Ter Beek v. City of Wyoming

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Syllabus Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis

TER BEEKv CITY OF WYOMING

Docket No. 145816. Argued October 10, 2013 (Calendar No. 8). Decided February 6, 2014.

John Ter Beek, a resident of the city of Wyoming, filed an action in the Kent Circuit
Court against the city, seeking to have a city zoning ordinance declared void and an injunction
entered prohibiting its enforcement. The ordinance generally prohibited uses that were contrary
to federal law, state law, or local ordinance, and permitted punishment of violations by civil
sanctions. Ter Beek was a qualifying patient and held a registry identification card under the
Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. He wished to grow and
use marijuana for medical purposes in his home and argued that § 4(a) of the MMMA, MCL
333.26424(a), which provides that registered qualifying patients shall not be subject to arrest,
prosecution, or penalty in any manner for certain medical use of marijuana in accordance with
the act, preempted the ordinance. Both parties moved for summary disposition. Ter Beek
argued that because the federal controlled substances act (CSA), 21 USC 801 et seq., prohibited
the use, manufacture, or cultivation of marijuana, the ordinance likewise prohibited the use,
manufacture, or cultivation of marijuana for medical use and therefore conflicted with and was
preempted by the MMMA. The city argued instead that the CSA preempted the MMMA. The
court, Dennis B. Leiber, J., granted summary disposition in favor of the city, agreeing that the
CSA preempted the MMMA. Ter Beek appealed. The Court of Appeals, SHAPIRO, P.J., and
HOEKSTRA and WHITBECK, JJ., reversed, concluding that the ordinance conflicted with § 4(a) of
the MMMA and that the CSA did not preempt § 4(a) because it was possible to comply with
both statutes simultaneously and the state-law immunity for certain medical marijuana patients
under § 4(a) did not stand as an obstacle to the federal regulation of marijuana use. 297 Mich
App 446 (2012). The Supreme Court granted the city leave to appeal. 493 Mich 957 (2013).

In a unanimous opinion by Justice MCCORMACK, the Supreme Court held:

The federal controlled substances act does not preempt § 4(a) of the MMMA, but § 4(a)
preempts the ordinance because the ordinance directly conflicts with the MMMA.

1. The Supremacy Clause of the United States Constitution, US Const, art VI, cl 2,
invalidates state laws that interfere with or are contrary to federal law. Under 21 USC 903,
which specifically addresses the CSA’s preemption of state statutes, the relevant inquiry is
whether there is a positive conflict between the federal and state statutes so that the two cannot
consistently stand together. Such a conflict can arise when it is impossible to comply with both
the federal and the state requirements or when state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.

2. The CSA does not preempt § 4(a) on the ground of impossibility preemption.
Impossibility preemption requires more than the existence of a hypothetical or potential conflict.
It results when state law requires what federal law forbids or vice versa. It is not impossible to
comply with both the CSA and § 4(a) of the MMMA. The CSA makes manufacture,
distribution, or possession of marijuana a criminal offense under federal law. Section 4(a) of the
MMMA does not require commission of that offense, however, nor does it prohibit punishment
under federal law. Instead, if certain individuals choose to engage in MMMA-compliant medical
use of marijuana, § 4(a) provides them a limited state-law immunity from arrest, prosecution, or
penalty, an immunity that could not and does not purport to prohibit the federal criminalization
of, or punishment for, that conduct.

3. Section 4(a) does not stand as an obstacle to the accomplishment and execution of the
full purposes and objectives of the CSA, and the CSA accordingly does not preempt § 4(a) on
that ground. A state law presents an obstacle to a federal law if the purpose of the federal law
cannot otherwise be accomplished. Under the CSA, Congress categorized marijuana as a
Schedule I controlled substance, thereby designating it as contraband for any purpose and
indicating that it has no acceptable medical uses. Michigan also has designated marijuana as a
Schedule 1 controlled substance, and its possession, manufacture, and delivery remain
punishable offenses under Michigan law. In enacting the MMMA, however, the people of the
state chose to part ways with Congress only regarding the scope of acceptable medical use of
marijuana, allowing a limited class of individuals to engage in certain uses in an effort to provide
for the health and welfare of Michigan citizens. While the MMMA and the CSA differ with
respect to the medical use of marijuana, the limited state-law immunity for that use under § 4(a)
does not frustrate the CSA’s operation or prevent its purpose from being accomplished. The
immunity does not purport to alter the CSA’s federal criminalization of marijuana or interfere
with or undermine federal enforcement of that prohibition. Moreover, by expressly declining in
21 USC 903 to occupy the field of regulating marijuana, the CSA explicitly contemplates a role
for the states in that regard, and there is no indication that the purpose or objective of the CSA
was to require states to enforce its prohibitions.

