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143343, 143344 - People v Rapp

The People of the State of Michigan,
Joseph B. Finnerty
(Appeal from Ct of Appeals
(Ingham – Manderfield, P.)
Jared Rapp,
J. Nicholas Bostic


Jared Scott Rapp, a Michigan State University law student, found a parking ticket on his car, which was parked on the MSU campus. Ricardo Rego, an MSU parking enforcement employee, was in the area, having another vehicle towed, when Rapp drove up, stopped his car in front of Rego’s vehicle, and got out, walking quickly toward Rego. Rapp yelled at Rego, asked if he was the one who gave Rapp the ticket, and demanded to know Rego’s name. Rego attempted to speak with Rapp, then got into his vehicle; following standard procedure, Rego called for a police officer. During the 10 to 15 minutes it took for a police officer to arrive, Rapp remained outside Rego’s vehicle, taking photos of Rego with his cell phone. Rego, meanwhile, sat in his truck and filled out paperwork. Rapp was charged with violating Michigan State University Ordinance 15.05, “Disruption or molestation of persons, firms, or agencies.” That ordinance 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.”

In district court, Rapp filed a pretrial motion, arguing that Ordinance 15.05 was unconstitutional on its face because it infringed on his First Amendment rights to engage in free speech and to petition the government for redress of grievances. The prosecution responded that the ordinance did not infringe on free speech content, but merely regulated the time, place and manner of speech. The district court denied Rapp’s motion, and a jury found Rapp guilty as charged. After denying Rapp’s post-judgment motion for entry of judgment in his favor, the court sentenced Rapp to 24 months of probation, 80 hours of community service, $873 in fines, costs, and fees, and mandatory participation in an assaultive behavior program.

Rapp appealed to the circuit court, which ruled that Ordinance 15.05 was facially unconstitutional because it was overbroad and vague, and unreasonably impinged on the First Amendment right of free speech. The circuit court relied on the U.S. Supreme Court’s decision in City of Houston, Texas v Hill, 482 US 451 (1987), and concluded that Ordinance 15.05 impermissibly criminalized an extremely broad range of speech. “Moreover,” explained the circuit court, “just as in Houston, supra, there is nothing in the ordinance that tailors the rule to prohibit only disorderly conduct or fighting words. Thus, in this instance a demand for the name of the individual who was issuing the parking citations was sufficient to result in violation of the statute.” Furthermore, held the circuit court, “the ordinance accords the police unconstitutional discretion in enforcement, because the question of what constitutes ‘disrupting the normal activity’ of someone associated with MSU is an extremely subjective determination. . . .” The circuit court reversed Rapp’s conviction and dismissed the charge against him with prejudice. The court then granted Rapp’s request for taxation of costs, awarding $833.65.

The prosecutor appealed. In a published opinion, the Court of Appeals reversed the circuit court. The panel concluded that the circuit court erred in relying on Hill, and that Rapp failed to meet his burden of showing that Ordinance 15.05 was facially unconstitutional. The Court of Appeals panel emphasized that Ordinance 15.05 barred disruption of MSU employees; it was not focused solely on speech. The Court of Appeals remanded the case to the circuit court with instructions to address the other issues Rapp raised on appeal – in particular, his argument that Ordinance 15.05 was unconstitutional as applied to the facts of this case. The Court of Appeals also vacated the circuit court’s award of costs, concluding that the Michigan Court Rules did not give the circuit court he authority to do so. Rapp appeals.