Supreme Court to hear constitutional challenge to MSU ordinance, other

 From the State Bar of Michigan

A Michigan State University ordinance that makes it a crime to disrupt “the normal activity” of any MSU employee is at issue in an appeal that the Michigan Supreme Court is to hear argued April 4-5.

In People v Rapp, the defendant, an MSU law student, was charged with and convicted of violating MSU Ordinance 15.05, “Disruption or molestation of persons, firms, or agencies” after he confronted an MSU parking enforcement employee over a parking ticket. The university employee called police after the student, who had stopped his car in front of the employee’s work vehicle, yelled at the employee and asked for his name. The student challenged his conviction, arguing that the ordinance violated his free speech rights under the First Amendment. The circuit court agreed and struck down the student’s conviction, but the Court of Appeals reversed, holding that the ordinance was not unconstitutional on its face. The appellate court remanded the case to the trial court to determine whether the ordinance was unconstitutional as applied. The defendant argues in part that the ordinance is overly broad and vague, while the prosecution contends that the ordinance does not focus on speech, but on disruption of MSU employees at their work.

Another constitutional challenge is at issue in People v Nunley, in which the defendant was charged with driving with a suspended license, second offense. To establish that the offender was notified of the first suspension – an element of the offense – the prosecutor sought to introduce into evidence a Department of State certificate of mailing, which states that the defendant was notified by first-class mail the first time that his license was suspended. But the district court held that the certificate could not be admitted into evidence unless the person who prepared it appeared at trial to testify and to be subject to cross-examination. The circuit court agreed and the Court of Appeals affirmed in a 2-1 decision, with the majority finding that the defendant’s rights under the Confrontation Clause would be violated if the certificate was admitted without witness testimony. The majority said that the certificate of mailing was proof of an element of the crime of driving with a suspended license and, therefore, it was “functionally identical to live, in-court testimony.” The dissenting judge disagreed, saying that the certificate was non-testimonial in nature, adding “to hold that the certificate of mailing here is testimonial runs contrary to the purpose of the confrontation clause—to ensure the reliability of evidence through vigorous cross- examination—because cross-examination here would elicit little or nothing of value to ensure that reliability.”
The six remaining cases the Court will hear involve inheritance, criminal, governmental immunity, insurance, and professional malpractice law issues.

The arguments will also be broadcast on Michigan Government Television (mgtv.org).

Briefs are online at http://www.courts.michigan.gov/supremecourt/Clerk/msc_orals.htm. For more details about these cases, please contact the attorneys.