Warren City Attorney Ethan Vinson, left, answers a question from lawyer David Griem as Macomb County Circuit Judge Carl Marlinga, right, listens during a hearing Wednesday, Aug. 28, 2019. NORB FRANZ -- THE MACOMB DAILY
Attorney Anthony Bologna, left, makes a point in Macomb County Circuit Court on Wednesday, Aug. 28, 2019 as co-counsel David Griem listens. Bologna and Griem represent two companies hoping to receive a medical marijuana business license from the city of Warren. NORB FRANZ -- THE MACOMB DAILY
Attorney Andrea Pike, right, makes a point in Macomb County Circuit Court about the Warren Medical Marijuana Subcommittee as city attorney and committee member Ethan Vinson, left, listens. NORB FRANZ -- THE MACOMB DAILY
Warren City Council President Cecil St. Pierre Jr., who chairs the city's medical marijuana subcommittee, testifies in Macomb County Circuit Court. NORB FRANZ -- THE MACOMB DAILY
Show CaptionWarren City Attorney Ethan Vinson, left, answers a question from lawyer David Griem as Macomb County Circuit Judge Carl Marlinga, right, listens during a hearing Wednesday, Aug. 28, 2019. NORB FRANZ -- THE MACOMB DAILY
UPDATED: June 17, 2021 at 5:11 a.m.A judge on Wednesday ordered Warren to not issue any medical marijuana licenses after he determined a committee of city officials illegally held secret meetings.
Macomb County Circuit Judge Carl Marlinga criticized officials for violating the Michigan Open Meetings Act when they held a series of closed-door meetings this year to interview dozens of companies hoping to land one of the licenses.
The preliminary injunction granted by Marlinga was requested by attorneys representing DNVK4, a limited liability company also known as Rise Wellness. Late last week, the judge granted an ex-parte temporary restraining order after Rise Wellness lawyers claimed that the Warren Medical Marijuana Subcommittee had narrowed a list of 62 companies — each competing for one of up to 15 licenses — down to 25 and planned to recommend which firms the City Council should select as early as this week.
On Wednesday, those lawyers requested the injunction to block the issuance of any licenses and to have the city conduct the review process over again in view of anyone who wants to watch or monitor the process.
“The public has no clue how the subcommittee reached conclusions,” said Anthony Bologna, an attorney for the applicant DNVK4 LLC. “It’s a complete deprivation of the public’s rights.”
Lawyers for the city responded earlier this week by filing motions to dissolve the restraining order and to allow the city to continue its process of scrutinizing – and potentially select — applicants to receive licenses to open marijuana dispensaries. Andrea Pike, the attorney representing the city of Warren, said the medical marijuana licensing panel had not made any recommendations yet and therefore no applicants had suffered any harm.
The subcommittee is composed of Councilmen Cecil St. Pierre Jr., Ronald Papandrea and Steven Warner, City Attorney Ethan Vinson and Public Service Director Richard Sabaugh. The panel was formed pursuant to the city’s highly debated and revised medical marijuana facilities ordinance.
Since last January, the committee held 13 meetings, the first four of which were open to the public as the five officials got organized and established their operating procedures. At some point, the panel decided to invite applicants – whose proposals ranged from approximately 300 to 500 pages — to be privately interviewed by the committee for 20 minutes. Initially, five companies were interviewed at an individual meeting but the question and answer sessions increased to seven per committee meeting.
After the fourth session, the committee locked the doors to the conference room at Warren City Hall where the meetings were held. That decision was reached by Vinson, who felt the committee was allowed under the Open Meetings Act to meet in private.
“When we started holding interviews, we decided the public should not be involved,” Vinson, who heads Warren’s in-house legal department, testified during questioning by David Griem, his predecessor as Warren city attorney now in private practice and representing Rise Wellness. “We didn’t view ourselves as a public body.”
Pike, meanwhile, told Marlinga the decision was based in part because applicants were asked sensitive questions such as criminal records and personal finances and that residents or others shouldn’t be privy to hearing the answers.
Marlinga said such questions didn’t warrant keeping anyone who wanted to listen from being locked out. Moreover, he repeatedly noted holding the meetings in private prevented any would-be observers from offering perhaps unflattering information about applicants. The judge also emphasized that not allowing any interested individuals – including Warren residents and the news media – inside would essentially leave the public in the dark or from viewing how the committee conducted its business.
That includes any factors the committee may have weighed before scoring each applicant from 0-10 on 17 different criteria including criminal history, experience with medical marijuana and financial wherewithal to open a medical marijuana business.
A mystery letter was a factor during testimony Wednesday by Vinson and St. Pierre, and legal arguments by attorneys on both sides of the case.
The document, introduced by attorneys Bologna and Griem, reportedly is the list of the 25 applicants scored highest by the committee. They said that’s what triggered their request for the temporary restraining order because they believed it was going to be forward to the full City Council at or prior to the council’s regular meeting earlier this week, along with a recommendation by the panel of who the council should pick for the coveted medical marijuana licenses.
Vinson said he hadn’t seen the list, noting that it wasn’t on official municipal letterhead bearing the Warren municipal seal. St. Pierre said he hadn’t seen it before, either.
In conflicting testimony, Vinson said St. Pierre, as chairman of the subcommittee, was compiling a handwritten draft of the top-scoring applicants. St. Pierre, who also is an attorney, insisted during his testimony the compiled scores assigned by individual committee members of each of the 62 companies continue to be compiled by the City Council’s office staff.
“Nothing’s final. They’re still calculating,” St. Pierre said. “There is no official list.”
Vinson and Pike said the scores given by each committee member to the more than five dozen firms — along with reams of supporting documents submitted by each of them to the city for review – would be open to review by the four other council members who aren’t on the subcommittee. Those four officials ultimately could agree or ignore the committee’s recommendations.
Marlinga, however, said the scores would influence the entire council and virtually eliminate 37 applicants from getting a medical marijuana license in Macomb County’s largest community.
To undo months of work by the committee would be burdensome to city officials and impact the applicants who have invested considerable time and money hoping the process moves forward, according to Pike. Marlinga, however, noted start-up business often take years to get off the ground and cannot make an effective argument that their business has been harmed by legal disputes.
“The ordinance doesn’t say the public or applicants have a right to know why they scored how they did,” Pike said.
“That’s not a good thing,” Marlinga said with criticism. “Scoring is subjective based on information made in secret and received in secret.
“What the subcommittee does really sets the hook as to how these applicants should be ranked,” the judge said. “One would be a fool to think these recommendations don’t mean anything at all.”
As part of his order prohibiting Warren from issuing the licenses for the time being, Marlinga suggested attorneys on both sides of the case submit legal briefs that could be used to prepare the framework for the formal, written preliminary injunction to be issued and how the city can move forward with the process.
The judge said that forcing the city to start over with the application process would provide the ultimate remedy for the subcommittee’s violation of the Open Meetings Act, but he acknowledged that much of the subcommittee’s labor should not be wasted.
Bologna and Griem declined Wednesday to identify the two individuals who they say formed DNVK4.
“If they win this case, they’ll receive death threats,” Griem told The Macomb Daily.
Bologna and Griem also represent a second company – BDECO, Inc. – and a separate lawsuit over medical marijuana licensing in Warren. The city and all five members of the medical marijuana subcommittee are defendants in that case. The two attorneys said that lawsuit, filed on Aug. 21, involves some similar issues but also different complaints.
No hearing has been set.
Pike said the filing of the two lawsuits has prompted calls from lawyers representing other applicants awaiting decisions of the medical marijuana licenses. She expects more medical marijuana lawsuits will be filed against the city.
