STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF KENT

KENT COUNTYPROSECUTING ATTORNEY,

Plaintiff,Case No. 12-11068-CZ

v.HON. PAUL J. SULLIVAN

CITY OF GRAND RAPIDS,

Defendant,

and

DECRIMINALIZEGR, anUnincorporated Voluntary Association,

Intervening Defendant._____________________________________________________________________/

WILLIAM A. FORSYTH (P23770)Kent County Prosecuting AttorneyTIMOTHY K. McMORROW (P25386)Chief Appellate AttorneyAttorneys for Plaintiff82 Ionia Ave. NWGrand Rapids, MI 49503(616) 632-6710

CATHERINE M. MISH (P52528)City Attorney for the City of Grand RapidsKRISTEN REWA (P73043)Assistant City AttorneyAttorneys for Defendant300 Monroe Ave. NW, Ste. 620Grand Rapids, MI 49503(616) 456-3181

JACK L. HOFFMAN (P26109)Kuiper Orlebeke PCAttorney for Intervening Defendant180 Monroe Ave. NW, Ste. 400Grand Rapids, MI 49503(616) 454-3700Hoffman@kuiperorlebeke.com

_____________________________________________________________________/

DEFENDANT CITY OF GRAND RAPIDS’ BRIEF OPPOSINGPLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

TABLE OF CONTENTS

I. Procedural Process and Standard of Review. ......................................................1

II. Plaintiff Has Failed to Demonstrate Irreparable Harm. .........................................2

A. Plaintiff Cannot Allege Harm to Defendant City’s Police Officers. .............3

B. Defendant City’s Police Officers are Not in Imminent Danger of Harm. .....4

C. Plaintiff Suffers No Danger of Irreparable Harm Because Defendant City Has Instructed GRPD Officers to Continue Enforcing State Law. ..............5

D. Plaintiff Suffers No Danger of Irreparable Harm Because Plaintiff Retains the Ability to Utilize Investigative Subpoenas. ...........................................6

E. Plaintiff Suffers No Danger of Irreparable Harm Because the KCSD Can Continue to Investigate and Report State Law Offenses. ..........................6

F. A Preliminary Injunction Should Not Issue Because Plaintiff Has Failed to Make a Particularized Showing of Irreparable Harm. ................................7

III. A Preliminary Injunction Will Disproportionally Harm Defendant City and Will Provide Complete Relief to Plaintiff without a Hearing on the Merits. ...................8

IV. A Preliminary Injunction Will Harm the Public Interest by Stripping Electors of their Constitutionally Bestowed Right to Exercise Home Rule. ...........................10

V. Plaintiff Cannot Demonstrate a Likelihood of Success on the Merits..................11

A. This Case Hinges on Interpretation of the City Charter Amendment.............11

B. The Electors of Home Rule Cities Have a Constitutional Right to Create Civil Infractions Concerning Marijuana by Charter, Which Right is Not Preempted by State Law..................................................................................................13

C. The City Charter Amendment is Not Expressly Preempted by MCL 117.4l or MCL 117.4i(k) Because These Statutes are Inapplicable..............................15

D. Joslin v Fourteenth District Judge ..................................................................17

E. Potential Conflicts Between Municipal and State Law Concerning Marijuana Present “a Close Question of Law.”...............................................................18

VI. Conclusion. .........................................................................................................20

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I. Procedural Process and Standard of Review.

This hearing is not the trial on the merits of the parties’ dispute. It is not a

summary disposition hearing. It is not oral argument on appeal. The only matter before

this Court is whether it should issue a preliminary injunction preventing Defendant City

of Grand Rapids (“City”) from enforcing the Grand Rapids City Charter (“City Charter”),

as amended by voter initiative. Because Plaintiff has failed to meet his burden in

establishing that he is entitled to such an extraordinary remedy, Defendant City submits

that a preliminary injunction cannot issue.

On November 30, 2012, Plaintiff filed a Complaint for Declaratory and Injunctive

Relief and a Motion for Temporary Restraining Order. Plaintiff requested that this Court

enjoin Defendant City from enforcing a citizen-initiated amendment to the City Charter

that was adopted by the registered electors of Defendant City at the November 6, 2012

general election. On December 4, 2012, over the objections of Defendant City, this

Court entered the Temporary Restraining Order requested by Plaintiff. Pursuant to

MCR 3.310, this Court scheduled a hearing to occur on January 9, 2013, to consider

whether a preliminary injunction should be issued against Defendant City.

Injunctive relief is an extraordinary remedy ordered by a court only when justice

requires, when there is no adequate remedy at law, and when there is real and

imminent danger of irreparable injury. Acer Paradise, Inc v Kalkaska Co Rd Comm’n,

262 Mich App 193; 684 NW2d 903 (2004). “The grant or denial of a preliminary

injunction is within the sound discretion of the trial court.” Davis v City of Detroit Fin

Review Team, 296 Mich App 568, 612; 821 NW2d 896 (2012).

