People v. Deutsch

• Citation: 172 N.W.2d 392,19 Mich.App. 74
• Decision Date: 27 August 1969
• Docket Number: Docket No. 5767,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marlene Joan DEUTSCH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 392

172 N.W.2d 392

19 Mich.App. 74

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marlene Joan DEUTSCH, Defendant-Appellant.

Docket No. 5767.

Court of Appeals of Michigan, Division No. 2.

Aug. 27, 1969.

Released for Publication Dec. 1, 1969.

Stuart J. Dunnings, Jr., Dunnings & Gibson, Lansing, for defendant-appellant.

Julius I. Hanslovsky, Asst. City Atty., East Lansing, for plaintiff-appellee.

Before GILLIS, P.J., and BRONSON and LEVIN, JJ.

BRONSON, Judge.

Defendant, Marlene Joan Deutsch, along with several other students from Michigan State University, decided to demonstrate for passage of a fair housing ordinance which was pending before the City Council of East Lansing. Thus, on May 25, 1965, the defendant and others proceeded to the City Hall, located in the 400 block of Abbott Road, and they sat down in the street. This action completely blocked the street to all vehicular traffic.

This group of sit-in protestors refused to disperse. The mayor of East Lansing read an ordinance (ch. II, art. II, § 2--2.1, subsection (q)) and asked everyone to remove themselves from the street. The protestors refused to move. They were arrested.

Defendant Deutsch was charged with violating an ordinance of East Lansing, namely: 'Article II Morals and Conduct; Disorderly Conduct; Section 2--2.1(q)', which reads:

'No person shall:

'(q) Loiter on any street or sidewalk or in any park or public building or conduct himself in any public place so as to obstruct the free and uninterrupted passage of the public.'

Defendant's attorney admitted at trial that the defendant and others had seated themselves in the street in front of City Hall, and had refused to move after the mayor read the city ordinance to them.

Defendant sought dismissal of the complaint, and this motion was denied. She was convicted before a jury on May 28, 1968. On appeal, defendant now attacks the constitutionality of the East Lansing ordinance, and the right of the trial judge to direct a verdict.

Article VII of the Michigan Constitution (1963) reads in part:

'Sec. 22. * * * Each such city * * * shall have power to adopt * * * ordinances relating to its municipal concerns * * *.'

'Sec. 29. * * * Except as otherwise provided in this constitution the right of all * * * cities * * * to the reasonable control of their highways, streets, alleys and public places is hereby reserved to such local units of government.'

The home rule charter of East Lansing, section 2.1, grants the city the power 'to pass and enforce all laws, ordinances, and resolutions relating to its municipal concerns.'

Defendant does not question the authority of a city to adopt ordinances under its police power. Nor does she deny the authority of a city to prohibit nuisances or breaches of the peace. However, she does claim that when such ordinances are passed they must state clearly and precisely what actions constitute a violation of such ordinances and what penalties will be applied to a transgressor.

A statute will be presumed to be constitutional by the courts unless the contrary clearly appears, and this same presumption of constitutionality applies to a city ordinance, with the burden of overcoming the presumption being placed upon the person asserting unconstitutionality. People v. Sell, (1945) 310 Mich. 305, 17 N.W.2d 193; City of Detroit v. Bowden (1967), 6 Mich.App. 514, 149 N.W.2d 771.

The trial court, in an excellent written opinion on a motion to quash by defendant, noted:

'* * * (T)hat the Supreme Court goes far to uphold state and city regulations that deal with offenses difficult to define, expecially when they are not entwined with limitations on freedom of expression. Winters v. New York (1948), 333 U.S. 507, (68 S.Ct. 665, 92 L.Ed. 840). But, on the other hand, the power and duty of the state to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted. Thornhill v. Alabama (1940), 310 U.S. 88 (60 S.Ct. 736, 84 L.Ed. 1093).

'A penal law cannot be sustained unless its mandates are so clearly expressed that any ordinary person may determine in advance what he may or may not do. People v. Sarnoff, 302 Mich. 266, (4 N.W.2d 544, 140 A.L.R. 1206). To sustain such a penal law would be denying the defendant due process of law.'

