MTA Legal Counsel Overview

Recent Revisions Have Limited the Uniform Traffic Code’s Application
The Uniform Traffic Code promulgated by the Michigan State Police, which became effective October 30, 2002, rescinded a large portion of the former UTC promulgated by the State in 1981, including significant traffic offense provisions at the heart of most traffic prosecutions under local ordinances.

Many provisions of the UTC were removed because they mirrored existing provisions of the Michigan Vehicle Code (MVC), Public Act 300 of 1949 (MCL 275.1, et seq.). The now-shortened version of the UTC may require townships and other local governments to adopt new traffic ordinances relying less on the UTC (which is a set of rules promulgated by state agencies) and more on provisions of state law—primarily the MVC—adopted by reference.

It is the opinion of MTA Legal Counsel that it is advisable for each township with an existing traffic code ordinance to adopt a new ordinance consolidating the desired provisions into a single ordinance. For many townships, this new ordinance will include the new UTC and certain provisions of the MVC pertaining to offenses that are not addressed in the new UTC.

Other townships may wish to include in their traffic code ordinance certain other statutory provisions that may be particularly relevant in their communities, such as various provisions from the Natural Resources and Environmental Protection Act (NREPA), PA 451 of 1994, pertaining to the operation of off-road vehicles (Part 811, MCL 324.81101, et seq.) and snowmobiles (Part 821, MCL 324.82101, et seq.).

In each instance the UTC and statutory provisions are adopted by reference, pursuant to statutory authority. Because they are adopted by reference, the township’s traffic ordinance does not include the text of the actual underlying provisions of the UTC, MVC or other statutes to be enforced. MTA Legal Counsel recommend that a township create a “master” copy of its traffic ordinance that includes the complete text of all the regulations and statutory provisions to be enforced. A copy of this “master” should be given to all law enforcement officers involved in enforcing the traffic ordinance (or at least the department), and MTA recommends that a copy should also be kept at the township office for reference, inspection and copying by township officials and the public. To facilitate enforcement, MTA recommends that the township coordinate with the district court regarding the distribution of copies to appropriate court officials.

Selection of Traffic Code Provisions
MTA Legal Counsel have spent a considerable amount of time reviewing the Michigan Vehicle Code to select the provisions that were candidates for inclusion in these sample township traffic code ordinances—-as well as those provisions that have been excluded from the sample ordinances. For example, MTA has not knowingly included any reference to an offense provision designated as a felony, because of the doubtful authority for townships to prosecute such offenses under local ordinance. Other provisions have been excluded because they are not likely to arise with any frequency (or in some cases ever). There may be a handful of offense provisions retained in the new UTC that overlap in whole or in part MVC provisions included in the sample ordinances.

Severability Provision
Each of the sample ordinances includes a “severability” provision relating to the “maximum penalty” that may be determined by a court to be within the authority of a township to impose. There is a rather respectable legal argument supporting the contention that, under MCL 41.181(3) general law townships cannot enforce a penalty for an ordinance violation in excess of 90 days in jail and/or a $500 fine. The language in the sample ordinances is intended to give a township prosecuting attorney something to “hang his/her hat on” if the maximum penalty issue arises, by advocating for the court to enforce the ordinance offense with the undisputed maximum possible penalty (instead of determining that the offense with the specified greater maximum penalty cannot be prosecuted at all under the local ordinance).

Future Amendments
A final important legal issue is whether a township adopting any of these sample ordinances is required to amend the ordinance when the underlying UTC and/or statutory provisions are themselves amended in the future. In the opinion of MTA Legal Counsel, there is no clear legal authority for automatic updates of an ordinance adopting a code or statute by reference.

In the case of the Uniform Traffic Code, MCL 257.951 specifically authorizes the adoption by reference of “a code” that has been promulgated by the State Police. MCL 257.952 requires the ordinance to “clearly identify the code adopted by reference”. MCL 257.953 specifically addresses situations where the State Police amend the promulgated code and states that any city, township or village which has adopted such code by reference “may adopt such amendment by reference by the same procedure as required for the adoption of the original code”. This statutory language also appears verbatim in the new UTC at R 28.1905.

Finally, it is noteworthy that legislation to allow an ordinance adopting the UTC to explicitly provide for future amendments to the UTC promulgated by the State to be “automatically incorporated in the ordinance” (Senate Bill No. 138) was introduced, but not adopted in the 2001-2002 legislative session.

