GRAND RAPIDS, MI – If city police do not refer cases of felony adultery for prosecution of state law, then why should they have to refer marijuana violations?

That’s one argument in a legal brief filed by DecriminalizeGR’s attorney in advance of a Jan. 9 hearing before Kent County Circuit Judge Paul Sullivan. Voter-approved decriminalization of marijuana possession and use in Grand Rapids is on hold pending the outcome of a lawsuit filed by Kent County Prosecutor Bill Forsyth.

Among Forsyth’s arguments: Grand Rapids police cannot be prohibited from alerting him to violations of state marijuana law.

“Are you saying the city manager can’t say to the Grand Rapids Police Department we don’t arrest people and jail them for adultery in this city?” said Jack Hoffman, DecriminalizeGR attorney. “The prosecutor keeps arguing that the city has no power to set rules for the conduct of Grand Rapids police officers and I think that’s a total misreading of Michigan law.

"(The police officer's) oath is to follow orders, and the top of the chain of command is the city manager.”

Hoffman’s legal brief uses this analogy: “A rule of conduct not to investigate, arrest and jail Grand Rapids citizens for felony adultery and refer complaints of the same to the prosecutor...would not be an order requiring an officer to do an illegal act. It would be an order to the officer to refrain from doing what would otherwise be a legal act.”

Said Tim McMorrow, the attorney handling the case for the prosecutor's office: "I don’t think the comparison is apt."

“You can’t preclude the chief law enforcement officer of the county from even learning about these cases," he said. "We’re not suggesting that we’re really eager to prosecute people for marijuana, but you cannot completely divest the prosecutor (of his ability to do so).”

RELATED: See who helped fund Grand Rapids marijuana, comptroller proposals

Forsyth sued Grand Rapids to halt implementation of a city charter amendment that would change marijuana violations from misdemeanor crimes into civil infractions punishable by fines of $25 to $100. The charter language also would prohibit city police from notifying county or state law enforcement about marijuana violations.

City Attorney Catherine Mish said the city plans in the coming days to file a brief that cooperates with DecriminalizeGR’s take on the suit.

“We are both attempting to implement the will of the city’s voters to the fullest extent permissible by law,” she said.

Another of Forsyth's complaints: Grand Rapids has no authority to usurp state law on marijuana by making it a civil infraction locally. Hoffman in his brief argues against that by making an analogy to prostitution.

“(State law) prohibits marijuana. The (city) charter amendment does likewise," he wrote. "A city ordinance which prohibits prostitution as a non-criminal offense is not in conflict with a state law which prohibits prostitution as a crime.”

The prosecutor's office says state legislation passed in 1994 - after Ann Arbor made marijuana violations civil infractions - prohibits Grand Rapids from passing an ordinance or amending its charter so that marijuana violations become civil infractions. Hoffman contends that the 1994 law prohibits only ordinances to that effect, not charter amendments.

“There would be nothing wrong (with the city charter amendment) from a legal standpoint if the state chose to legalize marijuana or decriminalize it,” McMorrow said. “The Home Rule Cities Act says that the city cannot pass an ordinance that makes a civil infraction out of something that is a crime under state law. We don’t really think that makes a difference” whether it’s an ordinance or a charter amendment.

The charter amendment was set to take effect Dec. 6, but a temporary restraining order put that on hold pending the Jan. 9 hearing.