                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    October 2, 2014
               Plaintiff-Appellee,                                  9:00 a.m.

v                                                                   No. 314479
                                                                    Ottawa Circuit Court
MARY ELIZABETH VANDENBERG,                                          LC No. 12-036598-FH

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and HOEKSTRA and WHITBECK, JJ.

HOEKSTRA, J.

       Following a jury trial, defendant appeals as of right her convictions of resisting and
obstructing a police officer, MCL 750.81d(1), and making or exciting any disturbance or
contention, MCL 750.170. Because the phrase “excite . . . any contention” is unconstitutionally
vague and overbroad, we reaffirm the holding of People v Purifoy, 34 Mich App 318, 321; 191
NW2d 63 (1971), and we reverse and remand for a new trial.

                            I. FACTS & PROCEDURAL HISTORY

        According to the evidence introduced at trial, defendant went to the 58th district court in
Hudsonville, Michigan to pay a traffic ticket. Rather than simply pay the ticket, when defendant
approached the clerk’s window, she proceeded to read a statement regarding the “need for
autonomy” and her “frustration” at having to pay a ticket when, from defendant’s viewpoint, the
fine had been demanded by “threat or force.” Defendant’s brother, who had accompanied
defendant to the courthouse, videotaped defendant’s activities in contravention of posted signs
prohibiting the use of cameras. The clerk grew “nervous” as a result of defendant’s behavior,
and a deputy present at the scene told defendant’s brother to stop recording. Defendant then
attempted to read her statement to the deputy. Thereafter, when a supervisor came to the clerk’s
window, defendant attempted to pay her ticket with 145 single dollar bills which she had defaced
with black and red marker. Following the directions of the deputy, employees refused to accept
the defaced bills. According to the clerk and her supervisor, defendant then grew “very agitated”
and became “argumentative.” A bystander in the building testified at trial that defendant began
to make a “big scene” and “started exploding,” meaning that defendant was “just being loud.”

       The deputy asked defendant to leave, and other officers arrived to help walk defendant to
the exit. They created “a block wall and started walking [defendant] towards the exit.”
According to one officer’s description, defendant “passively resist[ed]” by repeatedly stopping
                                               -1-
and trying to talk to the officers. After defendant had been escorted past security to the
building’s vestibule, defendant disobeyed the officers’ instructions to leave the building. At that
time, one of the officers informed defendant that she was under arrest. Defendant proceeded to
struggle, flailing her arms and later stiffening her arms to prevent officers from handcuffing her.
After the officers stunned defendant with a Taser and sprayed her with pepper spray, they
managed to handcuff her.

        Defendant was tried before a jury for making or exciting a disturbance or contention,
MCL 750.170, and resisting and obstructing a police officer, MCL 750.81d(1). At trial, it was
the prosecution’s theory, that defendant did not go the courthouse to lawfully conduct business,
but that defendant had “confrontation on her mind” and that she “went to the courthouse to create
tension and challenge.” According to the prosecution, defendant “became more agitated” when
employees refused to accept her money, and she began to draw the notice of passersby.
Defendant was, in the prosecution’s view, “noticeably causing a disturbance in the courthouse
lobby.” In closing arguments, the prosecutor summarized her theory of the case as follows:

       With disturbing the peace, the defendant made or excited a disturbance or a
       contention. There’s no doubt, ladies and gentlemen, on what she was doing in the
       lobby that day. You heard from [a passerby], who explained the scene that
       [defendant] had created; the court clerks . . . explained that she caused a
       significant contention or disturbance even amongst the clerks alone. The clerks
       were so disturbed and heard such contention that one of the ones behind the
       scenes actually went to the branch office and obtained police officer back up. If
       that’s not exciting a disturbance or contention, I don’t know what is . . . .

Elsewhere, the prosecutor focused very specifically on the “contention” component of the
statute, arguing, for example, that “it still adds up to the defendant causing a contention and that
was a contention she planned to cause at least a day in advance.” The jury convicted defendant
of both resisting and obstructing a police officer and making or exciting any disturbance or
contention.

