A proposed amendment of a Detroit ordinance, which would have eliminated penalties for use or possession of small amounts of marijuana on private property, should have been placed on the November 2010 ballot, a split Court of Appeals Panel has ruled.
Detroit election officials kept the proposal off the ballot after city lawyers said the proposal conflicted with state law.
The Coalition for a Safer Detroit, which backed the ballot initiative, sought a writ of mandamus to compel the Detroit city clerk and election commission to place the proposal on the ballot.
Wayne County Circuit Court Judge Michael Sapala refused to issue the writ. Sapala agreed that state law trumped the proposal, so there was no legal duty to put the proposal on the ballot.
In a 2-1 decision, the Court of Appeals reversed.
Judge Henry Saad, joined by Judge Elizabeth Gleicher, said under MCL 117.25 and the Detroit City Charter, the clerk had a clear duty to put the proposal on the ballot.
[I]t was a ministerial act for defendants to place the initiative petition on the ballot once the clerk determined that the petitions contained the required number of qualified signatures.
Because the clerk certified the petition, which contained the requisite number of qualified signatures, defendants had a clear legal duty to place the initiative on the ballot and plaintiff had a clear legal right to the performance of that duty.
Further, no other legal remedy was available where defendants declined to place the proposed amendment on the ballot through an exercise of discretion which is not permitted by law. Accordingly, we hold that the trial court abused its discretion in failing to enter an order of mandamus because plaintiff satisfied the elements necessary for mandamus relief.
Further, said the majority, the time to substantively challenge the proposal as conflicting with state law is after enactment, not before.
We take no position on whether a court may come to this conclusion when this proposed ordinance, if passed, is challenged. We also take no position on the wisdom of the petition or speculate about any actions that may or may not be taken if and when the proposed amendment is enacted.
Simply stated, before it becomes law, any judgment on the merits of such a claim would be an academic discussion about a hypothetical set of facts. Our courts should not render hypothetical opinions about matters that may never become law.
Despite that pronouncement, the majority took a shot at it anyway.
The proposed amendment appears to only provide that the use or possession of less than one ounce of marijuana on private property by a person 21 or older will not also be punished under the Detroit ordinances.
And, though plaintiff’s objective in supporting this initiative may well be to take yet another incremental step to legalize marijuana in Michigan and, though the intended effect of the ordinance may be to discourage arrests for the possession or use of small amounts of marijuana, this is not properly before us.
We do note, however, that it remains the case that local police officers may arrest a person for the commission of a state felony or misdemeanor under MCL 764.15 and, under the Detroit City Charter, it is the obligation of the Detroit Police Department to “enforce the laws of the state and the nation” as well as “the ordinances of the city.” City of Detroit Charter, § 7-1101.
Thus, the proposal, on its face, does not appear to change the fact that all persons under Michigan’s jurisdiction remain subject to the drug laws contained in the Public Health Code which criminalize the use and possession of marijuana.
Judge Jane Markey dissented. She had no trouble concluding that the proposal was contrary to state law, and on that basis, should not be on the ballot.
The rights of initiative and referendum are reserved to the people by Const 1963, art 2, § 9, which states, pertinent to this case:
The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. [Emphasis added.]
In my opinion, the emphasized sentence imposes a substantive limit on the right of initiative.
The case is Coalition for a Safer Detroit v. Detroit City Clerk, et al. (majority opinion) (dissenting opinion)
The Michigan Lawyer 