MTA Legal Counsel are of the opinion that the current governing law does not provide any clear legal authority for a township (or a city or village) to adopt the new UTC with language automatically incorporating any amendments to the adopted UTC as such amendments are promulgated by the State in the future. The current governing law only authorizes adoption of a clearly identified code, such as the new UTC as it has been identified in the enclosed sample ordinances. As amendments of the identified UTC may be promulgated in the future by the State, such amendments must be adopted through the appropriate ordinance adoption procedures.

With respect to the provisions of the MVC and other state laws adopted by reference in the sample ordinances, there is some argument that a township ordinance adopting by reference specified provisions of, for example, the MVC, “as amended”, is sufficient to adopt the specified statutory provisions as they exist at the time of ordinance adoption and as such statutory provisions may be amended in the future. However, in the absence of a dispositive court case or new statutory language supporting this conclusion, as provisions of the MVC adopted by reference in a township traffic code ordinance are amended from time to time, it is recommended that townships adopt the amendments by reference through the appropriate ordinance adoption process. This would avoid the risk of cases being dismissed on the grounds that a traffic code ordinance was not properly amended to keep the ordinance provisions consistent with corresponding provisions of state law, as statutorily required.

MTA MODEL ORDINANCES
MTA Legal Counsel have prepared two sample ordinances for general law townships to consider. Both versions are only samples, and each township board should carefully consider which provisions will be most effective and will most accurately reflect the needs of their community. The purpose of these sample ordinances is to provide a suggested guideline for the types of items that should be included within an ordinance.

Certainly, no sample ordinance should be used unless, after careful review, it is the professional judgment of your legal counsel that using the sample will accomplish the particular objectives and intentions of your township, and in the case of traffic enforcement ordinances, after coordination with the law enforcement agency that will enforce the ordinance. Although these sample ordinances are the result of much thought and effort, neither the author nor the Michigan Townships Association assumes any responsibility for the results of using these samples word-for-word in individual cases.

The first sample ordinance, designated “No. 1” is intended to serve as a “basic” ordinance for a general law township.

Basic Model Traffic Code Ordinance (No. 1)
This ordinance is intended for general law townships desiring a comprehensive traffic code ordinance, but without including provisions from NREPA pertaining specifically to off-road vehicles and snowmobiles. This ordinance therefore adopts by reference the new UTC, and the provisions of the MVC that MTA Legal Counsel believe are appropriately included in a comprehensive “basic” traffic code ordinance. Since the frequently-cited offense of “No Insurance” is not included in the new UTC, and exists statutorily in the Michigan Insurance Code, not the MVC, this “basic” ordinance also adopts by reference the relevant provision from the Insurance Code.

Basic Model PLUS Traffic Code Ordinance (No. 2)
Sample ordinance “No. 2” includes the same content as the “basic” ordinance for a general law township (No. 1) plus the provisions from NREPA specifically pertaining to off-road vehicles and snowmobiles, and a provision from the Liquor Control Act pertaining to minors in possession of alcoholic beverages, commonly known as “minor in possession” or simply MIP. Please note that this MIP offense is not restricted to vehicular situations. However, this offense does often arise in a vehicular context as well as in non-vehicular situations, and perhaps for that reason seems to be commonly included in most existing township traffic code ordinances. Accordingly, townships should give some thought to whether the MIP provisions should be included in the “basic” sample ordinance (No. 1).

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MTA BASIC MODEL TRAFFIC CODE ORDINANCE NO. 1
(General Law Township)

An Ordinance enacted pursuant to MCLs 257.951 to 257.955 and MCL 41.181 to adopt by reference the Uniform Traffic Code for Michigan Cities, Townships and Villages as promulgated by the Director of the Michigan Department of State Police pursuant to the Administrative Procedures Act of 1969, Public Act 306 of 1969, as amended (MCL 24.201, et seq.) and made effective October 30, 2002, and to adopt by reference certain state laws; and to repeal all ordinances or parts of ordinances in conflict herewith.

TOWNSHIP OF _______, ________ COUNTY, MICHIGAN, ORDAINS:

Section 1: Title
This Ordinance and the provisions of the Uniform Traffic Code and state laws adopted by reference herein shall be collectively known and may be cited as the “_____ Township Traffic Code Ordinance.”