        Defendant now appeals her convictions.              She argues that MCL 750.170 is
unconstitutionally overbroad, and that, consequently, she could resist the arrest insofar as it was
unlawfully premised on her exciting of a contention. In particular, she asserts that, unless the
words “excite . . . any contention” are written out of the statute, MCL 750.170 criminalizes
constitutionally protected speech, thereby impinging on First Amendment freedoms. Because
the trial court’s instructions to the jury included reference to this “contention” language and the
prosecution argued that defendant created a contention, defendant maintains that she may have
been convicted and unlawfully arrested for the exercise of constitutionally protected speech. For
this reason, defendant argues her convictions must be reversed.

                II. STANDARD OF REVIEW & RULES OF CONSTRUCTION

        On appeal, constitutional questions are generally reviewed de novo. People v MacLeod,
254 Mich App 222, 226; 656 NW2d 844 (2002). However, defendant failed to challenge the
constitutionality of MCL 750.170 before the trial court, meaning that her constitutional claim is
unpreserved and reviewed for plain error. People v Carines, 460 Mich 750, 764; 597 NW2d 130

                                                -2-
(1999). Under this standard, defendant bears the burden of demonstrating a “clear or obvious”
error and that this error affected her substantial rights. Id. at 763-764. To have affected
substantial rights, “there must be a showing of prejudice, i.e., that the error affected the outcome
of the lower-court proceedings.” People v Jones, 468 Mich 345, 356; 662 NW2d 376 (2003).
Even if defendant satisfies this burden, an appellate court will reverse only if the plain error led
to the conviction of an innocent defendant or “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings . . . .” Carines, 460 Mich at 763-764 (citation omitted).

         When considering the constitutionality of a statute, we begin with the presumption that
statutes are constitutional, and we construe statutes consistent with this presumption unless their
unconstitutionality is readily apparent. People v Rogers, 249 Mich App 77, 94; 641 NW2d 595
(2001). The party challenging a statute’s constitutionality bears the burden of proving its
invalidity. People v Malone, 287 Mich App 648, 658; 792 NW2d 7 (2010). A statute may be
challenged as unconstitutionally vague for three reasons: “(1) the statute is overbroad and
impinges on First Amendment freedoms, (2) the statute fails to provide fair notice of the
proscribed conduct, and (3) the statute is so indefinite that it confers unfettered discretion on the
trier of fact to determine whether the law has been violated.” Rogers, 249 Mich App at 94-95.

        To ascertain whether a statute is unconstitutionally vague or overbroad, we consider the
entire text of the statute and any related judicial constructions. Id. at 94. A law may be found to
be unconstitutionally overbroad only where it “reaches a substantial amount of constitutionally
protected conduct.” People v Rapp, 492 Mich 67, 73; 821 NW2d 452 (2012) (citation omitted).
“[C]riminal statutes must be scrutinized with particular care, and those that prohibit a substantial
amount of constitutionally protected conduct may be facially overbroad even if they have a
legitimate application.” Id. (footnote and citations omitted). However, a facially overbroad
statute may be saved “where it has been or could be afforded a narrow and limiting construction
by state courts or if the unconstitutionally overbroad part of the statute can be severed.” Rogers,
249 Mich App at 96.

                         III. CONSTITUTIONALITY OF MCL 750.170

        Relevant to defendant’s arguments, in broad terms, “the First Amendment means that
government has no power to restrict expression because of its message, its ideas, its subject
matter, or its content.” United States v Stevens, 559 US 460, 468; 130 S Ct 1577; 176 L Ed 2d
435 (2010). The recognized function of this freedom of speech is to invite dispute and enable
“free trade in ideas,” including those ideas many may find distasteful or challenging. Virginia v
Black, 538 US 343, 358; 123 S Ct 1536; 155 L Ed 2d 535 (2003); Terminiello v Chicago, 337
US 1, 4; 69 S Ct 894; 93 L Ed 1131 (1949). Accordingly, “[i]t is firmly settled that under our
Constitution the public expression of ideas may not be prohibited merely because the ideas are
themselves offensive to some of their hearers . . . or simply because bystanders object to peaceful
and orderly demonstrations.” Bachellar v Maryland, 397 US 564, 567; 90 S Ct 1312; 25 L Ed
2d 570 (1970). (internal citations omitted).