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The party moving for entry of an injunction bears the burden of establishing that

the injunction should issue. MCR 3.310(A)(4). While a trial court need not hold a full

evidentiary hearing before issuing a preliminary injunction, a hearing must be held on

the record in open court, at which time the petitioning party must establish entitlement to

the preliminary injunction. If this can be accomplished by argument, briefs, affidavits, or

other forms of non-testimonial evidence, the trial court need not take testimony at the

hearing. Campau v McMath, 185 Mich App 724; 463 NW2d 186 (1990). The hearing

will concern only those issues necessary to determine whether preliminary relief should

be granted; it does not determine the ultimate merits of the controversy. Psych Servs of

Bloomfield, Inc v BCBSM, 144 Mich App 182; 375 NW2d 382 (1985).

The Michigan Supreme Court has established a four-factor analysis to be used in

determining whether a preliminary injunction should issue: (1) likelihood that the party

seeking the injunction will prevail on the merits; (2) danger that the party seeking the

injunction will suffer irreparable injury if the injunction is not issued; (3) risk that the party

seeking the injunction would be harmed more by the absence of an injunction than the

opposing party would be by the granting of the relief; and (4) harm to the public interest

if the injunction is issued. MSEA v Dept of Mental Health, 421 Mich 152, 157-158; 365

NW2d 93 (1984); Alliance for Mentally Ill v Dept of Comm Health, 231 Mich App 647;

588 NW2d 133 (1998). However, the circuit court must also consider whether the

injunction will preserve the status quo and whether it will grant one of the parties final

relief before the hearing on the merits. Campau, supra. An order granting injunctive

relief must: (1) set forth the reasons for its issuance, (2) be specific in its terms, and (3)

describe in detail the acts restrained. MCR 3.310(C).

II. Plaintiff Has Failed to Demonstrate Irreparable Harm.

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“A particularized showing of irreparable harm was, and still is, as our law is

understood, an indispensable requirement to obtain a preliminary injunction.” MCSEU v

Civil Serv Comm, 465 Mich 212, 225-226; 634 NW2d 692 (2001) (vacating grant of

preliminary injunction where irreparable harm was not shown). A preliminary injunction

may be granted under MCR 3.310(A) only when the plaintiff can make a particularized

showing of irreparable harm that will occur before the merits of the claim can be

considered. Lash v City of Traverse City, 479 Mich 180, 196; 735 NW2d 628 (2007)

(citation omitted). Irreparable harm means “a noncompensable injury for which there is

no legal measurement of damages or for which damages cannot be determined with a

sufficient degree of certainty.” Thermatool Corp v Borzym, 227 Mich App 366, 377; 575

NW2d 334 (1998) (circuit court’s granting of preliminary injunction found to be an abuse

of discretion). An injunction will not lie upon the mere apprehension of future injury or

where the threatened injury is speculative or conjectural. Dunlap v City of Southfield, 54

Mich App 398, 403; 221 NW2d 237 (1974). When dealing with an action challenging

the validity of a law, “[t]he irreparable injury referred to must result from the acts of the

public officials in enforcing the allegedly invalid law.” Jeffery v Clinton Township, 195

Mich App 260, 264; 489 NW2d 211 (1992) (circuit court abused its discretion issuing

injunction prohibiting township from enforcing local ordinance).

A. Plaintiff Cannot Allege Harm to Defendant City’s Police Officers.

Plaintiff’s primary argument regarding irreparable harm concerns alleged harm to

Defendant City’s police officers, the sworn officers of the Grand Rapids Police

Department (“GRPD”).

As an initial matter, Plaintiff lacks standing to allege harm to GRPD officers

because he does not have a substantial interest which is distinct from the general

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public. See Lansing Sch Ed Ass'n v Lansing Bd of Ed, 487 Mich 349, 374-378; 792

NW2d 686 (2010). Neither Plaintiff, nor Kent County, nor the State of Michigan employs

the sworn officers of the GRPD. Furthermore, Plaintiff is not the legal advisor or legal

representative for the GRPD. Only the Grand Rapids City Attorney serves as the

attorney, legal advisor, and legal representative for the GRPD,1 and only the Grand

Rapids City Manager holds the legal power to direct the Grand Rapids Police Chief and

the sworn officers of the GRPD.2

A plaintiff seeking a preliminary injunction must prove that the party seeking the

injunction will suffer irreparable injury if the injunction is not issued. MSEA, supra.

Because Plaintiff lacks standing to allege harm to Defendant City’s police officers,

Plaintiff’s arguments concerning police officers cannot serve to establish irreparable

harm sufficient to justify entry of preliminary injunction against Defendant City.