4. The ordinance is preempted by § 4(a). Under Const 1963, art 7, § 22, a municipality’s
power to adopt resolutions and ordinances relating to its municipal concerns is subject to the
Constitution and the law. A municipality is therefore precluded from enacting an ordinance if
the ordinance directly conflicts with the state’s statutory scheme or if the statutory scheme
preempts the ordinance by occupying the field of regulation that the municipality seeks to enter,
to the exclusion of the ordinance, even if there is no direct conflict between the two schemes of
regulation. A direct conflict exists when the ordinance permits what the statute prohibits or the
ordinance prohibits what the statute permits. The city’s ordinance directly conflicts with the
MMMA by permitting what the MMMA expressly prohibits: the imposition of any penalty,
including a civil one, on a registered qualifying patient whose medical use of marijuana falls
within the scope of the immunity granted under § 4(a).
 Court of Appeals’ judgment affirmed, grant of summary disposition in favor of the city
reversed, and case remanded to the circuit court for entry of summary disposition in favor of
Ter Beek.

©2014 State of Michigan
 Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano

FILED FEBRUARY 6, 2014

STATE OF MICHIGAN

SUPREME COURT

JOHN TER BEEK,

Plaintiff-Appellee,

v No. 145816

CITY OF WYOMING,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

MCCORMACK, J.
The Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq.,

enacted pursuant to a voter initiative in November 2008, affords certain protections under

state law for the medical use of marijuana in the state of Michigan. Among them is

§ 4(a) of the MMMA, which immunizes registered qualifying patients from “penalty in

any manner” for specified MMMA-compliant medical marijuana use.

MCL 333.26424(a). At issue here is the relationship between this immunity, the federal

prohibition of marijuana under the controlled substances act (CSA), 21 USC 801 et seq.,
and a local zoning ordinance adopted by the city of Wyoming which prohibits and

subjects to civil sanction any land “[u]ses that are contrary to federal law.” City of

Wyoming Code of Ordinances, § 90-66. As set forth below, we agree with the Court of

Appeals that the ordinance directly conflicts with, and is preempted by, § 4(a) of the

MMMA, and that § 4(a) is not preempted by the federal CSA. Accordingly, we affirm

the Court of Appeals’ judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2010, approximately two years after the MMMA went into effect, defendant,

the city of Wyoming (the City), adopted an ordinance (the Ordinance) amending the

zoning chapter of the Wyoming city code to add the following provision:

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.

City of Wyoming Code of Ordinances, § 90-66. Under the city code, violations of the

Ordinance constitute municipal civil infractions punishable by “civil sanctions, including,

without limitation, fines, damages, expenses and costs,” City of Wyoming Code of

Ordinances, § 1-27(a) to (b), and are also subject to injunctive relief, City of Wyoming

Code of Ordinances, § 1-27(g).

Plaintiff, John Ter Beek, lives in the City and is a qualifying patient under the

MMMA who possesses a state-issued registry identification card.1 Upon the City’s

1
The MMMA specifies the circumstances under which a person can register with the
state as a qualifying medical marijuana patient. Upon satisfaction of these criteria, the
state issues a registry identification card to the qualifying patient. See MCL 333.26426.

2
adoption of the Ordinance, Ter Beek filed the instant lawsuit in circuit court. Ter Beek

alleges that he wishes to grow, possess, and use medical marijuana in his home in

accordance with the MMMA. The Ordinance, however, by its incorporation of the

CSA’s federal prohibition of marijuana, prohibits and penalizes such conduct. This,

Ter Beek contends, impermissibly contravenes § 4(a) of the MMMA, which provides that

registered qualifying patients “shall not be subject to arrest, prosecution, or penalty in any

manner . . . for the medical use of marihuana in accordance with” the MMMA.

Accordingly, Ter Beek seeks a declaratory judgment that the Ordinance is preempted by

the MMMA and a corresponding injunction prohibiting the City from enforcing the

Ordinance against him for the medical use of marijuana in compliance with the MMMA.2

The parties filed cross-motions for summary disposition pursuant to MCR

2.116(C)(10), disputing whether the Ordinance is preempted by the MMMA and whether

the MMMA is preempted by the CSA. The circuit court granted summary disposition in

favor of the City, concluding that the MMMA is preempted by the CSA. Ter Beek

appealed by right in the Court of Appeals, which reversed the circuit court’s grant of

summary disposition in favor of the City and remanded the case for entry of summary

disposition in favor of Ter Beek. Ter Beek v Wyoming, 297 Mich App 446; 823 NW2d

864 (2012). The Court of Appeals first concluded that the Ordinance directly conflicts

with, and is thus preempted by, § 4(a) of the MMMA, because it purports to penalize the

medical use of marijuana in contravention of § 4(a)’s grant of immunity from such

2
Ter Beek has not been charged with violating the Ordinance or subjected to any
enforcement action in connection with it. The City unsuccessfully challenged his
standing before the circuit court, and has abandoned that challenge on appeal.

