Walsh v. City of River Rouge

• Citation: 189 N.W.2d 318,385 Mich. 623
• Decision Date: 27 August 1971
• Docket Number: No. 21,J,21
• Parties: , 59 A.L.R.3d 303 David N. WALSH and William Robinson et al., Plaintiffs-Appellants, v. CITY OF RIVER ROUGE and John F. McEwan, Mayor, Defendants-Appellees. une Term.
• Court: Supreme Court of Michigan

Page 318

189 N.W.2d 318

385 Mich. 623, 59 A.L.R.3d 303

David N. WALSH and William Robinson et al., Plaintiffs-Appellants, v. CITY OF RIVER ROUGE and John F. McEwan, Mayor, Defendants-Appellees.

No. 21, June Term.

Supreme Court of Michigan.

Aug. 27, 1971.

David N. Walsh, in pro. per. and Craig P. Colby, River Rouge, for appellants.

Logan & Huchla, River Rouge, for appellee.

American Civil Liberties Union of Michigan Erwin Ellmann, Chairman, Joel M. Shere, Sheldon M. Meizlish, and Sheridan V. Holzman, Detroit, Co-Chairmen, Legal Committee by Sheridan V. Holzman, Detroit, of counsel, amicus curiae.

City of Ypsilanti, by Kenneth Bronson, Bronson & Egnor, Ypsilanti, amicus curiae.

Before the Entire Bench.

ADAMS, Justice.

The City of River Rouge has a geographical area of approximately one square mile. It is one of 18 so-called 'downriver' communities south of Detroit within the County of Wayne. On Monday, April 27, 1970, fighting between black and white students at River Rouge High School spread into the streets of that city. Following an afternoon during which police reinforcements were called in and looting and vandalism occurred, the Mayor of River Rouge issued a proclamation effective at 4:00 p.m., April 27. ¹

The proclamation prohibited possession of firearms, ammunition, explosives, inflammable materials or liquids, or other dangerous weapons, within the city by any citizen except law officers; prohibited 'unlawful traffic' within the city; created a 6:00 p.m. to 5:00 a.m. curfew when no person could be on the city streets except those proceeding to and from work or answering emergency calls or who had special permission; closed all liquor stores and prohibited the sale of alcoholic beverages; prohibited all assemblies of more than five persons 'unless permission has been granted'; closed gas stations in the city except between the hours of 12:00 noon and 5:00 p.m.; and prohibited the sale of more than five gallons of gas to individuals with private automobiles. Violation of any provision in the proclamation was made a misdemeanor.

The next day the City Council met in regular session at 8:00 p.m. and passed an Emergency Curfew Ordinance ² which purported to give to the Mayor the power to 'proclaim a state of emergency, in the City of River Rouge whenever he is advised by the Chief of Police that a civil disturbance, riot or civil commotion is in progress * * *.' The Mayor reissued his proclamation, ³ effective at 8:00 p.m., April 28, the same time the ordinance was passed.

On April 29, 1970, plaintiff David Walsh, an attorney, filed this action. Plaintiff sought mandamus and a declaratory judgment annulling River Rouge's Emergency Curfew Ordinance and the two proclamations by the Mayor. The next day William Robinson was added as a party plaintiff. He had been arrested at 7:45 p.m. on April 28 for violation of the curfew provision of the Mayor's April 27 proclamation. Robinson plead guilty and was sentenced to 30 days in jail or a fine of $100. After the circuit court decision in this case, he petitioned the Municipal Court for a rehearing, which was granted. It resulted in dismissal of all charges.

On May 4, 1970, Circuit Judge Nathan Kaufman issued an opinion in which he held that the first proclamation was void because it was without any statutory or charter basis; upheld the power of the city to pass Ordinance #228; and upheld the validity of the Mayor's proclamation issued pursuant to the ordinance.

Plaintiffs appealed to the Court of Appeals and also applied for leave to appeal to this Court. Because defendant city argued that dismissal of the charges against Robinson and termination of the emergency proclamation on May 1, 1970 mooted the case, plaintiffs moved to add four intervenor plaintiffs who had been convicted of violating the River Rouge curfew after the passage of the Emergency Curfew Ordinance and the concurrent mayoral proclamation. We granted the application for leave to appeal directly to this Court and the motion to intervene and add parties plaintiffs. (384 Mich. 757).

