Is the “Reasonable Person” Dead in Virginia?

By: Andrew McRoberts, Editor. This was posted Thursday, January 21st, 2010

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Well, it’s over. The “reasonable person” is dead. Or is it?

The U.S. Supreme Court denied the request for a writ of certiorari by the City of Virginia Beach to review the Virginia Supreme Court’s decision overturning the City’s noise ordinance in Tanner v. City of Virginia Beach, 277 Va. 432, 674 S.E.2d 848 (2009). The Daily Press article on the writ denial is here, and the Virginia Lawyer’s Weekly article on the same topic is here.

Unfortunately, the U.S. Supreme Court did not ride to the aid of Virginia Beach, Virginia localities and others dealing with the aftermath of Tanner.

This leaves Virginia localities to grapple with various issues. Local government drafting issues were discussed in my first blog article from last year, while larger questions of law were discussed in my second blog article on the topic.

The two biggest issues that remain post-Tanner have nothing particularly to do with noise ordinances. Tanner may cast a big shadow. The question is — how big?

The first issue is the arguable inconsistency in how the Virginia Supreme Court has interpreted the Virginia and U.S. due process clauses. The Virginia Supreme Court has repeatedly held them to be co-extensive. And yet, the Virginia Supreme Court has ruled in Tanner that the “due process clause” is violated by the “reasonable person standard” as inherently vague and subjective. This is inconsistent with how the federal courts have dealt with the issue, including the Fourth Circuit Courts of Appeals, which have upheld the standard as inherently objective. This is discussed further in my earlier article.

What does this mean for other due process cases down the road? Are the two due process clauses no longer the same legal standard?

The second issue is also significant one in legal jurisprudence — that is, the arguable end of the objective “reasonable person” standard in Virginia, at least in criminal statutes and ordinances. Since violations of most local government ordinances are misdemeanors, this falls heavily upon Virginia localities. Already, criminal cases have been thrown out by judges in localities because the ordinance in question used the “reasonable person” standard.

But is Tanner limited merely to criminal statutes and ordinances? What is Tanner‘s effect in the civil context? After all, the “reasonable person” standard is used frequently and routinely in statutes, ordinances, regulations, and contracts. Is it subjective and vague in all contexts?

Since law school, I have been taught and read in case after case that the “reasonable person” standard is objective. This has been sustained in legal jurisprudence through the centuries. Now, in Tanner, the Virginia Supreme Court has apparently held that it is subjective (at least in Virginia, in this case). Does this mean that the venerable “reasonable person” standard is now off-limits, or at least inadvisable in any context that calls for an objective standard for clarity and enforceability, be it statute, ordinance, regulation or contract?

Many local government attorneys would say “no.” The Virginia Supreme Court made its ruling in a criminal context, applying a familiar due process vagueness standard — “that a statute or ordinance be sufficiently precise and definite to give fair warning to an actor that contemplated conduct is criminal.” Tanner, 277 Va. 432, 439, 674 S.E.2d 848 (2009). The Court used the word “context” several times in its discussion of the ‘reasonable person” standard, and even distinguished the use of the “reasonable person” standard in a noise ordinance from other criminal contexts. The analysis and reasoning the Supreme Court used in Tanner simply does not apply to a civil ordinance, and may not even apply to a non-noise ordinance.

Because of this criminal – civil distinction, many localities have sought to address Tanner by making the noise ordinance a civil affair, thus avoiding the case’s criminal due process analysis.

As I write, 2010’s Senate Bill 246 (Watkins) and several identical bills are making their way through the Virginia General Assembly. If adopted, these bills would clarify that localities have the authority to impose civil penalties on noise ordinance violators. Many localities intend to retain the often-preferred “reasonable person” standard to regulate noise, but avoid the constitutional infirmity of the Virginia Beach criminal noise ordinance.

So, the “reasonable person” is not dead. It’s being resuscitated as we speak. If it needed such heroic measures at all.

What do you think? Is the “reasonable person” standard dead in Virginia? On life support? Or, alive and well, just not for use in defining criminally loud noise?

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  • […] I suggested on this blog previously, the reasonable person standard is a maleable standard that has been upheld time and time again […]

    Posted by: Noise Ordinances Being Struck Down Post-Tanner: What’s A Locality To Do? | Virginia Local Government Law | February 14th, 2011 at 3:33 pm
  • I have been fighting with the Delegates since 2008 when they passed a law called HB-462 for the licensing of locksmiths. In this law they use the “reasonable person” clause in the definition section to define Locksmith in a very broad manner which in my opinion makes this law unconstitutional. Vague is one way to describe the term, but in most cases it makes the law extremely confusing and hard to interrupt. R.F.

    Posted by: Robert Frydrych | April 26th, 2010 at 9:02 pm
  • Maybe my opinion is colored by reviewing the 2010 General Assembly session, but I believe that the “reasonable person” standard is in trouble because we can’t field enough reasonable people left in Virginia to create a standard.

    Posted by: Joe DuRant | February 26th, 2010 at 6:50 pm
  • My bet is the decision ultimately does not translate to much erosion or impact on parallel or separate issues. This noise ordinance dust-up seemed destined to implode – disparate application, more than one standard used by the police.

    Great post Andrew!

    Posted by: Timothy R. Hughes | January 29th, 2010 at 11:25 am

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