----- Original Message -----
From: joe harcz Comcast
To: Mark Kamar, Esq.
Sent: Friday, December 18, 2015 9:13 AM
Subject: the case and capitol rules
Hi Mark,
Following my signature line you will see the case I told you about and the
Capitol rules. You can see it was not I or the protestors who violated these
rules, but rather the event organizers (state actors) and the Capitol Police
themselves.
They pre-emptively didn't allow us access to the public forum because of our
words, pamplets, and signs.
Moreover, the legislature was in session and it was they not us who blocked
access to that activity. I mean how did they know I wasn't going to see various
legislative activities which is my right.
Joe
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UP & OUT OF POVERTY v. STATE
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Docket No. 150741.
210 Mich. App. 162 (1995)
533 N.W.2d 339
MICHIGAN UP & OUT OF POVERTY NOW COALITION v. STATE OF MICHIGAN
Michigan Court of Appeals.
Submitted November 16, 1994, at Lansing.
Decided April 21, 1995, at 10:50 A.M.
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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), for the plaintiff.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and
Deborah A. Devine and Todd H. Cohan, Assistant Attorneys General, for the
defendant.
Before: WEAVER, P.J., and CORRIGAN and C.D. CORWIN, JJ.
CORRIGAN, J.
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 Capitol1 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 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.
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.
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 MCL 4.1702(1); MSA
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 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.
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; 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.
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, US Const, Am I, as coterminous. Woodland v Michigan
Citizens Lobby,
423 Mich. 188,
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 activities. Individuals distributing
literature shall remove all discarded items from the grounds at the conclusion
of their activity. [Emphasis added.]
Plaintiff's facial attack on the committee rules cannot succeed.5
Generally, facial challenges to legislation are disfavored. In the context of
free speech, however, an overbroad regulation of expressive activity may be
subject to facial attack, even where its application in the case under
consideration would be constitutionally unobjectionable. Forsyth Co, Georgia v
Nationalist
Movement,
505 U.S. 123
; 112 S.Ct. 2395, 2400-2401; 120 L Ed 2d 101 (1992); City Council of Los
Angeles v Taxpayers for Vincent,
466 U.S. 789,
798-799; 104 S.Ct. 2118; 80 L Ed 2d 772 (1984). Two forms of overbreadth
challenges have been recognized: where a law or ordinance sweeps too broadly,
covering
a substantial amount of protected free speech, and where every application of a
law or ordinance creates an unreasonable risk of censorship. Forsyth Co,
supra at 129-130. For example, when a licensing law allegedly vests "unbridled
discretion in a government official over whether to permit or deny expressive
activity, one who is subject to the law may challenge it facially without the
necessity of first applying for, and being denied, a license." Lakewood v
Plain Dealer Publishing Co,
486 U.S. 750,
755-756; 108 S.Ct. 2138; 100 L Ed 2d 771 (1988); Freedman v Maryland,
380 U.S. 51,
56; 85 S.Ct. 734; 13 L Ed 2d 649 (1965); Thornhill v Alabama,
310 U.S. 88,
97; 60 S.Ct. 736; 84 L Ed 1093 (1940). In Lakewood, the Supreme Court struck
down a municipal ordinance granting the mayor unbridled discretion to deny
permit applications and unbounded authority to condition permits on any terms
he deemed necessary and reasonable. Id. at 772.
This exception to the usual standing requirements arises because a licensing
law that places "unbridled discretion in the hands of a government official
or agency constitutes a prior restraint and may result in censorship." Id. at
757, citing Shuttlesworth v Birmingham,
394 U.S. 147
; 89 S.Ct. 935; 22 L Ed 2d 162 (1969); Cox v Louisiana,
379 U.S. 536
; 85 S.Ct. 453; 13 L Ed 2d 471 (1965). The dangers of censorship and abridgment
of free speech exist when a permit process "`involves appraisal of facts,
the exercise of judgment, and the formation of an opinion'" by the licensing
authority. Forsyth Co, supra at 131, quoting Cantwell v Connecticut,
310 U.S. 296,
305; 60 S.Ct. 900; 84 L Ed 1213 (1940), and citing Southeastern Promotions, Ltd
v Conrad,
420 U.S. 546,
553; 95 S.Ct. 1239; 43 L Ed 2d 448 (1975). To mitigate the risk of censorship,
"`a law subjecting the exercise of [free speech] to the prior restraint of
a license' must contain `narrow, objective, and definite standards to guide the
licensing authority.'" Forsyth Co, supra at 131, quoting Shuttlesworth,
supra at 150-151.
