GR pot decriminalization challenged

GRAND RAPIDS, Mich. (WOOD) — The Kent County prosecutor is suing the City of Grand Rapids, saying a recently passed ordinance that decriminalized marijuana conflicts with state law.  

The measure, which amended the city's charter, was approved by Grand Rapids voters on Nov. 6. It passed with about 59% of the vote. The charter amendment would have gone into effect Dec. 6, but due to a temporary restraining order enacted after the lawsuit was filed, the enactment of the ordinance is on hold.

"It didn't take me by surprise and I don't see it as a setback," Grand Rapids Mayor George Heartwell, a charter amendment supporter. "I look forward to a full airing of this in the courts. The lawsuit will help to clarify some of the questions that we have about enforcement and as far as that's concerned I think it's a necessary and good part of the process."  

Heartwell said he still has "trust and faith" in the judicial process, but can understand why the voters would be a "bit miffed" at this point.  

The charter amendment decriminalized marijuana, meaning that those caught with the drug would face fines similar to a traffic ticket rather than jail or prison time.

In the lawsuit, Kent County Prosecutor William Forsyth argues the charter amendment is illegal because the City may not make rules that conflict with state law.

In this case, the ordinance making possession, use or gift of marijuana a civil infraction would overrule the state law making possession of marijuana a state crime.

City attorney Catherine Mish said she understands that is part of the prosecutor's position, but said she doesn't believe it applies in this case.

"I've looked at the state law that the prosecutor is pointing to, and it applies only to ordinances," said Mish. "I don't believe it applies to charters -- but that's going to be the legal argument that it has before the court."  

Mish said what the voters decided upon basically amended the city's constitution -- it's not just a city law.  

Mish said she has never seen a county prosecutor sue a city like this before, and certainly not in Grand Rapids.

"It's very unusual, but then again it's very rare that the citizens would come together and submit a charter amendment by petition, so it's a very rare set of circumstances," she said.

The legal challenge also argues the charter amendment unlawfully precludes a police officer or city attorney from reporting violators to the Kent County Prosecutor's Office and makes it a misdemeanor.

"If a City of Grand Rapids police officer reports to the Kent County Prosecutor a finding that a person in the City of Grand Rapids possessed marijuana, the police officer would be committing a misdemeanor under the City Charter," the challenge reads in part. "In short, the person who violated state law would not be committing a criminal violation of city law - but the officer who arrested the person for violating state law would be."

"Police officers are sworn to uphold the law," the challenge continues. "Officers who are sworn to uphold the law cannot be told that they will be breaking the law by upholding the law."  

Grand Rapids Police Chief Kevin Belk took issue with that aspect of the amendment weeks before voters passed it.

"I'm prohibited from addressing that with the prosecutor unless I want to violate the law myself and subject our officers to committing a crime, a misdemeanor, by violating the city charter," he told 24 Hour News 8 in October.

Cooley Law School professor Mike Dunn said it was only a matter of time before the ordinance was challenged.

"I think that it had to be done, so one way or another we were going to see this in court," he said.

The judge approved the restraining order Monday, but it has not been put on paper or filed, so it has yet to officially take effect.

"They can be sure that their city government is doing everything that it can to try and implement because we heard their voice," said Mish.

Dunn said the fact a judge granted the temporary restraining order against the City is telling.  

"It means that, 'you've given me enough here Mr. Prosecutor, that I know that you may win this thing,'" said Dunn about the order. "And if we let this thing become legal we may not be able to get the genie back in the bottle, so you're right we're at least going to put things on hold for the next month or two while we all think this through."

Mish said it's hard to estimate how long a legal case will take, but said she doesn't think it will be resolved at least until spring.

Forsyth declined to comment because the lawsuit is still pending.

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Michigan is governed as a republic, with three branches of government: executive, legislative and judicial. The state also allows direct participation of the electorate by initiative, referendum, recall, and ratification.
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