STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

An ordinance adopted by a city pursuant to its authority under the Home Rule City Act, 1909 PA 279, MCL 117.1 et seq, that allows the city to issue citations for civil infractions for disobeying a traffic control signal based on the photograph or video produced by an unmanned traffic monitoring device at a location other than a railroad grade crossing conflicts with the Michigan Vehicle Code, 1949 PA 300, MCL 257.1 et seq, and, thus, is invalid. 

Opinion No.  7199                                            

January 30, 2007

Honorable Barbara A. Farrah
State Representative
The Capitol
Lansing, MI  48909

You ask if an ordinance adopted by a city, pursuant to its authority under the Home Rule City Act, 1909 PA 279, MCL 117.1 et seq (Act), to allow the city to issue citations for civil infractions for disobeying a traffic control signal (red light) based on the photograph or video produced by an unmanned traffic monitoring device is valid.

The Constitution reserves to local units of government the authority to exercise reasonable control over streets and highways.  Const 1963, art 7, � 29 provides in pertinent part:

Thus, the authority reserved to local units of government to exercise reasonable control over streets and highways is expressly made subject to other provisions of the Constitution.  One such provision is Const 1963, art 7, � 22 in which cities and villages enjoy broad powers to adopt ordinances relating to municipal concerns, "subject to the constitution and law."  AFSCME v Detroit, 468 Mich 388, 410; 662 NW2d 695 (2003). 

Similarly, section 4j(3) of the Act, MCL 117.4j(3), authorizes home rule cities to adopt ordinances relating to their municipal concerns subject to the Constitution and law:

            Each city may in its charter provide:

[F]or 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.

Although home rule cities may adopt a code by passing an ordinance under their general police powers, a municipality is precluded from enacting an ordinance if the ordinance directly conflicts with the state statutory scheme addressing that subject or 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.  People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977).

Section 4l(1) of the Act, MCL 117.4l(1), provides in pertinent part:

Consistent with any of the following statutes and whether or not authorized by the city charter, the legislative body of a city may adopt an ordinance that designates a violation of the ordinance as a civil infraction and provides a civil fine for that violation:

(a)  The Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923.

In similar vein, the Revised Judicature Act, 1961 PA 236, MCL 600.101 et seq, provides in section 113, MCL 600.113:

(1)  As used in this act:

(a)  "Civil infraction" means an act or omission that is prohibited by a law and is not a crime under that law or that is prohibited by an ordinance and is not a crime under that ordinance, and for which civil sanctions may be ordered. Civil infraction includes, but is not limited to, the following:

(i)  A violation of the Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being sections 257.1 to 257.923 of the Michigan Compiled Laws, designated as a civil infraction.

(ii)  A violation of a city, township, or village ordinance substantially corresponding to a provision of Act No. 300 of the Public Acts of 1949, if the ordinance designates the violation as a civil infraction.

Accordingly, a city operating under the Home Rule City Act may enact ordinances that are consistent with the Michigan Vehicle Code (the Code), 1949 PA 300, MCL 257.1 et seq.

The city in question has adopted an ordinance that allows a police officer or person appointed by a local district judge to issue a citation for a civil infraction for driving into an intersection after the traffic signal has turned red based on a review of photographic evidence obtained by an unmanned camera.  Section 741 of the Michigan Vehicle Code, MCL 257.741, provides:

A civil infraction action is a civil action in which the defendant is alleged to be responsible for a civil infraction.  A civil infraction action is commenced upon the issuance and service of a citation as provided in section 742.

Section 742 of the Code, MCL 257.742, provides for the issuance of citations for civil infractions:

(1)  A police officer who witnesses a person violating this act or a local ordinance substantially corresponding to this act, which violation is a civil infraction, may stop the person, detain the person temporarily for purposes of making a record of vehicle check, and prepare and subscribe, as soon as possible and as completely as possible, an original and 3 copies of a written citation, which shall be a notice to appear in court for 1 or more civil infractions.  If a police officer of a village, city, township, or county, or a police officer who is an authorized agent of a county road commission, witnesses a person violating this act or a local ordinance substantially corresponding to this act within that village, city, township, or county and that violation is a civil infraction, that police officer may pursue, stop, and detain the person outside the village, city, township, or county where the violation occurred for the purpose of exercising the authority and performing the duties prescribed in this section and section 749, as applicable.

