People v. Rapp

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
FILED JULY 27, 2012
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No.143343; 143344
JARED RAPP,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
HATHAWAY, J.
At issue in this case is whether Michigan State University (MSU) Ordinance,
§ 15.05 is facially unconstitutional. The Court of Appeals reversed the circuit court’s
conclusion that the ordinance is unconstitutional under City of Houston, Texas v Hill, 482
U.S. 451; 107 S. Ct. 2502; 96 L. Ed. 2d 398 (1987).1 Because we agree with the circuit
court’s analysis and conclude that the language in the ordinance making it an offense to
“disrupt the normal activity” of a protected person is facially overbroad, as articulated by
1
People v Rapp, 293 Mich. App. 159; 809 NW2d 665 (2011).
the United States Supreme Court in Hill, we reverse the portion of the Court of Appeals’
judgment pertaining to the constitutionality of MSU Ordinance, § 15.05, and we reinstate
the circuit court’s decision with regard to this issue to the extent that the circuit court held
that the quoted language is facially unconstitutional.
Also at issue is whether MCR 7.101(O) provides for taxation of costs in criminal
cases. The Court of Appeals held that costs may not be assessed under MCR 7.101(O) in
criminal matters.2 We agree with the Court of Appeals and, therefore, affirm that portion
of its judgment.
I. FACTS AND PROCEDURAL HISTORY
This case arises from a parking citation that defendant received when his car was
parked in an MSU parking structure. On the day the citation was issued, MSU parking
enforcement employee Ricardo Rego was working on campus. Defendant confronted
Rego and asked if Rego was the one who had issued the citation. Defendant was
shouting, which led Rego to believe that defendant was acting aggressively. Rego got
into his service vehicle and called the campus police.3 Approximately 10 to 15 minutes
passed before the police arrived. During that time, Rego sat in his service vehicle and
completed the process for having an adjacent vehicle towed, while defendant stood
outside the service vehicle and took pictures of Rego with a camera phone.
2
Id. at 167.
3
Rego testified that this was standard procedure when a person is upset about a parking
citation.
2
Defendant was charged with the misdemeanor offense of violating MSU
Ordinance, § 15.05.4 A district court jury convicted defendant of violating the ordinance.
On appeal, the circuit court reversed the conviction on the basis that the ordinance was
unconstitutionally overbroad on its face. The circuit court also granted defendant’s
motion brought pursuant to MCR 7.101(O) to tax costs against the prosecution.
The Court of Appeals reversed the circuit court’s decision and held that the
ordinance is not facially overbroad, and defendant is not entitled to costs.5 This Court
granted defendant’s application for leave to appeal and asked the parties to address “(1)
whether Michigan State University Ordinance 15.05 is facially unconstitutional under
City of Houston v Hill, 482 U.S. 451 (1987), and (2) whether MCR 7.101(O) allows
taxation of costs in criminal cases appealed in the circuit court.”6
4
MSU Ordinance, § 15.05 provides:
No person shall disrupt the normal activity or molest the property of
any person, firm, or agency while that person, firm, or agency is carrying
out service, activity or agreement for or with the University.
5
Rapp, 293 Mich. App. at 160, 167. The Court of Appeals did not rule on whether the
ordinance is unconstitutional as applied to the facts of this case and, instead, remanded
this matter to the circuit for resolution of that issue.
6
People v Rapp, 490 Mich. 927 (2011).
3
II. STANDARD OF REVIEW
This Court reviews de novo questions of constitutional law.7 This Court presumes
that ordinances are constitutional, and the party challenging the validity of the ordinance
has the burden of proving a constitutional violation.8
III. ANALYSIS
We first address whether MSU Ordinance, § 15.05 is facially unconstitutional.9
When considering a “facial” challenge to the breadth of a law on First Amendment
grounds,10 this Court considers “not merely the sporadic abuse of power by the censor but
the pervasive threat inherent in its very existence that constitutes the danger to freedom of
discussion.”11
7
People v Armstrong, 490 Mich. 281, 289; 806 NW2d 676 (2011).
8
Fass v Highland Park (On Rehearing), 321 Mich. 156, 161; 32 NW2d 375 (1948); Cady
v Detroit, 289 Mich. 499, 505; 286 N.W. 805 (1939).
9
We recognize that a facial constitutional challenge is difficult to mount. See Broadrick
v Oklahoma, 413 U.S. 601, 615-616; 93 S. Ct. 2908; 37 L. Ed. 2d 830 (1973).
10
“The First Amendment of the United States Constitution, as applied to the States
through the Fourteenth Amendment, provides that the government ‘shall make no law . . .
abridging the freedom of speech.’” Rochester Hills v Schultz, 459 Mich. 486, 489; 592
NW2d 69 (1999), quoting US Const, Am 1. This Court has recognized that a party may
challenge the “breadth” of “a law written so broadly that it may inhibit the
constitutionally protected speech of third parties, even though the party’s own conduct
may be unprotected.” In re Chmura, 461 Mich. 517, 530; 608 NW2d 31 (2000).
11
Thornhill v Alabama, 310 U.S. 88, 97; 60 S. Ct. 736; 84 L. Ed. 1093 (1940).
4
Before ruling that a law is unconstitutionally overbroad, this Court must determine
whether the law “reaches a substantial amount of constitutionally protected conduct.”12
The United States Supreme Court has held that criminal statutes must be scrutinized with
particular care,13 and those that prohibit a substantial amount of constitutionally protected
conduct may be facially overbroad even if they have a legitimate application.14 However,
“invalidating a law that in some of its applications is perfectly constitutional—
particularly a law directed at conduct so antisocial that it has been made criminal—has
obvious harmful effects.”15 Thus, a statute’s overbreadth must “be substantial, not only
in an absolute sense, but also relative to the statute’s plainly legitimate sweep.”16
In Hill, the United State Supreme Court considered the constitutionality of an
ordinance that made it unlawful to “in any manner oppose, molest, abuse or interrupt” a
police officer.17 The Court concluded at the outset that this language prohibited verbal
12
Village of Hoffman Estates v The Flipside, Hoffman Estates, Inc, 455 U.S. 489, 494; 102
S. Ct. 1186; 71 L. Ed. 2d 362 (1982).
13
Winters v New York, 333 U.S. 507, 515; 68 S. Ct. 665; 92 L. Ed. 840 (1948).
14
Hill, 482 U.S. at 458-459, citing Kolender v Lawson, 461 U.S. 352, 359 n 8; 103 S. Ct.
1855; 75 L. Ed. 2d 903 (1983).
15
United States v Williams, 553 U.S. 285, 292; 128 S. Ct. 1830; 170 L. Ed. 2d 650 (2008).
16
Id.
17
Hill, 482 U.S. at 455. The full text of the ordinance in Hill made it “unlawful for any
person to assault, strike or in any manner oppose, molest, abuse or interrupt any
policeman in the execution of his duty, or any person summoned to aid in making an
arrest.” Id. However, only the portion of the ordinance making it unlawful to “oppose,
molest, abuse or interrupt” an officer was enforceable because the remaining language
making it unlawful to “assault” or “strike” a police officer was preempted by the Texas
Penal Code. Id. at 460.
5
interruptions and, therefore, implicated constitutionally protected speech under the First
Amendment.18 The Court first noted that the ordinance was not limited in any way to
fighting words or obscene language.19 Instead, the ordinance imposed a blanket
prohibition on speech that interrupts an officer in any manner.20 Expressly clarifying that
the Constitution prohibits making such speech a crime, the Court explained that “[t]he
freedom of individuals verbally to oppose or challenge police action without thereby
risking arrest is one of the principal characteristics by which we distinguish a free nation
from a police state.”21 While the Court acknowledged the difficulty of drafting precise
laws, it reiterated that it would invalidate those laws “that provide the police with
unfettered discretion to arrest individuals for words or conduct that annoy or offend
them.”22
Hill also stated that as the Court had “observed over a century ago, ‘[i]t would
certainly be dangerous if the legislature could set a net large enough to catch all possible
offenders, and leave it to the courts to step inside and say who could be rightfully
detained, and who should be set at large.’”23 The Court noted that the ordinance’s plain
18
Id. at 461.
