Can Commissioners be Held Criminally Liable for Passing Medical Marijuana Ordinance?

Some recent local activity on the medical marijuana landscape has at least one Royal Oak City Commissioner rethinking his “yes” vote on the city’s ordinance on the matter from earlier this year. 

Meanwhile, other officials are wondering if they can be held criminally accountable for approving an ordinance that puts medical marijuana in the hands of anyone who can get a card enabling them to obtain the drug.

In late January, the by qualified patients, but prohibits growing and distribution in the city. Federal medical marijuana laws allow cultivation of a certain number of plants in one's home. The Royal Oak ordinance prohibits it, but when push comes to shove, federal law always supercedes local law. Since the Royal Oak ordinance's approval, four lawsuits have been filed against the city – two of which have already been dismissed. The city has paid roughly $6,000 in legal fees connected to such litigation.

A separate, somewhat unrelated local criminal case, which has pulled in the former mayor of a neighboring community, has some city commissioners on high alert, wondering if endorsing a medical marijuana ordinance could later come back to haunt them in the form of possible criminal prosecution.

City Commissioner Mike Andrzejak was one of the minority votes on the ordinance in January, along with Mayor Jim Ellison and Commissioner Jim Rasor. Andrzejak remarked during the July 18 City Commission meeting that if proper channels allow, he would change his vote to support the majority of the commission. The minutes would reflect a 5-2 vote, rather than the previous 4-3 tally.

For Andrzejak, his stance on the medical marijuana has changed since the ordinance was approved due to imperfections and inconsistencies in the medical marijuana process.

“Changing my vote doesn’t change anything,” he said. “In retrospect, when I voted on this, I recognize that I voted with my heart, vs. maybe my head.”

Andrzejak alluded to watching his father lose his battle with cancer a few years ago. Still, he said that with respect to the medical marijuana process, had he known then what he has seen happen in the ensuing months, he would’ve voted the other way.

“This issue, like no other, continues to evolve day by day, week by week,” he said. “The holes in the medical marijuana law continue to offer new and unimagined sub-topics and issues that we didn’t even ponder or imagine when we originally voted on this.

“I never pondered that medical marijuana cards could be issued to individuals under the age of 18. I never pondered that elected officials may have criminal liability. My eyes opened up to see the mayor of an adjacent community taking the Fifth (Amendment) on this issue. That is certainly something I would’ve taken into consideration. We never discussed patients having THC in their system while driving. A dozen of these issues give me reason to pause on my original position.”

The law remains clear: pot is pot and it’s still illegal to possess, use or cultivate in Royal Oak. A medical marijuana card allows an individual to purchase at a dispensary and use in their home, and that’s it.

Another City Commissioner is also looking at his earlier vote a little differently. Commissioner Charles Semchena voted in favor of the ordinance, which was basically a zoning ordinance that has been in use in other communities such as Livonia and Birmingham. Those cities, along with Royal Oak, only allow land use for activities that are legal. According to federal, state and local laws, growing and distributing marijuana — for any purpose — is considered illegal.

Semchena said Wednesday that he supports the right for people with serious, legitimate, debilitating illnesses to seek relief with whatever works, be that pot or otherwise. Semchena, a former assistant Oakland County prosecutor who has seen his fair share of drug cases, said the way the current medical marijuana laws and ordinances operate has turned into an effective tool to keep drug dealers in business.

“The real problem with the current medical marijuana law is that it puts it in the hands of 18 year olds who answer ads in the Metro Times, who end up making hundreds of thousands of dollars while they sleep when they should be going to college.

Semchena said elected officials supporting medical marijuana ordinances and laws could leave themselves vulnerable to criminal prosecution at some point, a notion that seemed far-flung in the past but is hitting home recently. Craig Covey is an Oakland County Commissioner and former mayor of Ferndale. He was recently called to testify in Oakland County Circuit Court for a proceeding that was related to an arrest of someone in a medical marijuana case. The defense attorney in the case is Royal Oak City Commissioner Jim Rasor. Covey pleaded the Fifth in order not to incriminate himsel.

“One of the basic fundamentals in criminal law is aiding and abetting,” Semchena said. “The traditional example is a bank robbery. The bank robber goes in the bank, the driver is outside and the lookout guy is on the corner. They’re all just as guilty.

“In federal law, if there is a violation, and there is some sort of assistance by government officials by allowing a process, there is potential for criminal activity. People thought it was far-fetched but last (week), that (former) mayor of Ferndale had to take the Fifth to avoid incriminating himself in Oakland County Circuit Court.”

A response from state Attorney General Bill Schuette’s office was not made available to Royal Oak Patch before this story was published.

During Monday’s meeting, Commissioner Rasor offered his view on whether elected officials are leaving themselves exposed when they vote. “Any argument that public officials would have any liability criminally for implementing a vote is a preposterous and hollow threat,” Rasor said. “The day that federal officers break into this chamber to arrest us for implementing the will of the voters of this state will be a very interesting day indeed.”

Semchena cited a recent media report stating that Michigan has 60,000 people carrying medical marijuana cards, but only 2-3 percent of that population have specific, identifiable illnesses like cancer. He said he believes the current medical marijuana structure should be dissolved and patients seeking pot-related relief should be able to obtain medication at a pharmacy, through a prescription from their doctor.

“Let’s let true medical patients get it in some form, through the medical establishment, not by legalizing and legitimizing what in the past has been an illegal industry,” he said. “When I voted for this ordinance, I never would have imagined there would be 18-year-old kids in a rental house, growing dope. “