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In People v. Llewellyn, 401 Mich. 314, 257 N.W.2d 902, 903 (1977), for example, the Michigan Supreme Court held that a local anti-obscenity ordinance was preempted by a "comprehensive" state statutory scheme regulating this same subject area.
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Docket No. 56872.
Argued January 5, 1977 (Calendar No. 6).
Decided October 6, 1977. Rehearing denied 402 Mich. 954. Certiorari denied by the Supreme Court of the United States May 1, 1978.
Joseph E. Mihelich for plaintiff.
Fleishman, Brown, Weston Rohde, P.C., and Taylor Rubin for defendants.
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 pre-empted 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, MCLA 750.343a et seq.; MSA 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 pre-empted 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 returned a guilty verdict as to both defendants.
The Court of Appeals denied leave to appeal. We granted leave to appeal on January 5, 1976.
II — PRE-EMPTION
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". Thus, the dispositive issue in this case is whether the Legislature, through its enactment of MCLA 750.343a et seq.; MSA 28.575(1) et seq., has pre-empted the East Detroit obscenity ordinance under which the defendants were convicted.
East Detroit is a home rule city. Under the home rule act, MCLA 117.4j(3); MSA 5.2083(3), the power of the home rule city to exercise its power is similarly "subject to the constitution and general laws of this state".
The language of the ordinance is taken from the state statutory scheme, MCLA 750.343a et seq.; MSA 28.575(1) et seq., with certain exceptions.
First, the ordinance defines the obscene material as "describing, or relating to 'Specified Sexual Activities'" outlined in § 9.305A of the ordinance. The state statutory scheme has no such provision.
Second, § 9.302 of the ordinance adds a three-pronged test of obscenity to the language of the state statutory scheme.
Third, § 9.306 of the ordinance provides for a penalty of no more than 90 days in jail and/or a fine of not more than $500. MCLA 750.343a; MSA 28.575(1) provides for a penalty of not more than one year in jail and/or a fine of not more than $1,000.
Finally, § 9.301 of the ordinance provides that possession of three or more obscene articles is prima facie evidence of possession with intent to sell, distribute or show obscene material. MCLA 750.343a; MSA 28.575(1) has similar language indicating possession of six or more articles establishes a prima facie case.
Since the state statutory scheme defines and prohibits obscenity offenses, we are deciding in part whether a municipality is pre-empted from establishing its own definition of and standards for obscenity.
The question of the impact of the requirements for obscenity regulation laid down by the United States Supreme Court in Miller v California, 413 U.S. 15; 93 S Ct 2607; 37 L Ed 2d 419 (1973), on the state criminal obscenity statutes was not raised or argued by the parties. We therefore need not consider this question in the instant case.
We note, however, that our invitation to the Legislature in People v Bloss, 394 Mich. 79; 228 N.W.2d 384 (1975), to supplement the state statutory scheme proscribing the dissemination of obscene materials has to this point not been acted on. This Court continues to believe that it would be in the best interests of the state for the Legislature to act in this regard.
A municipality is precluded from enacting an ordinance if 1) the ordinance is in direct conflict with the state statutory scheme, or 2) if the state statutory scheme pre-empts 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.
See Builders Ass'n v Detroit, 295 Mich. 272, 277; 294 N.W. 677 (1940); see also Walsh v River Rouge, 385 Mich. 623, 637; 189 N.W.2d 318 (1971); Miller v Fabius Twp Board, 366 Mich. 250, 258; 114 N.W.2d 205 (1962). A direct conflict exists under these cases when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits.
Grand Haven v Grocer's Cooperative Dairy Co, 330 Mich. 694, 702; 48 N.W.2d 362 (1951); Walsh v River Rouge, supra. See also Miller v Fabius Twp Board, 366 Mich. 250, 258; 114 N.W.2d 205 (1962); Detroit v Recorder's Court Judge, 56 Mich. App. 224, 227-228; 223 N.W.2d 722 (1974); Feiler, Conflict Between State and Local Enactments — The Doctrine of Implied Preemption, 2 Urban Lawyer 398, 408 (1971).
