TAKING THE INITIATIVE, DETROIT #2

The Detroit Coalition for Compassionate Care's failure to attain ballot status in 2002 was a harsh and expensive lesson. However, it is one that DCCC took to heart in a positive way. The decision was made to take our medicine, and fight another day.

After a period of reflection, and with assistance from the Detroit Branch of the Michigan ACLU, we found a true election law professional, one who had written the language for a number of successful Michigan ballot initiatives - two of them in Detroit.

This gentlemen, Mr. Neal Bush, was also a die-hard political reformer who loved a good fight, and had been active in virtually every "liberal" cause imaginable for at least 40 years. Now in an underemployed, semi-retired lifestyle, he was eager to take on the challenge presented by the "Detroit Medical Marijuana Initiative."

Immediately upon being hired by DCCC, Mr. Bush methodically went about fly-specking every document related to our first Detroit ballot initiative failure. Ultimately, Mr. Bush came up with a solution which was both brilliant and breathtaking in its simplicity. He suggested doing an initiative to amend Detroit ordinances by simply providing an "exemption" under city code for "medical use of marijuana."

The genius in this approach is it allowed DCCC to accomplish its goal without in any way tampering with the budget process. In addition, it would not interfere with the Mayor's ability to set management priorities. (This point of law was never directly addressed by the Michigan Court of Appeals decision in the first DCCC case. Thus it remained a distinct possibility that the City of Detroit could again deny ballot status and force us to again go to Court to settle this question.)

With respect to the requirement that the entire text of the proposal be included on the petition form, DCCC would only need to print the section to be amended, thereby complying with state law, as well as city charter.

Finally, legal precedent for this approach was on our side. In 1996 the Detroit City Council, despite state and federal law, amended a city ordinance to allow for a "needle exchange" program in Detroit (in an effort to help stem the spread of AIDS/HIV). The Council granted an "exemption" for needle users and care givers, from City ordinances against possession of "drug paraphernalia" for persons in an authorized "needle exchange" program.

When all was said and done, Mr. Bush's legal model seemed as bullet proof as it could get. With the blessing of the DCCC steering committee and management, the signature gatherers were again unleashed. As before, they secured in excess of 9,000 signatures in less then three weeks.

This time, upon canvassing the signatures in the ten days required by law and finding them sufficient in number and validity, the City Clerk issued an unqualified opinion, certifying our proposal for the ballot.

Our proposed ordinance amendments read as follows:

Sec. 38-11-9, Exceptions for medical marihuana.

THE SECTIONS OF THIS DIVISION SHALL NOT APPLY TO ANY INDIVIDUAL POSSESSING OR USING MARIHUANA UNDER THE DIRECTION, PRESCRIPTION, SUPERVISION OR GUIDANCE OF A PHYSICIAN OR OTHER LICENSED MEDICAL PROFESSIONAL. AS USED IN THIS SUBSECTION, "PHYSICIAN OR OTHER LICENSED MEDICAL PROFESSIONAL" MEANS A PERSON LICENSED UNDER ARTICLE 15 OF THE PUBLIC HEALTH CODE, MCL 333.16101 TO 333.18838; MSA 14.15(18838).

Sec. 38-11-32. Exceptions for medical marihuana

THE PROVISIONS FOR THIS DIVISION SHALL NOT APPLY TO ANY INDIVIDUAL POSSESSING OR USING A DEVICE FOR USE IN INGESTING, INHALING, OR OTHERWISE INTRODUCING INTO THE BODY MARIHUANA UNDER THE DIRECTION, PRESCRIPTION, SUPERVISION OR GUIDANCE OF A PHYSICIAN OR OTHER LICENSED MEDICAL PROFESSIONAL. AS USED IN THIS SUBSECTION, "PHYSICIAN OR OTHER LICENSED MEDICAL PROFESSIONAL" MEANS A PERSON LICENSED UNDER ARTICLE 15 OF THE PUBLIC HEALTH CODE, MCL 333.16101 TO 333.18838; MSA 14.15 (16101) TO 14.15 (18838).

As far as we have been able to determine, the above language and legal technique do appear to be very sound. It was used successfully in the City of Denver, which legalized small amounts of marijuana for any purpose.

However, this strategy cannot be used in every municipality - only those cities which have existing anti-drug and/or paraphernalia ordinances on their books.

From a historical perspective, until the "War on Drugs" really got going with a vengeance in the 1980's, it was virtually unheard of for any municipality to have ordinances making possession of marijuana (or any other drug) illegal. These matter were always regulated under state or federal law.

