People of City of Detroit v. Sanchez

• Court: Court of Appeal of Michigan (US)
• Citation: 18 Mich.App. 399,171 N.W.2d 452
• Docket Number: No. 1,Docket No. 4420,1
• Parties: PEOPLE OF the CITY OF DETROIT, Plaintiff-Appellee, v. Thomas Ray SANCHEZ, Defendant-Appellant
• Decision Date: 29 July 1969

Page 452

171 N.W.2d 452

18 Mich.App. 399

PEOPLE OF the CITY OF DETROIT, Plaintiff-Appellee, v. Thomas Ray SANCHEZ, Defendant-Appellant.

Docket No. 4420.

Court of Appeals of Michigan, Division No. 1.

July 29, 1969.

Released for Publication Oct. 29, 1969.

William L. Colden, Detroit, for appellant.

Robert Reese, Corp. Counsel, Detroit, for appellee.

Before LESINSKI, C.J., and T. M. BURNS and J. J. KELLEY, Jr., ^* JJ.

T. M. BURNS, Judge.

Defendant, Thomas Ray Sanchez, seeks reversal of a conviction for 'wrongfully following' in violation of section 39--1--36 ¹ of the code of the city of Detroit. He was convicted in the traffic and ordinance division of the recorder's court for the city of Detroit in trial without a jury on a general 'ogling complaint'. There is sufficient evidence in the record for the trial court to have found, as it did, that defendant 'wrongfully followed' complainant within the meaning of the ordinance. ² We find, however, that the ordinance to the extent that it makes 'wrongfully following' criminal is repugnant to the due process clause of the Fourteenth Amendment, Lanzetta v. State of New Jersey (1939), 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Giaccio v. Pennsylvania (1966), 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447, and that therefore no conviction under it can be sustained. Winters v. New York (1948), 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840.

We are compelled to decide thus because this provision of the ordinance is unconstitutionally vague. By 'vague' we do not mean here that sort of vagueness referred to by the Supreme Court of Michigan in People v. Austin (1942), 301 Mich. 456, 3 N.W.2d 841, that is, that the ordinance is put in terms which require men of common intelligence to guess as to its meaning and differ as to its application. The vagueness which invalidates this ordinance is its over-breadth of coverage rather than imprecise terminology or phraseology. The conviction cannot be sustained because the ordinance makes criminal innocent as well as culpable conduct. City of Detroit v. Bowden (1967), 6 Mich.App. 514, 149 N.W.2d 771. The words used by the legislative adopting body are in this instance unambiguous. When the language is unambiguous, as here, the intention of the legislative body governs. People v. Powell (1937), 280 Mich. 699, 274 N.W. 372, 111 A.L.R. 721. Therefore, we cannot interpret this provision of the ordinance so as to avoid invalidating it as we are bound to do where possible. See People v. Schoenberg (1910), 161 Mich. 88, 125 N.W. 779.

The legislative intent as evidenced by the terms of the ordinance and the brief of the city on appeal, was to make it criminal for one person to 'follow' another. The city unequivocally asserts that it is the objective fact of following that is the crime without more. The city says that specific intent is not an element of the crime, and characterizes the conduct prohibited as something akin to speeding or carrying a concealed weapon.

The city claims the ordinance makes acts criminal without proof of intent yet common sense and justice demand that without the specific intent the conduct cannot be wrongful. The difficulty of producing evidence of specific intent in a crime such as this is real, and we sympathize with problems of the police. In that respect, we find ourselves faced here with a situation much like the one which faced us in City of Detroit v. Bowden (1967), 6 Mich.App. 514, 149 N.W.2d 771. We reiterate here what we said there (p. 519, 149 N.W.2d p. 773):

'We do not disparage the difficulties which beset a large metropolitan area and its law enforcement agencies in coping with the problem which this ordinance seeks to alleviate; rather we proceed cautiously in evaluating any statute or ordinance which seeks to aid the meritorious efforts of those who are charged with our protection. But the ends do not justify the means and the legislation must pass constitutional muster to warrant our approval, once it is questioned on such ground. As a duly passed legislative act the ordinance is presumed constitutionally valid. Those who seek to defeat it bear the burden of proving that, when tested by constitutional standards, careful judicial scrutiny will find that this presumption has been overcome.'

We cannot continue the presumption of constitutionality when the city which enacted the ordinance defines the conduct prohibited so that it is impossible for it to stand.

The plaintiff tautologically argues that the actions prohibited by the ordinance are not innocent. The conduct made criminal by the ordinance as defined by the plaintiff-city, however, includes innocent coincidence as well as intentional and malicious conduct. A person who only thinks he is being followed may feel as harassed or molested as a person who is actually being followed, or a person may pursue another with evil intent without the person being pursued ever knowing it. Justice prohibits the imposition of criminal sanctions in the first instance for the imagined injury, but it may require criminal sanctions in the second although the person being pursued suffered no discomfort or annoyance.

In City of Detroit v. Bowden, Supra, we struck down an ordinance (Detroit city code, § 39--1--52) which presumed that a person who was a know prostitute or panderer was engaged in his 'known occupation' whenever he tried to stop another person or motor vehicle by hailing, whistling, or other...