Pubdate: Tue, 07 Oct 2014
Source: Blade, The (Toledo, OH)
Copyright: 2014 The Blade
Contact:  http://www.toledoblade.com/
Details: http://www.mapinc.org/media/48
Author: Ryan Dunn

Toledo

OHIO SUES CITY OVER MARIJUANA ORDINANCE

Attorney General Sees State Conflict

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.

The case was assigned to Judge Dean Mandros. Mr. DeWine has requested 
an expedited decision.
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MAP posted-by: Jay Bergstrom