Michigan Supreme Court hears arguments on medical marijuana

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Photo 1: From left to right, Justice Bridget Mary McCormack, Justice Mary Beth Kelly, Chief Justice Robert P. Young, Jr., Justice Stephen Markman, and Justice Brian K. Zahra. Not shown: Justice Michael Cavanagh, who was not present, and David Viviano, who was at far right.

Photo 2: ACLU attorneys at the Supreme Court, left to right, Michael J. Steinberg, state Legal Director, and Daniel Korobkin and Miriam Aukerman, staff attorneys

LEGAL NEWS PHOTOS? BY CYNTHIA PRICE

by Cynthia Price
Legal News

The issues at stake in John Ter Beek v. City of Wyoming as it has moved up the court system have very little to do with marijuana, medical or otherwise, and everything to do with state preemption of local laws and federal preemption of state law.

(Note: in this article, the common spelling of “marijuana” will be used. The Michigan Medical “Marihuana” Act will be referred to as MMMA.)

The case has made it as far as the Michigan Supreme Court, where it was argued last Thursday by City Attorney Jack Sluiter for the City of Wyoming, and Daniel Korobkin of the American Civil Liberties Union of Michigan (ACLU), assisted by ACLU Executive Director Kary L. Moss, Legal Director Michael J. Steinberg, and staff attorney Miriam Aukerman, for Ter Beek.

Ter Beek v. Wyoming seeks a declaratory judgment on the legality of wording the City of Wyoming added to its zoning ordinance in 2010: “Uses not expressly permitted under this Ordinance are prohibited in all districts.  Uses that are contrary to federal law, state law or local ordinance are prohibited.”

The provision was enacted to exert Wyoming’s control over what it considered to be an act lacking in critical clarity. (The ACLU brief states, “Wyoming’s city manager... candidly admitted as much in a statement on the city’s website: ‘Although Michigan voters approved the use of medical marijuana in 2008, it remains illegal under federal law and, therefore, falls within the proposed zoning ordinance.’”)

John Ter Beek, a retired attorney and qualified medical marijuana patient, sued the city, claiming — as he told the Grand Rapids Legal News in Feb. 2011 — that Wyoming had no right to supersede state law. The trial court ruled that while the state law preempted the Wyoming ordinance, federal law, that is, the Controlled Substances Act (CSA), preempted the MMMA, rendering it unenforceable.

The Court of Appeals, in a July 2012 published decision signed by Joel P. Hoekstra, Douglas B. Shapiro, and William C. Whitbeck, reversed that decision. The opinion agreed with the ACLU argument that the CSA  did not preempt the MMMA.

The Michigan Supreme Court agreed to hear the appeal brought by the city.

At the Supreme Court courtrooms in Lansing last week, Jack Sluiter argued that the City of Wyoming was well within its bounds to legislate as it had because the ordinance was a zoning ordinance and the MMMA did not specifically exclude zoning ordinances. He said that Wyoming was not trying to stop registered patients from using marijuana in the privacy of their own homes, and that the available course of action for Ter Beek to pursue was similar to that of anyone under a zoning ordinance.  “Mr Ter Beek becomes a non conforming use,” Sluiter said. “He or any other resident can go to the zoning board and ask for a variance.”

He referred to People v. Llewellyn, stating that he felt it meant zoning ordinances were specifically exempt, at which point Justice Mary Beth Kelly interrupted with a question.

“The statutory scheme that you would envision is that different municipalities would have different local ordinances as it relates to the issue of the growing and use of medical marijuana within that local jurisdiction, and the state MMMA would continue to govern the state to the extent that a local ordinance did not otherwise govern?”

When Sluiter said yes, Justice Kelly asked if he thought that was what the citizens of the state intended when they passed the initiative — to which Sluiter answered, “I don’t think the citizens thought about it.”

Chief Justice Robert Young asked what he made of the MMMA’s explicit language, “All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.” [MCL 333.26427(e)] and said that he failed to see how this could exclude zoning ordinances, and that Sluiter’s case was “dead” unless “this is read to permit the kind of balkanized different ordinances around the state.”?Justice Stephen Markman followed up by asking Sluiter, “How would you suggest this language could be made any more specific?”

Sluiter maintained that the Zoning Enabling Act is on a par with the MMMA, and it allows cities and townships to provide for the health, welfare and safety of their residents.

Korobkin’s argument focused on the second aspect of the questions that the ACLU brief had asked the Supreme Court to clarify: “Is the MMMA preempted by the federal Controlled Substances Act (“CSA”), 21 USC 801 et seq., and therefore without effect, where (a) Congress  expressed its intent not to preempt states’ drug laws, (b) the MMMA does not require anyone to violate federal law and does not interfere with the enforcement of federal law, and (c) states retain sovereignty under the United States Constitution to refrain from using their own law enforcement resources to penalize conduct that happens to be illegal under federal law?”

The ACLU argued that whether a federal law preempts a state one should be considered with “a strong presumption against federal preemption of state law,” citing Patrick v Shaw (2007) and other cases. He referred to the U.S. Constitution’s Tenth Amendment and the associated anti-commandeering doctrine as a strong deterrent to federal law overriding state statute.

Moreover, the brief notes that the CSA itself states, “No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.”

Korobkin said that the MMMA passes the obstacle test, in that it dos not “block” federal law enforcement from pursuing people who use marijuana illegally under the CSA.

Justice Markman and Chief Justice Young noted that they would hope to fashion an opinion that would not preclude municipalities from enforcing nuisance ordinances, which Sluiter strongly supported in his rebuttal. 

Cooley constitutional law professor Curt Benson commented about the issue, “The federal government can do whatever it wants, but Congress cannot force the state of Michigan to enforce Federal law. So long as people have a choice then it’s up to the feds to enforce their own laws.”

The Supreme Court justices have until July 2014 to render their judgment, and although it seems clear which way they are leaning, there is nothing certain until the opinion is issued. As John Ter Beek said back in 2011, “We’ll have to let the courts resolve it.”