by Macomb Count}' Circuit Court

10/6.12017

STATE O,FMICHIGAN

SIXTEENTH JUDICIAL CIRCUIT COURT

PEOPLE OF TilE CITY OF ROSEVILLE,

Plaintiff-Appellee,

vs. CaseNo. 17-194-AV

TAYLOR NICOLAS TRUPIANO,

Defendant-Appellant.

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OPINION AND ORDER

This matter is before the Cow1 on Defendant-Appellant Taylor Nicolas Trupiano's

(''defendant") claim of appeal. For the reasons se~ forth below, the ruling of the 39th District

Court is REVERSED and defendant's responsibility for the citation is VACATED.

I. Factual and Procedural Background

On January 5, 2017, a Roseville police officer issued a citation to defendant.for leaving

his car unattended without first stopping the engine, in violation of Uniform Traffic Code Rule

28.1458 ("Rule 458"). Defendant contends that he was wanning his vehicle in ~s own driveway
-.....
because the temperature was typical of Michigan winters, extremely cold. However, on March

23, 2017, the 39th District Court found defendant responsible for the misdemeanor violation, and

defendant was ordered to pay the accompying $128.00 fine. On May 1, 2017, defendant filed.the

instant appeal.
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10/6/2017

ll. Standard of Review

A trial court's conclusions of law are reviewed de novo. Glen Lake-Crystal Riler

Watershed Riparians v Glen Lake Ass 'n, 264 Mich App 523, 531; 695 NW2d 508 (2004).

m.Argumenu

Defendant ftrst argues that Rule 458 does not apply to private driveways. If it does;

defendant posits that Rule 458 is unconstitutional. Defendant also avers that Rule 458 is

preempted by the Legislature's recent amendment ofMCL 257.676 and rescission of Rule 458.

Further, defend~t asserts that it was not the Legislature's intent to apply Rule 458 to private

driveways. Next, defendant contends that the totality of the circumstaQ.ces on the date of the

incident indicate the he should have not received the citation. Specifically, defendant claims that

it is reasonable to warm up his car before driving during the wintery c~mditioll$. for the welfare of

himself and others. Additionally, defendant.<?laims that Rule 458 should not be enforced because

his action giving rise to the citation is so common in Michigan winters. Defendant also claims

that Rule 458. is against public policy, the officer abused his discretion in issuing the citation, and

the officer wrongfully entered private property without a warrant.

In response, Plaintiff-Appellant People.of Roseville (''plaintiff'') argues that Rule 458 is

constitutional, and that the sUpport defendant cites is inapplicable to the case at bar.

Additionally, plaintiff claims that the statute is not vague. Next, plaiptiff contends that the "any

other. place" language in the statute applies to private driveways. Also, plaintiff avers that the

Uniform Traffic Code is not preempted by the Motor Vehicle Code because the city of Roseville

is a "Home Rule City" and bas adopted the Uniform Traffic Code. Furthermore, plaintiff asserts

that the statute defendant cites is inapplicable as it concerns parking brakes and highways.

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Plaintiff also arg"Qes thatthe Court should not review defendant's arguments that were not raised

at the trial court regarding the, alleged warrantless search and seiZure and public policy concerns.

IV. Law and Analysis

a. Scope ofRule 458.

The Court shall frrst address whether Rule 458 applies to defendant's driveway. Rule

458 provides:

Requirements when leaving motor vehicle unattended; violation as

civil infraction. (1) A person who has control or .charge of a motor
vehicle shall not allow the vehicle to stand unattended on any
street or any other place without first stopping the engine~ locking
the ignition, and removing- and taking possession of the ignition
key. The provisions of this rule that pertain to the locking of the
ignition and removing and taking possession of the ignition key do
not apply to motor vehicles that are manufactured with an ignition
system that does not .have a key anci that is incapable of being
locked. (2) A person who violates this rule is responsible for a
civil infraction. [Emphasis added.)

Statutory interpretation requires courts to consider the placement of the critical language

in the statutory scheme. United States Fidelity & Guaranty Co v Mich Catastrophic Claims

Ass'n (On Rehearing), 484 Mich 1, 12; 795 NW2d 101 (2009). In doing so, courts "must give

effect to every word, phrase, and clause in a statute and avoid an interpretation that would render

any part of the statute surplusage or nugatory." State Farm Fire & Cas Co v Old Republic Ins

Co, 466 Mich 142, 146; 644 NW2d 715 (2002).