19
Id. at 462.
20
Id.
21
Id. at 462-463.
22
Id. at 465 (emphasis added).
23
Id. at 465-466, quoting United States v Reese, 92 US (2 Otto) 214, 221; 23 L. Ed. 563
(1876).
6
language prohibiting opposing, molesting, abusing, or interrupting a police officer in any
manner could be violated on numerous occasions every day.24 Nevertheless, only those
individuals that the police chose to arrest would be charged with violating the
ordinance.25 Hill concluded that because the “ordinance criminalizes a substantial
amount of constitutionally protected speech, and accords the police unconstitutional
discretion in enforcement,” it was substantially overbroad and facially invalid.26
In this case, we address the constitutionality of MSU Ordinance, § 15.05, which
provides:
No person shall disrupt the normal activity or molest the property of
any person, firm, or agency while that person, firm, or agency is carrying
out service, activity or agreement for or with the University.
“The first step in overbreadth analysis is to construe the challenged statute” because “it is
impossible to determine whether a statute reaches too far without first knowing what the
statute covers.”27 This ordinance makes it a crime to “disrupt the normal activity . . . of
any person, firm, or agency . . . carrying out service, activity or agreement for or with the
University.” Defendant argues that this language is facially overbroad because it
24
Hill, 482 U.S. at 466-467.
25
Id.
26
Id. at 466.
27
Williams, 553 U.S. at 293.
7
substantially infringes on First Amendment rights. We agree with defendant and hold
that the phrase “disrupt the normal activity” in the ordinance is facially overbroad.28
The MSU ordinance prohibits disruptions but does not specify the types of
disruptions that are prohibited. Thus, the plain language of the ordinance allows its
enforcement for even verbal disruptions. Moreover, like the ordinance that the United
States Supreme Court invalidated in Hill, the verbal disruptions that the MSU ordinance
criminalizes are not limited to those containing fighting words or obscene language.
Instead, the MSU ordinance explicitly criminalizes any disruption of the normal activity
of persons or entities carrying out activities for or with MSU. Not only does the
ordinance fail to limit the types of disruptions that are prohibited, it also protects a much
broader class of individuals than the ordinance at issue in Hill. The plain language of this
ordinance allows it to be enforced against anyone who disrupts in any way anyone
carrying out any activity for or with MSU. Like the ordinance in Hill, which was
“admittedly violated scores of times daily,”29 the MSU ordinance could be violated
28
Aside from the phrase “disrupt the normal activity,” the MSU ordinance also prohibits
“molest[ing] the property” of a protected person. Because this alternative basis for
enforcement does not implicate speech, we find no need to address whether it is facially
overbroad. Moreover, MSU Ordinance, § 49.01 provides that “[i]f any provision of these
ordinances or part thereof shall be adjudged invalid by a court . . . , then such
adjudication shall not affect the validity of . . . any provision or part thereof not so
adjudged invalid.” Accordingly, the language in the ordinance prohibiting someone from
“molest[ing] the property of any person, firm, or agency while that person, firm, or
agency is carrying out service, activity or agreement for or with the University” remains
in force.
29
Hill, 482 U.S. at 466.
8
numerous times throughout any given day given that there are seemingly infinite ways in
which someone might “disrupt” another who is engaged in an “activity” for or with
MSU. Thus, we believe that this ordinance, just like the ordinance in Hill, “criminalizes
a substantial amount of constitutionally protected speech . . . .”30
The Court of Appeals found Hill distinguishable from this case because the Hill
ordinance specifically protected police officers who have the power to arrest violators at
the officers’ discretion, while the MSU ordinance only prohibits the disruption of MSU
employees who do not necessarily have the power to arrest violators.31 We disagree with
this distinction. The MSU ordinance prohibits the disruption of MSU police officers
while they are carrying out their duties for the university, and those police officers have
the explicit power to enforce the ordinance and arrest violators.32 Thus, the concerns that
30
Id.
31
The Court of Appeals also observed that the ordinance “prohibits the disruption of
MSU employees . . . performing their duties.” Rapp, 293 Mich. App. at 165 (emphasis
added). While the ordinance does prohibit the disruption of MSU employees performing
their duties, the plain language of this ordinance does not apply to MSU employees only.
Rather, it prohibits the disruption of anyone, MSU employee or not, who is “carrying out
service, activity or agreement for or with the University.”
32
MSU Ordinance, § 4.01 states:
The Board of Trustees entrusts the Police Chief and Director of the
Department of Police and Public Safety . . . and subordinate officers,
including police officers, and also traffic control officers, parking
enforcement officers, and other special or limited duty officers, whom he or
she appoints, with responsibility for enforcing these ordinances.
Furthermore, MSU Ordinance, § 5.01 allows MSU police officers to “apprehend and
arrest any person in violation of any provision of these ordinances and . . . make
9
Hill had regarding “[t]he freedom of individuals verbally to oppose or challenge police
action without thereby risking arrest” apply equally to the MSU ordinance.33
Moreover, the distinction regarding whether an individual protected by the
ordinance has the power to arrest is an irrelevant one. An MSU student, for example,
enrolled in classes on campus is undoubtedly carrying out an activity with MSU and,
therefore, is protected by the ordinance. Nothing in the plain language of the ordinance
prevents a student who simply feels that he or she has been disrupted by the actions or
words of another person from seeking enforcement of this ordinance. Nor does the
ordinance language prevent a police officer from choosing to enforce the ordinance when
there is a complaint or simply when the officer witnesses somebody disrupting another
person’s activity.34 While not all protected individuals have the same power as a police
officer to arrest, the ordinance is nonetheless a criminal statute that subjects the violator
complaint against such violator before any judge or judicial officer having
jurisdiction . . . .”
33
Hill, 482 U.S. at 462-463. The prevalence of daily ordinance violations alone does not
make the law constitutionally suspect; rather, what makes the law constitutionally suspect
is the prevalence of violations that encompass protected speech and the threat of selective
enforcement of the ordinance against that protected speech.
34
The United States Supreme Court has explained that “there must be a realistic danger
that the statute itself will significantly compromise recognized First Amendment
protections of parties not before the Court for it to be facially challenged on overbreadth
grounds.” Los Angeles City Council v Taxpayers for Vincent, 466 U.S. 789, 801; 104 S. Ct.
2118; 80 L. Ed. 2d 772 (1984). However, the Court cautioned in Hill that “if some
constitutionally unprotected speech must go unpunished, that is a price worth paying to
preserve the vitality of the First Amendment.” Hill, 482 U.S. at 462 n 11. The Court
concluded that the ordinance in Hill was violated many times on a daily basis. Similarly,
there is a realistic danger that the broad prohibition in the MSU ordinance is violated
regularly.
10
to a misdemeanor conviction and provides someone who does have the power to arrest
with the opportunity to do so whenever a protected individual is disrupted.35
Accordingly, this ordinance can be said to “provide the police with unfettered discretion
to arrest individuals for words or conduct that annoy or offend them,” just as the
ordinance in Hill did.36 Thus, like the unconstitutional ordinance in Hill, the MSU
ordinance is “susceptible of regular application to protected expression,” regardless of
whether the protected individual has the power to arrest.37
The Court of Appeals further attempted to distinguish Hill because the ordinance
in that case used the word “interrupt,” while the MSU ordinance uses the word
“disrupt.”38 The American Heritage Dictionary of the English Language (2006), quoted
by the Court of Appeals, defines “disrupt” as “[t]o throw into confusion or disorder” or
“[t]o interrupt or impede the progress, movement, or procedure of[.]”39 The Court of
35
In fact, the instant case demonstrates the realistic danger that a wide range of people
may enforce this MSU ordinance that imposes criminal consequences. After Rego’s
interaction with defendant, Rego called the university police, which he testified is
standard procedure when an individual becomes upset about a parking ticket. Despite the
fact that Rego was a parking enforcement officer without the power to make an arrest,
criminal charges were brought against defendant for violating the MSU ordinance.
