Commission rules that marijuana initiative will be on March 10 ballot

By: Nick Mordowanec | C&G Newspapers | Published January 13, 2020

Shutterstock image


MACOMB COUNTY — The ruling of a Macomb County Circuit Court judge, along with a go-ahead from the Macomb County Election Commission, has resulted in a proposal to amend an ordinance about marijuana establishments being placed on Clinton Township’s March 10 election ballot.

The judge’s ruling was in response to a lawsuit originally filed Dec. 20, 2019, by attorney Anthony Penna, on behalf of plaintiffs Peter Viviano and Clinton Township First — the latter of which is composed of a group of township families, religious representatives and business owners.

They filed suit after Clinton Township Clerk Kim Meltzer approved nearly 4,000 signatures as part of a pro-marijuana ballot initiative, submitted by the advocacy group Clinton Township Yes. She forwarded the finalized petition to Macomb County Clerk/Register of Deeds Fred Miller to be placed on the March 10 ballot.

The ballot language will read as follows: “This proposed ordinance would: Authorize and limit the type and number of marihuana establishments allowed in the Township,” followed by a “yes” or “no” question for adoption.


A judge’s rulings
A group of attorneys on both sides of the matter stood before Macomb County Circuit Court Judge James Biernat Jan. 6, making their cases in regards to the validity of the petition and language included in the ordinance.

Clinton Township was represented by its usual attorney, Jack Dolan, while Meltzer — via a vote unanimously approved by the Clinton Township Board of Trustees — was represented by outside counsel, attorney Douglas Mains, of Honigman LLP.

Biernat took the nature of the discussion under advisement.

On Jan. 8, Biernat, in his opinion, in part granted the plaintiffs’ writ of mandamus. As a result, the defendants “shall take the necessary steps to remove those portions” of the ballot proposal to go beyond setting forth the number of marijuana establishments within the township. However, the ballot proposal was still allowed to be placed on the March ballot.

In terms of the portions in question in the ballot language, they included bullet points outlined in the ordinance as part of the petition language, including: setting minimum distances between establishments and schools, churches and residential areas; creating standards and procedures to permit the operation of marijuana establishments; regulating the operation of marijuana establishments; requiring an annual certification of compliance with state standards regarding safety and security; and repealing inconsistent ordinances.

“The court is satisfied that the proper remedy in this case is to require that any portion(s) of the proposal which go beyond providing the number of marihuana allowed within Clinton Township be severed, and that the remainder of the proposal be placed on the ballot.”

Penna filed an emergency motion following Biernat’s opinion. In that motion, he said the court is required to provide further clarification in regards to the actual number and type of facilities attempted to be established within township limits. He called the remaining language, sans the previous ballot points, “woefully inadequate” in terms of letting voters know what exactly they are voting for or against.

On Jan. 9, Biernat denied Penna’s emergency motion. Biernat stated the number and types of establishments were identified in the ordinance language, as part of the ballot proposal.

The judge cited two legal statutes which state: “The question shall be worded to apprise the voters of the subject matter of the proposal or issue, but need not be legally precise. The question shall be clearly written using words that have a common everyday meaning to the general public.”


A fight at the ballot box
In the petition ordinance, pursuant to the Michigan Regulation and Taxation of Marihuana Act, or MRTMA, approved by statewide voters in November 2018, it states the township would authorize “not more than 12 nor fewer than eight permits for a marihuana retailer,” including three permits each for growers, processors, transporters and safety compliance.

In his motion, Penna claimed that Clinton Township Yes wants to conceal to potential voters that the number of permits would be between 20 and 24.

“They don’t want to put that number on the ballot because that means there’s probably going to be a marijuana business on every corner of the township, and they know the voters don’t want that,” Penna said Jan. 9. “They’re purposely not putting the total number on the ballot, which will confuse the voters and that’s what they want. Instead of having a fair election where voters are informed, they’re trying to win an election by confusion.”

Steve Linder, formerly on the Michigan State Board of Canvassers and who helped lead the effort to pass the Medical Marijuana Facilities Licensing Act of 2016, brought the initial petition forward to the people.

He argued that the residents of Clinton Township twice voted to legalize marijuana — medical in 2008 and recreational in 2018 — and that is “certainly an expression of the people, that they wanted these businesses in Clinton Township.”

“We knew this deserved to be on the ballot, and while we would have liked all of it to be on the ballot, we are satisfied now that the people of Clinton Township … are now getting a chance to vote,” Linder said. “We’re troubled by the fact that a small group of people who think they run the township tried to keep it off the ballot and silence the people’s voices. Let’s now have the fight at the ballot box where it always belonged.”