Plaintiff has not shown that § IV(D) creates a censorship risk and is therefore
subject to facial attack. Plaintiff argues that § IV(D) is overly broad
because the committee has unbridled discretion to deny permission to anyone
wishing to picket or distribute literature on the Capitol grounds. Plaintiff
asserts that the recommendation that individuals notify the facility manager of
their intent to distribute literature or picket amounts to a license or
permit requirement.
We think that plaintiff has misread the provision. Section IV(D) does not
impose either a licensing requirement or a prior restraint on speech. The
revised
procedures do not require anyone to obtain permission to picket or distribute
leaflets on the Capitol grounds. The facility manager has no discretion to
deny individuals the right to picket or distribute leaflets. Indeed, § IV(D)
states that "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" advise the facility manager of their intent
to distribute literature. (Emphasis added.) The rule is couched in terms of a
recommendation. It contains no hint of a penalty for noncompliance. Neither
the facility manager nor the committee can prevent speech from taking place.
Because § IV(D) is not a licensing law that grants overly broad discretion
to the committee, it is not subject to facial attack.6
V. RESTRICTIONS ON SPEECH IN A PUBLIC FORUM
Plaintiff also challenges the Capitol Committee's regulation of expressive
activity on the Capitol grounds. The Capitol grounds constitute a traditional
public forum, where the right to free speech is closely guarded. Quintessential
public fora include "those places `which by long tradition or by government
fiat have been devoted to assembly and debate,' such as parks, streets, and
sidewalks." Burson v Freeman,
504 U.S. 191
; 112 S.Ct. 1846, 1850; 119 L Ed 2d 5 (1992) (plurality opinion), citing Perry
Ed Ass'n v Perry Local Educators' Ass'n,
460 U.S. 37,
45; 103 S.Ct. 948; 74 L Ed 2d 794 (1983). Plaintiff contends that any
restrictions on free expression in a public forum must pass muster under a
strict
scrutiny test, a shift in this Court from its posture below. In the circuit
court, plaintiff conceded defendant's regulation of speech need only satisfy
a time, place, and manner analysis. Plaintiff now claims that the government
must demonstrate a compelling state interest in order that its regulations
pass constitutional muster. We disagree.
Even in a traditional public forum, the state may impose reasonable
restrictions on the time, place, and manner of protected speech. Ward v Rock
Against
Racism,
491 U.S. 781,
791; 109 S.Ct. 2746; 105 L Ed 2d 661 (1989). Restrictions of this kind are
valid provided that they "`are justified without reference to the content of
the regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels
for communication.'" Id., quoting Clark, supra at 293; United States v Grace,
461 U.S. 171,
177; 103 S.Ct. 1702; 75 L Ed 2d 736 (1983); Perry, supra. Only where a
regulation restricts speech on the basis of its content must the state
demonstrate
that the regulation is necessary to further a compelling governmental interest.
Ward, supra; Perry, supra. Because plaintiff does not allege that the committee
procedures regulate speech on the basis of content, we consider whether they
qualify as valid time, place, and manner restrictions.
Section IV(D) does not destroy the public-forum status of the Capitol grounds.
Section IV(D) is a valid time, place, and manner restriction on protected
free speech. First, § IV(D) is content-neutral; it applies equally to all
citizens "`without reference to the content of the regulated speech,'" Madsen
v Women's Health Center, Inc, 512 US ___; 114 S.Ct. 2516, 2523; 129 L Ed 2d 593
(1994), quoting Ward, supra at 791. Second, the state has a significant
interest in providing access, free from obstruction, to and from the Capitol
for its occupants and for the public in general. Heffron v Int'l Society for
Krishna Consciousness, Inc,
452 U.S. 640
; 101 S.Ct. 2559; 69 L Ed 2d 298 (1981).
Heffron upheld a local rule that designated certain areas at a state fair for
literature distribution. Id.; see, also, Cameron v Johnson,
390 U.S. 611
; 88 S.Ct. 1335; 20 L Ed 2d 182 (1968) (upholding statute that prohibited
picketing that obstructed or unreasonably interfered with ingress and egress to
or from public buildings, including courthouses). A restriction on speech is
narrowly tailored "`so long as the ... regulation promotes a substantial
government
interest that would be achieved less effectively absent the regulation.'" Ward,
supra at 799, quoting United States v Albertini,
472 U.S. 675,
689; 105 S.Ct. 2897; 86 L Ed 2d 536 (1985).