36
Hill, 482 U.S. at 465 (emphasis added).
37
Id. at 467.
38
Rapp, 293 Mich. App. at 165.
39
Emphasis added. By its very nature, an interruption affects the “progress, movement,
or procedure” of something. In fact, both the Hill ordinance and the MSU ordinance
require the protected person to be doing something—the Hill ordinance prohibited
interrupting an officer “in the execution of his duty,” Hill, 482 U.S. at 455, while the MSU
ordinance prohibits disrupting a protected person’s “activity,” MSU Ordinance, § 15.05.
11
Appeals reasoned that a person can “interrupt an action without causing disorder or
confusion, such as by merely asking a question,” but “the same conduct does not
necessarily disrupt . . . .”40 The Court of Appeals then explained that its reasoning
compelled the conclusion that while the term “interrupt” used in the Hill ordinance may
encompass a substantial amount of constitutionally protected conduct, “the same can not
necessarily be said” of the term “disrupt” used in the MSU ordinance.41 We disagree
with this analysis.
Under the definition chosen by the Court of Appeals, “disrupt” explicitly includes
“interrupt.” Other dictionaries similarly include “interrupt” in the definition of
“disrupt.”42 Moreover, the terms “interrupt” and “disrupt” are commonly used as
synonyms.43 Nevertheless, the Court of Appeals’ reasoning implies that the term
“interrupt” is capable of encompassing verbal interruptions, thereby implicating
constitutionally protected conduct, while the term “disrupt” is somehow limited to
40
Rapp, 293 Mich. App. at 165.
41
Id.
42
Random House Webster’s College Dictionary (2d ed, 2001) defines “disrupt” as “to
destroy . . . temporarily, the normal continuance or unity of; interrupt: to disrupt
broadcasting.”
43
Burton, Legal Thesaurus (2d ed) (New York: Macmillan Publishing Co, 1992), p 181;
see also Roget’s II: The New Thesaurus (3d ed) (Boston: Houghton Mifflin Co, 2003),
pp 119, 290 (listing the terms “break,” “discontinuance,” “discontinuation,”
“discontinuity,” “interruption,” “pause,” “suspension,” and “disruption” as synonyms);
Vocabulary.com (accessed July 26,
2012) (listing the term “disrupt” as a synonym for the term “interrupt” and stating that
“[t]o interrupt someone is to interfere in their activity, disrupt their conversation, or to
disturb their peace and quiet”).
12
nonverbal acts and thereby incapable of reaching protected conduct. However, nothing in
the ordinary meanings of “interrupt” and “disrupt” supports this reasoning. More
importantly, nothing in the ordinances at issue in Hill or this case creates that distinction.
The dictionary definition used by the Court of Appeals essentially provides that a
person can “disrupt” another person by either (1) interrupting that person or (2) causing
disorder or confusion.44 Given this definition, one way to violate the MSU ordinance is
to disrupt a person by interrupting that person. There is no question that the United
States Supreme Court concluded in Hill that an ordinance broadly prohibiting
interruptions reaches “a substantial amount of constitutionally protected speech . . . .”45
A person may also violate the MSU ordinance, under this definition of “disrupt,” by
causing disorder or confusion. This means that if a person asks another person several
questions, which causes that other person’s activity to be “thrown into confusion or
disorder,” a prohibited disruption has occurred. Both ways in which a person may disrupt
another person can be accomplished by purely expressive conduct.46 And regardless of
44
The dissent acknowledges this very same definition, yet it then asserts that only “some
interruptions rise to the level of disruptions . . . .” Post at 11. This assertion is perhaps
based on the dissent’s view that the term “disrupt” requires the creation of “‘confusion or
disorder.’” Post at 6. While it is true that one way to “disrupt” a person is to create
confusion or disorder, the quoted definition of “disrupt” clearly indicates that another
way to “disrupt” a person is to “interrupt” that person.
45
Hill, 482 U.S. at 466.
46
The dissent opines that the term “disrupt” suggests a “severe impediment” that “most
often result[s] from a nonexpressive, physical disturbance rather than the verbal
interjection of a viewpoint.” Post at 6-7. The dissent ultimately concludes that the MSU
ordinance reaches less protected expression than the Hill ordinance, yet the dissent also
13
which definition of “disrupt” is applied, the MSU ordinance can be used to reach and
criminalize “a substantial amount of constitutionally protected conduct.”47
acknowledges that words or expressive conduct can “disrupt.” See post at 7, 21. The
task of the court is to determine whether the enactment reaches a substantial amount of
protected activity. “[T]hose that make unlawful a substantial amount of constitutionally
protected conduct may be held facially invalid even if they also have legitimate
application.” Hill, 482 U.S. at 459. Moreover, the First Amendment protects more than
just verbal speech. See Tinker v Des Moines Indep Community Sch Dist, 393 U.S. 503; 89
S. Ct. 733; 21 L. Ed. 2d 731 (1969) (holding that a regulation prohibiting wearing armbands
to schools in protest of the Vietnam War and providing for suspension of any student
refusing to remove the armbands was an unconstitutional denial of students’ right of
expression of opinion); Texas v Johnson, 491 U.S. 397; 109 S. Ct. 2533; 105 L. Ed. 2d 342
(1989) (holding that the defendant’s act of burning an American flag during a protest
rally was expressive conduct within the protection of the First Amendment); Hill v
Colorado, 530 U.S. 703; 120 S. Ct. 2480; 147 L. Ed. 2d 597 (2000) (holding that people have
the right to protest, display signs, and pass out leaflets, but the state may reasonably
regulate the time, place, and manner of these activities); Cohen v California, 403 U.S. 15;
91 S. Ct. 1780; 29 L. Ed. 2d 284 (1971) (holding that the defendant could not be punished
for walking through a courthouse wearing an offensive t-shirt).
47
Hoffman Estates, 455 U.S. at 494. Despite the fact that the MSU ordinance criminalizes
constitutionally protected conduct, the dissent asserts that the ordinance is valid because
“a university can implement measures to prevent disruptions of the academic
environment.” Post at 18. The dissent cites Tinker, 393 U.S. 503, and Hazelwood Sch Dist
v Kuhlmeier, 484 U.S. 260; 108 S. Ct. 562; 98 L. Ed. 2d 592 (1988), as authority for this
proposition. However, those cases do not support the dissent’s position. Both Tinker and
Kuhlmeier involved the constitutional rights of minors in public schools. While students
do not “shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate,” Tinker, 393 U.S. at 506, the United States Supreme Court
acknowledged that “the constitutional rights of students in public school are not
automatically coextensive with the rights of adults in other settings,” Bethel Sch Dist No
403 v Fraser, 478 U.S. 675, 682; 106 S. Ct. 3159; 92 L. Ed. 2d 549 (1986) (emphasis added).
Given that minors do not automatically have the same rights as adults, the Court
explained in both Tinker and Kuhlmeier that the rights of students must be “‘applied in
light of the special characteristics of the school environment . . . .’” Kuhlmeier, 484 U.S.
at 266, quoting Tinker, 393 U.S. at 506. This case involves the constitutional rights of
anyone who disrupts any person engaging in any activity with MSU and does not involve
the unique issues that arise with regard to the rights of minors in public schools.