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 pre-empt the field.
In making the determination that the state has thus pre-empted the field of regulation which the city seeks to enter in this case, we look to certain guidelines.
For discussions of state-municipality pre-emption problems, see the following articles: Blease, Civil Liberties and the California Law of Preemption, 17 Hast L J 517 (1966); Note, Constitutional Law — Pornography — Colorado Municipal Government Authority to Regulate Obscene Materials, 51 Denver L J 75 (1974); Note, Conflicts Between State Statutes and Municipal Ordinances, 72 Harv L Rev 737 (1959); Feiler, Conflict Between State and Local Enactments — The Doctrine of Implied Preemption, supra.
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 pre-empted. Noey v Saginaw, 271 Mich. 595; 261 N.W. 88 (1935).
In Noey, the state Constitution granted the Legislature the authority to establish a Liquor Control Commission which, subject to statutory limitation, "shall exercise complete control of the alcoholic beverage traffic within this State". 271 Mich. 595, 596.
Pursuant to this constitutional provision the Legislature enacted a statute creating a Liquor Control Commission and wrote "[e]xcept as by this act otherwise provided, the commission shall have the sole right, power and duty to control the alcoholic beverage traffic * * *." 271 Mich. 595, 596-597.
In the light of these provisions, the Court held that an ordinance setting the permissible time period for selling alcoholic beverages was invalid.
Second, pre-emption of a field of regulation may be implied upon an examination of legislative history. Walsh v River Rouge, 385 Mich. 623; 189 N.W.2d 318 (1971).
In Walsh v River Rouge, this Court was asked to determine whether an emergency curfew ordinance granting certain emergency powers to the local mayor was pre-empted given the existence of a state statute granting similar emergency powers to the Governor. The Court held that the emergency powers granted to the Governor by the statute were exclusive, and that therefore the municipality was pre-empted from promulgating an ordinance granting the same emergency powers to the mayor.
In reaching its conclusion, this Court noted that the statute in question had been enacted in 1945, and that in 1968 and 1970, the Legislature had approved bills granting localities certain emergency powers. In both instances, the bills were vetoed by the Governor.
It was partially in the light of this history that the Court concluded that 1945 statute had vested the emergency powers in question exclusively in the Governor.
Third, the pervasiveness of the state regulatory scheme may support a finding of pre-emption. 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); Montgomery County Council v Montgomery Ass'n, Inc, 274 Md. 52; 325 A.2d 112, 333 A.2d 596 (1975). While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer pre-emption, it is a factor which should be considered as evidence of pre-emption.
In In re Lane, 58 Cal.2d 99, 103; 22 Cal.Rptr. 857; 372 P.2d 897 (1962), the California Supreme Court held that a city ordinance attempting to make sexual intercourse between unmarried persons a crime was pre-empted. The Court, in so holding, looked to the comprehensiveness of the statutory scheme:
"The Penal Code sections covering the criminal aspect of sexual activity are so extensive in their scope that they clearly show an intention by the Legislature to adopt a general scheme for the regulation of this subject."
In Montgomery County Council v Montgomery Ass'n, Inc, 274 Md. 52, 64-65; 325 A.2d 112, 333 A.2d 596 (1975), Maryland's highest appellate court, the Court of Appeals, held that county ordinances designed to regulate the campaign finance practices of certain candidates for county office were pre-empted, in part due to the comprehensiveness of the State Election Code.
It is also significant that in cases dealing with the analogous problem of Federal pre-emption, the pervasiveness of the Federal regulatory scheme is one of the well-settled guidelines in determining Federal pre-emption. Northern States Power Co v Minnesota, 447 F.2d 1143, 1146 (CA 8, 1971); Pennsylvania v Nelson, 350 U.S. 497, 502-504; 76 S Ct 477; 100 L Ed 640 (1956); Rice v Sante Fe Elevator Corp, 331 U.S. 218, 230; 67 S Ct 1146; 91 L Ed 1447 (1947).
