INITIATIVE ON POT WON'T PASS MUSTER, SOME LAWYERS SAY

State code would overrule local law.

Ask Dennis Pusateri about an initiative seeking to remove criminal
penalties for the misdemeanor possession of marijuana in Columbus, and
you'll hear the conflict in the defense lawyer's voice.

On the one hand, he believes Ohio and federal drug laws are too harsh. And
there's a personal element: The leader of the initiative campaign, Kenneth
Schweickart, is the son of Gary Schweickart, who died in 1990 after a
career of taking controversial cases and is a legend among Columbus'
criminal-defense lawyers.

On the other hand, Pusateri said, even if it makes the ballot and passes,
the initiative is likely to make no legal difference.

"It's just not written in a clear, enforceable way," Pusateri said. "You've
got a well-meaning political organization that probably hasn't gotten the
proper legal advice."

Pusateri isn't alone in his assessment. Other defense lawyers yesterday
agreed that although the initiative could spur much-needed debate on the
reform of marijuana laws, it likely will mean nothing to people arrested
for possessing the drug in Columbus.

On Tuesday, Schweickart and his group, For a Better Ohio, turned in 10,179
signatures on a petition that seeks to end criminal penalties and
prosecution for the possession of up to 7 ounces of marijuana. If at least
7,213 of those signatures are valid, the issue would go before Columbus
voters in November.

Schweickart said yesterday that he's certain the initiative will hold up to
legal scrutiny if it passes.

"If the voters enact this, it's the will of the people," he said. "If it's
passed into law, it will be the law."

Not if it violates the state constitution.

"I sort of hate going against Kenny," said Don Ruben, a lawyer who said he
stopped defending drug cases in the early 1990s after mandatory minimum
sentencing made it too frustrating. "His heart's in the right place, but I
just think it's sort of silly because it conflicts with the home-rule
provision under the Ohio Constitution."

Cities have home-rule powers to set their own laws, Ruben said, but they
can't overturn state criminal codes.

"You can increase the penalties, but you cannot do away with the crime or
decrease the penalties," he said.

Schweickart, who is pursuing a social-work degree at Ohio State University,
said his research shows otherwise.

Cities cannot change felony laws, he said, but they can reduce misdemeanor
penalties.

"They may not be familiar with examples of cities superseding the state,"
Schweickart said of his critics. "There are case studies that prove we can
reduce misdemeanor law."

He points to the city of Delaware, where a city code similar to the state's
drug possession law does not require the revocation of an offender's
driver's license. A state law requires that anyone convicted under state
drug codes must lose his or her driver's license for at least six months.

But Peter Ruffing, city prosecutor in Delaware, said the city's code does
not conflict with state law. When the state legislature passed its
license-revocation law, he said, it did not require that cities with
similar laws also revoke driver's licenses. Had the state required cities
with similar codes to follow the revocation law, Ruffing said, Delaware
would have no choice but to follow it.

The situation is different, he said, than what Schweickart proposes: a city
law that tells city prosecutors and police officers not to enforce the
state's misdemeanor marijuana law.

"I don't think a city code could say you're not allowed to uphold a
particular state law," Ruffing said.

Even if the initiative isn't thrown out, any prosecutor worth his salt
could find a way around it, said J. Elliot "Skip" Van Dyne, who has
practiced criminal-defense law since 1972.

"It's not for me to tell the prosecutors how to get around it," he said,
"but even they're smart enough for that."

Van Dyne, who taught law to Schweickart's father at Capital University,
said the initiative is good for one thing.

"I think it can accomplish a debate," he said. "It's absolutely good for that."