Section IV(D) limits the committee's discretion to designate areas for
picketing or distributing leaflets only to further the purpose of allowing safe
ingress
and egress to and from the Capitol building. Because § IV(D) leaves all other
areas of the Capitol grounds available for picketing and literature
distribution,
it is narrowly tailored and leaves open ample alternative channels of
communication. Heffron, supra.7 Accordingly, § IV(D) is a permissible
regulation.
Plaintiff next contends that §§ IV(A) and (G) unconstitutionally limit the
duration of a protest that may be held on the Capitol lawn. We disagree.
Sections
IV(A) and (G) provide:
A. In order to maintain the security, safety and aesthetic appearance of the
Capitol and Capitol grounds, and to provide for regular maintenance,
improvements
or alterations, scheduled events or exhibits on the Capitol grounds shall occur
between the hours of 8:00 A.M. to 11:00 P.M. on a daily basis, and shall
at no time block any entrance or exit of the building, or impede free access to
the building by its occupants or the public. When either house of the
legislature
or legislative committee is in session prior to 8:00 A.M. or after 11:00 P.M.,
the grounds shall be open 30 minutes before commencement of the session
and closed 30 minutes after adjournment of the Senate, House of
Representatives, or legislative committee. * * * G. Equipment or structures of
any kind
that are placed on the Capitol grounds in connection with an event or exhibit
shall be entirely removed at the conclusion of the event or exhibit, or no
later than the time set for closing of the grounds as set forth in Section
IV(A).
Sections IV(A) and (G) are valid time, place, and manner restrictions on the
time an individual or group may hold an event8 or exhibit9 on the Capitol
grounds.
The time limitations apply to all individuals or groups desiring to hold an
event or exhibit, regardless of the message to be conveyed. The rule is
therefore
content-neutral. Madsen, supra. Sections IV(A) and (G) also further the
government's interests in protecting the Capitol grounds and the safety of those
using the grounds. See Clark, supra. Section IV's time restrictions allow daily
maintenance and cleanup on the lawn, but do not prevent an individual or
group from voicing a cause. Because "a regulation need not be the least
speech-restrictive means of advancing the Government's interests," § IV is a
valid
restriction. Turner Broadcasting System, Inc v FCC, 512 US ___; 114 S.Ct. 2445,
2469; 129 L Ed 2d 497 (1994). Moreover, the fifteen-hour period between
8:00 A.M. and 11:00 P.M. and the additional time provided when both houses are
in session outside these hours during which events and exhibits may be held
do provide ample alternative channels of communication. Sections IV(A) and (G)
do not impermissibly abridge plaintiff's free speech guarantees.
Plaintiff next contends that § IV(J) unconstitutionally restricts the number
and size of structures that may be erected on the Capitol grounds. We disagree.
Plaintiff asserts that § IV(J) was enacted specifically to prevent plaintiff's
tent city and, therefore, amounts to viewpoint discrimination and that there
is no justification for the specific size or numerical limitation.
Assuming that the regulation of non-shelter structures in the second paragraph
of § IV(J) restricts expressive conduct,10 it is a reasonable time, place,
and manner restriction. Section IV(J) applies equally to all organizations and
is content-neutral; it restricts the size and number of structures without
regard to the content of the expressive activity. Madsen, supra at 2523.
Second, it serves a significant governmental interest, i.e. aesthetics and
safety
on the Capitol grounds. Taxpayers for Vincent, supra at 808-810; Students
Against Apartheid Coalition v O'Neil,
838 F.2d 735
(CA 4, 1988). The limitation in number and size of structures avoids visual
clutter and blight. O'Neil, supra.
Plaintiff claims that the committee restricted the size of structures
specifically to prevent it from erecting its tent city. On the contrary, the
rules
apply equally to all organizations and individuals. Plaintiff has not shown
that the committee procedures were directed at its demonstration merely because
the implementation of the new rules negatively affects plaintiff. Section IV(J)
is a valid time, place, and manner restriction.
Affirmed.
WEAVER, P.J., did not participate.
