Due Process Clause. That agencies must provide “fair warning of the conduct a regulation prohibits or requires” is rooted in the due-process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. That was the finding in Gates & Fox Co. v. Occupational Safety & Health Review Commission, 790 F.2d 154, 156 (D.C. Cir. 1986) (cited in Christopher at132 S. Ct. at 2170), which stated, “Where the imposition of penal sanctions is at issue, however, the due process clauseprevents that deference from validating the application of a regulation that fails to give fair warning of the conduct it prohibits or requires.” (Emphasis added.)
Indeed, in the same term that the Court decided Christopher, it decided in FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317–18 (2012), that the Due Process Clause of the Fifth Amendment precludes the Federal Communications Commission from punishing Fox for its broadcasting of “fleeting expletives” because the regulations did not give Fox “fair notice” that such conduct could subject it to punishment. Fox, 132 S. Ct. at 2317. The Court specified that:
A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. . . . “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” . . . This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. . . . It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”
Fox, 132 S. Ct. at 2317 (citations omitted; emphasis added).
That “fair warning” or “fair notice” is rooted in the principles of the U.S. Constitution renders the principle equally applicable to state and local agencies interpreting their own governing statutes and their own rules and regulations.
Illinois recognizes the “fair warning” and “fair notice” principles. The principle that government action must be preceded by “fair warning” or “fair notice” is well known at the state level. Thus, in Illinois, it is well settled that a statute is unconstitutionally vague and violates due process if it fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by the statute or if there is an absence of standards restricting the discretion of governmental authorities who apply the law. E. St. Louis Fed’n of Teachers, Local 1220, Am. Fed’n of Teachers, AFL-CIO v. E. St. Louis Sch. Dist. No. 189 Fin. Oversight Panel, 178 Ill. 2d 399,425 (1997). The terms of a statute cannot be so ill defined that their meaning may be determined at whim rather than by objective criteria. A statute’s terms must serve as a guide to those who must comply with the statute.
The Illinois Pollution Control Board is no stranger to the concept of “fair notice.” InEPA v. Rosenbalm, PCB No. 71-299, 1973 Ill. ENV LEXIS 2 (Jan. 16, 1973), in addressing pleadings that had been amended subsequent to the filing of the initial complaint to add new violations that allegedly occurred post-complaint, the board stated:
[W]e caution the Agency and its representatives to avoid unfair, omnibus pleadings which either intend to sweep within its purview prospective violations which may occur subsequent to the filing of the complaint, or are so vague and indefinite as to fail to give the Respondent fair notice of the specific dates of alleged infractions of the law so as to enable him to properly prepare a defense.
Consider, then, the application of the principle of fair warning or fair notice in two cases pending before the board. (The author of this is counsel for the respondents in each of these cases. Complete copies of the motions and briefs discussing the issues raised in these cases, including the positions taken by the State of Illinois with respect thereto, can be found at http://www.ipcb.state.il.us.) In People of the State of Ill. v. Sheridan-Joliet Land Development, LLC, PCB No. 13-19 & PCB No. 13-20, the state has sought to enforce amended and superseded regulations against the respondents without the type of “fair notice” that was the subject ofChristopher and Fox. There, the state brought a complaint against the respondents that alleged violations of various purported provisions of the Illinois Environmental Protection Act, 415 Ill. Comp. Stat. 5/1 et seq.and, specifically, 415 Ill. Comp. Stat. 5/22.51, entitled Clean Construction or Demolition Debris Fill Operations (CCDD). The complaint alleged that these purported violations, in turn, stemmed from alleged violations of purported “Section 1100.205(a)(b)(c) of the Board CCDD Regulations, 35 Ill. Adm. Code 1100.205(a)(b)(c), [and (h)].” However, the respondents asserted in a motion to strike and dismiss that there is no“Section 1100.205(a)(b)(c) [and (h)] of the Board CCDD Regulations, 35 Ill. Adm. Code 1100.205(a)(b)(c) [and (h)].” That is so because, as the respondents argue, the board CCDD regulations had been amended as of August 27, 2012, and once the new rules became effective, they supplanted and superseded the previous rules, including those under which these allegations of the complaint were brought, purported sections 1100.205(a)(b)(c) and (h) of the board CCDD regulations, 35 Ill. Adm. Code 1100.205(a)(b)(c) and (h). Thus, when the complaint, which was filed subsequent to August 27, 2012, sought to charge respondents with purported violations of board CCDD regulations, the complaint, according to the respondents, could only allege violations of regulations that actually appear “on the books.” Yet, as the respondents point out, it patently did not do so.