Section 2: Adoption of Uniform Traffic Code By Reference
The Uniform Traffic Code for Cities, Townships, and Villages as promulgated by the Director of the Michigan Department of State Police pursuant to the Administrative Procedures Act of 1969, Public Act 306 of 1969, as amended (MCL 24.201, et seq.) and made effective October 30, 2002, is hereby adopted by reference. All references in said Uniform Traffic Code to a “governmental unit” shall mean the Township of_________.

Section 3: Adoption of Provisions of Michigan Vehicle Code By Reference
The following provisions of the Michigan Vehicle Code, Public Act 300 of 1949, as amended (MCL 257.1, et seq.) are hereby adopted by reference:

A. Chapter I (Words and Phrases Defined): MCLs 257.1 to 257.82

B. Chapter II (Administration, Registration): MCLs 257.225, 257.228, 257.243, 257.244, 257.255, and 257.256.

C. Chapter III (Operator’s and Chauffeur’s License): MCLs 257.310e, 257.311, 257.312a, 257.324, 257.325, 257.326, and 257.328.

D. Chapter VI (Obedience to and Effect of Traffic Laws): MCLs 257.601 to 257.601b, 257.602 to 257.606, 257.611 to 257.616, 257.617a to 257.622, 257.624a to 257.624b, 257.625 (except felony provisions), 257.625a, 257.625m, 257.626 to 257.626b, 257.627 to 257.627b, 257.629b, 257.631 to 257.632, 257.634 to 257.645, 257.647 to 257.655, 257.656 to 257.662, 257.667 to 257.675d, 257.676 to 257.682b, 257.683 to 257.710e, and 257.716 to 257.724.

E. Chapter VIII (License Offenses): MCL 257.904 to 257.904a, 257.904e, and 257.905.

Section 4: Adoption of Other State Laws By Reference
The following provisions of state law are hereby adopted by reference:

A. Section 3102 of the Michigan Insurance Code of 1956, Public Act 218 of 1956, as amended, pertaining to required insurance (MCL 500.3102).

Section 5: Penalties
The penalties provided by the Uniform Traffic Code and the provisions of the state laws hereinabove adopted by reference are hereby adopted as the penalties for violations of the corresponding provisions of this Ordinance.

Section 6: Severability
If a court of competent jurisdiction declares any provision of this Ordinance or the Uniform Traffic Code or a statutory provision adopted by reference herein to be unenforceable, in whole or in part, such declaration shall only affect the provision held to be unenforceable and shall not affect any other part or provision; provided that if a court of competent jurisdiction declares a penalty provision to exceed the authority of the Township, the penalty shall be construed as the maximum penalty that is determined by the court to be within the authority of the Township to impose.

Section 7: Repeal of Conflicting Provisions and Effective Date
This ordinance shall take effect 30 days after publication as required by law. All ordinances or parts of ordinances in conflict or inconsistent with the provisions of this ordinance are hereby repealed; provided that any violation charged before the effective date of this Ordinance under an Ordinance provision repealed by this Ordinance shall continue under the Ordinance provision then in effect.

MTA Legal Counsel have prepared this sample ordinance for general law townships to carefully consider which provisions will be most effective and will most accurately reflect the needs of their community. The purpose of this sample ordinance is to provide a suggested guideline for the types of items that should be included within an ordinance. Certainly, no sample ordinance should be used unless, after careful review, it is the professional judgment of your legal counsel that using the sample will accomplish the particular objectives and intentions of your township, and in the case of traffic enforcement ordinances, after coordination with the law enforcement agency that will enforce the ordinance. Although these sample ordinances are the result of much thought and effort, neither the author nor the Michigan Townships Association assumes any responsibility for the results of using these samples word-for-word in individual cases.

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MTA BASIC "PLUS" MODEL TRAFFIC CODE ORDINANCE NO. 2
(General Law Township)

An Ordinance enacted pursuant to MCLs 257.951 to 257.955 and MCL 41.181 to adopt by reference the Uniform Traffic Code for Michigan Cities, Townships and Villages as promulgated by the Director of the Michigan Department of State Police pursuant to the Administrative Procedures Act of 1969, Public Act 306 of 1969, as amended (MCL 24.201, et seq.) and made effective October 30, 2002, and to adopt by reference certain state laws; and to repeal all ordinances or parts of ordinances in conflict herewith.

TOWNSHIP OF ________, __________ COUNTY, MICHIGAN, ORDAINS:

Section 1: Title
This Ordinance and the provisions of the Uniform Traffic Code and state laws adopted by reference herein shall be collectively known and may be cited as the “______ Township Traffic Code Ordinance”.