3
penalties. The Court of Appeals then concluded that § 4(a) is not preempted by the

federal CSA, reasoning that it is possible to comply with both statutes simultaneously and

that § 4(a)’s state-law immunity for certain medical marijuana patients does not stand as

an obstacle to the CSA’s federal regulation of marijuana use or to the federal enforcement

of same. The City sought leave to appeal, which we granted, to address the questions of

state and federal preemption. Ter Beek v Wyoming, 493 Mich 957 (2013).3

II. STANDARD OF REVIEW

Whether § 4(a) of the MMMA preempts the Ordinance, and whether the CSA

preempts § 4(a), are questions of law which we review de novo. Detroit v Ambassador

Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008); Mich Coalition For Responsible

Gun Owners v City of Ferndale, 256 Mich App 401, 405; 662 NW2d 864 (2003). We

also review de novo the decision to grant or deny summary disposition, Spiek v Dep’t of

Transp, 456 Mich 331, 337; 572 NW2d 201 (1998), and review for clear error factual

findings in support of that decision, Ambassador Bridge, 481 Mich at 35.

As we have recently explained, the intent of the electors governs the interpretation

of voter-initiated statutes such as the MMMA, just as the intent of the Legislature

governs the interpretation of legislatively enacted statutes. People v Bylsma, 493 Mich

3
We also granted permission for interested persons or groups to move to submit briefs
amicus curiae. The City of Livonia, the Michigan Municipal League, the Prosecuting
Attorneys Association of Michigan, and the State Bar of Michigan Public Corporation
Law Section submitted briefs in support of the City; the Cannabis Attorneys of Mid-
Michigan, and the Cato Institute, the Drug Policy Alliance, and Law Enforcement
Against Prohibition submitted briefs in support of Ter Beek.

4
17, 26; 825 NW2d 543 (2012). The first step when interpreting a statute is to examine its

plain language, which provides the most reliable evidence of intent. If the statutory

language is unambiguous, no further judicial construction is required or permitted

because we must conclude that the electors intended the meaning clearly expressed. Id.

III. ANALYSIS

A. KEY PROVISIONS OF THE MMMA, THE CSA, AND THE ORDINANCE

The questions of state and federal preemption in this case arise from the differing

treatment of medical marijuana use under the MMMA and the CSA. As noted, § 4(a) of

the MMMA provides, in relevant part:

A qualifying patient who has been issued and possesses a registry
identification card shall not be subject to arrest, prosecution, or penalty in
any manner, or denied any right or privilege, including but not limited to
civil penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for the medical use of marihuana in
accordance with this act . . . . [MCL 333.26424(a).]

The MMMA defines “medical use” as “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(f).

The CSA, meanwhile, contains no such immunity. Rather, it makes it “unlawful

for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21

5
USC 841(a)(1). The CSA classifies marijuana as a Schedule I controlled substance, 21

USC 810(c)(12), and thus largely prohibits its manufacture, distribution, or possession.4

The parties do not dispute that the Ordinance, by prohibiting all “[u]ses that are

contrary to federal law,” incorporates the CSA’s prohibition of marijuana and makes

certain violations of that prohibition both punishable by civil sanctions and subject to

injunctive relief. Thus, an individual whose medical use of marijuana falls within the

scope of § 4(a)’s immunity from “penalty in any manner” may nonetheless be subject to

punishment under the Ordinance for that use.

B. THE CSA DOES NOT PREEMPT § 4(a) OF THE MMMA

As noted, the circuit court rejected Ter Beek’s challenge to the Ordinance because

it held that § 4(a) of the MMMA is preempted by the CSA. The Court of Appeals

disagreed. Although raised under the particular circumstances of this case as a defense,

we address this question first, and hold that the CSA does not preempt § 4(a).

Federal preemption of state law is grounded in the Supremacy Clause of the

United States Constitution, US Const, art VI, cl 2, which “invalidates state laws that

‘interfere with, or are contrary to,’ federal law.” Hillsborough Co v Automated Med

Labs, Inc, 471 US 707, 712; 105 S Ct 2371; 85 L Ed 2d 714 (1985), quoting Gibbons v

Ogden, 22 US (9 Wheat) 1, 211; 6 L Ed 23 (1824). When a state law is preempted by

4
The only exception to this prohibition is for research projects approved by the federal
government. See 21 USC 823(f); United States v Oakland Cannabis Buyers’ Coop, 532
US 483, 490; 121 S Ct 1711; 149 L Ed 2d 722 (2001).

6
federal law, the state law is “without effect.” Maryland v Louisiana, 451 US 725, 746;

101 S Ct 2114; 68 L Ed 576 (1981).

“ ‘[T]he purpose of Congress is the ultimate touchstone in every pre-emption

case.’ ” Wyeth v Levine, 555 US 555, 565; 129 S Ct 1187; 173 L Ed 51 (2009), quoting

Medtronic, Inc v Lohr, 518 US 470, 485; 116 S Ct 2240; 135 L Ed 2d 700 (1996).

