Judge chastises lawyers in Menominee marijuana lawsuit for ‘gamesmanship’

MENOMINEE, Mich. (WJMN) — The judge who has overseen what has become years of lawsuits over marijuana policy in the City of Menominee asked for a change of approach from the near-dozen lawyers involved in the case.

In the current lawsuit, dispensaries Rize U.P. and The Fire Station (and Adam Michaud, with a defeated ballot initiative committee formed with the goal of putting the city’s marijuana policy up to a vote) are suing the City of Menominee, saying it broke state and local rules when it uncapped its limit on cannabis dispensary permits last year.

The two dispensaries were originally expected to be the only ones allowed to open after promising large local investments in their applications to the city, but a slew of lawsuits in 2021 from the rejected applicants eventually led to the policy reversal last year.

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Since then, a good deal of those dispensaries—including Lume, Higher Love, and The Nirvana Center have opened up shop and joined the new lawsuit as intervening defendants.

That’s also about the time when accusations of backroom deals, conspiracy, and efforts to influence elections began firing back and forth.

This year, the plaintiffs have narrowed their suit to focus on their claims that the city violated the Michigan Regulation and Taxation of Marihuana Act (MRTMA) and the city charter when it decided to lift its cap on marijuana business permits, dropping, among other things, its accusation that the city council violated the Open Meetings Act; an issue that led to a 10-day closure of all dispensaries but Rize and Fire Station. The judge lifted the order after the council corrected the violations in a special meeting last November.

For anyone new to the story, you can get up-to-speed with our previous work:

‘Let the chips fall where they may’: settlement talks stall as marijuana lawsuits head toward trial

An end in sight? Unsealed docs show possible terms of Menominee marijuana settlement

U.P. mayor-elect told suing dispensaries to ‘knock it off’. Their lawyer fired back.

U.P. dispensaries trade blame as dozens of budtenders left jobless

Thursday’s hearing was set to address several motions for summary disposition. Among the arguments to be decided were counter-claims from Lume and Higher Love, accusing Rize and Fire Station of harming their business due to their lawsuit leading to a temporary closure of their stores, and of generally abusing the system through their legal filings.

After over three hours of argument, Judge Barglind ruled on the claims—but not before scolding the attorneys for a pattern of behavior that has been taxing an already-stressed court and clerk’s office.

About 10 attorneys were present. Familiar faces included Mike Cox and James Martone for Rize and Fire Station; Joslin Monahan, Jackie Langwith, and Kevin Blair for Higher Love, Nirvana Center and Lume respectively. Also present were Jeremy Manson, Nick Tatro, Eric Kociba, Jack Turner, and Robert Hahn.

Judge Barglind said most–but not all–the attorneys were guilty of the behavior.

”It’s gamesmanship. I get it,” said Judge Barglind. “You’re waiting to the last minute so that you get credit for filing that day, but the attorneys in the court lose that day in response time and review time.”

“We’ve all been spending nights and weekends on the case. I get it. There’s a lot involved. It’s an important issue,” Judge Barglind said. “All I am saying is, ‘could we please act with a bit more civility towards each other, respect for each other, respect for the court, and respect for the staff that is dealing with this?’”

She said the practice may be harming court employees more than the attorneys are aware. “When you bring a lengthy pleading in at 4:20 p.m., and they leave at 4:30 p.m., you’re saying, ‘you don’t get to go home on time tonight,’ because there is time involved in filing and processing that document so that it gets stamped and entered the day you brought it. And they do that. But it’s not fair.”

After that, Judge Barglind made decisions on the motions at hand—whether the plaintiffs’ argument that the city council violated MRTMA had legs, and whether Rize, Fire Station, or ballot initiative committee committed tortious interference or abused the legal system with the filing of their lawsuits or related actions.

“Count 1 of the plaintiffs’ complaint alleges MRTMA does not authorize unlimited marijuana establishment licenses,” said Judge Barglind.

Specifically, the line in MRTMA up for debate was “…except as provided in Section Four, a municipality may completely prohibit or limit the number of marijuana establishments within its boundaries.”

Attorney Mike Cox, representing Rize, argued that it was an either/or situation—that municipalities are allowed to prohibit or limit the number of dispensaries, but not say the capacity is “unlimited.”

Judge Barglind said the argument was not frivolous, but still disagreed with Cox. She said municipalities are also allowed to do nothing; in which case, there would be no limit on dispensaries as a default under the law.

The next issue decided was a counter-claim from Higher Love; whether the plaintiffs knowingly and intentionally interfered with their business by filing for a temporary restraining order, which led to their 10-day shutdown.

Attorney Cox argued that it is not illegal to use the justice system to pursue valid claims, and that if Higher Love’s accusation was true, it would make Judge Barglind complicit since she signed off on the order.

Judge Barglind agreed with Cox, saying the shutdown was legal and justified. Given that, she said the suits did not lead to the “breach or termination of a business relationship or expectancy.”

Another part of the argument made on behalf of Higher Love was that the accusations of bribery made in the plaintiffs’ lawsuits were untrue and untoward.

While a First Amendment defense was levied by the plaintiffs, Judge Barglind said while she agreed, she thought a more elemental principle supported the argument. She said the law states unequivocally that it is not illegal to file a lawsuit whether it has merit or not.

On Lume’s accusation of an abuse of process, Judge Barglind rejected their arguments, which pointed to the 10-day shutdown, an assumption that Rize and Fire Station are attempting to preserve a duopoly in the city, and that some terms the plaintiffs had offered to settle on were not mentioned as relief sought in their original complaint.

The last motion to be decided was a request by Lume to change the rules of discovery, saying the attorneys for Rize and Fire Station were “stiff-arming” their discovery efforts.

“As long as [Rize and Fire Station] are insulated from having to answer questions about their unclean hands, they’ve been uninterested in having any meaningful conversations about potentially resolving this case as a whole,” said Blair, asking the court to shorten the mandatory response time significantly shorter than the current 28-day benchmark.

Judge Barglind denied the request, saying based on the argument of counsel, she saw no “palpable error” in the original rules of discovery she had set.

The next hearing in this case is May 14.

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