The respondents assert that the only known instance where the board was allowed to apply otherwise moribund regulations in an enforcement action was in Mystik Tape, Division of Borden, Inc. v. Pollution Control Board, 60 Ill. 2d 330, 339–40 (1975). In that case, the board was able to enforce regulations of a predecessor enforcement board only because it was specifically authorized to do so by statute. Former section 49(c) of the act, 111 ½ Ill. Rev. Stat. ¶ 1049(c) (1971), provided that “all rules and regulations” of such predecessor boards “shall remain in full force and effect until repealed, amended, or superseded by regulations under this Act.” Here, to the contrary, no such statutory provision authorizes the board to enforce superseded regulations.
By the same token, former section 49(c) of the act gave the regulated community “fair notice” that the regulations of predecessor boards would remain in effect. Here, even assuming, arguendo, the board had the authority to apply superseded regulations, the respondents assert it needed to provide notice to the regulated community. Fair notice encapsulates “the principle that agencies must provide regulated parties ‘fair warning of forbidden conduct or requirements.’” Christopher, 132 S. Ct. at 2167. The respondents assert that no notice that these superseded requirements purportedly still remain in force was ever provided. Thus, the respondents assert that the complaint must be dismissed.
Michigan recognizes the “fair warning” and “fair notice” principles. The state of Michigan also views agency interpretation of statutes and regulations through the lens of “fair warning” and “fair notice.” In People v. Kircher, 2008 Mich. App. LEXIS 1627, an unpublished opinion, the Court of Appeals of Michigan considered a constitutional challenge to the defendant’s conviction for a discharge of a substance into the waters of the state that endangered the public health, safety, and welfare contrary to the provisions of section 324.3109 of the Michigan Compiled Laws in violation of sections 324.3115(2) and 324.3115(4). The defendant’s convictions arose from the discharge of raw sewage into a catch basin or storm drain. Specifically, sewage backup occurred in an apartment complex owned by the defendant. He instructed his employees to open a manhole and use a sump pump and hoses to dump raw sewage directly into a catch basin designated for storm water only. State authorities concluded that the catch basin did not lead to a treatment facility but ultimately led to the Huron River. After the first pump burned out, the defendant instructed employees to set up a second pump, and when that stopped functioning, the defendant purchased a third pump. Ultimately, the defendant pumped raw sewage over a three-day period before being ordered to stop by township officials. During that three-day period, employees and the plumber informed the defendant that his conduct was illegal, but he did not end the pumping operation. Altogether, the defendant discharged an estimated 107,000 gallons of raw sewage. A tenant of the apartment complex testified that he drank from the hose, unaware that it contained sewage, and became physically ill.
The court considered the defendant’s challenge to section 324.3109 on the grounds that it was “constitutionally void for vagueness.” The court noted that “[a] statute may be unconstitutionally vague on any of three grounds” including whether “it fails to provide fair notice of the conduct proscribed.” (Emphasis added.) The language of the statute provided:
Discharge into state waters; prohibitions; exception; violation; penalties; abatement.
