Author: LegalEase Solutions

QUESTIONS PRESENTED

1. Whether Due Process is violated when a unit of government presumes a party is liable for a violation simply because that party’s information appears on a sign that violates an ordinance? 

2. Can a party be held liable for violating a sign ordinance when no evidence has been presented to show that the party caused the sign to be installed? 

SHORT ANSWERS

1. A penal ordinance empowering the police to charge a person of a particular offense by solely relying upon prima facie evidence amounts to denial of due process.

2. A penal ordinance cannot empower the police to charge a person of a particular offense, in the absence of any evidence. In such a circumstance, the ordinance or the provision of the ordinance that denies due process shall be deemed to be unconstitutional.

RESEARCH FINDINGS

1. Whether Due Process is violated when a unit of government presumes a party is liable for a violation simply because that party’s information appears on a sign that violates an ordinance? 

The general rule is that “[A]n ordinance (1) must contain adequate standards to guide the official’s decision, (2) must not be based on the content of the message, (3) must be narrowly tailored to serve a significant government interest, and (4) must leave open ample alternatives for communication.” H.D.V. – Greektown, LLC v. City of Detroit, 568 F.3d 609, 623 (2009). Additionally, “where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972). “Due process requires notice of the charges against an individual and a meaningful opportunity to contest the evidence before the individual may be deprived of a protected life, liberty, or property interest.” O’Neill v Louisville/Jefferson Co Metro Govt, 662 F3d 723, 733 (6th Cir.2011) (quoting Morrison v Warren, 375 F.3d 468, 473 (6th Cir.2004)).

In People v. Licavoli, 264 Mich. 643, 643-644 (1933), the defendants were charged with being engaged in an unlawful occupation and business in that they had combined with others for the purpose of conducting illegal business. “[T]he Supreme Court held that the statutory provision making proof of recent reputation for engaging in illegal occupation prima facie evidence of being engaged in illegal occupation, within statute providing for punishment of persons so engaged, held void as denying due process.” Id. at 645.From the foregoing it appears that charging a violation when solely relying on the prima facie evidence obtained by the police amounts to denial of due process.

2. Can a party be held liable for violating a sign ordinance when no evidence has been presented to show that the party caused the sign to be installed?

Generally, “[a]n ordinance must be clear, precise, definite and certain in its terms, and an ordinance vague to the extent that its precise meaning cannot be ascertained, is invalid, although otherwise it is constitutional and valid.” Central Advertising Co. v Ann Arbor, 42 Mich App 59, 70 (1972). “Thus, an ordinance must be framed in terms sufficiently clear and definite to show what it intends to require or prohibit and punish and its language must be readily understandable by those upon whom it is to operate.” Id. Moreover, it is also well established that, “[a]n ordinance is presumed to be constitutional and will be so construed unless the party challenging the statute clearly establishes its unconstitutionality.” Twp of Plymouth v Hancock, 236 Mich App 197, 199; 600 NW2d 380, 382 (1999).

However,“[a] vague ordinance violates the Constitution in two significant respects: such an ordinance fails, (1) to define the offense with sufficient definiteness that ordinary people can understand prohibited conduct, and (2) to establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner.” Belle Maer Harbor v Charter Tp of Harrison, 170 F3d 553, 556 (6th Cir. 1999) (citing Kolender v Lawson, 461 U.S. 352, 357 (1983)). Further, “[a]n ordinance may be unconstitutional, as applied to certain parties, because of unequal and discriminatory enforcement.” Blackman Tp. v Koller, 357 Mich 186, 189, 98 NW2d 538, 540 (1959).

Moreover, “[w]hen a statute or ordinance is challenged on the ground that it is unconstitutionally vague, a court must review the entire text of the law, giving its words their plain ordinary meanings.” Van Buren Tp, 258 Mich App at 631 (2003).

In City of Chicago v. Morales, 527 U.S. 41, 45-46 (1999) the Chicago Gang Congregation Ordinance was enacted, which prohibited ‘criminal street gang members’ from loitering in public places. “Under the ordinance, if a police officer observes a person whom he reasonably believes to be a gang member loitering in a public place with one or more persons, he shall order them to disperse.” Id. at 47. “Anyone who does not promptly obey such an order has violated the ordinance.” Id. “The police department’s General Order 92–4 purports to limit officers’ enforcement discretion by confining arrest authority to designated officers, establishing detailed criteria for defining street gangs and membership therein, and providing for designated, but publicly undisclosed, enforcement areas.” Id. at 48.

“The Supreme Court held that when vagueness permeates the text of a criminal law that contains no mens rea requirement and infringes on constitutionally protected rights, law is subject to facial attack.” Id. at 55.

From the foregoing it appears that a penal ordinance must be precise and definite to show what it intends to prohibit and by laying down the standards for a non-arbitrary and non-discriminatory enforcement. Further, a penal ordinance which enlarges it scope to charge the possible offenders and later shifts the burden to the courts to say who can be charged of the offense is deemed to be void. Moreover, a penal ordinance which empowers the police to charge a particular offense in the absence of evidence shall be void on the sole ground of denying due process.

CONCLUSIONS

Therefore, a penal ordinance must be clear, precise, and definite to show what it intends to prohibit by laying down standards for a non-arbitrary and non-discriminatory enforcement of the law. Further, a penal ordinance that empowers the police to charge a person with a particular offense in the absence of evidence or by solely relying on prima facie evidence shall be deemed to be unconstitutional on the sole ground of denying due process.