City of Lansing

OFFICE OF THE CITY ATTORNEY

James D. Smiertka, City Attorney

MEMORANDUM

TO: Andy Schor, Mayor

Hon. Louise Alderson, Chief Judge
Michael Yankowski, Police Chief
Carol Wood, City Council President

FROM: Jim Smiertka, City Attorney

Brandon Waddell, Assistant City Attorney
Greg Venker, Assistant City Attorney

DATE: February 20, 2018

SUBJECT: Lansing City Ordinances expiration

This document outlines options available to the City Attorney in the exercise of
prosecutorial discretion and does not constitute a policy statement of the City of Lansing.

Question Presented

1) Due to the expiration of several Lansing City Ordinances from November 25, 2017, to
February 14, 2018, does the City of Lansing have the jurisdiction to prosecute City
Ordinance violations if the offense date lies within the ordinance expiration window?

Short Answer

Yes. Not all Lansing City Ordinances expired in 2017. The City of Lansing retained jurisdiction
to prosecute ordinance violations that did not expire during the above described date range, and the
enactment of the emergency ordinance renews the City’s ability to prosecute all ordinance violations from
February 15, 2018, going forward.

Legal Analysis

Charter provision 3-307 discusses how ordinances which create a regulatory function shall have an
expiration date of no more than ten (10) years from the date of adoption. The provision states:

3-307.1: Expiration of ordinances: Every ordinance which creates a regulatory function or an

agency of the City or provides for a service to be rendered to the public shall state that it shall
expire on a specific date not more than ten (10) years after the date of adoption.

Charter provision 3-309 also discusses the codification of all Lansing City Ordinances:

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 3-309.1: Codification of ordinance: Within three (3) years after the effective date of this
Charter and at least every ten (10) years thereafter, the City Council shall provide for and adopt
a codification of all City ordinances.

The effect of these two provisions is that all Lansing City Ordinances adopted or codified prior to
November 24, 2007, were to expire on November 24, 2017. In 2007 the Lansing City Council
readopted all Lansing City Ordinances with Ordinance No. 1125 which states in part:

Section 1. That the 1997 Code of Ordinances of the City of Lansing, Michigan, as republished
by Municipal Code Corporation on June 30, 1998, and all general and permanent legislation of
the city from the date of entry through November 24, 2007, as revised, codified, arranged,
numbered, edited and consolidated into component codes, titles, chapters and sections are
hereby approved and readopted as the codified ordinances of Lansing, Michigan 2007,
complete to November 24, 2007.

Section 5. This ordinance shall automatically expire ten years from the date of readoption.

Section 6. This ordinance shall be effective on November 24, 2007.

This means all ordinances adopted or amended prior to November 24, 2007 required re-adoption by City
Council prior to November 24, 2017 to remain binding law. However, the plain reading of the Charter
allows all ordinances amended or adopted after November 24, 2007, to have their own sunset date,
defaulted at ten (10) years after adoption, unless otherwise designated in the ordinance. For that reason
not all Lansing City Ordinances expired in 2017.

a.) Criminal Misdemeanor Cases

The applicable criminal ordinances in question include Chapters 602 – 696: General Offenses and
Chapters 402 – 408: Traffic Code. The Traffic Code was not affected by the 2017 expiration because all
parts of the Traffic Code were adopted after 2007, with some sections being as recent as 2015. On
September 26, 2011 the City adopted the Public Act 300 of 1949, MCL 257.1 et seq, commonly known
as the Michigan Vehicle Code1. This adoption created a sunset date of 2021 for the City to retain
jurisdiction to prosecute any violations that fall within the Michigan Vehicle Code. The Uniform
Traffic Code was adopted on November 23, 2015, with a sunset date of 2025 2. Therefore, the City was
never void of jurisdiction to prosecute all traffic offenses found in the Michigan Vehicle Code or the
Uniform Traffic Code because those ordinances do not expire until 2021 and 2025 respectively.

The majority of the General Offense chapter expired on November 24, 2017. All of the General
Offense sections were adopted or amended prior to 2007 with the exception of:

608.04. - Restrictions on sale and consumption on public property (06/02/2014);

622.01. - Drug paraphernalia (05/22/2017); and

696.01. - Discharging weapons (04/21/2008).

1
Lansing City Ordinance 402.01
2
Lansing City Ordinance 404.01

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 b.) Building and Housing Code (Civil Infractions and Misdemeanors)

For District Court purposes, any ordinance violations stemming from the Mechanical Code3and
the Housing Code4 were not affected by the expiration window. These provisions were enacted in 2011
and 2012 respectively.

c.) Emergency Ordinance

Charter provision 3-308 permits the passage of an emergency ordinance by City Council to meet
a public emergency affecting life, health, property or the public peace.

The emergency ordinance was passed February 12, 2017 and went into effect upon
publication in the Lansing State Journal on February 15, 2018 (3-304.3: Publication after enactment:
No ordinance or emergency ordinance shall be effective until it has been published). The effect of the
emergency ordinance is that all ordinances enacted from November 24, 2007 to December 31, 20175
shall be effective as of November 24, 2017.

d.) Conclusion

Actions the Office of the City Attorney in regards to our enforcement of ordinance violations
MAY include:

i. For those matters that the Office of the City Attorney has authority to prosecute, we will
prosecute;

ii. For those matters that occurred during the affected time period, the Office of the City
Attorney will evaluate on a case by case basis;

iii. For those matters that the Office of the City Attorney determines we do not have
authority to prosecute, we may dismiss and/or reissue; or

iv. For those matters that the Office of the City Attorney determines we do not have
authority to prosecute we may refer to the Ingham County Prosecutor.

