Further Thoughts on DeRuiter: Comparing Michigan’s Three Marijuana Statutes

In DeRuiter v Township of Byron, the Michigan Supreme Court will consider whether municipalities can regulate caregivers operating under the Michigan Medical Marihuana Act (MMMA). As explained in a previous post, there are a number of flaws in the Court of Appeals’s decision. This post focuses on a particularly troublesome part of the Court’s analysis..

In the following passage, the Court of Appeals draws a negative inference from the absence of a “savings clause” preserving municipal zoning authority under Michigan Zoning Enabling Act (MZEA):

Notably, the MMMA does not grant municipalities authority to adopt ordinances that restrict registered caregivers’ rights and privileges under the MMMA. By comparison, the Legislature recently enacted the medical marijuana facilities licensing act [MMMFLA], and specifically granted municipalities authority to adopt local ordinances including zoning regulations that restrict the location, number, and type of facilities within its boundaries. Obviously, had the Legislature intended to authorize municipalities to adopt ordinances restricting registered medical marijuana caregivers through zoning ordinances, it could have done so in the MMMA. Despite amending the MMMA twice, the Legislature refrained from incorporating such provision in the MMMA.

This strikes me as unpersuasive for several reasons. First, as the Court acknowledged in an earlier passage, “the words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters.” Voters approved the MMMA during the November 2008 election. The Legislature enacted the MMMFLA in 2016. In light of this timing, voters could not have possibly understood the MMMA’s preemptive scope in relation to the MMMFLA.

Second, the Court suggests that Michigan’s various marijuana statutes would use similar language to express similar ideas. This concept is known as the “presumption of consistent usage.” But, as Justice Scalia and Bryan Garner explain in their treatise Reading Law, “this canon is particularly defeasible by context.” They observe that, “though one may wish it were otherwise, drafters more than rarely . . . use different words to denote the same concept.”

Scalia and Garner’s observation is particularly relevant here, because the MMMA and MMMFLA were drafted by entirely different entities. As an initiative law, the wording of the MMMA was formulated by marijuana advocates rather than career legislators. It also was not reviewed by the Legislative Service Bureau, which is the nonpartisan agency that reviews statutes for style and consistent usage. So, there are strong reasons not to assume perfect consistency across the two statutes.

Third, the fact that the Legislature has amended the MMMA without adding a savings clause should be irrelevant in determining the MMMA’s preemptive effect. Neither of the two amendments to the MMMA had anything to do with preemption. Moreover, until DeRuiter, many (if not most) municipal attorneys believed that the MMMA allows reasonable zoning regulations for caregivers. Given this, it would have been odd for legislators to spend their time and energy amending the statute to expressly say so. This is especially true given how difficult it is to amend an initiated law. Unlike ordinary statutes, initiated laws can only be amended by a 2/3 vote of the Legislature.

As a final thought, the Court of Appeals’s reasoning in DeRuiter could have consequences beyond the MMMA. Like the MMMA, the newly adopted Michigan Regulation and Taxation of Marihuana Act (MRTMA) is a voter-initiated law that does not expressly mention municipal zoning authority. Rather, the statute states that municipalities can adopt ordinances to “regulate the time, place, and manner of operation of [recreational] marihuana establishments.” Some will likely argue that this language – which is borrowed from First Amendment case law – does something other than reaffirm municipal zoning authority. Indeed, some commentators have suggested that the language might narrowly circumscribe municipal authority by incorporating free speech doctrines.

I disagree with that argument. An ordinance that regulates the “place” of marihuana establishments is undoubtedly an ordinance regarding the use of land. And under Michigan law, land-use regulations are authorized by and subject to the procedural requirements of the MZEA. So, though the drafters of the MRTMA used different words than the Legislature did in the MMMFLA, the end result should be the same. Hopefully the Supreme Court’s DeRuiter decision doesn’t suggest otherwise.

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