14
Finally, we note that our analysis is not affected by Hill’s observation of an
anomaly in Texas law whereby the ordinance in that case was preempted to the extent
that the Texas Penal Code already covered the proscribed conduct. Because Texas law
preempted enforcement of that portion of the Hill ordinance that criminalized someone
who “assault[s]” or “strike[s]” a police officer, “the enforceable portion of the ordinance”
made it “‘unlawful for any person to . . . in any manner oppose, molest, abuse or interrupt
any policeman in the execution of his duty,’ and thereby prohibits verbal interruptions of
police officers.”48
While defendant does not offer any Michigan law similar to the Texas preemption
statute, we note that separate statutes and MSU ordinances already criminalize physical
assaults. For instance, MSU Ordinance, § 22.01 provides that “[n]o person shall accost,
molest, or harass any person upon the lands governed by the Board [of Trustees].” And,
of course, MCL 750.81 criminalizes all assaults that occur within the state, regardless of
whether they occur on MSU grounds. Thus, for all practical purposes, the only
48
Hill, 482 U.S. at 460-461. The dissent appears to read the enforceable portion of the
Hill ordinance too narrowly, stating that it applied only to verbal interruptions. However,
Hill’s discussion of preemption does not support the dissent’s position. In Hill, the
United States Supreme Court explained that because the Hill ordinance made it
“unlawful” to “interrupt” a police officer “in any manner,” the ordinance prohibited
verbal interruptions and, thereby, affected protected speech. Hill, 482 U.S. at 461. Hill
stated that preemption existed with regard to physical assaults and disorderly conduct and
cited the relevant provisions in Texas law criminalizing that conduct; the Court
concluded that, as a result of preemption, the enforceable provisions of the ordinance did
not apply to the core criminal conduct attendant to physical assaults and disorderly
conduct. However, Hill did not cite any Texas law that preempted all nonverbal
interruptions of police officers, as the dissent suggests. The enforceable provisions of the
Hill ordinance still covered many nonverbal interruptions as long as those interruptions
were nonassaultive and did not rise to the level of disorderly conduct.
15
disruptions that the MSU ordinance newly criminalizes are the same nonphysical ones
that the enforceable portion of the Hill ordinance proscribed. In other words, just as
Texas law criminalized physical assaults on police officers in the absence of the Hill
ordinance, state statutes and MSU ordinances already criminalize any physical assault
that disrupts someone on the MSU campus even in the absence of MSU Ordinance,
§ 15.05.49 As a result, the partial preemption of the Hill ordinance does not compel a
different result in this case.
Accordingly, we hold that under Hill, the language in MSU Ordinance, § 15.05
making it an offense to “disrupt the normal activity” of a protected person is facially
unconstitutional.
Next, we address whether MCR 7.101(O) allows taxation of costs in criminal
appeals in the circuit court. MCR 7.101(O) provides:
Costs in an appeal to the circuit court may be taxed as provided in
MCR 2.625. A prevailing party may tax only the reasonable costs incurred
in the appeal, including:
(1) the cost of an appeal or stay bond;
49
We reject any concerns that under our decision, certain nonassaultive campus
disruptions, such as someone running onto a stadium field or playing loud music to
disrupt a class in session, will now be permitted. Such hypothetical nonassaultive
disruptions are already prohibited. For example, MSU Ordinance, § 15.06 prohibits an
unauthorized person from entering the playing area of any athletic contest or exhibition
while the contest or exhibition is in progress. Furthermore, § 15 of the MSU Ordinance
Code specifically states that the operation of a sound amplifying device “in such a
manner as to create a noise disturbance” is a violation of the section. Moreover, to the
extent that other hypothetical nonassaultive disruptions may not be covered by existing
prohibitions, the MSU Board of Trustees has the authority to establish new prohibitions
against unprotected conduct “as it may deem necessary to secure the successful operation
of the college and to promote its designed objects.” MCL 390.106.
16
(2) the transcript;
(3) documents required for the record on appeal;
(4) fees paid to the clerk or to the trial court clerk incident to the
appeal;
(5) taxable costs allowed by law in appeals to the Supreme Court
(MCL 600.2441); and
(6) other expenses taxable under applicable court rules or statutes.
Defendant argues that he is entitled to reimbursement for the costs he incurred
because the prosecution pursued its case against him on the basis of an unconstitutional
statute. While the circuit court granted defendant’s motion for taxation of costs, the
Court of Appeals reversed that decision on the basis that there is no statutory authority
allowing the assessment of costs in this matter. We agree with the Court of Appeals’
analysis of this issue.
MCR 7.101(O) explicitly states that “costs . . . may be taxed as provided in MCR
2.625.” MCR 2.625 is a rule of civil procedure, which does not apply to a criminal
matter.50 MCR 7.101(O)(5) refers to MCL 600.2441, a statute that applies only to the
taxation of costs in civil matters.51 Because this case is a criminal matter, MCR 7.101(O)
50
While MCR 6.001(D)(2) generally applies the rules of civil procedure to criminal
cases, that rule contains an exception “when it clearly appears” that the rules “apply to
civil actions only[.]” MCR 2.625(A) allows “the prevailing party in an action” to be
awarded costs, while MCR 2.625(B) further specifies which party is the prevailing party.
These provisions clearly appear to “apply to civil actions only” within the meaning of
MCR 6.001(D)(2) because they discuss, for example, the prevailing party in terms of
“separate judgments,” “different causes of action,” and the “amount” of a judgment.
51
MCL 600.2441(2) states that it applies “[i]n all civil actions or special proceedings in
the circuit court . . . .”
17
does not provide grounds for awarding costs.52 Accordingly, the Court of Appeals
correctly concluded that there is no basis to “undermine the broad statutory discretion
granted the prosecution in its charging decisions,”53 and the assessment of costs against
the prosecution in this case was improper.
IV. CONCLUSION
We conclude that the language in MSU Ordinance, § 15.05 making it an offense to
“disrupt the normal activity” of a protected person is facially overbroad, as articulated by
the United States Supreme Court in Hill. Therefore, we reverse the judgment of the
Court of Appeals in part and reinstate the circuit court’s decision to the extent that the
circuit court held that the quoted language is facially unconstitutional. On the issue of
costs, we agree with the Court of Appeals’ conclusion that the circuit court erroneously
assessed costs against the prosecution and, therefore, we affirm the Court of Appeals’
judgment in part.
Diane M. Hathaway
Robert P. Young, Jr.
Michael F. Cavanagh
Marilyn Kelly
Mary Beth Kelly
52
Defendant’s argument is essentially that the prosecution’s case was frivolous.
However, even under MCR 2.625(2), which governs taxation of costs for frivolous
claims and defenses, costs may only be awarded in accordance with MCL 600.2591.
MCL 600.2591(1) provides that “if a court finds that a civil action or defense to a civil
action was frivolous, the court that conducts the civil action shall award to the prevailing
party the costs and fees incurred . . . .” Again, MCR 2.625 does not provide statutory
authority for taxation of costs in this criminal matter.
53
Rapp, 293 Mich. App. at 167.
18
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 143343; 143344
JARED RAPP,
Defendant-Appellant.
ZAHRA, J. (dissenting).
