Marijuana Penalty Cut By City

Ann Arbor's marijuana ordinance has successfully cleared two hurdles. Last night the City Council narrowly approved the ordinance at second and final reading and this morning Atty. Gen. Frank J. Kelley ruled cities have the power to adopt such ordinances. The ordinance locally reduces the charge for possession and use of marijuana from a felony to a misdemeanor. Gov. William G. Milliken is endorsing state legislation which would accomplish the same thing, and opinion is divided whether the state Legislature will follow the governor' s advice this term. Kelley had been requested by state Sen. Gilbert E. Bursley, R-Ann Arbor, to issue an opinion on the constitutionality of local ordinances in view of the fact the subject is covered by state law. Kelley's opinion upholds the city's right to enact such an ordinance, but a slight reworking of the document may be called for. Council approved the ordinance in a 6-to-5 vote last night, the same vote when the ordinance passed first reading a month a go. Kelley said a community may enact such an ordinance if it specifies a local problem exists separate from that dealt with by the state statute. He added, however, that a person possessing marijuana may be prosecuted either under the state felony law or the local misdemeanor ordinance. "It may well be there is a local problem that the city should deal with by ordinance," Kelley said. "If the proposed ordinance is redrafted to identify the local problem, and relate the ordinance thereto, it would be a valid exercise of local police power." Other Michigan cities having ordinances relating to lower marijuana penalties include East Lansing, Birmingham and Dearborn. Kelley's opinion will apparently apply to these cities as well as Ann Arbor. The local ordinance will go into effect 10 days after legal publication. It will provide that persons arrested under the ordinance will be subject to 90 days in jail, a $100 fine, or both. The ordinance was amended last night to include stiffer penalties for persons convicted more than once under the ordinance. These offenders would be subject to the 90-day jail sentence, a $500 fine, or both. Second Ward Councilman Robert Weaver, the only Republican to vote for the ordinance, proposed these amendments which were adopted in another 6-to-5 vote. The other four Republicans on council voted against the ordinance, and they were joined in opposition by First Ward Democrat H. C. Curry. Noting that Gov. Milliken is supporting such legislation at the state level, Weaver said passage of the ordinance "will give impetus to state action to revise their laws ..." He also said passage of the ordinance will point to the recognition that the drug problem is a local one and must be dealt with locally. State penalties for possession of marijuana range from one year for first offenders up to 20 years for habitual offenders. Fines also range up to $5,000. The local ordinance will make it a violation to give away or sell marijuana for other than commercial distribution, the penalty for this being 90 days in jail, $500 fine, or both. The ordinance would not apply to those persons who sell marijuana for the purpose of making a profit. Such persons would still be subject to the state felony law, and upon conviction would face a mandatory 20-year term. Fourth Ward Councilman James E. Stephenson said it was his understanding that all local marijuana arrests will go to the prosecuting attorney who will make the determination whether state law or local ordinance is followed. City Attorney Jerold Lax said he also understood this was the procedure arrived at after meetings with the prosecutor, but said the arresting city officer could also make the determination on which law to follow. "If the prosecuting attorney elects not to use this ordinance, our efforts here are in vain," Stephenson said. He said the ordinance deals with a state issue, "not with the substantive aspects of life but only the temporary solution to a problem relating to a frivolent aspect of life - pot smoking." "My regret is that this council should see fit to indulge itself in preoccupation with this issue in the waning days of Democratic council control," Stephenson said. He and other councilmen opposing the ordinance said the council's action would have some impact on the moral tone of Ann Arbor. Third Ward Councilman Joseph W. Edwards also said it should be handled at the state level, and said all the evidence on the effects of marijuana on the user has yet to be presented. "We 're fooling ourselves if we think this will be the answer to the drug abuse problem in Ann Arbor, but it is a beginning," said Second Ward Democrat Robert G. Faber. "As long as the law equates marijuana with heroin, it will be a small step from one to the other." Those favoring the ordinance noted it had been initiated by the Citizens' Blue Ribbon Committee on the Study of Drug Abuse. They also noted Gov. Milliken and President Nixon supported reduction of the penalties for marijuana possession and use. Curry maintained his earlier position that he does not believe it makes sense to attempt to halt the use of marijuana by reducing penalties. "Are you going to put Gov. Milliken and President Nixon above and beyond God's law?" he asked. Mayor Robert J. Harris said the police chief had urged the council to "vote its conscience" and that the Police Department would abide by the decision. The question is, Harris said, does the current punishment fit the seriousness of the crime. He said it did not. Five other councilmen agreed. (Other Council stories on Pages 7, 15, 20)