City of Lansing v. Hartsuff

• Decision Date: 08 September 1995
• Docket Number: Docket No. 163095
• Citation: 539 N.W.2d 781,213 Mich.App. 338
• Parties: CITY OF LANSING, Plaintiff-Appellee, v. Roger Allen HARTSUFF and Timothy Fay Hartsuff, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 781

539 N.W.2d 781

213 Mich.App. 338

CITY OF LANSING, Plaintiff-Appellee, v. Roger Allen HARTSUFF and Timothy Fay Hartsuff, Defendants-Appellants.

Docket No. 163095.

Court of Appeals of Michigan.

Submitted Feb. 16, 1995, at Lansing.

Decided Sept. 8, 1995, at 9:30 a.m.

Released for Publication Nov. 17, 1995.

Alvan P. Knot, City Attorney, and Landis Y. Lain, Associate City Attorney, for the People.

Stephen C. Rulison & Assoc., P.C. by Stephen C. Rulison, Lansing, for defendants.

Before MICHAEL J. KELLY, P.J., and MCDONALD and RICHARD ALLEN GRIFFIN, JJ.

RICHARD ALLEN GRIFFIN, Judge.

Defendants appeal by leave granted an order of the circuit court affirming defendants' convictions following a jury trial in the 54-A District Court. Defendant Roger Hartsuff was convicted of disturbing the public peace and quiet by loud or boisterous conduct in a public place, Lansing Ordinances, § 664.01, and hindering, opposing, obstructing, or resisting a police officer in the performance of his duties, Lansing Ordinances, § 602.02. Defendant Timothy Hartsuff was convicted of the latter charge only. Both defendants were sentenced to six months of probation, fourteen days in jail, and a $300 fine. We affirm with respect to both defendants.

I

On March 15, 1991, Hazel Woodruff, the live-in girl friend of Timothy Hartsuff, called the Lansing Police Department at approximately 9:45 p.m. Woodruff informed the police department that the Hartsuff brothers were arguing outside Timothy Hartsuff's home. Both defendants had been drinking and were pushing each other while arguing. Woodruff testified that she called the police because she wanted the argument stopped "before someone got hurt."

Following Woodruff's call, Lansing police officers Ronald Seyka and James Gill were dispatched to the disturbance. Officer Seyka arrived first and heard both defendants using profanity. While in his driveway, Timothy Hartsuff told Officer Seyka, "You can leave. This is a family problem. Get the hell out of here."

A short time later, Woodruff went outside and began speaking to Officer Seyka. During her conversation with the officer, the argument between defendants became more heated with Roger Hartsuff's repeated use of profanity. Officer Seyka warned Roger Hartsuff several times to stop using "loud and profane" language. Thereafter, Officer Seyka attempted to mediate the dispute by separating the Hartsuff brothers and talking to each man.

Officer Gill arrived approximately two or three minutes after Officer Seyka. Following Gill's arrival, Roger Hartsuff stated, "There's another ass----. Here comes another ass----." At this point, Officer Seyka informed Roger that he would be arrested for any more outbursts. Roger's wife, Linda Hartsuff, then attempted to push her husband toward the house. However, as Officer Gill got out of his vehicle, Roger shouted additional obscenities. Officer Gill immediately advised Roger Hartsuff that he was under arrest for being "loud and profane."

Following the outburst, Roger Hartsuff was pushed into the house by his wife. Officer Gill followed Roger into the home to effectuate Roger's arrest. Once the officer was inside, Timothy Hartsuff began pushing Officer Gill in the chest. Officer Seyka then entered the home and witnessed the pushing incident. As both officers attempted to arrest Timothy Hartsuff, Timothy refused to place his hands behind his back and repeatedly pushed Officer Gill. According to the testimony of both officers, Roger then came up behind Timothy and punched Officer Gill in the face, breaking Gill's eyeglasses. Both defendants were eventually subdued and arrested.

II

On appeal, defendant Roger Hartsuff challenges the constitutionality of Lansing Ordinances, § 664.01(b) on the ground that it is vague. ¹ Defendant Roger Hartsuff claims that the ordinance, which prohibits "[d]isturbing the public peace and quiet by loud or boisterous conduct," lacks sufficient standards to define prohibited behavior. We disagree.

Recently, in People v. Lino, 447 Mich. 567, 575-576, 527 N.W.2d 434 (1994), the Supreme Court summarized the following rules for resolving challenges for vagueness:

Defendants challenge MCL 750.338; MSA 28.570, as being unconstitutionally vague. In order to pass constitutional muster, a penal statute must define the criminal offense "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v Lawson, 461 US 352, 357; 103 SCt 1855 [1858]; 75 LEd2d 903 (1983) (citations omitted). Vagueness challenges that do not implicate First Amendment freedoms are examined in light of the facts of each particular case. People v Howell, 396 Mich 16, 21; 238 NW2d 148 (1976). When making a vagueness determination, a court must also take into consideration any judicial constructions of the statute. Kolender [461 U.S.] at 355 .