APPENDIX
PROCEDURES FOR THE USE OF THE PUBLIC AREA
THE MICHIGAN STATE CAPITOL
Approved by the Michigan Capitol Committee
March 25, 1992
[As amended by the Michigan Capitol Committee on April 1, 1993]
PUBLIC AND OTHER AREAS OF THE CAPITOL
The public areas of the Capitol are under the jurisdiction of the Michigan
Capitol Committee. All other areas of the Capitol are under the jurisdiction
of either the Senate, the House of Representatives, or the Executive Branch.
The public areas of the Capitol include the rotunda and its galleries; the main
corridors; the grand staircases; the ground floor entrances; the first floor
exterior porches and staircases; all exterior building surfaces; and the
Capitol's grounds, defined as the property on which the state Capitol building
is situated, bordered on the north by Ottawa Street; on the east by Capitol
Avenue; on the south by Allegan Street; and on the west by Walnut Street.
Information on and requests for use of the Capitol for an event or exhibit
shall be provided by the agency holding jurisdiction over the space. Requests
should be addressed to the appropriate office:
1. Requests about the public areas of the Capitol, which are under the
jurisdiction of the Michigan Capitol Committee, must be addressed to the
Facility
Manager's Office, State Capitol, State Of Michigan, Lansing, Michigan 48909. 2.
Requests about the use of space under the jurisdiction of the Senate must
be addressed to the Secretary of the Senate, P.O. Box 30036, Lansing, Michigan
48909-7536. 3. Requests about the use of space under the jurisdiction of
the House of Representatives must be addressed to the Business Office, Michigan
House of Representatives, P.O. Box 30014, Lansing, Michigan 48909-7514.
4. Requests about the use of space under the jurisdiction of the Executive
Branch must be addressed to the Office of the Governor, State Capitol, Lansing,
Michigan 48909.
The following procedures shall be followed in the administration and operation
of the public areas of the Michigan State Capitol. At no time will enforcement
of these procedures be influenced or affected by age, sex, race, national
origin, handicap, religion, or partisan politics.
I. DEFINITIONS:
The following words and terms, when used in this document, shall have the
following meanings, unless the context clearly indicates otherwise.
A. EXHIBIT: Any display of artwork, including but not limited to paintings,
sculptures, arts and crafts, and photographs; public service and educational
presentations; and historical displays. B. EVENT: Any performance, ceremony,
presentation, meeting, rally or reception held in the public areas of the
Capitol. A rally is defined as a gathering of people for the purpose of
actively promoting a cause. C. PARTISAN POLITICAL EVENT: An event held for the
primary purpose of advancing or advocating the political candidacies of a
particular party or group. D. CAPITOL: The Michigan State Capitol. Unless
otherwise
specified, the use of the term "Capitol" will be taken to include the building
and its grounds. E. CAPITOL SECURITY: Regular state police officers, Capitol
security officers, and civilian guards employed by the Michigan Capitol
Committee.
II. CONDITIONS GOVERNING THE PUBLIC AREAS OF THE CAPITOL:
The following conditions apply to all public areas of the Capitol. For
conditions specific to the interior or exterior public areas of the Capitol, see
Sections III and IV below.
A. No public event or exhibit may discriminate on the basis of race, national
origin, religion, sex, age, or handicap. B. Public use of the Capitol shall
not interfere with any legislative session or the conduct of public business by
agencies of the State which normally occupy and use the Capitol, and shall
not affect the safety and well-being of the individuals conducting the work of
these agencies. C. In case of fire, bomb threat, utility malfunction, structural
failure or other unforeseen emergency or threat endangering public safety or
health, the Executive Director of the Michigan Capitol Committee may delay
or postpone any scheduled event until the emergency or threat is over. D.
Individuals or organizations are responsible for returning the areas used in
conducting their events or exhibits to their original condition. Individuals or
organizations are responsible for any vandalism, damage, breakage, loss
or other destruction to the Capitol caused by that individual or organization.
Costs will be assessed to individuals or organizations for damages incurred.
