A ballot item for the City of Salem seeking to decriminalize marijuana may be up for a vote once again after the organization advocating for the vote filed a lawsuit this week.
The Sensible Movement Coalition originally presented a petition requesting to have the issue of marijuana decriminalization appear on the ballot, and it filed a lawsuit Wednesday after the city decided to remove the item.
The Sensible Movement Coalition said it met the legal requirements for the issue to appear on the ballot, but said City Attorney Sam Harrold removed the citizen’s initiative after receiving an opinion memo from the West Virginia Secretary of State’s Office.
The organization filed paperwork in United States District Court, seeking a preliminary injunction and a temporary restraining order.
The plaintiffs, William Hyman, Chad Thompson and Marissa Rinehart, argue in the request that they presented an initiative with enough supporting signatures calling for marijuana decriminalization in Salem. They said the initiative met all legal requirements, and on February 12, they were informed at a Salem City Council meeting that the initiative would appear on the June 4, 2019 ballot, according to court documents.
On or about March 28, the plaintiffs argue that the City of Salem informed them verbally that the initiative would not be on the ballot in June, and on April 8, the plaintiffs’ attorney was verbally informed of the same thing, court documents said. However, the plaintiffs stated that they have not been formally and officially notified of this decision.
The plaintiffs argue that the City of Salem’s decision to remove the initiative from the ballot is “ostensibly premised” on a memorandum dated March 28 from an attorney with the West Virginia Secretary of State. In addressing the question of whether a municipality may adopt an ordinance that is contrary to current West Virginia law, notwithstanding the fact that the initiative satisfies procedural requirements in state code, the Secretary of State’s Office stated in the memorandum:
“Likely no. The initiative in this case relates to removing penalties for simple marijuana possession. Because W.Va. Code…prohibit[s] possession, wrongful use, etc. of marijuana, Article 6, section 39a of the WV Constitution provides, in part, ‘That any such charter or amendment thereto, and any such law or ordinance so adopted, shall be invalid and void if inconsistent or in conflict with this constitution or the general laws of the state then in effect, or thereafter from time to time enacted.’ Therefore, it is likely that an ordinance which otherwise removes penalties for such possession would violate the WV Constitution.”
A legal disclaimer in the memorandum states, “The opinions expressed in this memorandum are non-binding and have no legal effect. This memorandum is provided merely for municipal officials’ consideration in the instant case.”
The plaintiffs argue that the memorandum did not advise the City of Salem to remove the initiative from the ballot, and that the city’s decision is premised on its belief that the content and/or subject matter of the plaintiffs’ initiative could contradict state law, prove unconstitutional under the state constitution, prove unenforceable and have no effect.
The plaintiffs go on to argue that the decision to remove the initiative was a content-based restriction on their free speech, and it was not based on or governed by content-neutral, objective standards prescribed according to law, according to court documents.
In light of the city’s decision, the plaintiffs argue that neither West Virginia law nor local law provide any legal mechanism for courts to immediately address the legality of a city’s discretionary decision to remove an otherwise properly proposed initiative from that city’s ballot based on the content of that initiative; neither state nor local law requires that a city first obtain judicial approval before exercising discretion to remove an otherwise properly proposed initiative from that city’s election ballot; neither state nor local law requires that a court exercise de novo judicial review to assess the legality of a city’s discretionary decision to remove an otherwise properly proposed initiative from that city’s election ballot; and neither state nor local law include objective, content-neutral standards to limit a city’s discretion to select which initiatives to be included and which initiatives to be excluded from local election ballots based on the content and/or subject matter of the proposed initiative.
According to court documents, the plaintiffs state that under state law, an aggrieved person’s only recourse when a city removes an otherwise properly prepared and presented initiative from that city’s election ballot is to seek mandamus, which is a court order to a government official to fulfill official duties or correct an abuse of discretion. They argue that under state law, courts can only issue mandamus when a government official fails to perform a legal duty and clearly violates state law. Further, they state that mandamus is not an adequate substitute for the de novo judicial review of executive decisions restraining speech required by the First and Fourteenth Amendments to the U.S. Constitution, according to court documents.
The plaintiffs argue that state and local law fail to require that when a city decides to remove an initiative from its election ballot based on subject matter and/or content, “expeditious judicial review of that decision” is immediately available as required by the First and Fourteenth Amendments, according to court documents. Moreover, they state that the City of Salem’s discretionary decision to remove the initiative is an impermissible prior restraint under the First Amendment.
According to court documents, the plaintiffs argue that the City of Salem’s removal of the initiative caused them injury-in-fact in the form of direct interference with their First Amendment rights to associate and speak, and this injury-in-fact is causally connected to and fairly traceable to the city’s decision. The plaintiffs seek emergency injunctive relief to restore the initiative to the ballot. They are also seeking an award of nominal, compensatory and/or presumed damages for financial, economic, emotional and other injuries they argue were caused by the City of Salem, according to court documents.
WBOY has reached out to Salem’s city manager and city attorney for comment on the lawsuit.