COALITION FOR RESPONSIBLE GUN OWNERS v. CITY OF FERNDALE

HOEKSTRA, J.

At issue in this case is whether local units of government are precluded from enacting and enforcing ordinances that make local public buildings gun-free zones. We hold that M.C.L. § 123.1102 preempts local regulation of this kind, and contrary to defendants city of Ferndale and city clerk Karen Pedro's argument, M.C.L. § 28.425c does not return to local units of government the authority to regulate in this area. Accordingly, we reverse the circuit court's order granting summary disposition in favor of defendants, and upholding the validity of defendants' ordinance prohibiting the possession or concealment of firearms in municipal buildings.

I. Facts and Procedural History

On November 12, 2001, pursuant to its general police power, the city of Ferndale enacted Ordinance No. 945 (the Ferndale ordinance), which prohibits the possession or concealment of weapons in all buildings located in Ferndale that are owned or controlled by the city.1 The Ferndale ordinance exempts from its prohibitions federal, state, and local law-enforcement officers, Ferndale auxiliary police officers, and retired police officers. The Ferndale ordinance also provides an exception concerning the participation in a city gun buy-back program or the turning in of a weapon to the city for disposal or destruction.

On February 4, 2002, plaintiffs, Michigan Coalition for Responsible Gun Owners (MCRGO), and Jean Bruce, Alexander Kasa, and Greg Neu, who are members of MCRGO and residents of Ferndale, filed a complaint against defendants regarding the Ferndale ordinance, seeking injunctive and declaratory relief. In their complaint, plaintiffs alleged that the Ferndale ordinance is unconstitutional under the Michigan Constitution, Const. 1963, art. 7, § 22, and is preempted by state statutory law, including M.C.L. § 28.421 et seq. and M.C.L. § 123.1101 et seq. More specifically, plaintiffs alleged that the Ferndale ordinance is unlawful because it is in conflict with the state's statutory scheme in that it expands the exclusive statutory list of public places where concealed firearms are prohibited,2 because "the Legislature clearly and unequivocally prohibited local units of government from regulating ownership, registration, purchase, sale, transfer, transportation or possession of pistols or other firearms," and because it is in direct conflict with M.C.L. § 123.1102.

In response to plaintiffs' complaint, defendants filed a motion to dismiss on the grounds that plaintiffs lacked standing to bring the lawsuit because they have not suffered an injury in fact, and that plaintiffs were not entitled to injunctive relief because their complaint asserts that an adequate remedy at law exists.3 Defendants maintained that the Ferndale ordinance was enacted as a valid exercise of the city's police power pursuant to Const. 1963, art. 7, § 22; the Home Rule City Act, M.C.L. § 117.1 et seq.; and Chapter II, § 2(4) of the Ferndale Charter, and they sought summary disposition pursuant to MCR 2.116(C)(4), (7), (8), and (10).

In their response to defendants' motion to dismiss, plaintiffs sought relief under MCR 2.116(1), arguing that summary disposition was proper pursuant to MCR 2.116(C)(9) and (10). Relying mainly on M.C.L. § 123.1101 et seq. and M.C.L. § 28.421 et seq., plaintiffs argued, in essence, that the Ferndale ordinance is in direct conflict with the state statutory scheme and that the ordinance is preempted by the state statutory scheme. Contrary to plaintiffs' assertions, defendants argued in a response brief that state law does not preempt the Ferndale ordinance; rather, the ordinance is merely an extension of the prohibition imposed by the state, and thus does not conflict with Michigan statutes.

During the June 12, 2002, hearing on the motions, the trial court found that the Ferndale ordinance was not preempted by state law and that the ordinance is merely an extension of the prohibition already imposed by state law on carriers of concealed weapons. Thus, the trial court denied plaintiffs' motion for summary disposition and granted summary disposition in favor of defendants pursuant to MCR 2.116(I)(2). Thereafter, the trial court entered an order dismissing plaintiffs' complaint with prejudice and without costs. This appeal ensued.