Plaintiffs contend that P.A.1945, No. 302 (M.C.L.A. §§ 10.31--10.33; Stat.Ann.1969 Rev. §§ 3.4(1)--3.4(3)), gives exclusive power to the Governor to declare a state of emergency; that home rule cities have neither express nor implied power under the Michigan Constitution or the Home Rule Act to give their mayors the power to declare a state of emergency or to assume powers comparable to the powers delegated to the Governor; that River Rouge Ordinance #228 and the proclamations by the Mayor are invalid because contrary to Michigan and United States constitutional provisions, contrary to the general laws of the State and contrary to the city's own mandatory provisions on publication of ordinances. The City of River Rouge and Mayor McEwan maintain a contrary position on all issues. The American Civil Liberties Union of Michigan, by brief amicus curiae, supports the position of plaintiffs. The City of Ypsilanti, also by brief amicus curiae, maintains that the inherent police powers of a city permit the enactment of a curfew ordinance which may be invoked upon a showing of an existing imminent threat to the community's public welfare and safety.

We consider only the question of preemption of the field by the statute giving to the Governor exclusive power since our determination of that issue is dispositive of this case. P.A.1945, No. 302, is reproduced in its entirety in Appendix #3. A point-by-point comparison of the powers therein granted to the Governor, with the powers granted to the Mayor of River Rouge by Ordinance #228, will reveal that every power granted to the Mayor by the ordinance is also granted to the Governor by Act 302. It should be further noted that Act 302 provides: '* * * when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, the commissioner of the Michigan state police, or upon his own volition, the governor may proclaim a state of emergency and designate the area involved.'

In pleading the necessity for the municipal powers granted by Ordinance #228, the brief for the City of River Rouge states:

'If a city is to survive, in an uncertain age, its power of immediate response to emergency, catastrophe or to major disorder must be equal to that task. Cities and municipalities traditionally have been expected to maintain law and order with-their corporate limits and have always been recognized as having police powers sufficient to maintain that fundamental basic condition.

'* * * The response of the Down River communities, 18 in number, with all the additional police manpower, and fire fighting capabilities which they immediately contributed and all under the direction of the Wayne County Sheriff, might have been ineffectual and unavailing with out the imposition of emergency curfew regulations to clear the streets and keep the streets clear of the disorderly.'

The City of Ypsilanti in its brief amicus states:

'Municipal curfew ordinances have been, and continue to be, invaluable enforcement tools for the 'core city' community, with its problems of high crime, volatile demographic composition, and grossly inadequate economic and human resources to cope with the phenomenon of escalating crime and confrontation of the 1960's and 70's. In short, the 'Ypsilantis' of today face a large battery of social ills taxing their law enforcement facilities to the limit; emergency night-time curfews have served as a complement to protection of that City's life and property. Curfews have been an indispensable prophylactic measure in stemming the conflagration and in halting the wrongdoing before it becomes irreparable or totally destructive of institutions and people.

'For the overtaxed law enforcement officials, confronted with imminent or full-blown threats to public welfare and safety, the curfew is an indispensable tool. It nullifies, or at least mitigates the potentialities of the mob psychology, especially in the context of added anonymity at night. By clearing the streets in preventive fashion the enormous costs generated from the proliferation of riotous activity and destruction are kept down. The curious are forced to stay out of the way of enforcement efforts and concurrently, for their own benefits, to escape being caught up in the enforcement nets put out by officials in times of crisis.

'And as stated above, the emergency curfew alleviates much of the intricate mechanics of detection and detention which are almost impossible at night in the fact of flaming buildings and the flying glass shrapnel of broken windows. Experience shows that absent overwhelming numerical strength only with 'exceptional' talent can police identify the criminal act of each member of a mob, and tie that into a foolproof identification of individuals involved, particularly at night. Some other tools besides this hit-and-miss approach are imperative. Most importantly, the emergency curfew is that reasonable and necessary prophylactic to quell the threat and destruction in its infancy, in furtherance of that greater common concern for public order and safety.'

In 1968, the Michigan legislature passed House Bill No. 3302 'to authorize counties, cities, townships and charter townships to declare a state of emergency in cases of civil disorder; to provide for the issuance of executive orders imposing curfews and the prohibiting of the sale of alcoholic liquors, firearms and ammunition; and providing for penalties.'

On July 1, 1968, Governor George Romney returned Enrolled House Bill No. 3302 without his approval, stating in his message:

'No one realizes more than I that local law enforcement is the first line of defense in the battle against crime and violence. Over the years I have consistently proposed and supported measures designed to give more strength and more training to local law enforcement officials.

'However, civil disorders, riots or other similar public...