STATE OF MICHIGAN KENT COUNTY CIRCUIT COURT JOHN TER BEEK, Plaintiff, Case No. 10-11515-CZ v. Hon. Dennis B. Leiber CITY OF WYOMING, FIRST AMENDED COMPLAINT Defendant. / Attorneys for Plaintiff: Michael O. Nelson (P23546) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 1104 Fuller Ave NE Grand Rapids, MI 49503 (616) 559-2665 Attorneys for Defendant: Jack R. Sluiter (P20596 1799 R.W Berends Dr. SW Wyoming, MI 49519 (616) 531-5080 Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 Miriam J. Aukerman (P63165) American Civil Liberties Union Fund of Michigan 89 Ionia NW, Suite 300 Grand Rapids, MI 49503
INTRODUCTORY STATEMENT 1. This is a declaratory judgment action against the city of Wyoming, Michigan, which has banned medical marihuana in direct violation of the Michigan Medical Marihuana Act (MMMA). 2. Plaintiff John Ter Beek suffers from diabetes which has resulted in neuropathy in his right foot and leg causing severe and chronic pain. Plaintiff also experiences severe and chronic pain in his knees as a result of an inherited neurological disorder known as Charcot-Marie-Tooth Syndrome. 3. Plaintiff is a qualifying patient under the MMMA and is registered as such with the state of Michigan. 4. Plaintiff s ability to use medical marihuana is now threatened by Wyoming s ordinance that makes it illegal for plaintiff to grow, possess, and use medical marihuana in his own home. 5. In this lawsuit, plaintiff seeks a declaratory judgment that the Wyoming ordinance is preempted by the Michigan Medical Marihuana Act and is thus invalid and unenforceable. Plaintiff s medical use of marihuana is protected by the MMMA, and the city of Wyoming does not have the power to override state law. PARTIES 6. Plaintiff John Ter Beek is an adult resident of Wyoming, Michigan. He is a registered medical marihuana patient and wishes to grow, possess, and use medical marihuana in and at his home in the city of Wyoming. 2
7. Defendant City of Wyoming is a municipal corporation organized under the laws of the state of Michigan. The city of Wyoming is located within Kent County. JURISDICTION AND VENUE 8. This court has jurisdiction because this is a civil action, no other court has exclusive jurisdiction over this action, and no law denies the circuit courts jurisdiction over this action. This court s authority to grant a declaratory judgment is provided by MCR 2.605. 9. Venue is proper because the defendant city is located in Kent County and is a governmental unit that exercises or may exercise its governmental authority in Kent County. FACTS Plaintiff John Ter Beek 10. Plaintiff has suffered from diabetes since at least 2002. 11. In September 2007, plaintiff fell down the stairs in his home and broke his right ankle. 12. Due to the diabetic condition, plaintiff s ankle never healed. He suffers from neuropathy in his right foot and severe and chronic shooting pain originating from the right foot and traveling through his right leg. 13. Plaintiff also suffers from severe and chronic pain in his knees as a result of an inherited neurological disorder called Charcot-Marie-Tooth Syndrome. 14. As prescribed by his physicians, plaintiff has tried Vicodin and other narcotics to relieve pain. Their side effects, however, are unpleasant, and they do not effectively manage his symptoms. 3
15. Based on the advice and written certification of his primary care physician, plaintiff found marihuana to be more effective in relieving his severe and chronic pain and preferable to various narcotic drugs. 16. Plaintiff is registered with the state of Michigan as a medical marihuana patient. The Michigan Medical Marihuana Act 17. In 2008, the people of Michigan enacted the Michigan Medical Marihuana Act ( MMMA ) by voter initiative. See Initiated Law 1 of 2008, MCL 333.26421 et seq. 18. The measure passed with approximately 63% of the vote including 59% in Wyoming. 19. The first two stated purposes of the MMMA are to allow under state law the medical use of marihuana and to provide protections for the medical use of marihuana. 20. In the MMMA, the people of the State of Michigan found and declared as follows: Modern medical research, including as found by the National Academy of Sciences Institute of Medicine in a March 1999 report, has discovered beneficial uses for marihuana in treating or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions. 21. In the MMMA, the people of the State of Michigan further found and declared as follows: Although 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. The laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Vermont, Rhode Island, and Washington do not penalize the medical use and cultivation of marihuana. Michigan joins in this effort for the health and welfare of its citizens. 4
