Still waiting on the Michigan Supreme Court decision on SORA punitive grandfathering

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Saturday, June 3, 2017

Still waiting on the Michigan Supreme Court decision on SORA punitive grandfathering

UPDATE on the Constitutionality of Michigan's Sex Offender Registry Act.

 

On 12/07/2016, the Michigan Supreme Court heard oral arguments on the case of 

People v Boban Temelkoski.  As of this writing (June 3rd, 2017) we have not seen a decision out of the Michigan Supreme Court on this matter.  If you are interested, you can listen to the actual oral arguments at this link: 

http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Documents/2015-2016/150643/150643%20Audio.mp3

 

 

As a review, you can read my prior blogpost (reposted below).

 

*********************************

Court Decisions may overturn parts of Michigan's Sex Offender Registry

 

SUMMARY of SORA:  When SORA was enacted in 1994, it was a private database for law enforcement use only that had no regular reporting requirements. This served the state’s purposes adequately for more than a decade. The registry became public in 2004, geographic exclusion zones (1,000 foot rule) were added in 2006; sweeping additional restrictions, reporting requirements, and tier classifications took effect in 2011.

 

There have been numerous challenges to SORA since the 2006 and 2011 amendments, culminating most recently with a 6th Circuit Court of Appeals decision and an ongoing case that will be heard early in 2017 before the Michigan Supreme Court.

The Michigan Supreme Court has granted leave to determine whether (1) SORA requirements constitute punishment, (2) whether SORA is punishment as applied to an individual who successfully completes HYTA, (3) whether sufficient due process is afforded by the SORA statutory definition of “conviction” to include HYTA matters, (4) if SORA is not punishment, does the Act nevertheless violate due process, (5) is there an ex post facto violation where subsequent requirements such as the public registry are applied to individuals already on the registry, and (6) is there cruel and/or unusual punishment under SORA? People v Temelkoski, 498 Mich 942; 872 NW2d 219 (12/18/15).

 

In August of 2016, the 6th Circuit Court of Appeals held that the changes to the SORA (Sex Offenders Registration Act) imposed primarily in the 2006 and 2011 amendments were indeed "punishment" and therefore violated the ex-post facto clause of our U.S. Constitution.  This means that enforcement of those additional restrictions on those who were already convicted of their "crimes" prior to the amendments, is unconstitutional.

 

However, not to be outdone, the Michigan Attorney General has filed an appeal.  

 

6 SEPT, filing by the State of MICHIGAN:

 "The State seeks a panel rehearing to correct an error of law and to bring to this Court's attention a prior published and on-point opinion by this Court," the Sept. 8 filing states, claiming the court's opinion is in conflict with the 2007 case, Doe v. Bredesen.

The court held in that case that "continuous GPS monitoring and retroactive reclassification of an offender as a 'violent sexual offender' were not punitive and thus did not violate the Ex Post Facto Clause, using reasoning that is in strong tension with and in places contradicts this Court's August 25 opinion," the Sept. 8 filing reads.

So, the big question is: what to do next?  Michigan cannot enforce a law that it knows to be unconstitutional. The court's decision theoretically applies to all registrants who were convicted before SORA was amended to become more restrictive.  If you are subject to a locally enforced restriction, such as the 1,000 foot rule, get a written memo from your local city attorney stating that they will not enforce that rule against your client.  Could one succeed with a 6.500 motion for relief in state court?  A Federal Habeas Petition?  Or do we wait for a pending case in Michigan?  We may not have to wait too long.  The Michigan Supreme court has granted leave in People v. Temelkoski*  (docket # 150643) with one of the issues whether the SORA violates Ex-Post Facto prohibitions of the Michigan Constitution.  I believe, ultimately, we will languish until the Michigan Supreme Court decides Temelkoski and hopefully declares the retroactive provisions of Michigan's Sex Offenders Registration Act unconstitutional and therefore unenforceable.  Although Temelkoski is not yet on the court's calendar for oral arguments, the parties' briefs and an amicus brief by CDAM can be found at http://courts.mi.gov/courts/michigansupremecourt/clerks/pages/cases-awaiting-argument.aspx

 

CHANGES WITH 2006 AMENDMENT TO SORA

• criminalized working, living, or loitering within 1000 feet of school

CHANGES WITH 2011 AMENDMENT TO SORA

• created SORA 3-tier system

• retroactively extended registration to life for Tier III registrants
• offense pre-dating registry results in registration if convicted of any new felony
    (“recapture” provision)
• in-person reporting for vast amount of information like internet identifiers
• “immediate” reporting for minor changes like travel plans & changes to email accounts

As the law stood prior to the amendment in July, 2011, any person convicted of a listed offense was required to register as a sex offender for 25 years as a first offender and for life as a repeat offender. There were no "tiers".