I respectfully dissent from the majority’s conclusion that the language in Michigan
State University (MSU) Ordinance, § 15.05 that makes it an offense to “disrupt the
normal activity” of a protected person is unconstitutional under City of Houston, Texas v
Hill.1 Significantly, the issue of whether the ordinance was unconstitutionally applied to
defendant for engaging in protected expression is not before this Court. Addressing
defendant’s facial challenge, the majority concludes that the overbreadth of the ordinance
is so substantial that it must be struck down. The decision to strike down the instant
ordinance, and thereby nullify a decision of the university’s legislative body, is a matter
of considerable consequence. This Court is responsible for upholding both the Michigan
and federal constitutions, but its authority to invalidate laws is limited and must be
predicated on a clear and apparent demonstration of unconstitutionality. Absent that
1
City of Houston, Texas v Hill, 482 U.S. 451; 107 S. Ct. 2502; 96 L. Ed. 2d 398 (1987).
demonstration, the majority’s decision, in my judgment, is an expansion of judicial power
and an unwarranted encroachment on the legislative branch of government.
In my view, Hill does not provide sufficient grounds to conclude that MSU
Ordinance, § 15.05 reaches a substantial amount of constitutionally protected expression
relative to its plainly legitimate sweep. I am also not convinced that the ordinance
presents a realistic danger of significantly compromising First Amendment freedoms.
Finally, the majority fails to consider the context of the academic environment in
reaching its decision. I would affirm the judgment of the Court of Appeals upholding
MSU Ordinance, § 15.05 as constitutional on its face and remanding the case to the trial
court for consideration of defendant’s as-applied challenge.2
I. THE OVERBREADTH DOCTRINE
Laws are presumed constitutional, and this Court must construe a law as
constitutional unless its unconstitutionality is clearly apparent.3 The burden of proving
that a law is unconstitutional falls on the party bringing the challenge.4
2
Although my conclusion that defendant does not prevail in his constitutional challenge
makes it unnecessary for me to reach the second question presented in this appeal, I
nonetheless agree with the majority and the Court of Appeals that MCR 7.101(O) does
not permit the assessment of costs in criminal matters.
3
In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490
Mich. 295, 307; 806 NW2d 683 (2011); People v Barton, 253 Mich. App. 601, 603-604;
659 NW2d 654 (2002) (applying a presumption of constitutionality to an ordinance
challenged on overbreadth grounds).
4
In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479
Mich. 1, 11; 740 NW2d 444 (2007).
2
Facial overbreadth, as alleged here, is a unique breed of constitutional challenge
because of the competing social costs at issue.5 The first concern is that the threat of
enforcement of an overbroad law may have a chilling effect on protected expression,
which is harmful because it deprives society of an uninhibited marketplace of ideas.6 The
fear is that the law’s “very existence may cause others not before the court to refrain from
constitutionally protected speech or expression.”7 To address this concern, the
overbreadth doctrine allows parties to challenge laws without establishing the traditional
standing requirements.8 That is, it “allows a party to challenge a law written so broadly
that it may inhibit the constitutionally protected speech of third parties, even though the
party’s own conduct may be unprotected.”9 Accordingly, “[t]he overbreadth doctrine is
an exception to the traditional rule of practice that ‘a person to whom a statute may
constitutionally be applied will not be heard to challenge that statute on the ground that it
may conceivably be applied unconstitutionally to others, in other situations not before the
court.’”10
5
United States v Williams, 553 U.S. 285, 292-293; 128 S. Ct. 1830; 170 L. Ed. 2d 650
(2008).
6
Virginia v Hicks, 539 U.S. 113, 119; 123 S. Ct. 2191; 156 L. Ed. 2d 148 (2003).
7
Broadrick v Oklahoma, 413 U.S. 601, 612; 93 S. Ct. 2908; 37 L. Ed. 2d 830 (1973).
8
Id. at 613.
9
In re Chmura, 461 Mich. 517, 530; 608 NW2d 31 (2000).
10
Id., quoting Broadrick, 413 US at 610.
3
“The consequence of our departure from traditional rules of standing in the First
Amendment area is that any enforcement of a statute thus placed at issue is totally
forbidden until and unless a limiting construction or partial invalidation so narrows it as
to remove the seeming threat or deterrence to constitutionally protected expression.”11
The competing social cost of the overbreadth doctrine, therefore, is that it prevents a law
from applying to constitutionally unprotected speech and even constitutionally
unprotected conduct, which can result in obvious harm to society.12 Accordingly, “[i]n
order to maintain an appropriate balance, we have vigorously enforced the requirement
that a statute’s overbreadth be substantial, not only in an absolute sense, but also relative
to the statute’s plainly legitimate sweep.”13 Further, to invalidate a law, “there must be a
realistic danger that the statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court . . . .”14 Invalidation for
overbreadth is “strong medicine” that should be used “sparingly and only as a last resort”
and not “when a limiting construction has been or could be placed on the challenged
statute.”15
11
Broadrick, 413 U.S. at 613.
12
Hicks, 539 U.S. at 119.
13
Williams, 553 U.S. at 292.
14
Los Angeles City Council v Taxpayers for Vincent, 466 U.S. 789, 801; 104 S. Ct. 2118;
80 L. Ed. 2d 772 (1984).
15
Broadrick, 413 U.S. at 613.
4
II. DEFENDANT FAILS TO DEMONSTRATE THAT THE ORDINANCE
REACHES A SUBSTANTIAL AMOUNT OF PROTECTED EXPRESSION
In Hill, the Court struck down as facially overbroad a Houston ordinance making
it “‘unlawful for any person to assault, strike or in any manner oppose, molest, abuse or
interrupt any policeman in the execution of his duty, or any person summoned to aid in
making an arrest.’”16 In contrast, MSU Ordinance, § 15.05 states, “No person shall
disrupt the normal activity or molest the property of any person, firm, or agency while
that person, firm, or agency is carrying out service, activity or agreement for or with the
University.”17 In my view, the text of the Houston ordinance and the Supreme Court’s
stated reasons for striking it down are sufficiently distinguishable from this case that Hill,
the sole basis for defendant’s challenge, does not support the majority’s conclusion that
MSU Ordinance, § 15.05 reaches a substantial amount of protected expression.
The majority’s use of Hill to guide its analysis is problematic in the first instance
because it effectively turns the presumption of constitutionality on its head. Although the
majority states that it “presumes that ordinances are constitutional,”18 its analysis uses a
case in which an ordinance was declared unconstitutional as a point of reference and from
there reasons that no basis exists for not treating that case as controlling. The majority’s
analysis suggests a presumption of unconstitutionality. The majority’s reliance on Hill is
16
Hill, 482 U.S. at 455, quoting Houston Ordinance, § 34-11(a) (1984) (emphasis added).
17
Emphasis added.
18
Ante at 4.
5
also problematic because it allows the majority to evade a traditional overbreadth analysis
in what amounts to an attempt to fit a square peg into a round hole. Careful review
reveals that the majority’s analysis presents an oversimplified version of Hill that
downplays its distinguishing aspects, creating only the appearance of a good fit.
Beginning with the most obvious distinction, the Houston ordinance made it
unlawful to “interrupt” a police officer in the execution of his or her duties, whereas
MSU Ordinance, § 15.05 makes it unlawful to “disrupt” the normal activity of a protected
person carrying out an activity for or with MSU. Contrary to the majority’s assertion,
these terms are not used in a largely synonymous fashion by those who use the English
language carefully, as judges must, and the majority’s use of thesaurus references is
misleading.19 The term “interrupt” is defined as “[t]o break the continuity or uniformity
of,” whereas “disrupt” means “[t]o throw into confusion or disorder” or “[t]o interrupt or
impede the progress, movement, or procedure of[.]”20
Significantly, the term “interrupt” typically carries a verbal connotation.21 By
contrast, the term “disrupt” carries a comparatively strong connotation that suggests not
19
A thesaurus groups related concepts and provides a list of terms having similar
meanings. A particular term may be more or less appropriate than another term given the
particular context in which the term is being used. A thesaurus does not supply a list of
synonymous terms that should be used interchangeably as if they have identical
meanings.
20
The American Heritage Dictionary of the English Language (2006).
