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City of Wyoming's zoning ordinance preempted by Michigan’s Medical Marijuana Act

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A unanimous opinion published by Michigan’s Supreme Court on Thursday held that the City of Wyoming enacted an unlawful zoning ordinance in 2010 that “prohibits and subjects to civil sanction any land “[u]ses that are contrary to federal law.”

The case originated when John Ter Beek, a retired attorney and registered medical marijuana patient, sued the City of Wyoming seeking a declaratory judgment to nullify their ordinance. Ter Beek’s primary argument was that the city’s ordinance was illegal because Michigan’s Medical Marijuana Act (MMMA) mandates that registered medical marijuana patients “shall not be subject to arrest, prosecution, or penalty in any manner . . . for the medical use of marihuana in accordance with” the MMMA.

In September of 2011, Kent County Circuit Court Judge Dennis B. Leiber issued an order in which he upheld the city’s ordinance and opined that the MMMA was preempted by the federal Controlled Substances Act (CSA). Judge Leiber disclosed that “the Wyoming ordinance is very broad in that it bans marijuana with the same reach of federal statutes.”

Ter Beek, who was represented by the American Civil Liberties Union of Michigan (ACLU), appealed to Michigan’s Court of Appeals (COA). On July 31, 2012, the COA issued an opinion reversing Judge Leiber’s ruling and they held the City of Wyoming’s zoning ordinance was preempted by the MMMA and that the CSA did not preempt the MMMA.

The City of Wyoming then filed an appeal of that COA decision to the Supreme Court, which heard oral arguments in the case on October 10, 2013. (Watch video of those oral arguments here: http://vimeo.com/79968136)

The City of Wyoming’s attorney, Jack R. Sluiter, argued in his appellate brief that “the [MMMA] is preempted by the federal Controlled Substances Act under both the conflict and obstacle preemption doctrines.”

The Supreme Court’s Feb. 6 Opinion in Ter Beek v City of Wyoming was authored by Justice Bridget M. McCormack, who pointed out that the city’s ordinance “directly conflicts with the MMMA… because it permits registered qualifying patients, such as Ter Beek, to be penalized by the City for engaging in MMMA-compliant medical marijuana use.”

The Supreme Court concluded that the City of Wyoming’s “Ordinance is preempted by § 4(a) of the [MMMA], which in turn is not preempted by the federal controlled substances act. Accordingly, we affirm the judgment of the Court of Appeals, reverse the circuit court’s grant of summary disposition in favor of the City, and remand for entry of summary disposition in favor of Ter Beek.”

After reviewing the Supreme Court’s opinion, Dan Korobkin, the lead ACLU attorney representing Ter Beek, expressed: “This is the decision that medical marijuana patients have been waiting for. In 2008, people across the state overwhelmingly voted to protect patients from being punished or penalized for using marijuana to treat their medical conditions. [The] unanimous decision by the Michigan Supreme Court rejects the misguided efforts of a few local officials to undo the results of that historic election.”

The City of Wyoming’s attorneys’ office had not returned this reporters phone call seeking their comment prior to the publication of this piece.

A footnote to the Supreme Court’s opinion revealed that the “City of Livonia, the Michigan Municipal League, the Prosecuting Attorneys Association of Michigan, and the State Bar of Michigan Public Corporation Law Section submitted briefs in support of the City; the Cannabis Attorneys of Mid-Michigan, and the Cato Institute, the Drug Policy Alliance, and Law Enforcement Against Prohibition submitted briefs in support of Ter Beek.”

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