People v. Llewellyn

Decision Date06 October 1977
Docket NumberNo. 6,6
Citation401 Mich. 314,257 N.W.2d 902
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. James D. LLEWELLYN, and Las Vegas Cinema, Inc., Defendants-Appellants. 401 Mich. 314, 257 N.W.2d 902, 3 Media L. Rep. 1649
CourtMichigan Supreme Court

John H. Weston, Fleishman, Brown, Weston & Rohde, A Professional Corp., Beverly Hills, Cal., Stephen M. Taylor, Taylor & Rubin, Detroit, for defendants-appellants.

PER CURIAM.

This case is an appeal of convictions for exhibition of two allegedly obscene films under an East Detroit anti-obscenity ordinance. Defendants argue that their convictions must be reversed because the anti-obscenity ordinance in question is preempted by the existing state statutory scheme governing criminal obscenity offenses, and is thus unconstitutional under Const.1963, art. 7, § 22.

Given the comprehensive coverage of the field under the state statutory scheme, M.C.L.A. § 750.343a et seq.; M.S.A. § 28.575(1) et seq., and the need for a uniform, statewide definition of criminal obscenity offenses for purposes of protecting free speech and effectively deterring obscenity, we hold that East Detroit's anti-obscenity ordinance is preempted by the existing state statutory scheme and is thus unconstitutional under Const.1963, art. 7, § 22.

Statewide definition of obscenity allows for both vigorous, effective local prosecution under state law and the protection of legitimate freedom of expression. Moreover, localities may supplement the protection afforded them under the state obscenity statutory scheme with municipal zoning, such as that recently promulgated in Detroit, designed to regulate the location of establishments featuring so-called "adult entertainment." Such municipal zoning ordinances are outside the field of prohibition occupied by the state statutory scheme.

In the light of our holding, the other questions posed by defendant need not be resolved. The trial court is reversed.

I FACTS

In March, 1974, Defendants James Llewellyn and Las Vegas Cinema, Inc., were charged with violation of Chapter 129 of Title IX, §§ 9.301, 9.302, 9.303, and 9.305 of the ordinance of the City of East Detroit governing the sale, transmutation and possession of obscene materials. More specifically, defendants were charged with exhibiting two allegedly obscene motion pictures.

The two motion pictures in question were seized pursuant to a search warrant issued by a magistrate of the Municipal Court of the City of East Detroit upon the affidavit of a police officer.

Defendants were tried before a jury in the Municipal Court of the City of East Detroit and were convicted.

An appeal de novo was taken to the Macomb County Circuit Court, and the jury The Court of Appeals denied leave to appeal. We granted leave to appeal on January 5, 1976.

returned a guilty verdict as to both defendants.

II PREEMPTION

Under Const.1963, art. 7, § 22, a Michigan municipality's power to adopt resolutions and ordinances relating to municipal concerns is "subject to the constitution and law". 1 Thus, the dispositive issue in this case is whether the Legislature, through its enactment of M.C.L.A. § 750.343a et seq.; M.S.A. § 28.575(1) et seq., has preempted the East Detroit obscenity ordinance under which the defendants were convicted. 2

Since the state statutory scheme defines and prohibits obscenity offenses, we are deciding in part whether a municipality is preempted from establishing its own definition of and standards for obscenity. 3

A municipality is precluded from enacting an ordinance if 1) the ordinance is in direct conflict with the state statutory scheme, 4 or 2) if the state statutory scheme preempts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation. 5

In this case, we conclude, for reasons discussed below, that the state statutory scheme occupies the field of regulation which East Detroit seeks to enter so as to preempt the field.

In making the determination that the state has thus preempted the field of regulation which the city seeks to enter in this case, we look to certain guidelines. 6 First, where the state law expressly provides that the state's authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is preempted. Noey v. City of Saginaw, 271 Mich. 595, 261 N.W. 88 (1935). 7

Second, preemption of a field of regulation may be implied upon an examination of legislative history. Walsh v. City of River Rouge, 385 Mich. 623, 189 N.W.2d 318 (1971). 8

Third, the pervasiveness of the state regulatory scheme may support a finding of preemption. Grand Haven v. Grocer's Cooperative Dairy Co., 330 Mich. 694, 702, 48 N.W.2d 362 (1951); In re Lane, 58 Cal.2d 99, 22 Cal.Rptr. 857, 372 P.2d 897 (1962); 9 Montgomery County Council v. Montgomery Ass'n, Inc., 23 Md.App. 9, 325 A.2d 112, 274 Md. 52, 333 A.2d 596 (1975). 10 While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer preemption, it is a factor which should be considered as evidence of preemption. 11

Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state's purpose or interest.