The cost of the repair will include the costs for the services of specialists
in relevant historical restoration skills as determined by the Executive
Director of the Michigan Capitol Committee. E. Individuals or organizations
using the Capitol shall indemnify and hold harmless the State of Michigan,
its departments, agents and employees, from and against any and all suits,
damages, claims, or other liabilities due to personal injury or death, damage
to or loss of property to the State or to others, or for any other injury or
damage arising out of or resulting from the use of the Capitol. F. Alcoholic
beverages shall not be served or consumed in a public area of the Capitol or on
the Capitol grounds. G. Food and beverages may be served at a scheduled
event or exhibit if all of the following criteria are met: 1. The applicant
specifies in writing, prior to the event or exhibit, the type of food and
beverages
to be served and the desired service area. 2. Food and beverages shall be
provided by a state licensed caterer; otherwise, individuals or organizations
shall obtain a temporary food stand license from the Ingham County Health
Department's Bureau of Environmental Health, as required by state law (Public
Act 368 of 1978). 3. The applicant assumes responsibility for the preparation,
service, and consumption of all food and beverages provided during the event
or exhibit. 4. The food and beverage service will not cause physical damage to
the Capitol. H. Posting or affixing signs, announcements, or other documents
on any exterior or interior wall, ceiling, floor, door, window or other surface
of the public areas of the Capitol not designed for that purpose is prohibited.
Stickers, labels, tape, or any other adhesive material that might leave a
residue or otherwise damage interior or exterior surfaces of the Capitol,
including
porches, stairs, statuary, monuments, light wells, fences and trees is also
prohibited. Likewise, tacks, nails, staples or other attachments may not be
used. Display board space may be requested or arranged through the Facility
Manager's Office. I. No item or material with the potential to damage the
Capitol
may be used. All items or materials must be removed promptly after an exhibit
or event. J. No item may be leaned against exterior or interior walls, pillars,
portraits, furnishings, staircases, or other feature of the Capitol. K. The
Capitol Facility Manager has limited equipment (for example, public address
system, chairs, tables, podium, etc.) for use at exhibits or events.
Arrangements may be made for the Facility Manager to provide such equipment
upon payment
of reasonable charges (see attached rate sheet), if available; otherwise it
shall be provided by the individuals or organization sponsoring the event or
exhibit. If equipment is required, the Facility Manager's Office should be
contacted to discuss what is available, how it is intended to be used, and to
place a reservation. Requests for equipment should be made at least one week in
advance of the event or exhibit. Individuals or organizations using such
equipment will be responsible for any damage to or loss of that equipment. L.
Other than fees charged for the use of equipment, power, and labor to set
up, operate, and remove equipment, no charges will be made to individuals or
organizations for use of the Capitol's public space. See attached rate sheet.
M. Exhibits are allowed at the Capitol subject to the following conditions: 1.
The State of Michigan is not responsible for damage to or loss or theft
of exhibits during the period of their installation, display or removal. No
special security can be provided for exhibits by Capitol security; all special
security required for an exhibit must be provided by the exhibit's sponsor. 2.
Exhibitors must bear all costs of assembling, mounting, displaying and removing
exhibits and of cleaning up and restoring the exhibit space to its original
condition under the supervision of the Facility Manager. 3. All displays must
be free-standing. Exhibits may not hang from walls or ceilings or be affixed to
doors, windows, railings or other building surfaces (except for standing
on the floor). Exhibits on the Capitol's grounds may not hang or be affixed to
trees, shrubbery or other plantings, statuary, monuments, fences, light
fixtures, light wells, or the exterior surfaces of the building. 4. Exhibits
must contain a disclaimer stating that the display is not owned, maintained,
promoted, supported by or associated with the State of Michigan. 5. Exhibits
may be scheduled for display for up to 14 calendar days. Exhibits on the Capitol
grounds must be removed by the time and for the reasons set forth in Section
IV(A). 6. Requests for exhibit space must include a clear layout, scale drawing
or sketch of the proposed exhibit, preferably as it will be displayed. The
dimensions of the space required should be indicated, as well as the manner
in which the exhibit will be mounted or displayed. N. No sound amplifying
equipment may be used whose sound level interferes with any legislative session
or the conduct of public business by agencies of the State which occupy or use
the Capitol. O. A person shall not remove state property from the Capitol
or its grounds except as permitted in the normal course of business, unless the
removal has been previously authorized in writing by the Executive Director
of the Michigan Capitol Committee. P. To enhance security and public safety,
security officers may do the following: packages and briefcases suspected
of concealing stolen items or contraband may be inspected. Items being brought
into the State Capitol building may be inspected if suspected to be capable
of destructive or disruptive use within the building. Proper identification of
all employees and any other visitor may be demanded at any time after normal
working hours. If the facility is closed during an emergency, access may be
denied for the duration of the emergency. Employees or other persons may be
require[d] to sign a registration sheet after normal working hours or when the
building is closed. Q. A person who refuses to adhere to these conditions
is subject, in addition to criminal penalties provided by law, to immediate
removal from the Capitol building or grounds, or both, by the Executive Director
of the Michigan Capitol Committee, Capitol security, the Facility Manager, or
any other person designated by the Facility Manager. Nothing contained herein
shall be construed as limiting prosecution under any existing or future law.
