State Supreme Court To Hear Wyoming Medical Marijuana Case Tuesday

[+Malamute]

http://fox17online.com/2013/10/07/state-supreme-court-to-hear-wyoming-medical-marijuana-case-tuesday/
 

State Supreme Court to Hear Wyoming Medical Marijuana Case Tuesday

• 3 hours ago
  by Matt Erspamer
  Web Producer

LANSING, Mich. — The Michigan Supreme Court will hear the first oral arguments Tuesday in a Wyoming-based medical marijuana dispute.

The case involves the city’s ordinance that imposes civil penalties for growing and using marijuana.  John Ter Beek, a retired attorney and medical marijuana user, is fighting the ordinance alongside the ACLU.  They claim that it is invalid under the 2008 program approving medical marijuana use passed by state voters .

In August 2012, the Michigan Court of Appeals overturned an initial ruling that sided with the city of Wyoming, saying that the city ordinance was void under the state program.  The State Supreme Court will begin hearing the case Oct. 8, 9 and 10 beginning at 9:30 a.m. each day in the Old Supreme Court Courtroom in the Capitol building in Lansing.

You can stream those hearings here.

 

 To reiterate, it can be watched live here:

 

http://courts.mi.gov/Courts/MichiganSupremeCourt/oral-arguments/live-streaming/Pages/live-streaming.aspx

[bobandtorey]

Thanks you beat me to it Lol

[bobandtorey]

Schedule of Oral Arguments (2013-2014)

No cases scheduled.  Information will be posted as it becomes available prior to the October 2013 session.

 

 

 

The State Supreme Court will begin hearing the case Oct. 8, 9 and 10 beginning at 9:30 a.m. each day in the Old Supreme Court Courtroom in the Capitol building in Lansing.

You can stream those hearings here. 

 

Read more: http://fox17online.com/2013/10/07/state-supreme-court-to-hear-first-arguments-in-wyoming-medical-marijuana-case-tuesday/#ixzz2h5hR83pz

[Herb Cannabis]

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145816 - Ter Beek v Wyoming (City of)

John Ter Beek,

 

Daniel S. Korobkin

 

Plaintiff-Appellee,

 

v

(Appeal from Ct of Appeals)

 

 

(Kent – Leiber, D.)

 

City of Wyoming,

 

Jack R. Sluiter

 

Defendant-Appellant.

 

​

​Appellant's Brief on Appeal

Appellee's Brief on Appeal

Amicus Brief by Prosecuting Attorney's Association of MI

Amicus Brief by State Bar-Public Corporation Section

Amicus Brief by Michigan Municipal League

Amicus Brief by City of Livonia

Amicus Brief by Cato Institute

Appellee's Response to Amicus Curiae Briefs

Amicus Brief by Cannabis Attorneys of Mid-MI

Summary

Under a November 1, 2010 amendment to the city code, Wyoming adopted a new zoning ordinance: “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.” “Uses contrary to federal law” include the manufacture or possession of 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.

 

John Ter Beek, a Wyoming city resident, sued the city, arguing that the ordinance is invalid under the Michigan Medical Marihuana Act, MCL 333.26421 et seq. Ter Beek asserted that he is a qualified medical marijuana patient under the MMMA who grows and uses marijuana in his home. By prohibiting the use, manufacture, or cultivation of marijuana for medical purposes, the city ordinance is in direct conflict with the MMMA, he contended.

 

In its answer to Ter Beek’s lawsuit, the city admitted that “the cultivation, possession and distribution of marihuana are subject to the zoning code of Wyoming.” But, the city argued, the federal Controlled Substances Act, 21 USC 801 et seq., preempts § 4(a) of the MMMA, MCL 333.26424(a); since the city ordinance incorporates the federal law by reference, the MMMA cannot preempt the ordinance, the city asserted.

 

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.

 

Under 21 USC 841(a)(1), it is “unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . .” Under 21 USC 812©(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, cause any medical use of marijuana pursuant to the MMMA on any property within the city of Wyoming to be a violation of defendant’s zoning ordinance,” the Court of Appeals explained.

 

“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’ .... We conclude that the 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 by MCL 333.26424(a).”

 

A city ordinance that purports to prohibit what a state statute permits is void, the appellate court said.