Moreover, criminal prosecutions cannot be restrained by injunctions. Jeffery,

supra; accord MCR 3.310(E) (prohibiting injunction in one action to stay proceedings in

another). Therefore, it is improper for Plaintiff to request that this Court stay municipal

prosecution actions, particularly ones which have not yet been filed.

B. Defendant City’s Police Officers are Not in Imminent Danger of Harm.

Even if Plaintiff had standing to allege harm to Defendant City’s police officers,

Plaintiff’s argument must fail because GRPD officers are in no danger of harm.

Plaintiff points to subparagraphs (d) and (e) of the City Charter amendment,

which attempt to prohibit GRPD officers from reporting matters involving marijuana to

any authority except the City Attorney. Plaintiff argues that a GRPD officer who reports

1 See Affidavit of Grand Rapids City Attorney Catherine M. Mish, attached as Exhibit A.2 See Affidavit of Grand Rapids City Manager Gregory A. Sundstrom, attached as Exhibit B.

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a state law violation concerning marijuana to Plaintiff would be violating subparagraphs

(d) and (e) of the City Charter amendment and “would be committing a misdemeanor

under the City Charter,” referring to Title XVIII, Section 5 (Compiler’s Paragraph 275),

which makes a violation of “any of the terms of this Charter” a misdemeanor.3

Plaintiff’s argument is premised upon an inaccurate assumption that the City

Attorney will prosecute GRPD officers for reporting state law offenses to Plaintiff. No

such risk exists. Only the City Attorney can prosecute violations of the City Charter, and

the City Attorney has no intention of prosecuting GRPD officers as alleged by Plaintiff.4

Contrary to Plaintiff’s argument, GRPD officers are in no danger of irreparable harm—

not now, and not in the time between the preliminary injunction hearing and the trial on

the merits. Indeed, Plaintiff cannot prove a reasonable likelihood that any GRPD officer

would be exposed to, much less convicted of, criminal liability for enforcing state law.

C. Plaintiff Suffers No Danger of Irreparable Harm Because Defendant City Has Instructed GRPD Officers to Continue Enforcing State Law.

Plaintiff next argues that the reporting prohibition in subparagraphs (d) and (e) of

the City Charter amendment will prevent him from discovering violations of state

marijuana laws. He asserts that if the City Charter amendment is enforced as written, “it

will interfere with Plaintiff’s Constitutional duty to prosecute violations of state law where

in Plaintiff’s discretion such violations should be prosecuted.”5

Plaintiff’s argument is without merit because Defendant City has directed its

police officers to continue enforcing most state laws concerning marijuana. The City

Manager’s Affidavit outlines the orders the City Manager has developed for the GRPD,

3 Plaintiff’s Brief, p 6.4 See Exhibit A.5 Plaintiff’s Brief, p 9.

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in order to begin implementing and enforcing the City Charter amendment.6 As the

Affidavit makes clear, GRPD officers have been ordered to continue reporting all major

state law offenses concerning marijuana to Plaintiff for potential prosecution under state

law. Therefore, with regard to the more serious state law offenses concerning

marijuana (including manufacture of marijuana, maintaining a drug house, delivery or

possession with intent to deliver marijuana), Plaintiff will remain able to discover

violations of state law concerning marijuana. Plaintiff suffers no harm, let alone

irreparable harm.

D. Plaintiff Suffers No Danger of Irreparable Harm Because Plaintiff Retains the Ability to Utilize Investigative Subpoenas.

Additionally, the City Charter amendment does not prevent Plaintiff from utilizing

his statutory authority to issue investigative subpoenas. See MCL 767A.2. Prosecutors

may use this power on city police officers to discover information the officers learned in

the course of their duties as sworn police officers. See, e.g., Truel v City of Dearborn,

291 Mich App 125, 134; 804 NW2d 744 (2010) (discussing discoverability of testimony

given by police officers in response to a prosecutor’s investigative subpoena).

Moreover, a prosecutor can request immunity for the person subject to the subpoena, if

doing so is in the interests of justice. MCL 767A.2(4); MCL 767.7. Thus, if Plaintiff has

reasonable suspicion to believe that a GRPD officer may have information relevant to

the commission of a marijuana-related felony, Plaintiff can obtain an investigative

subpoena for the relevant information and seek immunity for the police officer witness.

E. Plaintiff Suffers No Danger of Irreparable Harm Because the KCSD Can Continue to Investigate and Report State Law Offenses.

6 See Exhibit B, ¶9.i

If Plaintiff is not content with receiving GRPD reports concerning the more

serious marijuana offenses, Plaintiff’s remedy is to work with the law enforcement

agency which Kent County does control – the Kent County Sheriff’s Department

(“KCSD”). The County Sheriff’s powers extend across the county, regardless of where

municipal boundaries lie. MCL 45.407; see also OAG, 1975-1976, No. 4966 (April 6,

1976). The City Charter amendment does not prevent (nor could it) the KCSD from

enforcing state marijuana laws within the geographical boundaries of Defendant City,

and reporting state law violations to Plaintiff.

