(At the bottom of this thread is the Michigan ACLU's press release of a Michigan Supreme Court decision made on Thursday of this week which nullified most local efforts to nullify or change the main provisions of the Michigan Medical Marijuana Act (MMMA), along with links to the complaint, decision, etc.)
In the first Ludington City Council in May 2012, coincidentally the first city council meeting I attended after the unconstitutional Workplace Safety Policy (WSP) was voluntarily removed off of me by City Manager John Shay, and with the annual visitation of the Foster Third Graders, the Ludington City Council passed unnamed Ordinance 241-12 to "regulate activities and require the licensure of primary caregivers under the Michigan Medical Marijuana Act; to provide for the revocation of such licenses in the event of violation; to provide for appeals; to prohibit the creation of vested rights; to provide penalties for violations; and to repeal all ordinances in conflict therewith".
Before the meeting, I wrote this thread: Medical Marijuana Marauders of Ludington, wherein I developed the long history of the development of this ordinance, mostly by Police Chief Mark Barnett, and how it failed to follow the initiated state law of the MMMA explicitly, and was just poorly written law (just like the WSP was , and still is. Among the criticisms I made of the ordinance in that thread:
1) The licensee is mandated to have a "required security device" (31-02) that alerts both the owner and the LPD when unauthorized access occurs at the MM facility. This could be fairly costly, violative of the confidentiality of the licensee, and is not part of the State law.
2) The licensee is restricted to conduct business between 8 AM and 6 PM (31-04 b3), thus if they conduct business during the other 14 hours of the day, two people could receive misdemeanors. The State laws have no set time limits.
3) In 31-05 it states the license can be denied if the licensee has a felony, or a misdemeanor involving assault or theft. The State only denies applicants if they have a felony involving illegal drugs.
4) In 31-07 the ordinance sets out an appeal process that has the City Council and Attorney decide on the appeal, unlike the State law which allows appeals to the court systems (the judicial branch). No confidentiality provisions are set forth here, or elsewhere in Ludington law, and the prospective licensee may have his name and intention brought out at a public forum if he appeals.
5) The restriction on distribution in 31-07 is arbitrary and not found in any portion of State laws. A misdemeanor can occur if you distribute MM in any other way than a "one on one" basis. This isn't part of State law, and neither is the word "deal" used in State law as it is in 31-09, with the negative connotations that infers.
You can add to that the imposition of criminal penalties for activities that the state MMMA allows. The Ludington City Council and our other officials really have no idea of the limitations to their powers. If the state has a law, particularly an initiated law with mostly indisputable language and meaning that passed the vote of the people by a large margin, you can't pass a local law that goes against it. Federal law may trump state law at times, depending on what the Constitution says, but state law always trumps local law.
In this recently decided lawsuit, Ter Beek v. City of Wyoming, the Michigan Supreme Court made most local ordinances doling out civil or criminal penalties and using zoning to dissuade or limit the state MMMA law, against the law. In summary the court said: "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."
It is not impossible to comply with both the Federal Control Substances Act (CSA) and § 4(a) of the MMMA. However, under MI 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).
The City of Ludington's ordinance is actually more restrictive the City of Wyoming's and invokes criminal penalties for violating any section of the ordinance, much of it behavior that the MMMA allows. On page 18 of the MSC decision we also find that you cannot regulate the MMMA out of the city by overly restrictive zoning. The City of Wyoming contended that the MMMA does not express a
sufficiently clear intent to supersede zoning, but the Supreme Court saw no ambiguity in the
MMMA’s plain language to this effect.
So when our City used ultra-restrictive zoning to make a medical marijuana caregiver have to live in a very small and arbitrary geographical area (brown on the map below), which included a small section on the north side of town (much smaller than depicted, as much is within 1000 ft. of pink school property), OxyChem property, Carferry property, railroad property, and Conrad Industrial Park property. If one caregiver did set up shop in that small area to the north, he would be the only one, as two caregivers cannot exist within 600 ft. of another by the ordinance, and he would also be forced out of business if a church, daycare, doctor's office, etc. moved into the area.
As I said at the first city council meeting I ever spoke at: "Today, students, you will hear the City Council more than likely pass a law (the Medical Marijuana Ordinance). Back when you were in Kindergarten, the citizens of this state passed an initiated law by a vote of 63% to 37% that allowed the people of this state certain rights under limited conditions. Today, the City Council will pass a law that makes that state law passed resoundingly back in 2008 effectively meaningless to the citizens of Ludington.
I voted against the law back then, and I am still not OK with it, but that's not how democracy works. The majority rules, votes count, and laws are laws. A local law cannot overrule a state law. That's what will happen today if this passes. That will be unhealthy."
The City of Ludington will be given notice at Monday's meeting that they need to repeal their unlawful ordinance that violates state law in the near future to relieve the City's residents from the liability of having to defend unlawful policy illogically passed by our representatives when someone get charged for a misdemeanor under it, or just decides that it should not be allowed to stay on our local code of ordinances, as it is clearly illegal as per state law under our highest court's ruling.
MICHIGAN ACLU: In a unanimous decision late yesterday, the Michigan Supreme Court struck down the City of Wyoming’s ordinance that bans medical marijuana because it directly violates the state’s Medical Marihuana Act.
The ordinance was challenged by American Civil Liberties Union of Michigan on behalf of John Ter Beek, a retired attorney and medical marijuana patient who suffers from diabetes and a neurological disorder that causes neuropathy and severe pain. The Michigan Court of Appeals previously struck down the ban.
