Local (City) police - where does their authority come from?

[Barwick11]

State - Michigan

Just a quick question, I'm going through trying to have a case dismissed based on non-compliance with the state Administrative Procedures Act in a contested case (my case). The City is claiming that the police is not an agency of the state, and therefore is not subject to the APA.

My question is this. Where then do they get their authority? A city can't just create any agency it wants and give it whatever powers it wants to (it can't just create a "bulldoze your house because we don't like you" agency).

What I believe the situation is, is that the City Police Department get their authority from the Michigan State Police (which IS an agency of the State). Can anyone confirm this (in general, not just in Michigan)?

[JETX]

Originally Posted by Barwick11

The City is claiming that the police is not an agency of the state, and therefore is not subject to the APA.

The city police are NOT an 'agency of the state'.

Where then do they get their authority?

They (presuming you mean the police), get their 'authority' from the state laws and the city charter.

A city can't just create any agency it wants and give it whatever powers it wants to (it can't just create a "bulldoze your house because we don't like you" agency).

But they can. The city can create ANY municipal 'power' that they want that is NOT in violation of state or federal law. If the want to pass a law saying that everyone must wear purple on Feb 29 each leap year, they can. Whether it is enforceable would be up to the courts to determine.

What I believe the situation is, is that the City Police Department get their authority from the Michigan State Police (which IS an agency of the State). Can anyone confirm this (in general, not just in Michigan)?

Your 'belief' is NOT correct.

Originally Posted by Barwick11

State - Michigan

Just a quick question, I'm going through trying to have a case dismissed based on non-compliance with the state Administrative Procedures Act in a contested case (my case). The City is claiming that the police is not an agency of the state, and therefore is not subject to the APA.

My question is this. Where then do they get their authority? A city can't just create any agency it wants and give it whatever powers it wants to (it can't just create a "bulldoze your house because we don't like you" agency).

What I believe the situation is, is that the City Police Department get their authority from the Michigan State Police (which IS an agency of the State). Can anyone confirm this (in general, not just in Michigan)?

The APA has nothing to do with municipalities.

[url]http://www.michigan.gov/dmb/0,1607,7-150-9131_9347-29674--,00.html[/url]

Cities are covered by municipal laws. They get their authority from and are subdivisions of the state government.

[Barwick11]

Originally Posted by seniorjudge

The APA has nothing to do with municipalities.

[url]http://www.michigan.gov/dmb/0,1607,7-150-9131_9347-29674--,00.html[/url]

Cities are covered by municipal laws. They get their authority from and are subdivisions of the state government.

But the city adopted the Michigan Uniform Traffic Code by Reference in its city ordinances, and is charging me with violating a section of the Michigan UTC. The UTC is a Michigan "rule", which should be subject to the APA. Since the city police are charging me with violating it, it is up to them to hold an administrative hearing in the matter, regardless of whether or not they are a state agency.

Originally Posted by Barwick11

But the city adopted the Michigan Uniform Traffic Code by Reference in its city ordinances, and is charging me with violating a section of the Michigan UTC. The UTC is a Michigan "rule", which should be subject to the APA. Since the city police are charging me with violating it, it is up to them to hold an administrative hearing in the matter, regardless of whether or not they are a state agency.

[url]http://www.michigan.gov/msp/0,1607,7-123-1593_25680-36795--,00.html[/url]

Keep reading....

[Barwick11]

Ok, so states (for some reason) have all adopted the APA, correct? I'm assuming it's to cover their arses in the event one of their rules is challenged? Why aren't cities subject to some sort of APA as well?

[CdwJava]

What, specifically, are you charged with?

ANd as for the APA, as I understand it this governs how FEDERAL agencies create their guidelines - not states.

- Carl

[Barwick11]

Originally Posted by CdwJava

What, specifically, are you charged with?

ANd as for the APA, as I understand it this governs how FEDERAL agencies create their guidelines - not states.

- Carl

Every state (that I know of anyhow, and especially California, I know of multiple APA cases from there, and the CHP has basically said "oh well, we don't do administrative hearings [so let 'em off the ticket]") has an APA that governs their State Agencies actions. In Michigan, in every contested case, an agency hearing must be made to determine the facts and findings of law PRIOR to a court hearing (if the accused in the case is aggrieved by the decision, they can ask that it be heard by a judicial court). It's basically there to make sure all the facts and findings of law are made by the agency who has expertise in their area (whether they be the police, state public service commission, DNR, or other agency) gets all the "facts" straight WITH the accused, and if the accused looks at it and says "well crap, I'm screwed" they don't even have to clutter the courts with their case and just pay the fine or whatever is imposed on them.