To fully understand the scope of Ruie 458, it is necessary to consider other provisions

within the Uniform Traffic Code. Important to the instant litigation are provisions that

specifically reference driveways. First, Uniform Traffic Code Rule 28.1437 ("Rule 437')

provides:

The driver of a vehicle that' is merging from an alley~ driveway, or

building shall stop the vehicle immediately before driving onto a
sidewalk or onto the sidewalk area extending across any alleyway,
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10/6!2017

~hall yiel9 the right-of-way to any pedestrian as may be necessary

to avoid collision and, upon entering the. roadway shall yield the
right-of-way to all vehicles approaching on the roadway.
[Emphasis added.]

Next, Uniform Traffic Code Rule 28.1448 ("Rule 448") provides that the "driver of a vehicle

shall not drive on or within any sidewalk area, except at a driveway." (Emphasis added).

Although Uniform Traffic Code.Rule 28.1615 ("Rule 615''}pertajns to operators ofbicycles, the.

drafters of this rule specifically referenced driveways. Rule 615 provides:

The operator of a bicycle who emerges from an alley, driveway, or

building shall, upon approaching a sidewal)c or the sidewalk area
extending across any alleyway, yield the right-of-way to all
pedestrians approaching on the sidewalk area and, upon entering
the roadway, shall yield the right-of-way to all vehicles
approaching on the roadway. [Emphasis added.]

Finally, it is important to consider the catch-all provision contained in Uniform Traffic Code

Rule 28.1211 ("Rule 211 "):

The provisions of this code that relate to the operation of vehicles

refer exclusively to the operation of vehicles on streets or
highways, except where a different place is specifically referred to
in a rule of this code. [Emphasis added.]

Here, unlike the express inclusion of the term "driveway" in Rules 437,448, and 615, the

language of Rule 458 of does not specifically reference driveway. Furthermore, when the.Court

considers the Uniform Traffic Code's catch-all provision contained in Rule 211, the Court is

convinced that Rule 458's "or any other place" language is not a "specifically referred to"
,
different place. See Rule 211. Rather, "or any other place" is broad and. ambiguous.

Consequently, in considera~on of other provisions specifically referencing driveways, language

notably absent :from Rule 458, and in light of the catch-all provision of Rule 211, there is no

basis for Rule 458 to apply to driveways.

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b. Constitutionality ofRule 458

The Court shall next address defendant's contention that Rule 458 is unconstitutional.

When reviewing the constitutionality of a statute, courts apply ''the well-established rule that a

statute is presumed to be constitutional unless its unconstitutionality is clearly apparent."

McDougallvSchanz,,46.1 Mich 15,24; 597NW2d 148 (1999).

A statute may be determined to be "unconstitutionally vague" when "(1} it does not

provide fair notice of the conduct proscribed, (2) it confers on the trier of fact unstructured and

unlimited discretion to determine whether an offense has been committed, or (3) its coverage is

overly broad and impinges on First Amendment Freedoms., People v Vronko, 228 Mich App

649, 652; 579 NW2d 138 (1998). "To evaluate a va~eness challenge,'' courts "must examine

the entire text of the statute and give the words of the statute their ordinary meanings;" People v

Hrlic, 277 Mich App 260, 263; 744 NW2d 221 (2007). "A statute is not vague if the-meaning of

the words in controversy can be fairly ascertained by reference to judicial determinations, the

common law, dictionaries, treatises, or their generaUy accepted meaning." Vronko, 228 Mich

Appat653.

"The proper inquiry is not whether the statute may be susceptible to ~permissible

interpretations, but whether the statute is vague as applied to the conduct allegedly proscribed in

this case." Id at 652. An affirmative defense is not void for vagueness where the statute

"provides a person of ordinary intelligence a reasonable opportunity to know what is prohibited

and what circumstances .must exist in order for the affirmative defense . . . to be applicable."

People. v Roberts, 292 Mich App 492, 500; 808 NW2d 290 (2011) (citation and quotation marks

omitted).

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10/6/2017

Jn the case at bar, after examining "the entire text of the" Uniform Traffic Code, the

Cou,rt is convinced th~t the language of Rule 458, while ambiguous and may perhaps "be

susceptible to impennissible interpretations/' it is not unconstitutionaliy vague as applied to this

case. Hrlic, 277 Mich App at 263; Vronko, 22S Mich App at 652.

