Plymouth Charter Township v. Hancock , 236 Mich. App. 197 ( 1999 )

600 N.W.2d 380 (1999) 236 Mich. App. 197

People of the TOWNSHIP of PLYMOUTH, Plaintiff-Appellant,
v.
Paul HANCOCK, Defendant-Appellee.

Docket No. 201012.

Court of Appeals of Michigan.

Submitted April 7, 1999, at Detroit. Decided June 11, 1999, at 9:20 a.m. Released for Publication October 1, 1999.

Hemming, Polaczyk & Cronin (by Timothy L. Cronin), Plymouth, for the people.

Andrew Nickelhoff, Detroit, for the defendant.

Before: HOOD, P.J., and HOLBROOK, JR., and WHITBECK, JJ.

PER CURIAM.

The people appeal by leave granted an order of the circuit court affirming the dismissal of the charges against defendant based on a finding that Charter Township of Plymouth Ordinance § 51.125 (hereinafter § 51.125) was unconstitutional. We reverse and remand.

I. Background Facts and Procedural History

Defendant allegedly on two separate occasions directed a profane barrage of insults at his neighbor, the complaining witness, while she was in the yard of her home. The people assert that these insults were overheard by others in the vicinity. Defendant was charged with violating § 51.125, which provides:

It shall be unlawful for a person to disturb the public peace and quiet by shouting, whistling, loud, boisterous, or vulgar conduct, the playing of musical instruments, phonographs, radios, televisions, tapeplayers or any other means of amplification at any time or place so as to unreasonably annoy or disturb the quiet, comfort and repose of persons in the vicinity.

Defendant filed a motion in the district court to dismiss the charges, arguing in part that § 51.125 is unconstitutionally vague and overbroad. Citing People v. Howell, 396 Mich. 16, 238 N.W.2d 148 (1976), the district court dismissed the charges, concluding that § 51.125 was unconstitutionally vague because the language of the ordinance did not provide any clear standards to enable law enforcement to distinguish between lawful and unlawful conduct.^[1] The people's appeal was rejected by the Wayne Circuit Court. In addition to affirming the district court's analysis, the circuit court found that § 51.125 violated the third prong of the Howell test.

II. Constitutional Challenges

The people argue that both lower courts erred in ruling that § 51.125 did not contain sufficient guidelines to govern enforcement, and that the circuit court erred in ruling that the ordinance was also overbroad. This Court reviews the constitutionality of an ordinance de novo. People v. Sierb, 456 Mich. 519, 522, 581 N.W.2d 219 (1998); Bell River Associates v. China Charter Twp., 223 Mich.App. 124, 129, 565 N.W.2d 695 (1997). "The rules governing the construction of statutes apply with equal force to the interpretation of municipal ordinances." Gora v. City of Ferndale, 456 Mich. 704, 711, 576 N.W.2d 141 (1998). An ordinance is presumed to be constitutional and will be so construed unless the party challenging the statute clearly establishes its unconstitutionality. Id. at 711-712, 576 N.W.2d 141; People v. Jensen (On Remand), 231 Mich.App. 439, 444, 586 N.W.2d 748 (1998).

Although both the void-for-vagueness and overbreadth doctrines are concerned with curbing arbitrary and discriminatory enforcement, they are nonetheless distinct jurisprudential concepts. Compare Kolender v. Lawson, 461 U.S. 352, 357-362, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), with Maryland Secretary of State v. Joseph H. Munson Co., Inc., 467 U.S. 947, 964-970, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). When freedom of speech is implicated, the doctrines even more closely parallel each other, given that each is also concerned with the possibility that a statute or ordinance might impermissibly chill the freedom of expression. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Tribe, American Constitutional Law, § 12-31, p. 1035 (2d ed., 1988). These similarities have led courts of this state to speak of the doctrines in the same breath. See, e.g., People v. Lino, 447 Mich. 567, 575-576, 527 N.W.2d 434 (1994); Howell, supra at 20, 238 N.W.2d 148; People v. Vronko, 228 Mich.App. 649, 652, 579 N.W.2d 138 (1998). However, our courts have also adhered to the traditional distinction when applying the doctrines. See, e.g., People v. Morey, 230 Mich.App. 152, 163-164, 583 N.W.2d 907 (1998). In this opinion, in order to prevent confusion, we have chosen to separate overbreadth from void-for-vagueness in both our articulation and application of the relevant rules of law.