See also the articles cited in fn 5.
See discussion to that effect in Note, Municipal Corporations: Ordinances in Conflict with General Laws: Preemption by the State of Field of Regulating Criminal Aspects of Sexual Activity, 10 UCLA L Rev 440, 444 (1963); Recent Decision, Local Legislation — Implied Preemption by Occupation — Local Election Ordinances Held Invalid Because State Legislation Impliedly Preempted Field, 35 Md. L Rev 543, 550 (1976).
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.
See People v McGraw, 184 Mich. 233, 238; 150 N.W. 836 (1915) (traffic ordinances allowed because it was "absolutely necessary * * * to enact rules and regulations peculiarly adapted to the conditions * * * found [in the locality])"; Eanes v Detroit, 279 Mich. 531; 272 N.W. 896 (1937) (ordinance fixing operating hours for barber shops held not pre-empted, but struck down on other grounds); Loose v Battle Creek, 309 Mich. 1; 14 N.W.2d 554 (1944) (zoning ordinance upheld); Howell v Kaal, 341 Mich. 585; 67 N.W.2d 704 (1954) (zoning ordinance upheld); Bane v Pontiac Twp, 343 Mich. 481; 72 N.W.2d 134 (1955) (provision of local zoning ordinance upheld on pre-emption grounds; other provisions struck down for other reasons). Palmer v Superior Twp, 60 Mich. App. 664, 677 et seq.; 233 N.W.2d 14 (1975) (zoning ordinance upheld); contra Richards v Pontiac, 305 Mich. 666 ; 9 N.W.2d 885 (1943) (zoning ordinance was struck down, but its holding was modified in Loose, supra, and Bane, supra, to uphold the ordinances in those cases); Miller v Fabius Twp Board, 366 Mich. 250, 260; 114 N.W.2d 205 (1962) (ordinance regulating the permissible hours for water skiing upheld).
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 pre-empted. Especially pertinent to the instant case in this regard is Walsh v River Rouge, supra, where this Court held pre-empted 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.
See also Noey v Saginaw, supra (the state was held to have exclusive authority to control alcoholic beverage traffic, with specific reference to the need for uniformity); 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).
For discussion of the need for uniformity as a factor to be discussed in pre-emption cases, see Feiler, Conflict Between State and Local Enactments — The Doctrine of Implied Preemption, 2 Urban Lawyer 398, 404 (1971); Blease, Civil Liberties and the California Law of Preemption, supra; Note, Constitutional Law — Pornography — Colorado Municipal Government Authority to Regulate Obscene Materials, supra.
The four guidelines outlined above lead us to conclude that the state, in its criminal obscenity statutory scheme, has pre-empted 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 pre-empts 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 pre-empted because the comprehensiveness of the statutory scheme established by the state shows a pre-emptive 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, MCLA 750.343a et seq.; MSA 28.575(1) et seq., the Legislature replaced its much simpler predecessor, MCLA 750.343; MSA 28.575 with a detailed five-section statutory framework intended to define and regulate obscenity.
The text of this now repealed statute can be found in Butler v Michigan, 352 U.S. 380, 381; 77 S Ct 524; 1 L Ed 2d 412 (1957).
The first section, MCLA 750.343a; MSA 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.
MCLA 750.343b; MSA 28.575(2) establishes with particularity the definition and the standards for obscenity to be applied in cases under MCLA 750.343a; MSA 28.575(1).
MCLA 750.343c; MSA 28.575(3) provides that any person who publishes or distributes material portraying illicit sex or perversion is guilty of violating § 343a.
MCLA 750.343d; MSA 28.575(4) prohibits the conditioning of distribution of a publication upon the acceptance of materials covered under § 343a.
Finally, MCLA 750.343e; MSA 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 pre-empted 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 considerable difficulty in defining the line between obscenity and protected speech and determining what material constituted obscenity under such a definition. To allow each of the multitude of Michigan localities to establish its own definition of obscenity would be to invite the cultivation of a legal thicket which would make both the scope of the individual right to free expression and the permissible prohibition of obscenity well-nigh impossible to determine.
