S T A T E O F M I C H I G A N



S T A T E O F M I C H I G A N

IN THE CIRCUIT COURT FOR THE COUNTY OF KENT

KENT COUNTY PROSECUTING ATTORNEY,

Plaintiff, Kent County Circuit Court

No. 12-11068-CZ

-vs-

Hon. Paul J. Sullivan

CITY OF GRAND RAPIDS,

Defendant,

DECRIMINALIZE GR,

Intervening Defendant.

________________________________/

SUPPLEMENTAL BRIEF IN SUPPORT OF

MOTION FOR INJUNCTION

Defendant, the City of Grand Rapids, and Intervening Defendant, Decriminalize GR, have filed their responses to Plaintiff’s complaint for a declaratory judgment, and objections to Plaintiff’s request for an injunction. Plaintiff incorporates by reference our previously filed brief in support of a motion for a temporary restraining order. We wish in this memorandum to briefly address the arguments defendant and intervening defendant have raised in opposition to our request for injunctive relief. Specifically, we wish to address the two main arguments the defendants have raised: (a) that the City of Grand Rapids, by adopting a charter amendment rather than an ordinance violation, acted permissibly, and (b) that the prosecutor retains authority to prosecute at least some cases involving marijuana either because the complaint comes from another agency or because the City will, despite the language of the charter amendment, permit a report of a violation to be sent to the Kent County Prosecutor.

The City Cannot By Charter Amendment Create A Civil Infraction

For What Is A Violation Of State Law

In our initial complaint and brief in support of a motion for temporary restraining order, Plaintiff noted the plain language of MCL 117.4l, that a city may not pass an ordinance that creates a municipal civil infraction for an act that is a crime under the Public Health Code, or any act that is punishable for imprisonment for more than 90 days. Defendant and intervening defendant do not challenge that, indeed admit that a city may not pass an ordinance that makes a civil infraction for the possession of marijuana. But, they claim, the city did not pass an ordinance in violation of MCL 117.4l. Instead, the voters passed a charter amendment creating a civil infraction for the possession, control, use or gift of marijuana, and that since nothing in the law specifically says the city could not do so, perforce it can.

As we noted in our earlier brief, what this in essence does is permit the city to perform an end run around MCL 117.4l. In effect, the defendants argue that the city may engage in a legal subterfuge to thwart state law.

The Home Rule City Act notes those things which a city charter must contain, including the election of a mayor, setting the time of elections, the qualifications, duties and compensation for city officers, and various monetary appropriations. MCL 117.3. Subsection (k) also includes a provision that a city charter provide for the “adopting, continuing, amending, and repealing the city ordinances and for the publication of each ordinance before it becomes operative.”[1] The Home Rules City Act thus anticipates that a city will use its ordinance making power to provide for prohibitions of the law.

The HRCA also notes those things which a city charter may permissibly contain, which include

• MCL 117.4b, bond for lighting and sewers

• MCL 117.4c, public utilities and mortgage bonds

• MCL 117.4d, public improvement costs, boulevard lighting systems

• MCL 117.4e, acquisition of public buildings, and condemnation of property

• MCL 117.4f, the purchase or condemnation of franchises

• MCL 117.4g, construction and maintenance of rapid transportation systems

• MCL 117.4h, maintenance of public ways, street and alley plans, water courses, etc.

• MCL 117.4i, regulation of buildings, property, etc.; outlawing of public nudity; “the initiative and referendum on all matters within the scope of the powers of that city and the recall of city officials.”

• MCL 117.4j, establishment of city departments

• MCL 117/4k, appropriateion and allocation of public funds for civil or artistic purposes

• MCL 117.4l, permitting “the legislative body of a city” to adopt ordinances, with the caveat that prohibits making a civil infraction out of what is a state crime

• MCL 117.4m, referring to ordinance regulations on recreational railways

• MCL 117.4n, establishing or medical facilities

• MCL 117.4o, formation of nonprofit corporations for public purposes

• MCL 117.4q, establishment of an administrating hearings bureau to adjudication and impose sanctions for the “violation of the charter of ordinance designated in the charter or ordinance as a blight violation,” and various zoning and rental rules

• MCL 117.4r, permitting liens for uncollected fines.

Nowhere in the listed permissible provisions for a city charter is there a provision that would authorize a city to in effect overrule MCL 117.4l by adopting a charter amendment rather than a municipal civil infraction.

