Ann Arbor officials didn't violate law by having 'secret discussions' about marijuana policy, judge says

“Judge Morris correctly dismissed the lawsuit brought by the Ann Arbor Chronicle because it had no legal merit," City Attorney Stephen Postema said in a statement.

"The court ruling is not surprising," Postema added, "given that the council did absolutely nothing wrong by attending a properly called closed session on July 19 — as even a most basic reading of the Open Meetings Act and relevant case law demonstrates."

The Chronicle sued the city in September, claiming City Council members violated the state's Open Meetings Act by formulating plans for a moratorium on new medical marijuana dispensaries behind closed doors on July 19. The lawsuit alleged council members privately discussed and possibly gave directive to the city attorney in closed session.

Following that meeting, the City Council voted Aug. 5 on a temporary moratorium to stop any new medical marijuana dispensaries from opening in Ann Arbor. The moratorium remains in effect as city officials continue to craft regulations for marijuana businesses.

Postema said the court recognized the City Council is authorized by statute to go into closed session to discuss attorney-client privileged communications. He said the Chronicle's attorney "was evidently aware of the relevant law in this matter but nonetheless chose to pursue this case for reasons unknown. This is unfortunate."

Chronicle editor Dave Askins and his attorney said on Thursday they're looking forward to exploring opportunities to appeal the court's ruling and establish new case law that will bring the allowable use of closed sessions back in line with the spirit of the Open Meetings Act.

"We respectfully disagree with the court's opinion," said East Lansing attorney Jeffrey Hank, who represented the Chronicle in the lawsuit. "We believe we presented clear evidence of an Open Meetings Act violation. We basically hope at the end of the day to get a rule clearing up the Open Meetings Act and what is allowed (for a closed session)."

Hank said he thinks the city of Ann Arbor is applying the "attorney-client privilege" rule too broadly and undermining the Open Meetings Act.

While preparing the motions in the case, Ann Arbor officials became aware that Hank was looking to open a medical marijuana dispensary in East Lansing but had been stymied by a moratorium there. Hank, a known medical marijuana advocate, doesn't deny that.

He declined to comment on Thursday when asked if he had any business interest in opening a medical marijuana dispensary in Ann Arbor.

Though Hank and the Chronicle filed suit against Ann Arbor shortly after the city passed the moratorium in August, they maintain the lawsuit isn't about medical marijuana — the case is "100 percent" about the Open Meetings Act, Hank said.

Askins said the Chronicle established a working relationship with Hank around the first week of July, and so the timeline refutes any speculation that Hank's involvement with the case was based on anything other than the merits of the Open Meetings Act lawsuit.

He said Hank was suggested by the Michigan Bar Association referral service after the Chronicle inquired about attorneys specializing in Open Meetings Act and Freedom of Information Act issues. He said the referral predates the July 19 closed session.

"I had no idea that Jeffrey was also interested in medical marijuana issues when we obtained the referral," Askins wrote in an e-mail to AnnArbor.com. "We focused on the possibility of retaining him to handle future OMA/FOIA issues — the city of Ann Arbor seems to generate a lot of these type of issues."

At Wednesday's hearing, city staff attorney Abigail Elias represented the city in court. At the close of the one-hour hearing, the judge ruled in favor of the city and dismissed the case.

Hank said it's still uncertain exactly what happened in the July 19 closed session, but he said certain council members have confided in the Chronicle that policy discussions and decisions were made. The Chronicle is not sharing names of those council members.

The Chronicle also claims statements made by council members at the Aug. 5 meeting, when the moratorium was decided, suggest directives or decision-making happened in private.

Council Member Stephen Rapundalo, D-2nd Ward, stated publicly at that meeting in regard to the moratorium: "In fact, this was discussed at our last meeting, and a directive was given to the city attorney at that time to bring this forward to this meeting tonight, and I believe everyone was in the room when that was indicated." 

Council Member Tony Derezinski, D-2nd Ward, can be seen on the archived meeting video nodding his head in agreement with Rapundalo.

Rapundalo later issued a public retraction on Sept. 7, claiming he misspoke and that his statement that any directive was given was a "misrepresentation" of what happened.

"He changed his story 100 percent," Hank said. "That's why we're fighting the case."