By Mike Scott
Legal News
Bloomfield Township is being sued by two area attorneys over a medical marijuana ordinance that they claim is in direct conflict with state law.
The ordinance developed by Bloomfield Township requires that residents who have state-issued cards to either use or grow marijuana for medicinal purposes must register with the township.
The debate appears to be largely between privacy and personal security.
Such an ordinance is illegal, says attorney Thomas Loeb, managing partner of his own Farmington Hills law firm.
Loeb and Southfield attorney Neil Rockind are suing Bloomfield Township on behalf of two anonymous clients who are also township residents and state-approved medical marijuana users or growers.
“The state law allows my clients the ability to use and grow medicinal marijuana — they are certified to do so,” Loeb said. “This is illegal in many ways, but one of the biggest concerns is that this (ordinance) could prevent them from getting their medicine.”
Loeb said he has researched the various local marijuana ordinances developed by municipalities around the state, adding that in his opinion he has never seen an ordinance that goes so far in, “infringing upon the rights of residents under state law.”
Many local municipalities have ordered moratoriums on further ordinance actions.
Others, like Livonia, Birmingham and Bloomfield Hills, have ordinances that state anything contrary to local, Michigan, or federal law is illegal.
The Michigan Medical Marijuana Act, voted into law by state residents in November 2008, promises confidentiality to state-approved patients, growers and caregivers, according to the Michigan Department of Community Health.
But the ordinance that requires any residents with such approval to register with Bloomfield Township shouldn’t impact that state law because it is a public safety issue, said Bloomfield Township Supervisor Dave Payne.
“We considered every aspect when (developing this ordinance),” Payne said. “It’s important for our police officers to know who in our township has a card. It could help prevent unfortunate circumstances and helps our police in their response.”
One way it could help police is preventing them from making an arrest of a resident if it is known that state approval for using or growing has already been given, Payne indicated.
A motion will be filed to dismiss the case, or in lieu of that will request that the names of the plaintiffs be divulged by early February, said William Hampton, Bloomfield Township’s legal
counsel and a senior partner with the Farmington Hills law firm of Secrest Wardle.
“Standing is an important prerequisite in any lawsuit,” Hampton said. “We feel that we are entitled to know who these residents are.”
Requiring the registration of township residents who use or grow medical marijuana should be voluntary, Loeb said, and that issue is at the heart of the debate over the ordinance, he said.
“In our opinion (this lawsuit) is such a slam dunk winner because it violates state law,” Loeb said. “It also violates state confidentiality law and we believe it is not open to interpretation.”
Loeb also feels that the Bloomfield Township ordinance is illegal in its treatment of caregivers residing within township limits.
Under state law, Loeb says those individuals have rights that don’t include local registration with a municipality.
He is anticipating that other municipalities could view the eventual outcome of this lawsuit as a possible legal precedent in Michigan.
Many municipalities have discussed possible ordinance language but either have not enacted anything or have not finalized the content.
Other municipalities might be motivated to take further action depending on what happens with his lawsuit, Loeb said.
“When we win our declaratory action, it will impact what other cities and townships will feel they can do,” Loeb predicted.
However, local registration is a topic that was discussed by Hampton and members of Bloomfield Township’s administration and board of trustees.
Hampton believes that the key issue is whether the state law preempts a municipality’s ability to create such an ordinance.
“I can understand that this is a legal issue of whether the township can preempt state law and it is a ruling that might be made by the Michigan Supreme Court,” Hampton said. “It’s also an issue that should be tackled by the state legislature possibly and should be a priority of the new administration. We need to have clarity in this medical marijuana law for the courts.”
Bloomfield Township has until mid-January to file its response to the lawsuit, according to Hampton. The ordinance originally went into effect on October 31.
The township worked closely with Hampton and his team in making sure that the ordinance adhered to the state law, Payne said. However, he is not surprised that is has been legally
challenged.
“This is a controversial issue, so it’s not something that we didn’t expect,” Payne said. “But we’re confident that we developed an ordinance that meets the requirements of the state law.
I can tell you that (legally) we considered every aspect.”
Payne also believes that the ordinance is written in a way that protects privacy rights for all residents who register as card holders.
“Our police department and the board (of trustees) felt it was a good idea,” Payne said. “We made sure to protect our residents’ privacy so that shouldn’t be an issue.”
Under the Bloomfield Township ordinance, residents who register as medical marijuana approved users or growers will not have their personal information made public under the Freedom of Information Act (FOIA), Hampton said.
“The plaintiffs clearly don’t see it as a safety issue but as an invasion of privacy,” Hampton said. “I don’t think they understand what the reason or rationale was behind (this ordinance).”
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