RECEIVED by MSC 2/20/2018 1:30:54 PM...Capital Area District Library v Michigan Open Carry, Inc, 298...

STATE OF MICHIGAN

IN THE SUPREME COURT

MICHIGAN GUN OWNERS, INC.

and ULYSSES WONG, an individual, Supreme Court Docket No.: 155196

Plaintiffs-Appellants, Court of Appeals Docket No.: 329632

v WCCC Case No.: 15-427-CZ

ANN ARBOR PUBLIC SCHOOLS, and

JEANICE K. SWIFT, an individual,

Defendants-Appellees.

_____________________________________________________________________________/

James J. Makowski (P62115) William J. Blaha (P38089)

Makowski Legal Group, PLC Julia M. Melkić (P77714)

Attorneys for Plaintiffs-Appellants Collins & Blaha, P.C.

6528 Schaefer Attorneys for Defendants-Appellees

Dearborn, Michigan 48126 31440 Northwestern Highway, Suite 170

(313) 434-3900 Farmington Hills, Michigan 48334

(248) 406-1140

David A. Comsa (P32542)

Deputy Superintendent

HR & Legal Services/General Counsel

Ann Arbor Public Schools

Co-Counsel for Defendants-Appellees

2555 South State Street

Ann Arbor, Michigan 48104

(734) 994-2240

DEFENDANTS-APPELLEES’ ANSWER TO PLAINTIFFS-APPELLANTS’

SUPPLEMENTAL BRIEF

Oral Argument Requested

Proof of Service

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................................................................... ii

JURISDICTIONAL STATEMENT AND STATEMENT IDENTIFYING JUDGMENT

APPEALED ................................................................................................................................................. 1

SUPPLEMENTAL STATEMENT OF QUESTIONS PRESENTED .................................................... 2

INTRODUCTION ....................................................................................................................................... 3

COUNTER STATEMENT OF FACTS .................................................................................................... 5

ARGUMENT ............................................................................................................................................... 7

I. In light of MCL 123.1102, it is not necessary to consider the factors set forth in People v

Llewellyn, 401 Mich 314, in order to determine whether the school district’s policies are

preempted.............................................................................................................................................. 7

A. The Plain Language of MCL 123.1102 Clearly and Unambiguously Defines Local Unit of

Government ..................................................................................................................................... 7

B. People v Llewellyn did Not Involve a Similar Express Preemption Statute ................................... 15

II. If it is necessary to consider the factors set forth in People v Llewellyn, the Court of Appeals

properly analyzed the Llewellyn factors .......................................................................................... 16

A. Ann Arbor Public Schools’ Board Policies Do Not Directly Conflict with the State Statutory

Scheme ........................................................................................................................................... 17

B. State Law Does Not Expressly Provide that the State’s Authority to Regulate Firearms is to be

Exclusive ........................................................................................................................................ 19

C. Preemption of the Field of Regulation Should Not Be Implied by Examination of Legislative

History ........................................................................................................................................... 21

D. The Pervasiveness of the State Regulatory Scheme Does Not Support a Finding of Preemption .. 23

E. The Nature of the Regulated Subject Matter Does Not Demand Exclusive State Regulation ........ 24

III. The Court of Appeals Correctly Held that Ann Arbor Public Schools’ Policies are Not

Preempted ........................................................................................................................................... 32

CONCLUSION ......................................................................................................................................... 35

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INDEX OF AUTHORITIES

Michigan Cases

Aroma Wines & Equip v Columbian Distribution Services, Inc., 495 Mich 337; 871 NW2d 136

(2015) .......................................................................................................................................... 8

Bradley v Saranac Bd of Educ, 455 Mich 285; 565 NW2d 650 (1997) ....................................... 19

Capital Area District Library v Michigan Open Carry, Inc, 298 Mich App 220; 826 NW2d 736

(2012) .................................................................................................................. 7, 11, 12, 14, 22

City of Brighton v Township of Hamburg, 260 Mich App 345; 677 NW2d 249 (2004) .............. 26

Durant v Bd of Ed, 424 Mich 364; 381 NW2d 662 (1985) .......................................................... 31

