RENTAL PROPERTY OWNERS ASSOCIATION OF KENT COUNTY v. CITY OF GRAND RAPIDS
Docket No. 102642
Supreme Court of Michigan
Decided July 15, 1997
455 Mich. 246
Rental Property Owners Association of Kent County brought an action in the Kent Circuit Court against the City of Grand Rapids challenging the validity of Grand Rapids Ordinance No. 93-39, which provides that rental properties found to be sites of illegal drug use or prostitution may be declared a public nuisance by the city commission and padlocked. The court, Michael R. Smolenski, J., denied the plaintiff‘s motion for summary disposition, holding that the ordinance is specific in defining the scope of review and that the standard of review is appropriate and legally sufficient to protect the rights of aggrieved parties. The Court of Appeals, NEFF, P.J., and SAWYER and MURPHY, JJ., reversed, concluding that the padlocking of property requires the exercise of a court‘s equitable powers and must be achieved in a court of appropriate jurisdiction, not before a legislative body such as the city commission, and that its restriction of the jurisdiction of the circuit court is violative of
In an opinion by Justice WEAVER, joined by Justices BRICKLEY, BOYLE, and RILEY, the Supreme Court held:
The Michigan nuisance abatement statute,
1. As a home rule city, Grand Rapids has the authority to enact and enforce ordinances, subject to the constitution and law. Nuisance abatement, as a means to promote public health, safety, and welfare, is a valid goal of municipal police power. Because illegal drug use and prostitution threaten this goal, the enactment of the nuisance abatement ordinance was a valid exercise of the Grand Rapids police power.
2. The Michigan nuisance abatement statute neither expressly nor impliedly preempts municipal nuisance abatement ordinances. Nor does it require uniformity of abatement procedures. Rather, it
3. Padlocking is not forfeiture; it involves no loss of title. Nor is it a novel exercise of municipal police power. Further, the padlock ordinance does not violate the doctrine of separation of powers. Municipal government in Michigan typically has not been divided among three branches of government, and the home rule cities act explicitly permits the blending of legislative and executive functions. Nor does the ordinance unlawfully limit the jurisdiction of the circuit court. The legislative body of a city is specifically authorized to act in a quasi-judicial fashion. Finally, the ordinance meets due process requirements of notice and hearing.
Reversed.
Justice CAVANAGH, dissenting, stated that Grand Rapids Ordinance No. 93-39 is impliedly preempted and therefore invalid.
The Michigan nuisance abatement statute,
Even if the social ills the City of Grand Rapids sought to interdict were matters of uniquely local concern, and therefore within the city‘s administrative purview, the attempt to confer on itself the
Chief Justice MALLETT, dissenting, stated that in vesting the authority to adjudicate violations of the Grand Rapids padlock ordinance in the city commission, not the courts, the ordinance attempts to give the city commission authority beyond that permitted by
The Grand Rapids padlock ordinance cannot properly be characterized as conferring only permitted quasi-judicial powers on the city commission. Traditional notions of due process require a proper adjudication before an impartial tribunal that is designed to protect the rights of the individual, i.e., the exercise of judicial power. While cities have broad authority, and nuisance abatement is a valid goal of municipal governments, a municipality cannot usurp the role of the judiciary in adjudicating ordinance violations.
Justice KELLY took no part in the decision of this case.
209 Mich App 391; 531 NW2d 731 (1995) reversed.
Murray, Pawlowski & Flakne, L.L.P. (by George E. Pawlowski), for the plaintiff.
Philip A. Balkema, City Attorney, and Michael D. McGuire and Margaret P. Bloemers, Assistant City Attorneys, for the defendant.
Amicus Curiae:
Varnum, Riddering, Schmidt & Howlett, L.L.P. (by Peter Armstrong and George B. Davis), for Michigan Municipal League.
