Portions of Toledo’s newly enacted marijuana decriminalization law are “unconstitutional and unenforceable,” a Lucas County judge said Friday.
At the request of the county prosecutor, county sheriff, and Ohio Attorney General Mike DeWine, Lucas County Common Pleas Judge Dean Mandros granted a preliminary injunction preventing the city from enforcing the parts of the “Sensible Marihuana Ordinance” that he agreed were contrary to state law.
“Identified provisions [of the ordinance] conflict with state general laws by eliminating criminal penalties for possession and trafficking of marihuana and hashish, converting state law felony offenses involving Schedule III, IV, and V drugs into third-degree misdemeanors, and prohibiting law enforcement officers from reporting felony drug law violations to anyone empowered to prosecute them,” Judge Mandros wrote in his 23-page opinion.
He said the provisions were “fundamentally nugatory” — meaning without value — because they “prohibit criminal conduct but impose no penalty.”
Depending upon the amount of marijuana or hashish involved in a case, Judge Mandros said, a felony conviction under state law could result in as much as a 10-year prison sentence, whereas under the city ordinance the felony conviction would result in neither prison nor a fine, or other consequences, such as a driver’s license suspension.
He cited prior Ohio Supreme Court decisions that concluded that “a statute is not a criminal statute unless a penalty is provided for its violation.”
He also concluded that only the state legislature has the authority to determine what penalty should be imposed for felonies and that in Ohio, “the power to define felonies is not a home-rule power” of municipalities like Toledo.
In a statement released late Friday afternoon, Mr. DeWine said, “I am very pleased, as it maintains Lucas County’s ability to investigate and prosecute large-scale marijuana trafficking in the city of Toledo. The injunction also preserves the ability of the city of Toledo to report felony crimes to other county agencies, such as the prosecutor or children’s services agencies.”
Kevin Pituch, an assistant county prosecutor, said county officials were “pleased and satisfied” with the decision, adding, “The city of Toledo does not have the authority to rewrite or eliminate state of Ohio felony drug law.”
City Law Director Adam Loukx, who expressed reservations about the constitutionality of the proposed ordinance before it went to voters Sept. 15, said he was not surprised by the court’s ruling.
“We respect the judge’s opinion, and any further comment would be ‘nugatory,’ ” he said.
Mr. Loukx, who had not seen the opinion, said city officials would examine their options once they had reviewed and digested the court’s order.
“We are after all defending a vote of the people, and I am less inclined to walk away from a vote of the people without giving it my best college try,” he said.
Lt. Joe Heffernan, a spokesman for Toledo police, couldn’t say to what extent the unconstitutional portions of the ordinance had been enforced by officers.
On Oct. 6 — two days after the ordinance took effect — Police Chief George Kral issued a notice to officers stating that they could continue to charge marijuana offenders under state law or use their discretion, based on the circumstances, and not charge the individual at all.
“Unless officers have other enforcement considerations, officers are encouraged to harmonize their actions to the extent possible with the will of the people as set forth in Issue 1,” the chief wrote. “However, no police officer will be prevented in exercising his/her discretion in charging under the Ohio Revised Code.”
Judge Mandros said his order would be in effect immediately and remain until a final judgment or permanent injunction is entered.
Contact Jennifer Feehan at: jfeehan@theblade.com or 419-213-2134.
First Published February 13, 2016, 5:04 a.m.
