The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5403

December 13, 1978

PROSTITUTION:

Detention and physical examination of a person arrested and charged with prostitution to determine presence of venereal disease

PUBLIC HEALTH CODE:

Detention and physical examination of a person arrested and charged with prostitution to determine presence of venereal disease

HEALTH AND SANITATION:

Detention and physical examination of a person arrested and charged with prostitution to determine the presence of venereal disease

CONSTITUTIONAL LAW:

Detention and physical examination of a person arrested and charged with prostitution to determine the presence of venereal disease

A statutory provision authorizing the detention and physical examination of a person arrested and charged with prostitution for a maximum of five days to determine the presence of venereal disease is not unconstitutional. To avoid a court determination of unconstitutionality of such statute as applied, however, the detention period should not exceed a reasonable period of less than five days which may vary in each case.

Section 5261 of the Public Health Code, 1978 PA 368, which authorizes detention in 'an appropriate place designated by the law enforcement officer having custody' permits use of a detention facility in a hospital or a medical facility in a jail. The person charged with prostitution, however, must be treated as a patient and not as a criminal during such temporary detention.

David Hollister

Representative

57th District

House of Representatives

Lansing, Michigan 48909

You have sought my opinion as to whether a statute providing for the detention and physical examination of a person arrested and charged with prostitution to determine the presence of venereal disease is constitutional.

Section 5261 of the Public Health Code, 1978 PA 368; MCLA 333.5261; MSA 14.15(5261) provides:

'An individual arrested and charged with violating section 448, 449, 450, 452, or 455 of Act No. 328 of the Public Acts of 1931, as amended, being sections 750.448, 750.449, 750.450, 750.452, and 750.455 of the Michigan Compiled Laws, or a local ordinance prohibiting prostitution shall be examined by the local health department to determine whether the individual has venereal disease. The individual may be detained for not more than 5 days in an appropriate place designated by the law enforcement officer having custody of the individual until the local health department, after appropriate examination, testing, and therapy, if necessary, finds that the individual is noninfectious.'

It is well-settled that, in order for the state to legislate and enforce a statutory provision that impinges on individual rights without offending the constitution, it must be shown that the state's interest in protecting the health and welfare of the people of the state, through its police power justifies such infringement. Kropf v City of Sterling Heights, 391 Mich 139, 157; 215 NW2d 179 (1974).

The provision at issue was enacted for the purpose of controlling the spread of communicable veneral disease. In regard to such purpose, the Michigan Supreme Court, in upholding a comparable statute, has expressly noted that the examination and detention by quarantine of individuals suspected of having such a disease is a valid exercise of the police power of the state. In Rock v Carney, 216 Mich 280, 293; 185 NW 798 (1921), where the authority of the state board of public health to examine, detain and treat individuals suspected of having venereal disease was challenged, the court stated:

'An examination of the authorities, a consideration of our own statutes, having in mind the rule that they should be liberally construed in order that the aim intended, i.e., the good of the public health, should be attained, leads me irresistibly to the conclusion that we should hold: That the State board of health has validly determined that gonorrhea and syphilis are communicable diseases; that the power exists in the boards of health acting through their respective health officers to quarantine persons infected with these diseases either in their homes or in detention hospitals, such detention to continue so long as the diseases are in their infectious state; and that, subject to what will now be considered, such health officer has the power to make such examination as the nature of the disease requires to determine its presence.'

The Supreme Court went on to note the requirement that reasonable cause that an individual was in fact afflicted with the suspected disease is a prerequisite to the exercise of such authority stating, 216 Mich at 294:

'Where sufficient reasonable cause exists to believe that a person is afflicted with a quarantinable disease, there is no doubt of the right of the health authorities to examine into the case and, in a proper way, determine the fact. Such preliminary investigation must be made without delay, and, if quarantining is found to be justifiable, such quarantine measures may be resorted to only as are reasonably necessary to protect the public health, remembering that the persons so affected are to be treated as patients, and not as criminals.'

In Reynolds v McNichols, 488 F2d 1378, 1382 (CA 10, 1973), in dealing with a constitutional challenge to a city ordinance similar to the state statute here discussed, the court noted:

'The principal thrust of the ordinance is aimed at bringing under control the source of communicable venereal disease. To that end, the city authorities are empowered to examine and treat those reasonably suspected of having an infectious venereal disease. It is not illogical or unreasonable, and on the contrary it is reasonable, to suspect that known prostitutes are a prime source of infectious venereal disease. Prostitution and veneral disease are no strangers.'

The court concluded that the 48-hour involuntary detention period and the examination authorized by the ordinance were constitutional:

'Involuntary detention, for a limited period of time, of a person reasonably suspected of having a venereal disease for the purpose of permitting an examination of the person thus detained to determine the presence of a venereal disease and providing further for the treatment of such disease, if present, has been upheld by numerous state courts when challenged on a wide variety of constitutional grounds as a valid exercise of the police power designed to protect the public health. Cases involving state statutes or municipal ordinances similar to, though not necessarily the same as, the ordinance here in question, are: Welch v Shepherd, 165 Kan. 394, 196 P.2d 235 (1948); Ex Parte Fowler, 85 Okl.Cr. 64, 184 P.2d 814 (1947); People v Strautz, 386 Ill. 360, 54 N.W.2d 441 (1944); Varholy v Sweat, 153 Fla. 571, 15 SO.2d 267 (1943); City of Little Rock v Smith, 204 Ark. 692, 163 S.W.2d 705 (1942); and Ex Parte Arata, 52 Cal. App. 380, 198 P. 814 (1921).

nder the authorities above cited, we conclude, as did the trial court, that the provisions of Ordinance No. 735 authorizing limited detention in jail without bond for the purpose of examination and treatment for a venereal disease of one reasonably suspected of having a venereal disease by virtue of the fact that she has been arrested and charged with solicitation and prostitution is a valid exercise of the police power. It would seem to follow that the milder provisions of the ordinance providing for a walk-in order of one reasonably suspected of having a venereal disease for the purpose of involuntary examination and treatment are also valid under the police power, and we so hold.' 488 F2d at 1382-1383

It will be noted that US Const, Am IV requires that there be probable cause for the issuance of an arrest warrant, or for a warrantless arrest, on a charge of prostitution. Thus, the existence of probable cause to believe an individual has engaged in acts of prostitution, combined with the need to protect the public health from a disease reasonably associated with such alleged criminal activity, furnish the basis for upholding the constitutionality of the statute.

It is, therefore, my opinion that 1978 PA 368, Sec. 5261, supra, is constitutional. However, with respect to the five days statutory period for detention, since such period is the maximum authorized by the statute, it is not unconstitutional on its face since, under unusual circumstances, utilizing the entire allowable period would not constitute undue delay or unlimited detention. To avoid a court determination of the unconstitutionality of such statute as applied, however, the detention period should not exceed a reasonable period which may vary in each case.

It is my further opinion that 1978 PA 368, Sec. 5261, supra, which authorizes detention in 'an appropriate place designated by the law enforcement officer having custody' permits use of a detention facility in a hospital or medical facility in a jail. The person charged with prostitution, however, must be treated as a patient and not as a criminal during such temporary detention.

Frank J. Kelley

Attorney General