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145816 - Ter Beek v Wyoming (City of)

John Ter Beek,
Daniel S. Korobkin
(Appeal from Ct of Appeals)
(Kent – Leiber, D.)
City of Wyoming,
Jack R. Sluiter


Under a November 1, 2010 amendment to the city code, Wyoming adopted a new zoning ordinance: “Uses not expressly permitted under this article are prohibited in all districts. Uses that are contrary to federal law, state law or local ordinance are prohibited.” “Uses contrary to federal law” include the manufacture or possession of marijuana, so it is a violation of the ordinance for a city resident to raise or possess marijuana, the city asserts. Violators are subject to injunctions and civil sanctions, including fines.
John Ter Beek, a Wyoming city resident, sued the city, arguing that the ordinance is invalid under the Michigan Medical Marihuana Act, MCL 333.26421 et seq. Ter Beek asserted that he is a qualified medical marijuana patient under the MMMA who grows and uses marijuana in his home. By prohibiting the use, manufacture, or cultivation of marijuana for medical purposes, the city ordinance is in direct conflict with the MMMA, he contended.
In its answer to Ter Beek’s lawsuit, the city admitted that “the cultivation, possession and distribution of marihuana are subject to the zoning code of Wyoming.” But, the city argued, the federal Controlled Substances Act, 21 USC 801 et seq., preempts § 4(a) of the MMMA, MCL 333.26424(a); since the city ordinance incorporates the federal law by reference, the MMMA cannot preempt the ordinance, the city asserted.
The trial court ruled in favor of the city and dismissed Ter Beek’s complaint, but in a published opinion, the Court of Appeals reversed, holding that the ordinance is invalid under the MMMA and that the CSA does not preempt Michigan’s medical marijuana law.
Under 21 USC 841(a)(1), it is “unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . .” Under 21 USC 812(c)(10), marijuana is a schedule I controlled substance; thus, manufacturing or possessing marijuana is generally prohibited under federal law. “Consequently, these provisions of the CSA when read together with defendant’s zoning ordinance, which makes any violation of federal law an unpermitted use of one’s property, cause any medical use of marijuana pursuant to the MMMA on any property within the city of Wyoming to be a violation of defendant’s zoning ordinance,” the Court of Appeals explained.
“In contrast, the MMMA permits medical use as defined in MCL 333.26423(e), which includes use, possession, cultivation, delivery, and transfer. Further, the plain language of MCL 333.26424(a) provides immunity for a qualifying patient—which plaintiff is acknowledged to be—from being ‘subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege’ .... We conclude that the civil injunctive relief that could be used to prohibit any medical use of marijuana within the city would constitute a ‘penalty in any manner’ as proscribed by MCL 333.26424(a).”
A city ordinance that purports to prohibit what a state statute permits is void, the appellate court said.
Moreover, the MMMA is not preempted by federal drug laws, the panel declared. Under Article 6, cl. 2 of the U.S Constitution, Congress has the power to preempt state law. “While there are three types of federal preemption, the only type of preemption at issue in this case is conflict preemption,” in which a state statute is in direct conflict with a federal law, the Court of Appeals stated.
Conflict preemption does not apply in this case, the Court of Appeals held. “[I]t cannot be disputed that state medical-marijuana laws do not and cannot supersede federal laws criminalizing the possession of marijuana,” the panel acknowledged.
But the MMMA is not in conflict with the CSA because the state law will not affect the federal law or its enforcement, the Court of Appeals reasoned. “MCL 333.26422(c) acknowledges that ‘[a]lthough federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law.’ Additionally, MCL 333.26422(b) recognizes that 99 out of every 100 marijuana-based arrests in the United States are made under state law. Accordingly, the statute declares that ‘changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana.’ Id. (emphasis added). Accordingly, the MMMA itself recognizes the federal policy regarding marijuana and acknowledges that state law will not affect the federal law.”
The panel continued, “[C]onstruing MCL 333.26424(a) to grant immunity only from state prosecution and other penalties avoids the absurd result that the MMMA purportedly preempts federal prosecutions, and avoids conflict with the CSA.
“Moreover, the MMMA’s decriminalization of the medical use of marijuana is not contrary to the CSA’s provisions punishing all medical uses of marijuana. The CSA provisions do not preempt the MMMA’s grant of immunity as found in MCL 333.26424(a) because it is well established that Congress cannot require the states to enforce federal law…. This, while Congress can criminalize all uses of medical marijuana, it cannot require the states to do the same.”
The city appealed, and in an order dated April 3, 2013, the Supreme Court granted leave to appeal. The Court directed the parties to address “(1) whether the defendant city’s zoning code ordinance, which prohibits any use that is contrary to federal law, state law, or local ordinance, is subject to state preemption by the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq.; and (2) if so, whether the MMMA is subject to federal preemption by the federal Controlled Substances Act (CSA), 21 USC 801 et seq., on either impossibility or obstacle conflict preemption grounds. See 21 USC 903.”