This case presents a facial constitutional challenge to a nuisance abatement ordinance (padlock ordinance) adopted by the Grand Rapids City Commission. Ordinance No. 93-39. The ordinance authorizes the commission to declare a property a public nuisance if it is found to be used repeatedly for illegal drugs or prostitution. Further, properties declared to be public nuisances may be padlocked
For the reasons set forth below, we hold that the ordinance is constitutional on its face. Further, we find that the state nuisance abatement statute, M.C.L. § 600.3801 et seq.; M.S.A. § 27A.3801 et seq., does not preempt the Grand Rapids ordinance. The decision of the Court of Appeals is reversed.
On September 7, 1993, the Grand Rapids City Commission adopted Ordinance No. 93-39.
Section 9.702 sets forth the city commission's legislative findings that the repeated use, sale, furnishing, giving or possession of controlled substances or drug paraphernalia, or the use of property for purposes of prostitution or solicitation for prostitution may result in declaration of a public nuisance. According to the commission, the public nuisance results from the increased criminal activity that occurs in the neighborhood surrounding the relevant property, increased pedestrian and vehicular traffic in the neighborhood, the fear engendered in the minds of neighbors, and the disruption of the peace and quiet of the residents of the neighborhood.
In § 9.703 the commission states that it may declare by resolution that property used in the proscribed activities is a public nuisance and may order that the nuisance be abated as provided in the ordinance.
Section 9.704 sets forth the procedure for declaration of a public nuisance, including that notice be given to the owner of the property, who then has the opportunity to be heard at a public evidentiary hearing before the city commission, sitting as an administrative body as provided for in title V, § 1 of the city charter, and acting in a quasi-judicial capacity. The commission is authorized to make the determination whether a public nuisance exists under the standards established by the ordinance.
Section 9.705 provides that if the commission determines by a preponderance of the evidence that a property is a public nuisance, it may by resolution order abatement of the nuisance, which includes padlocking the property for a period of up to one year.
Section 9.709 provides that an aggrieved property owner may appeal to the circuit court, which shall review the city commission's decision and determine whether that decision is in violation of the law, has been procured by fraud, or is an abuse of discretion; additionally, the circuit court will review the commission's decision to determine if it is supported by competent, substantial, and material evidence on the whole record. Review by the circuit court is to be carried out on the basis of the record made before the city commission.
Defendant City of Grand Rapids asserts that in passing this ordinance it was addressing an issue of immediacy and great significance to the city. Defendant states that it was confronted with intolerable deterioration and destruction of some of its inner city neighborhoods.
Shortly after the adoption of Ordinance No. 93-39, plaintiff Rental Property Owners Association of Kent County (RPOA) commenced this action in the Kent Circuit Court, challenging the ordinance on several constitutional grounds. Plaintiff alleged inter alia that the ordinance is unconstitutional under Const. 1963, art. 3, § 2, and art 6, § 1, in that it constitutes a usurpation of the judicial power by a legislative body; that it violates art 6, § 13 by attempting to limit the original jurisdiction of the circuit court and, furthermore,
Plaintiff filed a motion for summary disposition pursuant to MCR 2.116(C)(9) and (10), alleging that defendant had failed to state valid defenses to the claims asserted as a matter of law, and that there was no genuine issue with respect to any material fact, thereby entitling plaintiff to judgment as a matter of law. The circuit court heard oral arguments and subsequently issued a written opinion denying plaintiff's motion for summary disposition. The court noted that Ordinance No. 93-39 was enacted in response to the court's previous order enjoining Ordinance No. 92-07 on the ground that that ordinance provided an inadequate hearing procedure. In then ruling on the complaint at issue in the case at bar, the circuit court restricted itself to the issue of the scope of appeal provided by the ordinance, indicating that this was the "sole failing that the previous ordinance was found to have had by this Court." Judge Smolenski then concluded: "This new ordinance ... is specific in defining the scope of review by Circuit Court and clearly requires that a record be made of proceedings before the City Commission. It is the Opinion of this Court that that standard of review or scope of appeal is appropriate and legally sufficient to protect the rights of aggrieved parties." Id. Accordingly, the circuit court denied plaintiff's request for declaratory judgment and injunctive relief.