3
Lansing City Ordinance 1426.01(a) Pursuant to the authority vested in the City by Public Act 230 of 1972
(referred to in this chapter as the Act or the Stille-Derossett-Hale Single State Construction Act), as amended,
being MCL 125.1501 et seq., the City hereby assumes responsibility for administration and enforcement, within
the City's jurisdictional boundaries, of the Act and the State-approved Michigan Mechanical Code.
4
Lansing City Ordinance 1460.01For the purpose of regulating and governing the conditions and maintenance of
all premises and any structures thereon; providing standards for supplied utilities and facilities, other physical
aspects of structures, and conditions essential to ensure that structures are safe, sanitary, and fit for occupation
and use; and providing a mechanism for condemnation of structures unfit for occupancy and use and the
demolition of such structures, the 2009 International Property Maintenance Code ("IPMC") is hereby adopted as
if fully set forth herein, with the following additions, deletions, and alterations:
5
No ordinances were enacted after November 11, 2017

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 FOR EXAMPLE PURPOSES ONLY

Offense Date Charging Date Jurisdiction, Possible Action

Before 11/25/17 Continue Prosecution
Before 11/25/17 11/25/17 – 2/14/18 Continue Prosecution
After 2/14/18 Continue Prosecution
11/25/17 – 2/14/18 Dismiss, and either refer to ICPO or reissue
11/25/17 – 2/14/18 After 2/14/18 Not ex post facto if corresponding criminal
statute exists; Continue Prosecution
After 2/14/18 After 2/14/18 Continue Prosecution

This is not a policy statement, only an exercise of prosecutorial discretion.

2) Is the Constitutional bar on Ex Post Facto law implicated by the enactment of the Nunc
Pro Tunc recodification Emergency Ordinance?

Short Answer

For the General Offense criminal misdemeanor ordinances the retroactive re-adoption will not
constitute an ex post facto law.
The Michigan and United States Constitutions prohibit the enacting of ex post facto laws. What
qualifies as an ex post facto law has been defined and interpreted by the United States Supreme Court, as
well as courts of Michigan. Only criminal laws and penalties are subject to the ex post facto prohibition.
The General Offense Ordinances that are not designated as civil infractions are misdemeanors. However,
a criminal law or penalty is not ex post facto if the conduct that is criminalized was already a crime and
the penalty is not being increased. Nearly all of our General Offenses are also crimes contrary to
Michigan Criminal Code. Our penalties are capped by statute at the same or less than penalties found in
the Criminal Code. Thus the retroactive effective date is allowed for most Ordinances.

Legal Analysis

The Contracts Clause of the Constitution of the United States Constitution expressly forbids a
State from passing an ex post facto law. U.S. CONST. art. I, § 10, cl. 1. The application of this prohibition
against the States was clarified by the Supreme Court in Calder v. Bull, 3 U.S. 386 (1798). Calder
involved a challenge by private citizens brought against the Connecticut legislature, after the legislature
ordered a new trial in a case involving a dispute about the contents of a will. The citizens alleged that the
legislature’s action was ex post facto. The Court in Calder noted that ex post facto laws can only be
criminal in nature, not civil, and that they are further described as having one of four characteristics:

1) Makes an action that was innocent when done, a crime, and punishes such crime;

2) Aggravates a crime that existed when committed, making it more severe than it was;

3) Changes the penalty of a crime to be greater than it was when committed; and

4) Alters the legal rules of evidence to require less or different testimony for the purpose of
conviction, than the law required at the time the crime was committed.

Calder, 3 U.S. at 390. This has been restated more recently by the Supreme Court as follows: “our
decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post

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facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must
disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29 (1981).

Ex post facto laws are also prohibited in The Michigan Constitution: Const. 1963, art 1, § 10.
The same principles expressed in Calder and Weaver has been adopted by the Michigan Supreme Court.
In People v. Stevenson, 416 Mich. 383, 331 N.W.2d 143 (1982), the Court applied Calder and Weaver,
with other modern federal cases, when determining the retroactivity of its abrogation of the “year and a
day” rule for charges of murder. In People v. Potts, 436 Mich 295, 461 N.W.2d 647 (1990), the Court
followed the analysis in Calder and Weaver when determining that a retroactive application of
Michigan’s sentencing guidelines was not ex post facto. Michigan has recognized that, fundamentally,
“providing fair notice that conduct is criminal is one of the central values of the Ex Post Facto Clause.”
Stevenson, 416 Mich. at 398 (internal citations omitted).

There are no cases directly on point to our current situation, but the legal analysis is
straightforward. For any of our General Offenses that are crimes at common law, or under statutes
enforceable by the County Prosecutor, the passage of a misdemeanor ordinance punishing the same
conduct can be applied retroactively, so long as the penalty is lesser or the same.

Under the Home Rule City Act, the City is authorized to enforce police, sanitary, and other
ordinances not in conflict with the general laws of Michigan. MCL 117.4i(j). The same section describes
the maximum penalty the City can bring against violators of its ordinances is a fine of $500.00 and/or
imprisonment for 90 days (or 93 days if the violation corresponds to a violation of state law that is a
misdemeanor for which the maximum period of imprisonment is 93 days). MCL 117.4i(k). These
penalties correspond to the lowest common penalty for violations of state law.

Based on this analysis, any of our General Offenses that occurred between November 25, 2017
and February 14, 2018 that are the subject of the recent recodification City Council nunc pro tunc
enactment will be addressed on a case by case basis.

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