Opinion
No. 349288
07-23-2020
JOHN SINCLAIR, JOSEY SCOGGIN, CHRISTIAN BOGNER, PAUL LITTLER, NORML OF MICHIGAN INC, and MICHIGAN MEDICAL MARIJUANA ASSOCIATION, Plaintiffs-Appellants, v. BOARD OF PHARMACY and NICHOLE COVER, Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Court of Claims
LC No. 19-000010-MM Before: FORT HOOT, P.J., and JANSEN and TUKEL, JJ. PER CURIAM.
Plaintiffs, John Sinclair, Josey Scoggin, Christian Bogner, Paul Littler, the NORML of Michigan Inc., and the Michigan Medical Marijuana Association, appeal as of right the Court of Claims' opinion and order granting defendants', Board of Pharmacy and Nichole Cover, motion for summary disposition, thereby dismissing all eight of plaintiffs' claims. We affirm.
I. MICHIGAN'S RECENT MARIJUANA LEGISLATION
To fully understand plaintiffs' position, we find it helpful to underscore the recently enacted marijuana-related laws in Michigan. The Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., "was proposed in a citizen's initiative petition, was elector-approved in November 2008, and became effective December 4, 2008." People v Kolanek, 491 Mich 382, 393; 817 NW2d 528 (2012). Its purpose was "to allow a limited class of individuals the medical use of marijuana, and the act declares this purpose to be an effort for the health and welfare of [Michigan] citizens." Id. at 393-394 (citation and internal quotation marks omitted). To achieve this purpose, "the MMMA defines the parameters of legal medical-marijuana use, promulgates a scheme for regulating registered patient use and administering the act, and provides for an affirmative defense, as well as penalties for violating the MMMA." Id. at 394. The MMMA did not, however, "create a general right for individuals to use and possess marijuana in Michigan." Id. Consequently, the "[p]ossession, manufacture, and delivery of marijuana remain[ed] punishable offenses under Michigan law" when it was enacted. Id.
The second act at issue is the Medical Marihuana Facilities Licensing Act (MMFLA), MCL 27101 et seq., which was enacted by the Michigan Legislature in 2016 "to license and regulate medical marihuana [facilities]." Hoover v Mich Dep't of Licensing & Reg Affairs, ___ F Supp ___, ___ (ED Mich, 2020); 2020 WL 230136, p 2 (citation and internal quotation marks omitted). "The MMFLA provides protections for those granted a license and engaging with activities within the scope of the MMFLA." Id., citing MCL 333.27201. Under the act, "licensed provisioning centers are authorized to purchase safety-tested marihuana only from licensed growers and processors and are authorized to sell it in limited quantities to patients and caregivers who are registered under the MMMA." Id., citing MCL 333.27504.
Finally, the third and most recent act at issue is the Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL 333.27951 et seq., which generally decriminalizes the possession and use of marijuana. The MRTMA expresses its purpose as follows:
The purpose of this act is to make marihuana legal under state and local law for adults 21 years of age or older, to make industrial hemp legal under state and local law, and to control the commercial production and distribution of marihuana under a system that licenses, regulates, and taxes the businesses involved. The intent is to prevent arrest and penalty for personal possession and cultivation of marihuana by adults 21 years of age or older; remove the commercial production and distribution of marihuana from the illicit market; prevent revenue generated from commerce in marihuana from going to criminal enterprises or gangs; prevent the distribution of marihuana to persons under 21 years of age; prevent the diversion of marihuana to illicit markets; ensure the safety of marihuana and marihuana-infused products; and ensure security of marihuana establishments. . . . [MCL 333.27952.]To that end, the act goes on to identify a list of acts with respect to marijuana, e.g., possessing, consuming, purchasing, transporting, processing, storing, manufacturing, and so on, that are now permissible in Michigan under certain circumstances. See MCL 333.27955.
