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 Ter Beek v. City of Wyoming


Back in November of 2010, the city of Wyoming adopted a new zoning ordinance that states uses that are contrary to federal law, state law or local ordinance are prohibited. This including the manufacture or possession or marijuana, so it is a violation of the ordinance for a city resident to raise or possess marijuana, the city asserts. Violators are subject to injunctions and civil sanctions, including fines.

In a city of about 73,000 residents, one man sued to overturn the medical cannabis ban. John Ter Beek is a state-registered user who has diabetes and a painful neurological disorder, according to the lawsuit. The city admitted that “the cultivation, possession and distribution of marijuana are subject to the zoning code of Wyoming.” The city argued, the federal Controlled Substances Act, 21 USC 801 incorporates the federal law by reference, although the MMMA cannot preempt the ordinance. The trial court ruled in favor of the city and dismissed Ter Beek’s complaint, but in a published opinion, the Court of Appeals reversed, holding that the ordinance is invalid under the MMMA and that the CSA does not preempt Michigan’s medical marijuana law.

In contrast, the MMMA permits medical use as defined in MCL 333.26423, providing immunity for a qualifying patient from being ‘subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege.’ Civil injunctive relief that could be used to prohibit any medical use of marijuana within the city would constitute a ‘penalty in any manner’ as proscribed under this statute. According to the appellate court, a city ordinance that purports to prohibit what a state statute permits is void. Under a similar statute, it recognizes 99 out of every 100 marijuana-based arrests in the United States are made under state law. This will declare that changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marijuana. To grant immunity only from state prosecution and other penalties avoids the absurd result that the MMMA purportedly preempts federal prosecutions, and avoids conflict with the CSA.

In Thursday’s ruling, Justice Bridget Mary McCormack, the Supreme Court held that it was not impossible to comply with both federal drug laws and Michigan’s medical marijuana act, in regards to the case Ter Beek v. City of Wyoming. The Court directed the parties to address:

1) Whether the defendant city’s zoning code ordinance, which prohibits any use that is contrary to federal law, state law, or local ordinance, is subject to state preemption by the Michigan Medical Marijuana act (MMMA)
2) If so, whether the MMMA is subject to federal preemption by the federal Controlled Substances on either impossibility or obstacle conflict preemption grounds.


 Furthermore, the state’s high court held that the city’s ordinance directly conflicts with the state medical marijuana act, creating a violation of the way in which Michigan’s Constitution separates powers of the state and its municipalities.