People v. Rapp

• Decision Date: 27 July 2012
• Docket Number: Docket Nos. 143343,Calendar No. 4.,143344.
• Citation: 821 N.W.2d 452,492 Mich. 67
• Parties: PEOPLE v. RAPP.
• Court: Michigan Supreme Court

492 Mich. 67

821 N.W.2d 452

PEOPLE

v.RAPP.

Docket Nos. 143343, 143344.

Calendar No. 4.

Supreme Court of Michigan.

Argued April 4, 2012.

Decided July 27, 2012.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Stuart J. Dunnings, III, Prosecuting Attorney, and Joseph B. Finnerty, Assistant Prosecuting Attorney, for the people.

J. Nicholas Bostic, Lansing, for defendant.

Michael J. Kiley, Jackson, for the Michigan State University Board of Trustees.

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 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.

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, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), and (2) whether MCR 7.101(O) allows taxation of costs in criminal cases appealed in the circuit court.” ⁶

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 sporadicabuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.” ¹¹

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 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 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.²⁵Hill 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 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 numerous times throughout any given day given that there are seeminglyinfinite 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 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...