II. PROCEDURAL HISTORY
Plaintiffs, who described themselves as "Michigan citizens and organizations affected by the Michigan Board of Pharmacy's continued and persistent placement of marihuana on Schedule 1 of the list of controlled substances that it promulgates as administrator of the Michigan Controlled Substances Act," filed the instant lawsuit, "seek[ing] a declaration that marijuana's listing on Schedule 1 violates plaintiffs' state constitutional due process and equal protection rights and their rights under Art. I, Sec. 11, to be free from unreasonable searches and seizures as there is no rational basis to treat marijuana as contraband." According to plaintiffs, "the listing of marihuana on Schedule 1 of the controlled substances act [was] repealed by implication" by the MMFLA. Additionally, plaintiffs alleged that "marihuana must be de-scheduled" because "there is no rational basis to classify marihuana with hard narcotics . . . ." Ultimately, plaintiffs claimed that the Board of Pharmacy "must be mandated or ordered to permanently remove marihuana from the Michigan List of Controlled Substances."
In their complaint, plaintiffs alleged eight separate causes of action: (1) an alleged violation of the Michigan Constitution's equal-protection clause, (2) an alleged violation of the Michigan Constitution's prohibition against excessive bail, excessive fines, cruel or unusual punishment, and unreasonable detention, (3) an alleged violation of the Michigan Constitution's due-process clause, (4) an alleged violation of the Michigan Constitution's prohibition against self-incrimination, (5) a declaratory-judgment claim under MCR 2.605, (6) an injunctive relief claim, (7) a claim seeking a writ of mandamus, and (8) an alleged violation of MCL 24.306. Plaintiffs asked the Court of Claims to "[d]eclare the inclusion of marihuana by the Michigan Board of Pharmacy on the List of Controlled Substances void," "[e]njoin the Michigan Board of Pharmacy from placing marihuana on the list of controlled substances on an emergency basis or otherwise," "[i]ssue a Writ of Mandamus ordering the Board of Pharmacy to de-schedule marihuana," and "[a]ward plaintiff[]s costs and reasonable attorney's fees."
In lieu of an answer, defendants filed a motion for summary disposition under MCR 2.116(C)(4), (C)(7), (C)(8), and (C)(10). Defendants first argued that plaintiffs had failed to establish the existence of an actual controversy, and therefore none of their claims were viable. Second, defendants argued that the Court of Claims lacked subject-matter jurisdiction over plaintiffs' claims because plaintiffs had failed to state the time and place from which their claims arose, and moreover had failed to detail the nature of their alleged claims and damages. Third, defendants argued that plaintiffs' claims were time-barred because they hinged on the passage of the MMFLA, which took place on December 20, 2016, more than two years before they filed this lawsuit. Finally, defendants argued that each of plaintiffs' claims failed to state a claim upon which relief could be granted.
In response, plaintiffs filed a countermotion for summary disposition and outlined how "Michigan has redefined Marihuana," how "Michigan has legalized marihuana for adult use," and how marijuana cannot reasonably be considered a Schedule 1 or 2 substance. Plaintiffs argued that they had standing, that they had timely pleaded a constitutional tort, and that the Court of Claims had jurisdiction because "[t]he organizational plaintiffs have standing to advocate for the interests of their members where, as here, the members themselves have a sufficient interest" because they have a "sufficient connection to - and harm from - the unconstitutional laws, regulations, and actions challenged herein . . . ."
Regarding the timeliness of their claims, plaintiffs pointed to "the fact that on January 9th, 2019, [the Department of Licensing and Regulation] LARA and the Board of Pharmacy modified and re-published its Rules to include Gabapentin as a Schedule 5 controlled substance," leaving marijuana as a Schedule 1 substance. Plaintiffs maintained that the classification of marijuana as a Schedule 1 controlled substance violated Michigan's due-process and equal-protection clauses, was arbitrary and capricious, would lead to cruel and unusual punishments if ever prosecuted, gave the impression that marijuana is a harmful drug, was unsupported and violated various legal rules, and was in violation of defendants' "clear legal duty" to de-schedule marijuana. Finally, plaintiffs asserted that they were entitled to a declaration that marijuana as a controlled substance was unconstitutional and, therefore, void as a matter of law.
