MEMO

To: Jim Smiertka

From:

Re: Does repeal of current Chapter 1300 revive former version of Chapter 1300

Date: February 15, 2018

Question Presented

1) If the Court repeals Ordinance 1217, which replaced Chapter 1300, would this
revive the prior medical marijuana ordinance?

Short Answer
No. The repeal of a law that repealed a prior law does not automatically revive the prior
law unless expressly contemplated. First, the 2011 medical marijuana ordinance (1168) was
repealed by implication by the Michigan Supreme Court decision of Michigan v. McQueen.
Second, Ordinance 1168 was expressly repealed by Ordinance 1217, which replaced Chapter
1300 in full.

Legal Analysis
The City of Lansing adopted Ordinance 1168 on June 27, 2011. This ordinance provided
for licensure of medical marijuana establishments under the MMMA. Applications were
accepted under this ordinance but no licenses were ever issued due to the Michigan Supreme
Court decision of Michigan v. McQueen. The Court opined that medical marijuana dispensaries
were not contemplated under the MMMA, only a patient-caregiver model. 493 Mich. 135, 155
(2013). The effect of this decision was the repeal by implication of Ordinance 1168 because the
ordinance was adopted under the framework set forth in the MMMA. The Court’s determination
that dispensaries were not authorized under the MMMA meant that the City could not adopt a
licensing scheme for such dispensaries.

MCL 8.4 states “Whenever a statute, or any part thereof shall be repealed by a
subsequent statute, such statute, or any part thereof, so repealed, shall not be revived by the
repeal of such subsequent repealing statute.” Interpretation of local ordinances is treated in the
same manner as statutory interpretation. Brandon Charter Twp. v. Tippett, 241 Mich.App. 417,
422 (2000). Therefore, the repeal of a local ordinance that repealed a prior local ordinance would
not revive the earlier local ordinance.

The case of Jackson v. Michigan Corrections Commission specifically addressed this

issue under a mandamus action. 313 Mich. 352 (1946). In this case, a Warden was fired without
a hearing. Under an 1893 Act a warden could not be fired without cause and after an opportunity
to be heard. A 1921 Act effectively repealed the 1893 Act and made the position of warden at
will (at the pleasure of the governor). Plaintiff argued that subsequent 1937 and 1939 Acts
effectively repealed the 1921 Act, which then revived the 1893 Act. The Court unequivocally
rejected this argument. The Court relied upon the language in MCL 8.4, stating that repeal of a

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law that repealed a prior law does not revive the earlier law. This was found to be consistent with
federal law as well (“Whenever an Act is repealed, which repealed a former Act, such former
Act shall not thereby be revived, unless it shall be expressly so provided.” 1 USC § 28).

Therefore, the repeal of Ordinance 1217 would not revive Ordinance 1168 unless
expressly acted upon by the City to do so.

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