Furthermore, “[i]n all pre-emption cases, and particularly in those in which Congress has

legislated . . . in a field which the States have traditionally occupied, we start with the

assumption that the historic police powers of the States were not to be superseded by the

Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth, 555 US

at 565 (citations and quotation marks omitted). See also Maryland, 451 US at 746

(“Consideration under the Supremacy Clause starts with the basic presumption that

Congress did not intend to displace state law.”). The areas of public health and safety are

among those traditionally left to the states. Gonzales v Oregon, 546 US 243, 270; 126 S

Ct 904; 163 L Ed 2d 748 (2006). If the federal statute contains a clause expressly

addressing preemption, “we ‘focus on the plain wording of the clause, which necessarily

contains the best evidence of Congress’ preemptive intent.’ ” Chamber of Commerce v

Whiting, 563 US ___, ___; 131 S Ct 1968, 1977; 179 L Ed 2d 1031 (2011), quoting CSX

Transp, Inc v Easterwood, 507 US 658, 664; 113 S Ct 1732; 123 L Ed 2d 387 (1993).

Where such a clause is ambiguous, and the federal statute at issue pertains to an area of

traditional state regulation, we “have a duty to accept the reading [of the clause] that

disfavors pre-emption.” Bates v Dow Agrosciences LLC, 544 US 431, 449; 125 S Ct

1788; 161 L Ed 2d 687 (2005). Tie, in that case, goes to the state.

With those principles in mind, we look to the CSA, which expressly provides:

7
 No provision of this subchapter shall be construed as indicating an
intent on the part of the Congress to occupy the field in which that
provision operates, including criminal penalties, to the exclusion of any
State law on the same subject matter which would otherwise be within the
authority of the State, unless there is a positive conflict between that
provision of this subchapter and that State law so that the two cannot
consistently stand together. [21 USC 903.]

Accordingly, in assessing whether § 4(a) of the MMMA is preempted by the CSA, the

relevant inquiry is whether there is a “positive conflict” between the two statutes such

that they “cannot consistently stand together.”

Such a conflict can arise when it is impossible to comply with both federal and

state requirements, Mut Pharm Co, Inc v Bartlett, 570 US ___, ___; 133 S Ct 2466, 2473;

186 L Ed 2d 607 (2013), or when state law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of Congress, Hillsborough, 471 US at

713. See also Wyeth, 555 US at 567-581 (applying this preemption standard to a federal

statute providing that it did not preempt state law unless there was a “direct and positive

conflict” between it and state law). We find neither such conflict here.

First, we do not find it impossible to comply with both the CSA and § 4(a) of the

MMMA. “Impossibility pre-emption is a demanding defense,” Wyeth, 555 US at 573,

and requires more than “[t]he existence of a hypothetical or potential conflict,” Rice v

Norman Williams Co, 458 US 654, 659; 102 S Ct 3294; 73 L Ed 1042 (1982). Such

impossibility results when state law requires what federal law forbids, or vice versa. See,

e.g., Mut Pharm, 570 US at ___; 133 S Ct at 2476-2477; PLIVA, Inc v Mensing, 564 US

___, ___; 131 S Ct 2567, 2577-2578; 180 L Ed 2d 580 (2011); Geier v American Honda

Motor Co, Inc, 529 US 861, 873; 120 S Ct 1913; 146 L Ed 2d 914 (2000); Barnett Bank

of Marion Co, NA v Nelson, 517 US 25, 31; 116 S Ct 1103; 134 L Ed 2d 237 (1996).

8
 The CSA criminalizes marijuana, making its manufacture, distribution, or

possession a punishable offense under federal law. Section 4(a) of the MMMA does not

require anyone to commit that offense, however, nor does it prohibit punishment of that

offense under federal law. Rather, the MMMA is clear that, if certain individuals choose

to engage in MMMA-compliant medical marijuana use, § 4(a) provides them with a

limited state-law immunity from “arrest, prosecution, or penalty in any manner”—an

immunity that does not purport to prohibit federal criminalization of, or punishment for,

that conduct. See MCL 333.26427(a) (“The medical use of marihuana is allowed under

state law to the extent that it is carried out in accordance with the provisions of this act.”);

see also MCL 333.26422 (noting that “approximately 99 out of every 100 marihuana

arrests in the United States are made under state law, rather than under federal law,” 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,” and 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”). Nor, of course, could the MMMA

prohibit such federal regulation and enforcement. See United States v Hicks, 722 F Supp

2d 829, 833 (ED Mich, 2010) (“It is indisputable that state medical-marijuana laws do

not, and cannot, supercede federal laws that criminalize the possession of marijuana.”),

citing, inter alia, Gonzales v Raich, 545 US 1, 29; 125 S Ct 2195; 162 L Ed 2d 1 (2005).5

5
The City contends that these cases, as well as Oakland Cannabis, 532 US 483, support a
finding of federal preemption in this case. These cases, however, indicate that state
medical marijuana laws cannot be used to inhibit federal enforcement of the CSA; none

9
 The City objects that § 4(a) forces it, as well as the state of Michigan and every

other municipality therein, to “ignore” the CSA. But that is not the precise question.