OLD LAW:  "LISTED OFFENSES" FOR SORA:  Listed Offenses range from a conviction for disorderly person with indecent or obscene conduct up to and including Criminal Sexual Conduct in the first degree (rape), Kidnapping a minor, and Creating Child Abusive Material (child pornography). While the Offender Detail on the website indicates the particular offense the individual was convicted of, all offenders are treated the same and listed together in the same list. When observing a list of offenders in a particular geographic area, there is no differentiation between a repeat child molester and a person who was convicted of indecent exposure (streaking).

 NEW TIERS established by the July, 2011 amendment to SORA:

A Tier 1 Offender is a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

•Possession of Child Abusive Material (child pornography)

•Aggravated Indecent Exposure toward a minor
•Unlawful Imprisonment of a minor
•Criminal Sexual Conduct 4th Degree and Criminal Sexual Assault of an adult
•Stalking of a minor

Tier 1 Offenders must register 1 time per year for 15 years following their conviction or release from jail or prison.

A Tier 2 Offender is a person who commits a second Tier 1 Offense, or a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

•Accosting or Soliciting a minor (1st or 2nd offense)

•Creation or Distribution of Child Abusive Material (child pornography)
•Use of a Computer in a Sexual Felony
•Sodomy unless •The victim was between 13 and 16 years of age and consented to the act with an individual not 4 years older than the victim; or
•The victim was 16 or 17 years of age and consented to the act with an individual who was not in his or her household or a position of custodial authority at the time.
•Gross Indecency unless one of the above exceptions applies
•Solicitation of Prostitution or Immoral Act of a minor
•Pandering
•Criminal Sexual Conduct 2nd Degree or 4th Degree, or Criminal Sexual Assault of a minor over 13 years of age
•Criminal Sexual Conduct 2nd Degree of an adult

Tier 2 Offenders must register 2 times per year for 25 years following their conviction or release from jail or prison.

Tier 3 Offender is a person who commits another listed offense after being required to register as a Tier 2 Offender, or a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

•Gross Indecency with a minor under 13

•Kidnapping of a minor
•Parental Kidnapping
•Criminal Sexual Conduct 1st Degree or 3rd Degree, or Aggravated Criminal Sexual Assault unless the victim was between 13 and 16 years of age and consented to the act with an individual not 4 years older than the victim
•Criminal Sexual Conduct 2nd Degree or Criminal Sexual Assault against a minor less than 13 years of age
•Criminal Sexual Conduct 4th Degree committed by a person age 17 or older against a minor less than 13 years of age

Tier 3 Offenders must register 4 times per year for life.

Since July 2011, Sex Offenders have been Required to Provide More Information

Prior to July 2011 sex offenders were required to report their:

Name, Social security number, Birth date, Address, Their Physical description; A Photograph, and their Fingerprints.

However, since  July 1, 2011, individuals who are required to register have to provide additional information and reporting:

• Any residence where they will be for more than 7 days;

• Employers;
• Schools where they are enrolled;
• Telephone number;
• Email address and instant message IDs;
• License plate, registration, and description of any motor vehicle they "regularly use";
• Drivers License Number (or state identification card number);
• Copies of any passports or immigration documents;
• Professional licenses; and
• Palm prints.

Prior to July 2011, a sex offender must register changes in residence within 10 days of changing that residence.  However with the new changes in July 2011, that individual must report within 3 days a change of most of the required reporting information.

Tuesday, January 24, 2017

Michigan joins 15 other states in allowing Domestic Asset Protection Trusts

Governor Snyder has signed into law two bills (effective on March 8, 2017) that now allow a DAPT (Domestic Asset Protection Trust) to be created in Michigan.  Public Act 330 establishes the Qualified Dispositions in Trust Act. Public Act 331, which amends the Uniform Fraudulent Transfer Act, complements Public Act 330. Together, the two laws combine to give Michigan residents another tool for protecting their assets from creditors including tort claimants.