(1) A person shall not directly or indirectly discharge into the waters of the state a substance that is or may become injurious to any of the following: (a) To the public health, safety, or welfare. (b) To domestic, commercial, industrial, agricultural, recreational, or other uses that are being made or may be made of such waters. . . . . (2) The discharge of any raw sewage of human origin, directly or indirectly, into any of the waters of the state shall be considered prima facie evidence of a violation of this part by the municipality in which the discharge originated unless the discharge is permitted by an order or rule of the department. . . .
In denying the constitutional challenge, the court found as follows:
[D]efendant’s actions in discharging raw sewage into a state water body constituted a discharge of a substance that was or could be injurious to human health. The statute at issue is not void for vagueness when the meaning of the statute’s terms as defined by the dictionary demonstrates that defendant’s conduct fell within the statutory prohibitions.
Thus, the court considered, but rejected, the constitutional challenge to the statute.
The Court of Appeals of Michigan similarly rebuffed a “fair notice” challenge to Yankee Springs Township’s so-called anti-funneling ordinance and riparian-lot-use regulations barring the defendant’s access from his waterfront lot to a local lake inTownship of Yankee Springs v. Fox, 264 Mich. App. 604 (2004). The defendant contended that the riparian-lot-use regulations were void for vagueness because the regulations did not provide fair notice of the conduct proscribed. The pertinent regulation provided that each “parcel of land shall contain at least 70 lineal feet of water frontage . . . for each dwelling unit or each single-family unit.” 264 Mich. App. at 608. Because at least eight families with non-waterfront dwellings owned one-eighth interests in the defendant’s lot, and because the lot had only 103 feet of water frontage, the court found that the riparian-lot-use regulations validly prohibited the use of the lot as access property and that the ordinance was not void for vagueness.
On the other hand, in West Bloomfield Charter Township v. Karchon, 209 Mich. App. 43 (1995), the court upheld a constitutional challenge to woodlands ordinances that the township sought to enforce against the defendants. The court found that an ordinance does not provide fair notice of proscribed conduct if it either forbids or requires the doing of an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application. That is, an ordinance must be sufficiently clear and definite as to give those reading it fair notice of prohibited conduct. On that basis, the court held that the ordinances’ definition of the terms “woodland” and “woodland edge” were unconstitutionally vague. The court further held that the ordinances lacked standards necessary to govern their enforcement, thus giving unstructured and unlimited discretion to those charged with their administration. The court noted that the ordinances lacked the criteria to guide the decision whether to grant a permit, deny a permit, grant an exception, or deny an exception, and such unstructured, unlimited, and arbitrary discretion to determine whether to grant or deny a permit was constitutionally repugnant.
Wisconsin recognizes the “fair warning” and “fair notice” principles. The state of Wisconsin also applies the principle of “fair warning” and “fair notice” when considering agency interpretation of statutes and regulations. In Wisconsin v. Perry Printing Corp., 128 Wis. 2d 554(1985), an unpublished opinion, thestate challenged a judgment of the Circuit Court for Jefferson County, Wisconsin, which dismissed its claims that the defendant corporation violated section 154.11(6) of the Wisconsin Administrative Code by emitting solvent emission from its plant presses, and which denied injunctive relief against future violations. The corporation cross-appealed, challenging the constitutionality of section 154.11(6). In finding a violation of that section, the Court found as follows:
Wisconsin Adm. Code sec. 154.11(6) gives fair notice of what is prohibited and includes fair standards for enforcement. The opacity limits are specific. To determine compliance with these limits, the DNR has developed a procedure for emission evaluation. Emission evaluators are trained where and how to observe emission plumes and how to determine opacity. The procedure is based on EPA guidelines. Opacity is calculated from twenty-four consecutive opacity observations taken at fifteen second intervals. The DNR also allows readings to be taken over longer periods and recommends this practice when opacity is near or over the emission limits. A violation, however, remains based on twenty-four consecutive readings at fifteen second intervals. [Emphasis added.]
On that basis, the court reversed the dismissal entered by the circuit court, although it refused to reverse the denial of injunctive relief against future violations.