People of City of East Detroit v. Vickery
| Decision Date | 27 May 1976 |
| Docket Number | Docket No. 22849--51 |
| Citation | 69 Mich.App. 183,244 N.W.2d 404 |
| Parties | PEOPLE OF the CITY OF EAST DETROIT, Plaintiff-Appellant, v. Robert L. VICKERY, Galen Odell Braboy and William Linington, Defendants- Appellees. 69 Mich.App. 183, 244 N.W.2d 404 |
| Court | Court of Appeal of Michigan — District of US |
[69 MICHAPP 186] Mihelich & Carlson by Joseph E. Mihelich, East Detroit, for plaintiff-appellant.
Robert S. McKenzie, Mt. Clemens, for defendants-appellees.
Before DANHOF, P.J., and V. J. BRENNAN and KELLY, JJ.
We must determine if a municipality may enact ordinances imposing criminal liability for the display of obscene motion pictures and, if possessing the authority to do so, the City of East Detroit has enacted ordinances that are permissible under the First Amendment of the United States Constitution. 1
The City of East Detroit, in July 1973, enacted ordinances purporting to punish obscenity. The regulations that are pertinent to this case are set out in the margin. 2 In October, 1973, defendants--[69 MICHAPP 187] president, manager and projectionist of the Capri Theatre--were charged with violating the ordinances by the Theatre's showing of 'The Collegiates'. They were found guilty of violating the ordinances after a bench trial in the East Detroit Municipal Court.
On appeal, the Macomb County Circuit Court ruled that a municipality is without power to 'legislate for itself its own standards as to what is and what is not obscenity * * * (L)ocal communities shall have the right to determine by local juries what standards should apply, but these standards are applied by local juries and courts of law under prosecution of applicable state law'.
The circuit court apparently based this legal conclusion on its interpretation of United States Supreme Court obscenity cases.
The people bring this appeal, contending that, [69 MICHAPP 188] because a municipality may enact obscenity ordinances and because these particular ordinances are constitutionally sound, defendants' convictions under the ordinances may stand. Defendants argue that East Detroit lacked the authority to enact the ordinances, and even if authority existed, the ordinances do not pass constitutional muster because of their lack of requisite specificity.
We find nothing in the U.S. Constitution or in Supreme Court obscenity cases that would prohibit municipalities from enacting criminal obscenity ordinances. In fact, our research indicates that the Supreme Court has given tacit, if not outright, approval of municipal regulation of obscenity.
It is true, as defendants note, that Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), repeatedly discusses 'state' regulation of obscenity:
'(W)e are called on to define the standards which must be used to identify obscene material that a State may regulate without infringing the First Amendment as applicable to the States through the Fourteenth Amendment.' (Emphasis added.) 413 U.S. at 19--20, 93 S.Ct. at 2612, 37 L.Ed.2d at 428.
'The basic guidelines for the trier of fact must be: * * * (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the Applicable state law.' 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431. (Emphasis added.)
However, because the Miller case involved the constitutionality of a State of California statute, it is understandable that the Court posed the issue and undertook the analysis with reference to 'a [69 MICHAPP 189] state'. Neither Miller, nor the subsequent obscenity cases of Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), and Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), raised the precise issue of a municipality's ability to regulate obscenity.
Hamling and Jenkins, by allowing a juror 'to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion 'the average person, applying contemporary community standards' would reach in a given case' 418 U.S. at 105, 94 S.Ct. at 2901, 41 L.Ed.2d at 613, acknowledged that local community mores may be determinative of obscenity. It follows from this recognition of the importance of community standards that municipalities can regulate obscenity without necessarily running afoul of the First Amendment.
A recent Supreme Court case involving First Amendment issues, though not specifically addressing obscenity questions, implicitly suggests that municipal ordinances regulating speech will not be struck down merely because they are municipal ordinances rather than state statutes. Erznoznik v. City of Jacksonville, 422 U.S. 205, 207, n. 3, 95 S.Ct. 2268, 2272 n. 3, 45 L.Ed.2d 125, 130 n. 3 (1975). For U.S. Constitutional law purposes, a municipal ordinance may be considered state law. We conclude that there is no absolute prohibition against municipalities regulating obscenity to be found in cases interpreting the U.S. Constitution. See also Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961).
