People v. Olsonite Corp., Docket No. 31473
| Citation | 265 N.W.2d 176,80 Mich.App. 763 |
| Decision Date | 23 January 1978 |
| Docket Number | Docket No. 31473 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. OLSONITE CORPORATION, Defendant-Appellee. 80 Mich.App. 763, 265 N.W.2d 176 |
| Court | Court of Appeal of Michigan — District of US |
[80 MICHAPP 764] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Asst. Pros. Atty., Donald A. Campbell and Joseph B. Klein, Asst. Pros., for plaintiff-appellant.
Honigman, Miller, Schwartz & Cohn by Robert A. Fineman, Detroit, for defendant-appellee.
[80 MICHAPP 765] Before BRONSON, P. J., and T. M. BURNS and ALLEN, JJ.
We are asked to decide whether a regulation of the Wayne County Air Pollution Control Division declaring it unlawful and a criminal offense for any person to permit or cause the emission of air contaminants which would be detrimental to or endanger the health, comfort or safety of any person or the public, is void and unenforceable for vagueness. On August 27, 1976, the circuit court for Wayne County held it was, and granted defendant's motion to dismiss. Plaintiff appeals by leave granted.
Article VI, § 6.5 of the Wayne County Air Pollution Control Regulation, the single section in dispute in the instant case, is preceded by §§ 6.1-6.4, each of which prescribe specific measurable standards for determining air pollution. 1 Section 6.5 is a generally worded section not subject to definitely ascertainable measurement. It reads:
In September 1975, two complaints were filed against defendant, alleging that on five different days the defendant violated § 6.5. Following trial in the municipal court for the City of Hamtramck, defendant was found guilty of three of the four counts of the first complaint and guilty of the single charge in the second complaint and was fined $100 on each count. Defendant appealed to the circuit court which granted defendant's motion to dismiss, and vacated the convictions.
Our first inquiry is whether, as plaintiff claims, § 6.5 states a separate offense or whether, as defendant contends, it only states in general language emissions which violate the specific standards spelled out in §§ 6.1-6.4. Defendant contends a 6.5 offense arises only where §§ 6.1, 6.2, 6.3, or 6.4 have been violated and cites the following passage from People v. Powell, 280 Mich. 699, 704, 274 N.W. 372, 374 (1937):
The issue posed is important because plaintiff frankly admitted at oral argument that the emissions in question did not violate §§ 6.1-6.4. The offensive nature of the violations charged was odor, which being non-sulphuric in nature, was not chargeable under § 6.3. According to plaintiff, most odors, being invisible, are difficult to define and hence are chargeable under the comprehensive language of 6.5.
There is no question but that § 6.5 is inartfully drawn and is subject to four possible interpretations. 2 This possible four-way ambiguity primarily arises because § 6.5 specifically refers to the preceding four sections but also provides that any violation of the four sections may be abated in addition to the criminal penalties imposed. A violation of 6.5 is punishable by criminal penalty without abatement. Both litigants agree, as do we, that the regulatory provisions must be read as a whole. People v. Babcock, 343 Mich. 671, 678-679, 73 N.W.2d 521 (1955). Having read the air pollution [80 MICHAPP 768] regulations in their entirety and having considered the entire regulation in terms of the objective sought to be attained, we are convinced that the legislative intent was to include as an offense those emissions which, while not measurable by precise standards (and thus not falling within the provisions of §§ 6.1-6.4), nevertheless are injurious or actually endanger the public health or harm property. Given the multitude of emissions of varying types and the rapidity with which technology develops innovative processes and utilizes new compounds it becomes impossible to define in advance what may constitute an impermissible emission. Thus it is both rational and necessary to include in any code one general all-encompassing section. We believe this was the legislative intent in the case of § 6.5. Having made this determination, the question remains whether the language employed in § 6.5 is too inclusive or too vague. But before deciding this question, 3 we first turn to the issue of nuisance.
The plaintiff claims that § 6.5 is merely a definition of a common-law criminal nuisance and thus cannot be impermissibly vague. We disagree because we believe the section purports to define conduct quite different and distinct from a common-law nuisance. Nuisance is not mentioned as such in 6.5a and there is no indication therein that it is directed at proscribing a common-law nuisance. Furthermore, subsection 6.5b states that nothing in subsection 6.5a should be construed as authorizing the maintenance of a nuisance. If 6.5a prohibited common-law nuisances, 6.5b would be [80 MICHAPP 769] unnecessary. The fact that 6.5b was included is persuasive that 6.5a was intended to describe conduct different than a nuisance.
This brings us to the crucial issue of vagueness. The law of this State and the United States on the question of statutory vagueness is summarized in the recent case of People v. Posner, 79 Mich.App. 63, 71, 261 N.W.2d 209, 213 (1977):
"It has been held that a statute which either forbids or requires the doing of an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939); People v. Herron, 68 Mich.App. 381, 242 N.W.2d 584 (1976).
The constitutional requirement of definiteness is followed in Michigan. People v. Austin, 301 Mich. 456, 3 N.W.2d 841 (1942); People v. Goulding, 275 Mich. 353, 266 N.W. 378 (1936); People v. Ellis, 204 Mich. 157, 169 N.W. 930 (1918). As found by the United States Supreme Court in Giaccio v. Pennsylvania, 382 U.S. 399, 402, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966):
" 'A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.' "
See also, People v. Purifoy, 34 Mich.App. 318, 320, 191 N.W.2d 63 (1971). Does § 6.5, when read together with the entire code of regulations, sufficiently inform potential defendants of what they may or may not do? The vague and cloudy words are "detrimental", "comfort", "to any person", and "manner". What is "detrimental" to the public? Is [80 MICHAPP 770] an odor or other emission "detrimental" when it offends some but not all people? Must there be a provable and ascertainable injury or damage to property or is it sufficient to only prove that the "comfort" of any person is endangered? When is comfort endangered? Health authorities tell us that cigarette smoking endangers health. Certainly it disturbs the comfort of many people. Is this an offense under the regulation? What disturbs the comfort of some people or what some persons believe "endangers" their comfort or health is not disturbing to others.
This statutory opaqueness grows even more cloudy when we look to the definition section, Article I, § 1.3 of the regulations:
From the underscored portions of the definitions cited above it clearly appears that a violation may occur where the emissions are not actually injurious to health or property but merely "tend to be" or "which interfere with the comfortable enjoyment of life or property or the conduct of business". But as we have stated before, what interferes with some people's...
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...York State Department of Environmental Conservation, 126 Misc.2d 355, 481 N.Y.S.2d 587; see also, People of the State of Michigan v. Olsonite Corporation, 80 Mich.App. 763, 265 N.W.2d 176). A statute is unconstitutionally vague on its face if it specifies no comprehensible standard or guide......
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...83 L.Ed. 888 (1939) ); Baggett v. Bullitt, 377 U.S. 360 (84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) ). See, also, People v. Olsonite Corp., 80 Mich.App. 763, 769-776, 265 N.W.2d 176 (1978), lv. den. 402 Mich. 845 (1978), and cases cited Section 4.1 of the Regulation provides that "any process, fu......