In 2008, 63 percent of Michigan voters approved the use of medical marijuana.
Yet three years later, attorneys battle in the state courts over whether communities have the right to prohibit an activity, which in their eyes violated federal law, even when approved by a voter referendum.
Communities throughout the state are watching what courts decide in particular with one local case.
The American Civil Liberties Union has appealed a Wayne County Circuit Court ruling that supported the city of Livonia’s ban on medical marijuana facilities.
Circuit Judge Wendy Baxter granted the city’s motion for summary disposition and dismissed the case. Communities across Michigan will be watching to see how the state courts interpret state and federal law.
Early this year, attorneys from both sides will file respective motions to the Michigan Court of Appeals.
Dan Korobkin, attorney with the ACLU, said the ACLU’s position hasn’t changed on the issue.
“Livonia or any other community can’t make its own decision to ban medical marijuana in their community,” Korobkin said. “The approval of medical marijuana was a decision made by the voters and approved throughout the state.
Medical marijuana patients, who are registered with the state and got a doctor’s approval, will not be prohibited or banned from an activity that is in accordance with state law.”
Don Knapp, Livonia’s city attorney, said the city’s position hasn’t changed. Knapp said the ordinance was not aimed at legal medical marijuana users, but was directed at the growing facilities and dispensaries.
“We wanted to take away any of the problems associated with medical marijuana,” Knapp said. “In Oakland, California, there are places with a lot of dope and a lot of cash that are the targets of armed robberies.
“We didn’t want these places popping up next to pizzerias or other small businesses and be a target for crime that would impact these other businesses.”
State vs. federal law
At the heart of the case is whether the voter-approved state law permitting medical marijuana use or sales pre-empts federal law banning marijuana or whether the federal Controlled Substances Act pre-empts state law.
Michigan voters approved the use of medical marijuana in 2008. The city of Livonia later enacted an ordinance that did not mention medical marijuana, but prohibited activities that violate federal law.
The ACLU filed a suit in December 2010 on behalf of Linda and Robert Lott of Birmingham against the cities of Livonia, Bloomfield Hills and Birmingham regarding the authority of communities to prohibit medical marijuana use or sales on the grounds that marijuana possession violates federal law.
The Lotts own a portion of a property in Livonia where they said they wanted to grow medical marijuana, according to the ACLU. The ACLU argued in court that Livonia could not enact laws that violate state laws. The case against the cities of Bloomfield Hills and Birmingham was transferred to Oakland County Circuit Court.
Baxter agreed with the city of Livonia and dismissed the lawsuit.
“Livonia’s ordinance directly conflicts with and is preempted by the Michigan Medical Marihuana Act, which regulates the use, distribution and maintenance of medical marijuana and ‘occupies the field of regulation,’” Baxter wrote in her ruling.
“However, the MMMA is pre-empted by the Controlled Substances Act, which completely bans the use of marihuana and bans its use by physicians for a medical purpose.
Therefore, plaintiffs have failed to state a claim for which relief can be granted and ‘no factual development could possibly justify recovery.’”
On Nov. 29, Oakland County Circuit Judge Colleen O’Brien dismissed the ACLU claims against Birmingham and Bloomfield Hills.
Neither of the cities had applied their ordinances against the plaintiffs, so any question about how ordinances might apply was “hypothetical,” O’Brien ruled.
“The court, in its discretion, denies the request for declaratory relief for the reason that no actual controversy exists here for the court to decide,” O’Brien wrote in her ruling.
In August, the Court of Appeals ruled in a separate case involving a dispensary in Isabella County that sales were not permitted between registered patients and ruled a dispensary closed as a public nuisance.
The court found it violated state health laws. That ruling shut down most dispensaries because “they effectively said the Michigan Medical Marihuana law does not allow patient-to-patient sales,” Knapp said.
All the Lotts wanted to do was grow it in Livonia and use it at their home in Birmingham, Korobkin said. “The fact that Livonia doesn’t like the law isn’t a reason to ban it from the city,” Korobkin said.
When asked if the Lotts would be willing to discuss their situation for this story, Korobkin said the ACLU was acting as a spokesman for the Lotts during the lawsuit, Korobkin said.
“The local laws have really taken a toll on the Lotts and hundreds of medical marijuana patients,” Korobkin said. “Most patients have the doctor’s permission or they are registered as patients or caregivers.
They don’t consider themselves as criminals and they don’t want to be treated as criminals in cities where they live or work.
“The decisions on the ordinances in Livonia, Bloomfield Hills and Birmingham has a detrimental effect on their health and takes a toll on their physical health.”
One year ago, the Law Offices of Thomas M. Loeb of Farmington Hills, and Neil Rockind of Southfield, filed a joint lawsuit in Oakland County Circuit Court against Bloomfield Township for its medical marijuana ordinance passed in October. Rockind, whose case probably won’t be heard until February, said the law is designed to be inclusive for patients and caregivers.
“To me, the law isn’t as confusing as people make it, Rockind said. “The act is designed to give very broad protection to caregivers and patients.”
Rockind said some of the issues raised in some of the court cases don’t even discuss the medical, pain-killing use of the drug, but whether growing facilities are enclosed in lots.
Arguments also are raised on whether a doctor is an expert in cannabis and whether patients can self-medicate. “Ironically, the act isn’t being used to help them, it’s being used to hurt them,” Rockind said.
Knapp would not be surprised if the Livonia case ends up in the Michigan Supreme Court. “If the city of Livonia was not successful before the Court of Appeals, we’re going to try and take it to the Michigan Supreme Court,” Knapp said.