STATE OF MICHIGAN
DEPARTMENT OF ATTORNEY GENERAL
Honorable Jennifer M Granholm
Governor, State of Michigan
The George Romney Building
Lansing, MI 48909
Attention: Kelly G Keenan
Legal Counsel to the Governor
Dear Governor Granholm:
Re. City of Ann Arbor - proposed charter amendment by initiative petition
Section 16.2 - fines for marijuana use for third and subsequent offenses in the city are to be limited to $100 per offense with no other rehabilitative or punitive measures, and where use of marijuana is based on the recommendation of a health professional for medical treatment, fines and costs are to be waived, city officials are not to refer for prosecution such use, and such recommendation is to be an affirmative defense to prosecution.
You have referred to this office for examination the above-indicated amendment proposed by initiative petitions filed with the city clerk as set forth by the city council in its resolutiuon of July 19, 2004, as submitted by the interim city clerk Jayne S Miller with her letter, dated July 22, 2004, to you.
I have examined the proposed amendment in light of the Home Rule City Act (HRCA), 1909 PA 279, MCL 177.1 et seq, and other applicable law, and cannot recommend your approval of captioned amendment becasue the proposed amendment, as well as the current Section 16.2, are both contrary to the requirements of Section 36 of the HRCA which states that no provision of any city charter shall conflict with or contravene the provisions of the general laws of this state.
Section 16.2 in its current form, as well as the proposed amendment, are contrary to existing state law provisions that prohibit the possession and use of marijuana and impose penalties for the violation of those laws. In Addition, city officials have the authority to enforce state laws within the city that cannot be abrogated by charter provisions. See Section 34 of the HRCA and Joslin v 14th District Judge, 76 Mich App 90; 255 NW2d 782 (1977).
It should be noted, however, that Section 22 of the HRCA requires that all proposed amendments submitted by initiative petition are required to be submitted to the city's voter for their approval - even if the Governor has declined to approve the charter amendment.
Under Section 21 of the HRCA, the ballot language for proposed amendments is subject to review of this office for compliance with the requirements of that section, including impartiality and the limitation of 100 words for ballot language. I have reviewed the ballot language as adopted by the city council in its resolution of July 29, 2004, and the format of the ballot language as adopted in that resolution os approved. However, as noted above, this office declines to recommend that you approve the substance of the proposed amendment for the reasons set forth in this letter.
Very truly yours,
George M Elworth
Assistant in Charge
Freedom of Information and
Municipal Affairs Division
Tel No: (517) 373-9100
Fax No: (517) 241-3097
C: Stephen K Postema, City Attorney
Jayne S Miller, Interim City Clerk