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?

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.

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