WEAVER, J. This case presents a facial constitutional challenge to a nuisance abatement ordinance (padlock ordinance) adopted by the Grand Rapids City Commission. Ordinance No. 93-39. The ordinance
For the reasons set forth below, we hold that the ordinance is constitutional on its face. Further, we find that the state nuisance abatement statute,
I
On September 7, 1993, the Grand Rapids City Commission adopted Ordinance No. 93-39.1 The ordinance provides that rental properties found to be sites of illegal drug use or prostitution can be declared a public nuisance by the city commission, and, pursuant to such declaration, the city commission can order the property to be vacated and padlocked for a period of up to one year.2 Relevant to this appeal, the ordinance contains the following provisions:
Section 9.702 sets forth the city commission‘s legislative findings that the repeated use, sale, furnishing, giving or possession of controlled substances or drug paraphernalia, or the use of property for purposes of prostitution or solicitation for prostitution may result in declaration of a public nuisance. According to the
In § 9.703 the commission states that it may declare by resolution that property used in the proscribed activities is a public nuisance and may order that the nuisance be abated as provided in the ordinance.
Section 9.704 sets forth the procedure for declaration of a public nuisance, including that notice be given to the owner of the property, who then has the opportunity to be heard at a public evidentiary hearing before the city commission, sitting as an administrative body as provided for in title V, § 1 of the city charter, and acting in a quasi-judicial capacity. The commission is authorized to make the determination whether a public nuisance exists under the standards established by the ordinance.
Section 9.705 provides that if the commission determines by a preponderance of the evidence that a property is a public nuisance, it may by resolution order abatement of the nuisance, which includes padlocking the property for a period of up to one year.
Section 9.709 provides that an aggrieved property owner may appeal to the circuit court, which shall review the city commission‘s decision and determine whether that decision is in violation of the law, has been procured by fraud, or is an abuse of discretion; additionally, the circuit court will review the commission‘s decision to determine if it is supported by competent, substantial, and material evidence on the
Defendant City of Grand Rapids asserts that in passing this ordinance it was addressing an issue of immediacy and great significance to the city. Defendant states that it was confronted with intolerable deterioration and destruction of some of its inner city neighborhoods.
Shortly after the adoption of Ordinance No. 93-39, plaintiff Rental Property Owners Association of Kent County (RPOA) commenced this action in the Kent Circuit Court, challenging the ordinance on several constitutional grounds. Plaintiff alleged inter alia that the ordinance is unconstitutional under
Plaintiff filed a motion for summary disposition pursuant to
In a unanimous opinion, the Court of Appeals reversed the circuit court, concluding “that the ordinance suffers from numerous constitutional flaws.” 209 Mich App 391, 393; 531 NW2d 731 (1995). Specifically, the Court of Appeals held “that the padlocking of property requires the exercise of a court‘s equitable powers and, therefore, must be achieved by an action in a court of appropriate jurisdiction, not before a legislative body such as the city commis-
II
The enactment and enforcement of ordinances related to municipal concerns is a valid exercise of municipal police powers as long as the ordinance does not conflict with the constitution or general laws. Austin v Older, 283 Mich 667, 674; 278 NW 727 (1938). Further, ordinances exercising police powers are presumed to be constitutional, Fass v Highland Park (On Rehearing), 321 Mich 156, 161; 32 NW2d 375 (1948), and the burden is on the challenger to prove otherwise. Cady v Detroit, 289 Mich 499; 286 NW 805 (1939).
A
HOME RULE CITIES
Grand Rapids is a home rule city. Home rule cities have broad powers to enact ordinances for the benefit of municipal concerns under the Michigan Constitution.
Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this
constitution shall limit or restrict the general grant of authority conferred by this section.
The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor.
The authority of home rule cities to enact and enforce ordinances is further defined by the home rule cities act,
For the exercise of all municipal powers in the management and control of municipal property and in the administration of the municipal government, whether such powers be expressly enumerated or not, for any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants and through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns subject to the constitution and general laws of this state. [
MCL 117.4j(3) ;MSA 5.2083(3) .]
The home rule cities act is intended to give cities a large measure of home rule. It grants general rights and powers subject to enumerated restrictions. Detroit v Walker, 445 Mich 682, 690; 520 NW2d 135 (1994); Conroy v Battle Creek, 314 Mich 210; 22 NW2d 275 (1946).