And I'm charged with violating a section of the Michigan Uniform Traffic Code (Unnecessary Noise (Revving Engine)), which is promulgated by the Michigan State Police (it is not written by legislature). Therefore, I am arguing that the Michigan UTC is in fact governed by the Michigan APA, regardless of who enforces it.

[CdwJava]

Originally Posted by Barwick11

Every state (that I know of anyhow, and especially California, I know of multiple APA cases from there, and the CHP has basically said "oh well, we don't do administrative hearings [so let 'em off the ticket]") has an APA that governs their State Agencies actions.

We have a number of codes that govern procedure and conduct. And since Vehicle Code violations are infractions - a crime - under CA state law, they are not expected to provide any kind of hearing as this is the jurisdiction of a criminal court in my state and not the agency. So I have no idea what you are refering to when you say they let people off the ticket when challenged on it ... especially considering state law takes the resolution of a citation out of the hands of the issuing agency entirely.

And I'm charged with violating a section of the Michigan Uniform Traffic Code (Unnecessary Noise (Revving Engine)), which is promulgated by the Michigan State Police (it is not written by legislature). Therefore, I am arguing that the Michigan UTC is in fact governed by the Michigan APA, regardless of who enforces it.

Hmm ... since I don't understand that, I can't comment on that. Our CHP doesn't create enforceable traffic rules and regulations so this is an odd concept.

- Carl

[CdwJava]

Here is a link to the CA APA ... no Earth shattering stuff here:

[url]http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=12931814957+0+0+0&WAISaction=retrieve[/url]

- Carl

[Barwick11]

(1) A city, township, or village may adopt by reference a code or ordinance for the regulation of traffic within cities, townships, and villages that has been promulgated by the director of the department of state police. The director of the department of state police may promulgate a uniform traffic code pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

[CdwJava]

And have you read every provision therein to determine that such a regulation created by the head of the state police is NOT enforceable by local agencies? How many references to case law do you have in your favor on the subject? How many attorneys or legal scholars have you consulted that agree with you on the matter?

If you are merely trying to do this on your own, well, good luck ... but I doubt that the attorneys in your state would have missed such a glaring opportunity to invalidate most any such law in your state.

- Carl

[Barwick11]

Originally Posted by CdwJava

And have you read every provision therein to determine that such a regulation created by the head of the state police is NOT enforceable by local agencies? How many references to case law do you have in your favor on the subject? How many attorneys or legal scholars have you consulted that agree with you on the matter?

If you are merely trying to do this on your own, well, good luck ... but I doubt that the attorneys in your state would have missed such a glaring opportunity to invalidate most any such law in your state.

- Carl

It's not invalidating anything, it's requiring an extra step of the law enforcement agencies, before they gank money from the public in their "protection of the public" via speed laws. Most police agencies aren't willing to take the time to do it because the average idiot out there doesn't look into it, and instead walks into court pleading "oh don't be too mean to me, I wasn't going thaaaaat fast!!!" On the other hand, attorneys aren't about to piss off the police department and judges by forcing them to do it, they'd NEVER get leniency for their client in a case then, and would be out of a job.

[Curt581]

Originally Posted by Barwick11

It's not invalidating anything, it's requiring an extra step of the law enforcement agencies, before they gank money from the public in their "protection of the public" via speed laws. Most police agencies aren't willing to take the time to do it because the average idiot out there doesn't look into it, and instead walks into court pleading "oh don't be too mean to me, I wasn't going thaaaaat fast!!!" On the other hand, attorneys aren't about to piss off the police department and judges by forcing them to do it, they'd NEVER get leniency for their client in a case then, and would be out of a job.

Got it all figured out, dontcha?

I urge you to go to court, and use that defense.

When you get slam dunked, don't come crying to us.

[Barwick11]

Originally Posted by Curt581

Got it all figured out, dontcha?

I urge you to go to court, and use that defense.

When you get slam dunked, don't come crying to us.

That's why I'm looking for something to definitively tie them into the APA. It's been done in multiple states, and APA's are mostly the same across states, so I know there's got to be some way to do it in there.