       Specifically at issue in this case is the constitutionality of MCL 750.170, which provides:

               Any person who shall make or excite any disturbance or contention in any
       tavern, store or grocery, manufacturing establishment or any other business place

                                                -3-
       or in any street, lane, alley, highway, public building, grounds or park, or at any
       election or other public meeting where citizens are peaceably and lawfully
       assembled, shall be guilty of a misdemeanor.

        The present case is not the first occasion on which this Court has considered the
constitutionality of this statutory provision. Most notably, in Purifoy, 34 Mich App at 320
(opinion by LESINSKI, C.J.), the defendant was arrested after throwing a rock at police officers at
the scene of a public disorder, and he was convicted in a bench trial of making or exciting a
disturbance or contention under MCL 750.170. On appeal, the defendant challenged the
constitutionality of MCL 750.170, asserting it was unconstitutionally vague and overbroad. Id.
This Court agreed with the defendant’s claims that the statute was overbroad as written, and,
because the defendant’s conviction may thus have rested on an unconstitutional basis, the Court
reversed the conviction and remanded for a new trial. Id. at 321-322 (opinion by LESINSKI, C.J.).
See also id. at 324 (DANHOF, J. and BRENNAN, J., concurring in part and dissenting in part). In
reaching this conclusion, Chief Judge Lesinski specifically recognized that the “excite any
contention” language must be read out of the statute, and in doing so the Court relied on the
reasoning of a special three-judge panel in federal court, which had previously determined that
the words “excite any contention” must be read out of MCL 750.170 to accord with the principle
that public expression of ideas may not be prohibited merely because the ideas are themselves
offensive to others. Id. at 321-322 (opinion by LESINSKI, C.J.), citing Detroit Metro Welfare
Rights Org v Cahalan, unpublished memorandum opinion of a special three judge panel, Civil
Action No. 34006 (ED Mich. 1970).1 See also id. at 324 (DANHOF, J. and BRENNAN, J.,
concurring in part and dissenting in part) (recognizing that application of the decision of three
judge panel necessitated the reversal of the defendant’s conviction).

        More fully, relying on Bachellar, 397 US at 567, the three judge federal panel referenced
in Purifoy described the unconstitutional overbreadth of MCL 750.170 as follows:

       Our careful inspection of the statute herein attacked convinces, however, that a
       portion of its language is, on its face, so vague and overbroad as potentially to
       threaten First Amendment rights. That portion of state law which purports to
       make it a crime to “excite . . . contention . . . in any street, land, alley, highway,
       public building, grounds or park” is subject to the logical construction that
       peaceful protest activity may be the subject of criminal sanction simply because it
       excites strong or possibly violent opposition from others.

              The United States Supreme Court has very recently dealt with this same
       problem in Bachellar . . . . It said in part:

               “Any shock effect caused by the placards, remarks, and peaceful
               marching must be attributed to the content of the ideas being


1
  The decision of the special three judge panel is not available through traditional research
resources. Discussions of the opinion can be found in Purifoy, 34 Mich App at 321-322 (opinion
by LESINSKI, C.J.) and People v Mash, 45 Mich App 459, 462-463; 206 NW2d 767 (1973).


                                                -4-
               expressed, or to the onlookers’ dislike of demonstrations as a
               means of expressing dissent. But ‘[i]t is firmly settled that under
               our Constitution the public expression of ideas may not be
               prohibited merely because the ideas are themselves offensive to
               some of their hearers . . . or simply because bystanders object to
               peaceful and orderly demonstrations.’”

