In a Nutshell:
- When Michigan voters legalized adult-use marijuana in 2018, they also approved a mechanism to allow residents to initiate local ordinances to either totally prohibit or limit the number of marijuana establishments in their community.
- Citizen-initiated marijuana ordinances allowed by the state law operate completely separate from the other initiative and referendum mechanisms contained in home rule charters.
- Further, there are notable differences in how citizen-initiated ordinances are proposed and adopted under charter provisions and the state’s adult-use marijuana law.
When Michigan voters legalized adult-use marijuana in 2018, they also approved a mechanism to allow residents to initiate local ordinances to either totally prohibit or limit the number of marijuana establishments in their community. This new “direct democracy” mechanism is limited to approval of adult-use marijuana establishments and effectively operates similar to existing local initiative and referendum processes authorized in municipal charters, such as drafting initiatory petitions, gathering and verifying signatures, certifying ballot language, etc.
However, the citizen-initiated marijuana ordinance allowed by the state law operates completely separate from the other, regular direct democracy mechanisms contained in home rule charters. In fact, the process for citizen-initiated marijuana ordinances operates outside of existing charter provisions and processes adopted by local communities. As such, there are a number of key differences when it comes to signature gathering, petition review and petition approval. These key differences, as we explain here, are important for citizens to understand as more and more local communities weigh in, via a public vote, on the issue of adult-use marijuana.
Initiative and Referendum in Michigan
While general legislative powers are vested in the Michigan House of Representatives and Senate, certain powers are reserved to Michigan citizens. The Michigan Constitution (Art. II, Sec. 9) expressly reserves to the people the power to propose new state laws (called the initiative) and to reject existing laws (called the referendum). These constitutional provisions are self-executing and prescribe specific steps and deadlines required to invoke either the initiative or the referendum. They have been available to Michiganders since the constitution was amended in 1913.
But, these provisions do not apply to local legislation/ordinances. Instead, initiative and referendum rights for local ordinances only exist in municipal charters as permitted in state statutes. And, even then, these direct democracy powers may exist in one community, but not in the next one over. This is because, under the Home Rule Cities Act, citizens can choose whether to write these powers into their home rule charters. Our review of the charters of the state’s 100 largest cities shows almost every city provides its citizens with the ability to invoke both the initiative and referendum.
And while cities operate under home rule charters, townships don’t. Townships’ powers are prescribed in the state constitution and specific state laws, neither of which provide citizens of townships with the right to initiate or reject local ordinances. This can create a scenario where citizens of adjoining communities (for example, the City of East Lansing and its neighbor Meridian Township in Ingham County) can have fundamentally different powers when it comes to petitioning for new ordinances or overturning existing ones.
The one exception, as we noted in our previous blog, is on the issue of allowing and/or limiting adult-use marijuana establishments in a community. The voter-initiated state law approved in 2018 grants initiative and referendum powers to every Michigan citizen, regardless of the type of local government in which they reside – city, village, or township.
Citizen-initiated Ordinances for Adult-Use Marijuana
Initiated Law 1 of 2018 (the Michigan Regulation and Taxation of Marihuana Act) allows citizens, through a signature gathering process, to place an adult-use marijuana ordinance on the ballot to be voted upon by electors in the jurisdiction. While the state law legalized the possession and use of marijuana for every Michigan citizen 21 years and older, the architects of the initiated law wanted to provide Michigan citizens with the ability to have a direct say on whether adult-use marijuana facilities should be located in their communities. This “direct democracy” mechanism is designed to allow citizens to act when their elected representatives lose sight of the “public will” on this issue or simply will not act.
As we previously highlighted, 113 different local governments across 57 of Michigan’s 83 counties have adopted ordinances allowing adult-use marijuana facilities in their communities. The Michigan Marijuana Regulatory Agency, the state agency responsible for licensing and regulating both adult-use and medical marijuaan, maintains an active list of communities that have “opted-in” to either regulatory scheme but it does not track the method by which the local ordinance allowing for marijuana was adopted.
In most cases, adult-use marijuana ordinances were adopted via the regular legislative process used to approve other local ordinances. However, in a number of cases, the ordinance was the result of a citizen-led initiative to limit the number of marijuana facilities in a community. For example, voters in the City of Belleville (Wayne County) and the Village of Pinckney (Livingston County) approved initiated-ordinances in November 2020.
Key Differences with Citizen-Led Marijuana Ordinances
When comparing the processes for local citizen-initiated ordinances allowed by city charter and those contained in the state adult-use marijuana law, some key differences stand out. This is not surprising as home rule charters vary across cities and each community has adopted, and in some cases subsequently amended, its initiative process to meet local needs over time. Adult-use marijuana ordinances, on the other hand, are governed by state law.
Our examination of various large city home rule charters reveals notable differences related to petition signature thresholds, timing of signature submissions, and legislative review of petitions.
The first difference that stands out relates to petition signature thresholds. State law requires that marijuana petitions contain signatures from qualified voters in the municipality that number at least five percent of the votes cast for governor at the last gubernatorial election. This signature threshold is less than the eight percent requirement for statewide initiatives under the state constitution, but is equal to the five percent signature threshold for statewide referendums.
City charter provisions related to the number of signatures required to initiate local ordinances vary on many dimensions. This includes the specific minimum percentage required, but also what that percentage is applied to. In some cases, the percentage is tied to the number of qualified voters in a community while other charter provisions peg the number of signatures to actual votes cast for a specific public office in a previous election.
For example, the City of Detroit charter requires petitions for initiated ordinances to contain a number of signatures equal to three percent of the votes cast for Mayor in the last mayoral election. While Ann Arbor’s charter signature threshold is set at 20 percent of the votes cast for Mayor. The Sterling Heights charter signature threshold (15 percent) is tied to votes cast for Governor, but also sets a minimum of 1,500 signatures to move the proposed ordinance to a public vote. Again, each city charter is different on the number of signatures required.
Another area where there is considerable variation has to do with the “freshness” of the petition signatures gathered. Under Michigan election law, petition signatures for initiated laws are considered “fresh” if collected within 180 days of submission to the Secretary of State. City charter provisions, on the other hand, vary widely as to specific “freshness” requirements.
In our review of various charters, we found that petition signatures can be considered “fresh” if dated up to one year prior to the filing of the petition (Ann Arbor) or as little as 21 days prior to filing (multiple instances). Generally, most city charters require petition signatures to be collected over a shorter period of time compared to state law.
Related to both the signature threshold and “freshness” requirements found in city charters, state law does not allow petitioners seeking to initiate an adult-use marijuana ordinance to submit supplemental petitions if they fail to meet the required number of signatures initially. Many charters grant petitioners a supplemental period to gather signatures; the length of time varies, but we found instances where individuals can submit additional signatures from five days after initial submission (Norton Shores) and up to 20 days (St. Clair Shores). Most charters with this provision allow either 10 or 15 additional days to submit signatures.
In our review of charter provisions we found other notable differences from the processes established in state law for citizens to initiate adult-use marijuana ordinances for their communities. The variations highlighted here, as well as others, can create confusion for citizens looking to petition their government officials for legislative changes related to marijuana. Additionally, the petition process prescribed in state law applies uniformly to all forms of local governments – cities, villages, and townships – and works outside of the normal petition process that municipalities use. To the extent that elected and appointed municipal officials, such as clerks, are familiar with and trained to carry out the process and procedures contained in their home rule charters, the state adult-use marijuana law represents a different way for them to carry out similar functions.
Permission to reprint this blog post in whole or in part is hereby granted, provided that the Citizens Research Council of Michigan is properly cited.