The Michigan Supreme Court has agreed to consider whether municipalities can regulate primary caregivers operating in compliance with the Michigan Medical Marihuana Act (MMMA). The case is a sequel to the Court’s high-profile decision in Ter Beek v City of Wyoming.
In Ter Beek, the Court held that the MMMA preempted a city zoning ordinance that prohibited all “uses . . . contrary to federal law,” including the cultivation of marijuana by registered patients. The Court found that the ordinance directly conflicted with the MMMA by prohibiting conduct that the statute expressly permits. The immunity provisions in Section 4 of the MMMA state that a registered patient “shall not be subject to arrest, prosecution, or penalty in any manner . . . for the medical use of marihuana.” As defined in the statue, the “medical use of marihuana” includes the “cultivation . . . of marihuana to treat or alleviate a registered qualifying patient.” Thus, state law specifically permitted registered patients to grow marijuana for medical use, while the city ordinance prohibited them from doing so in all circumstances. Because of this direct conflict, the Court found that the city ordinance was void.
Importantly, the Court was careful to limit the scope of its holding in Ter Beek. In the final footnote of the opinion, the Court stated that its decision does not “foreclose all local regulation of marijuana,” nor does it “require us to reach whether and to what extent the MMMA might occupy the field of medical marijuana regulation.”
Relying on this footnote, communities across the state adopted ordinances regulating the cultivation of marijuana by registered patients and caregivers. Some communities require that caregivers — who are permitted to grow up to 72 plants at a time — operate only in residential dwellings under a home-based business license. Others limit caregiving to commercial zoning districts, or to indoor facilities rather than outdoor greenhouses. Still others adopted safety regulations pertaining to inspections, HVAC systems, electrical hookups, chemical storage, and other similar issues.
In three recent cases, the Michigan Court of Appeals has invalidated various regulations of this type. Reading the cases together, the Court of Appeals seems to understand Ter Beek as holding that patients and caregivers may cultivate marijuana if they comply with the regulations in the MMMA itself. While the Court’s opinions purport to rely solely on the “conflict preemption” doctrine — as opposed to the broader doctrine of “field preemption” — they do not seem to leave any room for local regulation. None of the three opinions suggest a local regulation that would survive the analysis.
Fortunately, the Supreme Court has agreed to review one these cases. The case it chose, DeRuiter v Township of Byron, involves a zoning ordinance requiring caregivers to operate in residential zoning districts under a home-based business license. The township argues that its ordinance does not directly conflict with the MMMA’s immunity provisions it because does not outright prohibit the cultivation of marijuana (unlike the ordinance in Ter Beek). Instead, the ordinance simply adds an additional regulation — the cultivation must occur in certain specified areas of the community.
The township has strong arguments under the Supreme Court’s conflict-preemption precedents. Conflict preemption applies only when one set of laws prohibits what the other permits, such that the two “cannot coexist.” As the Court has explained, “[t]he mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements.” In other words, a municipal ordinance can generally “enlarge upon the provisions of a statute.” The Court of Appeals’s analysis in DeRuiter is hard to square with these articulations of the doctrine.
If the Supreme Court agrees that there is no direct conflict between the township’s ordinance and the MMMA’s immunity provision, it may then consider whether the MMMA “occupies the field” of patient and caregiver regulation. The township would have strong arguments on this point as well.
First, the MMMA’s immunity provisions are worded differently than typical expressions of field preemption. In other circumstances where the Legislature preempts local zoning authority, it uses direct language stating that a municipality “shall not regulate” certain subject matter, or that a state agency has “exclusive jurisdiction” over a topic. By contrast, the MMMA’s immunity provisions do not expressly apportion power between municipal and state entities. Instead, they state that patients and caregivers “shall not be subject to arrest, prosecution, or penalty in any manner . . . for the medical use of marihuana” or “for assisting a qualifying patient . . . with the medical use of marihuana.” Under a plain reading, these provisions seem to preclude only penalties for conduct that is specifically addressed and authorized by the statute, not penalties for ancillary matters that the statute leaves unaddressed.
Second, in determining whether a statute impliedly occupies a regulatory field, courts consider the pervasiveness of the regulatory scheme. Here, the MMMA’s regulations are not particularly pervasive, especially when compared with the regulations in the Michigan’s two subsequent marijuana statutes, the MMMFLA and the MRTMA. The MMMA’s regulations of marijuana cultivation come almost exclusively from the definition of “enclosed, locked facility,” which imposes minimal requirements for site security. The MMMFLA and its regulations include much more comprehensive requirements for site security and also address issues like the storage of contaminants, waste disposal, and inspections. The MRTMA’s regulations have not been developed yet but will likely be similar. And yet, both the MMMFLA and the MRTMA expressly preserve a role for further municipal regulation.
Third, courts consider whether the nature of the regulated subject matter demands exclusive state regulation to achieve the uniformity necessary to serve the state’s purpose. Again, comparison with the MMMFLA and the MRTMA suggests this is not the case. Both statutes include express “savings clauses” stating that municipalities retain regulatory authority regarding marijuana.
If I ventured a prediction, I think the Court will likely rule in the favor of the township. If it does, it may send the other recent cases back to the Court of Appeals for proper application of the preemption analysis. At least one of those cases might be more difficult than DeRuiter itself, because it involves an ordinance provision that completely prohibits outdoor growing. There seems to be a reasonable argument that such a provision conflicts with MMMA provisions permitting cultivation in an “enclosed, locked facility,” which is defined to include “outdoor” facilities that meet certain criteria.
These will be very interesting cases to watch. They may have implications not only for municipal regulation of activity under the MMMA, but also under the MMMFLA and MRTMA.
Social media photo attribution: Katherine Hitt