II. Standard of Review

We review de novo the trial court's decision to grant or deny summary disposition. Pohutski v. Allen Park, 465 Mich. 675, 681, 641 N.W.2d 219 (2002); Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). Likewise, we review de novo statutory interpretation, which involves a question of law. Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Prop. & Cas. Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998).

III. Analysis

Before analyzing the issue raised in this case, we briefly note what is not at issue here is whether governmental entities in Michigan generally have the power to create gun-free zones. This Court has held that the constitutionally guaranteed right to bear arms, Const. 1963, art. 1, § 6, is not absolute, but "may yield to a legislative enactment that represents a reasonable regulation by the state in the exercise of its police power to protect the health, safety, and welfare of Michigan citizens." Kampf v. Kampf 237 Mich.App. 377, 383, n. 3, 603 N.W.2d 295 (1999), citing People v. Smelter, 175 Mich.App. 153, 155-156, 437 N.W.2d 341 (1989). Plaintiffs do not argue here, nor did they argue before the trial court, that the Ferndale ordinance is an unreasonable infringement on their constitutional right to bear arms. As the Michigan Municipal League aptly stated in its amicus curiae brief, "[t]his is not a gun rights case." Further, this case is not about public-policy choices that our Legislature has made with respect to where guns should or should not be allowed. Where statutory language is clear, "it is not the role of the judiciary to second-guess a legislative policy choice; a court's constitutional obligation is to interpret, not rewrite, the law." Ambs v. Kalamazoo Co. Rd. Comm., 255 Mich.App. 637, 662 N.W.2d 424 (2003).

With these understandings in mind, we turn to the case at hand. The issue before us concerns the power of local units of government to enact and enforce ordinances or regulations and the limitations on that power. Accordingly, we begin our analysis by reviewing the legal context from which such powers are derived.

A. Legal Context

Under our state constitution and statutes, cities such as Ferndale have the authority to adopt resolutions and ordinances that have the force of law relating to their own concerns, property, and government. Const. 1963, art. 7, § 22 grants broad authority to cities, providing in pertinent part:

Further, "[t]he provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor." Const. 1963, art. 7, § 34. "[A]lthough art. 7, § 22 grants broad authority to municipalities, it clearly subjects their authority to constitutional and statutory limitations." Mack v. Detroit, 467 Mich. 186, 194, 649 N.W.2d 47 (2002). Specifically, that provision grants power that is "subject to the constitution and law." Const. 1963, art. 7, § 22.

The Home Rule City Act, M.C.L. § 117.1 et seq., states that each city may provide in its charter

In other words, home rule cities, including Ferndale, have specific authority to enact ordinances in order to advance the interests of the city. The Home Rules City Act repeats the constitutional limitation on a municipality's authority, expressly stating that "[n]o provisions of any city charter shall conflict with or contravene the provisions of any general law of the state," M.C.L. § 117.36, and that a city charter may provide "through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns subject to the constitution and general laws of this state," M.C.L. § 117.4j(3). See Mack, supra at 194, n. 7, 649 N.W.2d 47.

Although cities have the power to adopt resolutions and ordinances relating to municipal concerns, that power is "`subject to the constitution and law.'" Rental Prop. owners Ass'n of Kent Co. v. Grand Rapids, 455 Mich. 246, 256-257, 566 N.W.2d 514 (1997), quoting Const. 1963, art. 7, § 22. "[A] municipal ordinance is preempted by state law if 1) the statute completely occupies the field that ordinance attempts to regulate, or 2) the ordinance directly conflicts with a state statute." Rental Prop. owners Ass'n, supra at 257, 566 N.W.2d 514; accord People v. Llewellyn, 401 Mich. 314, 322, 257 N.W.2d 902 (1977); Frens Orchards, Inc. v. Dayton Twp. Bd., 253 Mich.App. 129, 132, 654 N.W.2d 346 (2002). With respect to whether the state statutory scheme preempts a municipal ordinance by completely occupying the field of regulation that the municipality seeks to enter,4 in Llewellyn, supra at 323-325, 257 N.W.2d 902, our Supreme Court set forth four guidelines:

With this legal context in mind, we undertake to determine whether the trial court erred in upholding the Ferndale ordinance in light of certain Michigan firearms statutes.