Section 2: Adoption of Uniform Traffic Code By Reference
The Uniform Traffic Code for Cities, Townships, and Villages as promulgated by the Director of the Michigan Department of State Police pursuant to the Administrative Procedures Act of 1969, Public Act 306 of 1969, as amended (MCL 24.201, et seq.) and made effective October 30, 2002, is hereby adopted by reference. All references in said Uniform Traffic Code to a “governmental unit” shall mean the Township of______.

Section 3: Adoption of Provisions of Michigan Vehicle Code By Reference
The following provisions of the Michigan Vehicle Code, Public Act 300 of 1949, as amended (MCL 257.1, et seq.) are hereby adopted by reference:

A. Chapter I (Words and Phrases Defined): MCLs 257.1 to 257.82

B. Chapter II (Administration, Registration): MCLs 257.225, 257.228, 257.243, 257.244, 257.255, and 257.256.

C. Chapter III (Operator’s and Chauffeur’s License): MCLs 257.310e, 257.311, 257.312a, 257.324, 257.325, 257.326, and 257.328.

D. Chapter VI (Obedience to and Effect of Traffic Laws): MCLs 257.601 to 257.601b, 257.602 to 257.606, 257.611 to 257.616, 257.617a to 257.622, 257.624a to 257.624b, 257.625 (except felony provisions), 257.625a, 257.625m, 257.626 to 257.626b, 257.627 to 257.627b, 257.629b, 257.631 to 257.632, 257.634 to 257.645, 257.647 to 257.655, 257.656 to 257.662, 257.667 to 257.675d, 257.676 to 257.682b, 257.683 to 257.710e, and 257.716 to 257.724.

E. Chapter VIII (License Offenses): MCLs 257.904 to 257.904a, 257.904e, and 257.905.

Section 4: Adoption of Other State Laws By Reference
The following provisions of state law are hereby adopted by reference:

A. Section 3102 of the Michigan Insurance Code of 1956, Public Act 218 of 1956, as amended, pertaining to required insurance (MCL 500.3102).

B. Subchapter 6 of Part 811 of the Natural Resources and Environmental Protection Act, Public Act 451 of 1994, as amended, pertaining to off-road vehicles (MCLs 324.81101 to 324.81147).

C. Part 821 of the Natural Resources and Environmental Protection Act, Public Act 451 of 1994, as amended, pertaining to snowmobiles (MCLs 324.82101 to 324.82158).

D. Section 703 of the Michigan Liquor Control Act, Public Act 58 of 1998, as amended, pertaining to minors and alcoholic liquor (MCL 436.1703).

Section 5: Penalties
The penalties provided by the Uniform Traffic Code and the provisions of the state laws hereinabove adopted by reference are hereby adopted as the penalties for violations of the corresponding provisions of this Ordinance.

Section 6: Severability
If a court of competent jurisdiction declares any provision of this Ordinance or the Uniform Traffic Code or a statutory provision adopted by reference herein to be unenforceable, in whole or in part, such declaration shall only affect the provision held to be unenforceable and shall not affect any other part or provision; provided that if a court of competent jurisdiction declares a penalty provision to exceed the authority of the Township, the penalty shall be construed as the maximum penalty that is determined by the court to be within the authority of the Township to impose.

Section 7: Repeal of Conflicting Provisions and Effective Date
This ordinance shall take effect 30 days after publication as required by law. All ordinances or parts of ordinances in conflict or inconsistent with the provisions of this ordinance are hereby repealed; provided that any violation charged before the effective date of this Ordinance under an Ordinance provision repealed by this Ordinance shall continue under the Ordinance provision then in effect.

MTA Legal Counsel have prepared this sample ordinance for general law townships to carefully consider which provisions will be most effective and will most accurately reflect the needs of their community. The purpose of this sample ordinance is to provide a suggested guideline for the types of items that should be included within an ordinance. Certainly, no sample ordinance should be used unless, after careful review, it is the professional judgment of your legal counsel that using the sample will accomplish the particular objectives and intentions of your township, and in the case of traffic enforcement ordinances, after coordination with the law enforcement agency that will enforce the ordinance. Although these sample ordinances are the result of much thought and effort, neither the author nor the Michigan Townships Association assumes any responsibility for the results of using these samples word-for-word in individual cases.