                                               ***

              It appears to this Court that the portions of the Michigan Statute cited
       above are similarly repugnant to the First Amendment of the Federal
       Constitution. . . .

                                               ***

              So that there is no possibility of our being misconstrued, with the elision
       of the constitutionally offensive language, the Michigan Statute would read as
       follows:

               “Any person who shall make any disturbance in any tavern, store
               or grocery, manufacturing establishment or any other business
               place or in any street, lane, alley, highway, public building grounds
               or park, or at any election or other public meeting where citizens
               are peaceably and lawfully assembled, shall be guilty of a
               misdemeanor.” [Detroit Metro Welfare Rights Org, unpub op at 4-
               6 (internal citations omitted).]

        As noted, in Purifoy, both the lead opinion and the concurring/dissenting followed the
three judge federal panel’s excise of the “contention” language. Id. at 321-322 (opinion by
LESINSKI, C.J.), citing Bachellar, 397 US at 564. See also id. at 324 (DANHOF, J. and BRENNAN,
J., concurring in part and dissenting in part). Since that time, this Court has adhered to this
interpretation, recognizing that the constitutional problems identified in Purifoy may be avoided,
provided that the contention language is not included in instructions to the jury involving MCL
750.170. See Mash, 45 Mich App, at 462-463. More recently, another federal court to consider
the statute similarly found it to be overbroad insofar as it infringes on constitutionally protected
speech. See Leonard v Robinson, 477 F3d 347, 360 (CA 6 2007). In sum, for more than four
decades, this Court and federal courts have acknowledged that MCL 750.170’s reference to
“exciting a contention” unconstitutionally infringes on protected speech by criminalizing the
peaceable public expression of ideas, merely because those ideas might be offensive to others.

        Today, consistent with the reasoning of these past decisions, we reaffirm Purifoy’s
central holding.2 That is, we again recognize that the phrase “exciting a contention” as used in


2
  In urging this Court to reach a different conclusion than the numerous cases which have
consistently identified the exciting of a “contention” language as repugnant to constitutionally

                                                -5-
MCL 750.170 is constitutionally overbroad insofar as it criminalizes the peaceable public
expression of ideas, merely because those ideas may be offensive to others. See Purifoy, 34
Mich App at 321-322 (opinion of LESINSKI, C.J.), citing Bachellar, 397 US at 567.
Consequently, the contention language must be excised from the statute in the manner detailed in
Purifoy and by the three judge panel in Detroit Metro Welfare Rights Org, and a conviction
under MCL 750.170 premised on “exciting a contention” may not stand.

         On the facts of this case, as in Purifoy, we cannot discern whether defendant was
convicted for creating a “disturbance” or exciting a “contention.” The prosecution argued both
that defendant had created a disturbance and that she had excited a contention, and the trial
court’s instructions to the jury included reference to both disturbance and contention. A jury
instructed in this manner may well have convicted defendant because it determined that her
words and actions, though peaceable, were offensive to others and therefore constituted the
exciting of a contention. Because defendant’s conviction may rest on an unconstitutional basis,
we must reverse and remand for a new trial that shall not involve the “contention” portion of
MCL 750.170. See Purifoy, 34 Mich App at 321-322 (opinion of LESINSKI, C.J.). See also
Terminiello, 337 US at 5 (holding reversal of a conviction required where “one part of the statute
was unconstitutional and it could not be determined that the defendant was not convicted under
that part”); People v Gilbert, 55 Mich App 168, 174; 222 NW2d 305 (1974) (“When the
defendant stands convicted on one of two theories, one of which is permissible and one of which
is not, the inability to say for sure on which the conviction rests demands reversal.”).