 

Moreover, the MMMA is not preempted by federal drug laws, the panel declared. Under Article 6, cl. 2 of the U.S Constitution, Congress has the power to preempt state law. “While there are three types of federal preemption, the only type of preemption at issue in this case is conflict preemption,” in which a state statute is in direct conflict with a federal law, the Court of Appeals stated.

 

Conflict preemption does not apply in this case, the Court of Appeals held. “t cannot be disputed that state medical-marijuana laws do not and cannot supersede federal laws criminalizing the possession of marijuana,” the panel acknowledged.

 

But the MMMA is not in conflict with the CSA because the state law will not affect the federal law or its enforcement, the Court of Appeals reasoned. “MCL 333.26422© acknowledges that ‘[a]lthough federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute 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, the statute declares 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 marihuana.’ Id. (emphasis added). Accordingly, the MMMA itself recognizes the federal policy regarding marijuana and acknowledges that state law will not affect the federal law.”

 

The panel continued, “[C]onstruing MCL 333.26424(a) 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.

 

“Moreover, the MMMA’s decriminalization of the medical use of marijuana 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…. This, while Congress can criminalize all uses of medical marijuana, it cannot require the states to do the same.”

 

The city appealed, and in an order dated April 3, 2013, the Supreme Court granted leave to appeal. 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 Marihuana Act (MMMA), MCL 333.26421 et seq.; and (2) if so, whether the MMMA is subject to federal preemption by the federal Controlled Substances Act (CSA), 21 USC 801 et seq., on either impossibility or obstacle conflict preemption grounds. See 21 USC 903.”

 

Do I understand this to indicate that the MSC could strike down Initiative 1 of 2008?  Some one please talk me down!

 

 

[t-pain]

we think its just going to be a bunch of dick wagging.

 

there is a slim possibility they will kill the whole law. but i seriously doubt it.

[bobandtorey]

The Michigan Supreme Court is scheduled to hear a landmark case today that will decide whether Michigan communities can bar medical marijuana within their borders and possibly whether Michiganders can keep using marijuana at all for health purposes. Those joining forces against medical cannabis include the State Bar of Michigan and the Prosecuting Attorneys Association of Michigan, both of which contend that the entire state act allowing medical marijuana should be thrown out. Yet that would nullify the wishes of the 63% of Michigan voters who passed the act into law in 2008, according to opposing groups that include the American Civil Liberties Union of Michigan and the conservative Cato Institute in Washington, D.C.

 

Detroiter Tim Beck, 61, who for years has pushed to relax marijuana laws, said a handful of Michigan communities passed bans on medical marijuana “that carry serious penalties, and that includes jail time.” The ordinances “didn’t even mention medical marijuana — they just said any activity that was illegal under federal law was also illegal in their community,” Beck said.

 

In Wyoming, a Grand Rapids suburb of about 73,000 residents, retired attorney John Ter Beek sued in 2010 to overturn a medical cannabis ban. Ter Beek is a state-registered user who has diabetes and a painful neurological disorder, according to the lawsuit. Ter Beek lost in a local court but won in the Michigan Court of Appeals. In April, the Michigan Supreme Court granted the city of Wyoming’s request to appeal.

 

Wyoming’s ban was followed by an almost identical ordinance in Livonia, which has filed a brief siding with Wyoming in the appeal, and by ordinances in Birmingham, Bloomfield Hills and Lyon Township. Ter Beek, who could not be reached this week for comment, said in 2012 that he sued because he feared he would be arrested if he grew or used medical marijuana. That was after a state Appeals Court ruled 3-0 in his favor.

 

“I’ve tried narcotic-based drugs like Vicodin and OxyContin, and nothing worked like medical marijuana,” Ter Beek told the Free Press in a 2012 statement. “I just couldn’t sit by as our elected officials try to ignore the will of the people and take this option from me and thousands of others.”

The Court of Appeals ruling declared Wyoming’s ordinance to be pre-empted by Michigan’s medical marijuana act. It also said that local governments could not use federal drug laws as grounds for ignoring the state act.

 

“Congress can criminalize all uses of medical marijuana, (but) it cannot require the state to do the same,” the court ruled. This year, federal authorities made plain that they will not block states from easing laws on marijuana for recreational and medical use.

 

Despite that, a brief supporting Wyoming filed by the Prosecuting Attorneys Association of Michigan argues that Michigan’s medical marijuana act “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and is therefore preempted.” And the brief of the State Bar of Michigan’s public corporation law section states in bold-faced type: “The supremacy clause of the United States Constitution applies … to void” Michigan’s marijuana act “in its entirety.”