 

If a Michigan DAPT is properly drafted as an irrevocable trust, it can hold a Settlor’s assets, provide the Settlor with accessibility to those assets as a beneficiary and give the Settlor a limited voice on certain decisions, all while protecting the assets from the Settlor’s future creditors. The new law provides that the Settlor’s creditors may not reach assets transferred to the Michigan DAPT after a two year "statute of limitations" starting when the assets are transferred to the trust, and only with very limited exceptions such as a showing of a fraudulent transfer.

The Michigan DAPT is an extremely powerful tool for both estate planning and asset protection.

You can find the statute starting here: 

http://www.legislature.mi.gov/(S(h1wohgmcx4pmuek3smgzzpjl))/mileg.aspx?page=getobject&objectname=mcl-700-1041-new

Friday, December 2, 2016

Its about to get easier, and more fair, for Consumers

Ever left a review about a small business on Yelp, Trip Advisor or Angie's List?  Ever sign a contract with a business that prohibited you from leaving a negative review?

Most small business owners are really apprehensive about reviews on social media sites like Yelp, Trip Advisor and Angie’s List, and most will tell you how valuable those services are for attracting new customers.   However, people can and do leave negative reviews that can damage a company’s reputation. Most business owners will admit that handling these types of comments is a huge challenge. And it’s about to become even more challenging.

The U.S. Senate this week gave unanimous consent to H.R. 5111, the Consumer Review Fairness Act. Having previously passed the House in September, the bill now moves to President Barack Obama’s desk.

When signed into law, it will void out any existing gag orders put into contracts and agreements that are placed on consumers by businesses, and the Federal Trade Commission will be able to take action against businesses that do attempt to use them.

A gag order is a contract provision that prohibits a consumer from sharing their honest opinions about a company or service.  Some companies’ contracts state that customers are not allowed to post negative reviews on social media or websites like Yelp, otherwise they can seek damages, and some of them have.

Here are the "legal" provisions of the soon to be new law:

 

Consumer Review Fairness Act of 2016

 (Sec. 2) This bill makes a provision of a form contract void from the inception if it: (1) prohibits or restricts an individual who is a party to such a contract from engaging in written, oral, or pictorial reviews, or other similar performance assessments or analyses of, including by electronic means, the goods, services, or conduct of a person that is also a party to the contract; (2) imposes penalties or fees against individuals who engage in such communications; or (3) transfers or requires the individual to transfer intellectual property rights in review or feedback content (with the exception of a nonexclusive license to use the content) in any otherwise lawful communications about such person or the goods or services provided by such person.

A "form contract" is a contract with standardized terms: (1) used by a person in the course of selling or leasing the person's goods or services, and (2) imposed on an individual without a meaningful opportunity to negotiate the standardized terms.

 

 

Tuesday, October 11, 2016

A "Small" mistake in a will may cost wife hundreds of thousands of dollars!

Do you really want a Will done from an Office Depot will kit?  How about a $99 online will kit? 

The Michigan Court of Appeals recently decided a case where a decedents will was ambiguous and needed to be reviewed again at the trial court.  In this case, the father  provided for his wife and provided for, to a lesser extent, his daughter (from a different marriage).  Most significant in his will was his "residence" which sat on a 43-acre farm.  Here is an excerpt from his will:

I give and devise all of my property of whatever kind and wherever found as follows:

A. I give and devise my residence and property located at 20550 180th Avenue, Big Rapids, Michigan to my wife, ELIZABETH PORTER ZIELSKE, if she survives me.

B. All the rest, residue and remainder of my property of whatever kind and wherever found I give and devise one-half (1/2) to my daughter, ELIZABETH ANN ZIELSKE, of Big Rapids, Michigan and one-half (1/2) to my wife, ELIZABETH PORTER ZIELSKE.

The real property commonly known as 20550 180th Avenue is a 43-acre parcel of “farm” land that contains a house, garage, pole barn, stable, and other out buildings.

In court, the Daughter argued that “the words ‘my residence and property’ refers only to the residence, meaning the house, and the personal property in the house,” further arguing that the rest of the real property located at the address (i.e., the farm land of approximately 43 acres ) was not included in this provision.  This "simple" ambiguity could mean many hundreds of thousands of dollars difference in who gets what!!

The court, tending to agree with the daughter's logic, remanded the case back to the probate court so that it can make findings of fact regarding the testator’s intent after the parties have an opportunity to present extrinsic evidence relevant to that issue.

