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Coa: Detroit Pot Ordinance Ok To Be On Ballot

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COA: Detroit Pot Ordinance OK To Be On Ballot


Does a local marijuana ordinance that could conflict with state law belong on a ballot?


A Court of Appeals (COA) panel made one thing clear in a decision today: the answer to that question is not up to the municipalities.


In the case Coalition For A Safer Detroit v. the Detroit City Clerk and Detroit Election Commission (No. 300516), the Coalition filed initiative petitions with the Detroit City Clerk in May 2010 to place on the Nov. 2, 2010, ballot a proposed amendment to the Detroit City Code.


The amendment would have added a provision that penalties for controlled substances does not apply to "the use or possession of less than 1 ounce of marihuana, on private property, by a person who has attained the age of 21 years."


The Detroit city clerk reported that the petition contained sufficient valid signatures. The City Council could then enact the ordinance or have the proposal submitted to the voters. City Council did not act, so the Detroit City Election Commission asked the Detroit Law Department to provide an opinion about whether the proposed amendment is valid as an initiative under Michigan law. An attorney in the Department said that because the city ordinance would conflict with state law, it could not be placed on the ballot.


On Aug. 9, 2010, the election commission voted not to place the initiative on the ballot.


The Coalition asked the circuit court to order the City to put the proposed amendment on the ballot. The court ruled that the clerk had the discretion to determine whether the proposed amendment was contrary to state law. The court also agreed with the City that the proposed amended ordinance is contrary to state law and that, therefore, the clerk had no legal duty to place the initiative on the ballot.


The Coalition then took the case to the Court of Appeals, arguing it satisfied all requirements governing initiative proposals. It also did not agree that the proposed amendment is contrary to state law.


Henry William SAAD wrote the majority opinion, with Elizabeth GLEICHER joining him. They agreed with the Coalition that it was not within the scope of the City's authority to assess the substance of the petition or to determine whether, if passed, it may conflict with state law.


Nothing "indicates that defendants have the discretion to review the substance or effect of the proposal itself," Saad wrote.


The two Court of Appeals judges also noted "that the question of a potential conflict between city and state law is complex, particularly when the language of the proposed ordinance does not appear to invalidate or interfere with the enforcement of state and federal laws prohibiting the use or possession of marijuana."


They also emphasized "that judicial pre-election determinations of the legality of ballot proposals are disfavored as undue interference with the legislative process, including the initiative process, the most direct form for citizens to pass laws. And, where, as here, the question of whether the ballot proposal conflicts with state law is a complex, close question of law, clearly the judiciary should let the legislative process proceed."


Jane MARKEY wrote the dissenting opinion, saying she believes the Coalition was the one that sought "judicial interference with the political legislative process."


Markey agreed with the circuit court decision that the Coalition "failed to meet its burden of proof" to establish that the city clerk and election commission had a clear legal duty to certify a ballot question "that is clearly contrary to state law."


"A direct conflict exists when an ordinance permits what the statute prohibits, or the ordinance prohibits what the statute permits," Markey wrote. ". . . it was not within the constitutional authority of the city of Detroit to adopt such an ordinance."

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Some very good... and important... information.


Thanks to both of you for posting it.


The 'people' should be running the government... NOT the 'government' running the people.


But I guess some people in governmental administrative positions haven't read the Constitution of the United States... or if they have, they choose to ignore it.

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