David Rudoi Esq.
August 6, 2012
On July 31st, 2012 the Michigan Court of Appeals in John Ter Beek v City of Wyoming ruled that zoning ordinances which conflict with the Michigan Medical Marihuana Act are void and unenforceable. The City of Wyoming amended its city code and enacted a zoning ordinance which provides: “[u]ses 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.” The City of Wyoming admits 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 marijuana.” Basically, the City of Wyoming was attempting to penalize all medical marihuana growth, manufacture, distribution, and use by saying that you may not violate federal law in the city.
However, John Ter Beek decided to sue the City of Wyoming under the belief that that ordinance should be voided, due to its conflict with the Michigan Medical Marihuana Act. The controlling precedent is that any ordinance that purports to prohibit what a state statute permits is void. Therefore, the Michigan Court of Appeals ruled that The City of Wyoming ordinance was attempting to prohibit what the Michigan Medical Marihuana Act permits and is thus void and unenforceable. This leads to the conclusion that all city ordinances across the state that attempt to prohibit anything that the Michigan Medical Marihuana Act permits are void as well.
The City of Wyoming also argued that the Michigan Medical Marihuana Act is what should be void because it directly conflicts with the Federal Controlled Substances Act. There is the Supremacy Clause in the U.S. Constitution that basically states that any state law that is in direct conflict with a federal law is void. However, the Michigan Court of Appeals rejected this argument by looking at the intentions of congress when enacting the Controlled Substances Act. The Medical Use permitted by the Michigan Medical Marihuana Act is not mandatory, and it is thus not impossible to comply with both the Michigan Medical Marihuana Act and the Federal Controlled Substances Act. Therefore, the Michigan Medical Marihuana Act and the Federal Controlled Substances Act are not in direct conflict and the MMMA is thus not preempted by the federal CSA.
All uses of marijuana are still illegal under the Federal Controlled Substances Act. However, the Federal government cannot force the states to enforce federal law. Remember, the federal authorities can still arrest and prosecute medical marihuana users in federal court. However, in the State of Michigan any city ordinance which purports to prohibit any use of medical marihuana that is permitted by the MMMA is unenforceable.
At Rudoi Law we understand all of the case precedent regarding Medical Marijuana, and are fully prepared to help any citizen that is wrongly penalized for their proper medical marihuana use.