Gladych v New Family Homes, Inc, 468 Mich 594; 664 NW2d 705 (2003) .................................. 7

Haynes v Neshewat, 477 Mich 29; 729 NW2d 488 (2007) ............................................................ 8

Hoste v Shanty Creek Management, Inc, 459 Mich 561; 592 NW2d 360 (1999 ......................... 10

In re Certified Question from the United States Court of Appeals for the Sixth Circuit, 468 Mich

109; 659 NW2d 597 (2003) .................................................................................................. 8, 22

Lansing Schs Educ Assn v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010) ................. 31

Liebau v Romeo Community Schools, unpublished opinion per curiam of the Court of Appeals,

issued July 30, 2013 (Docket No. 306979) ......................................................................... 21, 33

Michigan Gun Owners v Ann Arbor Public Schs, 318 Mich App 338; 897 NW2d 768 (2016) . 3,4,

6, 9, 12, 17, 18, 20, 22, 23, 24, 25, 26, 30, 33

Pace v Edel–Harrelson, 499 Mich. 1; 878 NW2d 784 (2016) ....................................................... 8

People ex rel Wexford Co Prosecuting Attorney v Kearney, 345 Mich. 680 (1956) .................... 13

People v Gardner, 482 Mich 41; 753 NW2d 78 (2008) ............................................................... 22

People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977) .1, 2, 3, 4, 6, 7, 9, 11, 15, 16, 17, 18,

19, 20, 21, 22, 23, 24, 26, 27, 31, 35

Perkovic v Zurich American Ins Co, 500 Mich 44; 893 NW2d 322 (2017) ................................... 8

Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118; 596 NW2d 208 (1999) ......... 19

State Bd of Ed v Houghton Lake Community Schs, 430 Mich 658; 425 NW2d 80 (1988) .......... 10

Walsh v City of River Rouge, 385 Mich 623; 189 NW2d 318 (1971) ...................................... 7, 31

Widdoes v Detroit Public Schools, 218 Mich App 282; 553 NW2d 688 (1996) .......................... 31

Michigan Statutes

MCL 123.1101 ...................................................................................... 3, 7, 8, 9, 11, 15, 20, 21, 26

MCL 123.1101(a) ...................................................................................................................11, 12

MCL 123.1101(b) ............................................................................................................. 12, 19, 20

MCL 123.1102 ................................................. 1, 2, 3, 6, 7, 8, 9, 12, 15, 16, 19, 20, 21, 22, 32, 35

MCL 123.381 ............................................................................................................................ 9, 20

MCL 123.381(a) ....................................................................................................................... 9, 20

MCL 141.411 .................................................................................................................................. 9

MCL 141.422 .................................................................................................................................. 9

MCL 141.422d(4) ................................................................................................................... 10, 21

MCL 15.501 .............................................................................................................................. 9, 20

MCL 15.501(d) ............................................................................................................................... 9

MCL 211.202 ................................................................................................................................ 10

MCL 211.202(a) ........................................................................................................................... 10

MCL 28.425n(b) ........................................................................................................................... 25

MCL 28.425o .......................................................................................................................... 18, 28

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MCL 28.425o(1) ........................................................................................................................... 18

MCL 286.942(g) ..................................................................................................................... 20, 21

MCL 380.11a(3) ........................................................................................................................... 33

MCL 380.11a(3)(b) ....................................................................................................................... 26

MCL 380.1311 .............................................................................................................................. 25

MCL 380.501 to 380.507 .............................................................................................................. 10

MCL 397.182(1)(f) ....................................................................................................................... 12

MCL 436.1 to MCL 436.58 .......................................................................................................... 29

MCL 550.1901 .............................................................................................................................. 20

MCL 550.1951 .................................................................................................................. 10, 20, 21

MCL 750.234d ........................................................................................................................ 29, 30

MCL 750.237a(4) ......................................................................................................................... 28

MCL 750.237a(6)(c) ..................................................................................................................... 28

MCL 750.237a(6)(e) ..................................................................................................................... 28

MCL 750.552 ................................................................................................................................ 30

Michigan Court Rules

MCR 2.116(C)(10) .......................................................................................................................... 5

MCR 2.116(C)(8) ............................................................................................................................ 5

