Hawaii Supreme Court rules against county marijuana initiative

The Hawaii Supreme Court on Thursday snuffed out proponents’ hopes of enforcing a voter-approved ballot initiative making adult personal use of marijuana on private property the lowest law enforcement priority of Hawaii County.

The lawsuit was filed in 2011 by a group of marijuana activists led by Michael Doyle Ruggles. Defendants in the suit included all county council members at the time plus those who were members when the initiative passed, Mayor Billy Kenoi, Police Chief Harry Kubojiri, then-Prosecutor Jay Kimura and two deputies, Charlene Iboshi and Mitch Roth, who both later became county prosecutor.

In a 27-page opinion written by Associate Justice Sabrina McKenna, the court said the county is unable to enforce the Lowest Law Enforcement Priority voter initiative simply because it conflicts with state law. Although the Intermediate Court of Appeals, in upholding a lower court’s ruling, came to that same conclusion, the Supreme Court decided to accept the case on appeal to clarify the state’s pre-emption powers because the intermediate court included other findings the Supreme Court found unnecessary.

The Lowest Law Enforcement Priority of Cannabis Ordinance, or LLEP, defined an “adult” as any individual age 21 or older and “adult personal use” as use of cannabis on private property by adults and applied to possession or cultivation of 24 or fewer marijuana plants or its dried equivalent, presumed to be 24 or fewer ounces of cannabis.

“… pursuant to the Hawaii Constitution, a county’s powers are limited to those conferred by the Legislature under general laws,” the Supreme Court opinion states. “We also hold that the entire LLEP is invalidated because it conflicts with, and is therefore pre-empted by, state law.”

Ruggles, who has been acting as his own attorney, said Thursday that he plans to appeal the case to the U.S. Supreme Court because “the logic is flawed.”

He said since Hawaii does not have a statewide ballot initiative or referendum process, the people’s rights to initiate legislation are confined to the county level. If state law is going to pre-empt the county initiatives, what is the point of having county initiatives, he asked.

“This is a way bigger issue than cannabis,” Ruggles said. “Either we have home rule, or we don’t.”

Ruggles said the decision could have far-reaching impacts, and might forecast similar rulings on issues such as a Maui voter referendum regulating genetically modified crops in the future. Corporation Counsel Molly Stebbins, representing the county, called the opinion a good one.

“I have great respect for the voter initiative process. As the dissent noted, it’s one of the most precious rights of our democratic process,” Stebbins said. “However, it’s always been our office’s position that the ordinance was pre-empted by state law and we believe the court made a sound and appropriate decision in this case.”

The plaintiffs sued to have the initiative, which passed in 2008 by a vote of 35,689 to 25,940, enforced.

They also wanted the police and prosecutors ordered to immediately cease and desist investigations, arrests or prosecutions of any person, or the search and seizure of any property, in a manner inconsistent with the LLEP.

They asked that the Hawaii County Council be ordered to establish procedures for receiving grievances and publish semi-annual reports. The plaintiffs asked the court to order the County Council to cease authorizing or accepting funds for the purposes of investigating, citing, arresting, prosecuting, searching or seizing property, etc., related to cannabis-associated offenses and that all funds allotted to police and prosecutors be withheld until it could be determined how much money had been spent presumably in violation of the LLEP.

They asked that the County Council be ordered to keep the Hawaii County chief of police accountable for upholding his oath of office, or else remove him from office. And, they asked for $5 million in punitive damages.