COMMENTARY
Age Restrictions Upheld by Appellate Court
[Editor's Note: Herb Beitel, NCMI managing director, recently wrote these comments on
an opinion issued by the Michigan Court of Appeals dealing with age restriction s. ]
just when the wave of adverse court problems
seemed to be subsiding, the Michigan Court of Appeals
issued a devastating opinion upholding age restrictions
on june 18 that ranks alongside the Marshfield ,
Massachusetts, case (upholding complete bans on coin -
op video games).
This is the first appellate level case that has come to
our attention that has cited the Marshfield case . This
decision is dangerous because it is a reported decision
that is available to other jurisdictions (in contrast to
municipal and county court rulings).
The Michigan case , titled People of the City of
Warr en vs. }aqueline Walker , began with arrests on
j anuary 18, 1979, for violations of a city ordinance that
made it a crime to "permit a minor before (their) 17th
birthday to enter, loiter, remain , congregate, or play any
mechanical amusement in an amusement center unless
accompanied by a parent or guardian. "
Through a series of actions and appeals, this case has
been bouncing around in the Michigan court for five
y ears. Note that all this began in 1979 before video games
became a national event. The ordinance was enacted still
much earlier. The ordinance was repealed before this
decision , but that did not stop the court from hearing the
appeal.
Court arguments against the ordinance were based
on (1 ) First Amendment protection of expression and
association , (2) equal protection rights under the federal
and state constitutions, and (3) age discrimination in
vi olation of the Michigan Civil Rights Act .
Thi s court ruled against industry arguments on every
point .
The court claimed that it could find no precedent for
protecting an "individual ' s" right to association. The
Mesquite case (Texas-U.S. Circuit Court of Appeals) did
decide the age restriction question in the industry's favor
on that very point-this court referred to the Mesquite
case in a footnote as a case to " compare" with the finding
here.
This court ruled that First Amendment protection is
extended to " a group which assembles for purposes
c on stitutionally protected under the freedom of
expression ." Further, this court cited and adopted the
Marshfield case as precedent for denying First Amend-
ment protection to coin-op games as not being
" ... designed to communicate or express some idea or
some information .... expressions that occur during the
playing of a .. . game is purely inconsequential. "
In holding that the Warren ordinance did not violate
" equal protection" rights, under the federal and state
constitutions, this court held that the classifications based
on age and mechanical amusements in the ordinance
were not arbitrary and were justified under the
cir cum stances .
Th e " circumst ances" alleged by th e city of Warren ,
and apparentl y not put in issue in the court proceedings,
include : children spending lunch money on the pinball
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machines instead of buying lunch. Some children were
" borrowing" lunch money from other children to play
the pinball machines. The term " borrowing" includes
strong-arm robbery. These instances occurred when
pinball machine arcades were located close to schools.
When the amusement center was located close to
other stores, the neighboring store owners complained
that at noon time and after school there were so many
children gathering around that customers could not get
into their stores.
The city also alleged that psychological effects such as
gambling compulsions and addiction result from playing
video and pinball games.
The age discrimination argument was qui ckl y
dismissed by this court on the basis that the Mi c higan Civil
Rights Act prohibited age discrimination ex cept " where
permitted by law" and that the Warren ordinance was a
law and did permit discrimination .
Some points should be kept in mind about this case:
1. The arcade owner's suit also claimed damages to
pay for attorney ' s fees . Many in Michigan feel that the
appellate court sought to rule for the ordinance to
prevent saddling the city of Warren with a bill for five
years accumulation of attorney' s fees .
2. This court said in a footnote: " We are not
convinced , indeed , we feel strongly th at other less
restrictive alternatives were available to the city of Warren
to help control the truancy of its youths. Unfortunately ,
this observation does not reach the constitutional
question. "
3. The typical laundry list of scurrilous " trouble in
River City " charges against the arcades , whether true or
not, were not fully made an issue in the trial court
proceedings, so that the appellate court had no choice
but accept the city's allegations.
4. The ordinance in question had been repealed
before this appeal was tried . But since the appeal was
based on criminal charges and penalties, the court had to
determine if the criminal acts occurred and occurred
under laws that were in effect and constitutional at th e
time.
This is a clear example of the problem s in reso rting to
test suits to overcome legislation (and publi c rel ation s)
problems:
1. Court actions take a long time and are expensive .
By the time a decision results, the root of the problem may
have altered or disappeared-but the preced ent goes on
forever.
2. The issues in suits become very narr o w and very
legalistic. Usually only p art of the basi c problem is
resolved.
3. Court opinions and judgments almost always look
back at history and not ahead to tomorrow or directly at
today . Courts must address problems that have happened
and rule on them. They may conjecture about futur e
developments and actions (as they did here and in the
Marshfield case) , but they cannot pass judgment in
advan ce.
•
PLAY METER. November 1. 1984