Defendant argues that the ordinance is an unwarranted abridgement of her freedom of speech as guaranteed by the First Amendment and is therefore unconstitutional. It is clear, however, that:

'(T)he * * * power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community. A state or city may prohibit acts or things reasonably thought to bring evil or harm to its people. 16 Am.Jur.2d, Constitutional Law § 305, p. 598. See also Kovacs v. Cooper, supra.' Opinion of trial court.

In Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, the Supreme Court recognized that while city streets are a normal and logical place for the exchange of ideas through speech or expression it is not beyond all power of the local government to control the means and extent of the manner of dissemination. However, when used for ordinary purposes, this right of regulating streets and sidewalks should be sparingly exercised. People v. Dmytro (1937), 280 Mich. 82, 273 N.W. 400, 111 A.L.R. 128.

"The distinction between the use by the public in the usual way for pleasure or business and as a place or instrumentality for business for private gain is fundamental. While as to the former, the power to regulate must be sparingly exercised and only when necessary in the public interest, as to the latter the right to use may be given or withheld.' Melconian v. City of Grand Rapids, 218 Mich. 397, 404, 188 N.W. 521, 524.' People v. Dmytro, Supra, at p. 85, 273 N.W. at p. 402.

Defendant argues that a penal law cannot be sustained unless it is so clear on its face that an ordinary person may know in advance what actions are proscribed. Defendant further states that it is the general rule that a criminal statute when applied to the situations it purports to govern must be sufficiently definite in its terms to inform the average, intelligent person what conduct will subject him to penalties.

In City of Detroit v. Wedlow (1969), 17 Mich.App. 134, p. 137, 169 N.W.2d 145 p. 146--147, this Court said:

'In Shuttlesworth v. City of Birmingham (1965), 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176, the United States Supreme Court considered the constitutionality of the Birmingham loitering ordinance. In Shuttlesworth the ordinance provided:

"It shall be unlawful for any person or any number of persons to so stand, loiter or walk upon any street or sidewalk in the city as to obstruct free passage over, on or along said street or sidewalk. It shall also be unlawful for any person to stand or loiter upon any street or sidewalk of the city after having been requested by any police officer to move on.'

'In analyzing this ordinance, the United States Supreme Court stated that the ordinance as literally read sets forth two separate and disjunctive offenses. According to the Court, the second sentence of the ordinance literally sets forth an offense complete in itself and as such is unconstitutional because a person may stand on a public sidewalk in Birmingham only at the whim of a police officer. It was upon this possible literal construction of the second sentence by the trial court that the Supreme Court reversed Shuttlesworth's conviction and remanded to the Alabama Court of Appeals.

'Despite the above literal construction, the Court noted that following the Shuttlesworth trial but before appeal to the Alabama Court of Appeals, the Alabama Court of Appeals, in Middlebrooks v. City of Birmingham (1964), 42 Ala.App. 525, 170 So.2d 424, expressly narrowed the construction of the Birmingham ordinance. Under this narrowed construction, mere refusal to move on after a police officer's request is not sufficient to support the offense. Rather there must also be a showing that the accused obstructed free passage. The Supreme Court approved this narrow construction by Alabama courts saying that under such a construction the ordinance would not be unconstitutional.

'In comparing the Detroit City Ordinance with the Birmingham ordinance As narrowly construed, we find loitering to be sufficiently well defined in the Detroit ordinance so as to limit application to those persons who are obstructing free passage of pedestrians. The ordinance does not prohibit standing on a sidewalk, but only standing on a sidewalk so as to hinder or impede pedestrian traffic. Thus the Detroit loitering ordinance achieves its obvious regulatory purpose of keeping sidewalks clear and is not unconstitutionally broad or vague.'

Similarly, the East Lansing ordinance thus narrowly construed does not prohibit all interferences with the use by others of the streets and sidewalks, but rather conduct on a street or sidewalk so as to obstruct the free and uninterrupted passage of the public. See Cameron v. Johnson (1968), 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182, reh. den. 391 U.S. 971, 88 S.Ct. 2029, 20 L.Ed.2d 887.

The Supreme Court of the United States stated, in regard to a Louisiana statute which prohibited the obstruction of public passages:

'* * * The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded * * *.' Cox v. Louisiana (1964), 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed. 471.

Similarly, in ...