People v. Llewellyn

257 N.W.2d 902, 401 Mich. 314

• Court: Michigan Supreme Court
• Decided: October 6, 1977
• Docket: 56872, (Calendar No. 6)
• Status: Published

Opinions

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 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”.¹ 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.²

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.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 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.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 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.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 pre-empted. Noey v Saginaw, 271 Mich 595; 261 NW 88 (1935).⁷

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 NW2d 318 (1971).⁸

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 NW2d 362 (1951); In re Lane, 58 Cal 2d 99; 22 Cal Rptr 857; 372 P2d 897 (1962);⁹ Montgomery County Council v Montgomery Ass’n, Inc, 274 Md 52; 325 A2d 112, 333 A2d 596 (1975).¹⁰ 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.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 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 NW2d 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 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 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 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 28.575¹⁴ with a detailed five-section statutory framework intended to define and regulate obscenity.

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,¹⁵ 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 longstanding 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 NW 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.¹⁶

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.¹⁷

In so holding, we join at least two sister states who have reached a similar conclusion. Dimor, Inc v Passaic, 122 NJ Super 296, 302; 300 A2d 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 P2d 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 P2d 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 US 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.¹⁸

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 US 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.

1 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”.

2 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.

3 The question of the impact of the requirements for obscenity regulation laid down by the United States Supreme Court in Miller v California, 413 US 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 NW2d 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.

4 See Builders Ass’n v Detroit, 295 Mich 272, 277; 294 NW 677 (1940); see also Walsh v River Rouge, 385 Mich 623, 637; 189 NW2d 318 (1971); Miller v Fabius Twp Board, 366 Mich 250, 258; 114 NW2d 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.

5 Grand Haven v Grocer’s Cooperative Dairy Co, 330 Mich 694, 702; 48 NW2d 362 (1951); Walsh v River Rouge, supra. See also Miller v Fabius Twp Board, 366 Mich 250, 258; 114 NW2d 205 (1962); Detroit v Recorder’s Court Judge, 56 Mich App 224, 227-228; 223 NW2d 722 (1974); Feiler, Conñict Between State and Local Enactments — The Doctrine of Implied Preemption, 2 Urban Lawyer 398, 408 (1971).

6 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, Conñict Between State and Local Enactments — The Doctrine of Implied Preemption, supra.

7 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 "[ejxcept 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.

8 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 preempted 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.

9 In In re Lane, 58 Cal 2d 99, 103; 22 Cal Rptr 857; 372 P2d 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.”

10 In Montgomery County Council v Montgomery Ass’n, Inc, 274 Md 52, 64-65; 325 A2d 112, 333 A2d 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 F2d 1143, 1146 (CA 8, 1971); Pennsylvania v Nelson, 350 US 497, 502-504; 76 S Ct 477; 100 L Ed 640 (1956); Rice v Sante Fe Elevator Corp, 331 US 218, 230; 67 S Ct 1146; 91 L Ed 1447 (1947).

See also the articles cited in fn 5.

11 See discussion to that effect in Note, Municipal Corporations: Ordinances in Conñict 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).

12 See People v McGraw, 184 Mich 233, 238; 150 NW 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 NW 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 NW2d 554 (1944) (zoning ordinance upheld); Howell v Kaal, 341 Mich 585; 67 NW2d 704 (1954) (zoning ordinance upheld); Bane v Pontiac Twp, 343 Mich 481; 72 NW2d 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 NW2d 14 (1975) (zoning ordinance upheld); contra Richards v Pontiac, 305 Mich 666; 9 NW2d 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 NW2d 205 (1962) (ordinance regulating the permissible hours for water skiing upheld).

13 For discussion of the need for uniformity as a factor to be discussed in pre-emption cases, see Feiler, ConBict 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.

14 The text of this now repealed statute can be found in Butler v Michigan, 352 US 380, 381; 77 S Ct 524; 1 L Ed 2d 412 (1957).

15 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.

16 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 P2d 897, 904 (concurring opinion). See also Lambert v California, 355 US 225; 78 S Ct 240; 2 L Ed 2d 228 (1957).

17 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 US 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.

18 See fn 12, citing numerous cases upholding the right of municipalities to enact zoning ordinances against challenges asserting state pre-emption.