Marijuana Scores prompt litigation

The City of Menominee’s Marijuana Rubric Scoring Committee included Interim City Manager Brett Botbyl, center, Fire Chief Mark Peterson, right, and City Engineer and Public Works Director Tricia Alwin. They’re shown on Aug 26, the day the committee announced final scores to applicants for marijuana retail licenses.

EagleHerald Staff Writer

MENOMINEE—The attorney defending the City of Menominee in a legal battle with five marijuana companies has denied the city’s Marijuana Rubric Scoring Committee is a public body in legal documents filed last week in the Menominee Courthouse.

Whether the court agrees with attorney Matt Cross of Plunkett Cooney could be important in deciding which side ultimately wins the case.

On one side are four marijuana companies in a consolidated case contending the city broke laws in the way it decided and approved marijuana retail licenses. These companies—Attitude Wellness/Lume, NU Group, Highwire Farms and O.I. Holdings/Higher Love—didn’t receive adult-use marijuana retail licenses because of what they contend was an unfair process. A fifth company—Rocky North/GreenPharm—also has filed a lawsuit alleging the city broke laws, but it’s unclear whether GreenPharm’s lawsuit will be part of the consolidated case or be heard separately.

On the other side is the City of Menominee and two marijuana companies—Rize and The Fire Station Cannabis Co., which received adult-use recreational marijuana retail licenses. These companies have filed Motions to Intervene in the other companies’ lawsuits and are defending the city and its process as they attempt to hold on to their licenses and their rights to open stores in the city.

In writing for the suing marijuana companies, Tamaris Henagan, an Adrian attorney for Highwire Farms, asserted the city violated the Open Meetings Act (OMA) repeatedly, while Cross contended it didn’t because an exemption to OMA exists.

In the city’s Jan. 5 legal answer to Highwire Farms’ lawsuit, Cross tried to block Highwire’s complaint from going forward by denying the Highwire controversy exceeds $25,000.

Highwire, which is seeking actual and civil damages plus court costs and attorney fees for violations committed by Interim City Attorney Brett Botbyl and City Attorney Mike Celello, said the case does exceed $25,000 and Highwire should receive compensation. Henagan also wants the court to allow Highwire’s application to be rescored and to provide other relief.

Henagan accused Botbyl and Celello of covering up unlawful actions the city took in the first round of application scoring, which proceeded then City Manager Tony Graff’s resignation in early July.

Celello also failed to stop the city’s Marijuana Rubric Scoring Committee in August from breaking laws designed to ensure local governments allow the public to participate by providing them with information and an opportunity to comment, Henagan said.

Despite his knowledge of the city’s prior Open Meetings Act violations, Celello failed to advise the new scoring committee of OMA issues during their August meetings, Henagan said. Botbyl chaired a three-member scoring committee that included City Engineer and Public Works Director Tricia Alwin and Fire Chief Mark Peterson, Henagan said.

Cross denied these allegations in a Jan. 5 court filling and asked the court to dismiss the lawsuit.

Henagan also accused Botbyl of “willfully and intentionally” violating the Open Meetings Act despite being “duly informed” the scoring committee wasn’t deliberating openly. Botbyl refused to allow public comment in direct violation of the act, Henagan said. Cross denied these allegations.

“The violations committed by Defendant Celello, Defendant Botbyl and the Scoring Committee impaired the rights of the public by among other things, stripping the applicants of their right to due process, preventing the public from addressing a meeting of a public body and delaying and or preventing public access to regulated marijuana as intended by MRTMA (Michigan’s Regulation and Taxation of Marijuana Act),” Henagan said.

In December, Henagan asked the court to prevent the city from continuing to disregard the Open Meetings Act and the court agreed. Judge Mary Brouillette Barglind ordered the city to comply with the act on Dec. 1, when she said, “Without admitting any prior violation, the city and its commissions and councils will comply with OMA going forward.”

While the city’s Marijuana Scoring Committee said its decisions were not subject to appeal, Highwire’s lawsuit challenges whether the city can prevent an appeal, stating, “Prohibiting an appeal to the final decision of a public body is unlawful” under Michigan law. Cross denied these allegations in the city’s response.

Henagan also said the city’s application policy and scoring rubric violated Michigan’s Regulation and Taxation of Marijuana Act because it wasn’t designed to select companies “best suited” to operating a store in compliance with the marijuana act. Instead, the city’s scoring criteria allowed it to select an applicant “that provided the City of Menominee with funds to facilitate the city’s aesthetic and economic development aspirations,” according to Henagan. Cross denied this.

Highwire’s legal documents referred to the scoring committee’s August 2021 meetings but included a meeting on Aug. 25 that according to the EagleHerald’s notes the city canceled. This provided Cross an avenue to deny Henagan’s claims pertaining to the Aug. 24 and 26 scoring meetings.

Henagan’s complaint said in effect the scoring committee acted in private, “with Defendant Botbyl whispering to Defendant Alwin or Defendant Peterson alternately, and Defendants Alwin and Peterson not speaking to one another at all.”

The committee didn’t provide the reasoning behind its scoring to the public, Henagan said. According the Michigan law, “such deliberation is not considered open, defeats the purpose of requiring the meetings and deliberation to take place in public and constitutes a violation of OMA,” Henagan said in the filing. Cross denied this in the city’s response.

In accusing Botbyl and Celello of covering up prior violations of OMA, Henagan said, they “were and are aware of unlawful and improper actions taken by former City Manager, Def. Graff and the first Scoring Committee, and acted in concert to cover said actions and move forward with the unlawful scoring process in an attempt to conceal any improprieties which may have occurred prior to the Aug. 24, 25 and 26, 2021 scoring committee meetings.”

Cross denied these allegations.