MCR 7.303(B)(1) ............................................................................................................................ 1

Michigan Constitution

Const 1963, art 4, § 1 .................................................................................................................... 13

Const 1963, art 7, § 2 .................................................................................................................... 12

Const 1963, art 8, § 3 .................................................................................................................... 12

Federal Cases

District of Columbia v Heller, 554 US 570; 128 S Ct 2783, 171 L Ed 2d 637 (2008) ................. 13

DJY v Ypsilanti Cmty Schs, unpublished opinion of the United States District Court for the

Eastern District of Michigan, issued February 12, 2015 (Case No. 14-cv-11467) ................... 22

Hoven v Walgreen Co, unpublished opinion of the United States District Court for the Western

District of Michigan, issued December 4, 2012 (Case No. 1:11-cv-881) ................................. 25

Mejia v Holt Pub Sch, unpublished opinion of the United States District Court for the Western

District of Michigan, issued March 12, 2002, (Case No. 5:01-CV-116) .................................. 14

Milliken v Bradley, 418 US 717; 94 S Ct 3112; 41 L Ed 2d 1069 (1985) .................................... 31

New Jersey v TLO, 469 US 325; 105 S Ct 733; 83 L Ed 2d 720 (1985) ...................................... 22

Ritchie v Coldwater Comm Schs, 947 F Supp 2d 791 (WD Mich, 2013)............................... 21, 33

Tinker v Des Moines Independent Comm Sch Dist, 393 US 503 (1969) ...................................... 33

Federal Statutes

18 USC 922(q)(2)(A) .............................................................................................................. 24, 27

5 USC § 8331 ................................................................................................................................ 28

Other Authorities

Administrative Order No 2001-4 ............................................................................................ 13, 30

Conflict Between State and Local Enactments-The Doctrine of Implied Preemption, appearing

in 2 Urban Lawyer 398 (1970) .................................................................................................. 31

Macomb County Circuit and Probate Courts, Joint Administrative Order 2014-17J ................... 14

MI Ready Schools: Emergency Planning Toolkit, Michigan Dept of Educ (2011) ...................... 34

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Michigan Dept of Treasury, Rule 432.1212 (1998-2000) ...................................................... 28, 29

Michigan State Police Legal Update, No 86 (Oct 26, 2010) ........................................................ 30

Oakland County Circuit and Probate Courts, Joint Administrative Order No 2014-07J .............. 14

Peyton Packing Co, 49 NLRB 828 (1943) ................................................................................... 25

Streeter v River Rouge, STC 78-34 (1979) ................................................................................... 25

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JURISDICTIONAL STATEMENT AND STATEMENT IDENTIFYING JUDGMENT

APPEALED

Appellees Ann Arbor Public Schools and Superintendent Jeanice Swift (collectively, Ann

Arbor Public Schools) agree that this Court has jurisdiction pursuant to MCR 7.303(B)(1).

However, the Ann Arbor Public Schools respectfully requests that this Court deny Appellants’

application for leave to appeal for the reasons set forth below.

On September 24, 2015, Washtenaw County Circuit Court Judge Carol Kuhnke entered

an order granting the Ann Arbor Public Schools’ motion for summary disposition and dismissed

the Appellants’ complaint with prejudice. (Appendix 98a.) On December 15, 2016, the Court of

Appeals issued an opinion upholding Judge Kuhnke’s decision. (Appendix 303a.) Appellants

filed their application for leave to appeal to the Michigan Supreme Court on January 25, 2017.

(Appendix 100a.) Appellees filed an answer to Appellants’ application for leave to appeal on

February 22, 2017. (Appendix 266a.) On December 20, 2017, the Michigan Supreme Court

ordered Appellants to submit a supplemental brief within 42 days of the date of the order

addressing the following: “(1) whether, in light of MCL 123.1102, it is necessary to consider the

factors set forth in People v Llewellyn, 401 Mich 314 (1977), in order to determine whether the

school district’s policies are preempted; (2) if so, whether the Court of Appeals properly

analyzed the Llewellyn factors; and (3) whether the Court of Appeals correctly held that the

school district’s policies are not preempted.” Appellees were ordered to submit a supplemental

brief within 21 days of being served with Appellants’ brief. Appellants filed a supplemental brief

on January 30, 2018. Ann Arbor Public Schools respectfully requests that this Court deny

Appellants’ application for leave to appeal for the reasons set forth below.

