Marijuana Ordinance Faces Crucial Voting Test

A proposed ordinance to reduce possession and use of marijuana from a felony to a local misdemeanor faces a crucial voting test at tomorrow night's City Council meeting. And whether the ordinance is adopted here or not, the debate and actions revolving around the proposal may have a profound effect on two cities which have already adopted such legislation- Birmingham and Dearborn. State Sen. Gilbert E. Bursley, R-Ann Arbor, has sought a state attorney general's opinion on whether municipalities may adopt an ordinance of this type. Under state law, possession of marijuana is a felony. There is a section of the state law which permits a misdemeanor charge on use of marijuana, although Blue Ribbon Drug Committee 'members state this provisión is rarely used. It is not likely an attorney general's opinión will be ready by tomorrow night, and there are conflicting reports from Lansing on the constitutionality of such an ordinance. A member of Atty. Gen. Frank Kelley's Municipal Law División, contacted by The News' Lansing Bureau, issued an unofficial opinión stating cities do have this power. Reportedly, however, a member of Kelley's Criminal División staff has gone counter to this opinión. The Municipal Law División spokesman said an ordinance along these lines may be legal and is not automatically illegal. The assistant attorney said a city can adopt its own ordinance in a field already covered by state law if it pertains to a particular city problem. City Attorney Jerold Lax cites the same case as did the Municipal Law División .spokesman in upholding the right of a city to enact an ordinance covered by state law. This case dates back to the late 1800s and involves the city of Detroit. The Motor City had an ordinance dealing with disorderly houses which was also covered by state law. A man arrested under the city ordinance appealed to the courts, claiming he could not be arrested under a city ordinance if the state had a law on the same matter. The courts upheld the city of Detroit. Kelley's assistant in municipal affairs says there is a long string of precedents since that disorderly house case. If Ann Arbor passes the marijuana ordinance and the attorney general rules it unconstitutional, this would not be the first time this happened here. When Ann Arbor passed its fair housing ordinance Kelley ruled it unconstitutional but the courts later upheld the city's right to act in this field. A ruling by Kelley that such ordinances are unconstitutional would not automatically prohibit such local legislation, but it would probably lead to a court test and a similar ruling in the courts would invalidate Ann Arbor's ordinance (if it passes) as well as those in Birmingham and Dearborn. Ordinances in these other two cities have been in effect for some time now and have not been challenged. The question of constitutionality was raised on the council floor last Monday night. Police Chief Walter E. Krasny called it "illegal on its face." Lax disagrees with this assessment of the ordinance. Krasny has voiced the strongest opposition to the ordinance but a meeting was held in City Hall Friday to mine if differences of opinión between Krasny and Lax can be resolved. If they are, the ordinance stands a far better chance of passage tomorrow night. The issue of the marijuana ordinance may well be resolved tonight when Democrats and Republicans hold their respective caucuses. Five of the six Democrats on council favor the ordinance, while First Ward Councilman H. C. Curry has expressed serious reservations about it. Those Republicans who have spoken to the issue have questioned its constitutionality, its impact on law enforcement procedures, and whether passage of such an ordinance might be construed by citizens as condoning the use of marijuana. If the ordinance is adopted tomorrow night, the council will probably cali for a public hearing on the issue the following week. In addition to the marijuana ordinance, the council, at its 7:30 p.m. meeting, will conduct a public hearing on the city's sign ordinance. The hearing on the sign ordinance will be unofficial. The council requested such a hearing after visiting Circuit Court Judge Paul Mahinske ruled the ordinance invalid. Councilmen are considering whether to appeal the decisión to the higher courts, and are attempting to determine whether the ordinance should be amended at the same time. Petitions are being circulated among Ann Arbor citizens urging the council to appeal the decisión of Judge Mahinske. In other business tomorrow night, council will consider a resolution relating to alleviation of flooding problems in the Sunnyvvood-Parklake area, and will receive a further report from the city administration on the proposed expansión of the sewage treatment plant.