III. CONDITIONS GOVERNING THE PUBLIC AREAS OF THE CAPITOL; THE INTERIOR:
The following conditions governing the use of the public areas of the Capitol
apply specifically to the use of the interior of the Capitol:
A. Hours of Operation: Visiting hours for the public are from 8:00 A.M. to 5:00
P.M. daily except Saturdays, Sundays, and holidays. When either house of
the legislature or a legislative committee is in session prior to 8:00 A.M. or
after 5:00 P.M., or on Saturday, Sunday or a holiday, the building shall
be open to the public 30 minutes before commencement of the session and closed
30 minutes after adjournment of the Senate, House of Representatives, or
legislative committee. The visiting hours on Saturday, Sunday and holidays
shall be posted. B. In case of fire, bomb threat, utility malfunction,
structural
failure or other unforeseen emergency or threat endangering public safety or
health, the Executive Director of the Michigan Capitol Committee or Capitol
security may lock the Capitol at any time and require the entrances be used
from within only as a means of egress in case of emergency. A person shall
not enter or attempt to enter through an entrance which is closed pursuant to
these conditions until the emergency is over. C. State law prohibits smoking
in public buildings. Furthermore, the Capitol is a historic building with
highly decorated walls, ceilings, and original works of art. Therefore, smoking
or carrying lighted tobacco products is not permitted in any public area inside
the Capitol, including the corridors, staircases, rotunda, restrooms and
elevators. D. Alcoholic beverages shall not be served or consumed in any public
area of the Capitol. E. An event or exhibit shall not obstruct entrances
or block traffic flow through the building. F. Moving the Capitol's
furnishings, such as furniture, lighting, and paintings, by the organizers,
conductors
or participants at an event or exhibit is not permitted. G. Tables, displays,
chairs, or other items shall not be dragged or rolled on the marble floors
of the corridors or the glass floor of the rotunda. H. A partisan political
event, as defined in Section I(C), is not allowed in the public areas inside
the Capitol. I. An individual or organization shall not solicit or sell any
article or service in the public areas inside the Capitol, nor shall any exhibit
or display be allowed for that purpose, including the display of business cards
or promotional materials. J. Due to the constricted space and crowded conditions
which often prevail inside the Capitol, handcarried signs and signs on
handsticks represent a serious safety hazard to visitors and occupants. They are
not allowed in the public areas inside the Capitol. K. Helium balloons are not
allowed in the public spaces inside the Capitol because they are very difficult
to retrieve. L. Food and beverages shall not be served in the public areas
inside the Capitol without the approval of the Executive Director of the
Michigan
Capitol Committee (see Section II-G). Food and beverages must be consumed in
the area approved for an event or exhibit. M. Except as may be required in
the course of state business, animals are not allowed in the public areas
inside the Capitol building. Guide dogs, however, may be used when necessary
to assist handicapped persons in the Capitol building. The owner or person
having the animal under his or her control shall be responsible. N. Exhibits
intended for the public areas inside the Capitol will be located in the ground
floor rotunda. Requests will be scheduled on a first-come, first-served
basis if the following criteria are met: 1. Exhibits do not obstruct entrances,
interrupt traffic flow through the building, or disrupt legislative sessions
or the normal conduct of public business in the building. 2. Mounted materials,
whether items of display or information related to displays, are secured
to tripods, display panels or other freestanding devices. Such panels, tripods,
etc., when provided by the exhibitor, must meet the approval of the Facility
Manager.
