Ter Beek v. City of Wyo.

Citation297 Mich.App. 446,823 N.W.2d 864
Decision Date31 July 2012
Docket NumberDocket No. 306240.
PartiesTER BEEK v. CITY OF WYOMING.
CourtCourt of Appeal of Michigan (US)

OPINION TEXT STARTS HERE

Daniel S. Korobkin, Michael J. Steinberg, Kary L. Moss, Detroit, Michael O. Nelson, Grand Rapids, and Miriam J. Aukerman for John Ter Beek.

Sluiter, Van Gessel, Winther & Carlson, PC (by Jack R. Sluiter and Arthur P. Winther, Wyoming), for the city of Wyoming.

Donald L. Knapp, Jr., Corporation Counsel, and Michael E. Fisher, Assistant Corporation Counsel, for Amicus Curiae the city of Livonia.

Before: SHAPIRO, P.J., and HOEKSTRA and WHITBECK, JJ.

HOEKSTRA, J.

In this declaratory judgment action, plaintiff, John Ter Beek, appeals as of right the trial court's order granting summary disposition in favor of defendant, the city of Wyoming. Plaintiff sought to void defendant's zoning ordinance on state preemption grounds because the zoning ordinance was enacted to prohibit conduct permitted by the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. Because we conclude that defendant's zoning ordinance directly conflicts with the MMMA, and the federal controlled substances act (CSA), 21 U.S.C. § 801 et seq., does not preempt § 4(a) of the MMMA, MCL 333.26424(a), we reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 1, 2010, defendant amended its city code and enacted a zoning ordinance that provides: “Uses not expressly permitted under this article are prohibited in all districts. Uses that are contrary to federal law, state law or local ordinance are prohibited.” Wyoming Ordinance, § 90–66. Violations of Wyoming's city code, including zoning violations, are punishable by “civil sanctions, including, without limitation, fines, damages, expenses and costs,” Wyoming Ordinance, § 1–27(a), and zoning violations are further subject to injunctive relief pursuant to Michigan's zoning enabling act, MCL 125.3407.

Plaintiff, who is a qualified medical-marijuana1 patient, lives within the city limits of Wyoming, where he grows and uses marijuana for medical purposes in his home, presumably in compliance with the MMMA. He has not been charged with violating the ordinance, nor has he been subjected to any penalties, fines, or injunctions.2 After the enactment of defendant's zoning ordinance,plaintiff filed a complaint seeking declaratory relief against defendant. Plaintiff's first amended complaint alleged that because the federal CSA prohibits the manufacture and use of marijuana, which the CSA sanctions as a schedule I controlled substance, defendant's ordinance prohibits the use, manufacture, or cultivation of marijuana for medical purposes. Plaintiff's complaint further alleged that defendant's ordinance is invalid because the ordinance prohibits and makes punishable the use, manufacture, or cultivation of marijuana for medical purposes in direct conflict with the MMMA. On these grounds, plaintiff maintained that the ordinance conflicts with the MMMA and, therefore, is preempted by the MMMA, and, consequently, is invalid. Defendant's answer admits that “the cultivation, possession and distribution of marihuana are subject to the zoning code of Wyoming,” but denies that its ordinance is preempted by the MMMA.

The parties filed competing motions for summary disposition pursuant to MCR 2.116(C)(10). Plaintiff argued that the ordinance directly conflicted with the MMMA and was accordingly invalid. Plaintiff further maintained that the federal CSA did not preempt the MMMA. Defendant argued that its ordinance was not preempted by the MMMA because the ordinance enforced the federal prohibition on the cultivation and distribution of marijuana as set forth in the CSA and that the CSA preempted the MMMA.

After hearing arguments from both sides, the trial court found that the CSA preempted the MMMA becausethe MMMA stood as an obstacle to the purposes and objectives of Congress as specified in the CSA. Consequently, the trial court declined to decide whether the MMMA preempted defendant's ordinance and, accordingly, issued an order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendant and denying plaintiff's request for declaratory relief.

II. STATE PREEMPTION OF THE WYOMING CITY ORDINANCE

On appeal, plaintiff reiterates his argument that defendant's ordinance is invalid because it conflicts with the MMMA. Accordingly, plaintiff requests that this Court reverse the finding of the trial court and remand with instructions to grant summary disposition in his favor and enter a declaratory judgment finding defendant's ordinance void and unenforceable to the extent that it prohibits the medical use of marijuana in accordance with the MMMA.

