Marijuana Law Future Cloudy

Lighting up a "joint" in Ypsilanti is risky business for the time being. Ypsilanti has a $5 marijuana ordinance, but then it's unconstitutional ... no, it's valid after all ... wait now, it's nuil and void again. How is the average dope smoker expected to know just what the law is from moment to moment? That's the situation Ypsilanti marijuana users find themselves in following a ruling Thursday by 14th District Judge Thomas F. Shea that the local pot law - which, like Ann Arbor's, imposes a maximum penalty of a $5 fine on persons convicted of possessing the illegal weed - is invalid. The ruling marks the second time in three months that Shea, formerly an assistant prosecutor with a reputation for being hard-nosed, has knocked down the controversial ordinance, approved by Ypsilanti voters last April. Shea noted the conflict between state and local law regarding marijuana use, and compared allowing the local ordinance to take precedence over the Michigan Controlled Substances Act of 1971 as "the tail wagging the dog." "Application of the tail wagging the dog principie would, in the opinion of this court, permit a proliferation of local ordinances throughout the state conflicting with and nullifying state law," said Shea. "This would eventually lead to a complete breakdown in the orderly process of government and destroy the very democracy we seek to preserve." Yet despite Shea's strong words, the exact status of the Ypsilanti marijuana law remains up in the air. The cause of all this uncertainty is a declaratory judgment rendered in August by Washtenaw County Circuit Judge Patrick J. Conlin. In a civil lawsuit filed by the Ypsilanti Police Officers Association, Conlin upheld the validity of the ordinance. It appeared, at the time that Conlin's decision overruled Shea's earlier decision. But there is now some doubt and confusion among attorneys over the binding effect of Conlin's decision. He ruled in a civil matter, while Shea has both times ruled in criminal cases. Conlin, however, this morning told The News he is certain that his decision takes precedence over Shea's ruling. "He thinks my opinion is wrong, and I think his opinion is wrong," Conlin said. "But I am a higher court judge and my opinion is the one that will stand ... Whenever a higher court makes a decision, it sets aside conflicting lower court rulings." Added Conlin: "What Judge Shea fails to recognize is that the voters of Ypsilanti wanted this law, they approved it ... I don't think an ordinance in Ypsilanti is really going to cause democracy to collapse." Assistant Public Defender James Thomas, who represents one of the defendants in the case in which Shea ruled yesterday, has said he plans an immediate appeal of Shea's decision to Circuit Court. But Thomas is not yet sure of the form that appeal will take, nor is he sure that Conlin will be assigned to decide the appeal. Conlin also said he is unsure of whether he would get such an appeal. Thus, the possibility apparently exists that a circuit judge other than Conlin could hear the appeal, and that possibility raises questions over what would happen if another circuit judge upheld Shea's ruling and contradicted Conlin's opinion. It is the kind of legal dilemma that could eventually land in the Michigan Court of Appeals or even the State Supreme Court. Shea pointed out in court yesterday that Conlin actually amended the Ypsilanti ordinance in August by ruling that Ypsilanti police must refer all marijuana cases to the city attorney rather than a county prosecutor, and the city attomey then has discretion whether to prosecute the case under state or local law. Ypsilanti police were not entirely satisfied with Conlin's decision because they feit it left them in a legal "grey área," sworn to uphold state law yet forced to ignore that law in certain instances. But the pólice also realize that regardless of Shea's ruling yesterday, they are still caught betwixt-and-between until enforcement of marijuana laws in Ypsilanti is resolved once and for all.