You find the full case here:  https://db.tt/IrlDVvqH  (In re Estate of JAMES A. ZIELSKE)

Make sure if you are getting a will or trust done for your estate plan, that you get it done from a competent and qualified attorney who knows how to draft the documents to meet the client's intent.

 

Clayton Wittman

Your Family Attorney
www.wittmanlegal.com

Monday, October 3, 2016

Court Decisions may overturn parts of Michigan's Sex Offender Registry

SUMMARY of SORA:  When SORA was enacted in 1994, it was a private database for law enforcement use only that had no regular reporting requirements. This served the state’s purposes adequately for more than a decade. The registry became public in 2004, geographic exclusion zones (1,000 foot rule) were added in 2006; sweeping additional restrictions, reporting requirements, and tier classifications took effect in 2011.

There have been numerous challenges to SORA since the 2006 and 2011 amendments, culminating most recently with a 6th Circuit Court of Appeals decision and an ongoing case that will be heard early in 2017 before the Michigan Supreme Court.

The Michigan Supreme Court has granted leave to determine whether (1) SORA requirements constitute punishment, (2) whether SORA is punishment as applied to an individual who successfully completes HYTA, (3) whether sufficient due process is afforded by the SORA statutory definition of “conviction” to include HYTA matters, (4) if SORA is not punishment, does the Act nevertheless violate due process, (5) is there an ex post facto violation where subsequent requirements such as the public registry are applied to individuals already on the registry, and (6) is there cruel and/or unusual punishment under SORA? People v Temelkoski, 498 Mich 942; 872 NW2d 219 (12/18/15).

 

In August of 2016, the 6th Circuit Court of Appeals held that the changes to the SORA (Sex Offenders Registration Act) imposed primarily in the 2006 and 2011 amendments were indeed "punishment" and therefore violated the ex-post facto clause of our U.S. Constitution.  This means that enforcement of those additional restrictions on those who were already convicted of their "crimes" prior to the amendments, is unconstitutional.

 

However, not to be outdone, the Michigan Attorney General has filed an appeal.  

 

6 SEPT, filing by the State of MICHIGAN:

 "The State seeks a panel rehearing to correct an error of law and to bring to this Court's attention a prior published and on-point opinion by this Court," the Sept. 8 filing states, claiming the court's opinion is in conflict with the 2007 case, Doe v. Bredesen.

The court held in that case that "continuous GPS monitoring and retroactive reclassification of an offender as a 'violent sexual offender' were not punitive and thus did not violate the Ex Post Facto Clause, using reasoning that is in strong tension with and in places contradicts this Court's August 25 opinion," the Sept. 8 filing reads.

So, the big question is: what to do next?  Michigan cannot enforce a law that it knows to be unconstitutional. The court's decision theoretically applies to all registrants who were convicted before SORA was amended to become more restrictive.  If you are subject to a locally enforced restriction, such as the 1,000 foot rule, get a written memo from your local city attorney stating that they will not enforce that rule against your client.  Could one succeed with a 6.500 motion for relief in state court?  A Federal Habeas Petition?  Or do we wait for a pending case in Michigan?  We may not have to wait too long.  The Michigan Supreme court has granted leave in People v. Temelkoski*  (docket # 150643) with one of the issues whether the SORA violates Ex-Post Facto prohibitions of the Michigan Constitution.  I believe, ultimately, we will languish until the Michigan Supreme Court decides Temelkoski and hopefully declares the retroactive provisions of Michigan's Sex Offenders Registration Act unconstitutional and therefore unenforceable.  Although Temelkoski is not yet on the court's calendar for oral arguments, the parties' briefs and an amicus brief by CDAM can be found at http://courts.mi.gov/courts/michigansupremecourt/clerks/pages/cases-awaiting-argument.aspx

 

CHANGES WITH 2006 AMENDMENT TO SORA

• criminalized working, living, or loitering within 1000 feet of school

CHANGES WITH 2011 AMENDMENT TO SORA

• created SORA 3-tier system

• retroactively extended registration to life for Tier III registrants
• offense pre-dating registry results in registration if convicted of any new felony
    (“recapture” provision)
• in-person reporting for vast amount of information like internet identifiers
• “immediate” reporting for minor changes like travel plans & changes to email accounts

As the law stood prior to the amendment in July, 2011, any person convicted of a listed offense was required to register as a sex offender for 25 years as a first offender and for life as a repeat offender. There were no "tiers".