Granted, MCL 117.5 lists prohibited powers of a city, and does not include any prohibition against adopting a city charter amendment to circumvent MCL 117.4l. But the prohibitions in MCL 117.5 concern limitations on elections and financial obligations of a city. It cannot be read as creating a carte blanche power of a city to do whatever it wants.

Under the theory advanced by defendants, a city could effectively nullify the enforcement of any state law within the city’s boundaries. A few hypotheticals will illustrate the point. MCL 750.520e, criminal sexual conduct 4th degree, is a misdemeanor punishable up to 2 years imprisonment. Suppose a city decided that it thought that was too harsh, that such actions should be considered lesser offenses, and thought the appropriate action would be to adopt a charter amendment making such a crime a civil infraction only. Or suppose a city decided that domestic violence was best treated outside the criminal justice system, and adopted a charter amendment that made domestic violence a civil infraction only with perhaps some mandatory counseling. Under the position of the defendants, nothing would preclude a city from adopting such charter amendments.

The obvious response of defendants would be that the City of Grand Rapids is not likely to adopt such a provision by a charter amendment. One would certainly hop not. But that isn’t the point. The fact remains is that, under the interpretation of the law advanced by the defendants, nothing prevents the City of Grand Rapids, or any other city for that matter, from such charter amendments. Nothing would prevent the City from effectively making it impossible for the county prosecutor to discover and determine whether to prosecute for such crimes, or any crime that a city determined ought not be prosecuted under state law.

Defendants note that the state has not completely preempted cities from regulation of marijuana. That is of course true. As we noted in our original brief, nothing precludes a city from adopting an ordinance making the possession of marijuana a 90 day misdemeanor, or a 30 day misdemeanor, or a no-jail misdemeanor. But no city has the right to make what is otherwise a crime only a civil infraction, and to effectively preclude the state from prosecuting state crimes discovered by municipal police officers.

The City of Grand Rapids argues that the city “was created by the electors and derives its power from them; not the other way around.” That is not accurate. Local governments in Michigan have no powers of their own except as granted by the state constitution and state statutes. City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28 (2006). Cities and other municipalities of this state are creatures of the state's sovereignty and possess only the power and authority granted by the Michigan Constitution and state statutes. Sinas v City of Lansing, 382 Mich 407, 411; 170 NW2d 23 (1969).

The clear import of MCL 117.4l is to preclude precisely what the City of Grand Rapids has attempted to do here. The City cannot circumvent the policy of the state by arguing that they aren’t really adopting a city ordinance, but only a charter amendment that has the precise effect a city ordinance would have. Call it a charter amendment; call it an ordinance; by any other name, it smells the same. Shakespeare, Romeo & Juliet, Act II, scene 2.

The Charter Amendment Directly Interferes With

The Prosecutor’s Constitutional Authority To Enforce State Law

Subsection (d) of the Charter Amendment at issue states

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.

This language is clear and unambiguous and not open to interpretation. It specifically prohibits any Grand Rapids police officer or his agent from presenting to anyone other than the City Attorney any complaint on the possession, control, use, or giving away of marijuana, and specifically prohibits the City Attorney from referring any such complaint to any other authority – which obviously includes Plaintiff.

The City of Grand Rapids has submitted affidavits showing how it will enforce this provision of the charter amendment. The City is apparently going to instruct Grand Rapids Police Officers that, despite the clear prohibition in the charter amendment, officers would still, enforce state law concerning the manufacture or possession with intent to deliver marijuana, maintaining a drug house, possession of 2.5 ounces or more or marijuana, when officers encounter an individual with any marijuana and the person was arrested for some other state law prosecutable offense, or where a person was found to have 4 prior convictions involving controlled substances (see affidavit of Grand Rapids City Manager Gregory A. Sundstrom). What the City of Grand Rapids in essence is doing is telling Grand Rapids Police Officers to disobey the clear terms of the charter amendment in certain circumstances, and to violate the city charter, and commit a crime, with the assurance that it will be alright for them do so because they won’t be prosecuted for it.[2] This is almost tantamount to an admission that the “thou shalt not” provision of the Charter Amendment is, at least to some extent, illegal. Ironically, it is contrary to the position of the intervening defendant, who argues that absent the temporary restraining order the City Manager “would have been required to amend the Rules of Conduct” to comply with the specific language of the charter amendment (see brief of intervening defendant, p 9). Intervening defendant is correct, at least to this extent: that nothing in the charter amendment gives the City of Grand Rapids the power to decide the extent to which it will enforce the clear language of the charter amendment.

