Grass, city, and state
By LARRY LEMPERT
(Second of two parts)
IN HIS OPINIONS upholding Ypsilanti's $5 pot
law Washtenaw County Circuit Judge Pat-
rick Conlin has ruled that there is room on
the field of marijuana regulation for enforce-
ment of city law. In effect he has said the
local team can play ball in one corner of the
field even though the state team is carrying on
at the other end.
The state Court of Appeals where the chal-
lenge to Ypsi's ordinance is now pending is like-
ly to reach a second problem. As a rule the
local players who are sharing the field cannot
obstruct the state game; they cannot interfere
with state outfielders when fly balls land in
the local corner.
This is problem number two for the Ann Arbor
and Ypsilanti marijuana laws: do they conflict
with state law?
Conflicts come in various shapes and sizes.
The traditional lore is that the city cannot per-
mit what the state law prohibits nor can it pro-
hibit what state law permits. The local mari-
juana laws however fall into a gray area-like
the state Controlled Substances Act they prohibit
the activity but place differene penalties upon
it.
ASSISTANT COUNTY PROSECUTOR John Hen-
sel responds that the Ypsi ordinance pro-
hibits the activity only in a marginal sense.
"Ypsilanti is not trying to prevent deter or
punish delivery of mariquana" he has written,
"but is rather pretending to do so"
Taking the ordinance at its word, Conlin
has ruled that "lesser penalties do not auto-
matically create a fatal conflict." To an extent,
Michigan cases support this view.
In 1889, for example, the state Supreme Court
upheld a Detroit ordinance that prohibited keep-
ing a "house of ill fame." The ordinance pro-
vided for a fine of up to $500 or imprison-
aent up to 6 months until the fine was paid.
A state law enacted in 1887 made the same
offense a felony, with imprisonment up to 5
years.
But in that case, the legislature had spe-
cifically authorized Detroit to "prohibit, pre-
vent, and suppress the keeping and leasing of
houses of ill fame" and to provide for punish-
ment with fines or imprisonment. The court
ruled only that the subsequent enactment of a
general state law with different penalties was
not intended to repeal this specific, open-ended
authorization. Hence, despite the difference in
penalties, there was no conflict problem.
Ypsilanti City Attorney Ronald Egnor stress-
es that the Controlled Substances Act sets maxi-
mum penalties -- fines and prison terms are
stated in terms of "not more than" a given
dollar amount or number of years. As long as
there has been no preemption, a penalty of $5
is "cot more than" the specified maximum and
is, Egnor argues, not conflicting.
THE MORE SERIOUS conflict questions may
be posed by the provisions in the local
laws that city police officers can bring mari-
juana complaints only to the city attorney.
Under Michigan law, city police officers are
players on both the state and local teams. In
a memorandum to Ann Arbor City Council in
July, 1974, then City Attorney Edwin Pear said
that, under state law and the city charter, "it
is a duty of police officers to enforce both
state laws and city ordinances and charter pro-
visions and to make complaints to the proper
officials."
Furthermore, Pear said, the $5 fine for vio.
lating the charter amendment's provisions would
apply to a police officer who brought a mari-
juana complaint to a county prosecutor rather
than the city attorney. This created a fatal
conflict with the policy expressed by state law,
Pear concluded, saying, ""The Ann Arbor mari-
juana amendment provides that an officer may
be guilty of a violation of the Charter if he does
what is, under state law and the Charter itself,
his statutory duty."
Finally, the state constitution and the Sixth
Amendment of the U.S. Constitution contains bans
against double jeopardy - trying and punishing
a person twice for the same criminal act. In
the 1970 case of 'Waller vs. Florida,' the U.S.
Supreme Court said that, once a defendant had
been tried under a municipal ordinance, he could
not be prosecuted for the same conduct under
a state statute.
According to Terrance Sandalow, a University
of Michigan law professor who has co-authored
a text on local government law, the 'Waller'
decision is a troublesome precedent for those
who would defend the local marijuana laws.
"BUT FOR 'WALLER'," says Sandalow, "it
might be possible to say that the exist-
tence of the city ordinance does not interfere
with enforcement of the state statute." After
'Waller', he says, the claim is difficult to make.
Mailing in payment of the $5 penalty would in-
sulate a person cited for selling marijuana from
prosecution under the state law, even though
"delivery" under the state statute could have
brought a 4-year prison term.
This is not to say that a decision against
the Ypsilanti ordinance is certain. The court
may see no conflict or, on the basis of 'Waller,'
a total conflict. The court may find no room on
the field for local marijuana regulation, or it
may find ample room. It may uphold the en-
tire ordinance, invalidate the entire ordinance,
or uphold some parts of the ordinance while
invalidating others.
Indeed, the court may dispose of the issue
once again on procedural grounds, leaving city
officials, attorneys, and law prfessors to pon-
der questions of preemption and conflict to their
hearts' content. And of course, further appeal to
the state Supreme Court is always a possibili-
ty. Hansel, for one, has said he would appeal
a ruling adverse to his position.
As for marijuana penalties at the state level,
the House of Representatives this spring killed
a much-debated attempt to liberalize the law.
The proposal would have reduced the penalty
for possession of small amounts to $100 or 90
days in jail, or both.
