Michigan Up & Out of Poverty Now Coalition v. State

• Decision Date: 21 April 1995
• Docket Number: Docket No. 150741
• Citation: 210 Mich.App. 162,533 N.W.2d 339
• Parties: MICHIGAN UP & OUT OF POVERTY NOW COALITION, Plaintiff-Appellant, v. STATE of Michigan, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 339

533 N.W.2d 339

210 Mich.App. 162

MICHIGAN UP & OUT OF POVERTY NOW COALITION, Plaintiff-Appellant, v. STATE of Michigan, Defendant-Appellee.

Docket No. 150741.

Court of Appeals of Michigan.

Submitted Nov. 16, 1994, at Lansing.

Decided April 21, 1995, at 10:50 a.m.

Released for Publication June 19, 1995.

ACLU Fund of Michigan by Paul J. Denenfeld and Dorean Koenig (National Lawyers Guild/Maurice and Jane Sugar Law Center for Economic and Social Justice by Kary L. Moss, Executive Director, of counsel), Detroit, for plaintiff.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Deborah A. Devine and Todd H. Cohan, Asst. Attys. Gen., for defendant.

Before WEAVER, P.J., and CORRIGAN and CORWIN, ^* JJ.

CORRIGAN, Judge.

Plaintiff Michigan Up & Out of Poverty Now Coalition appeals as of right an Ingham Circuit Court order denying it injunctive relief. Plaintiff challenged the validity of several sections of the Michigan Capitol Committee Procedures for the Use of the Public Areas of the Michigan State Capitol ¹ as prohibiting it, in violation of the First Amendment of the United States Constitution and Const. 1963, art. 1, § 5, from continuing its tent-city protest on the State Capitol grounds. The circuit court ruled that various questioned committee procedures were valid time, place, and manner restrictions on protected expressive activity. We affirm.

Plaintiff presents fifteen issues on appeal, attacking thirteen sections of the revised procedures. We decline to rule on several issues that were not presented in the circuit court and address only those questions that were explicitly raised and evaluated in the circuit court.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

In December 1991, plaintiff sought and received a series of permits to erect a "tent city" on the Michigan State Capitol grounds in its quest to dramatize the plight of the homeless. The permits were issued by the Michigan Capitol Committee, ² pursuant to On an emergency basis, plaintiff obtained an ex parte temporary restraining order, preventing Capitol security from "interfering in any way with plaintiff's placement of not more than six tents on the State Capitol grounds." Plaintiff thereafter filed a complaint, requesting an order to show cause and a preliminary injunction. Before any formal hearings were held, the parties agreed to extend the temporary restraining order, pending review of the committee rules governing the use of the public areas of the State Capitol.

committee rules then in effect for the use of the Capitol building and grounds. Those permits allowed plaintiff to erect tents on the Capitol grounds from December 5 to December 14, 1991. Although plaintiff's last permit expired on December 14, the tents remained on the Capitol grounds until December 20. Three days later, plaintiff received a permit and held a rally on the Capitol lawn between noon and 4:00 p.m. Although the permit merely permitted plaintiff to hold the rally, the executive director of the Capitol Committee allowed plaintiff to keep in place the tent it had erected in conjunction with the demonstration until the permit expired. At 4:00 p.m., Capitol security removed the tent. The same day, plaintiff requested another permit to erect a tent and to hold a prayer vigil on the Capitol grounds the following day. The executive director denied the request because no further permits could be issued without the approval of the full committee.

At the direction of the circuit court, plaintiff's lead counsel fully participated in the review process by attending meetings and supplying written memoranda and comments for the committee's consideration in redrafting the rules. After a 2 1/2-month period of review and comment, during which approximately twenty drafts of revised procedures were generated, on March 25, 1992, the committee finally approved an amended version of procedures governing the Capitol building and grounds. In its newly revised procedures, the committee succeeded in deleting all waiver requirements, all insurance requirements, all permit requirements, and all references to religious practices. Indeed, plaintiff's lead counsel wrote that the revised procedures had "succeeded in many respects."