IV. CONDITIONS GOVERNING THE PUBLIC AREAS OF THE CAPITOL; THE EXTERIOR
INCLUDING GROUNDS:
This portion of the public areas of the Capitol includes the exterior walls and
surfaces of the building, the ground and first floor entrances, porches,
and staircases, and the grounds. Public use of the Capitol grounds for
scheduled events or exhibits is subject to the following:
A. In order to maintain the security, safety and aesthetic appearance of the
Capitol and Capitol grounds, and to provide for regular maintenance,
improvements
or alterations, scheduled events or exhibits on the Capitol grounds shall occur
between the hours of 8:00 A.M. to 11:00 P.M. on a daily basis, and shall
at no time block any entrance or exit of the building, or impede free access to
the building by its occupants or the public. When either house of the
legislature
or legislative committee is in session prior to 8:00 A.M. or after 11:00 P.M.,
the grounds shall be open 30 minutes before commencement of the session
and closed 30 minutes after adjournment of the Senate, House of
Representatives, or legislative committee. B. Defacing or damaging the Capitol
grounds,
including trees, shrubbery, flowers, lawns, sidewalks, fences, lighting
fixtures, light wells, fire hydrants, benches, statues, monuments, plaques, and
such subterranean features as are necessary for the maintenance and operation
of the Capitol (such as lawn sprinkler systems, sewer and water mains,
electrical
conduit, etc.), or any other feature in any manner is not allowed. Likewise,
defacing or damaging the exterior walls and surfaces of the building, including
the entrances, porches and staircases, is not allowed. C. Stepping or climbing
upon statues, monuments, fences, lighting fixtures, light wells, trees,
or parts of the Capitol building not intended for such purposes is not allowed.
D. 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 had 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 activities. Individuals distributing
literature shall remove all discarded items from the grounds at the conclusion
of their activity. E. Due to the presence of underground utility, electrical
and drainage lines, signs or banners shall not be driven into the ground nor
shall they be supported in or by any tree, monument or other structure affixed
to the Capitol grounds. Signs (excluding disclaimer signs required under
Section II(M)(4) or banners supported by freestanding devices may not be left
unattended, i.e., an individual must be stationed within two feet of a
freestanding
sign or banner at all times to prevent damage to the grounds[,] injury to
individuals, and for security reasons. F. Use of the Capitol grounds by an
individual
or organization for an event or exhibit is authorized only if the event or
exhibit has been scheduled with the Capitol Facility Manager in accordance with
the procedures described herein. G. Equipment or structures of any kind that
are placed on the Capitol grounds in connection with an event or exhibit shall
be entirely removed at the conclusion of the event or exhibit, or no later than
the time set for closing of the grounds as set forth in Section IV(A).
H. Alcoholic beverages shall not be dispensed or consumed on the Capitol
grounds. I. Camping or sleeping overnight on the Capitol grounds is not allowed.
J. In order to maintain the security, safety and aesthetic appearance of the
Capitol and Capitol grounds, and to provide for regular maintenance,
improvements
or alterations, structures, whether for shelter or for any other purpose,
erected by an organization as part of a scheduled event or exhibit, shall be
removed from the grounds by the time scheduled for the closing of the grounds
as set forth in Section IV(A). The size, number and location of structures
erected for shelter shall be determined by the Executive Director of the
Michigan Capitol Committee based on the physical conditions of the grounds and
the expected size and nature of the event or exhibit. Such determination shall
be stated in writing to the organization scheduling the event or exhibit.
Structures for a scheduled event or exhibit, for purposes other than shelter,
shall be limited in number to one, in size to 3 feet X 3 feet X 3 feet, and
shall not be capable of habitation. The Executive Committee of the Michigan
Capitol Committee has been delegated the authority to designate specified areas
of the Capitol grounds for location of structures of this kind, which shall
apply equally to all such structures. K. Vehicles are not allowed on the Capitol
grounds, except in areas designated for vehicular use, without permission of
the Executive Director of the Michigan Capitol Committee. L. Hunting and
trapping
are not allowed on the Capitol grounds.
V. SCHEDULING EVENTS AND EXHIBITS:
Requests to schedule events or exhibits in the public areas of the Capitol or
on the Capitol grounds shall be made to the Facility Manager's Office, Capitol
Building, State of Michigan, Lansing, Michigan 48909.
A. Requests will be scheduled on a first-come, first-serve basis. Since the
areas available for events and exhibits are limited and the demand is at times
high, it is recommended, but not required, that requests be made at least one
month in advance. In the case of exhibits, due to the length of time an exhibit
may remain on display, additional lead time may be necessary to secure the
desired space and date. These factors should be kept in mind when making
requests.
B. Each request shall be in writing and shall contain the following information:
1. Name and description of sponsoring organization.
2. Name/address/telephone number(s) of contact person(s). 3.
Name/address/telephone number(s) of backup contact person(s).
