Posted by: Patricia Salkin | February 21, 2014

Michigan Supreme Court Holds Zoning Ordinance is Preempted by Michigan Medical Marihuana Act

Michigan enacted the Michigan Medical Marihuana Act (MMMA) in 2008, which “affords certain protections under state law for the medical use of marijuana in the state of Michigan.” The specific section in controversy was §4(a), which provides those who qualify for it, immunity from any type of penalty. However, in 2010, the City of Wyoming, Michigan, enacted a zoning ordinance, which simply stated “any land uses that are contrary to federal law” were subject to civil sanctions. And, because marijuana falls under the Controlled Substances Act (CSA), a federal law that prohibits the use of marijuana, the City of Wyoming prohibited any land use concerning marijuana.

John Ter Beek (Ter Beek) qualified as a patient under the MMMA who was immune from penalties, and carried the requisite identification card. Ter Beek filed suit after the City adopted the ordinance because he wanted “to grow, possess, and use medical marijuana in his home in accordance with the MMMA.” Ter Beek argued that because the City’s ordinance incorporated the CSA it was in contravention of §4(a) of the MMA. He sought a declaratory judgment that the MMMA preempted the ordinance, as well as an injunction prohibiting the City from enforcing it against him for the medical marijuana use he sought to lawfully engage in under the MMMA. Thus, the court needed to determine, if: (1) the ordinance was preempted by the MMMA, and (2) if the MMMA was preempted by the CSA. The court looked to the key provisions of both statutes and the ordinance.

The relevant portion of the MMMA, as related to the ordinance, stated “[a] qualifying patient who has been issued and possesses a registry identification card shall not be subject to . . . penalty in any manner . . . for the medical use of marihuana in accordance with this act.” The growing, possession, and use of medical marijuana is included in the MMMA’s definition of “medical use.” However, the CSA does not afford any type of immunity, and essentially states that it is unlawful to engage in possession or manufacturing of marijuana, intentionally or unintentionally, because it is a Schedule I controlled substance. Looking to the language of the CSA, the court found that it did not expressly preempt §4(a) of the MMMA and then analyzed whether there was a “positive conflict” between the enforcement of the two statutes. The court found that because §4(a) only provided immunity under state law and not federal law, that there was no conflict between the MMMA and the CSA because qualified individuals protected under the state law could still be penalized under federal law. Therefore, the purpose of the federal law could still be accomplished and did not preempt the state law.

Next, the court addressed whether the ordinance was preempted by the §4(a). The court looked to the Michigan State Constitution, which simply states, “ordinances are subject to the laws of this state.” This piece of language was enough for the court to determine that the ordinance was preempted by §4(a), because the ordinance sought to penalize those who were registered qualifying patients under §4(a), which states that such patients would not be penalized. The court entered in favor of Ter Beek holding that the “[o]rdinance was preempted by § 4(a) of the Michigan Medical Marijuana Act, which in turn is not preempted by the federal controlled substances act.”

John Ter Beek v. City of Wyoming, 2014 WL 486612 (Mich. 2/6/2014)

The opinion can be accessed at:

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