Second, a balkanized system of obscenity definition and prohibition would, through the resultant confusion and provocation of endless appeals, both threaten important individual rights and undermine efficiency in the control of obscenity.
On the one hand, the uncertainty created by local definitions of obscenity would effectively chill the right to free expression, and raise serious due-process problems in that an unwary national or statewide distributor of books or films may be subject to criminal prosecution and incarceration although there was little opportunity to discover the nature of the prohibited conduct. It is a long-standing rule in this state that criminal offenses must establish with reasonable certainty the elements of the offense so that all persons subject to their penalties may know what acts it is their duty to avoid. People v Goulding, 275 Mich. 353, 358 et seq.; 266 N.W. 378 (1936). The unfairness which is at the root of this rule is also present where local definition of obscenity in municipalities of all sizes across the state makes it extremely difficult for a national or statewide distributor to determine what acts it is his or her duty to avoid.
See discussion in Blease, Civil Liberties and California Law of Preemption, supra, and Note, Constitutional Law — Pornography — Colorado Municipal Government Authority to Regulate Obscene Materials, supra.
See In re Lane, supra, where Chief Justice Gibson of the California Supreme Court suggests that a multiplicity of divergent regulations regarding sexual conduct might unfairly entrap an unwary and transient populace. 58 Cal.2d 99, 111; 372 P.2d 897, 904 (concurring opinion). See also Lambert v California, 355 U.S. 225; 78 S Ct 240; 2 L Ed 2d 228 (1957).
On the other hand, a uniform, statewide system of obscenity regulation provides not only the fairest, but also the most effective means of combating obscenity. A balkanized system of obscenity regulation undoubtedly would cause criminal prosecutions under local ordinances to be considerably delayed in the appellate system. Such would be the case because a holding of an appellate court that a particular obscenity conviction was valid would not necessarily be dispositive of other convictions, even those involving the very same allegedly obscene materials, if the conviction were obtained under different local standards for obscenity. We note also that such a situation would put a heavy burden on a state appellate system already confronted with an ever-increasing caseload, and thus further slow appellate review of all cases.
For all the above reasons, we hold that the state has pre-empted the field which the municipality in this case seeks to enter.
We recognize that a statewide standard for obscenity is not mandated by the First Amendment of the United States Constitution as interpreted in Hamling v United States, 418 U.S. 87, 105; 94 S Ct 2887; 41 L Ed 2d 590 (1974).
However, that is not the question before us. We deal here not with an interpretation of the First Amendment, but rather with an interpretation of the pre-emptive effect of Michigan criminal obscenity statutes under art 7, § 22 of our own Constitution.
We hold that the ordinances at hand are pre-empted because this state has concluded that a uniform statutory scheme is necessary to achieve the purpose and protect the values involved in obscenity legislation.
In so holding, we join at least two sister states who have reached a similar conclusion. Dimor, Inc v Passaic, 122 N.J. Super. 296, 302; 300 A.2d 191, 194 (1973), the Court was asked to determine the validity of a local ordinance prohibiting the showing of obscene motion pictures given the existence of a state statute governing obscenity. The Court held the ordinance invalid stating: "It is clear that the matter of obscenity must be governed by a uniform mode of treatment".
In Whitney v Municipal Court of San Francisco, 58 Cal.2d 907; 27 Cal.Rptr. 16; 377 P.2d 80 (1962), the California Supreme Court held that the state had occupied the field of regulating the criminal aspects of obscene exhibitions, and hence a city ordinance prohibiting the showing of obscene motion pictures was pre-empted. See also In re Moss, 58 Cal.2d 117; 23 Cal.Rptr. 361; 373 P.2d 425 (1962).
In reaching our holding today, we understand that many municipalities in this state wish to aggressively combat the dissemination of obscene materials in their locality, and we have no desire to deter that goal.
As we have suggested above, we feel that statewide regulation of obscenity is not only the fairest, but also the most effective means of regulating obscenity, and each Michigan municipality has available to it the protection which the state statutory scheme provides.