While, as discussed at greater length below, § 4(a) does prevent the City from fully

incorporating the CSA’s prohibition of marijuana into its own local enforcement scheme,

it does not require that the City violate that federal prohibition. Neither does the CSA

require that the City, or the state of Michigan, enforce that prohibition. In fact, it is well

established that, “ ‘[e]ven where Congress has the authority under the Constitution to

pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the

states to require or prohibit those acts.’ ” Printz v United States, 521 US 898, 924; 117 S

Ct 2365; 138 L Ed 2d 914 (1997), quoting New York v United States, 505 US 144, 166;

112 S Ct 2408; 120 L Ed 2d 120 (1992). We do not find it impossible to comply with

both the CSA and § 4(a) of the MMMA.

We likewise hold that § 4(a) does not stand as an obstacle to the accomplishment

and execution of the full purposes and objectives of the CSA. Hillsborough, 471 US at

713. A state law presents such an obstacle to a federal law “ ‘[i]f the purpose of the

of them suggests that such laws cannot exempt from penalty under state law certain
conduct that remains illegal under federal law. See Raich, 545 US at 15-33 (holding that
the federal government had constitutional authority to prohibit and prosecute under
federal law the cultivation of marijuana, regardless of whether such activity violated state
law); Oakland Cannabis, 532 US at 486-495 (holding that, in a federal prosecution under
the CSA, there was no medical necessity defense available under federal law, regardless
of whether that defense would be available under state law); Hicks, 722 F Supp 2d at
832-834 (holding that the federal defendant’s compliance with the MMMA did not
excuse his violation of the conditions of his federal supervised release). This line of
authority thus fully comports with our holding here.

10
[federal law] cannot otherwise be accomplished—if its operation within its chosen field

else must be frustrated and its provisions be refused their natural effect.’ ” Crosby v

Nat’l Foreign Trade Council, 530 US 363, 373; 120 S Ct 2288; 147 L Ed 2d 352 (2000),

quoting Savage v Jones, 225 US 501, 533; 32 S Ct 715; 56 L Ed 1182 (1912). As the

United States Supreme Court has stated, “[w]hat is a sufficient obstacle is a matter of

judgment,” to be assessed under the circumstances of the given case and “to be informed

by examining the federal statute as a whole and identifying its purpose and intended

effects.” Crosby, 530 US at 373.

According to the Supreme Court in Raich, “[t]he main objectives of the CSA were

to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled

substances.” 545 US at 12. “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.” Id. at 13. As noted, in

devising that scheme, Congress categorized marijuana as a Schedule I controlled

substance, thereby designating it “as contraband for any purpose” and indicating that it

“has no acceptable medical uses.” Id. at 27.

Michigan also designates marijuana as a Schedule 1 drug, and its possession,

manufacture, and delivery remain punishable offenses under Michigan law. People v

Kolanek, 491 Mich 382, 394; 817 NW2d 528 (2012). See also MCL 333.7212(1)(c),

MCL 333.7401(2)(d), and MCL 333.7403(2)(d). In enacting the MMMA, however, the

people of the State of Michigan chose to part ways with Congress only regarding the

scope of acceptable medical use of marijuana, allowing “a limited class of individuals” to

11
engage in certain such use in “an ‘effort for the health and welfare of [Michigan]

citizens.’ ” Kolanek, 491 Mich at 393-394, quoting MCL 333.26422(c).

While the MMMA and CSA differ with respect to medical use of marijuana,

§ 4(a)’s limited state-law immunity for such use does not frustrate the CSA’s operation

nor refuse its provisions their natural effect, such that its purpose cannot otherwise be

accomplished. Crosby, 530 US at 373. As the Court of Appeals duly recognized and the

MMMA itself makes clear, see MCL 333.26422 and MCL 333.26427(a), this immunity

does not purport to alter the CSA’s federal criminalization of marijuana, or to interfere

with or undermine federal enforcement of that prohibition. The CSA, meanwhile, by

expressly declining to occupy the field of regulating marijuana, 21 USC 903, “explicitly

contemplates a role for the States” in that regard, Oregon, 546 US at 251, and there is no

indication that the CSA’s purpose or objective was to require states to enforce its

prohibitions. Indeed, as noted, Congress lacks the constitutional authority to impose such

an obligation. As a result, we fail to see how § 4(a) creates, as the City claims,

“significant and unsolvable obstacles to the enforcement of the” CSA, such that the

former is preempted by the latter.

