whether the statute has been violated. [Id., quoting Proctor v White Lake Twp Police Dep’t, 248 Mich App 457, 467; 639 NW2d 332 (2001).]

Also, the Court of Appeals has pointed out that in determining “whether a statute is void for vagueness, a court should examine the entire text of the statute and give the words of the statute their ordinary meanings.” People v Piper, 223 Mich App 642, 645; 567 NW2d 483 (1997); see also In re Forfeiture of 791 North Main, 175 Mich App 107, 111; 437 NW2d 332 (1989). In line with this principle, when considering whether an ordinance is void for vagueness, courts do “not set aside common sense, nor is the [township board] required to define every concept in minute detail. Rather, the statutory language need only be reasonably precise.” Dep’t of State, supra at 120.

So, local government elected officials can feel comfort in knowing that our democratic system has a separation of powers between branches of government and provides great deference to the decisions legislative bodies make. However, our democratic system also limits the power of legislative bodies with protections in the U.S. and state constitutions to uphold the rights and liberties of individuals. Vague standards are unconstitutional.

Michigan State University Extension offers educational programs for local government officials on roles, responsibilities, and best practices in government functions and operations, including planning and zoning, budget and finance, and public administration. Contact a Government and Public Policy educator to learn more about related educational opportunities and resources.

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