OLD LAW:  "LISTED OFFENSES" FOR SORA:  Listed Offenses range from a conviction for disorderly person with indecent or obscene conduct up to and including Criminal Sexual Conduct in the first degree (rape), Kidnapping a minor, and Creating Child Abusive Material (child pornography). While the Offender Detail on the website indicates the particular offense the individual was convicted of, all offenders are treated the same and listed together in the same list. When observing a list of offenders in a particular geographic area, there is no differentiation between a repeat child molester and a person who was convicted of indecent exposure (streaking).

 NEW TIERS established by the July, 2011 amendment to SORA:

A Tier 1 Offender is a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

•Possession of Child Abusive Material (child pornography)

•Aggravated Indecent Exposure toward a minor
•Unlawful Imprisonment of a minor
•Criminal Sexual Conduct 4th Degree and Criminal Sexual Assault of an adult
•Stalking of a minor

Tier 1 Offenders must register 1 time per year for 15 years following their conviction or release from jail or prison.

A Tier 2 Offender is a person who commits a second Tier 1 Offense, or a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

•Accosting or Soliciting a minor (1st or 2nd offense)

•Creation or Distribution of Child Abusive Material (child pornography)
•Use of a Computer in a Sexual Felony
•Sodomy unless •The victim was between 13 and 16 years of age and consented to the act with an individual not 4 years older than the victim; or
•The victim was 16 or 17 years of age and consented to the act with an individual who was not in his or her household or a position of custodial authority at the time.
•Gross Indecency unless one of the above exceptions applies
•Solicitation of Prostitution or Immoral Act of a minor
•Pandering
•Criminal Sexual Conduct 2nd Degree or 4th Degree, or Criminal Sexual Assault of a minor over 13 years of age
•Criminal Sexual Conduct 2nd Degree of an adult

Tier 2 Offenders must register 2 times per year for 25 years following their conviction or release from jail or prison.

Tier 3 Offender is a person who commits another listed offense after being required to register as a Tier 2 Offender, or a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

•Gross Indecency with a minor under 13

•Kidnapping of a minor
•Parental Kidnapping
•Criminal Sexual Conduct 1st Degree or 3rd Degree, or Aggravated Criminal Sexual Assault unless the victim was between 13 and 16 years of age and consented to the act with an individual not 4 years older than the victim
•Criminal Sexual Conduct 2nd Degree or Criminal Sexual Assault against a minor less than 13 years of age
•Criminal Sexual Conduct 4th Degree committed by a person age 17 or older against a minor less than 13 years of age

Tier 3 Offenders must register 4 times per year for life.

Since July 2011, Sex Offenders have been Required to Provide More Information

Prior to July 2011 sex offenders were required to report their:

Name, Social security number, Birth date, Address, Their Physical description; A Photograph, and their Fingerprints.

However, since  July 1, 2011, individuals who are required to register have to provide additional information and reporting:

• Any residence where they will be for more than 7 days;

• Employers;
• Schools where they are enrolled;
• Telephone number;
• Email address and instant message IDs;
• License plate, registration, and description of any motor vehicle they "regularly use";
• Drivers License Number (or state identification card number);
• Copies of any passports or immigration documents;
• Professional licenses; and
• Palm prints.

Prior to July 2011, a sex offender must register changes in residence within 10 days of changing that residence.  However with the new changes in July 2011, that individual must report within 3 days a change of most of the required reporting information.

 

Sunday, August 7, 2016

New Michigan Attorney General Opinion addresses beggars and fund raisers next to and in the road

On July 29th, the following AG opinion was released.  The opinion provides that it is not legal for beggars to impede or obstruct traffic.  It also addresses the fund raisers where certain organizations, like firefighters, cannot be in the middle of the road, or the median of the road, raising money.

Attorney General opinions are NOT law, but they can be persuasive information to present in a court proceeding.

