An Otsego County District Court Judge says the DNR’s law prohibiting supplemental feeding of deer is “too vague”, and she’s dropped a case against a guy charged with violating that law.

It’s not known yet if this decision will be appealed or how it will affect enforcement of the law.

Here’s that decision….

STATE OF MICHIGAN

IN THE 87-A DISTRICT COURT FOR THE COUNTY OF OTSEGO

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,

vs. File No: 09-5978969-ST-3

KENNETH CHARLES BORTON

Defendant.
___________________________________/

KYLE T. LEGEL
Prosecuting Attorney

WM PAUL SLOUGH
Attorney for Defendant
___________________________________/

Opinion and Order Dismissing Case

At a session of the Court held in the Courthouse
in the City of Gaylord, County of Otsego, State
of Michigan this 7th day of April, 2010.

PRESENT: HONORABLE PATRICIA A. MORSE, DISTRICT COURT JUDGE

The State of Michigan (Plaintiff) has alleged that Kevin Borton (Defendant) illegally fed deer in Otsego County, a closed county.

Defendant Borton asks this Court to dismiss these charges for two reasons:

1. There are insufficient facts alleged to support the commission of a crime.
2. The statute is void for vagueness.

This Court denies Defendant’s motion for the first reason stated, that there are insufficient facts alleged. This is a misdemeanor case and the Court cannot review the sufficiency of facts prior to trial. Defendant has demanded a jury, and it is up to the jury to determine whether the Plaintiff proves the allegation beyond a reasonable doubt.

The Court may entertain a motion for a directed verdict after the Plaintiff presents his proofs. It is premature to bring a motion to dismiss before Plaintiff presents any evidence.

This Court grants Defendant’s motion to dismiss for the second reason stated, that the statute is void for vagueness. The statute prohibits feeding deer but has an exception for feeding birds. Defendant claims his activity falls under that exception. The following analysis does not determine whether Defendant is right or wrong.

This Court must decide whether the statute is clear enough so that a bird feeder of average intelligence will know whether he or she is violating Michigan law.

Void for Vagueness Doctrine

A statute may be challenged for vagueness on the grounds that it:
• Is overbroad, impinging on First Amendment freedoms, or
• Does not provide fair notice of the conduct proscribed, or
• Is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed.
Woll v Attorney General 409 Mich 500, 533, (1980) citing Grayned v Rockford, 408 US 104 (1972).

This Court does not identify any First Amendment issues in this matter, but finds that the statute does not give fair notice and confers unlimited discretion.

Fair Notice

In this case, the statute prohibits feeding deer in the Lower Peninsula by

…depositing, distributing, or tending of feed in an area frequented by wild, free-ranging white-tailed deer or elk. Deer or elk feeding does not include any of the following: (a) Feeding wild birds or other wildlife if done in such a manner as to exclude wild, free-ranging white-tailed deer and elk from gaining access to the feed. MCL 324.40101 (emphasis added).

The statute is ambiguous by using the words frequented and exclude. Would the average bird watcher know how many times a deer or elk must be observed near the bird feeder before he or she must exclude these animals from access? If the bird watcher decides that deer frequent the area near the feeder, how does he or she successfully exclude these animals from all access?

The statute clearly intends to allow bird feeding, but only in some places and by some methods. It is not clear where and how.

Discretion

Not only bird watchers, but also Department of Natural Resources and Environment (DNRE) officers must interpret the meaning of the statute. They must respond to complaints about illegal deer feeding. They must rely on reports from hunters or neighbors who object to any congregation of deer or elk near bird feeders. This invites unlimited discretion in enforcement.

If a citation is issued, the fact finder must determine how often is frequent and does exclude mean incidental access or an absolute bar. If the legislature meant an absolute bar, it could have been prescriptive as to how that must be accomplished. Then bird watchers, DNRE officers, and fact finders would know what is required.

This statute as drafted gives no guidance as to where and how to exclude wild animals from foraging near bird feeders. It leaves too much room for selective enforcement. It allows fact finders to rely on subjective criteria to determine criminal liability.

For these reasons, this Court finds that MCL 324.40102 (9) (a) is unconstitutionally vague and declines to enforce it.

Defendant’s Motion to Dismiss is granted.

Date: _____________________________ _______________________________
Patricia A. Morse
87-A District Court Judge