In a written opinion and order, the Court of Claims granted defendants' motion and denied plaintiffs' countermotion, thereby dismissing plaintiffs' claims in full. First, recognizing that "the crux of the allegations in plaintiffs' complaint involves plaintiffs' request for declaratory relief under MCR 2.605," the Court of Claims concluded "that plaintiffs failed to plead the existence of an actual controversy[.]" The Court of Claims determined that plaintiffs' allegations consisted of alleged harm from since-repealed statutes, hypothetical or speculative harm, and a legal theory based on a Supreme Court opinion that has no application in this case. According to the court, "[t]he pertinent laws authorizing medicinal and recreational marijuana use do not prevent any regulation of the drug," but they instead "expressly recognize that the use of the drug is to be regulated . . .."
The Court of Claims further concluded that plaintiffs failed to state a claim on which relief could be granted, noting that plaintiffs' cruel and unusual punishment claim and alleged violation of the prohibition against self-incrimination claim failed to allege any punishment inflicted by the Board's decision. Moreover, the court concluded, plaintiffs' requests for declaratory-judgment and injunctive relief, as well as their claim rooted in MCL 24.306, failed to allege valid causes of action. Plaintiffs' mandamus count also failed to "demonstrate the existence of a clear legal right to the removal of marijuana from any of this state's controlled substance schedules[.]" Finally, the court concluded that plaintiffs' equal-protection claim "failed to identify any similarly situated groups subject to disparate treatment" and that plaintiffs' due-process claim failed where "the decriminalization of certain uses for certain purposes does not negate that the drug is still a controlled substance that can be regulated." This appeal followed.
III. STANDARDS OF REVIEW
This Court reviews a trial court's decision to grant or deny summary disposition de novo. Weishuhn v Catholic Diocese of Lansing, 279 Mich App 150, 155; 756 NW2d 483 (2008); Maiden v Rozwood, 461 Mich 109, 119-121; 597 NW2d 817 (1999). Below, the Court of Claims principally relied on MCR 2.116(C)(4) and (8) in granting defendants' motion. Summary disposition under subrule (C)(4) is appropriate when "[t]he court lacks jurisdiction of the subject matter." MCR 2.116(C)(4). "When viewing a motion under MCR 2.116(C)(4), this Court must determine whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law, or whether the affidavits and other proofs show that there was no genuine issue of material fact." Weishuhn, 279 Mich App at 155 (citations and internal quotation marks omitted). Summary disposition under subrule (C)(8) is appropriate when "[t]he opposing party has failed to state a claim on which relief can be granted." MCR 2.116(C)(8). "A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint" and "may be granted only where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Maiden, 461 Mich at 119. "When deciding a motion brought under this section, a court considers only the pleadings, and "[a]ll well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant." Id. at 119-120.
The crux of plaintiffs' claims boils down to a request for declaratory relief under MCR 2.605. A trial court's decision to grant or deny declaratory relief under that court rule is reviewed for an abuse of discretion. Allstate Ins Co v Hayes, 442 Mich 56, 74; 499 NW2d 743 (1993). "An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes." Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). Questions regarding the interpretation and application of court rules, like questions regarding summary disposition, are reviewed de novo. AFP Specialties, Inc v Vereyken, 303 Mich App 497, 504; 844 NW2d 470 (2014).
To the extent plaintiffs' arguments implicate the interpretation of constitutional and statutory provisions, those questions of law are also reviewed de novo. Mayor of Cadillac v Blackburn, 306 Mich 512, 516; 857 NW2d 529 (2014). Court rules, constitutional provisions, and statutes are all subject to the same rules of interpretation and application. AFP Specialties, Inc, 303 Mich App at 504. When interpreting them, a court's goal is to give effect to the intent of their drafters. Mayor of Cadillac, 306 Mich at 516. If the language is unambiguous, courts presume that the drafters intended the meaning clearly expressed therein. Id.