The electorate of Defendant City has decided to curtail the expenditure of City

tax dollars on investigating and enforcing state marijuana laws. Kent County does not

contribute funding to the operations of the GRPD. Plaintiff cannot dictate how

Defendant City spends city tax dollars or prioritizes City resources. Plaintiff suffers no

irreparable harm because he continues to have a readily available avenue for law

enforcement personnel to enforce state laws regarding marijuana – the KCSD.

F. A Preliminary Injunction Should Not Issue Because Plaintiff Has Failed to Make a Particularized Showing of Irreparable Harm.

Will the City Charter amendment affect how Plaintiff enforces state marijuana

laws? Yes, that is a very likely possibility. However, every managerial change to how

the GRPD operates, in the abstract, affects Plaintiff’s ability to enforce state law. For

example, in Pontiac Fire Fighters Union Local 376 v City of Pontiac, 482 Mich 1, 11; 753

NW2d 595 (2008), the trial court enjoined lay-offs of firefighters while a labor dispute

was in litigation, reasoning that safety would be impacted. The Michigan Supreme

Court vacated the injunction because the alleged irreparable harm was a “mere

apprehension of reduced safety.” Id at 11. Because firefighting is inherently dangerous,

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the Court noted, any managerial change could affect safety. Without a particularized

safety hazard, the Court reasoned, “the extraordinary nature of a preliminary injunction

would be trivialized.” Id. Likewise, Plaintiff’s claims of irreparable harm in the present

case are nothing more than generalized speculative assertions of future injury. Id; See

also Dunlap, supra. The City Charter amendment is a voter-initiated prioritization of City

resources. Any effects of the amendment to Plaintiff’s duties are no different than those

effects associated with any budget-related constraint, such as reducing the GRPD’s

funding, ordering lay-offs of sworn law enforcement personnel, or refraining from hiring

new police officers as attrition occurs in the ranks through retirements. These types of

decisions are unfortunately all too familiar of late.

Moreover, Plaintiff’s “nonspecific allegations of irreparable harm [are] refuted by

more specific, sworn statements” found in the Affidavits of the City Manager and the

City Attorney. See Pontiac Fire Fighters, supra at 12. City Manager Sundstrom, as the

Director of Public Safety, spells out in his affidavit the policy by which the GRPD are to

enforce the City Charter amendment, including when certain marijuana-related incidents

are to be reported to Plaintiff. The City Attorney’s affidavit makes clear that GRPD

officers face no immediate threat of prosecution under the City Charter for reporting

state law violations to Plaintiff. As an evidentiary matter, Plaintiff has failed to meet his

burden of proof in establishing that he will suffer irreparable injury.

III. A Preliminary Injunction Will Disproportionally Harm Defendant City and Will Provide Complete Relief to Plaintiff without a Hearing on the Merits.

The Plaintiff’s speculative harm does not outweigh the real, irreparable harm

Defendants will suffer if the preliminary injunction is allowed to issue. Simply put,

Defendant City cannot adequately prepare a defense in this case if the City has no

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means of knowing how the City Charter amendment will affect law enforcement

activities in the City. For example, in City of Novi v Dept of Envtl Quality, No. 296405,

2010 WL 4026132 (Mich Ct App October 14, 2010), Novi sought to stay administrative

proceedings on water quality permits while the city challenged the applicable

regulations in court. The Court of Appeals determined that the trial court abused its

discretion by enjoining the proceedings because the plaintiff failed to meet its burden

under the four-part test. The Court further opined that the injunction could have

hindered the final adjudication on the merits of the case:

“The administrative proceedings may in fact be a necessary prerequisite to a determination whether the regulations meet constitutional and statutory requirements. Prior to the completion of administrative proceedings, a court may not be able to determine the true scope of the regulations at issue.” [Id.]

The same is true in the present case. A preliminary injunction will impede this Court’s

ability to fully analyze whether the City Charter amendment, as implemented, truly

impedes the Plaintiff’s duties or violates state law.

Equally worrisome is the fact that a preliminary injunction will provide Plaintiff the

ultimate relief he seeks: preventing Defendant City from implementing a voter initiative

on a matter of public concern. A preliminary injunction is improper if it would have the

effect of providing the final relief requested prior to an adjudication on the merits. See

Bratton v DAIIE, 120 Mich App 73; 327 NW2d 396 (1982) (vacating preliminary

injunction requiring insurer to pay benefits to plaintiff). If Defendant City is allowed to

implement the City Charter amendment, the GRPD will be able to compile statistics on

how implementation of the City Charter amendment affects law enforcement activities

concerning marijuana. Defendant City will also be able to use discovery procedures to

gather information and data from Plaintiff on how the City Charter amendment affects

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his marijuana-related case load. Only then would this Court be able to fully analyze the

substantive merits of Plaintiff’s claims with the benefit of statistical evidence.