Here, defendant readily admits that he left his vehicle 1mattended in his driveway while

the engine was running on January 5, 2017. Defendant claims that he did not have fair notice

that Rule 458 applied to driveways and that the officer had unbJ;idled discretion to issue the

citation. However, as addressed above in the previous sectio~ the Court has determined that

driveways are not within the purview of Rule 458 because other provisions within the Unifonn

Traffic Code specifically reference driveways. See Rules 437, 448, and 615. Due to the Court's

determination that Rule 458 does not apply to driveways, defendant's argument that Rule 45~ is

unconstituti9nally vague -necessarily fails. Specifically, defendant bas failed to. support that Rule

458 violates any of the aforementioned Vronko factors. Without satisfying his burden, defendant

has presented no basis to support a finding that Rule 458. is unconstitutionally vague. Therefore,

the Court is convinced that Ruie 458 is not ~constitutionally vague.

c. Preemption

The Court shall next address defendant's argument that Rule 458 conflicts with the Motor

Vehicle code and is therefore vreempted. Initially, the Court notesthat the City of Roseville is a

"Home Rule City," a scenario in which the state legislature permits cities to adopt both the

Motor Vehicle Code and the Uniform Traffic Code. See MCL 117.3(k); MCL 257.951(1);

Plaintiff's Ex. B.

The Court is aware that the Legislature has recently amended MCL 257.676(2), which

rescinded Rule 458. See 2017 HB 4215; Defendant's Ex. A. The Court notes that the significant

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10/6!2017

local media attention of this case is likely what caused the swift action to rescind Rule 458 by the

Legislature. However, this amendment was not effective until September 26, 2017, and there is

no retroactivity provision. See Defendant's Ex. A.

"Generally, statutory amendments are applied prospectively unless "the Legislatur~

expressly or impliedly identified its intention to give the amendment retrospective e ffect" Ford

Motor Co v Dep't ofTreasury, 313 Mich App 572, 586; 884 NW2d 587 (2015).

Accordingly, the Court shall only consider the statutory language as it existed when the

citation was issued against defendant. While defendant's argumenJ; regarding preemption lacks

legal authority, the Legislature's rescission of Rule 458 speaks more to the legislative intent of

the statute. Due the absence of a retroactivity provision, the Court concludes that Rule 458 was

not preempted by MCL 257.676(2) as applied.in this case.

d ~gis/ative Intent ofRule 458

The Court shall next briefly address defendant's contention that the legislature did not

intend for Rule 458 to apply to driveways. "The cardinal rule of statutory co~ction is to

identify and to give effect to the intent of the Legislature." Turner v Auto Club Ins Ass'n, 448

Mich 22, 27; 528 NW2d 681 (Mich 1995) (citation omitted). The goal in doing so is to give

effect to the Legislature's intent, focusing first on the _plain language of the statute. Lamphere
Schools v Lamphere Federation of Teachers, 400 Mich 104, 110; 252 NW2~ 818 (1977).

Individual words and phrases are not read for bare meaDing but instead, read in the context of the

entire legislative scheme. Bailey v United States, 516 US 137; 116 S Ct 501; 133 L Ed'2d 472

(199$). "Only wh_ere the language under review is ambiguous may a court properly go beyond

the words of the statute or administrative rule to ascertain the drafterts intent" Romulus v Dep 't

ofEnvironmenlal Duality, 260 MichApp 54, 65; 678 NW2d 444 (2003).

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10/6/2017

When "the language of the statute is unambiguous; the Legislature must have intended

the meaning clearly expressed, and the statute must be enforced as written. No further judicial

construction is required or permitted." Malpass v Department ofTreasury, 494 Mich 237, 249;

833 NW2d 272 (2013) citing Sun Valley Foods Co v Ward,.460 'Mich 230, 23'6; 596 NW2d 119

(1999).

As discussed above, Rule 458 is ambiguous due to its "any other place" language.

Furthermore, the Court has addressed the fact that other provisions of the Uniform Traffic Code

specifically referenced driveways. See Rules 437, 448, and 615. The Court believes the

legislative intent is clear concerning the scope of Rule 458. Therefore, the Court is convinced

that it was not the legislative intent of Rule 4;58 to apply to one's private driveway.

e. Defendant's Fourth Amendment Challenges

Finally, with respect to defendant's Fourth .Amendment challenges, defendant failed to

raise these .arguin.ents at the 39th District Court. "For an issue to be preserved for appellate

review, it must be ~d., addressed, and decided by the lower court." Mouzon v Achievable

Visions, 308 Mich App 415~ 419; 864 NW2d 60~ (2014) (citation omitted). For the first time on

appeal, however, defendant raises as error allegations pertaining to the warr~t requirement for

the officer to issue the citation to defendant. These issues are not properly preserved for

appellate review. Consequently, the Court will not address defendant's newly raised Fourth

Amendment arguments.

V. Conclusion

For the reasons set forth above; the ruling of the 39th District Court is REVERSED and

defendant's responsibility for the citation is VACATED. Pursuant to MCR 2.602(A)(3), this

Opinion and Order resolves the last pending claim closes this case.

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10i6.12017

IT IS SO ORDERED.

Circuit Court Judge

Dated: September 29, 2017

cc: Timothy D. Tomlinson, attorney for Plaintiff

Nicholas P. Somberg, Attorney for Defendant