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SUPPLEMENTAL STATEMENT OF QUESTIONS PRESENTED

I. In light of MCL 123.1102 is it necessary to consider the factors set forth in People v

Llewellyn, 401 Mich 314 (1977) in order to determine whether the Ann Arbor Public

Schools’ policies are preempted?

Appellants answer “YES”

Appellees answer “NO”

II. Did the Court of Appeals properly analyze the Llewellyn factors?

Appellants answer “NO”

Appellees answer “YES”

III. Did the Court of Appeals correctly hold that the school district’s policies are not

preempted?

Appellants answer “NO”

Appellees answer “YES”

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INTRODUCTION

Ann Arbor Public Schools respectfully requests that this Honorable Court deny

Appellants’ application for leave to appeal. The Circuit Court and the Court of Appeals properly

denied Appellants’ request for declaratory relief, which would have allowed individuals to

openly carry firearms in Ann Arbor Public Schools’ elementary schools, middle schools, high

schools, and other Ann Arbor Public School property when children are present.

In light of the Legislature’s clear language in MCL 123.1102, it is not necessary to

consider the factors set forth in People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977), in

order to determine whether Ann Arbor Public Schools’ policies are preempted. The Legislature

unambiguously stated its intent to prohibit certain defined local units of government – “cities,

villages, townships, and counties” – from regulating firearms by enacting MCL 123.1101 and

MCL 123.1102 of the Firearms and Ammunitions Act. This is unlike the statutory scheme

involved in Llewellyn, where the Legislature did not expressly prohibit cities (or any other local

government) from regulating obscenity. In order to give effect to the Legislature’s intent,

consideration of the Llewellyn factors is unnecessary in this case.

If, even in light of MCL 123.1102, it is determined that it is necessary to consider the

factors set forth in Llewellyn, the Court of Appeals properly analyzed the Llewellyn factors. Mich

Gun Owners v Ann Arbor Pub Schs, 318 Mich App 338, 353-354; 897 NW2d 768 (2016).

(Appendix 303a.) Llewellyn states that “a municipality is precluded from enacting an ordinance

if 1) the ordinance is in direct conflict with the state statutory scheme, or 2) if the state statutory

scheme preempts the ordinance by occupying the field of regulation which the municipality

seeks to enter.” Llewellyn, 401 Mich at 332 (emphasis added). In the instant matter, there is no

state law which directly conflicts with Ann Arbor Public Schools’ policies. There is no state law

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which expressly authorizes visitors to openly carry firearms onto school grounds when students

are present.

Further, the Court of Appeals properly analyzed the four Llewellyn factors and concluded

that the Legislature did not occupy the field of regulation such that school districts may not

regulate. First, state law does not expressly provide that the state’s authority to regulate firearms

is to be exclusive to the exclusion of all other regulation. Rather, the statute provides that the

state’s authority to regulate firearms is to be exclusive with respect to cities, villages, townships,

and counties. Second, the legislative history cited by Appellants refers specifically to ordinances

and does not support precluding school districts from enacting policies prohibiting firearms on

school grounds when students are present. (Appendix 575a.) Third, the pervasiveness of the state

regulatory scheme does not support a finding of preemption. Although firearms are pervasively

regulated in Michigan, the “use of the phrase ‘weapon free school zones’ presses against the

preemption of a district policy affirming that its school will remain ‘weapon-free.’” Mich Gun

Owners v Ann Arbor Pub Schs, 318 Mich App at 353-354 (2016). Fourth, the nature of the

subject matter does not demand exclusive state regulation. School district policies regulating

visitor access to school property will not create confusion, there already exists a confusing array

of regulation regarding firearm possession and where they cannot be carried, open or concealed,

and there are particular local concerns that school districts must take into consideration when

enacting policies.

The Court of Appeals correctly held that Ann Arbor Public Schools’ board policies are

not preempted. School districts have the power and authority to prohibit firearms on school

property pursuant to their power and duty under the Revised School Code to provide for the

safety and welfare of students and to educate students.