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IV. A Preliminary Injunction Will Harm the Public Interest by Stripping Electors of Their Constitutionally Bestowed Right to Exercise Home Rule.

Where an injunction “‘will adversely affect a public interest for whose impairment,

even temporarily, an injunction bond cannot compensate, the court may in the public

interest withhold relief until a final determination of the rights of the parties, though the

postponement may be burdensome to the plaintiff.” Weinberger v Romero-Barcelo, 456

US 305, 312-13; 102 S Ct 1798 (1982). Defendant City contends that a preliminary

injunction will harm the public interest by depriving voters of their right to exercise the

power of home rule.

“Elections are the basis for democratic government and are the means by which

the people select their governmental representative and decide public issues.” ICLE,

Michigan Municipal Law, §14.1 (2012). In the present case, a group of interested

citizens joined together and drafted a petition for the redress of their grievances.  This

citizen group circulated its petitions and obtained signatures from more than 5% of the

registered voters of Defendant City.  The question drafted by the citizen group was

presented to the registered electors of Defendant City voting in the November 6, 2012

general election.  A total of 44,647 of Defendant City’s voters cast their votes in favor of

adopting the City Charter amendment.  If this Court enters a preliminary injunction

barring Defendant City from implementing the City Charter amendment, the Court will

be stripping 44,647 voters of their constitutional rights to amend the powers of their local

government through the initiatory petition process.  See Mich. Const of 1963, Art. VII,

Sec. 22. Likewise, a preliminary injunction would undermine voter confidence in the

processes by which citizens exercise the fundamental democratic right to vote.

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Defendant City respectfully requests that this Court not deprive the voters of the

second-largest Home Rule City in the State of Michigan of their ability to actively

engage in home-rule governance.

V. Plaintiff Cannot Demonstrate a Likelihood of Success on the Merits .

When deciding a motion for preliminary injunction, a circuit court must also make

an initial determination of the merits of the substantive legal issue. Without a likelihood

of success, a court should deny a request for a preliminary injunction. Pharm Research

& Mfrs v Dept of Comm Health, 254 Mich App 397; 657 NW2d 162 (2002) (vacating

preliminary injunction where plaintiff was found unlikely to prevail on the merits).

The essential question presented in this lawsuit is whether the voters of a Home

Rule City may, by initiatory petition, amend a city charter to create an enforceable civil

infraction offense concerning marijuana. To answer this question, this court must

consider several complicated legal issues. What does the Charter Amendment mean?

How is it affected by those provisions of Home Rule City Act, MCL 117.1 et seq.

(“HRCA”), which restrict city charters and ordinances? What is the interplay between

those HRCA provisions, on the one hand, and the voters’ constitutional right to amend

the Charter of a Home Rule City, on the other? Moreover, Plaintiff, acting as an

executive arm of the State, is attempting to persuade the judicial branch to interfere with

the constitutional right of electors to act in a purely legislative capacity. Significant

questions exist as to whether this case is even justiciable under the separation of

powers doctrine. That Plaintiff will prevail on the merits is anything but clear.

A. This Case Hinges on Interpretation of the City Charter Amendment.

Because the City Charter amendment is ambiguous, it requires judicial

interpretation. The City Charter must be construed “as a whole to harmonize its

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provisions and carry out the purpose of the Legislature.” Macomb Co Prosecutor v

Murphy, 464 Mich 149, 159-60; 627 NW2d 247 (2001). Thus, the amendment must

harmonize with other provisions, such as Title XVIII, Section 6 (Compiler’s Paragraph

276), which states:

All prohibited practices herein shall be construed to be cumulative to the laws of the state, and shall in no case be held to supersede or displace any of the requirements of the state laws.

The amendment must also harmonize with those City Charter provisions which define

the duties of GRPD officers:

(g). . . . all City police officers and detectives shall have and possess the power and authority usually conferred upon metropolitan police. . . . Whenever any crime shall have been committed in said City and the person or persons accused or suspected of being guilty of a felony shall flee from justice, the said officers shall have power, and it shall be their duty to pursue and arrest such accused or suspected person or persons anywhere within the State of Michigan, and return them to the proper court having jurisdiction of the offense, for examination or trial.

(h). The City Manager, Director of Public Safety and all officers under him, including police detectives, police constables and special policemen of the City, in addition to the powers, duties and authority possessed by them at common law and the Laws of this State in matters of a criminal nature, shall have the power to arrest without process all persons who in the presence of the arresting officer shall be engaged in the violation of any law or ordinance, and such persons may be detained in custody until complaint can be made and process issued for their arrest and trial and it shall be the duty of such officer to make such complaint and procure such process in the proper court as speedily as possible after such arrest.