******************************

STATE OF MICHIGAN

BILL SCHUETTE, ATTORNEY GENERAL

UNIFORM TRAFFIC CODE: MICHIGAN VEHICLE CODE: CONST 1963, ART 7, § 29   VILLAGES:

Soliciting on public streets and highways. Released July 29, 2016

Section 676b, MCL 257.676b, of the Michigan Vehicle Code, MCL 257.1 et seq., prohibits a person from soliciting contributions, including contributions on behalf of civic or charitable organizations, from the occupants of vehicles if the person soliciting blocks, obstructs, impedes, or otherwise interferes with the normal flow of vehicular traffic upon a public street or highway in this State. No other statute or rule authorizes or permits the authorization of a person to engage in this activity.

Rule 713, Mich Admin Code, R 28.1713, of the Uniform Traffic Code, prohibits a person in the improved portion of a roadway from soliciting contributions in support of a civic or charitable organization from the occupant of any vehicle. Mich Admin Code, R 28.1713.

Opinion No. 7291

July 29, 2016

The Honorable Phil Pavlov

State Senator

The Capitol

Lansing, MI 48909

You have asked whether charitable and civic organizations may solicit contributions in public roadways.

Although your request did not identify a particular organization, this office is aware that members of various charitable and civic organizations sometimes solicit contributions from persons occupying vehicles while in a public roadway.  Your request and information included with it note that the Village Council for the Village of Sebewaing (Village), Huron County, decided it would no longer permit organizations to do so.  The Village cited a number of laws to support its decision, including Rule 28.1713 of the Uniform Traffic Code.  Mich Admin Code, R 28.1713.[1][1]

. . .

The Michigan Vehicle Code sets forth requirements for the licensure and regulation of drivers and vehicles using publicly maintained streets and highways and, to a lesser extent, the use of those streets and highways by pedestrians.  “The purpose of the Vehicle Code is to protect citizens and vehicles while on the public highways.”  People v O’Neal, 198 Mich App 118, 122 (1993) (internal citation omitted).  As pertinent here, Chapter 6, Obedience to and Effect of Traffic Laws, MCL 257.601 through 257.750, provides that the chapter applies “uniformly throughout this state and in all political subdivisions and municipalities in the state.”  MCL 257.605(1).

Section 676b of the chapter provides in subsection (1) that:

A person, without authority, shall not block, obstruct, impede, or otherwise interfere with the normal flow of vehicular or pedestrian traffic upon a public street or highway in this state, by means of a barricade, object, or device, or with his or her person. This section shall not apply to persons maintaining, rearranging, or constructing public utility facilities in or adjacent to a street or highway.  [MCL 257.676b(1) (emphasis added).]

A violation of this statute constitutes a civil infraction.  MCL 257.676b(2).  This section is broadly worded and prohibits a person from using his or her body in a way that interferes with the normal flow of traffic on a public street unless authorized to engage in the activity.  A person soliciting contributions on behalf of a charitable organization from the occupants of vehicles on public streets or highways may fall within this prohibition.  So too may any other person soliciting contributions, including  panhandlers or persons attempting to engage in commercial activities, such as selling goods or offering services to vehicle occupants.

            . . .

These terms share similar meanings.  For example, the terms “obstruct” and “impede” are incorporated into the definition of “block” as “anything that stops movement or progress; obstruction, obstacle, or hindrance; . . . to impede the passage or progress of; obstruct.”  Webster’s New World Dictionary (3rd ed, 1988).  And the word “interfere” means “[t]he act or an instance of hindering, obstructing, or impeding.”  The American Heritage College Dictionary (3rd ed, 1997).

Again, your request does not include specific facts.  But it is reasonable to conclude based on the plain language of the statute that the presence of a person in a street requesting contributions from vehicle occupants would ordinarily block, obstruct, impede, or otherwise interfere with the normal flow of traffic on that street.  Similarly, a person standing near a street or highway, for instance on a curb, requesting contributions from an occupant of a vehicle in the street or highway could very well block, obstruct, impede, or otherwise interfere with the normal flow of traffic upon that street or highway by means of his or her person.  MCL 257.676b(1).  Id.  Whether this is true will depend upon the particular facts and circumstances.  With respect to cities, villages, and townships, it is the “duty” of local law enforcement to “enforce the street traffic regulations . . .  and all state vehicle laws that are applicable to street traffic” in the city, village, or township.  See Mich Admin Code, R 28.1101.

Thus, with respect to the Village of Sebewaing, local law enforcement officers would determine in the first instance whether the activity violates the statute.  If the activity violates the statute under the particular facts, the activity would be prohibited if the person was otherwise “without authority” to do so.  Because this activity is generally prohibited by statute, the “authority” to engage in the prohibited conduct must also be found in the law.  See, e.g., Attorney General ex rel Brotherton v Common Council of City of Detroit, 148 Mich 71, 79 (1907) (“If a prohibitory constitutional provision, general in its character, is subject to exceptions, those exceptions must be found in the Constitution.”).