The defendants take the position that plaintiff has no supervisory authority over the police, and that a city has the same right to supervise the behavior of the police department that any employer has to supervise the behavior of employees, and that plaintiff perforce lacks standing to object to the limitations places on police officers by their employer. But that argument misses the point. The charter amendment certainly aversely affects the police department, and puts the police department in an untenable position of committing a misdemeanor charter violation by enforcing state law. Plaintiff’s complaint is that the charter amendment, both in its direct language and the legal straitjacket it places on city police officers, interferes with the prosecutor’s constitutional authority.

A prosecutor in Michigan is a constitutional officer “whose duties and powers shall be proved by law.” Const 1963, art 7. § 4; Lawrence Scudder & Co v Emmet Co, 288 Mich 181; 284 NW 691 (1939). The prosecutor must appear in all prosecutions “in which the state or county may be a party or interested.” MCL 49.153. The prosecutor must appear before a magistrate and prosecute “all complaints made in behalf of the people of this state.” MCL 49.154. The prosecutor is the chief law enforcement official of the county, and “the ultimate police power reposes in the hands of this civilian law enforcement officer who was elected by the people.” People v Graves, 31 Mich App 635; 188 NW2d 87 (1971).

The effect of the charter amendment is to preclude plaintiff from even discovering whether a person has committed a violation of the laws concerning marijuana. The City of Grand Rapids says that it will refer certain of these cases to the prosecutor; aside from being a violation of the clear language of the charter amendment, and an order that Grand Rapids police officers and city attorneys shall commit misdemeanor crimes for violation of the city charter under certain circumstances, the effect of this policy will be to remove the constitutionally delegated discretion of the county prosecutor to decide whether to prosecute for a violation of state law and place that discretion in the hands of the Grand Rapids City Attorney. A more blatant violation of the constitutional prerogatives of the prosecutor is difficult to imagine.

The City also suggests that the prosecutor’s discretion is not restricted because, after all, only Grand Rapids police officers will be precluded from referring to the Kent County Prosecutor a complaint for the possession of marijuana, and the Kent County Sheriff and Michigan State Police, not subjects of the charter amendment, would remain free to refer such cases to plaintiff. The number of cases where an officer from a different jurisdiction discovers someone in possession of marijuana inside the City of Grand Rapids will be small, certainly in comparison to the number of instances where a Grand Rapids police officer will discover someone in possession of marijuana. The essence of the City’s argument is that only 95% or more of possession of marijuana cases in the City of Grand Rapids would be affected by the charter amendment, and since it doesn’t really interfere with the prosecutor’s constitutional authority in the other cases, it shouldn’t be seen as interfering with the prosecutor’s constitutional authority at all.[3] The City also argues that the prosecutor could always use the prosecutor’s investigative subpoena power to discover marijuana offenses. Aside from the fact that if a police officer and city attorney is precluded from reporting possession of marijuana cases to plaintiff it would be impossible to know where to look for such violations, the investigative subpoena power applies only to the investigation of felonies, MCL 767A.2(1).

Plaintiff’s position is not that an individual police officer is a “virtual law unto himself or herself” (brief of intervening defendant, p 20). It is not that a city is precluded from instructing its police officers on proper procedure, or creating policies governing the conduct of officers. A city can, for instance, tell police officers that it cannot make a custodial arrest for possession of marijuana, but must instead issue an appearance ticket for a marijuana violation. But what a city cannot do is restrict its officers, or for that matter any city employee, from even reporting to the constitutionally chief law enforcement officer of a county that there was a violation of state law. A city cannot hide its unconstitutional action under the theory that it is only supervising the actions of its employees. The effect of the charter amendment is a clear, obvious, and incontestable interference with the power of the prosecutor to decide whether to bring a criminal charge for a violation of state law.

Miscellaneous Observations

The defendants argue that the People of the City of Grand Rapids voted for the charter amendment, and that granting an injunction against the charter amendment will thwart the will of the people. But the power of the people is not unlimited. The People of the City of Grand Rapids could not adopt a charter amendment permitting racial discrimination, or outlawing private schools within the city limits, or precluding a prosecutor for murder of people considered by the city to be undesirable. While cities unquestionably enjoy great latitude to legislate where they have power to do so, no city has the right to interfere with the right and the power of the prosecutor to bring an action for a violation of state law.

