Vague or subjective ordinance standards: In the court’s opinion they stink! Part 1
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.
A recently published case by the Michigan Court of Appeals sets an existing ‘high bar’ higher regarding the constitutional mandate for government regulations to be clear and unambiguous. The case concerned an alleged violation of the City of Grand Rapids’ noise ordinance. One might say the Court of Appeals said what courts have always said, only they said it louder – vague standards are unenforceable!
In light of this ruling, local governments should review their ordinances for provisions that might be vague. Part one of this two-part article reviews the case while part two highlights the court’s summary of the principles used when determining whether an ordinance is unconstitutionally vague.
The case at hand, People v. Gasper (Published Opinion No. 324150, March 8, 2016), involved a restaurant/bar that allegedly violated §9.63(3) of the City of Grand Rapids Noise Ordinance, which provides: No person shall use any remises or suffer any premises under his or her care or control to be used which shall destroy the peace and tranquility of the surrounding neighborhood.
The defendants, two co-owners and an employee, were issued citations on the ground that the music coming from their establishment was too loud. The district court dismissed the citations, holding that the ordinance was unconstitutionally vague because “reasonable minds could differ regarding what destroys the peace and tranquility of a neighborhood,” and that there was “no objective way for police to make that determination.”
The circuit court reversed in part, finding the ordinance was not unconstitutionally vague because, when read in conjunction with other sections, it “provided notice to residents of maximum sound levels during the day and night,” and how those levels would be measured.
The Court of Appeals agreed with defendants that the circuit court erred in finding the ordinance constitutional. It noted that “the existence of maximum decibel limits in §9.63(11) does not aid a citizen in determining whether his or her conduct violates §9.63(3), nor does it place any constraints on enforcing officers’ discretion.” The court also noted there is “no standard for determining what ‘destroys’ the peace and tranquility of a neighborhood, which compels ‘men of common intelligence’ to guess as to what conduct is proscribed by §9.63(3).”
The Court of Appeals also reasoned, because the ordinance “fails to provide explicit standards for determining what ‘destroys the peace and tranquility of the surrounding neighborhood,’ law enforcement officers and finders of fact are necessarily vested with ‘virtually complete discretion’ to determine whether a violation of §9.63(3) has occurred.” Indeed, police officers never actually recorded the decibel level of the noise and testified that they understood a violation of § 9.63(3) to occur if noise could be heard from a “public way” (i.e. the street) regardless of actual decibel level.
The court also distinguished the case from cases involving challenges to disturbing the peace statutes, noting the ordinance “does not proscribe conduct that merely disturbs or disrupts the peace and tranquility, but rather that which destroys the peace and tranquility. Thus, a person of ordinary intelligence would still have to guess whether his or her conduct was lawful, as conduct that one person might consider to totally destroy their peace and tranquility might merely disrupt the peace and tranquility for another”
Finally, the court noted that there was “no narrowing construction of” the ordinance that would render it constitutional. “Although the district court attempted . . . to read into §9.63(3) a requirement that a violation of §9.63(11) [had] occurred, such a reading effects a substantial revision of the ordinance and essentially amounts to rendering §9.63(3) nugatory or surplusage” (i.e. if a violation of § 9.63(3) is only possible through a violation of § 9.63(11), § 9.63(3) is therefore excessive and nonessential).
In conclusion, the Court of Appeals held that the City of Grand Rapids’ noise ordinance was unconstitutionally vague and ordered the dismissal of the citations against the defendants.
As a published case, People v. Gasper becomes part of the state’s overall body of law and sets a precedent in other cases. Local governments will want to review their standards through this lenses and make appropriate amendments to ordinances in order to minimize legal risk. That said, local officials can take some comfort in knowing that courts presume local and state laws to be valid. Part two of this Michigan State University Extension article examines the principles used by courts when examining an ordinance for vagueness.
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