There are certain statutes and rules that authorize persons to engage in activity in a street or highway.  For example, under the Uniform Traffic Code, police officers and firefighters are authorized to direct traffic.  See Mich Admin Code, R 28.1102 and 1103; see also MCL 257.602.  The Michigan Vehicle Code provides that workers “performing construction, maintenance, surveying, or utility work within a work zone may direct traffic within that work zone” if authorized by state or local officials.  MCL 257.611a(1).  Similarly, school crossing guards may stop traffic while on duty at their assigned crossings.  MCL 257.613b.  Subsection 676b(1) itself exempts persons working on public utility facilities.  MCL 257.676b(1).  And pedestrians may walk in a highway if no sidewalks are available, MCL 257.655, or may cross roadways in a designated place and manner, Mich Admin Code, R 28.1702 and 28.1705.  But this office found no statute or rule expressly authorizing a person to request contributions from the occupants of vehicles while in, near, or moving upon a street or highway.   

The closest statute is MCL 257.676a(1)–(2), which provides, in relevant part, that “a person” may request a “permit” from the Michigan Department of Transportation (MDOT) to “sell[ ] or offer[ ] for sale, or display[ ] . . . for sale, goods, wares, produce, fruit, vegetables, or merchandise . . . within the right-of-way of a state trunk line highway.”  (Emphasis added).  MDOT “may issue” the permit “if the permitted activities do not create an unsafe situation and do not interfere with transportation along the state trunk line highway.”  MCL 257.676a(2) (emphasis added).  In addition, “[a]s a condition of issuing a permit . . . [MDOT] shall require the municipality having jurisdiction over the site to pass a resolution authorizing the activities . . . and may require that the municipality . . . agree to enforce compliance with the permit.”  Id. 

This statute provides a limited opportunity for a person to ask MDOT for a permit to sell various goods or merchandise “within the right-of-way”[4][4] of a “state trunk line highway”[5][5] so long as the activity “does not create an unsafe situation” or “interfere” with travel, and the activity is also approved by the local municipality.  In that case, this statute acts as an exception to subsection 676b(1) by providing the person with “authority” to engage in activity that may otherwise violate subsection 676b(1).

Accordingly, the question arises whether soliciting contributions for charitable and civic organizations falls within the activities for which a person may request a permit under subsection 676a(1).  Again, your request did not include facts regarding the nature of the solicitation at issue.  But under a plain reading of the statute, the solicitation and receipt of a monetary contribution for a charity would not qualify as an offer for, or the “sale” of, “goods, wares, produce, fruit, vegetables, or merchandise.”  MCL 257.676a(1).  The term “sale” is not defined in the Motor Vehicle Code but may be understood to mean “[t]he transfer of property or title for a price.”  Black’s Law Dictionary (7th ed); see also MCL 440.2106(1) (a “sale,” as defined by the Uniform Commercial Code, is “the passing of title from the seller to the buyer for a price”).  The receipt of a monetary contribution with no exchange of goods or merchandise would not constitute a “sale” for purposes of subsection 676a(1).[6][6]  This statute, therefore, does not authorize a person to request monetary contributions from the occupants of vehicles while in, near, or moving upon a street or highway in avoidance of subsection 676b(1).   

Finally, while the Motor Vehicle Code authorizes “local authorities”[7][7] to regulate in certain areas with respect to streets or highways under the jurisdiction of the locality, MCL 257.606, none of the permitted areas of regulation include authorizing a person to request contributions from the occupants of vehicles while standing near, in, or moving upon a street or highway so as to avoid the application of subsection 676b(1). MCL 257.676b(1).[8][8] 

It is my opinion, therefore, that section 676b, MCL 257.676b of the Michigan Vehicle Code, prohibits a person from soliciting contributions, including on behalf of civic or charitable organizations, from the occupants of vehicles if the person soliciting blocks, obstructs, impedes, or otherwise interferes with the normal flow of vehicular traffic upon a public street or highway in this State.  No other statute or rule authorizes or permits the authorization of a person to engage in this activity. 

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BILL SCHUETTE

Attorney General