IMPLEMENTING THE MUNICIPAL CIVIL INFRACTION LEGISLATION OF 1994
IMPLEMENTING THE MUNICIPAL CIVIL INFRACTION LEGISLATION OF 1994
by George Davis, Davis & Davis Law Office PLC, Grand Rapids, Michigan
Under the legislation authorizing municipal civil infractions (MCL 600-8701—600.8745), a violation of an ordinance is a municipal civil infraction only if the ordinance expressly so provides. In addition, the law provides that municipalities may “by ordinance” establish a municipal ordinance violations bureau to accept admission of responsibility for infractions and to collect and retain civil fines pursuant to a schedule “as prescribed by ordinance.” Accordingly, local governments must amend their ordinances or adopt new ordinances to take advantage of the municipal civil infraction authority.
At a minimum, a municipality wishing to use the civil infraction approach must designate which violations of its ordinances (or code) are municipal civil infractions, which are not, and identify the local officials authorized to issue citations. The amount of the civil fines must be established, with minimums and possibly maximums. Other optional provisions such as increased fines for repeat offenses may also be adopted. If a municipality wants to establish a municipal ordinance violations bureau, it must also provide some detail how that will be accomplished, including matters such as the bureau’s staffing, location, and rules and regulations. A schedule of fines must be adopted to establish the fines for each violation for which admissions of responsibility will be accepted at the bureau.
Although there are statutory requirements which must be followed, the municipal civil infraction authority can be implemented in a variety of ways, and there is no single required approach or “magic” language that must be used. The important thing is to carefully tailor whatever approach is used to the needs, desires, and regulatory framework of each municipality. These materials have been prepared for the limited purposes of illustrating various methods of implementing the new legislation. They are not intended for application in particular situations. All applicable state and local laws, including local charters, must be referred to and complied with, and if legal advice or other expert assistance is required, the services of a qualified professional should be sought.
Codified/Non-Codified Ordinance Systems
One of the first considerations is whether the ordinances to be amended are codified or exist as separate stand-alone ordinances. If the ordinances are codified, the process is simplified somewhat. The general penalty chapter can be amended to provide as a default that, unless a violation of the code is specifically designated in other chapters of the code as a municipal civil infraction, the violation is deemed to be a misdemeanor. The fines for repeat violations can also be specified in the general penalty chapter and can then be incorporated by reference elsewhere in the code. A new chapter can be adopted to specify municipal civil infraction procedures, set up a municipal ordinance violations bureau (if desired), adopt a schedule of fines, etc.
If a municipality’s ordinances are not codified, it will be necessary to amend each of its separate ordinances to designate which violations are municipal civil infractions, specify the applicable fines, and perhaps adopt additional stand-alone ordinances (to provide municipal civil infraction procedures, etc.). Apart from these “mechanical” differences between codified and non-codified ordinance systems, however, implementing the municipal civil infraction approach under either system is basically the same.
The key terms and concepts of the municipal civil infraction approach should be defined in the local ordinances, including, for example, “municipal civil infraction,” ”authorized [city, village, township etc.] official,” municipal civil infraction citation,” and “municipal civil infraction action.” The definitions used should be based on the requirements of the municipal civil infraction statute.
If a local government decides to provide that fines will increase for repeat offenses, “repeat offense” must be defined. One approach is to provide that a repeat offense occurs when a person is determined responsible (or admits responsibility) for the same infraction within a stated period of time. The definition of repeat offense may vary depending on the infraction involved. For some infractions, the stated period of time might be set at a period of days, and for others at periods of weeks or months. Fines may also be made to escalate depending on whether the repeat offense is a first repeat offense or a second or subsequent repeat offense.
If a local government decides to use a municipal ordinance violations bureau, additional definitions will be necessary, including municipal civil infraction violation notice (to distinguish a notice from a municipal civil infraction “citation”).
If the ordinances are codified, the definitions may be placed together in a separate municipal civil infractions chapter to apply to the terms as used elsewhere in the code (e.g., “As used in this code . . .). If the ordinances are not codified, a separate municipal civil infractions ordinance may be adopted to contain the definitions. To avoid having to repeat the definitions, the other ordinances that will be using the municipal civil infraction approach may be amended to refer to this separate municipal civil infractions ordinance (e.g., “As provided by (city/village/township) Municipal Civil Infractions Ordinance, Ordinance No. , . . . “).
Designating which Violations are Municipal Civil Infractions
To designate a violation as a municipal civil infraction, the particular ordinance must be amended to provide that any person who violates the ordinance is responsible for a municipal civil infraction, subject to payment of a specified minimum fines, plus costs and sanctions, for each infraction. Again, if increased fines are to be imposed for repeat offenses, this should be indicated, along with the amount of the increased fines.