Title VI, Section 10 (Compiler’s Paragraph 96) (emphasis added). The City Charter

amendment recently passed by the voters did not repeal these other City Charter

provisions. It is a well-known principle of construction that the Legislature—here, the

electorate—is presumed to be aware of, and consider the effect on, existing law when

enacting new law. Walen v Dept of Corr, 443 Mich 240, 248; 505 NW2d 519 (1993).

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Because Plaintiff has not delved into this complicated task of harmonizing the various

City Charter provisions which come into play, the record does not demonstrate that he

is likely to succeed on the merits. Pharm Research & Mfrs, supra.

B. The Electors of Home Rule Cities Have a Constitutional Right to Create Civil Infractions Concerning Marijuana by Charter, Which Right is Not Preempted by State Law.

Plaintiff argues that the voters cannot accomplish by charter amendment what

the city’s legislative body cannot create by ordinance. Plaintiff cites no constitutional or

statutory provision and no case law in support of this proposition. Plaintiff simply

declares that “to hold otherwise would be to permit the City of Grand Rapids to perform

an end run around state law, and create a civil infraction for an act where a civil

infraction is clearly forbidden.”7

Plaintiff has it backwards. Defendant City was created by the electors and

derives its power from them; not the other way around. It was not the municipality, but

its shareholders who made this change in the fundamental corporate by-laws. The

electorate derives its power to amend the City Charter from the Michigan Constitution of

1963, which states that “[u]nder general laws the electors of each city and village shall

have the power and authority to frame, adopt and amend its charter, and to amend an

existing charter of the city or village heretofore granted or enacted by the legislature for

the government of the city or village.” Const. 1963, Art. 7, § 22.

There is no similar provision in the Michigan Constitution of 1963 expressly

giving the electors the right to amend or pass ordinances by initiative. In fact, there is

no statutory right to create or repeal an ordinance by plebiscite, either. The HRCA

7 Plaintiff also cites TerBeek v City of Wyoming, 297 Mich App 446; -- NW2d -- (2012) for the principle that “a city cannot enact an ordinance that conflicts with state law.” TerBeek is inapplicable because Defendant City did not enact an ordinance concerning marijuana.

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permits a city charter to provide for “the initiative and referendum on all matters within

the scope of the powers of that city and the recall of city officials.” MCL 117.4i(g). The

electors only have this right if they give it to themselves in their city charter. 8 Plaintiff’s

failure to respect the distinction between a city charter amendment and ordinance is as

erroneous as confusing a constitutional amendment with a statute. Indeed, the City

Charter is the constitution of Defendant City.

Moreover, Plaintiff has not demonstrated that he is likely to succeed on a

preemption claim. Except where limited by Constitution or statute, the police power of a

home rule city is of the same general scope and nature as that of the State. Belle Isle

Grill Corp v City of Detroit, 256 Mich App 463; 666 NW2d 271 (2003).9 Plaintiff seems

to admit that the State has not occupied the field, and that no field preemption exists: “A

city is free to create a misdemeanor ordinance violation for an act otherwise covered

under state law. It may, for example, make punishment for the possession of marijuana

a criminal ordinance violation punishable by up to 90 days, or 60 days, or 30 days, or no

jail but a fine only.”10 Unless legislative provisions are contradictory in the sense that

they cannot coexist, they are not deemed inconsistent because of mere lack of

uniformity in detail. Rental Prop Owners Ass'n of Kent Co v City of Grand Rapids, 455

Mich 246, 262; 566 NW2d 514 (1997). Plaintiff has failed to demonstrate that the City

Charter amendment and state marijuana laws cannot co-exist.

8 Which the Grand Rapids electorate has done. See City Charter, Title IV, Sections 1-5 (Compiler’s paragraphs 35-39). 9 See also, Intervening Defendant DeCriminalizeGR’s Brief, pp 10-11.10 Plaintiff’s Brief, p 4.

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C. The City Charter Amendment is Not Expressly Preempted by MCL 117.4 l or MCL 117.4i(k) Because These Statutes are Inapplicable .

Plaintiff argues that the City Charter amendment is directly preempted by the

language at MCL 117.4l(3)(a) and (j). The HRCA is a fairly lengthy and complex statute

which addresses: (1) what a city charter must contain (MCL 117.3); (2) what a city

charter may contain (MCL 117.4a - 117.4k, 117.4n, 117.4o, and 117.4q); (3) what a city

may or may not do by ordinance (MCL 117.4l and 117.4m); (4) what a city does not

have the power to do at all (MCL 117.5, 117.5a, 117.5b); and (5) how citizens may

amend a city charter by initiatory petition (MCL 117.21 - 117.25a). Plaintiff

misunderstands the HRCA subsection regarding ordinances in MCL 117.4 l and

misapplies that provision to charters.