Meanwhile, the local laws continue to be
enforced. More than 400 offenders have felt the
kiss of Ann Arbor's pot law since it was enacted
two years ago. Despite the misgivings of former
City Attorney Pear as to the limitations on po-
lice discretion, police are complying with the
terms of the marijuana amendment, according
to Deputy Police Chief Harold Olson and Act-
ing City Attorney Bruce Laidlaw.
The same is true in Ypsilanti, says Engor.
In fact, he adds, because marijuana enforce-
ment is not high on Ypsi's priority list, in-
validation of the ordinance "wouldn't make a
hill of beans of difference to the city." As for
the "college student with a joint," Egnor says,
"we weren't prosecuting him anyway."
As city attorney for several of those years,
Lax was confronted with the same legal ques-
tions that are now Ybeing litigated. "It's no
worse than living with an uncertain economy,"
he says, "or the weather - that's life."
Larry Temert, a former Daily associate man-
aging editor, is a University law student
The Michigan Daily
Edited and managed by Students at the
University of Michigan
Friday, June 11, 1976
News Phone: 764-0552
Spitz, Jahn, Dahnmniller
for Board of Education
THE DAILY ENDORSES Edward Spitz, Harvey Jah
and Kathleen Dannemler for the three ca
Board of Education seats in Monday's election. Out
eight candidates for the vacancies, these seem to p
sent the best prospects for a continuation of Ann A
bor's fine public school trcscition.
Because of a recent cut-off in state aid, concern ov
budget and curriculum priorities has expanded conside
ably, and it is important that budget restrictions not
used as an excuse to cut back on progressive education
trends,
The two current members running for reelectit
Terry Martin and Paul Weinhold, and a newcomer, s
phen Liu have shown themselves to be of the "read
writing, and 'rithmetic" school, a position which see
out of touch with the needs of the modern public sch
student. We recognize the need for basic learnings
and fundamental curriculum, but to carry such fund
mentalism too far is to stifle creativity and narrow s
dents' horizons.
On the other hand, candidate Robert Tulloch goes
far to the opposite extreme. He maintains the need
totally open classrooms throughout the school syste
ignoring the fact that many students fare poorly in su
an unstructured atmosphere. Such extreme advoc
makes for alienation on the board where a spirit of co
promise and cooperations is most practical.
Ellen Blue, is apparently basing her candidacy
large part on the fact that the school system refu
her a teaching position--scant justification for a wor
while campaign. Also her position on discipline is so
what disturbing; she told a Daily reporter that she
discipline in city schools as relatively lenient beca
"You can't swat them (the students)."
Jahn, an Adrian College instructor who comm
to work from Ann Arbor every day because he wants
children "to grow up in a richly diverse environme
proposes to create alternative education sections in e
school. This position is fair to all students, where
loch's and the RepublicIns' are fair only to some.
Spitz would brine to the board not only a comT
ment to progressive education but a fine background
financial matters. An instructor at Eastern Michi
University, he holds a PhD in economics. If elected,
plans to seek more parental and student involvement
board affairs.
Kathleen Dannemiller proposes much the same
gressive policies as Spitz and Jahn. A job accountab
analyst for University Vice President for Student Se
Henry Johnson, she has an impressive background
personnel matters; in board proceedings dealing
employes, such background would be welcome.
We urge support of these three candidates on
day.
Summer Business Staff
BETH FRIEDMAN ......................... ...... .. .Business
PETE PETERSEN ................................ Advertising cr
KATHY MULHERN ......D..................... Display Advertising
CASSIE ST. CLAIR ........... ....................... Circulation
DEBBIE DREYFUBSs................. ,.. ....Clssiied
BET TAFR . ........................... Bead
NANCY BOon.....................t isaty AdertsngAt~t
DAN BLUGERMAN..........
OLLIE KIESEL.........
DON SIMPSON ........
Summer Sports Staff
BIL STIEG........
tICH LERNER.......Execut ve sp
ENID GOLDMAN
BOB....LE...............
HANK WHITNEY ..........................-~
TODAY'S STAFF:
News: Ann Marie Lipinski, Jenny Miller, Mike Norto
Ken Parsigian, Tim Schick, Mike Yellin
Editorial: Jim Tobin
Arts Jeff Selbst
Photo technician: Scott Eccker
Mailbox: The July 4th Coalition
To The Daily:
This year being the bicenten-
nial, we ought to reflect on the
state of our nation,
Unemployment is declared at
a "low" point at 7.3 per cent;
percentages are fine, but in hu-
man lives that means at least
15 million people out of work.
Meanwhile, day care funding is
vetoed, school budgets cut, hos-
pitals are closed - and, as
usual, corporate profits soar. In
preparation for the peoples' re-
sistance, Congress juggles and
maneuvers with the repressive
S-1 Bill, and the FBI/CIA com-
plex continues its police-state
tactics'
In response to this repression,
the National July 4th Coalition,
a coalition of over 100 national
groups, has called for a mass
demonstration and p e a c e f u l
march in Philadelphia on July
4th. The subsequent mobilization
of local coalitions includes or-
ganizations which struggle day
to day in their respective com-
munities. This is not simply a
one-shot deal where one organ-
ization calls for one demonstra-
tion, nor is it a sectarian group;
it is a democratic and broad-
based unification of all those
whose daily lives are part of the
struggle for a truly democratic
society.
-Irene Brody,
Co-coordinator