Except as limited by the statute local governments may designate any violation of any local ordinance as a municipal civil infraction. The types of violations that are most commonly designated as municipal civil infractions involve ordinances that regulate activities that are not usually perceived as criminal in nature: e. g., zoning, animals, noxious weeds, noise, junk cars, amusement parlors, building code, plumbing code, etc. Local environmental regulations may also be decriminalized (e.g., erosion and sedimentation, sewer use, mineral mining, etc), at least to the extent state law does not make the activity in question a crime punishable by imprisonment for more than 90 days.
Designating Authorized Local Officials
The local official (or officials) who are authorized to issue municipal civil infraction citations (directing alleged violators to appear in court) or municipal civil infraction violation notices (directing alleged violators to appear at a municipal ordinance violations bureau) must be designated by ordinance for each violation that is to be treated as a municipal civil infraction. A single local official (the building official, for example) may be designated as the authorized local official for all municipal civil infractions or various local officials may be designated for certain types of violations.
Setting the Amount of the Fines
Unlike misdemeanors, fines for municipality are not limited to a maximum of $500. See, e.g., Huron Township v City Disposal Systems, Inc, 488 Mich 362, (1995) (municipal civil infraction fines specifically exempted by statute from $500 limitation otherwise applicable to violations of township ordinances).It is typical for violations that are perceived as more serious to be subject to higher minimum fines. Where increased fines for repeat offenses are used, it is common for the amounts to escalate rapidly to discourage repeat offenders (e.g. $100 for initial offense; $500 for first repeat offense; $1,000 for second repeat offense and any subsequent repeat offense).
Specifying the Municipal Civil infractions Procedures
The statutorily required procedures that must be followed by the local government in administering its municipal civil infraction program should be clearly set forth, preferably either in a separate municipal civil infractions chapter in a code or, if the ordinances are not codified, in a stand-alone municipal civil infractions ordinance. Using the statute as a guide, the types of matters addressed should include:
Commencing municipal civil infractions actions including: the issuance of municipal civil infractions citations to appear in court; and, if applicable, the issuance of municipal civil infraction violation notices to appear at a bureau.
Issuing and serving municipal civil infractions citations. Matters addressed should include:
1. The time and place for appearance; citation form and numbering requirements;
2. Requirements for filing the original citation with the court and issuance of copies to alleged violators; and
3. When and how local officials may issue municipal civil infractions citations (including reasonable cause and oath requirements, and special procedures where the municipal civil infraction action involves land use violations).
The contents of municipal civil infraction citations forms, including who, when, where, how, etc., of an infraction, and what the alleged violator must do to respond to a citation (admit, admit with explanation, deny. etc.).
Establishing a Municipal Ordinance Violations Bureau
If a local government intends to establish a municipal ordinance violations bureau, it must do so by ordinance. The types of matters that should be addressed include:
A statement that the bureau is established, its statutory authority, and its purpose.
The location, supervision, employees, and rules and regulations of the bureau. These matters are discretionary, except that employees must be employed by and paid by the local government. There are no restrictions in the statute as to other aspects of the bureau, such as its location (e.g., at the city, village or township hall), or who supervises the bureau (e.g., the treasurer).
Procedures regarding the issuing and serving of municipal civil infraction violation notices and the required content of notices.
Procedures regarding appearances and payment of fines and costs at the bureau.
Procedures applicable if admissions of responsibility are not made or fines not paid.
Limitations on the bureau’s authority. It is very important to specify any applicable limitations on the bureau’s authority. For example, it should be stated that the bureau’s authority is limited to accepting admissions of liability and collecting payment of fines as result of those admissions. The bureau may not accept payment of a fine from any person who denies having committed the offense or who admits responsibility only with explanation. The bureau may not determine, or attempt to determine, the truth or falsity of any fact or matter relating to an alleged violation. It is also important that the provisions establishing a bureau provide (for example) that the bureau may dispose only of municipal civil infraction violations for which a fine has been scheduled and for which a municipal civil infraction violation notice has been issued; and that scheduling a fine for a particular violation will not entitle any person to dispose of the violation at the bureau, i. e., the municipality is not prevented from issuing a municipal civil infraction citation for any violation or from prosecuting any violation in court.
Adopting a Schedule of Fines
If a bureau will be used to accept admissions, a schedule of fines must be established by ordinance. The statute does not provide any guidance with regard to the form or content of such schedules. At a minimum, the schedule should indicate the relevant code section or ordinance provision alleged to be violated, a short narrative description of the nature of the offense (optional), and the scheduled amount of the fine (this should be a specified amount, not a minimum or a maximum). If there are increased fines for repeat offenses, these amounts should be provided on the schedule. A copy of the schedule, as amended from time to time, should be posted at the bureau.
Adopting Citation and/or Notice Forms
Municipal civil infraction citation forms and, as applicable, municipal civil infraction violation notice forms, must be developed and in place prior to the effective date of any ordinance amendments implementing the municipal civil infraction approach. Citation forms (but not notice forms for use with a bureau) must be approved by the State Court Administrative Office prior to their use. The State Court Administrative Office has developed several generic citation and notice forms which are available through commercial printers.