21
See Merriam-Webster
(defining “interrupt” as “to stop or hinder by breaking in ” or “to break in upon an action; especially: to break in with questions
or remarks while another is speaking”) (accessed July 26, 2012).
22
The respective prefixes of “interrupt” and “disrupt” buttress this conclusion. The
prefix “inter-” means between, reciprocal, or shared, whereas “dis-” connotes opposite
action, deprivation, or exclusion. See Merriam-Webster (accessed July 26, 2012); Merriam-Webster
(accessed July 26, 2012).
23
I am well aware that “the First Amendment protects more than just verbal speech.”
Ante at 14 n 46. As the majority notes, it also protects expressive conduct. See, e.g.,
Tinker v Des Moines Indep Community Sch Dist, 393 U.S. 503; 89 S. Ct. 733; 21 L. Ed. 2d
731 (1969). My position, however, is that disruptions are typically nonexpressive,
making the majority’s discussion in footnote 46 of its opinion largely irrelevant.
24
Los Angeles City Council, 466 U.S. at 800.
7
concludes that MSU Ordinance, § 15.05 is comparable to the Houston ordinance because
“a person can ‘disrupt’ another person by . . . interrupting that person . . . .”25
The majority’s synthesis is not faithful to the language in the dictionary definition
of “disrupt” or to MSU Ordinance, § 15.05. The second dictionary definition of “disrupt”
is to interrupt the progress, interrupt the movement, or interrupt the procedure of. And
MSU Ordinance, § 15.05 provides that “[n]o person shall disrupt the normal activity . . .
of [a protected person].”26 Thus, the ordinance language is focused not on disrupting the
person, but on disrupting the normal activity in which the person is engaged. The
following statement is a more accurate synthesis of the second dictionary definition of
“disrupt” and MSU Ordinance, § 15.05: No person shall interrupt the progress, the
movement, or the procedure of the normal activity of a protected person.
Interrupting the progress, the movement, or the procedure of a normal activity is a
far cry from interrupting a person, and this difference indicates that MSU Ordinance,
§ 15.05 is less concerned with silencing speech and more concerned with allowing
legitimate activities on campus to go unimpeded. The scope of the ordinance is further
limited because a protected person’s “normal activity” may include being verbally
interrupted by other people. It is part of a professor’s normal activity, for example, to be
interrupted by students asking questions. It is likewise part of a police officer’s or a
parking enforcement officer’s normal activity to be interrupted by having to respond to
25
Ante at 13.
26
Emphasis added.
8
legitimate questions from the public. MSU Ordinance, § 15.05 does not prohibit these
interruptions. The majority, having relied primarily on the second dictionary definition
of “disrupt,” fails to discuss any of these subtleties or engage in any balancing analysis
that takes into consideration the legitimate sweep of MSU Ordinance, § 15.05.
Applying the first dictionary definition of “disrupt,” another way to violate the
ordinance is to throw into confusion or disorder the normal activity of a protected person.
Certainly, a person can interrupt without throwing into confusion or disorder the normal
activity of a protected person—for instance, by asking a question.27 Accordingly, while
all disruptions may be considered interruptions (as suggested by the inclusion of
“interrupt” in the second dictionary definition of “disrupt”), not all interruptions rise to
the level of disruptions.28 It is also no mistake that the term “disrupt” is not included in
the dictionary definition of “interrupt,” as one would expect if the terms were truly
synonymous. Accordingly, the term “disrupt” carries a different meaning than
“interrupt.”
Nonetheless, according to the majority, disruptions that throw into confusion or
disorder the normal activity of a protected person also implicate purely expressive
conduct and, therefore, MSU Ordinance, § 15.05 reaches a substantial amount of
27
See People v Rapp, 293 Mich. App. 159, 165; 809 NW2d 665 (2011).
28
Although I tend to agree that anytime someone “disrupts” he or she also “interrupts,” it
does not follow, contrary to the majority’s conclusion, that anytime someone “interrupts”
he also “disrupts.” In other words, one can interrupt without disrupting, but one cannot
disrupt without interrupting.
9
protected expression under either dictionary definition of “disrupt.” As an example, the
majority asserts that “if a person asks another person several questions, which causes that
other person’s activity to be ‘thrown into confusion or disorder,’ a prohibited disruption
has occurred.”29 The Court in Hill, however, addressed the majority’s hypothetical
example and concluded that a municipality may constitutionally punish such conduct.
Specifically, the Court agreed with Justice Powell that “‘a municipality constitutionally
may punish an individual who chooses to stand near a police officer and persistently
attempt to engage the officer in conversation while the officer is directing traffic at a busy
intersection.’”30 Stated differently, the interruption, expressive or otherwise, is not
protected if it prevents the officer from directing traffic at a busy intersection. The Court
explained, however, that a municipality may not do what Houston did, which was “to
attempt to punish such conduct . . . by authorizing the police to arrest a person who in any
manner verbally interrupts an officer.”31 MSU Ordinance, § 15.05, however, does not
make it unlawful to in any manner disrupt a protected person. Rather, a disruption is
prohibited only if it prevents a protected person from carrying out an activity for or with
MSU, making it narrower than the Houston ordinance.
The linguistic differences between the ordinances reveal the logical fallacy
employed by the majority. In essence, the majority reasons that, because the Supreme
29
Ante at 13.
30
Hill, 482 U.S. at 462 n 11 (citation omitted).
31
Id. (emphasis altered).
10
Court held that the term “interrupt” in the Houston ordinance reached a substantial
amount of protected expression, and because some interruptions rise to the level of
disruptions, then the term “disrupt” in the MSU ordinance also reaches a substantial
amount of protected expression. This is a non sequitur—the conclusion does not follow
from the premises. Rather, all that can be drawn from Hill is that MSU Ordinance,
§ 15.05 reaches less protected expression than the Houston ordinance.32 This, of course,
falls short of defendant’s burden to establish substantial overbreadth, and it leaves this
Court with insufficient grounds to invalidate the ordinance.
Furthermore, the majority effectively ignores a major facet of the Court’s rationale
in Hill for striking down the Houston ordinance. The Court interpreted the Houston
ordinance as targeting speech and not core criminal conduct in large part because the
Texas Penal Code preempted governmental subdivisions or agencies from enacting or
enforcing laws that purported to criminalize any form of physical assault against a police
officer, and the city conceded the issue of preemption in the Supreme Court.33 The Court
stated that, as preempted, “the enforceable portion of the ordinance deals not with core
32
I find no relevance in the majority’s observation that MSU Ordinance, § 15.05
“protects a much broader class of individuals than the ordinance at issue in Hill,” ante
at 8, because I do not believe that the prohibition against disrupting reaches a substantial
amount of protected expression.
33
Hill, 482 U.S. at 460, 461 n 9. Given the city’s concession, the Court chose not to
address whether the ordinance would be substantially overbroad if not preempted by the
Texas Penal Code. Id.
11
criminal conduct, but with speech.”34 The Court also stated that “[t]he enforceable
portion of this ordinance is a general prohibition of speech that ‘simply has no core’ of
constitutionally unprotected expression to which it might be limited.”35 Indeed, given the
extent of preemption, the Court went as far as to say that “limiting the ordinance to
‘physical acts’ would be equivalent to invalidating it on its face.”36 Thus, the Court
construed the enforceable portion of the ordinance as prohibiting only “verbal
interruptions of police officers.”37 To the extent that the ordinance prohibited nonverbal
interruptions or other physical affronts directed toward police officers, the ordinance was
preempted.38
34
Id. at 460 (emphasis added).
35
Id. at 468 (citation omitted).
36
Id. at 469 n 18.
37
Id. at 461 (emphasis added).
