Marijuana retailer sues to delay, potentially cancel Constantine referendum vote

CONSTANTINE — A lawsuit looking to delay and potentially cancel a May referendum vote on a recreational marijuana ordinance proposal in Constantine has been filed in St. Joseph County Circuit Court.

The lawsuit, originally filed by Constantine Products LLC, who does business as The Dude Abides in Constantine, and by a worker at the dispensary on March 23, seeks a preliminary injunction to delay a May 4 vote that would decide whether or not a recreational marijuana ordinance in Constantine, approved by the Constantine Village Council in September, will be allowed to stand.

St. Joseph County Clerk Lindsay Oswald, Constantine Township Clerk Ed Strobel and Constantine Village Clerk Cindy LaFluer were named as defendants in the lawsuit. However, the village’s attorney Monday submitted an affidavit to have LaFluer removed as a defendant, saying she did not have a role in the election process and the process approving the referendum vote for the ballot.

According to the lawsuit, Constantine Products would “suffer irreparable harm” if the referendum is approved by voters, and claimed that the referendum itself is unlawful according to state statute. Along with the preliminary injunction request, the lawsuit also seeks to have the clerks named “cease any further efforts to hold an election on May 4” regarding the referendum. The lawsuit does not seek any penalty or monetary damages.

Constantine Products lawyer David Hughes wrote in a brief supporting the preliminary injunction request that he believes the referendum effort violates the Michigan Regulation and Taxation of Marihuana Act, which authorized recreational marijuana establishments in Michigan in 2019. Hughes claimed the referendum is looking to amend the ordinance in place, noting Section 6 of the law, which says individuals “may petition to initiate an ordinance to provide for the number of marihuana establishments allowed within a municipality or to completely prohibit marihuana establishments within a municipality.”

“Despite that clear and unambiguous language, Plaintiffs believe that Defendants may try to contend that the term ‘initiate’ includes amendment of an ordinance,” Hughes wrote, adding that the term “initiate” is not defined in the law and gave a dictionary definition of the word which defined it as “to cause to begin.”

“’Beginning’ an ordinance is much different from ‘amending an ordinance,” Hughes wrote. “Hence, the proposed ordinance amendment sought by the ballot referendum at issue is not authorized.”

Hughes also wrote that the law’s language allows individuals to submit a petition to place an ordinance on the ballot before a municipality has approved one, and claimed the law doesn’t permit individuals to submit a petition to place an ordinance amendment on the ballot after the municipality has approved an ordinance.

As for their claim of “irreparable harm,” Hughes’ brief states The Dude Abides has “generated significant revenue every week,” and that if voters approved the proposal on the May 4 ballot, it would force the business to close “within ’10 days after the date of the official declaration of the vote.’” A Yes vote on the ballot item, the only item on the May 4 ballot, would get rid of the ordinance, while a No vote would keep the ordinance in place in the village.

“That would lead to huge lost revenues for Constantine Products if the Court later determined that the ballot referendum was in fact unlawful,” Hughes wrote in his brief. “There is no legal remedy for Constantine Products to be made whole if it is wrongfully forced to temporarily close due to the unlawful ordinance amendment.”

Outside of lost revenues, Hughes wrote the business would lose part of its customer base if the business was “temporarily closed” due to the vote.

In the original complaint filed March 23, Constantine Products claimed voters in the village have already “indirectly” decided the issue, citing a 306-210 vote in Constantine Township’s second precinct – which encompasses the village limits of Constantine – to approve the Michigan law back in 2018, as well as “when they elected the Village Council members who approved” the village’s recreational marijuana ordinance.

The lawsuit was discussed briefly at Monday’s Constantine Village Council meeting, where the village council approved a conflict of interest waiver so that in the event LaFluer is not removed as a defendant, both village attorney Catherine Kaufman and Constantine Township attorney Roxanne Seeber, who work for the same law firm, can work together to defend against the lawsuit. The waiver was approved 5-1, with Joe Faulkner dissenting.

Although the lawsuit was filed by one of the marijuana businesses in Constantine, other marijuana businesses in the village do not seem to be too keen about the lawsuit. Dominic Iemma of Fawn River Cultivation said during Monday’s Village Council meeting the other marijuana businesses in Constantine do not approve of the lawsuit, saying they’d like to see the vote still happen.

“We know you guys worked tirelessly to craft this ordinance for the benefit of the city, so we don’t support this lawsuit,” Iemma said. “The other cannabis businesses don’t support this either. This is The Dude Abides riding alone, just want you guys to know that. … I want to reiterate that we want it to go to a vote, like you guys had wanted to do. We think there’s been some positive impact so far, as referenced by Mark [Honeysett, Village Manager] talking about the general fund getting an increase in revenue from the marijuana revenue, before the state stuff is kicked in.”

A hearing on the lawsuit is scheduled for Friday at 9 a.m. in St. Joseph County Circuit Court. Circuit Court Judge Paul Stutesman will preside over the hearing.

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

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