Ga. Supreme Court hears Senoia case
by Sarah Fay Campbell
Senoia resident Don Rehman and Senoia City Attorney Drew Whalen went before the Georgia Supreme Court Tuesday to argue over the wording of a city ordinance related to the possession of marijuana.
Each side was allotted 20 minutes to present to the justices, and some of that time could be used for rebuttal.
Rehman, who filed Rehman V. Belisle, Mayor Et Al. over the city's ordinance, took most of his time, saving some for rebuttal, while Whalen was much more brief and did not choose to rebut.
The justices did not ask questions of Rehman or Whalen during the oral arguments. The justices typically do ask questions, but it's not necessarily unusual that they did not, according to court Public Information Officer Jane Hansen. At times during Rehman's presentation, Justice Harold Melton could be seen staring at the ceiling.
The justices have up to six months to rule on the case, though it likely won't take that long.
Rehman had filed for a "writ of mandamus" in Coweta Superior Court over the wording of the ordinance.
A writ of mandamus is an order given from a court to a lower court, a branch of government, individual, etc. to perform a certain act.
The case was dismissed by Coweta Superior Court Judge Dennis Blackmon, and Rehman appealed.
A mandamus action is a direct appeal to the Georgia Supreme Court, and the court was required to accept the appeal, according to Hansen.
The city's ordinance states that "it shall be unlawful for anyone to have in his possession less than an ounce of marijuana."
"Perhaps we can now apply to these 18 words, the common people's understanding," said Rehman, the way that "people who have no legal education, no legal training or legal expertise" would read it.
In a common person's understanding, the words in the ordinance "can have a double meaning," Rehman argued. "On the one hand they mandate possession of not less than one ounce, while at the same time it can be held up to prohibit marijuana possession."
Rehman then read the state statute on misdemeanor marijuana possession, which is "well-written, easily understood and not subject to being misconstrued."
The city's ordinance could be problematic in the future, when future criminal defendants could "create legal havoc in their trials for possession of marijuana in the city of Senoia by raising as a defense the vague and confusing wording."
Rehman added that "throughout the state of Georgia there may be many on the bar and the bench who would welcome your direction on how these manners should be handled, when they are raised by a citizen."
"This is what this fuss is all about," said Whalen as he came before the justices.
The dismissal of the case was proper, said Whalen. First, Rehman did not properly service the parties. More importantly, he "has no standing to even be here. He has not been arrested and charged. Mr. Rehman has not suffered any loss or harm or imprisonment" related to the ordinance, Whalen said.
Whalen said the issue began around 2010, when Rehman "first started appearing in council meetings to give his thoughts as to how the city of Senoia should be run. That really brings me to, I think, the crux of this matter."
Rehman is not entitled to a writ of mandamus as "this is a pure legislative act," Whalen said.
The Senoia mayor and council are the governing authority of the city and they have "legislative discretion and I think absolute immunity as legislators to enact ordinances and to decide when those ordinances need to be repealed," Whalen said.
Additionally, "we don't believe there has ever been any attempt to enforce this ordinance" or to use it in the prosecution of a case, Whalen said.
"I think he fails to see that he is not the savior of the community," said Whalen. "This is a matter that is left properly to the legislative discretion of the mayor and city council as the governing authority — in which the court properly did not interfere and should not interfere."