The City of East Detroit is a home rule city with powers under M.C.L.A. § 117.4i(9); M.S.A. § 5.2082(9) to adopt a charter that provides for:
[69 MICHAPP 190] 'the enforcement of all such local, police, sanitary and other regulations as are not in conflict with the general laws.'
The home rule statutory scheme 3 also provides that a city charter may provide:
'For the exercise of all municipal powers in the management and control of municipal property and in the administration of the municipal government, whether such powers be expressly enumerated or not; for any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants and through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns subject to the constitution and general laws of this state.' M.C.L.A. § 117.4j(3); M.S.A. § 5.2083(3).
The city's revised charter, c. 2, § I, provides that the city may regulate or prevent all things 'detrimental to the health, morals, comfort, safety, convenience and welfare of the inhabitants of the city'. Pursuant to this charter authority, the city council adopted the aforementioned obscenity ordinances. 4
We must determine whether obscenity regulation is a 'municipal concern'. If a municipal concern, we must consider whether the state statutory provisions on obscenity preempt municipal [69 MICHAPP 191] regulation. Finally, if there is no preemption, we must decide whether or not there is a conflict between the state statute and the municipal ordinance.
Both the Michigan Constitution, Art. 7, § 22, and the home rule statute, M.C.L.A. § 117.4j(3); M.S.A. § 5.2083(3), limit municipal regulatory authority to areas of 'municipal concern'. As the constitutionality of an ordinance is presumed, People v. Sell, 310 Mich. 305, 314, 17 N.W.2d 193, 195 (1945), defendants bear the burden of showing that the obscenity ordinances are of no municipal concern in that they bear no real or substantive relation to the public health, morals, safety, or general welfare of the municipality. See Austin v. Older, 283 Mich. 667, 674, 278 N.W. 727 (1938), and Kalita v. Detroit, 57 Mich.App. 696, 703, 226 N.W.2d 699 (1975). The defendants have not met that burden.
Our review of Michigan case law, and our assessment of the interests a municipality could have in the regulation of obscenity, convinces us that obscenity is a subject of 'municipal concern'.
Municipal ordinances regulating morals have previously been upheld as municipal concerns. E.g., Watnick v. Detroit, 365 Mich. 600, 113 N.W.2d 876 (1962) (Sunday closing laws.) See also People v. Pennock, 294 Mich. 578, 293 N.W. 759 (1940).
We believe that a social problem does not lose its character as a municipal concern merely because the state is also interested in addressing the issue. It may be that statewide regulation more readily solves a problem and that a state has a greater interest in a uniform treatment of the problem; these factors are to be analyzed in determining if the state has preempted the area or if there is an impermissible state-municipality conflict.[69 MICHAPP 192] These factors do not detract from the issue's status as a municipal concern.
Because particular communities may desire more rigorous or more lax regulations of obscenity, or merely because municipalities are legitimately interested in the alleged evils caused by obscenity, obscenity is a municipal concern. Of course, the validity of local ordinances must be tested under other principles of law: state preemption, impermissible conflict with statutes, and infringement of free speech rights. The existence of these other legal doctrines does not mean that obscenity does not concern local governments. We have no doubt that obscenity is a municipal concern. See Soof v. Highland Park, 30 Mich.App. 400, 406, 186 N.W.2d 361 (1971).
Another panel of this Court has recently concluded:
Suits v. Meridian Twp., 60 Mich.App. 347, 350, 230 N.W.2d 426, 428 (1975).
The Suits case may be distinguishable in that the Meridian Township ordinance in that case regulated 'public display' of offensive sexually explicit material, a subject not covered by the state criminal obscenity statutes. 60 Mich.App. at 350, 230 N.W.2d 426. In the present case, the challenged ordinance covers a topic--display of motion picture...
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