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(3)  A police officer may issue a citation to a person who is a driver of a motor vehicle involved in an accident when, based upon personal investigation, the officer has reasonable cause to believe that the person is responsible for a civil infraction in connection with the accident.  A police officer may issue a citation to a person who is a driver of a motor vehicle when, based upon personal investigation by the police officer of a complaint by someone who witnessed the person violating this act or a local ordinance substantially corresponding to this act, which violation is a civil infraction, the officer has reasonable cause to believe that the person is responsible for a civil infraction and if the prosecuting attorney or attorney for the political subdivision approves in writing the issuance of the citation.

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(5)  The officer shall inform the person of the alleged civil infraction or infractions and shall deliver the third copy of the citation to the alleged offender.

(6)  In a civil infraction action involving the parking or standing of a motor vehicle, a copy of the citation need not be served personally upon the defendant but may be served upon the registered owner by attaching the copy to the vehicle.

Section 605 of the Code, MCL 257.605, requires uniformity throughout the State for obedience to, the effects of, and the penalties for violating the traffic laws:

(1)  [Chapter VI^[[2]]] and chapter VIII^[[3]] apply uniformly throughout this state and in all political subdivisions and municipalities in the state.  A local authority shall not adopt, enact, or enforce a local law that provides lesser penalties or that is otherwise in conflict with this chapter or chapter VIII.

(2)  A local law or portion of a local law that imposes a criminal penalty for an act or omission that is a civil infraction under this act, or that imposes a criminal penalty or civil sanction in excess of that prescribed in this act, is in conflict with this act and is void to the extent of the conflict.

Those requirements are in contrast to section 667a of the Code, MCL 257.667a, which provides for the installation and use of unmanned traffic monitoring devices at railroad grade crossings, the use of a sworn statement of a police officer based upon inspection of photographs or videotape images produced by an unmanned traffic monitoring device, and service of the citation by first-class mail on the owner of the vehicle:

(1)  The . . . local authority having jurisdiction over a highway or street may authorize the installation and use of unmanned traffic monitoring devices at a railroad grade crossing with flashing signals and gates on a highway or street under their respective jurisdictions. . . .

(2)  Beginning 31 days after the installation of an unmanned traffic monitoring device at a railroad grade crossing described in subsection (1), a person is responsible for a civil infraction as provided in section 667 if the person violates a provision of that section on the basis of evidence obtained from an unmanned traffic monitoring device. . . .

(3)  A sworn statement of a police officer from the state or local authority having jurisdiction over the highway or street upon which the railroad grade crossing described in subsection (1) is located, based upon inspection of photographs, microphotographs, videotape, or other recorded images produced by an unmanned traffic monitoring device, shall be prima facie evidence of the facts contained therein. . . .

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(5)  Notwithstanding section 742, a citation for a violation of section 667 on the basis of evidence obtained from an unmanned traffic monitoring device may be executed by mailing by first-class mail a copy to the address of the owner of the vehicle as shown on the records of the secretary of state.

It is a well-established canon of legislative construction that the expression of one thing implies the exclusion of others not expressed � "expressio unius est exclusio alterius."  Taylor v Michigan Public Utilities Comm, 217 Mich 400, 402-403; 186 NW 485 (1922); Sebewaing Industries Inc v Village of Sebewaing, 337 Mich 530, 548; 60 NW2d 444 (1953).

It is my opinion, therefore, that an ordinance adopted by a city pursuant to its authority under the Home Rule City Act, 1909 PA 279, MCL 117.1 et seq, that allows the city to issue citations for civil infractions for disobeying a traffic control signal based on the photograph or video produced by an unmanned traffic monitoring device at a location other than a railroad grade crossing conflicts with the Michigan Vehicle Code, 1949 PA 300, MCL 257.1 et seq, and, thus, is invalid. 

Mike Cox
Attorney General