Judge bars Menominee from issuing any more marijuana licenses
By ERIN NOHA EagleHerald Staff Writer,2023-09-27
MENOMINEE — The City of Menominee can’t issue any more marijuana licenses as of Tuesday, according to a judge.
The city can’t take any further action consistent with its amended marijuana ordinance and must not further violate its Open Meetings Act while the state lawsuit is pending, said Judge Mary Barglind after issuing a preliminary injunction in 41st Circuit Court Tuesday.
She ruled that the status of licenses would be locked on Tuesday’s date — meaning the city could not take any additional action in granting permissions to marijuana companies.
The state lawsuit was filed in August by a ballot committee (the Committee to Stop Unlimited Marijuana Shops), Rize and The Fire Station. They are currently suing the city over violations of the Open Meetings Act and city charter.
If the plaintiffs win the lawsuit, the newest marijuana ordinance could be invalidated and the city council would be prohibited from altering the number of permitted marijuana shops or issuing any building or other permits until voters of Menominee were able to vote on a certified, referendum petition.
Other relief sought includes that the city be required to hold meetings in public, with no closed sessions, licenses be stripped back to only two, and that the plaintiffs granted reasonable costs and attorney fees.
Menominee City Manager Brett Botbyl took the stand on Monday as a witness in the lawsuit. The testimony was one of the few times Botbyl has spoken about the marijuana lawsuits.
The lawsuit represented the first time the city had outsourced its defense funding — previous lawsuits had been covered by the Michigan Municipal League. While he didn’t specify whether MML would be covering any of their costs this time, he acknowledged that the aggrieved marijuana companies — the ones who didn’t receive an initial license — funded the city’s the defense, Botbyl testified.
Botbyl also testified the city violated the Open Meetings Act when they held special meetings on May 22 and July 27. The city did not have its July 27 or May 22 meeting minutes published in time after the fact.
City officials also violated the law by not holding a roll call vote to go into closed sessions during those meetings, not stating the purpose of the closed sessions before they went into the meeting, not stating immediately afterward, and discussing topics not covered in the the Freedom of Information Act-protected attorney/client privilege during the closed sessions during the meetings, Barglind said.
Barglind said she could chalk up the roll call violations to just technicalities. However, when weighed against the testimony and exhibits presented Monday, they seemed to be more than just technical.
“The court disagrees that these violations were technical in totality and finds that there’s a likelihood that this accumulation of errors — a pattern, if you will — of continued non-compliance with the Open Meetings Act, there’s a likelihood that at the permanent injunction hearing, it would be found by the court that there was an impairment of the rights of the public,” Barglind said.
The city’s lack of communication or ability to publish notices or minutes in time hindered the public’s understanding of the marijuana lawsuits, said Attorney Mike Cox, representing Rize, during the examination of Botbyl on the stand Monday.
“Both before and after the special meetings, there’s been a routine disregard for informing the voters, the residents, the citizens of Menominee on what their government is about to do,” Cox said.
He also mentioned the failure to summarize what was discussed in the meeting minutes that followed those special sessions.
Two lawyers and two reporters attended Monday’s hearing.
Council Members Joe Dulak, Bill Plemel, Jackie Nutter and Doug Robinson wanted the closed session meeting to talk about the certification aspect of the petition, Botbyl testified. He agreed with Cox that the council members viewed the meeting as a way to counter the referendum.
“I believe that’s what they thought, yes,” Botbyl said.
The city council met to pass its third ordinance in a special meeting, not waiting the 27 days for its next regular meeting when the public would’ve had more advance notice, Cox said.
Instead, the notice was posted 18 hours before the meeting, a fact for which Cox chastised the city attorney Matt Cross.
“Mr. Cross made a big deal of the ‘legally permissible 18 hours,’” Cox said. “Really? 18 hours? That may be allowed once, but when you put it against this factual background of repeated, both intentional and unintentional, violations of OMA and the charter, it works to impair the rights of the public.”