B
NUISANCE ABATEMENT
It is well established that nuisance abatement, as a means to promote public health, safety, and welfare, is a valid goal of municipal police power. Cady,
[f]or the public peace and health and for the safety of persons and property [and] [p]ublic peace, health, and safety services may include the . . . prevention of drug abuse . . . . [
MCL 117.3(j) ;MSA 5.2073(j) .]3
The City of Grand Rapids enacted Ordinance No. 93-39 to address deterioration of inner city neighborhoods resulting from proliferation of properties being used for illegal drugs and prostitution. The ordinance declares properties used repeatedly for the
use, sale, furnishing, giving or possession of controlled substances or drug paraphernalia . . . or . . . violation of the controlled substances or drug paraphernalia laws or for purposes of prostitution or soliciting for prostitution . . .
to be public nuisances. Section 9.702. The ordinance states further that such a nuisance results from
increased criminal activity that occurs in the neighborhood surrounding the property, increased pedestrian and/or vehicular traffic in the neighborhood surrounding the property, the fear engendered in the minds of neighbors and the peace and quiet of residents living in the neighborhood surrounding the property being disturbed.
C
PREEMPTION
The dissent of Justice CAVANAGH would hold that the ordinance is preempted by Michigan‘s nuisance abatement statute and, therefore, does not address the constitutional questions presented. The dissent relies exclusively on unsubstantiated assumptions regarding the pervasiveness of the state nuisance abatement statute and the “very significant interest in statewide uniformity” in the regulation of properties used for illegal drugs and prostitution. Post, p 278. The dissent does this despite the constitutional mandate that the authority of municipalities to enact and enforce ordinances is to be liberally construed.
A municipality‘s power to adopt ordinances related to municipal concerns is “subject to the constitution
In People v Llewellyn, 401 Mich 314, 323-324; 257 NW2d 902 (1977), this Court set forth guidelines for determining whether a statute has preempted municipal ordinances by completely occupying the field of regulation:
First, where the state law expressly provides that the state‘s authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is pre-empted. Noey v Saginaw, 271 Mich 595; 261 NW 88 (1935).
Second, pre-emption of a field of regulation may be implied upon an examination of legislative history. Walsh v River Rouge, 385 Mich 623; 189 NW2d 318 (1971).
Third, the pervasiveness of the state regulatory scheme may support a finding of pre-emption. Grand Haven v Grocer‘s Cooperative Dairy Co, 330 Mich 694, 702; 48 NW2d 362 (1951); In re Lane, 58 Cal 2d 99; 22 Cal Rptr 857; 372 P2d 897 (1962); Montgomery County Council v Montgomery Ass‘n, Inc, 274 Md 52; 325 A2d 112, 333 A2d 596 (1975). While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer pre-emption, it is a factor which should be considered as evidence of preemption.
Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state‘s purpose or interest.
However, the dissent does not point to any state interest in having uniform nuisance abatement laws.7 Rather, to support its argument for the need for uniformity, the dissent cites § 52(b) of the Grand Rapids City Charter.8 Despite the assertion to the contrary, the language of this charter provision in no way demonstrates a state interest in uniformity. And although this section of the charter follows nearly verbatim the language of
We do not believe that uniformity of nuisance abatement procedures is necessary to further the state‘s interest, because the Grand Rapids padlock ordinance does not inhibit the state‘s ability to abate nuisances. The state statute,
The nuisance abatement statute is distinguishable from statutes that this Court has found express or imply the need for uniform regulation. For example, this Court has found that the control of alcoholic bev-
The dissent also argues that the pervasiveness of the scope of the nuisance statute weighs in favor of preemption. The dissent, however, does not discuss the assertion, and we do not believe that it is supported by the language of the statute.12 The statute
Because there is no evidence that the nuisance abatement statute occupies the field that the ordinance addresses, the dissent must show that the ordinance directly conflicts with the state statute. However, at its core, its preemption analysis rests on the unsupported assertion that the mere existence of a statute preempts local regulation of the same subject matter. The enactment and enforcement of similar nuisance abatement goals and remedies13 at the local level is not precluded by the preemption doctrine. Parallel subject matter simply does not require a finding of preemption.
