UPDATE: Supporters of Grand Rapids' marijuana decriminalization hopeful after court hearing

GRAND RAPIDS, MI – A decision on the legality of marijuana decriminalization could come soon after a hearing today.

But even if Kent County Circuit Judge Paul Sullivan rules in favor of Grand Rapids voters who want marijuana possession and use to become a civil infraction, the city’s legal arguments will prevent decriminalization from having any real effect, claims the attorney for the group that put Proposal 2 on the November 2012 ballot.

In an odd twist, Grand Rapids and DecriminalizeGR - co-defendants in the suit filed by Kent County Prosecutor Bill Forsyth - are bickering with each other. A court hearing is set for 2 p.m. Wednesday, April 24, at the county courthouse, 180 Ottawa Ave. NW.

"The legal rulings requested by the city attorney in her motion will lay the ground work for a later challenge by the (Grand Rapids Police Department) to her guidelines, which will lead to the guidelines being thrown out, rendering Proposal 2 of no practical effect," DCGR attorney Jack Hoffman alleges in a written response to an MLive inquiry.

RELATED: Marijuana decriminalization group claims Grand Rapids has 'flip-flopped' on voters

DCGR earlier this month held a press conference to express concerns about the city’s legal strategy in a recent round of briefs filed with the court. A March 15 motion by City Attorney Catherine Mish argues that existing language in the city charter – language that, for example, states city police have “all of the common law powers and duties of constables and peace officers, including the duty to enforce state criminal laws” – must be harmonized with the voter-approved charter amendment that prohibits police from referring marijuana offenses to the county prosecutor.

A cornerstone of Forsyth's suit is that the voter-approved charter amendment cannot legally prevent a city cop from referring marijuana offenses for prosecution under state law.

Mish’s brief asks Sullivan to rule that voter-approved marijuana decriminalization is enforceable “when properly interpreted in harmony with other city charter provisions” and as the city plans to implement it under guidelines established by City Manager Greg Sundstrom: guidelines that, for example, instruct police to refer to the county prosecutor marijuana violations involving more than 2.5 ounces.

RELATED: City defense smells like Shakespeare, Kent County Prosecutor Bill Forsyth says

Mish stated earlier this month that Grand Rapids wants to distinguish between small marijuana offenses and big ones.

“We want to support the voters, although we do think there needs to be a line,” Sundstrom said last week. “The city wants clarification on where that line is to be drawn.

“We heard voters. We want to hear from the court how shall they interpret the law.”

A DCGR response filed with the court March 29 criticizes the city’s strategy, stating that it “obstructs the free and intelligent casting of the vote” to suggest that voters did not intend to override existing aspects of the Grand Rapids charter that might conflict with decriminalization.

“It is beyond dispute that a reasonable voter reading this question would conclude that, if the ballot question passed, GRPD officers would be prohibited from reporting possession, control, use or gift of marijuana to any authority other than the city attorney,” the DCGR brief states.

DCGR's brief also criticizes the city for ignoring an argument that Forsyth lacks standing to bring the suit – an argument that earlier influenced Sullivan's ruling in January against the prosecutor's requested injunction of decriminalization. Hoffman in the brief notes that "pretty clearly the city has made a midcase change of direction with regard to tactics and strategy," and in an April 8 letter to Mish he writes that "it is not normal for a defendant who wants to win a case to throw away its trump cards."

RELATED: Grand Rapids marijuana decriminalization: Watch Mayor George Heartwell explain delay

Grand Rapids officials say they want a ruling from Sullivan to guide police implementation of decriminalization. It “would be a horrible outcome” for decriminalization to proceed without any enforcement guidance from the judge, Sundstrom said.

“We definitely don’t agree with the position that (DCGR) has taken that we don’t even have the authority to bring this suit,” said Tim McMorrow, assistant county prosecutor. “We and the city are on the same page on that.”

Grand Rapids’ legal strategy also may be influenced by city police. Police Chief Kevin Belk opposed the ballot proposal that voters approved, and police officers are leery of confusion about decriminalization, said Greg Hillary, president of the Grand Rapids Police Officers Association.

“Just like the medical marijuana law, this charter opens up a litany of problems for law enforcement,” he said. “We’ve taken an oath to uphold state and federal law. Police officers recognize that they work for the people of Grand Rapids. It’s a no-win situation.

“There’s going to have be some clarity and some common sense.”

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