In a unanimous opinion, the Court of Appeals reversed the circuit court, concluding "that the ordinance suffers from numerous constitutional flaws." 209 Mich.App. 391, 393, 531 N.W.2d 731 (1995). Specifically, the Court of Appeals held "that the padlocking of property requires the exercise of a court's equitable powers and, therefore, must be achieved by an action in a court of appropriate jurisdiction, not before a legislative body such as the city commission." Id. at 394-395, 531 N.W.2d 731. The Court of Appeals also concluded that the ordinance's purported restriction of the jurisdiction of the circuit court is violative of Const. 1963, art. 6, § 13, which provides that the circuit court shall have jurisdiction in all matters not prohibited by law. Id. at 395, 531 N.W.2d 731.
The enactment and enforcement of ordinances related to municipal concerns is a valid exercise of municipal police powers as long as the ordinance does not conflict with the constitution or general laws. Austin v. Older, 283 Mich. 667, 674, 278 N.W. 727 (1938). Further, ordinances exercising police powers are presumed to be constitutional, Fass v. Highland Park (On Rehearing), 321 Mich. 156, 161, 32 N.W.2d 375 (1948), and the burden is on the challenger to prove otherwise.Cady v. Detroit, 289 Mich. 499, 286 N.W. 805 (1939).
HOME RULE CITIES
Grand Rapids is a home rule city. Home rule cites have broad powers to enact ordinances for the benefit of municipal concerns under the Michigan Constitution. Const. 1963, art. 7, § 22 provides:
The authority of home rule cities to enact and enforce ordinances is further defined by the home rule cities act, M.C.L. § 117.1 et seq.; M.S.A. § 5.2071 et seq. It provides in relevant part:
The home rule cities act is intended to give cities a large measure of home rule. It grants general rights and powers subject to enumerated restrictions. Detroit v. Walker, 445 Mich. 682, 690, 520 N.W.2d 135 (1994); Conroy v. Battle Creek, 314 Mich. 210, 22 N.W.2d 275 (1946).
It is well established that nuisance abatement, as a means to promote public health, safety, and welfare, is a valid goal of municipal police power. Cady, supra; People v. McKendrick, 188 Mich.App. 128, 139, 468 N.W.2d 903 (1991); Moore v. Detroit (On Remand), 159 Mich.App. 199, 202, 406 N.W.2d 488 (1987). The home rule cities act specifically requires home rule city charters to provide
The City of Grand Rapids enacted Ordinance No. 93-39 to address deterioration of inner city neighborhoods resulting from proliferation of properties being used for illegal drugs and prostitution. The ordinance declares properties used repeatedly for the
to be public nuisances. Section 9.702. The ordinance states further that such a nuisance results from
Evidently, the existence of alternative methods of control and abatement of illegal drug use and prostitution have proven ineffective or overly general to arrest the proliferation of illegal drug use and prostitution in Grand Rapids.
The dissent of Justice Cavanagh would hold that the ordinance is preempted by Michigan's nuisance abatement statute and, therefore, does not address the constitutional questions presented. The dissent relies exclusively on unsubstantiated assumptions regarding the pervasiveness of the state nuisance abatement statute and the "very significant interest in statewide uniformity" in the regulation of properties used for illegal drugs and prostitution. Op., at p. 528. The dissent does this despite the constitutional mandate that the authority of municipalities to enact and enforce ordinances is to be liberally construed. Const. 1963, art. 7, §§ 22 and 34.
A municipality's power to adopt ordinances related to municipal concerns is "subject to the constitution and law." Const. 1963, art. 7, § 22. This Court has long held that the existence of a nuisance abatement statute does not prohibit municipalities from passing or enforcing nuisance abatement ordinances. People v. Detroit White Lead Works, 82 Mich. 471, 479, 46 N.W. 735 (1890). However, as the dissent notes, a municipal ordinance is preempted by state law if 1) the statute completely occupies the field that ordinance attempts to regulate, or 2) the ordinance directly conflicts with a state statute.