In both Detroit v Qualls, 434 Mich 340, 362; 454 NW2d 374 (1990), and Miller v Fabius Twp Bd, 366 Mich 250, 256-257; 114 NW2d 205 (1962), we quoted the following passage approvingly from 56 Am Jur 2d, Municipal Corporations, § 374, pp 408-409:
Any person or his or her servant, agent, or employee who owns, leases, conducts, or maintains any building, vehicle, or place used for any of the purposes or acts set forth in this section is guilty of a nuisance. [
MCL 600.3801 ;MSA 27A.3801 .]
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The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal ordinance are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory, and the only difference between them is that the ordinance goes further in its prohibition but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective. Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not deemed inconsistent because of mere lack of uniformity in detail. [Emphasis added.]
In this case, the Grand Rapids padlock ordinance does not permit anything that the public nuisance statute prohibits, nor does it prohibit anything that the statute permits. Thus, we find that the ordinance
Because there is no evidence that the nuisance abatement statute intended to occupy the field of nuisance abatement and because the ordinance does not directly conflict with the statute, we hold that the ordinance is not preempted.
D
PADLOCKING
While abatement of properties used for controlled substances or prostitution is a valid goal of the municipal police power, the means by which abatement is accomplished must be reasonable. Cady, supra, p 513. The plaintiffs argue that the padlocking of a property for up to one year is tantamount to forfeiture. However, we find the analogy to forfeiture unpersuasive.
The forfeiture act requires that a court of competent jurisdiction determine when title to real property is forfeited.14 In apparent reliance on this rule, the Court of Appeals held that padlocking property “requires the exercise of a court‘s equitable powers and, therefore, must be achieved by an action in a court of appropriate jurisdiction, not before a legislative body such as the city commission.” 209 Mich App, supra, pp 394-395. The premise of the holding
It is neither unfair nor unjust for the city to impose the burden of abating these nuisances upon the individual owners rather than upon the public as a whole. Neighborhoods don‘t blight overnight.
The abatement of nuisances by padlocking is not a novel exercise of municipal police power. In Lenario v Ward, 129 Misc 2d 326; 492 NYS2d 985 (1985), a New York City ordinance allowing the abatement and padlocking for up to one year of properties used for illegal gaming operations was upheld under the city‘s police power. Nor is the abatement of nuisances by padlocking the most invasive measure that a local government can take under its police powers.
For example, in Adams Outdoor Advertising v East Lansing, 439 Mich 209; 483 NW2d 38 (1992), this Court upheld a municipal ordinance that permitted the City of East Lansing to force billboard owners to bring their billboards into compliance with a newly enacted ordinance. If an existing billboard did not come into compliance within a defined period, the city commission could forcibly terminate the nonconforming billboards. In Goldblatt v Town of Hempstead, 369 US 590; 82 S Ct 987; 8 L Ed 2d 130 (1962), the United States Supreme Court upheld a town‘s ordinance that had the effect of permanently closing
The regulations in Adams Outdoor Advertising, Goldblatt, and American Mini Theatres implicated constitutionally protected interests: property and speech. As emphasized by Chief Justice MALLETT in his dissent, the padlock ordinance does affect a person‘s “right to live in one‘s home.” Post, p 283. However, there is no constitutional right to violate the law in one‘s home. Thus, we cannot agree with Chief Justice MALLETT that because this padlock ordinance permits a city commission, rather than a court, to declare a property a nuisance, that it threatens the “fabric of the Michigan or United States Constitution.” Id., p 284.
Finally, as stated by Justice Stevens in American Mini Theatres, supra at 71, cities “must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” The padlocking of properties sends a strong message that repeated controlled substance violations or repeated use of a property for prostitution will not be tolerated while not depriving the property owner of title.
In this case, the Court of Appeals struck down the ordinance on two primary grounds: first, it held that the ordinance violates the doctrine of separation of powers, and, second, it held that the ordinance unlawfully limits the jurisdiction of the circuit court. For the reasons below, we disagree and find that the ordinance is constitutional on its face.