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Accordingly, Ann Arbor Public Schools respectfully requests that this Honorable Court

deny Appellants’ application for leave to appeal and let the Court of Appeals decision stand.

COUNTER STATEMENT OF FACTS

On April 15, 2015, the Ann Arbor Public Schools’ Board of Education (the “Board”)

enacted three policies to make School District property “Dangerous Weapon & Disruption-Free

Zones” in order to provide for the safety and welfare of students and to minimize material

disruptions of the educational environment. (Appendix 579a-581a.) The policies were enacted

following a material disruption when an individual openly carried a firearm to a choir concert at

Pioneer High School. Appellants argue that Ann Arbor Public Schools cannot limit their ability

to open carry pistols on school property and challenged the three board policies. (Appellees’

Counter Statement of Facts is fully set forth in Appellees’ Answer to Appellants’ Application for

Leave to Appeal, pp 5-10.)

On April 27, 2015, Appellants filed a complaint in Washtenaw Circuit Court seeking a

declaratory order that Ann Arbor Public Schools did not have the authority to enact the three

board policies that provided that District property is “Dangerous Weapon & Disruption-Free

Zone.” (Appendix 11a.) On August 31, 2015, Ann Arbor Public Schools moved for summary

disposition pursuant to MCR 2.116(C)(8) and/or MCR 2.116(C)(10) and asked the trial court to

dismiss Appellants’ complaint with prejudice. (Appendix 21a.) On September 23, 2015, the trial

court heard arguments on Ann Arbor Public Schools’ motion for summary disposition.

(Appendix 1b.) On September 24, 2015, the court signed an order granting Ann Arbor Public

Schools’ motion for summary disposition and dismissing Appellants’ complaint with prejudice.

(Appendix 98a.)

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Appellants filed a claim of appeal with the Court of Appeals on October 12, 2015.

(Appendix 6a.) On December 13, 2016, the parties argued this case before a panel of the

Michigan Court of Appeals. (Appendix 8a.) On December 15, 2016, the Court of Appeals issued

a published opinion, ruling that state law does not preempt Ann Arbor Public School policies

banning the possession of firearms on property leased or owned by Ann Arbor Public Schools at

any time when students are at school, en route to or from school or at a school sponsored

activity, and affirmed the judgment of the circuit court. Ann Arbor, 318 Mich App at 341.

(Appendix 303a.)

On January 25, 2017, Appellants filed an application for leave to appeal to the Supreme

Court. (Appendix 100a.) Appellees filed an answer to Appellants’ application for leave to appeal

on February 22, 2017. (Appendix 266a.)

On December 20, 2017, the Michigan Supreme Court issued an order directing the Clerk

to schedule oral argument on whether to grant the application or to take other action. The Order

also directed Appellants to file a supplemental brief within 42 days addressing: “(1) whether, in

light of MCL 123.1102, it is necessary to consider the factors set forth in People v Llewellyn, 401

Mich 314, in order to determine whether the school district’s policies are preempted; (2) if so,

whether the Court of Appeals properly analyzed the Llewellyn factors; and (3) whether the Court

of Appeals correctly held that the school district’s policies are not preempted.” Appellees were

directed to file a supplemental brief within 21 days of being served with the Appellants’ brief.

Appellants filed a supplemental brief on January 30, 2018.

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ARGUMENT

I. In light of MCL 123.1102, it is not necessary to consider the factors set forth

in People v Llewellyn, 401 Mich 314, in order to determine whether the school

district’s policies are preempted.

The Michigan Legislature clearly and unambiguously expressed its intent to prohibit

certain defined local units of government – “cities, villages, townships, and counties” – from

regulating firearms by enacting MCL 123.1101 and MCL 123.1102 of the Firearms and

Ammunitions Act. We agree with Appellants’ “inescapable conclusion that a school district is

not a local unit of government as defined under state law within the meaning of MCL 123.1101

et seq.” Application of implied preemption and an analysis of the Llewellyn factors is

unnecessary because the Legislature’s intent is evident by the unambiguous language of the

statute.