In People v. Llewellyn, 401 Mich. 314, 323-324, 257 N.W.2d 902 (1977), this Court set forth guidelines for determining whether a statute has preempted municipal ordinances by completely occupying the field of regulation:
The dissent recognizes that the state nuisance abatement statute, M.C.L. § 600.3801; M.S.A. § 27A.3801, does not expressly preempt municipal nuisance ordinances and that no legislative history implies preemption. The dissent, therefore, relies on the third and forth prongs of field-preemption analysis: the pervasiveness of the statutory scheme and the state's need for uniformity.
However, the dissent does not point to any state interest in having uniform nuisance abatement laws.
We do not believe that uniformity of nuisance abatement procedures is necessary to further the state's interest, because the Grand Rapids padlock ordinance does not inhibit the state's ability to abate nuisances. The state statute, M.C.L. § 600.3801 et seq.; M.S.A. § 27A.3801 et seq., defines nuisance to include the use of a place for prostitution or "the unlawful manufacture, transporting, sale, keeping for sale, bartering, or furnishing of any controlled substance...." M.C.L. § 600.3801; M.S.A. § 27A.3801. It allows, but does not require, the Attorney General, a county prosecutor, or a private citizen to bring an action to enjoin the nuisance and to abate the nuisance by padlocking a property for a period of one year. M.C.L. § 600.3805; M.S.A. § 27A.3805 and M.C.L. § 600.3825; M.S.A. § 27A.3825. The Grand Rapids padlock ordinance does nothing to restrict or interfere with proceedings under the state statute.
The nuisance abatement statute is distinguishable from statutes that this Court has found express or imply the need for uniform regulation. For example, this Court has found that the control of alcoholic beverages, the pasteurization of milk, and the definition of obscenity are subjects requiring statewide regulation.
The dissent also argues that the pervasiveness of the scope of the nuisance statute weighs in favor of preemption. The dissent, however, does not discuss the assertion, and we do not believe that it is supported by the language of the statute.
Because there is no evidence that the nuisance abatement statute occupies the field that the ordinance addresses, the dissent must show that the ordinance directly conflicts with the state statute. However, at its core, its preemption analysis rests on the unsupported assertion that the mere existence of a statute preempts local regulation of the same subject matter. The enactment and enforcement of similar nuisance abatement goals and remedies
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In this case, the Grand Rapids padlock ordinance does not permit anything that the public nuisance statute prohibits, nor does it prohibit anything that the statute permits. Thus, we find that the ordinance does not directly conflict with the state nuisance abatement statute.
Because there is no evidence that the nuisance abatement statute intended to occupy the field of nuisance abatement and because the ordinance does not directly conflict with the statute, we hold that the ordinance is not preempted.
While abatement of properties used for controlled substances or prostitution is a valid goal of the municipal police power, the means by which abatement is accomplished must be reasonable. Cady, supra, at p. 513, 286 N.W. 805. The plaintiffs argue that the padlocking of a property for up to one year is
The forfeiture act requires that a court of competent jurisdiction determine when title to real property is forfeited.
The abatement of nuisances by padlocking is not a novel exercise of municipal police power. In Lenario v. Ward, 129 Misc.2d 326, 492 N.Y.S.2d 985 (1985), a New York City ordinance allowing the abatement and padlocking for up to one year of properties used for illegal gaming operations was upheld under the city's police power. Nor is the abatement of nuisances by padlocking the most invasive measure that a local government can take under its police powers.
