Court of Appeals upholds city's marijuana decriminalization

By Cynthia Price
Legal News

In a Jan. 8 unpublished opinion, Court of Appeals Judges Mark Boonstra, Pat Donofrio, and Elizabeth Gleicher ruled to affirm 17th Circuit Court Judge Paul Sullivan’s opinion on the legality of the charter amendment to decriminalize marijuana possession in Grand Rapids.

People in the city had voted in the proposal to make possession of less than 2.5 ounces of marijuana a civil infraction, more or less like a traffic ticket, in Nov. 2012, but Prosecuting Attorney William Forsyth sued the city to prevent the change from taking place.

The decision reads:

“Plaintiff Kent County Prosecuting Attorney appeals as of right the May 6, 2013, order granting defendant City of Grand Rapids and intervening defendant DecriminalizeGR summary disposition regarding plaintiff’s complaint that an amendment to the Grand Rapids City Charter was preempted by state law.  Because the Charter Amendment at issue here is not preempted by state law, we affirm.”

The opinion quotes relevant portions of the amendment, as follows:

“(a)  No person shall possess, control, use, or give away marijuana or cannabis, which is defined as all parts of the plant cannabis sativa l., whether growing or not; its seeds or resin; and every compound, manufacture, salt, derivative, mixture, or preparation of the above, unless such possession, control, or use is pursuant to a license or prescription as provided in Public Act 196 of 1971, as amended.  This definition does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compounds, manufacture, sale, derivative, mixture or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.

“(b)  Violations of this section shall be civil infractions.  Persons convicted of violating this section shall be fined $25.00 for the first offense, $50.00 for the second offense, $100.00 for the third or subsequent offense and no incarceration, probation, nor any other punitive or rehabilitative measure shall be imposed.  Fines and all other costs shall be waived upon proof that the defendant is recommended by a physician, practitioner or other qualified health professional to use or provide the marijuana or cannabis for medical treatment.  The court may waive all or part of the fine upon proof that the defendant attended a substance abuse program.  It is an affirmative defense to a prosecution under this section that the use or intended use of the marijuana or cannabis relieves, or has the potential to relieve, the pain, disability, discomfort or other adverse symptoms of illness or medical treatment, or restores, maintains or improves, or has the potential to restore, maintain or improve, the health or medical quality of life of the user or intended user or users of the marijuana or cannabis.  Requirements of this subsection shall not be construed to exclude the assertion of other defenses.


“(d)  No Grand Rapids police officer, or his or her agent, shall complain of the possession, control, use, or giving away of marijuana or cannabis to any other authority except the Grand Rapids City Attorney; and the City Attorney shall not refer any said complaint to any other authority for prosecution.

“(e)  No Grand Rapids police officer, or his or her agent, shall complain and the City Attorney shall not refer for prosecution any complaint, of the possession, control, use, giving away, or cultivation of marijuana or cannabis upon proof that the defendant is recommended by a physician, practitioner or other qualified health professional to use or provide the marijuana or cannabis for medical treatment.”

The Kent County Prosecuting Attorney’s office sought declaratory judgment arguing that the action was inconsistent with the 1963 State Constitution, but Judge Sullivan granted summary disposition that the prosecutor’s argument that the charter amendment was not preempted by state law. The Court of Appeals reviewed that decision de novo.

The opinion continues:

“ In Detroit v Walker, 445 Mich 682, 689-690; 520 NW2d 135 (1994), the Michigan Supreme Court explained:

The Michigan Constitution provides that “[t]he provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor.”  Const 1963, art 7, § 34.  It also provides that “[n]o enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section.”  Const 1963, art 7, § 22.

“Accordingly, it is clear that home rule cities enjoy not only those powers specifically granted, but they may also exercise all powers not expressly denied.  Home rule cities are empowered to form for themselves a plan of government suited to their unique needs and, upon local matters, exercise the treasured right of self-governance.  See Const 1963, art. 7, § 22.  [Emphasis added, alterations in original.]”

Here, plaintiff argues that the Charter Amendment violates the clear language of MCL 117.36, which provides that   Citing Mich Coal For Responsible Gun Owners v City of Ferndale, the COA judges disagreed with plaintiff’s argument that the amendment vioated MCL 117.36, which states that “[n]o provision of any city charter shall conflict with or contravene the provisions of any general law of the state.” The judges opined “that MCL 117.36 merely repeats the constitutional limit on a municipality’s authority found in Const 1963, art 7, § 22 that ‘e]ach such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law.’ To determine whether a home rule city’s action violates Const 1963, art 7, § 22 and MCL 117.36, we apply the preemption doctrine.  Mich Coal For Responsible Gun Owners, 256 Mich App at 408.  ‘A state statute preempts regulation by an inferior government when the local regulation directly conflicts with the statute or when the statute completely occupies the regulatory field.’  USA Cash # 1, Inc v Saginaw, 285 Mich App 262, 267; 776 NW2d 346 (2009).”

Similarly, plaintiff’s contention that the Charter Amendment directly conflicts with state stautes was countered by quoting Mceil v. Charlevoix Co., “For purposes of preemption, a direct conflict exists between a local regulation and a state statute when the local regulation permits what the statute prohibits or prohibits what the statute permits.”

The continue, “..nothing in subsections (a) and (b) of the Charter Amendment purports to prevent the application of state law as it relates to marijuana offenses.  Instead, subsections (a) and (b) of the Charter Amendment create civil infractions for certain actions related to marijuana.  This is not a case where the Charter Amendment permits what state law prohibits or prohibits what state law permits as required to show a direct conflict for the purpose of preemption.  Id.  Accordingly, subsections (a) and (b) of the Charter  Amendment do not directly conflict with the portions of state law that criminalize actions related to marijuana.”

Because the ballot initiative called for a charter amendment and not an ordinance, the COA said, “Plaintiff is correct that if a Grand Rapids ordinance created a civil infraction for the possession, control, use or gift of marijuana it would directly conflict with MCL 117.4l(3).  However, MCL 117.4l(3) refers only to city ordinances, not to city charters.”

In addition, “Plaintiff also argues that the portions of subsections (d) and (e) of the Charter Amendment that bar Grand Rapids police officers from reporting marijuana infractions under the Charter Amendment to plaintiff are invalid.  On appeal, plaintiff argues that subsections (d) and (e) impermissibly interfere with plaintiff’s power to prosecute violations of state law.  Plaintiff’s argument assumes that as a part of its powers to prosecute violators of state law, it is entitled to Grand Rapids police officers reporting violations of state law.  But, plaintiff provides no authority for the proposition that it is entitled to reports from the Grand Rapids Police Department, and that argument consequently is abandoned.”

The opinion concludes, “In sum, the Charter Amendment is not preempted by state law.  The parties do not identify a genuine issue as to a material fact in this case, and the trial court did not err in granting summary disposition under MCR 2.116(C)(10).”

The decisions followed a number of legal maneuverings which also saw the City of Grand Rapids stalling on implementation of the charter amendment pending court resolution and a pilot project to put the amendment into effect.

The original language of the proposal was guided by attorney Jack Hoffman, who also played a role on behalf of the COA?intervening party Decriminalize GR during the process.

Decriminalize GR spokesperson Tyler Nickerson comments, “We are glad to see the Court of Appeals side with the more than 40,000 voters who supported the charter amendment in 2012.”

Timothy McMorrow of the Kent County Prosector’s office says that they will be filing an appeal to the Michigan Supreme Court within the 42-day timeframe mandated by law.