City Ordinances and the US Constitution’s Void for Vagueness Standard

By Rachel Carlson, LMC Staff Attorney, http://lmccodification.blogspot.com

Good fences make good neighbors.

-Robert Frost

A recent unpublished MN Court of Appeals case State v. Enright (No. A09-795)(March

30, 2010) serves as a reminder of the court’s long-standing dislike of vague ordinances.

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.

Courts dislike vague ordinances for constitutional reasons. The US Constitution’s

Fourteenth Amendment requires due process of law before a person is deprived of life,
liberty or property. Underlying this is a fundamental notion of fairness – a person
should be given a fair chance to understand the law, before they face a penalty as a result
of breaching it.

Avoiding vague language in ordinance drafting can be a tricky proposition – the

language used must be specific enough to give fair warning of the conduct prohibited,
but general enough to cover various and different fact situations. Even the most careful
word choice can still create problems. Words by their nature can have many different
and entirely subjective meanings – they fail to approach the precision of math. (As the
US Supreme Court itself noted in Grayned v. City of Rockford, 408 U.S. 104, (1972))

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:

1) It must provide specific notice of conduct prohibited by the ordinance; and

2) It must not be so vaguely drafted as to authorize or encourage arbitrary and
discriminatory enforcement.

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.

Conclusion: Practitioner’s Tip

A vagueness challenge to an ordinance can occur with any type of ordinance.
Traditionally, however, ordinances regulating barking dogs and noise, property
maintenance and zoning are frequently challenged on this basis. It may be worthwhile
to review these ordinances in light of Enright and its related cases.

About the Author:

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.