Thus, there are at least three ways a penal statute may be found unconstitutionally vague: (1) failure to provide fair notice of what conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3) being overbroad and impinging on First Amendment freedoms.

See also People v. White, 212 Mich.App. 298, 536 N.W.2d 876 (1995).

Additionally, there is a presumption of constitutionality of ordinances, Detroit v. Qualls, 434 Mich. 340, 364, 454 N.W.2d 374 (1990), and the person challenging the ordinance has the burden of rebutting the presumption. Id.; 1426 Woodward Ave. Corp. v. Wolff, 312 Mich. 352, 357, 20 N.W.2d 217 (1945); People v. Sell, 310 Mich. 305, 17 N.W.2d 193 (1945). Also, a statute or ordinance is not unconstitutional simply because it is unwise or unfair. Doe v. Dep't of Social Services, 439 Mich. 650, 681, 487 N.W.2d 166 (1992); Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, 666-667, 232 N.W.2d 636 (1975).

At issue in the present case are the words "loud or boisterous" as contained in the Lansing ordinance. Defendant Roger Hartsuff argues that this phrase is unduly subjective and vague, thereby making it susceptible to arbitrary and capricious enforcement. Further, he asserts that the language of the ordinance is imprecise and, therefore, deficient in providing the requisite notice to citizens of the proscribed conduct.

In Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949), the United States Supreme Court addressed a similar challenge to an ordinance forbidding amplification of "loud and raucous" noises. There, the Supreme Court stated:

The contention that the section is so vague, obscure and indefinite as to be unenforceable merits only a passing reference. This objection centers around the use of the words "loud and raucous." While these are abstract words, they have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden. [Id. at 79, 69 S.Ct. at 449.]

Like the words "loud and raucous," the phrase "loud or boisterous," as used in the Lansing ordinance, is sufficiently precise to be constitutional. See also Jones v. City of Meridian, 552 So.2d 820 (Miss.1989) (the terms "loud," "offensive," "intimidation," and "breach of the peace" not unconstitutionally vague); City of Seattle v. Eze, 111 Wash.2d 22, 759 P.2d 366 (1988) (the term "loud or raucous" not inherently vague); Normal v. Stelzel, 109 Ill.App.3d 836, 65 Ill.Dec. 378, 441 N.E.2d 170 (1982) (the term "loud and raucous" not unconstitutional); State v. Johnson, 112 Ariz. 383, 542 P.2d 808 (1975) (the term "loud or unusual noise" not vague); Hess v. State, 260 Ind. 427, 297 N.E.2d 413 (1973), rev'd on other grounds 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973) (statute proscribing acting in a "loud, boisterous, or disorderly manner" not vague); People v. Fitzgerald, 194 Colo. 415, 573 P.2d 100 (1978) (the term "unreasonable noise" not vague).

We agree with the lower court that an ordinary person exercising common sense can sufficiently understand the term "loud or boisterous," especially when the term is modified by the phrase "disturb the public peace and quiet." By the same token, we conclude that the term is not so subjective and vague as to permit unlimited discretion on the part of prosecutors, police officers, and jurors.

Furthermore, whenever possible, our courts must endeavor to construe statutes and ordinances in a constitutional manner. People v. Hayes, 421 Mich. 271, 284, 364 N.W.2d 635 (1984); People v. Capriccioso, 207 Mich.App. 100, 103, 523 N.W.2d 846 (1994). In this regard, we find persuasive the analysis of the Ohio Supreme Court in State v. Dorso, 4 Ohio St.3d 60, 4 OBR 150, 446 N.E.2d 449 (1983). In Dorso, the ordinance at issue proscribed the playing of music, loud talking, amplification of sound, and other noises "in such a manner to disturb the peace and quiet of the neighborhood." In upholding the constitutionality of the ordinance, the Ohio Supreme Court reasoned as follows:

[H]ere we adopt the approach taken by our counterpart in State v Chaplinsky, 91 NH 310; 18 A2d 754 (1941), and subsequently endorsed by the United States Supreme Court in Chaplinsky v New Hampshire, 315 US 568 [62 S.Ct. 766, 86 L.Ed. 1031] (1942). In appraising the constitutionality of a statute which criminalized directing "offensive, derisive or annoying" words to another, the New Hampshire court interpreted the statute so as to obviate any potential ambiguities. The New Hampshire court, [91 N.H.] at page 320 , stated: "The word 'offensive' is not to be defined in terms of what a particular addressee thinks.... The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight." The United States Supreme Court cited the identical passage in affirming the state court's decision and rejecting claims of the Chaplinsky statute's unconstitutionality. Chaplinsky v New Hampshire [supra, 315 U.S. at 573, ...