22. The MMMA decriminalized the medical use of marihuana for debilitating medical conditions, including chronic or debilitating diseases and medical conditions that produce severe and chronic pain. 23. Specifically, the MMMA provides that medical marihuana patients, registered as such with the state of Michigan based on a written certification from their physician, 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 for the medical use of marihuana. 24. The MMMA provides the same protections to registered primary caregivers who grow marihuana and persons other than registered primary caregivers who assist a patient with using or administering marihuana or who are in the presence or vicinity of the medical use of marihuana. 25. The medical use of marihuana is defined by the MMMA to include, among other things, the acquisition, possession, cultivation, use, and transportation of marihuana relating to the administration of marihuana to treat or alleviate a registered patient s debilitating medical condition. 26. Although the possession, cultivation, and use of marihuana for any purpose violates the federal Controlled Substances Act, 21 USC 801 et seq., the United States Department of Justice has an official policy of not enforcing federal drug laws against medical marihuana patients, caregivers and others who comply with their state s medical marihuana law. Therefore, patients and their caregivers and other assistants who comply with the MMMA will not be prosecuted under federal law. 5
The Wyoming Ordinance 27. On December 6, 2010, the City of Wyoming, by its City Council, adopted Ordinance No. 11-10. 28. The ordinance adds Section 90-66 to the city code to read as follows: Uses not expressly permitted under this Ordinance are prohibited in all districts. Uses that are contrary to federal law, state law or local ordinance are prohibited. 29. Because the cultivation, possession, and use of marihuana remains illegal under federal law, the ordinance operates as a complete ban on the medical use of marihuana within the city of Wyoming. 30. Although the ordinance does not explicitly refer to medical marihuana, the purpose and effect of the ordinance is to make the cultivation, possession, and use of medical marihuana a violation of the zoning ordinance so that registered patients and caregivers are subject to civil penalty including fines, costs, and/or injunction. 31. Wyoming s city manager has publicly stated that, although Michigan voters approved the use of medical marihuana, it is banned by the Wyoming ordinance. 32. Plaintiff, like all registered patients and caregivers, is entitled to grow, possess, and use medical marihuana in accordance with the Michigan Medical Marihuana Act without being subject to penalty in any manner by the defendant city. CLAIM FOR RELIEF DECLARATORY JUDGMENT 33. This court is empowered to enter a declaratory judgment under MCR 2.605. Injunctive relief is authorized by MCR 3.310. 6
34. Municipalities in Michigan may not adopt ordinances in conflict with a Michigan state statute. Such ordinances are preempted by Michigan state law and therefore void. 35. Ordinance no. 11-10 is in direct conflict with and therefore preempted by the Michigan Medical Marihuana Act. 36. Ordinance no. 11-10 is therefore void and unenforceable against the plaintiff for his medical use of marihuana as allowed under the Michigan Medical Marihuana Act. RELIEF REQUESTED WHEREFORE, plaintiff requests the following relief: A. A declaratory judgment declaring Wyoming ordinance no 11-10 to be void and unenforceable to the extent that it prohibits the medical use of marihuana as allowed under the Michigan Medical Marihuana Act. B. For such injunctive and/or other relief as may be necessary and appropriate to protect plaintiff s right to use medical marihuana under the Michigan Medical Marihuana Act. Dated: Dated: Michael O. Nelson (P23546) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 1104 Fuller Ave NE Grand Rapids, MI 49503 (616) 559-2665 Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. 7
Detroit, MI 48201 (313) 578-6824 Dated: Miriam J. Aukerman (P63165) American Civil Liberties Union Fund of Michigan 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 Attorneys for Plaintiff 8