For example, in Adams Outdoor Advertising v. East Lansing, 439 Mich. 209, 483 N.W.2d 38 (1992), this Court upheld a municipal ordinance that permitted the City of East Lansing to force billboards owners to bring their billboards into compliance with a newly enacted ordinance. If an existing billboard did not come into compliance within a defined period, the city commission could forcibly terminate the nonconforming billboards. In Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962), the United States Supreme Court upheld a town's ordinance that had the effect of permanently closing down an active sand and gravel pit within the town limits. In Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 96 S.Ct. 2440, 2452-53, 49 L.Ed.2d 310 (1976), the United States Supreme Court upheld a Detroit ordinance that allowed the city to restrict the location of adult uses despite the implication of First Amendment issues. The Court held that Detroit's interest in preserving the character of its neighborhoods outweighed the interest in expression bordering on pornography. Detroit demonstrated that it had an interest in regulating adult uses unrelated to the content of speech and that the restrictions did not totally suppress such speech.
The regulations in Adams Outdoor Advertising, Goldblatt, and American Mini Theatres implicated constitutionally protected interests: property and speech. As emphasized by Chief Justice Mallett in his dissent, the padlock ordinance does affect a persons "right to live in one's home." Op., at p. 530. However, there is no constitutional right to violate the law in one's home. Thus, we cannot agree with Chief Justice Mallett that because this padlock ordinance permits a city commission, rather than a court, to declare a property a nuisance, that it threatens the "fabric of the Michigan or United States Constitution." Op., at p. 530.
Finally, as stated by Justice Stevens in American Mini Theatres, Inc., supra at 71, 96 S.Ct. at 2453, cities "must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." The padlocking of properties sends a strong message that repeated controlled substance violations or repeated use of a property for prostitution will not be tolerated while not depriving the property owner of title.
In this case, the Court of Appeals struck down the ordinance on two primary grounds: first, it held that the ordinance violates the doctrine of separation of powers, and, second, it held that the ordinance unlawfully limits the jurisdiction of the circuit court. For the reasons below, we disagree and find that the ordinance is constitutional on its face.
SEPARATION OF POWERS
The Court of Appeals held that the padlock ordinance violated the separation of powers doctrine. We believe that the Court erred in applying this doctrine to home rule cities.
Const. 1963, art. 3, § 2, incorporates the separation of powers doctrine into the Michigan Constitution. It states:
In Detroit Osteopathic Hosp. v. Southfield, 377 Mich. 128, 139 N.W.2d 728 (1966), we declined to answer whether art. 3, § 2 applies only to state government, or whether it applies to local government as well. Both the context and history of the provision demonstrate that the provision applies only to state government.
The context of art. 3, § 2 suggests that the provision applies only to state government and not to local government. The other sections of article 3 strongly suggest that the term "government" in art. 3, § 2 is only intended to included state government. Art. 3, § 1 states that "[t]he seat of government shall be at Lansing." Obviously, the term "government" in this section refers only to state, and not local, government.
Furthermore, the history of municipal government in this state suggests that the provision does not apply to localities. Municipal government in Michigan typically has not been divided among three branches of government.
The provisions of the home rule cities act that allow the blending of legislative and other functions existed at the time art. 3, § 2 of the 1963 Constitution was written. Likewise, Michigan has a longstanding tradition of city manager government. There is no evidence that the framers of the 1963 Constitution intended to call these acts and the structure of numerous municipalities into question by including localities within the scope of art. 3, § 2.
CIRCUIT COURT JURISDICTION
The Court of Appeals held that the ordinance sought to restrict the jurisdiction of the circuit court in violation of Const. 1963, art. 6, § 13, which states:
The ordinance provision at issue states:
We agree that municipalities cannot limit a state court's jurisdiction. However, we find the Court of Appeal's reliance on art. 6, § 13 in isolation to be misplaced. Art. 6, § 13 applies "except as otherwise provided by law...." For the reasons set forth below, we believe that the circuit court's jurisdiction is limited by Const. 1963, art. 6, § 28.
Const 1963, art. 6, § 28 provides in pertinent part:
This provision provides the minimum standard of review for appeals from quasi-judicial final decisions, findings, rulings, and orders that affect private rights. Carleton Sportsman's Club v. Exeter Twp., 217 Mich.App. 195, 550 N.W.2d 867 (1996); Lorland Civic Ass'n v. DiMatteo, 10 Mich.App. 129, 135-136, 157 N.W.2d 1 (1968).
