By Ryan Dunn
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 Marijuana 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.
(c)2015 The Blade (Toledo, Ohio)