The Concurrent State and Local Regulation of Marijuana: The Validity of the Ann Arbor Marijuana Ordinance

The City Council of Ann Arbor, Michigan, has recently amended the City’s “marijuana ordinance” so that it prohibits the possession, control, use, giving away, or sale of marijuana, and specifies a five dollar fine as punishment for violations of the ordinance. The State of Michigan has also legislated to prohibit marijuana-related activities, specifying a number of different offenses with penalties ranging as high as four years in prison, or a 2,000 dollar fine, or both. By enacting the ordinance, the City government has minimized the criminal sanctions for an activity it has found essentially benign, pursuant to certain local purposes. Since, however, there is concurrent exercise of control over marijuana by both a municipality and the State several issues for judicial determination arise concerning the constitutionality of the local ordinance. Michigan cities are authorized by constitution and by statute to act only with respect to local concerns, and thus the courts must first determine whether the Ann Arbor marijuana ordinance deals with a “municipal concern” as defined by law. If the ordinance is found to deal with a problem within the ambit of permissible local authority, the courts must then consider whether the state legislation in the area of marijuana control has preempted the field, rendering ultra vires any municipal efforts at additional control. If the state marijuana laws are found to be nonpreemptive, then the Ann Arbor ordinance will be allowed to stand unless it is found to be “in conflict” with the provisions of the state law. In addition, the question arises whether the coexistence of the ordinance and the statute vests an impermissible degree of discretion in the prosecuting officer. Finally, in order to evaluate the impact of the ordinance it must be determined whether successive prosecutions by the City and the State for the same illegal activities would constitute double jeopardy in violation of the constitutions of Michigan or the United States.