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. Flaintiff sought to void
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 limitаtion, fines, damages, expenses and costs,” Wyoming Ordinance, § l-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-marijuana
The parties filed competing motions for summary disposition pursuant to MCR 2.116(0(10). Plaintiff argued that the оrdinance 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 be
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 thе 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,
Further, we review de novo a trial court’s decision to grant summary disposition. Coblentz v City of Novi,
A city ordinance that purports to prohibit what a state statute permits is void. Walsh v City of River Rouge,
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 USC 841(a)(1), which makes it “unlawful for any person knowingly or intentionally . . . to manufаcture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. . . .” Further, under 21 USC 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,
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 plaintiffs being subject to the civil sanctions of the Wyoming Ordinance, § l-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).
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 .... [Something 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 broadеst application. Thus, any possible uncertainty about whether immunity under the MMMA is intended to cover both civil penalties — such as those permitted by defendant’s ordinance — as well as criminal penalties is removed by the emphasis added by the language “in any manner.” Thus, under MCL 333.26424(a), we conclude that it is clear that registered, qualified medical-marijuana users are not to be subject to any penalty, whether civil or criminal, if their medical use of marijuana conforms to the limitations set forth in the MMMA.
Applying the plain meaning of the words used in the immunity provision of the MMMA to defendant’s ordinance, there can be no doubt that enforcement of the
Further, we find defendant’s arguments to the contrary unavailing. To the extent that defendant argues that its ordinance does not conflict with the MMMA because it does not require criminal or civil penalties, we note that civil penalties in response to zoning violations are expressly provided for in defendant’s city code. Wyoming Ordinance, § l-27(a). The fact that civil penalties are not required does not save the ordinance from being in direct conflict with the MMMA because the mere possibility of such a penalty directly conflicts with the plain language of MCL 333.26424(a). Moreover, defendant’s ordinance does not attempt to regulate lawful conduct, but attempts to completely ban the medical use of marijuana on the basis of the authority of the CSA, a fedеral criminal statute.
Accordingly, we hold that defendant’s ordinance, Wyoming Ordinance, § 90-66, is void and unenforceable to the extent that it prohibits the medical use of marijuana in accordance with the MMMA because it is preempted by MCL 333.26424(a). Id.
III. FEDERAL PREEMPTION OF THE MMMA
Defendant alternatively argues that its ordinance is valid and enforceable even if it is preempted by the MMMA because the federal CSA preempts the statе MMMA. Defendant argues that because the MMMA is preempted by federal law, it does not stand as an obstacle to the enforcement of its ordinance. Plaintiff argues that federal law does not preempt the MMMA.
Whether a federal statute preempts state law is a question of law that we review de novo. Packowski v United Food & Commercial Workers Local 951,
In every federal preemption case, we must first determine the intent of Congress in enacting the federal statute at issue. Wyeth v Levine,
While there are three types of federal preemption, the only type of preemption at issue in this case is conflict preemption.
As noted previously, the CSA proscribes marijuana in all forms, medicinal or otherwise. The MMMA, however, permits, but does not mandate, medical use of marijuana in limited circumstances and grants immunity from penalties or prosecutions to qualified and registered patients. Because the medical use permitted by the MMMA is not mandatory, it is not physically impossible to comply with both statutes simultaneously. Thus, we conclude that because it is not physiсally impossible to comply with both the MMMA and the CSA at the same time, the MMMA is not preempted by the CSA on the basis of impossibility conflict preemption.
In Gonzales v Raich,
The main objectives of the CSA were to conquer drug abuse and to control thе legitimate and illegitimate traffic in controlled substances. Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels.
To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA.
With regard to marijuana, Congress classified the drug as a schedule I controlled substance, meaning that
“The purpose of the MMMA is to allow a limited class of individuals the medical use of marijuana, and the act declares this purpose to be an ‘effort for the health and welfare of [Michigan] citizens.’ ” People v Kolanek,
Moreover, MCL 333.26422(c) acknowledges that “[ajlthough federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecutе people for engaging in activities prohibited by federal law.” Additionally, MCL 333.26422(b) recognizes that 99 out of every 100 marijuana-based arrests in the United States are made under state law. Accordingly,
It is well established that different provisions of a statute that relate to the same subject matter are in pari materia and must be read together as one law. McNeil v Charlevoix Co,
Therеfore, when the immunity granted in MCL 333.26424(a) is read in context with MCL 333.26422(b) and (c), it is plain that the immunity was not intended to exempt qualified medical-marijuana users from federal prosecutions. Specifically the language in MCL 333.26422(b) and (c) refers to changing state law and acknowledges that federal law prohibits the medical use of marijuana. Moreover, the proclamation in MCL 333.26422(b) that changing state law will protect “the vast majority of seriously ill people who have a medical need to use marihuana” from arrest, instead of stating that the change in the law will protect all qualified medical-marijuana users from arrest, acknowledges that users of marijuana for medical purposes are still subject to federal prosecution. Further, construing MCL 333.26424(a) to grant immunity only from state pros
Moreover, the MMMA’s decriminalization of the medical use of mаrijuana is not contrary to the CSA’s provisions punishing all medical uses of marijuana. The CSA provisions do not preempt the MMMA’s grant of immunity as found in MCL 333.26424(a) because it is well established that Congress cannot require the states to enforce federal law. See, e.g., Printz v United States,
TV. CONCLUSION
Defendant’s ordinance is void and unenforceable to the extent that it purports to sanction the medical use of marijuana in conformity with the MMMA because the ordinance directly conflicts with MCL 333.26424(a). Walsh,
Reversed and remanded. We do not retain jurisdiction. No taxablе costs pursuant to MCR 7.219, a public question being involved.
Notes
While the statute refers to “marihuana,” by convention this Court uses the more common spelling “marijuana.”
We note that the issue of plaintiffs standing to challenge the ordinance was addressed by the trial court. The trial court relied on Lansing Sch Ed Ass’n v Lansing Bd of Ed,
“ ‘Medical use’ means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.” MCL 333.26423(e).
We note that this is not a case in which zoning laws are enacted to regulate in which areas of the city the medical use of marijuana as permitted by the MMMA may be carried out.
Field preemption and express preemption are the two other types of federal preemption. Packowski,
The doctrine of impossibility preemption is rarely applied. Indeed, the impossibility preemption test has been described as “vanishingly narrow.” Nelson, Preemption, 86 Va L R 225, 228 (2000).
Our conclusion is consistent with the conclusions reached by the California and Oregon courts, both of which addressed whether their state medical-marijuana laws were preempted by the CSA on grounds of impossibility preemption. Both state courts have concluded that their state laws were not preempted by federal law on the basis of impossibility