Whether a state statute preempts a local ordinance is a question of statutory interpretation and, therefore, a question of law that we review de novo. Mich. Coalition for Responsible Gun Owners v. City of Ferndale, 256 Mich.App. 401, 405, 662 N.W.2d 864 (2003). We also review de novo a decision to grant or deny a declaratory judgment; however, the trial court's factual findings will not be overturned unless they are clearly erroneous. Auto–Owners Ins. Co. v. Harvey, 219 Mich.App. 466, 469, 556 N.W.2d 517 (1996).

Further, we review de novo a trial court's decision to grant summary disposition. Coblentz v. City of Novi, 475 Mich. 558, 567, 719 N.W.2d 73 (2006). Summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim based on the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties. Id. The evidence is viewed in the light most favorable to the nonmoving party. Id. at 567–568, 719 N.W.2d 73. “Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to a judgment as a matter of law.” Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999).

A city ordinance that purports to prohibit what a state statute permits is void. Walsh v. City of River Rouge, 385 Mich. 623, 636, 189 N.W.2d 318 (1971). “A state statute preempts regulation by an inferior government when the local regulation directly conflicts with the statute or when the statute completely occupies the regulatory field.” USA Cash # 1, Inc. v. City of Saginaw, 285 Mich.App. 262, 267, 776 N.W.2d 346 (2009). A direct conflict exists between a local regulation and state statute when the local regulation prohibits what the statute permits. Id.

In its brief on appeal, defendant specifically acknowledges that the purpose of the ordinance “is to regulate the growth, cultivation and distribution of medical marihuana in the City of Wyoming by reference to the federal prohibitions regarding manufacturing and distribution of marihuana.” In making this argument, defendant relies on 21 U.S.C. § 841(a)(1), which makes it “unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance....” Further, under 21 U.S.C. § 812(c)(10), marijuana is a schedule I controlled substance; thus, manufacturing or possessing marijuana is generally prohibited under federal law. Consequently, these provisions of the CSA when read together with defendant's zoning ordinance, which makes any violation of federal law an unpermitted use of one's property, cause any medical use3 of marijuana pursuant to the MMMA on any property within the city of Wyoming to be a violation of defendant's zoning ordinance. Although plaintiff has not been punished for violating defendant's zoning ordinance, defendant's municipal code permits “civil sanctions, including, without limitation, fines, damages, expenses and costs” for violations of the code. Wyoming Ordinance, § 1–27(a). In addition, it cannot be disputed that if found in violation of Wyoming Ordinance, § 90–66, plaintiff would be subject to injunctive relief that would restrict the use of his property to purposes that would otherwise be permitted under the MMMA. See MCL 125.3407.

In contrast, the MMMA permits medical use as defined in MCL 333.26423(e), which includes use, possession, cultivation, delivery, and transfer. Further, the plain language of MCL 333.26424(a) provides immunity for a qualifying patient—which plaintiff is acknowledged to be—from being “subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege.” Under these circumstances, the question presented regarding conflict preemption between the MMMA and defendant's ordinance is whether the possibility of plaintiff's being subject to the civil sanctions of the Wyoming Ordinance, § 1–27(a) if found in violation of Wyoming Ordinance, § 90–66, for engaging in activity otherwise permitted by the MMMA constitutes a “penalty in any manner” prohibited by MCL 333.26424(a).

In addressing the issue of statutory interpretation, we apply the rule of statutory construction that [t]he words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters.” Welch Foods, Inc. v. Attorney General, 213 Mich.App. 459, 461, 540 N.W.2d 693 (1995). Further, we presume that the meaning as plainly expressed in the statute is what was intended. People v. Redden, 290 Mich.App. 65, 76, 799 N.W.2d 184 (2010). We may consult dictionaries in order to determine the plain and ordinary meaning of words not defined by a statute. Sanchez v. Eagle Alloy, Inc., 254 Mich.App. 651, 668, 658 N.W.2d 510 (2003).

The word “penalty” is undefined by MCL 333.26424(a). “Penalty” is defined as “a punishment imposed or incurred for a violation of law or rule.... [S]omething forfeited....” Random House Webster's College Dictionary (2001). Further, penalty as used in the statute is modified by the prepositional phrase “in any manner.” Plainly, this phrase is intended to require that the immunity from penalties is to be given the broadest application. Thus,...

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    ...not require, its citizens to engage in conduct that the CSA prohibits has divided other courts. Compare Ter Beek v. City of Wyoming, 297 Mich.App. 446, 823 N.W.2d 864, 872 (2012) (no preemption); Qualified Patients Ass'n v. City of Anaheim, 187 Cal.App.4th 734, 115 Cal.Rptr.3d 89, 109 (same......
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