MCL 114.7l(3)(a) and (j) clearly state that an ordinance may not create a

municipal civil infraction concerning marijuana. This section is inapplicable to this case

because it addresses only a city ordinance, not a city charter. The earlier subsections

within MCL 114.7l further illustrate the point. Subsections (1) and (2) discuss the power

of a city’s legislative body to adopt specific types of ordinances, “whether or not

authorized by the city charter.” MCL 117.4l itself therefore draws a distinction between

city charters and city ordinances. Plaintiff is mistaken in reading MCL 117.4l(3) to

constrain what a city charter may or may not do.

Within the framework of the HRCA, the Legislature clearly knew how to constrain

a city charter. If the Legislature meant to constrain both a city charter and a city

ordinance it would have used the word “charter” in MCL 117.4 l(3). Alternatively, the

Legislature could have placed the prohibition in MCL 117.5, 117.5a, or 117.5b, which

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specifically describe what a city does not have the power to do. Because Defendant City

did not enact an ordinance concerning marijuana, there is no violation of 117.4l.11

Equally mistaken is Plaintiff’s assertion that the City Charter amendment violates

MCL 117.4i(k),12 which prevents a charter from providing punishment of ordinances in

violation of MCL 117.4l. Again, Plaintiff conflates “ordinance” with “charter” where the

HRCA clearly distinguishes these terms. Plaintiff has failed to show that there is any

provision in the City Charter which proscribes punishment for an ordinance in violation

of MCL 117.4l.

In an attempt to make this case fit into the confines of MCL 117.4i(k), Plaintiff

argues that a city charter provision cannot stand on its own because it requires an

implementing ordinance enacted by the city’s legislative body.13 In reality, city charter

provisions can be, and often are, self-executing. MCL 117.31, for example, provides

that: “[a]ll fines collected or received by the district court for or on account of violations

of the charter or ordinances of the city, shall be distributed by the district court pursuant

to…section 600.8379 of the Michigan Compiled Laws.”  MCL 600.8379(c) requires

district courts of the third class (e.g., the 61st District Court) pay “to the political

subdivision whose law was violated” all fines and costs assessed in a penal or civil

infraction action. Therefore, state law expressly contemplates that a city charter

provision can create a civil infraction which can be prosecuted in the local district court.

11 See the Affidavit of City Manager (Exhibit B) and the Affidavit of Grand Rapids City Clerk Lauri S. Parks, attached as Exhibit C.12 Referenced in Plaintiff’s Brief as MCL 117.4k.13 Plaintiff also claims, paradoxically, that GRPD officers will be prosecuted for violating City Charter Title XVIII, Section 5 (Compiler’s Paragraph 275) if they report violations of state law to him. There is no implementing ordinance for that City Charter provision, either. See Exhibit C.

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Upon information and belief, the Ann Arbor Police Department writes civil

infraction citations for marijuana possession directly under that city’s nearly identical

charter provision as the city does not have any implementing ordinance on the books.14

The fact that Ann Arbor has written civil infractions directly under its city charter for the

past 40 years, without an implementing ordinance, demonstrates that a city charter

provision can be self-executing.

D. Joslin v Fourteenth District Judge .

Plaintiff next argues that the City Charter amendment is void and unenforceable

because “the Grand Rapids Charter Amendment prohibits police officers from doing

what state law permits them to do. To that extent, it cannot stand.”15 Plaintiff relies

exclusively on Joslin v Fourteenth District Judge, 76 Mich App 90; 255 NW2d 782

(1977) to support this argument.

In Joslin, the Court of Appeals addressed ordinance language almost identical to

that found in subparagraph (d) of the Grand Rapids City Charter amendment. The

Court decided that this language contravened state law, specifically MCL 764.15. Id

at 96. However, the Joslin Court’s reliance on MCL 764.15 is misplaced, as the statute

only speaks to a local police officer’s arrest powers.16 The statute authorizes local

police officers to arrest individuals for state law violations, but it does not require them to

do so. Moreover, Joslin is distinguishable because it involved an ordinance, not a

14 Plaintiff incorrectly claims that the comparable Ann Arbor City Charter provision is “grandfathered” from the application of current state laws because it was enacted in 1974. This argument fails to account for amendments made to that provision by voters in 1990 and again in 2004 (increasing the fines). If this court ultimately rules that the Grand Rapids City Charter provision is unenforceable due to a conflict with state law, this Court will be striking down voter-initiated city charter provisions for both cities.15 Plaintiff’s Brief, p 8.16 Although the statute has since been amended, the statute continues to describe a local police officer’s arrest powers.

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charter provision. Joslin did not hold that a City cannot establish a municipal civil

infraction offense concerning marijuana.17 In fact, Joslin stands for nothing more than

this: a defendant cannot assert as an affirmative defense to a state marijuana law

charge that the police officer improperly reported the incident to the prosecutor. Id at 96.