The impetus for the Grand Rapids charter amendment is a belief that the marijuana laws are antiquated, and that marijuana possession should be legal, or at least decriminalized. That argument is gaining a certain momentum across the country. At least two states (Colorado and Washington) recently adopted statewide referenda permitting the possession and use of small quantities of marijuana. Whether that is a good police or a bad policy, whether it is a combination of good and bad, whether the state should be concerned with marijuana possession and use at least among those of a certain age, are political questions. Perhaps the State of Michigan, which already permits the possession of marijuana for medical purposes, will follow the lead of Colorado and Washington. That, of course, is simply not the issue before this Court. The question is not what policy should be adopted, a question not within a court’s power to decide. It is whether the policy that has been adopted by the City of Grand Rapids, contrary to the laws of this state and the constitutional authority of the prosecutor, can stand.

Defendants suggest that the effect of granting an injunction, and eventually ruling that the charter amendment is unenforceable as contrary to state law, would be to also invalidate a similar provision in the City of Ann Arbor. This Court of course has no such authority. Whether the Ann Arbor provision should be challenged is up to the Washtenaw County Prosecutor, an entity not involved in this case and over which plaintiff has no supervisory power.

The issue is also not plaintiff’s particularized interest in seeing people convicted for any and all marijuana possession cases. Many people who are discovered in possession of marijuana plead under MCL 333.7411, permitting them to be placed on probation and resulting at the end of that probation with no criminal conviction of any kind. Plaintiff certainly has no objection to that procedure; and even if we did, it would be beside the point. The Legislature has taken the position that first time offenders should be treated in a manner that will not lead to a criminal conviction. Plaintiff has no right to interfere with that determination of the State of Michigan, even if we wanted to.

But the concomitant is also true: the City of Grand Rapids has no right to interfere with state law governing criminal penalties for the possession, use, control or gift of marijuana. The City of Grand Rapids has no right to interfere with the constitutional prerogatives of the Kent County Prosecuting Attorney.

Defendants argue that there is no irreparable harm to plaintiff if an injunction against enforcement of the charter amendment is denied. The harm is to the very power of the prosecutor to enforce state law. The harm is to the Constitution of the State of Michigan. The harm is to the specific prohibitions of the Home Rule City Act intended to prevent precisely what the City of Grand Rapids has attempted to do here. For the reasons states in our complain for declaratory judgment, our initial brief in support of a motion for a temporary restraining order, and this brief, the People respectfully ask that this Court enter an injunction precluding the City of Grand Rapids from enforcing the charter amendment at issue.

Respectfully submitted,

William A. Forsyth (P 23770)

Kent County Prosecuting Attorney

Dated: January 7, 2013 ____________________________________

Timothy K. McMorrow (P 25386)

Chief Appellate Attorney

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[1] In lieu of publication, a city may also publish a summary of the ordinance, and make the actual text of the ordinance available for public inspection.

[2] The city’s position also seems to open up Grand Rapids police officers to civil liability. For example, an officer who refers a simple marijuana possession case to the Kent County Prosecutor because the person has four prior controlled substance violations would be deliberately violating the charter amendment. If such a prosecution were to ensue, would the arrested person have a potential lawsuit against the officer and the City of Grand Rapids for its deliberate violation of the city charter amendment? Or suppose a person is arrested for third offense drunk driving, and also possesses marijuana. The marijuana possession would, by the City’s directive, be referred to the Kent County prosecutor. Suppose the drunk driving charge is dismissed for some legal reason, and the marijuana possession is the only charge remaining. Could the defendant sue the police department and the City for its deliberate violation of the charter amendment and a resultant conviction of a misdemeanor rather than a civil infraction?

[3]Would a person who was arrested by a Michigan State Police Officer in Grand Rapids for possession of marijuana have an equal protection claim against prosecution under state law, since had he or she been arrested by a Grand Rapids police officer he would have only faced a civil infraction? If a police officer from another agency is helping the Grand Rapids police, acting in conjunction with the Grand Rapids police under MCL 764.2a, be precluded from referring to the Kent County prosecutor a complaint about discovering marijuana, because the officer from the other agency is acting as an ”agent” of the Grand Rapids police? The number of complications arising from the position of the City of Grand Rapids is incredible, and shows that the City’s proposed solution, aside from violating both the charter amendment and the prosecutor’s constitutional authority to enforce state law, is unworkable.

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