Syllabus: Ter Beek v. City of Wyoming

The Michigan Supreme Court, Chief Justice: Robert P. Young, Jr.;  Justices: Michael F. Cavanagh,  Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, filed their opinion Feb. 6, 2014 in the case Ter Beek v. City of Wyoming. An article about the oral argument in that case appeared in the Grand Rapids Legal News for Oct. 1, 2013.

As noted in the document, “This syllabus constitutes no part of the opinion of the Court but has been  prepared by the Reporter of Decisions for the convenience of the reader.” The Reporter of Decisions is Corbin R. Davis.

Docket No. 145816.
Argued October 10, 2013 (Calendar No. 8).  Decided February 6, 2014.  
John Ter Beek, a resident of the city of Wyoming, filed an action in the Kent Circuit Court against the city, seeking to have a city zoning ordinance declared void and an injunction entered prohibiting its enforcement.  The ordinance generally prohibited uses that were contrary to federal law, state law, or local ordinance, and permitted punishment of violations by civil sanctions.  Ter Beek was a qualifying patient and held a registry identification card under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq.  He wished to grow and use marijuana for medical purposes in his home and argued that § 4(a) of the MMMA, MCL 333.26424(a), which provides that registered qualifying patients shall not be subject to arrest, prosecution, or penalty in any manner for certain medical use of marijuana in accordance with the act, preempted the ordinance.  Both parties moved for summary disposition.  Ter Beek argued that because the federal controlled substances act (CSA), 21 USC 801 et seq., prohibited the use, manufacture, or cultivation of marijuana, the ordinance likewise  prohibited the use, manufacture, or cultivation of marijuana for medical use and therefore conflicted with and was preempted by the MMMA.  The city argued instead that the CSA preempted the MMMA.  The court, Dennis B. Leiber, J., granted summary disposition in favor of the city, agreeing that the CSA preempted the MMMA.  Ter Beek appealed.  The Court of Appeals, SHAPIRO, P.J., and HOEKSTRA and WHITBECK, JJ., reversed, concluding that the ordinance conflicted with § 4(a) of the MMMA and that the CSA did not preempt § 4(a) because it was possible to comply with both statutes simultaneously and the state-law immunity for certain medical marijuana patients under § 4(a) did not stand as an obstacle to the federal regulation of marijuana use.  297 Mich App 446 (2012).  The Supreme Court granted the city leave to appeal.  493 Mich 957 (2013). 
In a unanimous opinion by Justice MCCORMACK, the Supreme Court held:  
The federal controlled substances act does not preempt § 4(a) of the MMMA, but § 4(a) preempts the ordinance because the ordinance directly conflicts with the MMMA.  

1.  The Supremacy Clause of the United States Constitution, US Const, art VI, cl 2, invalidates state laws that interfere with or are contrary to federal law.  Under 21 USC 903, which specifically addresses the CSA’s preemption of state statutes, the relevant inquiry is whether there is a positive conflict between the federal and state statutes so that the two cannot consistently stand together.  Such a conflict can arise when it is impossible to comply with both  the federal and the state requirements or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.  

2.  The CSA does not preempt § 4(a) on the ground of impossibility preemption.  Impossibility preemption requires more than the existence of a hypothetical or potential conflict.  It results when state law requires what federal law forbids or vice versa.  It is not impossible to comply with both the CSA and § 4(a) of the MMMA.  The CSA makes manufacture, distribution, or possession of marijuana a criminal offense under federal law.  Section 4(a) of the MMMA does not require commission of that offense, however, nor does it prohibit punishment under federal law.  Instead, if certain individuals choose to engage in MMMA-compliant medical use of marijuana, § 4(a) provides them a limited state-law immunity from arrest, prosecution, or penalty, an immunity that could not and does not purport to prohibit the federal criminalization of, or punishment for, that conduct.   

3.  Section 4(a) does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the CSA, and the CSA accordingly does not preempt § 4(a) on that ground.  A state law presents an obstacle to a federal law if the purpose of the federal law cannot otherwise be accomplished.  Under the CSA, Congress categorized marijuana as a Schedule I controlled substance, thereby designating it as contraband for any purpose and indicating that it has no acceptable medical uses.  Michigan also has designated marijuana as a Schedule 1 controlled substance, and its possession, manufacture, and delivery remain punishable offenses under Michigan law.  In enacting the MMMA, however, the people of the state chose to part ways with Congress only regarding the scope of acceptable medical use of marijuana, allowing a limited class of individuals to engage in certain uses in an effort to provide for the health and welfare of Michigan citizens.  While the MMMA and the CSA differ with respect to the medical use of marijuana, the limited state-law immunity for that use under § 4(a) does not frustrate the CSA’s operation or prevent its purpose from being accomplished.  The immunity does not purport to alter the CSA’s federal criminalization of marijuana or interfere with or undermine federal enforcement of that prohibition.  Moreover, by expressly declining in 21 USC 903 to occupy the field of regulating marijuana, the CSA explicitly contemplates a role for the states in that regard, and there is no indication that the purpose or objective of the CSA was to require states to enforce its prohibitions.   
4.  The ordinance is preempted by § 4(a).  Under Const 1963, art 7, § 22, a municipality’s power to adopt resolutions and ordinances relating to its municipal concerns is subject to the Constitution and the law.  A municipality is therefore precluded from enacting an ordinance if the ordinance directly conflicts with the state’s statutory scheme or if the statutory scheme preempts the ordinance by occupying the field of regulation that the municipality seeks to enter, to the exclusion of the ordinance, even if there is no direct conflict between the two schemes of regulation.  A direct conflict exists when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits.  The city’s ordinance directly conflicts with the MMMA by permitting what the MMMA expressly prohibits: the imposition of any penalty, including a civil one, on a registered qualifying patient whose medical use of marijuana falls within the scope of the immunity granted under § 4(a). 
Court of Appeals’ judgment affirmed, grant of summary disposition in favor of the city reversed, and case remanded to the circuit court for entry of summary disposition in favor of Ter Beek.
Details on the case may be found at:; the Opinion itself may be accessed by clicking on “Opinions” in the left column on that page.