Everything else in Joslin is dicta. Further, because the Court of Appeals noted that the

case “represents a woeful example of an adversary proceeding,” any non-binding

language in this case is of little persuasive value. Id at 95, 98.

Even if this Court finds Joslin controlling, it would only impact subparagraph (d)

of the City Charter amendment. The amendment contains multiple subparagraphs.

While there is no specific severability clause, language in subparagraph (f)—“or the

relevant portions thereof”—indicates that the sections are intended to be severable.

Jott, Inc v Charter Twp of Clinton, 224 Mich App 513, 547; 569 NW2d 841 (1997)

(quoting Pletz v Secretary of State, 125 Mich App 335, 375; 336 NW2d 789 (1983)

(discussing doctrine of severability). This Court should consider subparagraph (d)’s ban

on police reporting separately from the other provisions of the City Charter amendment.

E. Potential Conflicts Between Municipal and State Law Concerning Marijuana Present “a Close Question of Law.”

Plaintiff’s claim that he will likely succeed on the merits is further marred by a

recent case. In Coalition for a Safer Detroit v Detroit City Clerk, 295 Mich App 362; 820

NW2d 208, lv den 491 Mich 932 (2012), the Court of Appeals compelled the city clerk to

place on the November 2012 ballot an initiative seeking to amend Detroit ordinances on

17 MCL 117.4l was enacted after issuance of Joslin, implying that Home Rule Cities originally were given those powers now expressly denied, whether by Charter or ordinance. However, the passage of MCL 117.4l only deprived Home Rule Cities the power to pass ordinances creating municipal civil infraction offenses concerning marijuana. The power to address this topic in a charter provision was unaffected by MCL 117.4l.

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use and possession of marijuana. The city clerk initially refused, arguing that the

proposal violated state law, rendering the initiative symbolic. Id at 366. The Court of

Appeals found that the clerk had a clear legal duty to place the initiative on the ballot

because the petition satisfied statutory and charter requirements. Id at 370-371.

The Court refused to analyze the legal merits of the ballot initiative prior to the

election because the initiative was not one of those “very rare case[s] in which there is a

clear and unmistakable conflict between an initiative and state law, the Constitution, or

the city charter itself.” Id at 372. The Court went further to state that preemption is a

“close question of law,” Id at 374, stating:

“that the question of a potential conflict between city and state law is complex . . . . We do note, however, that under MCL 764.15 it remains the case that local police officers may arrest a person for the commission of a state felony or misdemeanor and, under the Detroit City Charter, it is the obligation of the Detroit Police Department to “enforce laws of the state and the nation” as well as “the ordinances of the city.” 1997 Detroit Charter, art 7, § 7–1101. Thus, the proposal, on its face, does not appear to change the fact that all persons under Michigan's jurisdiction remain subject to the drug laws contained in the Public Health Code that criminalize the use and possession of marijuana. MCL 333.7403(2)(d) and MCL 333.7404(2)(d).

Id at 372-73 (emphasis in original, footnote omitted). These are more than mere

statements considering that there was a dissenting judge, who would have held that the

initiative violated state law. Id at 374-380 (Markey, J., dissenting).

The case that is presented to this Court is even more complex. The Detroit City

Charter expressly states the duties of its police officers. The Grand Rapids City Charter,

by contrast, incorporates by reference the common law duties of “metropolitan police.”

Neither Plaintiff, nor Joslin, discusses the duties of the GRPD as bestowed by charter or

common law. The record in this case falls far short of showing that Plaintiff will likely

succeed on the merits.

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VI. Conclusion.

Defendant City respectfully submits that: (1) plaintiff has failed to demonstrate a

likelihood of success on the merits; (2) Plaintiff has failed to demonstrate that he will

suffer particularized, irreparable harm if Defendant City is allowed to issue municipal

civil infraction tickets before final adjudication on the merits; (3) a preliminary injunction

would harm the public interest by thwarting the will of the majority of voters and

undermining voter confidence; and (4) an injunction would cause greater harm to

Defendant City, by preventing adequate preparation of a defense, than would result to

Plaintiff if an injunction does not issue. Defendant City therefore prays that this

Honorable Court deny Plaintiff’s request for preliminary injunction; allow Defendant City

to begin writing municipal civil infraction tickets under the Charter Amendment; and set

this case for a scheduling conference.

Respectfully submitted,

CITY OF GRAND RAPIDS, a Michiganmunicipal corporation

Dated: December 31, 2012 By: CATHERINE M. MISH (P52528)City Attorney for the City of Grand RapidsAttorney for Defendant

Dated: December 31, 2012 By: KRISTEN REWA (P73043)Assistant City AttorneyAttorney for Defendant

Business Address:300 Monroe Ave. NW, Ste. 620Grand Rapids, MI 49503(616) 456-3181(616) 456-4569 FAX

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