The MML Review March-April 2022

Marihuana Charter Amendment Challenges & Legislative Updates By Leslie Abdoo

O ne of the biggest challenges facing Michigan cities and villages as it relates to marihuana regulation is the newest wave of ballot initiatives sweeping across the state. Since the adoption of the Michigan Regulation and Taxation of Marihuana Act (MRTMA) which provided that “[i]ndividuals may petition to initiate an ordinance to provide for the number of marihuana establishments allowed within a municipality or to completely prohibit marihuana establishments within a municipality,” marihuana businesses and residents have found new ways of getting the issue in front of the local voters. In both the 2020 and 2021 November election cycles, nearly identical petitions were filed in small communities across the state. The 2020 petitions largely involved initiated ordinances under the MRTMA or under a city or village’s charter. The newest petitions, however, have largely involved charter amendments under the Home Rule City Act (HRCA) or the Home Rule Village Act (HRVA), which have raised many questions regarding the appropriate process for placing these amendments on the ballot and what role cities and villages have in ensuring that the various legal requirements for the process have been followed. The Charter Amendment Process The charter amendment process is not one that is undertaken often. The HRCA and the HRVA both set forth the process for initiatory petitions to amend charters. The two forms of legally authorized changes are by revision or amendment of the charter; whether a change is considered a revision or an amendment to a charter depends on whether it is a substantial or a nominal change. Charter revisions suggest fundamental changes to the charter, while amendments are typically a correction of detail, according to the Michigan Supreme Court. Charter revisions require involvement of an elected charter commission and other additional procedural requirements that charter amendments don’t.

City charter amendments may be proposed by 3/5 of the members of the legislative body, or by an initiatory petition by not less than 5 percent of the registered voters. Village charter amendments require a 2/3 approval vote by the legislative body, or by electors’ petition of at least 20 percent of the total vote cast for president at the last preceding election, unless otherwise provided by charter. Both statutes have very detailed requirements for petitions including those required under the Michigan Election Law. If the petition is complete, the city or village must place the issue on the ballot subject to specific ballot question requirements that are reviewed by the attorney general. Before submission to the electors, the governor is also presented with the proposed amendment of a city charter for approval, and signs it if approved. If not approved, it is returned to the legislative body with stated objections for reconsideration, but it is submitted to the electors notwithstanding the objections. In cities, the clerk must call a special election within 90 days after the filing of the petition to be held on the next regular election date not less than 120 days after the petition is filed.

MARCH / APRIL 2022

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THE REVIEW