The process of declaring and abating a public nuisance under the padlock ordinance is quasi-judicial in nature. It is well-established that the legislative bodies of cities may act in a quasi-judicial fashion in various circumstances. The Grand Rapids City Charter specifically provides that the city commission may exercise both legislative and administrative powers. Title V, § 51. Further, under the zoning enabling act, M.C.L. § 125.585(1); M.S.A. § 5.2935(1), the legislative body of a city is specifically authorized to exercise its police powers in a quasi-judicial fashion "as a board of appeals upon questions arising under a zoning ordinance."
There is no express provision in the home rule cities act defining a city commission's powers with respect to nuisance abatement. However, as we have discussed, the constitution and the home rule cities act afford home rule cities broad power to act on behalf of municipal concerns. See Const. 1963, art. 7, § 22, M.C.L. § 117.4j(3); M.S.A. § 5.2083(3), and M.C.L. § 117.3(j); M.S.A. § 5.2073(j). This broad authority to enact ordinances in furtherance of municipal concerns is the
Plaintiff argues, finally, that the ordinance is defective because it does not afford adequate procedural due process. The Court of Appeals did not reach this issue.
It is fundamental to both the state and federal constitutions that no person shall be deprived of property without due process of law. "Generally, special or summary proceedings for abatement of nuisances are valid where they afford the essential elements of due process of law, namely, notice and an opportunity to be heard." People v. McKendrick, supra, at p. 139, 468 N.W.2d 903, citing Yates v. Milwaukee, 77 U.S. (10 Wall.) 497, 19 L.Ed. 984 (1870). This Court in Bundo, supra, addressed the procedural due process required in local legislative body decisions. Bundo held that a liquor licensee has a "property right" in a renewal of the license, and, where a local legislative body decides to recommend nonrenewal, the licensee must be afforded rudimentary due process including notice and a hearing. We find that the padlock ordinance provides such notice and opportunity to be heard.
The Grand Rapids padlock ordinance provides for notice by certified mail at least seven days before a public evidentiary hearing before the city commission to all persons that the city is aware have an ownership interest in the property. Section 9.704. The ordinance provides the owners an opportunity to present relevant and material evidence, to make factual and legal arguments, and to cross-examine opposing witnesses. Id. The owners may chose to be represented by an attorney. Id. If the city commission determines by a preponderance of the evidence that a property is a public nuisance, then it may order the nuisance abated. Section 9.705. The abatement process targets the specific apartment where the nuisance occurred in multifamily dwellings rather than padlocking the entire property. Id.
Further, we reject plaintiff's argument that the city commission could not render an impartial decision. It is not in the interest of any city to padlock rental properties, nor can the city expect pecuniary gains from enforcement of the ordinance. Finally, decisions of the city commission declaring a property a nuisance and ordering the property padlocked are reviewable by the circuit court, favoring the conclusion that the ordinance does not violate procedural due process. On its face, we hold that the ordinance meets the due process requirements of notice and a hearing.
We reverse the decision of the Court of Appeals and hold that the ordinance is, on its face, constitutional and a valid exercise of municipal police power.
BRICKLEY, BOYLE and RILEY, JJ., concurred with WEAVER, J.
MARILYN J. KELLY, J., not participating.
MICHAEL F. CAVANAGH, Justice (dissenting).
I cannot agree with the majority's conclusion that the Grand Rapids padlock ordinance is a valid exercise of municipal authority. Therefore, I dissent.
