• Thomas Lavigne

The DeRuiter Case Was Too Narrow

(DeRuiter v. Byron Township,  No. 158311 (Mich. April 27, 2020) as it concerns Primary Caregivers registered under the Michigan Medical Marihuana Act.  

  The Michigan Supreme Court just recently rendered a narrow opinion in a case entitled DeRuiter v. Byron Township,  No. 158311 (Mich. April 27, 2020).


  It is narrow as a result of the limited arguments made by the Primary Caregiver’s attorney. As a result the Court’s opinion so limits its decision and abstains from ruling on arguments not raised.


  The ruling held that a primary caregiver’s “enclosed locked facility” can be reasonably zoned under the immunity provision of the Michigan Medical Marihuana Act (“MMMA”) without the zoning ordinance being conflict preempted by the MMMA.


  The ruling did not rule on issues not raised including whether MMMA Section 4 immunity from penalty in any manner conflict preempts ordinance enforcement, and whether field preemption through MMMA Section 7(e) applies to local zoning ordinances.

“We only address whether the MMMA is in direct conflict with the township’s zoning ordinance. We do not address field preemption because the trial court did not base its preemption ruling on that doctrine. See DeRuiter, 325 Mich App at 287 (declining to address field preemption because “the trial court never based its ruling on field preemption of zoning”). Likewise, we do not consider express preemption because DeRuiter has not argued that the MMMA expressly preempts the zoning ordinance at issue.”DeRuiter at pg. 8.

“Plaintiff has not argued that the state’s authority to regulate the medical use of marijuana is exclusive.”DeRuiter at pg. 14.

“We do not decide whether Byron Township’s ordinance conflicts with other aspects of the MMMA. Nor do we decide if the ordinance, which also precludes cultivating medical marijuana outside or in a structure detached from a residence, see Byron Township Zoning Ordinance, §3.2.G.1 and §3.2.H.2.d, has the practical consequence of prohibiting DeRuiter from cultivating the number of marijuana plants she is expressly permitted by the MMMA, see MCL 333.26426(d); MCL 333.26424(a); MCL 333.26424(b)(2).”DeRuiter, footnote 14.

“We express no opinion on whether the requirements for obtaining a permit from the township are so unreasonable as to create a conflict with the MMMA because that argument has not been presented to us.”

“To the extent DeRuiter argues that the immunity provisions of the MMMA contribute to a blanket prohibition on local governments regulating the “medical use” of marijuana with respect to time, place, and manner of such use, that argument sounds in field preemption. DeRuiter made this claim in the trial court. But because the trial court and the Court of Appeals held that the ordinance was conflict preempted, neither court reached the issue.17 Accordingly, we decline to address it at this time.”DeRuiter at pg. 16.Footnote 17 reads as follows:

“At oral argument before this Court, DeRuiter conceded that her appeal does not concern field preemption.”

  The Michigan Supreme Court in Ter Beek v. City of Wyoming, 495 Mich. 1, 846 N.W.2d 531 (2014), ruled that penalty in any manner is prohibited under MMMA Section 4, and thus enforcement of zoning cannot be permitted.

  The Michigan Supreme Court inPeople v. Koon, 494 Mich. 1, 832 N.W.2d 724 (2013)

ruled that MMMA Sec 7(e) provides the MMMA with field-preemption; MMMA 7(e) reads:             (e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.

Therefore, the scope of the new Supreme Court case DeRuiter is narrow in scope and that DeRuiter lost on appeal because his attorney narrowed the scope of his arguments and the court narrowed the scope of the ruling accordingly to the single proposition that the definition of “enclosed, locked facility” does not conflict-preempt local zoning in and of itself.  Even the narrow DeRuiter holding would preempt Detroit’s current ordinance which repealed their old caregiver center ordinance when they adopted the MMFLA ordinance, because it is so unreasonable that it creates such a conflict preemption.  However, in addition, we can rely upon the Ter Beek and Koon Supreme Court rulings; Ter Beek forbidding penalty in any manner under the broad immunity provided Primary Caregivers under Section 4(b) of the MMMA; and Koon confirming the field preemption provided by Section 7(e) of the MMMA.


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