544 F.Supp.3d 804
E.D. Mich.2021Background
- Detroit adopted an ordinance prioritizing "Detroit legacy" applicants for multiple recreational marijuana licenses (legacy = residency of 15/30 years, or 10–14/30 with additional conditions such as low income or certain parental convictions).
- The scheme provides a six-week early application/review period for legacy applicants and reserves at least 50% of relevant licenses (75 retail licenses total) for legacy applicants, creating a realistic possibility that legacy applicants could receive all or a majority of licenses.
- Plaintiff (Lowe), age 33, lived in Detroit 11 of the past 30 years and does not qualify as a legacy applicant; she challenged the ordinance on Michigan equal protection and right-to-travel grounds and on the U.S. dormant Commerce Clause.
- Court entered a temporary restraining order and then heard a motion for a preliminary injunction to halt the City’s licensing process pending resolution of constitutional claims.
- The court concluded plaintiff was likely to succeed on the merits (equal protection, right to travel, dormant Commerce Clause), would suffer irreparable harm, and granted a preliminary injunction enjoining the City from processing recreational marijuana license applications under the ordinance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Michigan equal protection | Ordinance is protectionist durational-residency classification; not rationally related to social-equity goal | Rational-basis applies; ordinance furthers legitimate social-equity goals and reverses War-on-Drugs harms | Court: plaintiff likely to succeed; ordinance not rationally related to stated purpose and appears protectionist; likely unconstitutional |
| Michigan right to travel | Durational residency preference imposes a waiting penalty on recent movers and intrastate travelers | Residency requirements need only satisfy rational basis; aim is equity, not to penalize travel | Court: right to travel implicated; durational scheme is disfavored and likely fails applicable review; plaintiff likely to succeed |
| Dormant Commerce Clause (U.S.) | Ordinance is facially discriminatory economic protectionism and must meet strict justificatory burden; City cannot show no nondiscriminatory alternatives | No interstate market for marijuana; federal prohibition and Schedule I status limit dormant Commerce Clause protection; ordinance advances local equity goals | Court: ordinance likely discriminates against interstate commerce and mirrors disallowed protectionism; City failed to carry heavy burden to justify discrimination; plaintiff likely to succeed |
| Preliminary injunction / irreparable harm & public interest | Lowe will be irreparably harmed (excluded or disadvantaged from limited licenses); damages inadequate; public interest disfavors enforcing likely-unconstitutional law | City and legacy applicants would be harmed by delay; plaintiff could have sued earlier | Court: irreparable harm shown; public interest and balance of harms favor injunction; PI granted to stop processing under current ordinance |
Key Cases Cited
- Flight Options, LLC v. Int’l Bhd. of Teamsters, Loc. 1108, 863 F.3d 529 (6th Cir. 2017) (preliminary injunction factor framework)
- McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) (burden and stringency for extraordinary injunctive relief)
- Murphy-DuBay v. Dep’t of Licensing & Regul. Aff., 876 N.W.2d 598 (Mich. 2015) (two-step equal protection inquiry for economic regulation)
- Crego v. Coleman, 615 N.W.2d 218 (Mich. 2000) (rational-basis test explanation under Michigan law)
- Phillips v. Mirac, Inc., 685 N.W.2d 174 (Mich. 2004) (strong presumption of statutory constitutionality)
- Musto v. Redford Twp., 357 N.W.2d 791 (Mich. Ct. App. 1984) (intrastate travel treated comparably to interstate travel; durational residency may trigger strict scrutiny)
- Barrow v. City of Detroit Elec. Comm’n, 836 N.W.2d 498 (Mich. Ct. App. 2013) (durational residency generally not a suspect classification but may trigger stricter review if affecting fundamental rights)
- Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328 (2008) (dormant Commerce Clause: discriminatory laws are virtually per se invalid)
- Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449 (2019) (dormant Commerce Clause scope and Congress’s role)
- New England Power Co. v. New Hampshire, 455 U.S. 331 (1982) (Congress can authorize state regulation that would otherwise burden interstate commerce)
- Maine v. Taylor, 477 U.S. 131 (1986) (requirement that congressional authorization to permit discrimination be unmistakably clear)
- Saenz v. Roe, 526 U.S. 489 (1999) (distinguishing residency requirements that penalize new residents)
- Colonial Baking Co. of Grand Rapids v. City of Fremont, 295 N.W. 608 (Mich. 1941) (economic protectionism is not a legitimate public purpose)
- Barnes v. Bd. of Trustees Mich. Veterans Trust Fund, 369 F. Supp. 1327 (W.D. Mich. 1973) (residency-based waiting periods can penalize right to travel)