Vague or subjective ordinance standards: In the court’s opinion, they stink! Part 2
Print
EmailA 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 understand the legal principles used when determining whether an ordinance is void for vagueness. This article reviews those principles.
First, all statutes and ordinances are presumed to be constitutional, and the party challenging a statute has the burden of showing the contrary. People v. Burkman, 15 N.W.3d 216, 2024 Mich. LEXIS 1080, 2024 WL 2982804 (Supreme Court of Michigan June 13, 2024, Decided). When the validity of a law is drawn in question, and even if a serious doubt of constitutionality is raised, courts follow the central principle to first ascertain whether a construction of the statute or ordinance is fairly possible by which the question may be avoided. People v. Kvasnicka, 2025 Mich. App. LEXIS 5764, 2025 LX 265210, 2025 WL 2045006 (Court of Appeals of Michigan July 21, 2025, Decided).
Michigan courts also follow the “void for vagueness” doctrine derived from the constitutional guarantee that the state may not deprive a person of life, liberty, or property without due process of law. Exclusive Cap. Partners, LLC v. City of Royal Oak, 2024 Mich. App. LEXIS 9689, 2024 WL 4982606 (Court of Appeals of Michigan December 4, 2024, Decided). A statute or ordinance may be void for vagueness if it:
- Is overbroad and impinges on First Amendment freedoms,
- Does not provide fair notice of the conduct it regulates, or
- Gives the trier of fact unstructured and unlimited discretion in determining whether the statute has been violated.
The void for vagueness doctrine incorporates notions of fair notice or warning and requires legislative bodies to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement. People v Burkman, Mich (2024). “When determining whether a statute inappropriately delegates unstructured and unlimited discretion to a decision maker, the court examines whether the statute provides standards for enforcing and administering the laws in order to ensure that enforcement is not arbitrary or discriminatory . . . .” Exclusive Cap. Partners, LLC v. City of Royal Oak, Mich App (2024).
Also, the Court of Appeals has pointed out: “To afford proper notice of the conduct proscribed, a statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. A statute cannot use terms that require persons of ordinary intelligence to speculate regarding its meaning and differ about its application. For a statute to be sufficiently definite, its meaning must be fairly ascertainable by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words.” People v. Sands, 261 Mich. App. 158, 680 N.W.2d 500, 2004 Mich. App. LEXIS 673 (Court of Appeals of Michigan March 9, 2004, Decided).
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 made by legislative bodies. 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.
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 Community Vitality educator to learn more about related educational opportunities and resources.