As to this last point, examination of relevant Michigan cases indicates that where the nature of the regulated subject matter calls for regulation adapted to local conditions, and the local regulation does not interfere with the state regulatory scheme, supplementary local regulation has generally been upheld. 12

However, where the Court has found that the nature of the subject matter regulated called for a uniform state regulatory scheme, supplementary local regulation has been held preempted. Especially pertinent to the instant case in this regard is Walsh v. City of River Rouge, supra, where this Court held preempted a municipal ordinance granting certain emergency powers to the mayor. The subject matter of the ordinance in Walsh involved the potential restriction of important civil liberties of the people, as does the case before us. The Court apparently concluded that the protection of these important civil liberties demanded that the state retain sole control of the circumstances under which the emergency powers would be exercised. 385 Mich. 623, 639, 189 N.W.2d 318.

See also Noey v. City of Saginaw, supra (the state was held to have exclusive authority to control alcoholic beverage traffic, with specific reference to the need for uniformity); City of Grand Haven v. Grocer's Cooperative Dairy Co., 330 Mich. 694, 48 N.W.2d 362 (1951) (the state was held to have exclusive control over the pasteurization of milk). 13

The four guidelines outlined above lead us to conclude that the state, in its criminal obscenity statutory scheme, has preempted the field of regulation which East Detroit seeks to enter with its anti-obscenity ordinance.

We have no express statutory language nor legislative history which indicates one way or the other whether the state statutory scheme preempts an ordinance such as the one before us.

However, the two other factors to be considered indicate that an ordinance such as the one before us has been preempted because the comprehensiveness of the statutory scheme established by the state shows a preemptive intent, and because the nature of the regulated subject matter demands uniform, statewide treatment.

As to the comprehensiveness issue, an examination of the state statutory scheme reveals a broad, detailed, and multifaceted attack on the sale, distribution and exhibition of obscenity.

In enacting the present statutory scheme, M.C.L.A. § 750.343a et seq.; M.S.A. § 28.575(1) et seq., the Legislature replaced its much simpler predecessor, M.C.L.A. § 750.343; M.S.A. § 28.575 14 with a detailed five-section statutory framework intended to define and regulate obscenity.

The first section, M.C.L.A. § 750.343a; M.S.A. § 28.575(1) prohibits the sale, transmutation, and exhibition of obscene material. Moreover, a standard for a prima facie case of the prohibited conduct is established, and the penalty for conviction is provided.

M.C.L.A. § 750.343b; M.S.A. § 28.575(2) establishes with particularity the definition and the standards for obscenity to be applied in cases under M.C.L.A. § 750.343a; M.S.A. § 28.575(1).

M.C.L.A. § 750.343c; M.S.A. § 28.575(3) provides that any person who publishes or distributes material portraying illicit sex or perversion is guilty of violating § 343a.

M.C.L.A. § 750.343d; M.S.A. § 28.575(4) prohibits the conditioning of distribution of a publication upon the acceptance of materials covered under § 343a.

Finally, M.C.L.A. § 750.343e; M.S.A. § 28.575(5) specifically prohibits the distribution of obscene materials to minors, providing also its own penalty provision.

The breadth and detail of this statutory scheme provides an indication that the Legislature has preempted the definition and deterrence of criminal obscenity, at least to the exclusion of a supplementary ordinance such as the one before us, which seeks to establish its own definition and test for obscenity, to modify the state standards for a prima facie case of the prohibited conduct, and to alter the state prescribed punishment upon conviction.

This conclusion is buttressed by the fact that, for reasons discussed below, the definition and prohibition of obscenity offenses is clearly an area of the law which demands uniform, statewide treatment.

First, it seems clear that if each locality in the state of Michigan were allowed to establish its own definition of obscenity, a great deal of uncertainty and confusion would be created. We observe that no less than the United States Supreme Court has had over a period of decades...

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