The day after the committee approved the revised procedures, plaintiff sought to enjoin enforcement of the procedures, alleging that §§ II(M)(5) and IV(A), (D), and (G) ³ of the new committee procedures unconstitutionally prohibited its tent-city vigil on the Capitol lawn. In a supplemental brief, plaintiff asserted that § IV(J) violated its right to erect symbolic tents on the Capitol grounds and presented a facial challenge to § IV(D). At a hearing in the circuit court, plaintiff seemed principally to object to the new restrictions on overnight camping on the Capitol lawn and on the erection of structures greater than three feet by three feet by three feet, which would preclude habitable structures, including tents. The circuit court observed that prohibitions against overnight camping or sleeping on the Capitol grounds were clearly constitutional, citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). The circuit court thereafter held that the contested committee procedures were valid time, place, and manner restrictions on protected expressive activity under the Michigan and federal constitutions, dissolved the temporary restraining order effective April 3, 1992, and dismissed the case.

Plaintiff appealed and also sought an emergency stay of proceedings. This Court denied plaintiff's motion for a stay of proceedings. The committee procedures thereafter became final and effective pursuant to M.C.L. § 4.1702(1); M.S.A. § 2.138(702)(1).

II. ISSUE PRESERVATION

On appeal, plaintiff challenges an array of committee procedures that were not passed on in the circuit court. For the first time on appeal, plaintiff mounts challenges to §§ II(A), (D), (E), and (P); III(H) and (J); IV(E) and (F); and V(D). ⁴ Plaintiff also argues for the first time on appeal that the existence of the Capitol Committee violates Issues raised for the first time on appeal, even those relating to constitutional claims, are not ordinarily subject to appellate review. Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 234, 507 N.W.2d 422 (1993), citing In re Forfeiture of Certain Personal Property, 441 Mich. 77, 84, 490 N.W.2d 322 (1992), and Butcher v. Dep't of Treasury, 425 Mich. 262, 276, 389 N.W.2d 412 (1986); see also, FW/PBS, Inc. v. Dallas, 493 U.S. 215, 237, 110 S.Ct. 596, 611, 107 L.Ed.2d 603 (1990). Because plaintiff has not demonstrated exceptional circumstances, we decline to reach the host of unpreserved constitutional claims that plaintiff has presented. We are fully cognizant that political speech in this state's Capitol lies at the heart of the free speech guarantees of the state and federal constitutions. We are also mindful that this Court functions as a court of review that is principally charged with the duty of correcting errors. We see no exigent circumstances in this case that would mandate review of constitutional arguments presented for the first time on appeal. Booth, supra.

the Separation of Powers Doctrine, Const. 1963, art. 3, § 2. Finally, plaintiff contends that the court improperly denied it an evidentiary hearing, although it neither sought an evidentiary hearing nor objected to the entry of a final order by the circuit court.

III. STANDARDS FOR INTERPRETATION OF FREE SPEECH CLAIMS

We now turn to those issues that plaintiff has properly preserved. Plaintiff challenges various committee procedures both facially and as applied, contending that those procedures violate its rights to free speech under the state and federal constitutions. Const. 1963, art. 1, § 5 provides:

Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.

The relevant text of the First Amendment of the federal constitution states "Congress shall make no law ... abridging the freedom of speech."

Our Supreme Court has interpreted the rights to free speech under the Michigan and federal constitutions, U.S. Const., Am. I, as coterminous. Woodland v. Michigan Citizens Lobby, 423 Mich. 188, [210 Mich.App. 169] 202, 378 N.W.2d 337 (1985). Plaintiff has identified no compelling reason for interpreting the Michigan Constitution more broadly than the federal constitution, Sitz v. Dep't of State Police, 443 Mich. 744, 763, 506 N.W.2d 209 (1993). We thus review plaintiff's challenges to the new procedures in accordance with federal authority construing the First Amendment.

IV. STANDING: FACIAL CHALLENGES

Plaintiff facially challenges the new Capitol Committee procedures on grounds that § IV(D) grants the committee overly broad discretion to deny the public permission to picket or distribute leaflets on the Capitol grounds. Section IV(D) provides:

Picketing and the distribution of literature shall not impede or interfere with State business or public access to and use of the Capitol. In order to inform individuals and organizations of the procedures for the use of public areas of the Capitol and grounds, it is recommended, but not required, that individuals and organizations desiring to distribute literature on the Capitol grounds advise the Capitol Facility Manager of the date and time of this activity. In order to assure the reasonable conduct of public business, unobstructed access to the Capitol for its occupants and the public, and to maintain the Capitol grounds, the Executive Committee (composed of the Chair and Vice-Chairs) of the Michigan Capitol Committee has been delegated the authority to designate specific areas of the grounds for picketing and the distribution of literature, which shall apply equally to all such...