A. The Plain Language of MCL 123.1102 Clearly and Unambiguously Defines

Local Unit of Government

The Legislature’s intent to prohibit “cities, villages, townships, and counties” from

regulating firearms is clearly expressed in MCL 123.1101 and MCL 123.1102 of the Firearms

and Ammunitions Act. In order to give effect to the Legislature’s intent, consideration of the

Llewellyn factors is unnecessary.

“Fundamentally, field preemption is a question of legislative intent.” Capital Area

District Library v Michigan Open Carry, Inc, 298 Mich App 220; 826 NW2d 736 (2012)

(hereinafter CADL) (Gleicher, J., Dissenting) citing Walsh v City of River Rouge, 385 Mich 623,

639; 189 NW2d 318 (1971). The primary goal of judicial interpretation of statutes is “to discern

and give effect to the Legislature’s intent as expressed in the statutory language.” Gladych v New

Family Homes, Inc, 468 Mich 594, 597; 664 NW2d 705 (2003). It is axiomatic that “[w]hen the

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plain and ordinary meaning of statutory language is clear, judicial construction is neither

necessary nor permitted.’ Pace v Edel–Harrelson, 499 Mich 1, 6; 878 NW2d 784 (2016).”

Perkovic v Zurich American Ins Co, 500 Mich 44, 53; 893 NW2d 322 (2017). This Court has

also acknowledged that when the text of a statute is unambiguous, “the examination of

legislative history ‘of any form’ is not proper.” Aroma Wines & Equip v Columbian Distribution

Services, Inc., 495 Mich 337, 356 n 49; 871 NW2d 136 (2015); citing In re Certified Question

from the United States Court of Appeals for the Sixth Circuit, 468 Mich 109, 115 n 5; 659 NW2d

597 (2003).

In the instant matter, the plain and ordinary meaning of MCL 123.1102 is clear and

unambiguous. The Legislature prohibited regulation of firearms by local units of government,

defined as a city, village, township, or county. “When a statute specifically defines a term, that

definition alone controls.” Haynes v Neshewat, 477 Mich 29, 35; 729 NW2d 488 (2007).

The Legislature clearly expressed its intent to prohibit certain defined local units of

government from regulating firearms by enacting MCL 123.1101 and MCL 123.1102. The plain

language of MCL 123.1102 prohibits local units of government from regulating firearms:

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, other firearms, or pneumatic guns, 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. MCL 123.1102.

In Section 1 of the Firearms and Ammunition Act, the Legislature provides an unambiguous

definition of the term “local unit of government:”

(b) “Local unit of government” means a city, village, township, or county. MCL

123.1101 (emphasis added).

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The Legislature prohibited regulation of firearms by local units of government as defined by the

statute. The statute does not contemplate prohibiting “state actors” or “quasi municipal

corporations” or “any political subdivision of this state.” The definition is unambiguous and

applies to cities, villages, townships, and counties.1

To apply the doctrine of implied preemption and consider the factors set forth in People v

Llewellyn, 401 Mich 314, would render MCL 123.1102 and MCL 123.1101 nugatory and

meaningless. The Legislature knows how to include schools in the definition of local unit of

government when it intends to do so. For example, the Legislature included “school district” in

the definition of “local unit of government” in the following statutes:

MCL 15.501: “Local unit of government” means a city, county, township,

village, school district, intermediate school district, or subdivision thereof of this

state or any other state. A governmental subdivision of another state which is not

the same as a local unit of government of this state is included if it is similar in

organization or has similar powers and duties as a local unit of government of this

state. MCL 15.501(d) (emphasis added).

MCL 123.381: “Local unit of government” means any county, city, village,

township, school district, port district, metropolitan district or other

governmental unit or entity in or of this state; and in or of another state. MCL

123.381(a) (emphasis added).

MCL 141.411: As used in this act “local unit” means a county, township, city,

village, authority or school district empowered by the constitution or by law to

prepare budgets of estimated expenditures and revenues. MCL 141.411 (emphasis

added).