But as arrests mounted and the "crack cocaine epidemic" got the nation's attention, many municipalities saw an opportunity to cash in on the hysteria. In essence, these cities passed their own anti-drug laws so they could harvest fine money which would otherwise go to state coffers - especially for low level drug users, guilty of only misdemeanor violations. These violations could now be punished with fines, probation, or "treatment" by City authorized/contracted "rehabilitation" agencies. All proceeds would, of course, stay within the specific municipality.

Detroit was one of a number of Michigan cities to go this route, along with many localities in other parts of the country.

Therefore, the essence of DCCC's legal position was that if a city government can make a substance like marijuana illegal, then that city has the power to amend it own laws to grant an exemption.

Any reformer considering a local drug policy ballot initiative should look to see whether or not there are anti-drug ordinances specific to your municipality. This is extremely important in terms of overall ballot access strategy.

(If this kind of law does not exist in your community, then a different approach will be needed. In brief, the safest and easiest route in that circumstance is to simply make marijuana use, or whatever drug reform you are interested in, the "lowest law enforcement priority.")

DCCC's second initiative was certified in November 2003, to be designated "Proposal M" on the ballot - unless the City Council decided to pass the measure into law themselves within thirty days of certification. (This charter provision option is very common in Michigan cities and municipalities across the USA, once a citizen initiative is certified.)

For a brief moment, DCCC had the impression the Council might actually pass the measure into law themselves. Council President Mary Ann Mahaffey, for whom Neal Bush had worked years ago, personally endorsed the proposal and recommended the Council simply pass it into law. Alas, this was not to be. At best Ms. Mahaffey could muster only three of nine Council votes. One of the six opponents, Councilwoman Alberta Tinsley Talabi, was co-chair of the Partnership for a Drug Free Detroit, and a frenzied, relentless antagonist, working closely Office of National Drug Control Policy (ONDCP) and it surrogates. The others simply did not want to touch what they perceived to be a political tar baby. Now it would be up to the voters in the next scheduled city election, the Democratic and Republican Party primaries to be held in August 2004.

DCCC was roundly criticized by a number of political experts for deciding to run the issue in the primary, rather then the general election that would follow only three months later. Conventional wisdom suggested that typical primary election voters are older, more conservative and, in Detroit, primarily females who were likely to be adverse to drug policy reform.

However, we felt there was not much choice in any case. Fully expecting some new legal challenge from the City to again keep us off the ballot, we figured if the matter got tied up in court and not adjudicated in time for the August primary, we could still make the ballot in November (assuming we prevailed in court.)

In any event, DCCC felt comfortable going against the conventional wisdom as a result of an unpublicized poll, conducted and shared by MPP, which provided in-depth analysis of voter attitudes toward medical marijuana in Michigan.

Among other things, the poll conclusively revealed that the more the individual voter identified with the Democratic Party and/or liberal and/or African-American issues, the more likely it was the community would favor medical use of marijuana - regardless of the age, gender or racial make up of survey sample. Given that Detroit met all three criteria, the poll basically indicated a winning margin of 60% or better.

Also, in discussion with DCCC steering committee members, as well as street level, urban, political reformers, there was a definitive sense our proposal was a winner - no matter when the election was held.

Further, primary voters are the most sophisticated, knowledgeable voters. They understand that the real election in a community dominated by one political party or the other is in the primary, not the general election in November. The candidate of the controlling party who wins his/her primary election is de facto the general election winner, as well. In Detroit, which is 85% African-American and 90% Democratic, the Republicans often do not even field candidates for offices such as state representative. In essence, a primary voter is, presumably, less susceptible to the kind of hysterical propaganda campaign we anticipated from our opponents.

But the final, deciding factor was a very basic fact - the voter universe in a primary campaign in early August in Detroit (as well as most other cities) would be less then half the number who would be going to the polls in November. Based on past voter turnout, we expected that, perhaps, 80,000 people would vote in August, as opposed to over 200,000 in November.

So, DCCC figured if our chances of winning were very good anyway, it would be substantially less expensive to promote passage in the primary, where we only had to reach 80,000 voters, compared with November when we would have to reach 200,000.

Using the best voter list brokerage firm in Michigan, Practical Political Consultants in East Lansing, we were able to identify to a good degree of certainty who those persons were, where they lived, and whether they voted by absentee ballot or at a polling place.

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