B. Relevant State Firearms Statutes

In 1990, the Michigan Legislature enacted M.C.L. § 123.1101 et seq.,5 "to prohibit local units of government from imposing certain restrictions on the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols or other firearms, ammunition for pistols or other firearms, or components of pistols or other firearms." Preamble, 1990 PA 319.6 A provision of that act, M.C.L. § 123.1102 (§ 1102),7 provides:

A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols or other firearms, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state. [Emphasis supplied.]

The act further provides three narrow areas concerning pistols or other firearms that a city is not precluded from prohibiting or regulating, M.C.L. § 123.1103 and M.C.L. § 123.1104, but those areas are not germane to this appeal.

In 2000, the Michigan Legislature enacted amendments to M.C.L. § 28.421 et seq.,8 in part to regulate the selling, purchasing, possessing, and carrying of certain firearms. The preamble to that legislation provides:

The intent of the Legislature is expressly stated in § 1a of this act, which was added by 2000 PA 381, and provides:

Among the legislative amendments enacted in 2000 was § 5c, which contains provisions concerning the rights of a licensee. In relevant part, § 5c provides:

(a) Carry a pistol concealed on or about his or her person anywhere in this state.

Significantly, § 5o provides a list of premises on which carrying a concealed weapon is prohibited. Some examples of these premises include schools, public or private day-care centers, sports arenas or stadiums, bars, certain entertainment facilities, hospitals, college dormitories and classrooms, and, in certain circumstances, places of worship. MCL 28.425o(1). The list does not include municipal buildings.

C. Preemption

In the present case, the Ferndale ordinance prohibits the possession or concealment of a weapon9 in city buildings, providing in pertinent part:

Indisputably, if not preempted by state law, this ordinance would be a lawful exercise of the city of Ferndale's power to enact an ordinance that regulates the use of property it owns or controls. Const. 1963, art. 7, §§ 22, 34; MCL 117.1 et seq.

We turn now to the question whether Michigan statutory law concerning firearms preempts the Ferndale ordinance. We begin this inquiry by examining the firearm statute found at M.C.L. § 123.1101 et seq.

In no uncertain terms, § 1102 of the act mandates that "[a] local unit of government shall not... enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols or other firearms, ... except as otherwise provided by federal law or a law of this state." (Emphasis supplied.) With the pronouncement in § 1102, the Legislature stripped local units of government of all authority to regulate firearms by ordinance or otherwise with respect to the areas enumerated in the statute,10 except as particularly provided in other provisions of the act and unless federal or state law provided otherwise. Unlike some other statutes, § 1102 does not use language to the effect that the act "occupies the whole field of regulation," 11 but rather expressly removes the power of local units of government to regulate in the field. The effect is to occupy the field to the exclusion of local units of government. In other words, although stated in the negative, rather than the affirmative, the statutory language of § 1102 demonstrates that, in effect, state law completely occupies the field of regulation that the Ferndale ordinance seeks to enter, to the exclusion of the ordinance, although subject to limited exceptions. See Llewellyn, supra at 322, 257 N.W.2d 902.12 With the enactment of § 1102, the Legislature made a clear policy choice to remove from local units of government the authority to dictate where firearms may be taken.

In the present case, it is readily apparent that the Ferndale ordinance regulates areas that § 1102 expressly prohibits. Section 1102 provides that a local unit of government shall not enact an ordinance pertaining to the transportation or possession of firearms, but the city of Ferndale does just that. Despite the clear language of the Legislature, amicus curiae contends in a conclusory fashion that § 1102 should not preempt ordinances like the Ferndale ordinance because the statute "is not clearly aimed at municipal control of activities within the confines of its own public buildings." However, the language of § 1102 is broad and all-encompassing. A state statute that prohibits a local unit of government from enacting "any ordinance or regulation" or regulating "in any other manner" the transportation or possession of firearms cannot reasonably be interpreted to exclude local ordinances that address the carrying of firearms in municipal buildings. Indeed, in their brief defendants concede that under § 1102 local units of government are prohibited "from enacting laws that concern ownership or possession of firearms, `except as otherwise provided by federal law or a law of this state.'" In sum, the Ferndale ordinance is preempted by § 1102 unless it can be shown that such regulation is permitted under the language "except as otherwise provided by federal law or a law of this state" in § 1102.13