MCL 141.422: “Local unit” does not include an intermunicipality committee

established under 1957 PA 200, MCL 123.631 to 123.637. Except as used in

sections 14 to 20a, local unit means a village, city, or township or an authority or

commission established by a county, village, city, or township resolution, motion,

ordinance, or charter. As used in sections 14 to 20a, local unit means any of the

following:

1 Further evidence of the Legislature’s intent to preempt cities, the Legislature enacted MCL 123.1102 in 1990 as a

response to the city of Ann Arbor considering enacting a gun ordinance. (Appendix 575a.) Notably absent from the

legislative history is mention of school districts. (Appendix 575a-578a.) As the Court of Appeals noted in Ann

Arbor, the legislative will is evident regarding schools, by repeated reference in state laws to “weapon free school

zones.”

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(a) A village.

(b) A city.

(c) A school district.

(d) An intermediate school district.

(e) A public school academy established under part 6a of the revised school

code, 1976 PA 451, MCL 380.501 to 380.507.

(f) A township.

(g) A county.

(h) A county road commission.

(i) An authority or organization of government established by law that may

expend funds of the authority or organization.

MCL 141.422d(4) (emphasis added).

MCL 211.202: “Local unit” means counties, townships, villages, cities, a first-

class school district, community college districts, intermediate school districts,

and all other divisions, districts, and organizations of government that are or may

be established by law and that have the power to levy taxes against property

located within their respective areas, except villages and cities for which there are

provisions in their charters or general law fixing maximum limits on the power to

levy taxes against property for purposes as authorized by law to be supported

under the municipal budget and school districts. MCL 211.202(a) (emphasis

added).

MCL 550.1951: As used in this act, “local unit of government” means any

political subdivision of this state, including, but not limited to, school districts,

community and junior colleges, state universities, cities, villages, townships,

charter townships, counties, charter counties, authorities created by the state, and

authorities created by other local units of government. MCL 550.1951 (emphasis

added).

As this Court stated in Hoste v Shanty Creek Management, Inc, “every word of a statute

should be given meaning, and no word should be treated as surplusage or rendered nugatory if at

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all possible.” 459 Mich 561, 574; 592 NW2d 360 (1999), quoting State Bd of Ed v Houghton

Lake Community Schs, 430 Mich 658, 671, 425 NW2d 80 (1988).

Appellants argue that Ann Arbor Public Schools is “expressly preempted from making

any rules or policies in contravention of state law and that there is no need for a further analysis

under the field preemption test of Llewellyn.” Appellants’ Supplemental Brief, p 16. However, it

is clear from the text of the statute that school districts are not expressly preempted from

enacting a policy prohibiting visitors from openly carrying a firearm on school property when

students are present.

Cases that have applied preemption to entities other than local units of government

defined by MCL 123.1101, like CADL, involved an entity under the control of a city and county,

which were both included in the definition of a local unit of government under the statute. The

rationale in CADL is distinguishable from the instant matter and school districts are

distinguishable from district libraries in several ways.

The Court of Appeals in CADL correctly observed that the district library at issue was

jointly established by two entities, a city and a county, which themselves are considered “local

units of government” under the Michigan Firearms and Ammunition Act. See MCL 123.1101(a).

The Court further observed that most libraries are formed by cities, villages, townships, and

counties. Unlike the district library in CADL, schools are not formed or operated by “cities,

villages, townships or counties.” Thus, extending the scope of the statute to an entity formed by

other entities expressly identified as “local units of government” is reasonable. It would not be

reasonable to extend the scope of the statute to preempt school districts, which are not formed by

“local units of government.”

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The Court of Appeals in Ann Arbor acknowledged that Appellants’ arguments primarily

relied on the Court of Appeal’s decision in CADL. The Court of Appeals correctly opined as

follows:

CADL’s holding rested on a judgment that district libraries are so closely akin to

the local units of government listed in MCL 123.1101(b) that the same regulatory

scheme should apply. In essence, the CADL Court determined that because the

city and county that formed the Capital Area District Library were precluded from

regulating firearms pursuant to MCL 123.1102, it made no sense to permit their

stepchild—a library—from doing so. No corresponding parallels exist here.

School districts are not formed, organized, or operated by cities, villages,

townships, or counties; school districts exist independently of those bodies.

