On July 31, 2012, the Michigan Court of Appeals issued its published decision in Ter Beek v City of Wyoming. The upshot of the Court’s decision is that Michigan municipalities may not ban the medical use of marijuana conducted in compliance with the Michigan Medical Marihuana Act (the “MMMA”), even though this same activity is illegal under federal law.
In the Ter Beek case, a person registered as a “qualifying patient” under the MMMA challenged a City of Wyoming zoning ordinance provision that made the medical use of marijuana illegal in the entire City. This was done indirectly, by way of prohibiting any use that would violate federal law. In that regard, marijuana is a Schedule I controlled substance under the federal Controlled Substance Act (“CSA”), and so its use and distribution remains illegal under federal law – for any purpose – even though the MMMA provides immunity from state or local prosecution for lawful medical use. The end result was that the City of Wyoming zoning ordinance prohibited the exact same activity that the MMMA allows (i.e., the medical use of marijuana).
The plaintiff in the Ter Beek case argued that the City zoning ordinance is preempted by the MMMA, for the reason that a local ordinance may not prohibit what a state statute permits. The City countered with the argument that the federal CSA preempts the MMMA, and thus allows the City to prohibit the use and distribution of marijuana. The trial court agreed with the City, holding that the MMMA stands as an obstacle to the purposes and objectives of the federal CSA, such that the CSA preempts the MMMA. However, the Court of Appeals reversed.
The Court of Appeals first held that the City zoning ordinance is preempted by the MMMA for the reason that the City zoning ordinance prohibits the exact same activity that the MMMA allows, which a local ordinance may not do under well-established preemption principles. Turning then to the issue of whether the federal CSA preempts the MMMA, the Court concluded that it does not. In reaching this decision, the Court made two principal holdings.
First, the Court held that the CSA does not preempt the MMMA based on what is known as “impossibility” preemption – a doctrine which holds that a state statute will be preempted by a federal statute if it is impossible to comply with both statutes at the same time. The Court reasoned that impossibility preemption does not apply because the medical use of marijuana under the MMMA is not mandatory, such that it is not impossible to comply with the MMMA and the CSA at the same time. In simple terms, by not using marijuana at all, a person is able to comply with both statutes.
Second, the Court held that the CSA does not preempt the MMMA based on what is known as “obstacle” preemption – a doctrine which holds that a state statute will be preempted by a federal statute if the state statute stands as an obstacle to the purposes and objectives of the U.S. Congress. The Court reasoned that obstacle preemption does not apply because (a) the MMMA expressly states that it does not immunize marijuana users from federal prosecution; and (b) under principles of federalism, the federal government cannot require the states to either enforce federal law or to criminalize or prohibit conduct that might be illegal under federal law, including the medical use of marijuana. Stated another way, the states are free to decriminalize behavior (for purposes of state law) that remains illegal under federal law.
The holding of the Ter Beek case is one that our firm’s municipal group had anticipated. Accordingly, since the adoption of the MMMA in 2008, we have been advising our municipal clients to avoid the approach taken by the City of Wyoming, and to instead adopt zoning provisions that (a) regulate the areas in which the medical use of marijuana is permitted, and (b) impose reasonable regulations on the medical use of marijuana to prevent the possible adverse secondary effects of this type of activity. The Ter Beek Court was careful to point out that its decision does not apply to this alternative type of ordinance. As such, we continue to recommend the same type of zoning provisions to our municipal clients.
If your municipality needs assistance preparing zoning provisions for the medical use of marijuana, please contact Mr. Redick or one of the other lawyers in Mika Meyers’ municipal law practice group.