PEOPLE OF MI V JANICE BARTON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
November 1, 2002
9:00 a.m.
Plaintiff-Appellee,
v
No. 234277
Manistee Circuit Court
LC No. 99-009709-AR
JANICE BARTON,
Defendant-Appellant.
Updated Copy
January 31, 2003
Before: Fitzgerald, P.J., and Holbrook, Jr., and Cavanagh, JJ.
PER CURIAM.
This appeal by defendant thas been remanded by our Supreme Court for consideration as
on leave granted, People v Barton, 464 Mich 853 (2001), following her district court jury
conviction of insulting conduct in a public place in violation of Manistee City Ordinance
662.01(B)(3). We reverse and remand.
Defendant was originally charged with disturbing the peace in violation of Manistee City
Ordinance 662.01(B)(19) after she was overheard referring to fellow restaurant patrons as
"spics." The complaint was subsequently amended to charge defendant with a violation of
Ordinance 662.01(B)(3), which provides: "No person shall engage in any indecent, insulting,
immoral or obscene conduct in any public place." Defendant was convicted by a district court
jury of the charge and sentenced to forty-five days in jail and two years' probation. After
defendant spent approximately three days in jail and on her motion for a stay pending appeal, the
trial court inexplicably vacated defendant's jury conviction and sentence, accepted her plea of
guilty with regard to a charge of being a disorderly person, and sentenced her to seven days in
jail and two years' probation. Defendant sought leave to appeal to the circuit court, which denied
leave to appeal. This Court denied leave to appeal from that order, and the Supreme Court, in
lieu of granting leave to appeal, remanded the matter to this Court for consideration as on leave
granted.
Defendant first claims that the trial court did not have the authority to vacate her jury
conviction and accept a guilty plea to a different charge. We agree. The trial court did not have
the authority to vacate defendant's jury conviction and original sentence because there was no
allegation of error claimed in the trial court. See Const 1963, art 3, § 2; MCL 770.1; People v
-1-
Erwin, 212 Mich App 55, 63; 536 NW2d 818 (1995); People v Upshaw, 91 Mich App 492, 494;
283 NW2d 778 (1979). Consequently, but for our holding discussed below, defendant's original
conviction and sentence would be reinstated.
Next, defendant argues that Manistee City Ordinance 662.01(B)(3) is unconstitutionally
overbroad and vague on its face. The constitutionality of an ordinance is evaluated under the
same rules as statutes; accordingly, the issue is reviewed de novo as a question of law. Plymouth
Charter Twp v Hancock, 236 Mich App 197, 199; 600 NW2d 380 (1999).
Statutes and ordinances are presumed to be constitutional and must be construed as
constitutional unless their unconstitutionality is clearly apparent. People v Noble, 238 Mich App
647, 651; 608 NW2d 123 (1999). A facial challenge on overbreadth grounds may be successful
if substantial overbreadth is illustrated and there is "'a realistic danger that the statute itself will
significantly compromise recognized First Amendment protections of parties not before the
Court . . . .'" In re Chmura, 461 Mich 517, 531; 608 NW2d 31 (2000), quoting Los Angeles City
Council v Taxpayers for Vincent, 466 US 789, 801; 104 S Ct 2118; 80 L Ed 2d 772 (1984); see,
also, People v Rogers, 249 Mich App 77, 96; 641 NW2d 595 (2001). However, an otherwise
overbroad or vague statute may be saved from invalidation when it has been or could be subject
to a narrow and limiting construction. Id., citing Broadrick v Oklahoma, 413 US 601, 613; 93 S
Ct 2908; 37 L Ed 2d 830 (1973); Oak Park v Smith, 79 Mich App 757, 760-761; 262 NW2d 900
(1977).
Here, Ordinance 662.01(B)(3) proscribes "any indecent, insulting, immoral or obscene
conduct in any public place." However, consistent with Smith, supra at 760, and Pontiac v
Klein, 67 Mich App 556, 557-559; 242 NW2d 436 (1976), the lower court limited the scope of
the ordinance to that of "fighting words." In Chaplinsky v New Hampshire, 315 US 568, 572; 62
S Ct 766; 86 L Ed 1031 (1942), the United States Supreme Court identified "fighting words" as a
class of speech that was not afforded constitutional protection. Thus, the limiting construction
served to eliminate the danger inherent in the overbreadth context in that it will prevent
convictions for conduct that is not criminal. Consequently, the court's construction of the
ordinance satisfactorily limited it to a constitutionally permissible scope and defendant may not
challenge the ordinance as being overbroad on its face. See Gooding v Wilson, 405 US 518, 521;