IV. ANALYSIS
Plaintiffs have made it clear that their goal in this lawsuit is to obtain an order compelling the Board of Pharmacy to "de-schedule" marijuana as a Schedule 1 (or any other schedule) controlled substance. Even if that effort has merit in a policy sense, we are nevertheless compelled to affirm the order granting defendants summary disposition. On appeal, plaintiffs fail to address the basis of the Court of Claims' decision. The Court of Claims' decision in this matter was based on two separate grounds. First, recognizing that "the crux of the allegations in plaintiffs' complaint involves plaintiffs' request for declaratory relief under MCR 2.605," the Court of Claims found that "plaintiffs failed to plead the existence of an actual controversy." In doing so, the Court of Claims determined that plaintiffs' allegations were limited to alleged harm based on since-repealed statutes, hypothetical or speculative harm, and a legal theory based on a nonbinding, separate Supreme Court opinion that had no application in this case. According to the Court of Claims, "[t]he pertinent laws authorizing medicinal and recreational marijuana use do not prevent any regulation of the drug," but they instead "expressly recognize that the use of the drug is to be regulated. . . ."
Second, "[e]ven overlooking the above," the Court of claims held that "plaintiffs' complaint fail[ed] to state a claim on which relief can be granted and it is subject to dismissal under MCR 2.116(C)(8)." Specifically, the Court of Claims found that plaintiffs' cruel and unusual punishment claim, and their claim alleging a violation of the prohibition against self-incrimination failed to allege any punishment inflicted by the Board's decision. Additionally, the Court of Claims found that plaintiffs' request for a declaratory judgment, injunctive relief, and relief under MCL 24.306 failed to allege valid causes of action. Moreover, plaintiffs' mandamus claim failed to "demonstrate the existence of a clear legal right to the removal of marijuana from any of this state's controlled substance schedules." Additionally, the Court of Claims went on to find that plaintiffs' equal protection claim "failed to identify any similarly situated groups subject to disparate treatment," and plaintiffs' due process claim failed because "the decriminalization of certain uses for certain purposes does not negate that the drug is still a controlled substance that can be regulated."
On appeal, plaintiffs do not challenge any of the very specific and detailed aforementioned findings. Thus, we conclude that plaintiffs' have abandoned any argument relating to the Court of Claim's findings or ultimate decision to grant summary disposition in favor of defendants by failing to address or brief these findings, or even identify any purported error made by the Court of Claims in their Statement of Questions Presented. See Seifeddine v Jaber, 327 Mich App 514, 522; 934 NW2d 64 (2019), where this Court reiterated that "[w]hen an appellant fails to address the basis of a trial court's decision, this Court need not even consider granting relief."
Indeed, the questions raised by plaintiffs on appeal, whether the MMFLA impliedly repealed marijuana's listing on the Michigan Board of Pharmacy's list of controlled substances, and whether there was a rational basis for marijuana's continued listing on the list of controlled substances, are copied from their complaint, and were not addressed on the merits by the Court of Claims when granting summary disposition in favor of defendants. Moreover, even now on appeal plaintiffs have failed to allege that any illegal arrests occurred, that any groups of people or businesses received disparate treatment, or that any individual has been denied any type of license as a result of the alleged legislative "errors." Accordingly, the issues identified by plaintiffs are not preserved for appellate review, Henderson v Dep't of Treasury, 307 Mich App 1, 7-8; 858 NW2d 733 (2014), and we decline to address them. See People v Frazier, 478 Mich 231, 241; 733 NW2d 713 (2007) (citation omitted), where our Supreme Court explained that "[t]his Court disfavors consideration of unpreserved claims of error."
Affirmed.
/s/ Karen M. Fort Hood
/s/ Kathleen Jansen
/s/ Jonathan Tukel