Thus, our analysis turns to whether a law of this state otherwise permits a local unit of government to regulate an area encompassed by § 1102.14 Defendants contend that § 5c of M.C.L. § 28.421 et seq. is "a law of this state" that does just that. Defendants argue, in essence, that § 5c, which is part of the amendments of M.C.L. § 28.421 et seq. enacted in 2000, returns to local units of government the power to enact and enforce an ordinance or regulation concerning the possession and transportation of pistols or other firearms. In other words, defendants argue that what § 1102 prohibited, § 5c now permits by virtue of the language "except as otherwise provided by law." We disagree.

In relevant part, § 5c provides that, "[s]ubject to section 5o and except as otherwise provided by law," a person licensed to carry a concealed pistol may do so "on or about his or her person anywhere in this state." MCL 28.425c(2)(a). Defendants maintain that although § 5o provides a list of premises on which the carrying of a concealed pistol is prohibited, M.C.L. § 28.425o(1), that list is not all-inclusive; rather "the inclusion of the language `and except as otherwise provided by law' is indicative of the [legislative] intent to allow other exceptions to be established." However, defendants' analysis fails to consider the language of § 5c in light of § 1102.15

When two statutes relate to the same subject or share a common purpose, they are in pari materia and must be read together as one law, even if they make no reference to one another and were enacted on different dates. Jackson Community College v. Dep't of Treasury, 241 Mich.App. 673, 681, 621 N.W.2d 707 (2000). Our Supreme Court has explained:

Because M.C.L. § 123.1101 et seq. and M.C.L. § 28. 421 et seq. both address the possession and transportation of firearms in Michigan, they are in pari materia and must be read together as one law. Further, "it is a well-known principle that the Legislature is presumed to be aware of all existing statutes when enacting a new statute." Jenkins v. Patel, 256 Mich.App. 112, 126, 662 N.W.2d 453 (2003).

We disagree with defendants' interpretation of the "except as otherwise provided by law" language of § 5c(2) for multiple reasons. First, considering the acts at issue in pari materia, we conclude that § 5c does not manifest an intent to repeal § 1102 or to expand the role of local units of government with respect to firearm regulation. Simply stated, a review of the statutory language reveals a clear intent more than a decade ago to prohibit local units of government from enacting an ordinance such as the Ferndale ordinance, but no clear intent a decade later to limit or remove that prohibition. Also, we believe that given the presumption of the Legislature's awareness of § 1102 at the time §§ 5c and 5o were enacted, it is reasonable to assume that if the Legislature intended to reopen this area of regulation to local units of government, it would have addressed the issue specifically in the newer legislation. Because no specific language addresses the role of local units of government with regard to regulating where persons licensed to carry concealed weapons may carry them, we conclude that the Legislature intended to maintain the prohibitions placed on local units of government that are contained in § 1102.16 Therefore, we hold that the " except as otherwise provided by law" language of § 5c does not revoke or modify the prohibition on firearm regulation contained in § 1102 and, consequently, provides no basis on which to hold that the Ferndale ordinance is not preempted.

IV. Conclusion

In sum, we conclude that § 1102 is a statute that specifically prohibits local units of government from enacting and enforcing any ordinances or regulations pertaining to the transportation and possession of firearms, and thus preempts any ordinance or regulation of a local unit of government concerning these areas. Further, we conclude that the specific language of the 2000 amendments of M.C.L. § 28.421 et seq., particularly §§ 5c and 5o, which were adopted more than a decade after the enactment of § 1102, do not repeal § 1102 or otherwise reopen this area to local regulation of the carrying of firearms.17 Accordingly, we hold that the Ferndale ordinance is preempted by state law and, consequently, we reverse.

Reversed. No costs are to be awarded because an issue of public significance is involved.