In a remarkable cloud of dust, this Court has again ventured into the long-established
The majority, in treating the due process issue in four understandably terse paragraphs, labors through several casuistic steps to save the ordinance. After listing provisions that allow a property owner to present evidence, to cross-examine and to have an attorney, all very "due" process, the majority then acknowledges that "the city commission determines by a preponderance of the evidence that a property is a public nuisance...." Op., at p. 516. It goes on to blithely assert that, of course, the city council could render an impartial decision because "[i]t is not in the interest of any city to padlock rental properties...." This is a strange statement, indeed, after having labored so mightily to establish how uniquely important it is to the City of Grand Rapids to be able to stamp out this vice without having to resort to state nuisance law.
After today's ruling by this Court, I can't imagine why cities throughout Michigan would not jump at the chance to have all ordinance violations "tried" by their city council, which enacts the ordinance, which has its building or police or fire departments enforce and prosecute under the ordinance, and, to complete the circle, which then determines if there has been a violation. Perhaps, this Court, in an effort to compensate for its decision in Paragon v. City of Novi, 452 Mich. 568, 550 N.W.2d 772 (1996), which gave zoning boards of appeal superior zoning authority over their creating city councils, now wishes to bless city councils across this state with unprecedented authority.
Although as a prudential matter we generally do not decide cases on grounds not argued by the parties, we have the inherent authority to do so. Because the record presented in this case is fully adequate for the ruling I contemplate—specifically, because it contains all possible justifications defendant could offer in support of its ordinance—I deem it appropriate to decide this case on a ground not argued by the parties: the doctrine of implied preemption.
The Michigan nuisance abatement statute, M.C.L. § 600.3801 et seq.; M.S.A. § 27A.3801 et seq., addresses the problems of illegal drugs and prostitution, and, in conjunction with MCR 3.601, sets forth the procedure applicable statewide for determination and abatement of a public nuisance. Accordingly, I would hold that the Grand Rapids padlock ordinance is impliedly preempted and, therefore, invalid.
The Michigan nuisance abatement statute provides as follows:
The factors to be considered in a preemption analysis are as follows:
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In my opinion, the third and fourth factors weigh heavily in favor of a conclusion that the Grand Rapids ordinance is preempted by the nuisance abatement statute, which, along with MCR 3.601,
The consideration of uniformity is of paramount importance, and this consideration is implicated by the fact that violations of the Grand Rapids ordinance, like violations of the state nuisance abatement statute, can only be determined, and penalties enforced, by a court. Grand Rapids City Charter, title V, § 52(b).
Furthermore, all the concerns expressed by the City of Grand Rapids in enacting its ordinance are addressed and provided for in the state nuisance abatement statute. And there is no reason for us to assume that the blight visited on Grand Rapids by the criminal activities at issue here is more consequential than that suffered by any other affected community in this state. In sum, the pervasiveness of the state statutory scheme and the very significant interest in statewide uniformity weigh heavily in favor of a finding of implied preemption in this case. In fact, to the extent that the Grand Rapids ordinance differs from the nuisance abatement statute, I would hold that it is in direct conflict with the statute. It is not plausible to argue that the Grand Rapids ordinance merely supplements the state statute.
Defendant claims that the Court of Appeals erred by characterizing the Grand Rapids City Commission as merely a legislative body, arguing instead that it is both legislative and administrative, and that, under the administrative rubric, it properly may exercise quasi-judicial power to declare the existence of a nuisance. It is true that we previously have recognized the dual nature—both legislative and administrative—of the Grand Rapids City Commission. See Babcock v. Grand Rapids, 308 Mich. 412, 413, 14 N.W.2d 48 (1944). However, because this case does not require it, I do not essay an exhaustive discussion of the quasi-judicial powers available to administrative bodies. And neither do I address the differences—significant or otherwise—between administrative bodies such as municipal commissions and state administrative agencies.
Writing for a unanimous Court in Everett v. City of Marquette, 53 Mich. 450, 452, 19 N.W. 140 (1884), Chief Justice Cooley enunciated a principle and a rule of law that continue in full effect in our jurisprudence: "Maintaining a nuisance is a public offense; and the fact, as in other cases of alleged criminality,
My resolution of this case makes it unnecessary to further address plaintiff's due process challenge to Ordinance No. 93-39, or plaintiff's claim that the abatement remedy provided for in the ordinance is de facto a forfeiture. I also decline to address plaintiff's arguments relative to the ordinance's attempt to define the scope and standard of circuit court jurisdiction, except to note again that I am unaware of any source of authority, certainly none is cited by the majority, empowering a municipality to in any way address the jurisdictional or substantive aspects of the circuit court's power.