 

Also arguing in support of local ordinances that ban medical marijuana is the Michigan Municipal League, the Lansing-based lobby group for 524 cities, villages and townships across the state, according to the group’s website. The League’s brief says that Michigan municipalities should be free “to zone and regulate their own unique land use activities” in ways that ban medical marijuana.

 

- See more at: http://hempbeach.com/battle-over-local-bans-on-medical-marijuana-set-for-michigan-supreme-court/?utm_source=rss&utm_medium=rss&utm_campaign=battle-over-local-bans-on-medical-marijuana-set-for-michigan-supreme-court#sthash.yuVxTvrg.dpuf

[bobandtorey]

we think its just going to be a bunch of penis wagging.

 

there is a slim possibility they will kill the whole law. but i seriously doubt it.

I do agree they our trying to kill the Act and i have been watching and waiting on this case for a long time and now we must wait until July 14 of 2014 before we know what the Court will do i say 50/50 chance 

[Wild Bill]

Does anyone think the State Supreme Court is going to make a ruling ceding their power to the Federal government?

[t-pain]

bunny muffin i missed the first hour of arguments

[Celliach]

Looks like we won to me.

[bobandtorey]

Well i think the MMMA is alive and well today

[Celliach]

I do see allowable restrictions though.

[Herb Cannabis]

I do see allowable restrictions though.

 

Like what?  Can you elaborate?

[Celliach]

Scent, light, traffic, signage, that type of thing.  Common law crap.

 

(Refer to the Magna Carta.)

[Celliach]

One thing I was surprised to hear was all the references to mold.

[+Malamute]

I'd say we are big winners in this one.

 

 Sec 7(e) preempts local ordinances if they interfere with the "medical use" as described in the Act, and Federal law does not trump the MMMA because of Sec 2 of the MMMA not inhibiting federal enforcement nor the state does not require mandatory marijuana use.

 

 

 NEXT!

[GregS]

 

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145816 - Ter Beek v Wyoming (City of)

John Ter Beek,

 

Daniel S. Korobkin

 

Plaintiff-Appellee,

 

v

(Appeal from Ct of Appeals)

 

 

(Kent – Leiber, D.)

 

City of Wyoming,

 

Jack R. Sluiter

 

Defendant-Appellant.

 

​

​Appellant's Brief on Appeal

Appellee's Brief on Appeal

Amicus Brief by Prosecuting Attorney's Association of MI

Amicus Brief by State Bar-Public Corporation Section

Amicus Brief by Michigan Municipal League

Amicus Brief by City of Livonia

Amicus Brief by Cato Institute

Appellee's Response to Amicus Curiae Briefs

Amicus Brief by Cannabis Attorneys of Mid-MI

Summary

Under a November 1, 2010 amendment to the city code, Wyoming adopted a new zoning ordinance: “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.” “Uses contrary to federal law” include the manufacture or possession of 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.

 

John Ter Beek, a Wyoming city resident, sued the city, arguing that the ordinance is invalid under the Michigan Medical Marihuana Act, MCL 333.26421 et seq. Ter Beek asserted that he is a qualified medical marijuana patient under the MMMA who grows and uses marijuana in his home. By prohibiting the use, manufacture, or cultivation of marijuana for medical purposes, the city ordinance is in direct conflict with the MMMA, he contended.

 

In its answer to Ter Beek’s lawsuit, the city admitted that “the cultivation, possession and distribution of marihuana are subject to the zoning code of Wyoming.” But, the city argued, the federal Controlled Substances Act, 21 USC 801 et seq., preempts § 4(a) of the MMMA, MCL 333.26424(a); since the city ordinance incorporates the federal law by reference, the MMMA cannot preempt the ordinance, the city asserted.

 

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.

 

Under 21 USC 841(a)(1), it is “unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . .” Under 21 USC 812©(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, cause any medical use of marijuana pursuant to the MMMA on any property within the city of Wyoming to be a violation of defendant’s zoning ordinance,” the Court of Appeals explained.

 

“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’ .... We conclude that the 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 by MCL 333.26424(a).”

 

A city ordinance that purports to prohibit what a state statute permits is void, the appellate court said.

 

Moreover, the MMMA is not preempted by federal drug laws, the panel declared. Under Article 6, cl. 2 of the U.S Constitution, Congress has the power to preempt state law. “While there are three types of federal preemption, the only type of preemption at issue in this case is conflict preemption,” in which a state statute is in direct conflict with a federal law, the Court of Appeals stated.

 

Conflict preemption does not apply in this case, the Court of Appeals held. “t cannot be disputed that state medical-marijuana laws do not and cannot supersede federal laws criminalizing the possession of marijuana,” the panel acknowledged.

 

But the MMMA is not in conflict with the CSA because the state law will not affect the federal law or its enforcement, the Court of Appeals reasoned. “MCL 333.26422© acknowledges that ‘[a]lthough federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute 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, the statute declares 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 marihuana.’ Id. (emphasis added). Accordingly, the MMMA itself recognizes the federal policy regarding marijuana and acknowledges that state law will not affect the federal law.”

 

The panel continued, “[C]onstruing MCL 333.26424(a) 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.

 

“Moreover, the MMMA’s decriminalization of the medical use of marijuana 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…. This, while Congress can criminalize all uses of medical marijuana, it cannot require the states to do the same.”

 

The city appealed, and in an order dated April 3, 2013, the Supreme Court granted leave to appeal. 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 Marihuana Act (MMMA), MCL 333.26421 et seq.; and (2) if so, whether the MMMA is subject to federal preemption by the federal Controlled Substances Act (CSA), 21 USC 801 et seq., on either impossibility or obstacle conflict preemption grounds. See 21 USC 903.”

 

Do I understand this to indicate that the MSC could strike down Initiative 1 of 2008?  Some one please talk me down!

 

 

Nice herb. Real nice. Thanks for the post. In answer to your question, I think just the opposite, and expect the court to uphold the MMA, stating that Wyoming has a void and unenforceable law on its books.

 

Any thoughts regarding when we will be able to see the recorded session or a transcript of the oral arguments? I'm glad to say that my pain is much better controlled and I am able and busy enough that I did not have time to watch live. Taking care of important family and personal matters that sat on the back burner while I was unable is a source of absolute joy.

Edited October 10, 2013 by GregS

[bobandtorey]

IMHO Greg the only thing you may have  missed was we won this battle for now as Malamute said

Next

 

 

[Dr. Bob]

Not a lawyer, but the issue of federal supremacy comes in to play if:

 

By obeying a state law you are REQUIRED to break a federal one.  Participation in the MMMA is not required by state law, nor is the USE of marijuana required of card holders.  No one has EVER been prosecuted for getting a card and NOT using cannabis.  No one is required to break federal law or to get a card. 

 

The second way is more obvious.  The State of Michigan cannot prevent federal agents from enforcing federal law, but they are under no obligation to enforce it themselves.  Even in cases where a state legalizes it, federal authorities CAN come in and enforce, unless they choose not to as seems to be the mood in Washington DC.

[ozzrokk]

We will win this. They should rule that ordinances cannot prevent you from doing what the law says you can do. I highly doubt any federal trump will work here.

[t-pain]

Looks like we won to me.

 

exactly what i said after mcqueen's oral arguments.

never trust the oral arguments when it comes to the supreme court. NEVER.

[Zerocool]

watched this today and what I saw was the guy from Wyoming trying to tell the msc what to do was funny how State Supreme Court tore him up lets just hope the out come of this is a good one

[Spartyon]

can someone please post a direct link to todays oral arguments, looked on state site cant find it.

[Celliach]

can someone please post a direct link to todays oral arguments, looked on state site cant find it.

 

I don't think there is one yet.  It was webcast live this morning.

[bobandtorey]

Not a lawyer, but the issue of federal supremacy comes in to play if:

 

By obeying a state law you are REQUIRED to break a federal one.  Participation in the MMMA is not required by state law, nor is the USE of marijuana required of card holders.  No one has EVER been prosecuted for getting a card and NOT using cannabis.  No one is required to break federal law or to get a card. 

 

The second way is more obvious.  The State of Michigan cannot prevent federal agents from enforcing federal law, but they are under no obligation to enforce it themselves.  Even in cases where a state legalizes it, federal authorities CAN come in and enforce, unless they choose not to as seems to be the mood in Washington DC.

And i do agree Doc very good and on point IMHO one of the Judge's said he  want  to know  what the kind of brush they where to use when making their opinion  or to paint with