The following can be attributed to Dan Korobkin, deputy legal director of the ACLU of Michigan:
“Thousands of sick patients will now continue to have access to the pain relief they need. These patients and their caregivers have been waiting for this day since 2008 when people across the state overwhelmingly voted to protect patients from being punished or penalized for using marijuana to treat their medical conditions. This unanimous decision by the Michigan Supreme Court rejects the misguided efforts of a few local officials to undo the results of that historic election. All cities should take notice and immediately stop treating patients who are following the law like criminals.”
Key News and Documents
► Legal Document | Read the Michigan Supreme Court decision.
► Legal Document | Read the ACLU’s winning brief.
► Legal Document | Read the ACLU’s complaint.
► More Info | Read more about this case defending medical marijuana patients' rights.
You are correct, F4J, there is no cost to the officials behaving badly. For two quick examples, one very close to my own knowledge is the legal victories I had over the City of Ludington, where my attorneys and I received $4650 in a stipulated judgment for all the 2011 city councilors violating the Open Meetings Act by a secret E-mail scheme voting for a sewer project worth $95,000 ( that was never brought up at a meeting) plus the $15,000 we got for settling over the extremely unconstitutional Workplace Safety Policy. The councilors were at fault in the first, the City Manager primarily at fault in the second, but guess who paid the settlements?
The answer may surprise you, it was not the taxpayers! At least directly; I just recently received a 1099-Misc form from the Michigan Municipal Risk Management (MMRM), an insurance agency for cities which paid all the money, $19,650. Our City just has the prospect of their insurance rates going up because of their flawed decisions, which of course, is paid for by us taxpayers. But there is no ramifications to any of the officers; in fact, the council roundly defended Shay's actions with the WSP, and Shay defended the council's actions with the OMA violation after each lawsuit was found or settled in my favor. Shay even tacked on his own slander against my character at the city council meeting after he settled the WSP.
Similar things have happened with McAdam's police brutality lawsuit with the City's portion of the settlement. I have to believe the County has some similar insurance.
When I went to the 51st Circuit Court because the City of Ludington would not release records dealing with Nick Tykoski's business dealings with the COL after he was an appointed official, the COL has used strictly taxpayer money to defend it. It was at least over $20,000 in the pockets of our City Attorney, probably more than $30,000.
We are still waiting for the 51st Circuit Court to contact us saying that they have received jurisdiction back from the Michigan Appeal's Court who decided in our favor as to prevailing in the case and being awarded costs and disbursements. It has been four months since the MI Appeals Court made the decision, we have contacted the 51st Circuit Court twice since, but they seem to be refusing to give us notice (as per their duty) to let both parties know they have jurisdiction back. Our Circuit Court has its problems. They failed to notify us that the judge's son was part of the City's legal team for four months also, even though they knew darn well he was.
I don't like the State law but it is the law and the City should stop wasting tax payers money fighting it. If people want to change it they had better contact their State reps because that's where the power for change is at. As usual another fine job of reporting X.
Thanks, Willy. I thoroughly believe that Chief Barnett and the other architects of the City's ordinance had the intention to keep MM out of the city limits, rather than to use it as a potential licensing and fine scheme to take advantage of anyone who would set up shop in Ludington. The way it's constructed shows that its purpose is to dissuade licensees, using criminal penalties over civil penalties, and zoning to discourage MM.
These COL people in charge have been, and are increasingly getting more abusive, and exceeding their power/authority every year as time goes on. It's almost as if they make ordinances as if Ludington is a country separate unto itself, and not a part of Michigan nor the USA. In my opinion, the Mich. MML helps many that would otherwise have to turn to other much more addictive pain relievers, such as: methadone, codeine, morphene, vicadin, and probably many more I can't think of. The fact that COL's arrogance is so disgustingly over the top in excess, makes this case easily reversed, if someone wants to pursue it in the court system. Oh yes, that's the ONLY WAY a person can go, and if the COL loses, it will again simply be a technicality excuse given for the outcome. After all, they are never ever wrong, no matter what the public, courts, nor law would demand. And that my fellow Ludingtonians, is exactly what true POWER is, that of the mindset of grandeur, and extreme narcissism. I hope the State of Michigan AG's office follows up on this, and reverses their earlier gestapo tactics again.
I have stated in several Posts for years that I thought anyone who was violated, charged, and sustained damages should sue the City of Ludington. Some People called the City and the Police for answers regarding this violation of their Rights. Both the City and The Police stated the Ordinances were valid. I still held the City was in Violation and told those who asked to challenge them in court. Since 2008 when the Law was passed there were several doctors and organizations defending patients, along with the ACLU. Most people feared this was entrapment so they stayed quiet. The City of Ludington is GUILTY and, in violation of these Illegal Ordinances and should be grossly held accountable for their flagrant disregards of Law and, should be held accountable for EVERY Violation to Every Person they violated and, those parties should be cleared of charges, extorted monies and assets should be returned and, the City should be held to a Class Action Lawsuit!
Nice find in our archives John Doe Jr., but I really doubt any city officials are going to revisit the MMMA's ordinance locally. It will take an out of town attorney, and a class action lawsuit I believe too. When and if that does happen sometime, local officials are going to look pretty stupid, and over the top in authority mindset. Guess we'll have to wait and see, but, I kinda doubt any local changes will occur, but should.
The only problem is that in order to fight the City, one needs to have legal council and who has that kind of extra money laying around to hire an attorney?