Judge rules for TR clerk in petition lawsuit

Stutesman: Marijuana petition did not meet size requirement, exceeded scope

CENTREVILLE — St. Joseph County Circuit Court Judge Paul Stutesman ruled Tuesday in favor of Three Rivers City Clerk Melissa Bliss in a lawsuit pertaining to a ballot petition to allow recreational marijuana shops in Three Rivers.

Stutesman’s ruling denied a motion for a writ of mandamus to compel Bliss to certify the petition submitted by ballot question committee Jobs For Michigan Communities (JFMC) and place it on the November 2020 ballot, ruling the petition itself did not meet size and language requirements outlined under state regulations. The ruling will effectively keep the issue off the November 2020 ballot in Three Rivers.

The petition, filed with the city back on July 28, would have put a proposal on the November ballot that would create an ordinance to authorize marijuana establishments in the city. It was filed under provisions set out in the Michigan Regulation and Taxation of Marihuana Act (MRTMA), the legislation born out of Proposal 1 that Michigan voters passed in the November 2018 election, and which Three Rivers city residents voted for with 65 percent of the vote.

During the Aug. 4 city commission meeting, the city voted to retain legal counsel to help the city’s Board of Elections review the petition, which led to a rejection notice from Bliss to the petitioning group on Aug. 7, stating three reasons for why the petition was rejected:

  • The petition exceeded the size mandated by the Michigan Election Law, which is 8 1/2 inches by 14 inches,
  • The petition wasn’t limited to the subject matter permitted for an initiative petition under Section 6.1 of the MRTMA,
  • And the petition proposed, in part, “administrative determinations as opposed to legislative actions” that are “not the proper subject of an initiative petition and contrary to state law.”

The lawsuit was then filed by JFMC on Aug. 17. The first hearing was Tuesday, Sept. 2, but was adjourned to this past Tuesday to allow Stutesman time to review the case and evidence.

In response to the lawsuit, during the Sept. 2 Three Rivers City Commission meeting, commissioners voted to draft a marijuana shop ordinance of their own with the intention of putting it to a vote of the people in 2021.

During Tuesday’s hearing, JFMC attorney Douglas Mains argued that substantive challenges to the petition were “premature” and should come after an election.

“We believe the case law makes clear that any sort of substantive challenge to that petition has to happen after it passes at an election,” Mains said. “Any sort of pre-election challenge is effectively asking this court to render an advisory opinion. No different than asking this court to weigh in on a bill the legislature is considering to determine whether it’s constitutional before it’s even enacted.”

To that, he later cited cases in Royal Oak and Detroit to make his point about premature challenges from city clerks. Emily Palacios, Bliss’ attorney, argued that those cases have “less persuasive authority” because they are unpublished cases and didn’t have detailed legal arguments.

“Under Michigan court rules, an unpublished decision is not a binding decision from a precedence perspective. What was presented was an application for leave to appeal, which according to Michigan court rules, has even less persuasive authority,” Palacios said.

As far as the language requirements, Mains claimed that language in the MRTMA stating “provide for the number of businesses” was broader for petitioners than just providing a “static number” and can go beyond that, compared to city commissions, which can set a limit by ordinance.

Palacios argued the language point Mains was making was moot, because deadlines for both Bliss and County Clerk Lindsay Oswald to certify ballot and petition language have passed, although Mains argued the request for certification was still “timely.” Palacios cited a case in Livingston County as reasoning and precedent for how a clerk’s decision can stand.

Mains also argued the point about the size requirements during the hearing. He argued guidance from the Michigan Secretary of State’s office allows for foldover sheets for petition language — and therefore larger dimensions — as long as they fold down to the 8 1/2 by 14 inch requirement. The petition itself, as demonstrated by Bliss when she was called upon by Palacios, folded out to six different 8 1/2 by 14 inch panels, which was approximately 25.5 by 28 inches.

Mains also argued the guidelines allow for foldover sheets so people who sign the petitions can be able to read what they’re signing.

“When you’re circulating petitions, you want the people who are being asked to sign the petitions to, if they want, to be able to read what they’re signing, what the proposal actually is,” Mains said. “The Secretary of State wants there to be attached to that the actual language, so this is why you can’t paper clip the language on or staple the language on, because then it would allow circulators to do a bait and switch, to tell a potential signer that the proposal is X, when it’s actually Y.”

To that, Palacios argued the Secretary of State’s guidance was specifically applicable to statewide ballot initiatives, not local ballot initiatives, and the way the petition was formatted could obscure what is being petitioned from people who sign it, and made it less likely for them to sign it.

“Cynically, you could view it as a way of getting people to sign their name to something they don’t even know what they’re signing their name to,” Palacios said. “Can you imagine being stopped in front of a grocery store and asked to sign a petition such as that, and you have to unfurl it in order to even begin to comprehend what’s in it? I think Michigan election law very sensibly provides for a legal-size sheet of paper because it meets the objectives of disclosure to those voters that are being approached to sign a petition.”

In his ruling, Stutesman sided with Bliss and Palacios on both issues. Stutesman said the petition went beyond what is allowed in an initiative, saying it can only specify the number of establishments allowed in a community.

“Whether they meant to or not, [MRTMA] says that they can bring an initiative, which shall be submitted to the electors, to establish a number of marijuana establishments allowed in a municipality,” Stutesman said. “It doesn’t say and how it’s to be enacted and how it’s to be enforced and how it’s to be operated, the initiative can only be about how many you can have or not at all. If they meant something else, whoever drafted the initiative should have put it in there, but that’s what they wrote. What I’m bound by is what they wrote.”

Stutesman added it would be “helpful” if the court of appeals could rule on related cases when it comes to the language issues.

Stutesman also ruled that the rules for local initiatives, which he ruled are separate from statewide initiatives mentioned in guidance from the Secretary of State’s office, do not specify foldover sheets in the 8 1/2 by 14 inches rule.

Because the rejection by Bliss was not based on the number of signatures, Stutesman said he would not consider that particular complaint in the lawsuit, as it was not an issue.

It is unknown whether JFMC plans to file an appeal in the case.

Robert Tomlinson can be reached at 279-7488 ext. 23 or robert@threeriversnews.com.

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