92 S Ct 1103; 31 L Ed 2d 408 (1972); In re Chmura, supra at 531-532; Rogers, supra at 101.
Defendant also argues that Ordinance 662.01(B)(3) is unconstitutionally vague on its face
because its general terms fail to provide fair notice of the prohibited conduct and invite arbitrary
and inconsistent enforcement. See Kolender v Lawson, 461 US 352, 357; 103 S Ct 1855; 75 L
Ed 2d 903 (1983); People v Vronko, 228 Mich App 649, 652; 579 NW2d 138 (1998). In
particular, defendant claims a lack of notice regarding the proper meaning of the term "insulting"
that implicates and impinges on First Amendment freedoms. We note that defendant may
challenge the ordinance as unconstitutionally vague on its face because it threatens First
Amendment interests. See Rogers, supra at 95.
An ordinance is unconstitutionally vague on its face if it fails to provide fair notice of the
prohibited conduct or is so indefinite that it permits unstructured and unlimited discretion to be
-2-
exercised by those empowered to enforce it or determine whether the law has been violated. See
Noble, supra; Plymouth Charter Twp, supra at 200. To comport with the fair notice
requirement, an ordinance must give a person of ordinary intelligence a reasonable opportunity
to know what is prohibited. Noble, supra at 652. An ordinance is sufficiently definite if its
meaning "can fairly be ascertained by reference to judicial interpretations, the common law,
dictionaries, treatises, or the commonly accepted meanings of words." Id.
Here, the ordinance proscribed "any indecent, insulting, immoral or obscene conduct in
any public place." In People v Boomer, 250 Mich App 534; ___ NW2d ___ (2002), this Court
struck down as unconstitutionally vague a statute that was quite similar in that it proscribed "'any
indecent, immoral, obscene, vulgar or insulting language . . . .'" Id. at 536. In that case, this
Court held that "it would be difficult to conceive of a statute that would be more vague . . . .
There is no restrictive language whatsoever contained in the statute that would limit or guide a
prosecution for indecent, immoral, obscene, vulgar, or insulting language." Id. at 540.
Accordingly, this Court concluded that the statute failed to provide fair notice of the prohibited
conduct and encouraged arbitrary and discriminatory enforcement. Id.
In Boomer, however, the trial court did not impose a limiting construction on the
contested statute. In this case, the trial court did limit the application of the ordinance to that of
"fighting words." The trial court's imposition of a narrowing construction was in accord with its
duty to uphold the constitutionality of a statute or ordinance and, if necessary, to give such a
limiting construction if to do so would render it constitutional. See Rogers, supra at 94; People v
F P Books & News, Inc (On Remand), 210 Mich App 205, 209; 533 NW2d 362 (1995). As
required in vagueness determinations, we must also take the limiting construction into
consideration. See Kolender, supra at 355; Boomer, supra at 539; Rogers, supra. Accordingly,
we conclude that, as judicially construed, the ordinance is not unconstitutionally vague on its
face because limiting the application of the ordinance to "fighting words" provides fair notice of
conduct that can be proscribed constitutionally and is sufficiently definite to prevent arbitrary
and discriminatory enforcement. See Noble, supra; Smith, supra at 760. However, the
ordinance is unconstitutionally vague as applied to defendant.
Defendant was charged under the "insulting" term of the ordinance. Even if the limiting
construction of the ordinance remedied its failure to provide sufficient standards to determine
whether a crime had been committed, the construction did not rehabilitate the ordinance with
regard to its failure to provide fair notice to defendant of the conduct proscribed. Here, as noted
by the Boomer Court, "[a]llowing a prosecution where one utters 'insulting' language could
possibly subject a vast percentage of the populace to a misdemeanor conviction." Boomer, supra
at 540. The term "insulting" with regard to prohibited conduct did not give adequate
forewarning that the challenged conduct—referencing a person by a racial slur—may rise to the
level of "fighting words" that can be proscribed constitutionally. In effect, without fair warning,
defendant was charged with, and convicted for, conduct that she could not reasonably have
known was criminal. Accordingly, the ordinance is unconstitutionally vague as applied to
defendant and defendant's conviction must be reversed.
-3-
In light of our reversal of defendant's conviction, we need not consider the other issues
raised on appeal, including whether defendant's utterance constituted "fighting words."
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
