Municipalities and their residents want to ensure that ordinances are enforced to promote the general welfare of the community. The process of prosecuting most ordinance violations in court involves civil infraction citations and is statutorily provided for in the Revised Judicature Act, Chapter 87. In this month’s E-Letter, we present ten tips for code enforcement in district court that are sure to help guide municipalities through the process of prosecuting civil infraction citations in district court.
Municipalities throughout Michigan leverage their broad authority to regulate activities and land use to promote the public health, safety, and welfare of the community by enacting a wide variety of ordinances—regulating everything from fireworks to blight. The benefits of these ordinances, however, is directly related to the ability to enforce their terms. In other words, what good is a well-crafted ordinance if a municipality is unable to effectively prosecute those who routinely violate them?
In the past, we have provided broad overviews of the different ways in which a municipality can enforce its ordinances and ultimately obtain compliance. A municipality can issue warning letters, municipal civil infraction notices, or seek voluntary compliance without the need to file anything in district court. These avenues provide for a cost-effective and largely efficient way to obtain compliance. If you are interested in a broad overview of the topic, please refer to two of our prior E-Letters that address some of those avenues of obtaining compliance: Getting the Most Out of Civil Infractions: Violation Notices, Informal Hearings, Warning Letters and Consent Judgments and Ten Strategies for Effective Ordinance Enforcement.
This E-Letter addresses the situation where a municipality has considered (or attempted) different ways to obtain ordinance compliance and is ready to pursue legal action in district court. It offers ten tips for municipalities to resolve ordinance violations efficiently.
- KNOW THE DISTRICT COURT. A municipality must understand how its district court handles civil infraction citations. Experience has taught us that each district court has a different preference for what information should be included on a civil infraction citation, how a district court will facilitate prosecution of civil infraction citations, among other things. Some relevant administrative questions to ask district court staff includes whether there are specific requirements for information for the civil infraction citation (beyond the statutorily required information) and how multiple violations should be alleged (i.e., on the same ticket or separate tickets). The district court will likely be able to provide any other information that is pertinent in that conversation. The goal is to ensure that the civil infraction citations are being filed properly and that a municipality understands the process ahead. Last, be sure not to discuss the merits of any specific case when attempting to understand administrative requirements for a particular court. All conversations related to the merits or specifics of a case should generally always include the defendant.
- PROPERLY SERVE THE DEFENDANT. Serving a defendant a civil infraction citation is provided for by statute and the requirements depend on the nature of the violation. Generally, a civil infraction citation may always be personally served on the alleged violator. MCL 600.8707(3). Alternatively, if a civil infraction citation involves the use or occupancy of land/building/structure, a copy of the citation may be posted on the land/building/structure and mailed by first-class mail to the owner of the land/building/structure at the owner’s last known address. MCL 600.8707(4). Failing to properly serve a civil infraction citation can result in the dismissal of the action altogether.
- UNDERSTAND THE BURDEN OF PROOF. Civil infraction citations are required to be proved by a preponderance of the evidence, which means that a municipality must demonstrate that it is more likely than not a violation occurred. MCL 600.1133) Evidence can include photographs, witness testimony, and any other documentation that is relevant. The most effective and efficient way to prove most violations is through photos that were taken on the same day the citation was issued or when the violation occurred. Other relevant evidence can include complaints received by a municipality, testimony of the code enforcement officer or other similar municipal officials, testimony of the defendant, and testimony of interested residents who have personal knowledge of the violations. Needless to say, if a municipality cannot prove its case by a preponderance of the evidence, it should not bring the case to begin with.
- ADEQUATLY DESCRIBE THE VIOLATION. Civil infraction citations include a “description” section where a code enforcement officer should explain the alleged violations of the ordinance at issue. There are two main parts of the description of a civil infraction citation: (1) the ordinance violated, and (2) the conditions or activities that create the violation. The information that is included in this description section is critical because the civil infraction citation serves as the complaint. See MCR 4.101(A)(1); MCL 600.8705(1)(a). That means whatever is listed on the civil infraction citation will be what the district court uses to determine what the defendant has been charged with doing. This is especially important to district courts especially considering the constitutional requirement of “due process,” that requires notice of violations and an opportunity to be heard. See By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19 (2005). It is advised that municipalities include the specific sections of the ordinance that was violated along with the activities or conditions that violated the ordinance. To the extent that there are multiple sections of an ordinance being violated, those should be referenced as well.
