Posted by: Patricia Salkin | July 26, 2009

Court Upholds Enforcement Order to Clean Up Property

Albert was charged on September 1, 2005 and September 22, 2006 by a Billings Code Enforcement Officer with violating BMCC 27-601(g) by storing salvage on his residence.  Due to complaints received from Albert’s neighbors, City Code Enforcement Officers (“CCEO”) tried repeatedly to work with Albert to clean up his property, but he was not compliant with their efforts.  Albert was convicted on two counts of storage of salvage by the Municipal Court of the City of Billings, from which he appealed.  The District Court affirmed the judgment, and Albert appealed to the Supreme Court.

 On appeal, the Court was asked to consider, among other things, whether Billings Municipal City Code (“BMCC”) 27-601(g) is unconstitutionally vague as applied to Albert; whether the Municipal Court erred in denying Albert’s motion to dismiss for insufficient evidence; and whether the District Court erred in determining Albert’s sentence was legal. 

The Supreme Court stated that a criminal statute is “unconstitutionally vague” if a person has to speculate as to the meaning of the statute and whether or not his actions fall within the statute.  The Court explained a two part test to determine vagueness: first whether a citizen was given actual notice of the statute; and second, whether the statute contains minimal guidelines sufficient to govern law enforcement.  With respect to Albert, the Court found that there was nothing vague about how the regulation was used.  Albert received multiple warnings by CCEO’s before being cited for a violation.  There was testimony at trial as to the repeated visits the Code Enforcement Officer made to Albert’s residence, that the Officer explained which items were to be removed from the property, and even offered assistance to do so.  The items listed were bicycle parts, tire rims hanging from trees, piles of unusable junk wood, plastic and metal containers, metal barrels and debris, and garbage among other things, all which fall within the meaning of BMCC 27-601(g).  The Court determined that these warnings constituted actual notice to Albert so that he could comply with the statute.  The Court also found that BMCC 27-601(g) complied with the second prong of the test in that enforcement is complaint generated, which avoids a broad sweep of the officers’ discretionary power, eliminating the opportunity for officers to use their personal preferences to enforce the statute.  Ultimately it was determined that because the statute was not void for vagueness and structured in its enforcement, that Albert failed to prove the statute to be unconstitutional.

The Court found that there was sufficient evidence to convict Albert.  Witnesses and officers testified that they repeatedly saw the debris in Albert’s yard, as they drove by his property every day and it had not moved.  The Court was also presented with photographs showing that the items remained in Albert’s yard a year after he was issued the first citation.  There was enough evidence presented to the jury at trial for the members to determine that the debris had not moved in Albert’s yard for longer than five days. 

Lastly, the Court determined that Albert’s sentence was legal and that the Municipal Court did not err in determining so.  Albert was shown photographs during trial of the items that he was required to remove, and further when asked by Judge Davies if he understood what was required of him, Albert answered “I understand what they want.”  Albert was provided with a dumpster by the CCED and the CCED was also ordered to assist with cleanup.  Albert was informed of the procedures of how he could dispose or store the offending items and nothing about his sentence or conditions was unreasonable. The Supreme Court affirmed Albert’s conviction and concluded that his sentence was legal.

 City of Billings v. Albert, 2009 WL 531064 (Mont.  5/3/2009).

 The opinion can be accessed at:^doaisd510&ID=003806833

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