A recreational marijuana ballot initiative; Alleged violation of MCL 168.485; Michigan Regulation & Taxation of Marihuana Act; Alleged violation of the Michigan Zoning & Enabling Act (MZEA)

The court affirmed the trial court’s decision to grant defendant summary disposition in this case stemming “from a dispute over a ballot initiative about recreational marijuana establishments that was approved by” plaintiff-township’s voters. Plaintiff asserted “there was a genuine question of material fact regarding the alleged violation of MCL 168.485.” It contended “misleading ballot language led voters to approve an ordinance that would not have received approval otherwise.” The count found that even if it “were to concede that the wording on the ballot was, at the very least, incomplete in accurately representing the essence of the ordinance, it” was unnecessary to resolve the issue at this point. The “pivotal question now is not whether the ballot language was misleading; rather, it centers on whether this Court possesses the authority to invalidate the ordinance subsequent to its approval by voters, regardless of whether the language may be regarded as misleading.” The court was not presented with any such authority. “The absence of such authority likely stems from the fact that the appropriate time to contest the accuracy of the ballot language was prior to the election, when this dispute could have been addressed effectively.” The court determined that since the election has already taken place, the issue regarding the ballot language was “moot, as there is no feasible way to rectify any alleged past wrong.” It added that “even if it were determined that the language on the ballot was misleading, it would not change the fact that the language was presented on the ballot, the election was conducted, and a majority of voters approved the proposed ordinance. Plaintiff has not provided any legal authority supporting the assertion that a violation of MCL 168.485, assuming arguendo that one occurred, can be remedied post-election by invalidating the ordinance approved by voters.” The court concluded that while plaintiff and the dissent contended “the ballot wording misled voters, resulting in their approval of an ordinance that would not have otherwise passed, the facts remain unchanged.” The court noted that “if plaintiff believed the language presented on the ballot was misleading, it had the opportunity to address that concern prior to the election,” but there was no indication it “ever availed itself of this opportunity.” It found that at this point, “a challenge to the actual validity of the ordinance itself would be permissible,” but plaintiff’s ballot wording challenge “based on an alleged violation of MCL 168.485 is not such a substantive challenge to the validity of the ordinance itself. The township has thus not demonstrated that it is entitled to any appellate relief on this ground.” The court next held that the “ordinance’s content is directly related to the title it bears, indicating that plaintiff has not effectively established a viable title-body challenge, even if its claims are assumed to be true.” Plaintiff also argued “that the trial court erred in dismissing its claim that the ordinance conflicts with the MZEA.” But the court concurred with the trial court’s findings “that the township’s allegations do not identify any specific provision of the MZEA that the ordinance purportedly violates.”