Tanner v. City of Virginia Beach, Part Two: Lingering Questions and the “Due Process Clause” Applied to Local Noise Ordinances

By: Andrew McRoberts, Editor. This was posted Tuesday, July 28th, 2009

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Beyond the direct impacts on local government noise regulation resulting from the Tanner v. City of Virginia Beach case, (see previous blog post below), there are some questions that arise.

These questions arise from the Virginia Supreme Court’s reliance on the “Due Process Clause” – all caps, with no citation – to strike down the City’s noise ordinance for being unconstitutionally vague. The Court mentioned U.S. Supreme Court opinions whenever referring to this clause, so it appears the Court applied the Due Process Clause of the U.S. Constitution, found in the Fourteenth Amendment, Section 1.

If so, this presents the first question: Has Virginia’s highest court has ruled contrary to the United States Supreme Court in interpreting the federal Due Process Clause?

The justices in Washington, D.C. have repeatedly upheld some version of the “reasonable person” standard in Due Process Clause vagueness challenges. See Grayned v. City of Rockford, 408 U.S. 104 (1972), Cameron v. Johnson, 309 U.S. 611, 616 (1968), Kovacs v. Cooper, 336 U.S. 77, 79 (1949). For example, the nation’s highest court has opined that so long as an ordinance contains an “ascertainable standard” such as “the sensitivity of a hypothetical reasonable man,” the ordinance is not unconstitutionally vague. Coates v. City of Cincinatti, 402 U.S. 611, 613-614 (1971).

Not surprisingly, the Fourth Circuit Court of Appeals has reached the same result. See Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 486, 493 (4th Cir. 1983) (“we have no difficulty sustaining the Section [prohibiting “loud, disturbing … noise”] against the charge of vagueness.”); Asquith v. City of Beaufort, 139 F.3d 408, 411 (4th Cir. 1998) (upholding local noise ordinance against constitutional due process vagueness challenge because it had been interpreted by the state supreme court to prohibit noises “unreasonably loud under the circumstances.”)

Given this, is it possible that the Virginia Supreme Court intended to apply the state due process standard found in Article I, Section 11 of the Virginia Constitution? It does not appear so. The Court did not cite the Virginia Constitution, or even cite its own precedent which has interpreted the Virginia due process standard. However, if the Court did rely upon the Virginia Constitution, it seems that the federal Due Process Clause now provides a different standard of protection than its Virginia counterpart.

But, if so, this raises a second, more troubling question.

The Virginia Supreme Court has always declared Virginia’s due process protection to be “co-extensive” with the federal Due Process Clause of Section 1 of the U.S. Fourteenth Amendment. E.g., Willis v. Mullett, 263 Va. 653, 657 (2002). In its Tanner opinion, while the Virginia Supreme Court cited numerous federal cases to support its opinion, it did not address the “co-extensive” issue. In fact, the Court declined to discuss this issue when explicitly requested to do so. In its Petition for Rehearing, the City of Virginia Beach fairly presented the second question: Does the Virginia Constitution’s due process protection remain co-extensive with the U.S. Constitution’s Due Process Clause?

Two major, alternative questions remain after the Tanner decision: (1) Has the Commonwealth’s highest court interpreted the U.S. Constitution’s Due Process Clause differently than the U.S. Supreme Court? (2) Has the Virginia Supreme Court, without discussion or comment, uncoupled the formerly identical constitutional due process protections so they are no longer “co-extensive?”

As big an impact as the Virginia Supreme Court’s striking down the “reasonable person” test as a criminal standard will have on local noise regulation, the answers to these two questions may have an even greater long-term impact on constitutional jurisprudence.

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