                            IV. RESISTING AND OBSTRUCTING

        Recognizing that the trial court’s instructions on MCL 750.170 were unconstitutionally
overbroad, we are also persuaded that, on the present facts, reversal of defendant’s conviction for
resisting and obstructing a police officer under MCL 750.81d(1) is also required. To convict
defendant for resisting and obstructing a police officer, the prosecution was required to show
that: “(1) the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or
endangered a police officer, and (2) the defendant knew or had reason to know that the person
that the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered
was a police officer performing his or her duties.” People v Quinn, __ Mich App __, __; __
NW2d __ (2014); slip op at 4 (citation omitted). In addition, “the prosecution must establish that
the officers’ actions were lawful.” People v Moreno, 491 Mich 38, 51-52; 814 NW2d 624

protected speech, the prosecution cites in support to People v Weinberg, 6 Mich App 345, 351;
149 NW2d 248 (1967). Weinberg has little value in the present case as it did not provide much
guidance on the constitutionality of the “contention” language at issue. Instead, Weinberg
mainly considered whether the defendants in that case—students who interrupted the business of
a bank by sitting on the floor in front of the teller’s window—had created a “disturbance” within
the meaning of the statute. In any event, as a decision of this Court decided before 1990, it does
not constitute binding precedent, MCR 7.215(J)(1), and, any persuasive value Weinberg might
have had was thoroughly undermined by Purifoy, which, in light of Bachellar, persuasively
identified the contention language as overbroad insofar as it plainly could be construed to
prohibit the public expression of ideas, merely because those ideas are offensive to others. In
short, the prosecution’s reliance on Weinberg is misplaced.


                                               -6-
(2012). In other words, pursuant to Moreno, the lawfulness of the arrest was an element of the
offense, and it presented a factual question for the jury.3 Quinn, slip op at 4, 6.

        For an arrest to be lawful, the police officer making an arrest must have probable cause,
either that a felony or misdemeanor was committed by the individual in the officer’s presence, or
that a felony or specified misdemeanor (i.e., a misdemeanor punishable by imprisonment of more
than 92 days) occurred outside the officer’s presence and that the individual in question
committed the offense. People v Chapo, 283 Mich App 360, 366-67; 770 NW2d 68 (2009);
MCL 764.15(1). See also People v Freeman, 240 Mich App 235, 236; 612 NW2d 824 (2000)
(“An arrest is legal if an officer has reasonable cause to believe that a crime was committed by
the defendant.”). “Probable cause to arrest exists where the facts and circumstances within an
officer’s knowledge and of which he has reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that an offense has been or is
being committed.” People v Champion, 452 Mich 92, 115; 549 NW2d 849 (1996).

          In this case, as discussed, the jury instructions and the prosecution’s theory at trial
encompassed the erroneous, overly broad premise that exciting any contention constituted a
crime. Given these instructions, the jury may have concluded that the arresting officer lawfully
arrested defendant because her peaceful expression of ideas gave offense to her listeners. But, an
arrest on this basis would be unlawful because the expression of ideas may not be prohibited
merely because those ideas are offensive. See Leonard, 477 F3d at 360-361 (recognizing that
the mere advocacy of an idea cannot support a conviction and it cannot create probable cause for
arrest). Because defendant’s conviction for resisting and obstructing a police officer may be
premised on resistance of an unlawful arrest, reversal of her conviction, and remand for a new
trial, is warranted. See Gilbert, 55 Mich App at 174.


       Reversed and remanded for a new trial. We do not retain jurisdiction.



                                                            /s/ Joel P. Hoekstra
                                                            /s/ Amy Ronayne Krause
                                                            /s/ William C. Whitbeck




3
  On appeal defendant challenges the adequacy of the jury instructions relating to the elements of
resisting and obstructing a police officer. Given our conclusion that defendant’s conviction
under MCL 750.81d(1) must be reversed, we find it unnecessary to address this jury instruction
argument. We note, however, that in keeping with Moreno, 491 Mich at 51-52, the lawfulness of
an officer’s arrest is an element of the offense on which the jury must be instructed. See Quinn,
slip op at 4, 6.


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