4. Description of planned event or exhibit.
5. Date and hours requested for event or exhibit, and duration of an event or
exhibit.
6. Area requested for use.
7. Number of anticipated attendees.
8. Equipment or services available through the Capitol Facility Manager can be
used in connection with an event or exhibit on an "as available" basis, upon
payment of reasonable fees and charges. A list of the equipment and the charges
is available upon request from the Capitol Facility Manager. See attached
rate sheet. C. All decisions by the Executive Director of the Michigan Capitol
Committee required under these procedures shall be made as promptly as possible,
but no later than two state business days after receiving the written request.
D. In order to schedule an event or exhibit, a sponsor is required to sign
an acknowledgment that the sponsor has read, understood, and will abide by the
procedures governing the use of the public areas of the Capitol; that the
sponsor is responsible for damages incurred as a result of its event or
exhibit; that the sponsor will either restore or pay to have restored the area
used for its event or exhibit to the condition that existed prior to its use;
and that it will indemnify and hold harmless the State of Michigan for any
damage or loss the state incurs arising out of its use of the Capitol or the
Capitol grounds. Any sponsor that fails to abide by the terms of the agreement
will not be permitted to schedule a future event or exhibit until the
outstanding obligations have been fully satisfied.
VI. APPEALS
If a person or organization is aggrieved by a decision of the Executive
Director, an appeal may be taken to the Executive Committee of the Michigan
Capitol
Committee within three state business days of that decision. The appeal shall
be in writing, stating the basis therefor and the relief sought. The Executive
Committee has been delegated the authority to review the decision and shall
announce its decision as promptly as possible, but no later than six state
business days after the members have received the appeal.
FootNotes
* Circuit judge, sitting on the Court of Appeals by assignment.
1. See Appendix, infra.
2. The Michigan Capitol Committee is a statutorily created
legislative/executive committee charged with developing written procedures for
the management
and operation of the Capitol building and grounds. MCL 4.1701 et seq.; MSA
2.138(701) et seq. Pursuant to MCL 4.1701(1); MSA 2.138(701)(1), the Capitol
Committee is composed of twelve members: four from the state House of
Representatives, four from the state Senate, and four individuals appointed by
the
Governor.
3. See Appendix, infra.
4. See Appendix, infra.
5. Plaintiff has not shown a live controversy involving the actual or
threatened application of § IV(D). Plaintiff has not sought to engage in
picketing
or distributing leaflets and been denied access to the Capitol grounds at any
time. Plaintiff's assertion that it may seek to picket or distribute leaflets
sometime in the future does not confer standing. Renne v Geary,
501 U.S. 312
; 111 S.Ct. 2331; 115 L Ed 2d 288 (1991). Additionally, plaintiff's claim is
not ripe. Id.
6. Plaintiff's claim that the executive director of the Capitol Committee
retains unfettered discretion concerning the size, number, and placement of
for-shelter,
as opposed to non-shelter, structures may be summarily dismissed. For-shelter
structures include only those structures that are used to shield an exhibit
or event from the elements. Because such structures do not constitute
expressive activity, they do not implicate Const, 1963, art 1, § 5, or the First
Amendment, US Const, Am I.
7. Plaintiff also argues that § IV(D) unconstitutionally applies to the
sidewalks abutting the Capitol grounds. However, defendant stipulated in its
brief
on appeal that the Capitol Committee procedures do not apply to the sidewalks.
Moreover, nothing in the rules' definition of the grounds suggests that
it includes the sidewalks. In any event, the rule could validly apply to the
surrounding sidewalks for the same reasons that it validly applies to the
Capitol grounds. The sidewalks command no greater status as a traditional
public forum than do the Capitol grounds. United States v Grace,
461 U.S. 171,
177; 103 S.Ct. 1702; 75 L Ed 2d 736 (1983).
8. Section I(B) of the procedures defines an "event" as follows: Any
performance, ceremony, presentation, meeting, rally or reception held in the
public
areas of the Capitol. A rally is defined as a gathering of people for the
purpose of actively promoting a cause.
9. Section I(A) of the procedures defines an "exhibit" as follows: Any display
of artwork, including but not limited to paintings, sculptures, arts and
crafts, and photographs; public service and educational presentations; and
historical displays.
10. We do not decide under what circumstances structures may constitute
expressive activity. However, the state may ban structures that do not express
ideas
without implicating free speech guarantees.
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