Tanner v. City of Virginia Beach, Part One: Impacts on Local Government Noise Ordinances
By: Andrew McRoberts. This was posted Monday, July 27th, 2009
I have prosecuted noise ordinance violations, litigated the very issues decided by the Virginia Supreme Court in Tanner, and authored the LGA/VML amicus curiae brief filed in that case. Like many local government attorneys and their clients, I am struggling with the case’s impacts on local government noise ordinances.
In its opinion, the Virginia Supreme Court ruled that the City’s noise ordinance was facially unconstitutional because its use of the “reasonable person” standard did not provide “ascertainable standards” for potential defendants. The Virginia Beach ordinance at issue, in part, prohibited noise that was “unreasonably loud, disturbing and unnecessary.” This, the Court held, violated the “Due Process Clause” because it was too vague to give fair notice to prospective defendants of what conduct was prohibited. See the opinion at the Court’s website.
After some weeks, I am recovering from surprise and disappointment, but remain concerned with the aftermath of the opinion.
My concern does not arise solely from the Court’s choice to adopt a minority position, although I do note that a majority of state supreme courts have reached a contrary result. My concern relates to the impact of the ruling on the ability of local governments to regulate noise in the public interest. Do not underestimate the difficulty facing local government attorneys. As I write, many across the state are struggling to write an enforceable noise standard to replace the reasonable person test.
Two major types of standards appear to remain. First, ordinances may regulate noise by use of decibel levels. These ordinances are fairly common, but are notoriously difficult to write and even more difficult to prosecute. Second, ordinances may define examples of noise disturbances. These are also difficult to write, although the courts seem to accept them more readily than other types of noise ordinances. One thing local government attorneys may wish to consider in defining examples of noise disturbances is referencing another state statutory standard similar to disturbing the peace. However, none of these options are easy to draft or easy to prosecute.
In addition, beyond noise ordinances, I am concerned with the broader impact of the ruling on other ordinances and criminal statutes. Warrants have already been dismissed in at least one locality because the local ordinance, not having anything to do with noise, referenced the “reasonable person” standard. This bedrock of jurisprudence appears to be off limits for Virginia local governing bodies and even the Virginia General Assembly in defining criminal conduct. I predict this will be a significant issue in the aftermath of Tanner, and one not immediately obvious.
Next time: Tanner v. City of Virginia Beach, Part Two: Lingering Questions and the “Due Process Clause” Applied to Local Noise Ordinances
Tags: local government attorneys, noise, noise ordinances, reasonable person, Tanner v. City of Virginia Beach, Virginia Supreme Court