The concern regarding the city charter boiled down to conflicting wording. The marijuana ordinance says that “$15,000 shall be appropriated for this current fiscal year to the City of Menominee Police Department for administrative and enforcement activities consistent with” marijuana laws.
Under its supplemental appropriations wording, however, the city charter doesn’t demand that an appropriation be enforced. It only says, “If, during the fiscal year, the city manager certifies that there are available appropriation revenues … the city council, by ordinance, may make supplemental appropriations.”
Botbyl hadn’t certified the $15,000 in a designated fund. The appropriation to the police department was the motivation for the third and most recent marijuana ordinance. The appropriation may be up in the air pending the results of the lawsuit.
City council members added the appropriation the third ordinance, although helpful to the police department, was intended to kill the referendum, Botbyl testified. The referendum to let voters decide on the number of marijuana licenses started circulating shortly before July 4.
Mayoral candidate Casey Hoffman also addressed the appropriation. In the July 27 special meeting, Hoffman announced that the city council would shortly introduce an allocation to “back the blue.” However, the mayor and Botbyl said they had no prior knowledge of the money being introduced to pass the new ordinance, which included the appropriation.
Hoffman is not a city council member or employee of the city.
“You would agree that if you knew nothing about it on the agenda and the mayor knew nothing about it on the agenda, it would be impossible for a citizen, outside of Mr. Hoffman, to know about it on the agenda,” Cox said.
“Yes, sir,” Botbyl said.
Council Members Donna Marineau and Michael DeDamos didn’t know about the appropriation either, Botbyl testified.
“I knew we were going into closed session to discuss some matters concerning marijuana and the settlement and the petition, but anything forthcoming…no,” he said.
The measure surprised even City Attorney Michael Celello, because Ceiello had drafted the last two ordinances, Botbyl testified.
“I could say that he was a little bewildered and somewhat stunned as we were because we did not know this was coming,” he said.
“And if you didn’t know it was coming, no ordinary citizen would know it was coming,” Cox said.
“Correct,” Botbyl said.
The settlement with the original companies that sued the city allowed a few marijuana companies to “leapfrog” and get properties closer to the border of Wisconsin and Michigan. These companies were Highwire Farms and NU Group.
The settlement didn’t require the same stipulations and requirements initially asked of the accepted marijuana applicants, The Fire Station and Rize, Cox argued.
Both companies had already bought property and made their plans by the time the settlement arrived, which meant neither party could change locations.
Highwire Farms and NU, along with four other settling parties were treated better than The Fire Station or Rize, Botbyl testified.
Marijuana companies applying for licenses in Menominee were also on standby, unless they were one of the six companies that settled with the city.
A stipulation in the settlement allows no other licenses to be issued until those six companies obtain licenses and locations.
OI Holdings/Higher Love, NU Group/Nirvana, and Attitude Wellness/Lume have a license from the five companies that filed the original lawsuit. Highwire Farms and Rocky North/GreenPharm have not applied, according to Botbyl
The city website was responsible for Open Meetings Acts violations, Botbyl said. The city waited three weeks to publish the minutes from the passage of the July 27. The law requires publication in eight business days.
“I believe that they would’ve been done if someone would’ve come and inquired about them, but were they published on our website or anything like that? No,” he testified. “That’s the reason why we’re trying to figure out our website, redoing it, it’s a nightmare.”
Then he blamed the EagleHerald.
“The problem is, with our newspaper being a three-day newspaper, we get the information to them on time, but we have no control over what the EagleHerald does and how they post it,” Botbyl said. “Plus they also require a three-day advance notice, so if it was seven days, we needed to make it 10 days in advance, and it’s only if the paper has room to get that published.”
The minutes for July 27 may not have been added because Botbyl said he was on vacation.
“Nonetheless, the result is a less informed citizenry of Menominee,” Cox said. “You’d agree with that.”
“Yes,” Botbyl said.