Moreover, we do not mean to suggest in this opinion that a municipality is pre-empted from enacting ordinances outside the field of regulation occupied by the state statutory scheme governing criminal obscenity. For example, there is not the slightest indication that the state Legislature acted in MCLA 750.343a et seq.; MSA 28.575(1) et seq. to preclude local zoning ordinances governing the location of establishments featuring "adult entertainment" such as that recently approved by the United States Supreme Court in Young v American Mini Theaters, Inc, 427 U.S. 50; 96 S Ct 2440; 49 L Ed 2d 310 (1976).
The Detroit ordinance challenged in Young involved zoning, not criminal prohibition, and "adult establishments" featuring erotica not defined in terms of obscenity. Clearly, then, such municipal regulation is outside of the state's present statutory scheme governing criminal obscenity. In addition, the need for uniformity which has been in part the foundation of our opinion today has little relevance to such zoning ordinances, which speak to a significant local need to regulate the location of "adult establishments" and which are primarily local in their effect.
See fn 12, citing numerous cases upholding the right of municipalities to enact zoning ordinances against challenges asserting state pre-emption.
The United States Supreme Court in upholding the Detroit ordinance under the Equal Protection Clause of the Fourteenth Amendment stated as follows:
"[T]he city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect. Moreover, the city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." 427 U.S. 50, 71.
We concur with the United States Supreme Court's judgment that it is important that government be allowed to regulate the location of adult establishments through zoning ordinances, and nothing in today's opinion should be interpreted to the contrary.
The trial court's conviction of defendants is hereby reversed.
KAVANAGH, C.J., and WILLIAMS, LEVIN, and BLAIR MOODY, JR., JJ., concurred.
Today my colleagues have struck down the City of East Detroit's obscenity ordinance, and in consequent effect every other comparable obscenity ordinance in the state, on the grounds that the state criminal obscenity statute has pre-empted that field of legislation.
Chapter 129 of title IX, §§ 9.301, 9.302, 9.303 and 9.305.
MCLA 750.343a et seq.; MSA 28.575(1) et seq.
If indeed the state had pre-empted the field of obscenity legislation, municipal ordinances of the East Detroit type would offend Const 1963, art 7, § 22. Because I am persuaded there has been no pre-emption, I respectfully dissent.
Const 1963, art 7, § 22 provides:
"Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section."
East Detroit is a "home rule city" with authority to adopt a city charter which may provide:
MCLA 117.4i; MSA 5.2082.
"For the enforcement of all such local, police, sanitary and other regulations as are not in conflict with the general laws." MCLA 117.4i(9); MSA 5.2082(9).
and,
"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." MCLA 117.4j(3); MSA 5.2083(3).
In pursuance thereof, the city adopted a charter, ch 2, § 1 of which 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 ordinance.
That the regulation of activities affecting public morals and welfare is a proper "municipal concern" is a proposition well settled in our cases. See Watnick v Detroit, 365 Mich. 600; 113 N.W.2d 876 (1962); People v Sell, 310 Mich. 305; 17 N.W.2d 193 (1945); People v Pennock, 294 Mich. 578; 293 N.W. 759 (1940). See, also, Young v American Mini Theaters, Inc, 427 U.S. 50; 96 S Ct 2440; 49 L Ed 2d 310 (1976). Incontrovertibly, obscenity is a matter germane to public morals and welfare.
The majority has concluded that the state statutory scheme has pre-empted the East Detroit obscenity ordinance, and all those like it, for two reasons:
1) "[B]ecause the comprehensiveness of the statutory scheme established by the state shows a pre-emptive [legislative] intent",
and
2) "[B]ecause the nature of the regulated subject matter demands uniform, statewide treatment".
In my view that conclusion is neither legally nor factually sound.
Essentially, the principle of pre-emption is that when general law on a specific subject occupies a particular field so completely that any local ordinances seeking to regulate conduct in that field will necessarily conflict because of inconsistency between the two, the ordinance must give way to the general law.
