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 MIKE COX,
ATTORNEY GENERAL CITIES: HOME RULE CITY ACT: MICHIGAN VEHICLE CODE: TRAFFIC RULES AND REGULATIONS: Legality of ordinance allowing use of unmanned
traffic monitoring device to support citation for civil infraction 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 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: Except as otherwise provided in this constitution the right
of all counties, townships, cities and villages to the reasonable control of
their highways, streets, alleys and public places is hereby reserved to such
local units of government.[[1]] 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. * * * (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. * * * (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. . . . * * * (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
[1]
See also MCL 117.4h(1),
which provides that each city may in its charter provide "[f]or the use,
regulation, improvement and control of the surface of its streets, alleys
and public ways, and of the space above and beneath them."
[2]
Chapter VI addresses obedience to and effect
of traffic laws and includes MCL 257.605.
State Representative
The Capitol
Lansing, MI 48909
Attorney General