Judge rejects city's motion to dismiss Let Lansing Vote medical marijuana lawsuit

LANSING — A judge has denied the city's motion to dismiss a lawsuit from a group challenging Lansing's medical marijuana ordinance.

Ingham County Circuit Court Judge James Jamo submitted an order last week that rejected most of the city's arguments in response to a campaign called Let Lansing Vote.

The group sued the city in November 2017, alleging City Clerk Chris Swope had improperly invalidated a petition containing signatures needed to suspend the marijuana ordinance. That would give City Council a choice to repeal the ordinance or, failing that, put the matter before voters.

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In a Nov. 1 news release, the City Clerk's Office said the Let Lansing Vote petition was 26 signatures short of the number necessary to represent the required 5% of the city's registered voters. Swope said last month that the release contained a "math error" and should have stated the petition was 46 signatures short.

Regardless, Let Lansing Vote alleges the clerk improperly threw out 300 signatures, which would have been more than enough to meet the number required for a valid petition.

In its defense against the lawsuit, the city did not focus on the validity of the rejected signatures. Rather, City Attorney Jim Smiertka argued that, under the Lansing City Charter, the clerk has discretion to determine whether signatures are admissible.

In his order, Jamo questioned the strength of the city's argument regarding the clerk's discretion. The judge invited Let Lansing Vote to amend its complaint against the city to prove that the clerk acted arbitrarily or in bad faith when he threw out the 300 signatures.

Bob Baldori, an attorney for Let Lansing Vote, said the group plans to respond with additional filings to show arbitrary action on the part of the clerk.

Let Lansing Vote member Jarren Osmar said the case could set a troubling precedent if it is determined a city clerk has broad discretion to invalidate petition signatures without establishing a valid reason to do so.

"Think about what that could mean for elections," Osmar said. "If officials could just invalidate petitions arbitrarily."

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Smiertka said the city is considering whether to appeal the judge's order.

The city attorney had a closed-door meeting with City Council Monday to discuss the lawsuit.

In the meantime, Lansing's 2017 ordinance remains in effect. Lansing Mayor Andy Schor said last month he intends to enforce that ordinance so long as it is on the books.

In his order, Jamo also rejected the city's argument that Let Lansing Vote hadn't acted in a timely manner when it filed its lawsuit.

The judge did side with the city when he discounted Let Lansing Vote's constitutional claim that the clerk's action had violated the group's First Amendment right to petition.

Baldori said last month that if Let Lansing Vote succeeds in repealing Council's 2017 ordinance, the city will revert to its previous medical marijuana regulations. The council repealed a 2011 medical marijuana when it adopted its most-recent ordinance on Sept. 7, 2017. The 2011 ordinance did not include a licensing process for marijuana facilities.

The city attorney, however, has determined that, if the 2017 ordinance ordinance were to be repealed, the city will not automatically revert back to its 2011 ordinance. Rather, there would be no medical marijuana ordinance on the books unless council voted again to enact one.

“If the courts determine that the 2017 Medical Marijuana Ordinance is not in effect for whatever reason, then all medical marijuana operations under the Medical Marihuana Facilities Licensing Act in the City would have to cease operations immediately because the City would not be in compliance with Michigan law,” Swope said in a news release, referring to a provision that allows municipalities to opt into the state's licensing program by creating their own medical marijuana ordinances. “It would be unclear when patients would be able to receive medical marijuana products, and hundreds of thousands of dollars in investment in the City would be put on hold.”

Swope added that he believes the courts would find he followed the city charter and exercised his due diligence in reviewing signatures.

Let Lansing Vote argues the 2017 ordinance is too restrictive. The group has asked City Council to amend the ordinance by raising the cap on medical marijuana dispensaries, also known as provisioning centers.

The ordinance limits the number of dispensaries to 25 citywide, but does not set a cap on other types of medical marijuana establishments, like grow facilities.

"The city passed an ordinance that favors out-of-town multimillionaire carpetbaggers over local entrepreneurs," Baldori said.

It costs $5,000 to apply for a city license to operate a medical marijuana business within Lansing limits. If the clerk denies the application, the city will refund $2,500.

Medical marijuana businesses also must be licensed by the state.

Contact Sarah Lehr at (517) 377-1056 or slehr@lsj.com. Follow her on Twitter @SarahGLehr.