Consequently, to justify the conclusion in this case that the state legislation has pre-empted the field of obscenity regulation, it must be clearly evident that the East Detroit ordinance is in direct conflict with the Constitution or a state statute. Merely because the state has entered into the field of obscenity regulation is no justification for the implication that local regulation will necessarily conflict. When the Legislature prohibits certain conduct, local communities may nevertheless prohibit other and different conduct in the same field, providing the state and local enactments are not in conflict.
We addressed this aspect of the pre-emption doctrine in a different context in Miller v Fabius Twp Board, 366 Mich. 250, 256-257; 114 N.W.2d 205 (1962), in which we quoted approvingly from 37 Am Jur, Municipal Corporations, § 165, p 790 as follows:
"It has been held that in determining whether the provisions of a municipal ordinance conflict with a statute covering the same subject, the test is whether the ordinance prohibits an act which the statute permits, or permits an act which the statute prohibits. * * *
"The mere fact that the State, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal bylaw are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith, unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory and the only difference between them is that the ordinance goes further in its prohibition, but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective. Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not deemed inconsistent because of mere lack of uniformity in detail."
Until today, this Court has consistently followed the quoted rule in holding that portions of a field not covered by state law are open to local regulation. Miller v Fabius Twp Board, supra; City of Howell v Kaal, 341 Mich. 585; 67 N.W.2d 704 (1954); Loose v Battle Creek, 309 Mich. 1; 14 N.W.2d 554 (1944); Eanes v Detroit, 279 Mich. 531; 272 N.W. 896 (1937); People v McGraw, 184 Mich. 233; 150 N.W. 836 (1915).
"The rule has long been recognized that municipalities are not divested of all control even where the legislature has enacted laws." Miller, supra, p 257.
This Court has never inferred pre-emption merely because the state and local communities have legislated in the same field. On the contrary, in order to insure the reasonableness of such a finding and to properly safeguard the authority of local communities, this Court has always demonstrated an express showing of the Legislature's intent to exclusively occupy the field before invalidating an ordinance on pre-emptive grounds.
From Walsh v River Rouge, 385 Mich. 623, 635; 189 N.W.2d 318 (1971):
"The act specifically declares in § 2, 'the legislative intent [is] to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose.'"
From Grand Haven v Grocer's Cooperative Dairy Co, 330 Mich. 694, 701; 48 N.W.2d 362 (1951):
"That by enactment of the pertinent statutory provisions, the legislature intended to and did take over plenary control of pasteurization of dairy products is quite conclusively indicated by the following quoted sections of the statute:
"'Sec. 1. The purpose of this act is to secure the wholesomeness and safety of milk, cream, skimmed milk and other milk products by requiring pasteurization as herein set forth.'
* * *
"'Sec. 5. It shall be the duty of the department of agriculture to enforce the provisions of this act.' 1948 CL 288.131, 288.135; MSA 12.693[11], 12.693[15])."
From Builders Ass'n v Detroit, 295 Mich. 272, 275-276; 294 N.W. 677 (1940):
"The State statute provides, in part, as follows:
"'No person shall keep open his shop, warehouse, or workhouse, or shall do any manner of labor, business, or work, or be present at any dancing, or at any public diversion, show, or entertainment, or take part in any sport, game, or play on the first day of the week. The foregoing provisions shall not apply to works of necessity and charity, nor to the making of mutual promises of marriage, nor to the solemnization of marriages. And every person so offending shall be punished by fine not exceeding ten dollars for each offense.' 1929 CL 9078; MSA 18.851.
"'No person who conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and actually refrains from secular business and labor on that day, shall be liable to the penalties provided in this chapter, for performing secular business or labor on the said first day of the week, provided he disturb no other person.' 1929 CL 9083; MSA 18.855.