38
Id. at 460-461. The Court noted that the Texas Penal Code broadly defined “assault”
as including “any provocative contact with . . . any person,” making it much broader than
the traditional concept of assault. Hill, 482 U.S. at 460 n 8; Tex Penal Code Ann 22.01(a).
Given that the Houston ordinance was preempted to the extent that it prohibited any
provocative contact whatsoever, my reading of the enforceable portion of the ordinance
as limited to verbal interruptions is not overly narrow. Is not a physical interruption a
form of provocative contact? Further, the Court acknowledged that the Texas Penal Code
did far more than preempt the enactment of laws criminalizing physical assaults. As one
example, the Court noted that the Houston ordinance was preempted to the extent that it
criminalized disorderly conduct. Hill, 482 U.S. at 465 n 13; Tex Penal Code Ann 42.01.
In any case, the majority concedes that the Court construed the Houston ordinance as
unenforceable against many types of physical interruptions. By contrast, the Michigan
Legislature has not barred local units of government from enforcing ordinances that bar
provocative or assaultive contact. Thus, no part of the MSU ordinance is preempted.
Therefore, the ordinance has a broader legitimate sweep than the Houston ordinance.
12
Given this limited construction, the Court sensibly concluded that the Houston
ordinance criminalized a substantial amount of protected expression relative to its plainly
legitimate sweep. In this case, however, neither defendant nor the majority identifies a
Michigan law that preempts MSU Ordinance, § 15.05. Accordingly, it is enforceable
against physical disruptions. Because the enforceability of the ordinance is not limited to
mere verbal disruptions, it has a far broader legitimate sweep than the Houston
ordinance.39
The majority asserts that because existing laws “already criminalize any physical
assault that disrupts someone on the MSU campus . . . , the partial preemption of the Hill
ordinance does not compel a different result in this case.”40 The majority’s statement
misses the point. It did not matter in Hill that Texas law already criminalized physical
assaults on police officers; it mattered that the Texas Legislature had preempted the city
from doing the same. Absent a similar preemption statute, the mere existence of MSU
The lack of preemption in this case is a significant distinction that the majority all but
ignores.
39
That MSU Ordinance, § 15.05 is not limited to verbal disruptions does not imply that
the ordinance is somehow limited to nonverbal disruptions, and I disagree with the
majority that the Court of Appeals implied that it is. Ante at 12-13 (asserting that “the
Court of Appeals’ reasoning implies that . . . the term ‘disrupt’ is somehow limited to
nonverbal acts”). I agree fully with the Court of Appeals’ statement that “while to
‘interrupt’ could be deemed, as it was in Hill, to reach a substantial amount of
constitutionally protected conduct, the same can not necessarily be said of ‘disrupt.’”
Rapp, 293 Mich. App. at 165.
40
Ante at 16.
13
ordinances and statutes criminalizing certain campus disruptions does not align this case
with Hill.
For all these reasons, Hill, the sole basis for defendant’s facial challenge, does not
support the majority’s conclusion that MSU Ordinance, § 15.05 reaches a substantial
amount of constitutionally protected expression.
III. DEFENDANT FAILS TO DEMONSTRATE A REALISTIC DANGER
THAT THE ORDINANCE WILL SIGNIFICANTLY COMPROMISE FIRST
AMENDMENT FREEDOMS
In addition to examining the language of an ordinance, it is appropriate to examine
the likelihood of the ordinance’s unconstitutional application. Even in a facial
overbreadth challenge, the party bringing the challenge must demonstrate “a realistic
danger that the statute itself will significantly compromise recognized First Amendment
protections of parties not before the Court . . . .”41 In Hill, the appellee introduced city
records indicating the frequency with which arrests had been made under the Houston
ordinance and the types of exchanges that had led to those arrests.42 The United States
Court of Appeals for the Fifth Circuit reasoned that the evidence provided by the appellee
showed a realistic danger that the city’s application of the ordinance significantly
compromised protected expression, and the Supreme Court did not disturb that
41
Los Angeles City Council, 466 U.S. at 801.
42
Hill, 482 U.S. at 455.
14
conclusion.43 The Supreme Court further observed that the ordinance was “admittedly
violated scores of times daily . . . .”44
In this case, however, defendant provides no examples of protected expression that
the ordinance has or could prohibit, and his characterization of the behavior for which he
was cited as merely asking a parking official for his name is inconsistent with a fair
reading of the record.45 In particular, there is evidence that defendant drove toward the
parking official in his vehicle at an aggressive speed, leapt out of his vehicle, approached
the official in an aggressive manner, took pictures of the official with his cell phone,
yelled at the official regarding the ticket, and demanded to know the official’s name. In
response, and out of concern for what defendant might do next, the official returned to
the inside of his truck and summoned the university police for assistance. Although I do
not opine on defendant’s as-applied challenge, the record viewed as a whole belies
defendant’s claim that he received a citation merely for interrupting a parking official to
ask for his name. Defendant has also otherwise failed to show a history of enforcement
of the ordinance against protected expression. Finally, unlike in Hill, no one has
admitted that the ordinance at issue in this case is violated scores of times daily by
43
Id. at 457.
44
Id. at 466 (emphasis added).
45
Because this is a facial challenge, defendant is not required to show that the ordinance
is unconstitutional as applied to him. Nonetheless, he still must demonstrate that the
ordinance presents a realistic danger of significantly compromising First Amendment
freedoms.
15
persons engaging in protected expression.46 Thus, I do not believe that defendant has
demonstrated a realistic danger that MSU Ordinance, § 15.05 will significantly
compromise First Amendment freedoms.
An ordinance’s enforcement mechanism may also be relevant to whether the
ordinance presents a realistic danger of significantly compromising protected expression,
as the Court suggested in Hill. The Houston ordinance prohibited interrupting police
officers, the same class of individuals with the discretionary power to arrest individuals
under the ordinance. As the Court explained, “[t]he freedom of individuals verbally to
oppose or challenge police action without hereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a police state.”47 The Court
46
The majority asserts that “the MSU ordinance could be violated numerous times
throughout any given day” because “there are seemingly infinite ways” to disrupt a
protected person. Ante at 8-9 (emphasis added). That “there are seemingly infinite
ways” to disrupt, however, provides all the more reason to be concerned about the
damaging effects that the majority’s decision will have on legitimate law enforcement
interests at MSU. By what alternative legal approach does the majority believe that MSU
can address these “infinite” forms of disruptions other than by prohibiting “disruptions?”
Moreover, the claim that the ordinance could be enforced frequently is beside the point if
defendant has not demonstrated a likelihood that the ordinance will actually be enforced
against protected expression and, as I believe, the prohibition against disruptions
primarily regulates unprotected activity. There are several laws that are violated
numerous times daily on MSU’s campus (e.g., laws prohibiting speeding and the
possession of alcohol by a minor). The mere prevalence of violations does not make a
law constitutionally suspect if the law does not reach a substantial amount of protected
expression. Given the majority’s focus on the sheer number of violations as a barometer
of unconstitutionality, does the majority understand the First Amendment as applying
differently at a large campus such as MSU’s than at a smaller campus such as Northern
Michigan University’s?
47
Hill, 482 U.S. at 462-463 (emphasis added).
16
also stated that it has “repeatedly invalidated laws that provide the police with unfettered
discretion to arrest individuals for words or conduct that annoy or offend them.”48 Thus,
the Court considered it especially concerning that enforcement of the Houston ordinance
was entrusted to the sole objects of its prohibition. This feature of the ordinance
presented an “‘opportunity for abuse’” that the Court had previously admonished
legislators to avoid49 and made the ordinance “susceptible of regular application to
protected expression.”50
In this case, because the persons protected against disruptions are not limited to
the police, there are many circumstances, including this case, under which enforcement
of the ordinance is carried out by a neutral third party rather than left to the unfettered
discretion of the object of the prohibition. Therefore, even if I were to assume that MSU
Ordinance, § 15.05 reaches a substantial amount of protected expression, which I do not,
it presents a reduced opportunity for abuse and is less susceptible of regular application to
protected expression than the Houston ordinance.51
48
Id. at 465 (emphasis added).
