DecriminalizeGR, an organization of marijuana rights activists, has defeated the county prosecutor’s attempt to overturn the voter-chosen charter amendment decriminalizing possession of marijuana within city limits.
The Hon. Paul J. Sullivan issued his decision via an Opinion and Order dated May 6, 2013. In the document, Sullivan establishes the resolution to two clear issues: did the county prosecutor have proper legal standing to challenge the ordinance and did that ordinance violate state law. Sullivan allowed that the county prosecutor did have the right to challenge the law but that it was not in conflict with state law. The case for DecriminalizeGR was argued by local attorney Jack Hoffman, pictured below.
The charter amendment establishes a civil infraction ticket penalty for possession of marijuana instead of misdemeanor charges; it requires city police officers to report these offenses exclusively to the Grand Rapids City Attorney, and it restrains the city attorney from reporting those possession incidents to county, state or federal law enforcement officials. That language was accepted by the voters in November 2012 with a 58.5% approval.
Implementation was to begin Dec. 6, 2012, but the county prosecutor filed a restraining order to stop that, which was honored on Dec. 4. Sullivan states in his Decision that he felt the Prosecutor “was likely to succeed on the merits and that the Charter Amendment likely violated Michigan law.” Sullivan changed his mind based on additional research and the legal briefs submitted, and lifted the Restraining Order on Jan. 23, 2013.
The ordinance went into effect on May 1st, with news sources reporting that the first Civil Infraction ticket was issued on that day at 3am to a 28 year old man on Grand Rapids’ north side.
Sullivan emphasises that this decision is not a verdict on the merits of the new law, merely the legal challenge the county prosecutor attempted. Prosecutors tried to use the Home Rule Cities Act to void the new rules but Sullivan allows that this is a charter amendment to the Grand Rapids city constitution, not an ordinance, and therefore is not assailable. In their complaint, the City asked Sullivan to approve the implementation process but the judge refused, stating that there is no conflict and therefore no reason for the Court to approve the process.
A challenge to the charter amendment based on conflict with the Michigan Medical Marihuana Act (MMMA) was also rejected, allowing that cities can enact laws more broad that the MMMA but that those laws would not apply in a State prosecution and therefore there is no conflict. “The MMMA provides no basis for invalidating the charter amendment,” Sullivan explained.
Sullivan states, “…the Plaintiff has failed to show that any section of the Charter Amendment conflicts with state law.” A similar decision, made by the Court of Appeals in the case of Ter Beek vs. City of Wyoming, upheld a lower court’s ruling that Wyoming cannot cite federal law to prevent its citizens from participating in the Michigan Medical Marihuana Act. That case has been appealed to the state Supreme Court and will be heard in 2013.
The defendants in this case were the City of Grand Rapids and DecriminalizeGR.
In his decision, Sullivan wrote a road map for future challenges, even outlining the nature and methodology by which the charter amendment could be attacked. He advises the Prosecutor on how to attack the issue next time: “It would arguably be more helpful and appropriate if the complaint named the State as a party…”. In a single paragraph Sullivan uses language including the phrases, “there is no actual controversy at this time”, “preemptively approve… hypothetical challenges”, and “no decision is made today”.
He wrote: “Perhaps there may be future challenges regarding how the charter amendment is implemented by the City, but those potential issues are not ripe for a decision.”
Read the decision:
Source: The Compassion Chronicles