* * *
"In the instant case the legislature, in prohibiting the transaction of business on Sunday, exempts from the application of the statute those who conscientiously believe that the seventh day of the week should be observed as the Sabbath, providing they disturb no other person. No such exception is to be found in the ordinance before us. It applies to all alike, regardless of religious convictions. It denies to the conscientious observer of the seventh day of the week as the Sabbath the right to transact business on Sunday, which is granted such individual by the exception to be found in the statute. It attempts to prohibit that which the statute permits and is, therefore, void."
From Noey v Saginaw, 271 Mich. 595, 598; 261 N.W. 88 (1935):
"The power conferred upon the city under the constitutional provision is 'subject to the Constitution and general laws of this State.' The constitutional amendment, providing for a liquor control commission, vested in it when established by act of the legislature 'complete control of the alcoholic beverage traffic within this State, including the retail sales thereof.' The legislature, after providing for its creation, conferred upon it, subject to certain exceptions, 'the sole right, power and duty to control the alcoholic beverage traffic * * * within the State,' and to 'adopt rules and regulations governing the carrying out of this act and supplemental thereto.'
"The word 'control,' as used in the Constitution, means to regulate and govern."
The majority concedes that there is "no express statutory language nor legislative history which indicates one way or the other whether the state statutory scheme pre-empts an ordinance such as the one before us". The Court thus appears to overlook our precedential requirement that an express showing of a legislative expression of intent to pre-empt the field be made before we will invalidate a local ordinance.
The language of the statute itself in no sense expresses or even infers an intent to occupy the field of obscenity regulation to the exclusion of local communities.
The first of the two reasons assigned by the majority for finding pre-emption is that "the comprehensiveness of the statutory scheme established by the state shows a pre-emptive intent". That the statute in question is not sufficiently comprehensive to suggest such a legislative intent is evident from a line by line comparison of it with the ordinance. The ordinance forbids nothing the statute permits and permits nothing the statute forbids, criteria we approved in Miller, supra. Further evidence that the statute lacks the pre-emptive comprehensiveness claimed for it by the majority is this Court's on the record declaration in People v Bloss, 394 Mich. 79, 81; 228 N.W.2d 384 (1975), while speaking of the statute here in question, that:
"We are divided as to whether such statutes can properly be construed by us without further legislative expression as proscribing the dissemination of 'obscene' material to consenting adults." (Emphasis added.)
Absent such construction or subsequent legislation, local ordinances proscribing such conduct can hardly be said to be inconsistent with the general law or the general law be held so comprehensive as to pre-empt local ordinances.
None has been forthcoming to date.
Because the state law has neither expressly nor by reasonable inference permitted the dissemination of obscene material to consenting adults, on that point alone it is unquestionably within the province of local authorities to further protect their legitimate interests in the field of obscenity legislation through the enactment of local ordinances prohibiting such conduct.
The second reason relied upon by the Court in concluding that the ordinance before us is preempted is "because the nature of the regulated subject matter demands uniform, statewide treatment".
The fact that a subject is one which logically lends itself to statewide uniform regulation or even demands it is hardly justification for the conclusion that such legislation has been enacted, or if enacted is in conflict with local ordinances on the subject. More significantly, whether the regulation of obscenity "demands uniform, statewide treatment" is a judgment for the Legislature to make, not the judiciary. It has given no indication to date, despite this Court's invitation in Bloss, supra, of an intent to pre-emptively provide the comprehensive, uniform statewide regulation my colleagues say the subject demands.
The considerations advanced by the majority in favor of pre-emption are factors to be weighed by our state Legislature in deliberations concerning future obscenity legislation.
Should the Legislature deem it appropriate, it may choose to completely occupy the field at that time. Under the present statutory scheme, however, local governments are not prohibited from legislating in the interest of furthering a valid "municipal concern" by regulating obscenity within their respective communities in a manner that does not conflict with the state's non-exclusive regulation in this field.
The prevailing opinion does violence to the legitimate interests of our municipalities in locally regulating a subject of vital concern to them by striking down virtually every ordinance in Michigan proscribing obscenity, despite the fact that the state has not adequately legislated in the field.
COLEMAN and FITZGERALD, JJ., concurred with RYAN, J.