In reaching the opposite conclusion, both the City and the circuit court rely heavily

on Mich Canners & Freezers Ass’n v Agricultural Marketing & Bargaining Bd, 467 US

461; 104 S Ct 2518; 81 L Ed 2d 399 (1984), and Emerald Steel Fabricators, Inc v Bureau

of Labor & Indus, 348 Or 159; 230 P3d 518 (2010). Such reliance, however, is

misplaced. At issue in Michigan Canners was whether Michigan’s Agricultural

Marketing and Bargaining Act (the Michigan Act) was preempted by the federal

Agricultural Fair Practices Act (AFPA). In order to protect individual producers of

12
agricultural commodities from coercion by associations of producers, the AFPA

prohibited those associations from “engag[ing] in practices that interfere with a

producer’s freedom to choose whether to bring his products to market himself or to sell

them through” an association. Mich Canners, 467 US at 464. The Michigan Act,

however, provided that, under certain circumstances, a producers’ association could

receive state accreditation to become the exclusive bargaining agent for all producers of a

given commodity; when an association was so accredited, “all producers of that

commodity, regardless of whether they have chosen to become members of the

association, must pay a service fee to the association and must abide by the terms of the

contracts the association negotiates with processors.” Id. at 467-468. The United States

Supreme Court concluded that the Michigan Act was preempted by the AFPA because

the Michigan Act, by compelling individual producers to effectively join and be bound by

the actions of accredited associations, “empowers producers’ associations to do precisely

what the federal Act forbids them to do” and “imposes on the producer the same

incidents of association membership with which Congress was concerned in enacting”

the AFPA. Id. at 478. In other words, the AFPA guaranteed individual producers the

freedom to choose whether to join associations; the Michigan Act, however, denied them

that right.

Such circumstances are not present here. Section 4(a) simply provides that, under

state law, certain individuals may engage in certain medical marijuana use without risk of

penalty. As previously discussed, while such use is prohibited under federal law, § 4(a)

does not deny the federal government the ability to enforce that prohibition, nor does it

purport to require, authorize, or excuse its violation. Granting Ter Beek his requested

13
relief does not limit his potential exposure to federal enforcement of the CSA against

him, but only recognizes that he is immune under state law for MMMA-compliant

conduct, as provided in § 4(a). Unlike in Michigan Canners, the state law here does not

frustrate or impede the federal mandate.

Emerald Steel is also distinguishable, never mind nonbinding. At issue in that

case was whether the plaintiff’s medical use of marijuana constituted an “illegal use of

drugs” under a state statutory provision governing his claim for employment

discrimination. The statute, in turn, provided that “illegal use of drugs” did not include

“uses authorized under the [CSA] or under other provisions of state or federal law.”

Emerald Steel, 348 Or at 170, quoting Or Rev Stat 659A.122(2). The plaintiff argued

that his medical marijuana use was not an “illegal use of drugs” under the statute because

it was authorized under the Oregon Medical Marijuana Act, which provided that certain

individuals, under certain circumstances, “may engage in . . . the medical use of

marijuana.” Or Rev Stat 475.306(1). The Oregon Supreme Court rejected this position,

concluding that, to the extent the Oregon Medical Marijuana Act authorized the use of

marijuana, it was preempted by the CSA. Emerald Steel, 348 Or at 190. The decision

made clear, however, that it did “not hold that the [CSA] preempts provisions of the

Oregon Medical Marijuana Act that exempt the possession, manufacture, or distribution

of medical marijuana from state criminal liability.” Id. See also, e.g., id. at 171-172

nn 11 and 12. Thus, Emerald Steel addresses a substantively different question than the

one presently before us—whether the CSA preempts § 4(a)’s limited state-law immunity

14
from penalty for certain medical marijuana use—and we see nothing in its answer that

would alter our own.6

In sum, there is no “positive conflict” between the CSA and § 4(a) of the MMMA

such that the two “cannot consistently stand together,” 21 USC 903: it is not impossible

to comply with both the CSA’s federal prohibition of marijuana and § 4(a)’s limited

state-law immunity for certain medical marijuana use, and § 4(a) does not stand as an

obstacle to the accomplishment and execution of the full purposes and objectives of the

CSA. Mut Pharm, 570 US at ___, ___; 133 S Ct at 2473, 2476-2477; Hillsborough, 471

US at 713. As such, the CSA does not preempt § 4(a) of the MMMA.

C. THE ORDINANCE IS PREEMPTED BY § 4(a) OF THE MMMA

Having found that the CSA does not preempt § 4(a) of the MMMA, we turn next

to whether the Ordinance, as applied to Ter Beek, is preempted by § 4(a). We agree with

the Court of Appeals that it is. The required analysis on this point is not complex.

6
Furthermore, we have misgivings, mildly put, about Emerald Steel’s reasoning. In
particular, in finding preemption, the Oregon Supreme Court characterized Michigan
Canners as a case of “state law permit[ting] what federal law prohibits,” and reasoned by
analogy that “[a]ffirmatively authorizing a use that federal law prohibits stands as an
obstacle to the implementation and execution of the full purposes and objectives of the”
CSA. Emerald Steel, 348 Or at 177-178. Michigan Canners, however, does not stand for
the broad proposition that, if a state law permits something a federal law prohibits, it is
preempted. Instead, Michigan Canners involved a state law that not only permitted what
federal law prohibited, but also required that certain federal guarantees be denied.
Indeed, the Oregon Supreme Court has since moderated this aspect of its analysis,
clarifying that “Emerald Steel should not be construed as announcing a stand-alone rule
that any state law that can be viewed as ‘affirmatively authorizing’ what federal law
prohibits is preempted.” Willis v Winters, 350 Or 299, 310 n 6; 253 P3d 1058 (2011).

