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Associated Builders and Contractors v. Director7/19/2005
w is impermissibly vague in all of its applications. Because plaintiff neither argues nor supports that the PWA is impermissibly vague in all of its applications, its facial challenge on vagueness grounds fails.
B. "As Applied" vagueness challenge
To give fair notice, a statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited or required. The statute cannot use terms that require persons of ordinary intelligence to guess its meaning and differ about its application. A statute is sufficiently definite if its meaning can be fairly ascertained by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words. [People v Beam, 244 Mich App 103, 105; 624 NW2d 764 (2000), quoting People v Noble, 238 Mich App 647, 651-652; 608 NW2d 123 (1999).]
We reject plaintiff's as applied challenge because we agree that the misdemeanor provision of the act does not apply to a simple failure to pay according to the contract. Whether construed strictly as a criminal statute or broadly as a remedial statute, the words of the statute itself must control. Western Michigan Univ Bd of Control v State, 455 Mich 531, 533; 565 NW2d 828 (1997). The PWA makes it a misdemeanor to violate a provision of the act. MCL 408.557. The act requires the contractor to include prevailing wage provisions in a covered contract, MCL 408.552, post prevailing-wage information on the job, and keep accurate records of the actual wages paid, MCL 408.555. The act also authorizes the contracting agent to terminate a contractor's right to proceed with any part of the contract for which prevailing wages are not in fact paid, and to complete the contract with another contractor at the original contractor's expense. MCL 408.556. While the act contemplates that the contractor will pay the prevailing wage, and provides for the right to terminate the contract for failure to do so, it cannot be said that the failure to pay the prevailing wage in and of itself constitutes a violation of the provisions of the act. Thus, we reject plaintiff's as applied vagueness challenge to the act because it is based on an erroneous construction of the act.
C.
Plaintiff's final argument on cross-appeal is that the circuit court clearly erred in dismissing its claim that the PWA is unconstitutionally vague both on its face and in its application because discovery would show that non-union construction contractors subject to the Act must routinely speculate as to whether their pay and work practices on prevailing wage projects comport with those derived from convoluted constantly-evolving, and generally unavailable collective bargaining agreements and unwritten understandings between trade unions and union contractors.
We conclude that this issue need not be addressed. "A valid statute is not rendered unconstitutional on the basis of improper administration." Council of Organizations v Governor, 455 Mich 557, 570-571; 566 NW2d 208 (1997). The criticisms plaintiff articulates here of the PWA, even if true, would not render the entire statute unconstitutional. Plaintiff's promise that discovery would show these problems exist is not helpful. The alleged problems plaintiff's members have with the PWA go to the CIS' administration of the act or should be addressed to the Legislature, and do not go to the constitutionality of the act.
We affirm the dismissal of plaintiff's vagueness challenges and reverse the denial of summary disposition as to plaintiff's delegation challenge.
Helene N. White, Pat M. Donofrio.
WHITBECK, C.J. (concurring).
I concur in the majorit
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