A. Vagueness

An ordinance is unconstitutionally vague if it (1) does not provide fair notice of the type of conduct prohibited or (2) encourages subjective and discriminatory application by delegating to those empowered to enforce the ordinance the unfettered discretion to determine whether the ordinance has been violated. Kolender, supra at 352, 103 S.Ct. 1855; Grayned, supra at 108-109, 92 S.Ct. 2294; Lino, supra at 575-576, 527 N.W.2d 434; Vronko, supra at 652, 579 N.W.2d 138.

The people argue the use of the reasonable person standard in the ordinance saves the ordinance from being impermissibly vague. We agree. The ordinance plainly states that the type of conduct that is prohibited is that which tends "to unreasonably annoy or disturb the quiet, comfort and repose of persons in the vicinity." (Emphasis added.) The reasonable person standard is a hallmark of the Anglo-American legal system. See, e.g., U.S. Const., Am. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...."); 2 Restatement of Torts, 2d, § 283, p. 12 ("Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances."). We believe the reasonable person standard serves to provide fair notice of the type of conduct prohibited, as well as preventing abuses in application of the ordinance. See Lansing v. Hartsuff, 213 Mich.App. 338, 346-347, 539 N.W.2d 781 (1995);^[2]City of Madison v. Baumann, 162 Wis.2d 660, 683, 470 N.W.2d 296 (1991); Earley v. State, 789 P.2d 374, 376 n. 2 (1990). The reasonable person standard assures that "the person of ordinary intelligence [has] a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned, supra at 108, 92 S.Ct. 2294. It also serves to prevent any ad hoc and subjective application by police officers, judges, juries, or others empowered to enforce § 51.125. Grayned, supra at 109, 92 S.Ct. 2294.

B. Overbreadth

The people also argue that the circuit court erred in holding that the ordinance was unconstitutionally overbroad. Again, we agree. The overbreadth doctrine finds its genesis in Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). When considering whether an ordinance is overbroad, a court should consider the realistic potential of the ordinance to chill constitutionally protected speech. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 799-801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). "In short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds." Id. at 801, 104 S.Ct. 2118. Accord Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)

("[P]articularly where conduct and not merely speech is involved, ... the overbreadth of a statute must not only be real, but substantial as well....").

We believe that the reasonable person standard limits the scope of this content-neutral ordinance^[3] so that it does not, on its face, substantially endanger constitutionally protected speech. We presume that a reasonable person would understand that the ordinance does not reach constitutionally protected speech. In other words, the reasonable person standard effectively precludes application of the ordinance "to speech, although vulgar and offensive, that is protected by the First and Fourteenth Amendments." Lewis v. New Orleans, 415 U.S. 130, 134, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974). Therefore, we conclude that the ordinance, which serves the legitimate and significant governmental interest of preserving the peace and quiet of the township, see Ward v. Rock Against Racism, 491 U.S. 781, 796, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Kovacs v. Cooper, 336 U.S. 77, 86-88, 69 S.Ct. 448, 93 L.Ed. 513 (1949), is not unconstitutionally overbroad. Given our resolution of the constitutional challenges, we need not address the other assertions of error raised by the people.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

[1] The Howell Court stated that a statute is unconstitutionally vague if: "1. It does not provide fair notice of the conduct proscribed [;] 2. [i]t confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed. [; and] 3. [i]ts coverage is overbroad and impinges on First Amendment freedoms." Id. at 20, 238 N.W.2d 148. The district court limited its analysis to the second prong of the Howell test.

[2] We reject defendant's assertion that the reasonable person standard does not vitiate the constitutional infirmity of the term "annoy." It is true that the United States Supreme Court concluded in Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), that an ordinance proscribing conduct that was "annoying to passers by" was unconstitutionally vague. We note, however, that the Coates Court found it significant that the state court's construction of the ordinance did not include a reasonable man standard. Id. at 613, 91 S.Ct. 1686. Further, we note that the Court concluded in Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968), that a statute prohibiting picketing "clearly and precisely delineate[d] its reach in words of common understanding" in part because it employed the "widely used and well understood" term reasonably when proscribing the conduct. See also Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

[3] Because the ordinance does not attempt to regulate speech on the basis of its message, we conclude that the ordinance is content-neutral. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (observing that a content-neutral restriction is one that is "justified without reference to the content of the regulated speech").