A
SEPARATION OF POWERS
The Court of Appeals held that the padlock ordinance violated the separation of powers doctrine. We believe that the Court erred in applying this doctrine to home rule cities.
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.15
In Detroit Osteopathic Hosp v Southfield, 377 Mich 128; 139 NW2d 728 (1966), we declined to answer whether
The context of
Furthermore, the history of municipal government in this state suggests that the provision does not apply to localities. Municipal government in Michigan typically has not been divided among three branches of government.16 Under the city manager form of government, popular among smaller cities, the executive, the city manager, serves at the will of the legislature, the city commission. The home rule cities act explicitly allows this blending of legislative and executive functions, stating, “The city charter may provide for the selection of the mayor by the legislative body.”
The provisions of the home rule cities act that allow the blending of legislative and other functions existed at the time
B
CIRCUIT COURT JURISDICTION
The Court of Appeals held that the ordinance sought to restrict the jurisdiction of the circuit court in violation of
The circuit court shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court.
The ordinance provision at issue states:
The Circuit Court shall review the City Commission‘s decision to determine whether the City Commission‘s decision is in violation of the law, has been procured by fraud, if an abuse of discretion exists, and whether the decision is supported by competent, substantial and material evidence on the record as a whole. The Circuit Court‘s review shall be made upon the record made before the City Commission. It is the responsibility of the appealing party to demonstrate error. [Section 9.709(b).]
We agree that municipalities cannot limit a state court‘s jurisdiction. However, we find the Court of Appeals reliance on
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
This provision provides the minimum standard of review for appeals from quasi-judicial final decisions, findings, rulings, and orders that affect private rights. Carleton Sportsman‘s Club v Exeter Twp, 217 Mich App 195; 550 NW2d 867 (1996); Lorland Civic Ass‘n v DiMatteo, 10 Mich App 129, 135-136; 157 NW2d 1 (1968).
There is no express provision in the home rule cities act defining a city commission‘s powers with respect to nuisance abatement. However, as we have discussed, the constitution and the home rule cities act afford home rule cities broad power to act on behalf of municipal concerns. See
IV
DUE PROCESS
Plaintiff argues, finally, that the ordinance is defective because it does not afford adequate procedural due process. The Court of Appeals did not reach this issue.
It is fundamental to both the state and federal constitutions that no person shall be deprived of property without due process of law. “Generally, special or summary proceedings for abatement of nuisances are valid where they afford the essential elements of due process of law, namely, notice and an opportunity to be heard.” People v McKendrick, supra, p 139, citing Yates v Milwaukee, 77 US 497; 19 L Ed 984 (1870). This Court in Bundo, supra, addressed the procedural due process required in local legislative body decisions. Bundo held that a liquor licensee has a “property right” in a renewal of the license, and, where a local legislative body decides to recommend non-renewal, the licensee must be afforded rudimentary due process including notice and a hearing. We find that the padlock ordinance provides such notice and opportunity to be heard.
Further, we reject plaintiff‘s argument that the city commission could not render an impartial decision. It is not in the interest of any city to padlock rental properties, nor can the city expect pecuniary gains from enforcement of the ordinance. Finally, decisions of the city commission declaring a property a nuisance and ordering the property padlocked are reviewable by the circuit court, favoring the conclusion that the ordinance does not violate procedural due process. On its face, we hold that the ordinance meets the due process requirements of notice and a hearing.
V
CONCLUSION
We reverse the decision of the Court of Appeals and hold that the ordinance is, on its face, constitutional and a valid exercise of municipal police power.
BRICKLEY, BOYLE, and RILEY, JJ., concurred with WEAVER, J.
CAVANAGH, J. (dissenting). I cannot agree with the majority‘s conclusion that the Grand Rapids padlock ordinance is a valid exercise of municipal authority. Therefore, I dissent.
I
In a remarkable cloud of dust, this Court has again ventured into the long-established area of municipal law and trampled basic principles designed to define fundamental government functions. Asserting superior knowledge of the unique harm prostitution and drugs visit on the City of Grand Rapids, this Court reaches out, with absolutely no apposite authority, and reverses a unanimous Court of Appeals decision.1 That panel properly recognized that the home rule act, however liberally interpreted, does not confer upon a municipality the powers of an equity court or the power to dictate what jurisdiction a circuit court may possess. The majority completely fails to comprehend the separation of powers determination made by the Court of Appeals. That Court did not determine that the separation of powers principle must apply to local governments. It simply stated the obvious—that the principle does apply at the state level and that our constitution vests judicial power exclusively in our state courts.
The majority, in treating the due process issue in four understandably terse paragraphs, labors through several casuistic steps to save the ordinance. After
After today‘s ruling by this Court, I can‘t imagine why cities throughout Michigan would not jump at the chance to have all ordinance violations “tried” by their city council, which enacts the ordinance, which has its building or police or fire departments enforce and prosecute under the ordinance, and, to complete the circle, which then determines if there has been a violation. Perhaps, this Court, in an effort to compensate for its decision in Paragon v City of Novi, 452 Mich 568; 550 NW2d 772 (1996), which gave zoning boards of appeal superior zoning authority over their creating city councils, now wishes to bless city councils across this state with unprecedented authority.
II
Although as a prudential matter we generally do not decide cases on grounds not argued by the parties, we have the inherent authority to do so. Because the record presented in this case is fully adequate for the ruling I contemplate—specifically, because it con-
The Michigan nuisance abatement statute,
The Michigan nuisance abatement statute provides as follows:
Any building . . . or place used for the purpose of lewdness, assignation or prostitution . . . or used for the unlawful manufacture, transporting, sale, keeping for sale, bartering, or furnishing of any controlled substance . . . is declared a nuisance . . . . Any person or his or her servant, agent, or employee who owns, leases, conducts, or maintains any building, vehicle, or place used for any of the purposes or acts set forth in this section is guilty of a nuisance. [
MCL 600.3801 ;MSA 27A.3801 .]
Section 3805 authorizes the Attorney General, the prosecuting attorney of a county, or any citizen of the county to “maintain an action for equitable relief . . . to abate said nuisance and to perpetually enjoin [a use] for any of the purposes or by any of the persons set forth in section 3801, or for any of the acts enumerated in said section.” (Emphasis added.) Section 3815 sets forth the admissible evidence and standard of proof relevant to the determination whether a nuisance exists. Subsection 3825(1) pro-vides that once the existence of a nuisance has been
The factors to be considered in a preemption analysis are as follows:
A municipality is precluded from enacting an ordinance if 1) the ordinance is in direct conflict with the state statutory scheme, or 2) if the state statutory scheme pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation.
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First, where the state law expressly provides that the state‘s authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is pre-empted.
Second, pre-emption of a field of regulation may be implied upon an examination of legislative history.
Third, the pervasiveness of the state regulatory scheme may support a finding of pre-emption. While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer pre-emption, it is a factor which should be considered as evidence of pre-emption.
Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state‘s purpose or interest.
As to this last point, examination of relevant Michigan cases indicates that where the nature of the regulated subject matter calls for regulation adapted to local conditions, and the local regulation does not interfere with the state regulatory scheme, supplementary local regulation has generally been upheld.
However, where the Court has found that the nature of the subject matter regulated called for a uniform state regulatory scheme, supplementary local regulation has been held pre-empted. [People v Llewellyn, 401 Mich 314, 322-325; 257 NW2d 902 (1977) (citations omitted).]
In my opinion, the third and fourth factors weigh heavily in favor of a conclusion that the Grand Rapids ordinance is preempted by the nuisance abatement statute, which, along with
The consideration of uniformity is of paramount importance, and this consideration is implicated by the fact that violations of the Grand Rapids ordinance, like violations of the state nuisance abatement statute, can only be determined, and penalties enforced, by a court. Grand Rapids City Charter, title V, § 52(b).3 Since the City of Grand Rapids does not have a municipal court, the only available forum is a state court, and the state has an obvious interest in having uniform rules of procedure and evidentiary standards in its courts.
Furthermore, all the concerns expressed by the City of Grand Rapids in enacting its ordinance are addressed and provided for in the state nuisance abatement statute. And there is no reason for us to assume that the blight visited on Grand Rapids by the criminal activities at issue here is more consequential than that suffered by any other affected community in this state. In sum, the pervasiveness of the state statutory scheme and the very significant interest in state-wide uniformity weigh heavily in favor of a finding of implied preemption in this case. In fact, to the extent
III
Defendant claims that the Court of Appeals erred by characterizing the Grand Rapids City Commission as merely a legislative body, arguing instead that it is both legislative and administrative, and that, under the administrative rubric, it properly may exercise quasi-judicial power to declare the existence of a nuisance. It is true that we previously have recognized the dual nature—both legislative and administrative—of the Grand Rapids City Commission. See Babcock v Grand Rapids, 308 Mich 412, 413; 14 NW2d 48 (1944). However, because this case does not require it, I do not essay an exhaustive discussion of the quasi-judicial powers available to administrative bodies. And neither do I address the differences—significant or otherwise—between administrative bodies such as municipal commissions and state administrative agencies.4 It suffices to note that even if the social ills the City of Grand Rapids sought to interdict were matters of uniquely local concern, and therefore within the city‘s administrative purview, the attempt to confer on itself the power to determine the existence of a
Writing for a unanimous Court in Everett v City of Marquette, 53 Mich 450, 452; 19 NW 140 (1884), Chief Justice COOLEY enunciated a principle and a rule of law that continue in full effect in our jurisprudence: “Maintaining a nuisance is a public offense; and the fact, as in other cases of alleged criminality, is to be tried on proper accusation and in the regular courts.” (Emphasis added.)
IV
My resolution of this case makes it unnecessary to further address plaintiff‘s due process challenge to Ordinance No. 93-39, or plaintiff‘s claim that the abatement remedy provided for in the ordinance is de facto a forfeiture. I also decline to address plaintiff‘s arguments relative to the ordinance‘s attempt to define the scope and standard of circuit court jurisdiction, except to note again that I am unaware of any source of authority, certainly none is cited by the majority, empowering a municipality to in any way address the jurisdictional or substantive aspects of the circuit court‘s power.
V
For the foregoing reasons, I would affirm the judgment of the Court of Appeals, and would remand this matter to the circuit court for entry of a permanent injunction against the enforcement of Grand Rapids Ordinance No. 93-39.
MALLETT, C.J. (dissenting). Although I agree with Justice CAVANAGH that the decision of the Court of
I believe that the decision of the Court of Appeals should be affirmed, however, because § 9.704(3) of the Grand Rapids padlock ordinance vests the authority to adjudicate violations of the ordinance in the city commission, not the courts. It states:
The City Commission, sitting as an administrative body and acting in a quasi-judicial capacity, shall make a determination as to whether a public nuisance exists under the standards established by this Chapter.
This portion of the padlock ordinance attempts to give the city commission authority beyond what is permitted by
An axiom of municipal law is that municipalities are agents of the state, created for the administration of local government. Streat v Vermilya, 268 Mich 1, 6; 255 NW 604 (1934). Municipalities have no inherent power; rather, they may only exercise powers that the state confers upon them. Bivens v Grand Rapids, 443 Mich 391, 397; 505 NW2d 239 (1993). While the home rule act grants broad authority to municipalities, this authority is not unlimited.
The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house. [Emphasis added.]
Thus, because cities only have the powers that the state grants them, and because the state constitution vests the judicial power exclusively in the courts, municipalities may not exercise judicial power. Professor LeDuc has discussed this concept in relation to legislatively created administrative agencies:
[J]ust as the legislature cannot give away its authority to legislate, it cannot convey true judicial power on administrative agencies. Thus, the legislature can confer only those powers which are administrative in nature and cannot give the powers of a true court to an agency. In addition, an agency cannot rely upon any concept of inherent authority to give itself judicial power. [LeDuc, Michigan Administrative Law, § 2.22, p 26.]
In this case, the City of Grand Rapids has attempted to characterize § 9.704(3) as an exercise of “quasi-judicial” powers. It is true that cities, like other administrative agencies, very often exercise quasi-judicial powers. See, e.g., Prawdzik v Grand Rapids, 313 Mich 376, 390-391; 21 NW2d 168 (1946) (concerning the revocation of a restaurant‘s license); In re Payne, 444 Mich 679, 708, 720; 514 NW2d 121 (1994) (concerning the termination of a civil service employee); zoning enabling act,
Because of the nature of the interest at stake in this case, however, the padlock ordinance cannot properly be characterized as conferring only “quasi-judicial” powers on the city commission. This is not a case about cutting weeds, revoking a business’ license, or rezoning a parcel of land. Rather, this ordinance has the potential to deprive individuals of access to their homes for up to a year. In this way, the ordinance affects one of the most fundamental rights in Anglo-American jurisprudence—the right to live in one‘s home. If an individual is going to be deprived of this right, traditional notions of due process require a proper adjudication before an impartial tribunal that is designed to protect the rights of the individual. That is, it requires an exercise of judicial power. A city commission is simply not equipped to serve as a substitute for a court.
I wish to make clear that I agree with the majority that cities have broad authority under the home rule cities act and that nuisance abatement is a valid goal of municipal government. In fact, I see no reason why a municipality cannot establish a padlock ordinance that is similar to the state nuisance abatement statute.
Clearly, the City of Grand Rapids, like many other Michigan cities, faces serious problems because of drugs and prostitution, and, as Justice Stevens stated in Young v American Mini Theatres, Inc, 427 US 50, 71; 96 S Ct 2440; 49 L Ed 2d 310 (1976), cities “must
Notes
(A) Procedure to Abate Public Nuisance. Actions to abate public nuisances are governed by the general rules of procedure and evidence applicable to nonjury actions, except as provided by the statutes covering public nuisances and by this rule.
Furthermore, the majority‘s reference to the home rule cities act is irrelevant in this context. The Grand Rapids City Charter was adopted pursuant to
To provide for the punishment of those who violate the ordinances, but no punishment shall exceed a fine of $500 or imprisonment for 90 days in the county jail or house of correction, or in any work house authorized by law to receive prisoners from the City, or by both such fine and imprisonment in the discretion of the Court.
For the punishment of persons who violate city ordinances. However, the penalty for a violation of a city ordinance shall not exceed a fine of $500.00, or imprisonment for 90 days, or both. [MCL 117.4i(k) ;MSA 5.2082(k) .]
Any building, vehicle, boat, aircraft, or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, or used for the unlawful manufacture, transporting, sale, keeping for sale, bartering, or furnishing of any controlled substance as defined in section 7104 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.7104 of the Michigan Compiled Laws, or of any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors or any mixed liquors or beverages, any part of which is intoxicating, is declared a nuisance, and the furniture, fixtures, and contents of the building, vehicle, boat, aircraft, or place and all intoxicating liquors therein are also declared a nuisance, and all controlled substances and nuisances shall be enjoined and abated as provided in this act and as provided in the court rules.
Title to real property forfeited under this article or pursuant to section 17766a shall be determined by a court of competent jurisdiction. A forfeiture of real property encumbered by a bona fide security interest is subject to the interest of the secured party who neither had knowledge of nor consented to the act or omission. [MCL 333.7523(3) ;MSA 14.15(7523)(3) (emphasis added).]
The neat concept of separation of powers among the three branches of government is often found wanting when one analyzes Michigan municipalities. The legislature has established a structure that in certain instances provides no clear-cut executive branch, or one too weak to have any practical value. Thus the day-to-day functioning of municipal governing bodies defies the traditional rule of separation of powers; one observes such bodies regularly mixing legislative policy-making with executive or administrative functions. [1 Steingold & Etter, Michigan Municipal Law, § 5.09, p 5-8. See also LeDuc, Michigan administrative law, 13 Cooley L R 341, 349 (1996) (criticizing the Court of Appeals application of the separation of powers doctrine to municipalities).]