49
Id. at 466, quoting Lewis v New Orleans, 415 U.S. 130, 136; 94 S. Ct. 970; 39 L. Ed. 2d
214 (1974) (Powell, J., concurring in the result).
50
Hill, 482 U.S. at 467.
51
The majority’s claim that the concerns regarding the enforcement mechanism of the
Houston ordinance “apply equally” here, ante at 10, is flawed. The majority fails to
consider the broader legitimate sweep of MSU Ordinance, § 15.05, which protects more
than the police. Further, the majority’s observation that the ordinance is “a criminal
statute that subjects the violator to a misdemeanor conviction and provides someone who
does have the power to arrest with the opportunity to do so,” ante at 10-11, only serves to
17
IV. CONSIDERATIONS OF THE ACADEMIC ENVIRONMENT
It is apparently of little consequence to the majority that this case concerns an
ordinance adopted by an institution of higher education. To the extent that an academic
environment is at issue in this ordinance, it is far more likely that speech-related activities
(both inside and outside the classroom) will be the object of disruptions than that such
activities will be undermined by the prohibition against disruptions. In this way, the
ordinance as written may actually serve to promote the dissemination of ideas rather than
threaten them.
Further, just as picketing outside courthouses52 disruptive rallies within libraries,53
and speech that disrupts the workplace54 can be constitutionally prohibited, a university
can implement measures to prevent disruptions of the academic environment.55 Even
state the obvious—the police are responsible for enforcing our criminal laws and, of
course, even police officers are sometimes the victims of crimes.
52
See Cameron v Johnson, 390 U.S. 611, 617; 88 S. Ct. 1335; 20 L. Ed. 2d 182 (1968)
(upholding a statute that prohibited picketing that “obstructs or unreasonably interferes
with ingress or egress to or from the courthouse”).
53
See Brown v Louisiana, 383 U.S. 131, 142-143; 86 S. Ct. 719; 15 L. Ed. 2d 637 (1966)
(suggesting that a state or its instrumentality may prohibit “disruption[s] of library
activities” in a reasonable and nondiscriminatory manner) (emphasis added).
54
See Waters v Churchill, 511 U.S. 661, 680-681; 114 S. Ct. 1878; 128 L. Ed. 2d 686 (1994)
(explaining that speech by public employees that disrupts the workplace is unprotected,
regardless of whether the speech is on a matter of public concern).
55
See Tinker, 393 U.S. at 513 (declaring that “conduct by the student, in class or out of it,
which for any reason . . . materially disrupts classwork or involves substantial disorder or
invasion of the rights of others is, of course, not immunized by the constitutional
guarantee of freedom of speech”) (emphasis added). Although Tinker involved high
school students, courts have applied Tinker in the university setting. For example, in
18
campus newspapers are not entitled to the same degree of free speech as the Lansing
State Journal because of the particular mission of the university.56 By striking down
MSU Ordinance, § 15.05, the majority is not only compromising the ability of parking
Salehpour v Univ of Tennessee, 159 F3d 199, 208 (CA 6, 1998), the United States Court
of Appeals for the Sixth Circuit, citing Tinker, held that the plaintiff’s disruption of the
classroom environment at the university was unprotected. The court stated that
where the expression appears to have no intellectual content or even
discernable purpose, and amounts to nothing more than expression of a
personal proclivity designed to disrupt the educational process, such
expression is not protected and does violence to the spirit and purpose of
the First Amendment. Tinker, 393 U.S. at 511. The rights afforded to
students to freely express their ideas and views without fear of
administrative reprisal, must be balanced against the compelling interest of
the academicians to educate in an environment that is free of purposeless
distractions and is conducive to teaching. Under the facts of this case, the
balance clearly weighs in favor of the University. [Id. (emphasis added;
citation omitted).]
Furthermore, the United States Supreme Court, in recognition of its decision in Tinker,
stated that
[a] university differs in significant respects from public forums such as
streets or parks or even municipal theaters. A university’s mission is
education, and decisions of this Court have never denied a university’s
authority to impose reasonable regulations compatible with that mission
upon the use of its campus and facilities. [Widmar v Vincent, 454 U.S. 263,
268 n 5; 102 S. Ct. 269; 70 L. Ed. 2d 440 (1981).]
In this case, MSU has implemented a reasonable, content-neutral regulation that is
consistent with its mission as an educational institution. The regulation prohibits
disruptions to the normal activity of persons carrying out a service, activity, or agreement
for or with MSU.
56
See Hazelwood Sch Dist v Kuhlmeier, 484 U.S. 260, 273; 108 S. Ct. 562; 98 L. Ed. 2d 592
(1988) (“hold[ing] that educators do not offend the First Amendment by exercising
editorial control over the style and content of student speech in school-sponsored
expressive activities so long as their actions are reasonably related to legitimate
pedagogical concerns”).
19
officials to safely respond to irate behavior, but it is also preventing MSU from regulating
numerous other disruptive activities that interfere with its core academic mission.
Finally, it is useful to consider the campus disruptions that MSU Ordinance,
§ 15.05 will no longer cover because it has been partially struck down by the majority:
(1) a person running onto the field of a stadium during a sporting event, (2) a person
blaring music during a lecture, (3) a person interfering with the progress or movement of
an individual cleaning or maintaining a university building, (4) a person preventing the
entrance of students into a classroom by physically blocking the classroom door, (5) a
person shining a laser pointer during a performance or lecture, (6) a person turning the
lights on and off in a classroom during an exam, (7) a person continually making noise in
the library, (8) a person calling in a false bomb threat, and (9) a person pulling a fire
alarm in the absence of a fire emergency. These are just a few of the countless
nonexpressive campus occurrences that might throw into confusion or disorder the
normal activity of a protected person. These illustrations highlight the tangible
consequences of the majority’s decision.57
57
As another consequence, the majority’s decision may well invalidate several other
campus prohibitions. MSU Ordinance, § 15.01 prohibits “any excessive noise or
disturbance, riot, raid, or disruption . . . which obstructs the free movement of persons
about the campus or the free and normal use of University buildings and facilities, or
prevents or obstructs the normal operations of the University” (emphasis added); MSU
Ordinance, § 15.02 provides that “[n]o person shall disrupt the normal operation of any
properly authorized class, laboratory, seminar, examination, field trip, or other education
activity of the University” (emphasis added); and MSU Ordinance, § 15.03 provides that
“[n]o person shall disrupt the normal use of any campus building or area which has been
assigned or scheduled by appropriate means for educational or extracurricular activities”
(emphasis added). These ordinances not only illustrate the range of laws that might be
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V. CONCLUSION
For the foregoing reasons, I conclude that Hill provides insufficient grounds for
this Court to invalidate MSU Ordinance, § 15.05. At best, Hill supports the conclusion
that the ordinance reaches less protected expression and presents less danger of
compromising First Amendment freedoms than the Houston ordinance. I also consider it
significant that this ordinance was adopted by an academic institution. Because Hill
provides the sole basis for defendant’s overbreadth challenge, I do not believe that
defendant has met his burden in this case. Accordingly, I dissent from the majority
opinion and would instead affirm the judgment of the Court of Appeals, which upheld
MSU Ordinance, § 15.05 as constitutional on its face and remanded the case to the circuit
court for consideration of defendant’s as-applied challenge.
Brian K. Zahra
Stephen J. Markman
placed at risk by the majority in the very limited context of this one university, but also,
each of these ordinances is relatively clear in communicating a sense that a “disruption”
is distinct from a mere “interruption.”
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