For the foregoing reasons, I would affirm the judgment of the Court of Appeals, and would remand this matter to the circuit court for entry of a permanent injunction against the enforcement of Grand Rapids Ordinance No. 93-39.
MALLETT, Chief Justice (dissenting).
Although I agree with Justice Cavanagh that the decision of the Court of Appeals should be affirmed, I cannot agree with his preemption analysis for the reasons stated in part II(c) of the majority opinion. I also agree with the majority's assertion that the separation of powers doctrine, contained in Const. 1963, art. 3, § 2, does not apply to local governments.
I believe that the decision of the Court of Appeals should be affirmed, however, because § 9.704(3) of the Grand Rapids padlock ordinance vests the authority to adjudicate violations of the ordinance in the city commission, not the courts. It states:
This portion of the padlock ordinance attempts to give the city commission authority beyond what is permitted by Const. 1963, art. 6, § 1, the home rule cities act, M.C.L. § 117.1 et seq.; M.S.A. § 5.2071 et seq.; or the Due Process Clauses, Const. 1963, art. 1, § 17; U.S. Const, Am. XIV.
An axiom of municipal law is that municipalities are agents of the state, created for the administration of local government. Streat v. Vermilya, 268 Mich. 1, 6, 255 N.W. 604 (1934). Municipalities have no inherent power; rather, they may only exercise powers that the state confers upon them. Bivens v. Grand Rapids, 443 Mich. 391, 397, 505 N.W.2d 239 (1993). While the home rule act grants broad authority to municipalities, this authority is not unlimited.
Art. 6, § 1 limits the exercise of judicial power to the courts. It states:
Thus, because cities only have the powers that the state grants them, and because the state constitution vests the judicial power exclusively in the courts, municipalities may not exercise judicial power. Professor LeDuc has discussed this concept in relation to legislatively created administrative agencies:
In this case, the City of Grand Rapids has attempted to characterize § 9.704(3) as an exercise of "quasi-judicial" powers. It is true that cities, like other administrative agencies, very often exercise quasi-judicial powers.
Because of the nature of the interest at stake in this case, however, the padlock ordinance cannot properly be characterized as conferring only "quasi-judicial" powers on the city commission. This is not a case about cutting weeds, revoking a business' license, or rezoning a parcel of land. Rather, this ordinance has the potential to deprive individuals of access to their homes for up to a year. In this way, the ordinance affects one of the most fundamental rights in Anglo-American jurisprudence—the right to live in one's home. If an individual is going to be deprived of this right, traditional notions of due process require a proper adjudication before an impartial tribunal that is designed to protect the rights of the individual. That is, it requires an exercise of judicial power. A city commission is simply not equipped to serve as a substitute for a court.
I wish to make clear that I agree with the majority that cities have broad authority under the home rule cities act and that nuisance abatement is a valid goal of municipal government. In fact, I see no reason why a municipality cannot establish a padlock ordinance that is similar to the state nuisance abatement statute. M.C.L. § 600.3801; M.S.A. § 27A.3801. What a municipality cannot do, however, is usurp the role of the judiciary in adjudicating violations of these ordinances.
Clearly, the City of Grand Rapids, like many other Michigan cities, faces serious problems because of drugs and prostitution, and, as Justice Stevens stated in Young v. American Mini Theatres, 427 U.S. 50, 71, 96 S.Ct. 2440, 2453, 49 L.Ed.2d 310 (1976), cities "must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." In our rush to combat the serious problems caused by drugs and prostitution, however, we must be careful not to trample on the fabric of the Michigan or United States Constitution. I fear that the Grands Rapids padlock ordinance does just that.