Pubdate: Wed, 22 Feb 2012
Source: Metro Times (Detroit, MI)
Copyright: 2012 C.E.G.W./Times-Shamrock
Author: Larry Gabriel, Columnist 


After Court of Appeals Loss, City Tries Again to Keep the Question
From Voters

Marijuana is a political football in any Michigan municipality, but in
Detroit the ball is getting more slippery of late.

Take the Court of Appeals decision on the Coalition for a Safer
Detroit (CSD) vs. the Detroit Election Commission case a couple of
weeks ago. A three-judge panel ruled two-to-one in favor of CSD. That
means the city Election Commission has to put the question of
legalizing possession of less than 1 ounce of marijuana on private
property for adults in Detroit on the ballot of the next regularly
scheduled election. If successful, this initiative would essentially
legalize individual marijuana use in Detroit - although I'm guessing
opponents will find some convoluted way of squirming around
implementing it if it's passed.

"It's almost anticlimactic in that it should have happened two years
ago," says Matt Abel, director of the Michigan Chapter of the National
Organization for the Reform of Marijuana Laws and the attorney who
argued the case in front of Wayne County Circuit Court Judge Michael
Sapala last year. Sapala ruled against CSD, but Abel feels vindicated
by the Court of Appeals decision.

"I was right," he says. "It's really well-settled law. The election
law issue is so clear that they really should be sanctioned for their
frivolous arguments here."

A little history: In 2010 the Coalition for a Safer Detroit ran a
petition drive to put the question of legalizing marijuana in Detroit
on the ballot. Although CSD fulfilled all of the conditions, including
gathering enough valid signatures, to put the initiative on the
ballot, the Election Commission refused to do so, claiming that if
passed the ordinance would conflict with state law. CSD sued, and
Judge Sapala ruled with the city against CSD.

The coalition then appealed in the state court, which ruled that it
was beyond the Election Commission's authority to assess whether the
ordinance was legal or not. The majority opinion was written by Judge
Henry Saad, a widely respected conservative Republican.

This is where the political football starts getting slippery. Last
week Detroit filed a motion to reconsider with the Court of Appeals,
which attorney Tim Knowlton, who argued the appeal for CSD, says is
just a delaying tactic by the city to give it more time to prepare an
appeal. Otherwise the question should be on the August primary ballot.
The city would have had 42 days from the date of the Feb. 10 opinion
to appeal to the state Supreme Court. However by filing a motion to
reconsider, for which the city cannot present more evidence, the city
will have 42 days from whatever date the Court of Appeals decides
whether to reconsider or not. Without new evidence presented, there's
little chance the Court of Appeals will change its opinion.

"I don't know what game the city is going to play," Knowlton says. "If
it plays it straight, then I expect the question on the August ballot.
I've heard different scenarios about whether some people prefer this
on the ballot in August or November. This is regarding voter turnout;
there could be politics that way. The only way I see losing the case
is having the [Michigan] Supreme Court overrule a long line of cases
and say we're not doing citizen initiatives anymore. You don't have a
right as an election commission or election official to consider the
constitutionality of an ordinance and not put it on the ballot."

There is conjecture floating around about how it would affect voter
turnout and election outcomes. Assume that having the question of
legalizing marijuana in Detroit will raise voter turnout. Then the
maneuver of delaying the question until November when high voter
turnout in Detroit would favor President Obama's chance for
re-election comes into play. Similarly, higher Detroit voter turnout
in the August primary might help Reps. John Conyers and Hansen Clarke,
whose district lines have been redrawn and include more suburban voters.

One thing that doesn't seem to be in doubt, whenever it gets on the
ballot the ordinance will pass. Detroiters almost certainly will vote
to legalize marijuana.

"If it gets on the ballot, it wins period," says CSD leader Tim Beck.
"Based on the poll numbers and the data that we've seen, this thing is
going to pass overwhelmingly. We won't even have to run a campaign for

When the Michigan Medical Marihuana Act passed in 2008, about 63
percent of Michiganders voted for it, but in Detroit the vote was 78
percent in favor.

The Election Commission and other opponents of the ordinance claim
that state law supersedes a city ordinance. At the same time Michigan
Attorney General Bill Schuette says that federal law supersedes the
state medical marijuana act (while claiming state law trumps federal
law when it comes to health care reform).

It seems like anyone who doesn't like the local law claims some other
law is pre-eminent. If the Detroit ordinance passes, police can still
make arrests under state law - although in that scenario the city
cannot collect fines after convictions. It's hard to see how a city
under severe financial duress as Detroit is would want to take on the
cost of arresting and trying suspects if it cannot recoup costs. Even
the cost of fighting CSD in court is going to go up for the city; that
could be especially true if the city appeals and loses.

"We're going to ask for costs," says Beck. "We never planned to do
that until this level. We never put a demand for compensation for our
legal fees, but we're going to do it now."

Beyond Detroit, activists in at least a few other Michigan cities
(including Flint) have put or are trying to put Lowest Law Enforcement
Priority (LLEP) ordinance initiatives on upcoming ballots. LLEPs
direct police to give their lowest priority to marijuana possession.
Meanwhile, there is a state constitution amendment initiative to
decriminalize possession of small amounts of marijuana statewide.

Beyond Michigan, activists in at least eight states have put the
question of legalization on upcoming ballots or are in the process of
trying to do so. Meanwhile, two governors (Christine Gregoire,
D-Wash., and Lincoln Chaffee, R-R.I.) have petitioned the federal
government to reclassify marijuana as a Schedule 2 drug, which would
allow its medical use under federal law.

With all this going on, it might seem that a vote in Detroit isn't
that big a deal. But Dan Riffle, legislative analyst for the
Washington, D.C.-based Marijuana Policy Project, disagrees.

"It's significant," he says. "Legally and practically it's not going
to change much. But to have the majority of voters in the biggest city
in Michigan say the possession of a small amount of marijuana should
not be a criminal offense, this says a lot about how far politicians
are behind the people on this issue. The voters of Detroit ought to
have the right to say that."

And Detroiters probably will, in August ... or November. The bottom
line is that anti-prohibition activists in Detroit and elsewhere are
no longer playing defense. They've grabbed the ball, no matter how
slippery, and have a clear view of the goal line. The defense may
stall things by beating an ordinance here or there. But in the long
run, as public opinions steadily change, marijuana activists are
certain to score. 
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MAP posted-by: Richard R Smith Jr.