Meltzer said she followed state statute, MRTMA statute and previous state statute in order to move forward, verify and finalize signatures as part of the initiative.

She said board members, in their calling for a special Jan. 9 closed-door meeting, wanted to argue with the court on issues of compliance — something she said board members don’t get to comply with because the court ruled on the matter.

“I feel vindicated certainly by the court’s decision, and I’m really grateful the court saw through the politics — which was a big part of this thing,” Meltzer said. “There was a lot of grandstanding. There were a lot of misstatements by the plaintiffs.”

Dolan and she discussed the ballot language when first presented, she added, and she said the two disagreed with one another on responsibilities related to creating or changing the petition, based on historical data, statutes or precedents.

Dolan could not be reached for comment by press time.

Meltzer said her attorney, Mains, did “a great job” of representing her interests, and that Biernat concurred with that.

“I was forced to have to hire an outside attorney to represent the township because I needed a law firm that really understood election law,” she said. “All that mattered from my perspective was that I verified every signature, and I used the same process as I’ve done with every other ballot initiative.”

Viviano called the ballot a “one-line bait and switch,” saying the number of facilities are hidden for a reason.

“Big cannabis pays big money to big lobbyists like Steve Linder and pushes that narrative,” Viviano said. “It’s a very vague ballot initiative with a very vague number. What is that: one, two or 100 (facilities)?”

Following Biernat’s emergency motion denial, Viviano communicated with members of Clinton Township First, warning of how the “big cannabis” businesspeople “want profits over the will of the people.”

“It is up to us to vote ‘no’ on March 10,” he told the group. “Schools and churches thrived in Clinton Township for years. They have a right to be able to enjoy their investments and institutions as they did before the decriminalization of cannabis.

“It is unprecedented in American history,” he continued. “An industry lobbied to decriminalize its product and now continues to press on to regulate itself. … This narrative is dangerous to all citizens, especially the ones consuming their product: cannabis.”


Election commission makes a decision
A three-person Macomb County Election Commission, composed of Macomb County Clerk/Register of Deeds Fred Miller, County Treasurer Larry Rocca and County Sheriff Anthony Wickersham, convened the morning of Jan. 10 to approve or reject the March 10 ballot.

Treasurer Paul Gieleghem spoke publicly, repeating the argument of the plaintiffs in reference to the number of permits. He called it the equivalent of approving a tax increase and not relaying to the public how much more it would cost.

“That number is not contained in the (ballot) document before you,” Gieleghem told the commission.

Scott Hughes, an attorney representing Clinton Township Yes, said the court already heard and decided the matters by way of Biernat’s two opinions. Meltzer, who was present along with Cannon, reiterated the point that the judge had already presided over the ballot matter in question.

Macomb County Corporation Counsel Frank Krycia said Judge Biernat “clearly ruled” over the matter and that the “language is consistent with the judge’s ruling.” He said the commission had a ministerial duty to approve the ballot measure as presented.

The commission unanimously approved the March 10 ballot.

After the meeting concluded, Cannon said the township board voted on four items at its closed door meeting: it authorized an appeal in the event that any other party in the case appealed; authorized Dolan to rewrite the ordinance in compliance with the court order; the board voted that if an appeal occurred, the clerk’s same legal counsel would be reused; and a split 4-3 vote disagreed on whether the aforementioned eight-to-12 number would be on the ballot.

“He doesn’t care that I followed the law,” Meltzer said, referring to Gieleghem. “He repeatedly says there’s no statutory authority for the clerk to move that language forward. Of course there is. That’s what I relied upon, and Frank Krycia made that clear today — and so did the judge prior.”

Gieleghem said language on the ballot is predicated on the ordinance, saying “there’s plenty of room to put the actual numbers on.” He said that if an appeal occurs, voters need to know the number of permits permissible and that it should be part of the ballot language.

Linder said he was “thrilled” the commission did its job and is focused on voters.

“The Circuit Court judge has already ruled that this is lawfully to be considered on the ballot,” Linder said. “An appeal would be to overturn a Circuit Court decision. The plaintiffs can do whatever they want, but they had plenty of opportunity to appeal.

“Right now, we are going to spend the next 60 days speaking to the people of Clinton Township, and we are ready to defend our ballot initiative — as we have before — against any future attempt to deny people the right to vote. We will defend it vigorously.”

Clinton Township ballot proposal amendment
“This proposed ordinance would: Authorize and limit the type and number of marihuana establishments allowed in the Township,” followed by a “yes” or “no” question for adoption.