15
 Under the Michigan Constitution, the City’s “power to adopt resolutions and

ordinances relating to its municipal concerns” is “subject to the constitution and the law.”

Const 1963, art 7, § 22. As this Court has previously noted, “[w]hile prescribing broad

powers, this provision specifically provides that ordinances are subject to the laws of this

state, i.e., statutes.” AFSCME v Detroit, 468 Mich 388, 410; 662 NW2d 695 (2003). The

City, therefore, “is precluded from enacting an ordinance if . . . the ordinance is in direct

conflict with the state statutory scheme, or . . . if the state statutory scheme preempts the

ordinance by occupying the field of regulation which the municipality seeks to enter, to

the exclusion of the ordinance, even where there is no direct conflict between the two

schemes of regulation.” People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977)

(footnotes omitted). A direct conflict exists when “the ordinance permits what the statute

prohibits or the ordinance prohibits what the statute permits.” Id. at 322 n 4. Here, the

Ordinance directly conflicts with the MMMA by permitting what the MMMA expressly

prohibits—the imposition of a “penalty in any manner” on a registered qualifying patient

whose medical use of marijuana falls within the scope of § 4(a)’s immunity.

The City disputes this characterization of the Ordinance, noting that while it

permits the imposition of civil sanctions, it does not require them; instead, a violation of

the Ordinance can be enforced through equitable relief such as a civil injunction. We

agree with the Court of Appeals, however, that enjoining a registered qualifying patient

from engaging in MMMA-compliant conduct unambiguously falls within the scope of

penalties prohibited by § 4(a). For § 4(a) makes clear that individuals who satisfy the

statutorily specified criteria “shall not be subject to . . . penalty in any manner,” a

prohibition which expressly includes “civil penalt[ies].” As the Court of Appeals noted,

16
the MMMA does not define “penalty,” but that term is commonly understood to mean a

“punishment imposed or incurred for a violation of law or rule . . . something forfeited.”

Random House Webster’s College Dictionary (2000). See, e.g., People v Morey, 461

Mich 325, 330; 603 NW2d 250 (1999) (“Where, as here, the Legislature has not

expressly defined terms used within a statute, we may turn to dictionary definitions to aid

our goal of construing those terms in accordance with their ordinary and generally

accepted meanings.”). Under the Ordinance, individuals are subject to civil punishment

for engaging in the medical use of marijuana in accordance with the MMMA; by the

plain terms of § 4(a), the manner of that punishment—be it requiring the payment of a

monetary sanction, or denying the ability to engage in MMMA-compliant conduct—is

not material to the MMMA’s immunity from it.

Nor do we agree with the City that our decision in Michigan v McQueen, 493

Mich 135; 828 NW2d 644 (2013), mandates a different outcome. In McQueen, this

Court held that, because the defendants’ business, a medical marijuana dispensary, was

not being operated in accordance with the MMMA, it was properly enjoined as a public

nuisance under MCL 600.3801.7 McQueen, 493 Mich at 140. The City contends that,

because the growth and cultivation of marijuana is a violation of the Ordinance, and

violations of zoning ordinances constitute nuisances per se under the Michigan Zoning

Enabling Act (MZEA), MCL 125.3407, McQueen permits the City’s regulation through

injunction. McQueen, however, affirmed the injunction of the defendants’ business not

7
MCL 600.3801(1)(c) provides that “[a] building, vehicle, boat, aircraft, or place is a
nuisance if . . . [i]t is used for the unlawful manufacture, transporting, sale, keeping for
sale, bartering, or furnishing of a controlled substance.”

17
simply because it was a nuisance, but because it was a nuisance that fell outside the scope

of conduct permitted under the MMMA. McQueen does not, as the City contends,

authorize a municipality to enjoin a registered qualifying patient from engaging in

medical use of marijuana in compliance with the MMMA, simply by characterizing that

conduct as a zoning violation.

Furthermore, contrary to the City’s suggestion, the fact that the Ordinance is a

local zoning regulation enacted pursuant to the MZEA does not save it from preemption.

The City stresses that the MZEA affords local municipalities a broad grant of authority to

use their zoning powers to advance local interests, such as “public health, safety, and

welfare.” MCL 125.3201. The MMMA, however, provides in no uncertain terms that

“[t]he medical use of marihuana is allowed under state law to the extent that it is carried

out in accordance with” the MMMA, MCL 333.26427(a), and that “[a]ll other acts and

parts of acts inconsistent with [the MMMA] do not apply to the medical use of

marihuana,” MCL 333.26427(e). The City contends that the MMMA does not express a

sufficiently clear intent to supersede the MZEA, but we see no ambiguity in the

MMMA’s plain language to this effect. See Bylsma, 493 Mich at 26 (explaining that the

MMMA’s plain language provides the most reliable evidence of intent and that if this

language is unambiguous, no further judicial construction is required or permitted

because we must conclude that the electors intended the meaning clearly expressed). It is

well accepted that when two legislative enactments seemingly conflict, the specific

provision prevails over the more general provision. See, e.g., Crane v Reeder, 22 Mich

322, 334 (1871). Accordingly, the City cannot look to the MZEA to authorize or excuse

18
the Ordinance’s contravention of the specific immunity for medical marijuana use

provided under § 4(a) of the MMMA.8

The City also points to Riverside v Inland Empire Patients Health & Wellness Ctr,

Inc, 56 Cal 4th 729; 156 Cal Rptr 3d 409; 300 P3d 494 (2013), in support of its position.

