Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, October 7, 2015

Reefer madness or state law sanity?: Ohio AG sues Toledo after passage of local marijuana decriminalization measure

As noted in this prior post, last month Toledo voters overwhelmingly passed a measure to decriminalize marijuana in the city by reducing penalties for the drug to the minimum allowed by state law and repealing penalties for possessing small amounts of marijuana.   But now, as reported in this new Toledo Blade article, headlined "Ohio sues city over marijuana ordinance: Attorney general sees state conflict," Ohio's top state lawyer believes it is necessary to sue the city to block some aspects of what the local voters' approved. Here are the basics:

The Ohio Attorney General’s Office filed suit Tuesday against the city of Toledo, asking a judge to declare invalid several key sections of the city’s new “Sensible Marihuana Ordinance.”

The legal challenge in Lucas County Common Pleas Court claims several portions of the voter-approved Toledo law, including restricting fines and incarceration for marijuana possession, contradict Ohio law. Lucas County Prosecutor Julia Bates and Sheriff John Tharp joined Attorney General Mike DeWine in the lawsuit.

Voters last month approved a measure reducing penalties in Toledo Municipal Code for all marijuana-related crimes to no fines or jail time. They also supported stopping city police from reporting the convictions to state authorities.

Although it is unfortunate to oppose the will of a majority of voters, significant portions of this law are “clearly unconstitutional,” Mr. DeWine said. He announced the legal action during a news conference at One Government Center.

Mr. DeWine discussed a seizure last month by the Ohio Highway Patrol in Lucas County that found 226 pounds of marijuana. If the motorists had been charged through this Toledo ordinance, neither would be incarcerated or fined. “Such a scenario is completely unacceptable, and it violates the Ohio Constitution,” Mr. DeWine said.

Mr. DeWine said this lawsuit does not seek to dismiss the entire measure, but the portions that contradict state law. Ohio’s constitution allows cities to adopt and enforce local regulations if they do not conflict with the state, according to the complaint. Police are empowered to arrest suspects in their municipality found breaking state law, the lawsuit states. “Municipal drug ordinances are police power regulations, and drug statutes duly enacted by the state of Ohio are laws of general application throughout the state,” the suit states.

The lawsuit specifically names a “gag rule” in the ordinance that says city police and the law director may not report for prosecution under state law any marijuana or hashish offense to an authority besides the law director. The prosecution would be left pursuing a misdemeanor case in Toledo Municipal Court under a law claiming to abolish incarceration, fines, and probation. “The city of Toledo is not empowered to establish or amend Ohio felony law. And municipal authorities are not authorized to prosecute felony offenses under state law,” according to the suit.

When asked during the news conference why Mr. DeWine’s office did not intervene prior to the vote, he said that he did not believe “anyone was aware of everything that was in there.”

City officials were not surprised by the lawsuit. Adam Loukx, Toledo law director, said there were concerns about its potential contradictions with state law, but he will defend the voters’ choice. “It’s only appropriate a court would be the one to decide that,” Mr. Loukx said. Mr. Loukx said he recently obtained a copy of the lawsuit and could not yet say what would remain of the law if Mr. Dewine is successful.

Sean Nestor, campaign manager for the Sensible Marihuana initiative that promoted the ballot measure, said the group expected a legal challenge. When they were crafting the ordinance, organizers studied other successful decriminalization measures in Ohio and Michigan, he said. “We used laws that had survived court challenges,” he said.

Mr. Nestor said his group is ready to work with city officials to defend the measure in court. While the case remains pending, Mr. Loukx said a Toledo police officer who finds a resident possessing marijuana could cite the suspect under Ohio Revised Code. The officer also might be permitted to charge under Toledo Municipal Code as well, Mr. Loukx said. “At this point, a lot of it will be in the discretion of the officer,” he said.

Because I am not an expert on local government law, I am going to need to read the full lawsuit filed by Attorney General DeWine [which is available here] before commenting on its merits. But I can say at the outset that I suppose I am pleased to learn that other crimes and legal concerns in the state of Ohio are so low that the AG's office had ample time to focus on what (I would hope) is a relatively low-level concern for state official.

Criminal justice developments and reforms, Initiative reforms in states, Who decides | Permalink


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