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City Ordinances and The Void For Vagueness Standard
City Ordinances and The Void For Vagueness Standard
City Ordinances and The Void For Vagueness Standard
The City ordinance in Enright required a fence to be built to separate industrial from
residential land. However, according to the case’s appellant, the ordinance failed to
direct in clear terms who exactly was responsible for building and maintaining the fence
– the residential owner or the industrial owner. Ultimately, the MN Court of Appeals
sided with the city – stating that the totality of the ordinance made it clear which
landowner needed to construct the fence.
Thankfully the court does not expect perfection from ordinance drafters. Instead an
ordinance that imposes criminal penalties (such as the misdemeanor fine in Enright)
must meet two standards:
The first prong is fairly well known among ordinance drafters. The notice of prohibited
conduct must be clear enough to be understood by “persons of common intelligence,” or
“ordinary people.” Plain language is therefore preferred. If words are susceptible to
more than one meaning, an added definition may be needed. Some ordinance drafters
will even add a visual image, where appropriate, to eliminate confusion. The goal in
meeting the first prong is to remove any guess work in understanding the ordinance.
The second prong is less discussed. How does one draft an ordinance to avoid arbitrary
or discriminatory enforcement? The Minnesota case of State v. Newstrom, 371 N.W.2d
525 (Minn.,1985) noted that this prong is met when:
“the statute [or ordinance] affords . . . guidance to enforcement officials limiting their
discretion in determining whether certain conduct is allowed or prohibited.”
An ordinance should not “imply a judgment without indicating who is to make the
judgment or what criteria are to be used.” (Newstrom). Restraints must appear on the
face of the ordinance and not be implied.
The case of State v. Reha, 483 N.W.2d 688 (Minn.,1992) also helps shed some light on
this second prong. In Reha, the court notes that unless the ordinance implies a First
Amendment right, the court will only review “actual” conduct of city officers in
enforcing an ordinance. The danger of “speculative” enforcement conduct under the
ordinance will not render the ordinance void for vagueness under the second prong. As a
result, when the city was able to demonstrate that all normal practices were followed in
enforcing the ordinance, the city’s actions were upheld.
Rachel Carlson is an attorney with the League of Minnesota Cities. The League of
Minnesota Cities is a membership organization serving Minnesota cities since 1913.
LMC Codification is a specialized service to help our cities maintain complete, up to
date and affordable code books in a frequently changing legal landscape. The LMC
Codification blog can be found at: http://lmccodification.blogspot.com.