“Leadership and general supervision over all public education, including adult

education and instructional programs in state institutions, except as to institutions

of higher education granting baccalaureate degrees, is vested in a state board of

education.” Const 1963, art 8, § 3. While a district library enjoys a general ability

to “[s]upervise and control” its property, MCL 397.182(1)(f), the Legislature has

specifically allocated to school districts very broad powers of self-governance,

which specifically include “[p]roviding for the safety and welfare of pupils while

at school or a school sponsored activity[.]” Ann Arbor, 318 Mich App at 348-349.

The district library at issue in CADL was formed by two entities, a city and a county,

which themselves are considered “local units of government” under the Michigan Firearms and

Ammunition Act. See MCL 123.1101(a). Schools, on the other hand, are not created by two

“local units of government.” The Michigan Constitution provides “Leadership and general

supervision over all public education, including adult education and instructional programs in

state institutions, except as to institutions of higher education granting baccalaureate degrees, is

vested in a state board of education.” Const 1963, art 8, § 3. The Constitution also provides “The

legislature shall maintain and support a system of free public elementary and secondary schools

as defined by law. Every school shall provide for the education of its pupils without

discrimination as to religion, creed, race, color or national origin.” Const 1963, art 7, § 2.

Further, school districts are vested with broad authority to provide for the safety and welfare of

students.

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Much like courts, schools are safety sensitive areas. See, e.g., District of Columbia v

Heller, 554 US 570, 626-627; 128 S Ct 2783 (2008). In Michigan, some courts are

constitutionally created:

The judicial power of the state is vested exclusively in one court of justice which

shall be divided into one supreme court, one court of appeals, one trial court of

general jurisdiction known as the circuit court, one probate court, and courts of

limited jurisdiction that the legislature may establish by two-thirds vote of the

members elected to and serving in each house. Const 1963, art 4, § 1.

Other courts, such as municipal courts and the Court of Claims are created by the legislature. See

People ex rel Wexford Co Prosecuting Attorney v Kearney, 345 Mich 680, 687; 77 NW3d 115

(1956) (“The system of providing for certain constitutionally created courts, along with

providing the Legislature with authority to create other courts, continues in our current

Constitution. . . . [S]elected courts, such as municipal courts and the Court of Claims, are not

constitutionally created, but instead are only constitutionally permitted, and derive all their

powers from the Legislature.”)

Similar to Ann Arbor Public Schools’ policies prohibiting dangerous weapons, Michigan

Supreme Court Administrative Order 2001-4 prohibits weapons “in any courtroom, office, or

other space used for official court business or by judicial employees unless the chief judge or

other person designated by the chief judge has given prior approval.” This Court has further

directed each court to develop a written policy that is consistent with Administrative Order 2001-

4 and to submit the policy to the State Court Administrator for approval. Because this Court has

recognized all courts as safety sensitive areas where possession of a weapon is not appropriate,

policies prohibiting weapons, including firearms, in the state’s courts have been promulgated by

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circuit courts, probate courts, municipal courts, and the Court of Claims.2 If it is determined that

field preemption applies, legislatively created courts such as municipal courts and the Court of

Claims would likewise be preempted.

However, unlike the district library in CADL, courts and school districts are not created

by “local units of government.” Moreover, courts and schools have specific heightened safety

concerns, which are not present in a district library. On account of additional safety measures

that schools must take into consideration, access to school property may be regulated and

restricted “in order to preserve order in the educational process or to protect students from

potential harm.” Mejia v Holt Pub Sch, unpublished opinion of the United States District Court

for the Western District of Michigan, issued March 12, 2002, (Case No. 5:01-cv-116). (Appendix

25b.)

If the Legislature had not clearly and unambiguously defined “local unit of government,”

then an analysis of implied preemption may have been appropriate. However, the Legislature

clearly expressed its intent to prohibit cities, villages, townships, and counties from regulating

firearms. The Legislature made its intent clear when it did not include school districts in its

definition of local unit of government. The goal of judicial interpretation is met by giving effect

to this this unambiguous language and finding that Ann Arbor Public Schools may enforce their

policies and maintain a weapon free school zone.

2 See Oakland County Circuit and Probate Courts, Joint Administrative Order No 2014-07J, available at

https://www.oakgov.com/courts/circuit/Documents/ao/2014-07J.pdf; