*1 59th Dist Ch v 323 59TH CHURCH v DISTRICT JUDGE PENTECOSTAL UNITED STEENDAM) (UNITED CHURCH PENTECOSTAL Regulation Municipal Corporations Power — of Noise. 1. —Police objective protection legitimate municipality has a of its A health, may affect their mor- from those noises citizens als, safety. Municipal Corporations Power. 2. —Police comprehends municipality duty, police power within of a limitation, protect well-being tranquil- community. lity of a Vague- Process — 3. Constitutional Ordinance —Due Law —Penal ness. guilt; penal have an ascertainable standard of A ordinance must explicit sufficiently an ordinance must be the terms of such subject to it as to what conduct on their are inform those who guide penalties judges part to its and to will render them liable juries administration of the ordinance without in the fair conjecture. speculation and resort to Vagueness— 4. Constitutional Process — Law —Statutes—Due Amendment. First statutory vagueness permissible more becomes The standard of regulated safeguarded by activity is where the to be strict I). (US Const, Am First Amendment Vagueness—Ordinances. 5. Constitutional Law —Due Process — person any city makes it unlawful for A ordinance which loud, make, any made or continued continue or cause annoys, unnecessary noise which either or unusual noise or health, comfort, disturbs, repose, injures endangers or safety sufficient ascertaina- of others fails to establish ^[1] ^[2] [3-5] 56 Am Jur 56 Am Jur Political Subdivisions Political Subdivisions 16 Am Jur References 2d, 2d, 2d, Constitutional Law Municipal Municipal § 470. 207. for Points in Headnotes Corporations, Corporations, §§ 542, 544, Counties, Counties, 550, 552, and Other and Other App 323 Mich Opinion of the Court unconstitutionally vague and is ble standards of conduct since "annoy” require "unnecessary” men of the terms common (US Const, meaning I, intelligence guess at their Am Musk- *2 8-306). ordinance, egon Larnard, Muskegon, Charles A. Appeal from J. 4, 1973, at Division October Grand Submitted 16509.) (Docket 17, Decided Rapids. January No. denied, appeal 1974. Leave to 391 Mich 821. Complaint United Pentecostal Church by and against Mr. Donald Thomas Harold Reverend J. Steendam, Judge, 59th District and the City of Muskegon seeking injunction super- writ of to restrain intending control district court against plaintiffs cases hearing criminal for from violations. city Summary judg- noise ordinance appeal. for Plaintiffs Reversed. ment defendant. Needham, for plaintiffs. Starr & Street, Stevens, Schuler, Johnson, Hipkiss, Pia- Potter), Foster D. secki & Knowlton (by for defend- ants. Holbrook, J.,P.

Before: Bashara O’Hara,* JJ.

Bashara, Plaintiff, J. United Pentecostal Church, religious organization is a located Muskegon, neighborhood City residential of the 1971, Michigan. Early city the summer of complaints against issued and warrants criminal plaintiffs allegations as a result of several surrounding property. the residents the church The residents were disturbed loud apparently the church prayers emanating music from * Justice, Appeals by Supreme sitting Former Court on the Court of 6, assignment pursuant 1963, to Const 23 as amended in art § Ch v 59th Dist Opinion op the Court services, evening during its especially as to come from appeared amplification noises sound equipment. charged with

Plaintiffs were violation of 8-306 of the of the Code of Ordinances City Muskegon provides as follows: any person make, "It shall be unlawful for con- loud, tinue or unnecessary made or any cause continued or unusual noise or noise which either disturbs, annoys, injures endangers comfort, or health, others, repose, safety within the City.” limits of the sought parte

Plaintiffs thereafter an ex injunc- tion and of superintending writ control1 from the Muskegon Circuit Court County asking that district court be restrained from hearing the crimi- *3 against plaintiffs. nal cases grounds The for these requested orders were that the ordinance was unconstitutionally vague and overbroad2 use of unusual”, the "unnecessary "loud”, words and to "annoys” prohibited describe noises. The circuit plaintiffs’ court denied requested relief and granted summary judgment3 in favor of defendant of City Muskegon. Plaintiffs appeal, challenging the constitutionality of 8-306.

A municipality of this state legitimate has a objective protection the of its citizens from health, morals, those noises which may affect their It safety. has also been stated that police "the power of a municipality comprehends the duty, limitation, within protect to the well-being and of tranquillity community”. a 56 2d, Am Etc, Jur Municipal Corporations, §470, p discussion of ^[2] 3 1 GCR GCR See People v Purifoy, 1963, 117.2(1). 1963, vagueness 711.1. and overbreadth. 34 Mich App 318; 191 NW2d 63 (1971), for a App 326 323 51 Mich Opinion the Court of question Court must this decide is Muskegon City has exceeded of those whether specificity requiring of terms in the limitations 8-306. of ordinance enactment general regarding rules referred to certain We penal specificity in the case of ordinances Dear App Heights 163, Bellock, 166; 17 Mich v 169 born (1969), stating: 347, 349 NW2d have an must ascertainable stan- penal "A ordinance (57 (1937), Lowry 301 US 242 guilt. Herndon v S dard (1948), 732, 1066); v New York 333 81 L Ed (68 Winters Ct 840). 665, L Ed The terms of such 507 S Ct 92 US explicit sufficiently to inform must be ordinance part what on their subject it as to conduct are to who penalties guide its them juries render liable will fair judges administration speculation conjecture. resort ordinance without (1948), Musser v 333 Lowry, supra; Utah US Herndon v (68 Lines, 397, 562); Boyce Inc Ct 92 L Ed Motor 95 S (72 329, (1952), 96 L 342 US 337 S Ct Ed States United 367).” supra, Bellock, with was concerned The Court party the Court not consider to loud did protected activity. constitutionally Where be a activity safeguarded regulated the First is per- case, Amendment, as in this standard vagueness statutory more strict. becomes missible Regents, Keyishian 589, 604; 385 US v Board of (1967). Applying 629, 675, 684; 17 2d Ct L Ed S supra, Keyishian, of Bellock and the standard the controverted *4 ordinance, that we the conclude language fails to ascertainable establish sufficient "unnecessary” The standards conduct. terms intelligence "annoy” require men of common guess meaning. infirmity in the use of at its The "unnecessary” noise to that the word describe Borough Phillips prohibited in v was well stated Ch 59th Dist Opinion of the Court Folcroft, (ED Supp Pa, 305 F 1969), p at 770-771: defining

"At the outset we observe that the adjectives contained in Folcroft Ordinance No. 136 are used in the Thus, disjunctive. person can be convicted of disor- * * * making derly only conduct for 'loud noises’. It argued could be that ordinance 136’s use of adjec- conduct, disorderly tive 'loud’ to define without any 'noise’, further modification of is itself sufficiently im- precise not to withstand scrutiny. sounded, however, by death knell is sary’, the use of 'unneces- disjunctive,

in modify 'noise.’ requires do think "We not it much discussion to vice, establish the in the area of First Amendment freedoms, defining disorderly conduct to mean 'the making unnecessary noises’. The pro- definition of permits scribed in conduct this manner " play practical 'so much free that course of operation it is likely to function errati- [the ordinance’s] cally responsive to whim or discrimination unrelated — specific determination of need responsible policy-making organs of society to result in a —and significant impermissible number of public-versus-pri- vate-interest resolutions beyond which are the effective appraisal discovery or of the Court.’ "However, indicated, as we have the real vice of this language permits police is that it and other officials to apparently wield discretionary powers unlimited choosing persons those in violation of the ordinance. * * * clearly This is impermissible judgment under the First Amendment.”

In. finding that Muskegon’s "anti-noise” ordi- nance 8-306 is vague, unconstitutionally this Court does not condone interference with the sanctity of one’s home by loud noise. This admoni- applies tion protected constitutionally activities as well as unprotected. persuaded We are that a more clearly narrowly drawn ordinance *5 App 323 Mich O’Hara, J. Concurrence objectives municipality’s while achieve

can guilt standard for due ascertainable insuring an requirements. process costs, public question being in- No

Reversed. volved. J.,

Holbrook, P. concurred. result). (concurring I concur in the O’Hara, J. Bashara. result reached grounds to the stated in I limit concurrence my Folcroft, Borough Phillips v fully cited majority opinion.