- CONSIDER SETTLEMENT. Even after a municipality has exhausted other means of obtaining compliance such as issuing warning letters and municipal civil infraction notices, voluntary compliance is still possible even after the filing of a civil infraction citation. In our experience, a looming court date oftentimes has a way of motivating a defendant to comply more so than the issuance of warning letters or municipal civil infraction notices. A municipality can use this to their advantage in most instances by entering into a consent judgment to resolve the matter. A consent judgment is an agreement that can be enforced as a court order. The most typical type of consent judgment we advise clients to enter into provides for a certain period of time for the defendant to comply with the ordinance. If the defendant complies, the consent judgment dictates the case will be dismissed and fines related to the civil infraction are waived. If the defendant does not comply, however, the consent judgment provides the defendant must pay the fines and the municipality can abate the existing violations at the cost of the defendant. The upside of settling a case includes limiting the risk of an unfavorable ruling at a hearing, reducing the legal fees necessary to prosecute the case, and ensuring that compliance. PRACTICE NOTE: District courts often times have different procedures for settling a case. Before presenting a district court with a consent judgment, we advise reaching out to the district court to learn how they generally handle the resolution of civil infraction citations. Again, be sure to not discuss the specifics or merits of a particular case with a court without the defendant.
- DECIDE BETWEEN AN INFORMAL OR FORMAL HEARING. An informal hearing is generally conducted by a magistrate with relaxed rules of evidence and procedure. MCL 600.8719(1). There are no attorneys allowed for either side. MCL 600.8719(2). In contrast, a formal hearing is conducted by the judge and both parties are allowed to be represented by an attorney. MCL 600.8721(1)-(2). The default is that civil infraction citations will be handled through informal hearings. However, either party can request a formal hearing so long as that is done at least ten days prior to the hearing date. MCL 600.8717(1). A municipality should decide which is best suited for each specific case. As a general rule, more simplistic and straightforward cases are better suited for informal hearings. PRACTICE NOTE: If a municipality is unsuccessful at an informal hearing, it can appeal through the formal hearing process. MCL 600.8719(5).
- CONSULT WITH AN ATTORNEY. Seeking legal advice from a qualified attorney who regularly handles code enforcement cases can significantly help a municipality navigate the process in district court. From ensuring that a civil infraction citation is appropriately filled out, served on the defendant, filed with the court, and prosecuted, legal advice can help a municipality navigate the legal landscape. PRACTICE NOTE: The process of prosecuting civil infraction citations in the Revised Judicature Act, Chapter 87, specifically contemplates a process, an informal hearing, in which neither the municipality nor the defendant is able to have an attorney present. See MCL 600.8719(1)-(2). That, however, is not to say that an attorney cannot be involved in helping a municipality prepare for an informal hearing such as by: (1) preparing outlines for the prosecution to prove their case; and (2) providing proposed orders if they are successfully at providing ordinance violations. To the extent that a municipality is uncertain about how to prosecute a case at an informal hearing, we encourage a municipality to seek legal counsel.
- EXPLAIN THE HARM. Some individuals may look at code enforcement cases from the perspective of “so what?” For example, a technical violation may be proved such as proving that there is blight on a property, but one may wonder what the practical issue is from the perspective of the municipality. A municipality should be prepared to explain the harm resulting in the community, complaints they have received, and the public’s interest in enforcing the ordinance at issue. In addition, demonstrating that harm is ongoing and unresolved tends to help demonstrate the importance of an issue. Put simply, it is one thing for there to be four bags of trash in someone’s front yard for a day, and it is another thing if the same bags of trash have been sitting there for a month.
- REQUEST INJUNCTIVE RELIEF. Michigan law empowers district courts with injunctive authority in limited circumstances including when an injunctive order is “necessary to enforce [an] ordinance.” MCL 600.8302. An injunction is an order from the court prohibiting a party from performing actions (e.g., having blight) or ordering a party to perform certain actions (e.g., cleaning up blight). In many instances, fines may not be enough to obtain compliance. For instance, if a defendant has several dozen junk cars on his property, it may be less expensive for him to continue to pay fines than it would be to pay to have all of the junk cars removed. A municipality is likely seeking compliance should be certain to request injunctive relief. PRACTICE NOTE: Some district courts are hesitant to award injunctive relief. To maximize the chance that injunctive relief will be ordered, we encourage municipalities to: (1) indicate on the civil infraction citation that they are seeking injunctive relief and the authorizing statutory provision above; and (2) prepare a proposed order requesting injunctive relief to present to a court at a hearing.
- REQUEST COSTS. A municipality is able to recover some of its costs incurred in prosecuting a civil infraction citation. MCL 600.8727(3) provides that when a defendant is found responsible for a civil infraction citation, the district court shall “determine the costs of the action, which are not limited to the costs taxable in ordinary civil actions and may include all expenses, direct and indirect, to which the plaintiff has been put in connection with the municipal civil infraction, up to the entry of judgment … [the] costs shall be payable to the general fund of the plaintiff.” The amount a district court can order, however, is only up to $500.00 per violation. See MCL 600.8727(3). A municipality should be certain to seek the recovery of costs in an action to offset some of the costs that it incurs in pursuing code enforcement, even if the entire cost of the action is greater than $500.00. PRACTICE NOTE: If a municipality prevails in a civil infraction action, it should request a court to enter an order allowing it to collect further actual attorney fees if it needs to enforce an order. This allows a municipality to no longer be bound by the initial $500.00 cap.
By: David Szymanski
This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.