In that case, the California Supreme Court found certain state medical marijuana laws did

not preempt a local zoning ordinance. Riverside, however, is beside the point. At issue

there was whether a local zoning ordinance prohibiting medical marijuana dispensaries

within city limits was preempted by California’s Compassionate Use Act (CUA) and

Medical Marijuana Program Act (MMP). The California Supreme Court concluded that

there was no preemption, as the CUA and MMP offered only a limited immunity from

sanction under certain specified state criminal and nuisance statutes, thereby “signal[ing]

that the state declines to regard the described acts as nuisances or criminal violations, and

8
No more availing is the City’s attempt to import certain zoning-related standards into
our preemption analysis. The City, for instance, points to Kyser v Kasson Twp, 486 Mich
514, 521; 786 NW2d 543 (2010), which states that, when a citizen challenges a zoning
ordinance on due process grounds, the “ordinance is presumed to be reasonable.” The
City also cites the MZEA’s exclusionary zoning provision, MCL 125.3207, which
requires a showing of “demonstrated need” for a certain land use in order to overcome a
zoning ordinance’s “effect of totally prohibiting the establishment of a land use within a
local unit of government”—a need, the City contends, that Ter Beek cannot show, since
he can likely procure marijuana for medical use in other municipalities. We do not see
how these standards impact our assessment of whether the Ordinance is preempted by the
state-law immunity from penalty provided by § 4(a) of the MMMA. The City seems to
suggest that, for this immunity to attach, a registered qualifying patient must show a
“demonstrated need” under MCL 125.3207 for his or her MMMA-compliant medical
marijuana use. Neither § 4(a) nor any other provision of the MMMA, however, imposes
or betrays a tolerance for such a condition with respect to the availability of its
protections. Thus, to the extent the MZEA may be read to require such a showing for an
individual to claim the immunity provided under § 4(a), it is inconsistent with and
superseded by the MMMA. MCL 333.26427(e).

19
that the state’s enforcement mechanisms will thus not be available against these acts.”

Id. at 762. As such, these “limited provisions” were found to “neither expressly or

impliedly restrict or preempt the authority of individual local jurisdictions to choose

otherwise for local reasons, and to prohibit collective or cooperative medical marijuana

activities within their own borders.” Id. The scope of § 4(a)’s immunity, however, is not

similarly circumscribed; in prohibiting certain individuals from being “subject to . . .

penalty in any manner,” § 4(a) draws no distinction between state and local laws or

penalties. We thus do not find Riverside’s reasoning instructive.

Lastly, the City stresses that the MMMA does not create an absolute right to grow

and distribute marijuana. Correct. See People v Kolanek, 491 Mich 382, 394; 817

NW2d 528 (2012) (“The MMMA does not create a general right for individuals to use

and possess marijuana in Michigan. Possession, manufacture, and delivery of marijuana

remain punishable offenses under Michigan law.”); Bylsma, 493 Mich at 32 (discussing

Kolanek); People v Koon, 494 Mich 1, 5; 832 NW2d 724 (2013) (“The MMMA, rather

than legalizing marijuana, functions by providing registered patients with immunity from

prosecution for the medical use of marijuana.”). Ter Beek, however, does not seek to

assert any such general or absolute right. Nor does our conclusion recognize one. The

Ordinance directly conflicts with the MMMA not because it generally pertains to

marijuana, but because it permits registered qualifying patients, such as Ter Beek, to be

penalized by the City for engaging in MMMA-compliant medical marijuana use. Section

20
4(a) of the MMMA expressly prohibits this. As such, the MMMA preempts the

Ordinance to the extent of this conflict.9

IV. CONCLUSION

For the foregoing reasons, we hold that the Ordinance is preempted by § 4(a) of

the Michigan Medical Marijuana Act, which in turn is not preempted by the federal

controlled substances act. Accordingly, we affirm the judgment of the Court of Appeals,

reverse the circuit court’s grant of summary disposition in favor of the City, and remand

for entry of summary disposition in favor of Ter Beek.

Bridget M. McCormack
Robert P. Young, Jr.
Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
David F. Viviano

9
Contrary to the City’s concern, this outcome does not “create a situation in the State of
Michigan where a person, caregiver or a group of caregivers would be able to operate
with no local regulation of their cultivation and distribution of marijuana.” Ter Beek
does not argue, and we do not hold, that the MMMA forecloses all local regulation of
marijuana; nor does this case require us to reach whether and to what extent the MMMA
might occupy the field of medical marijuana regulation.

21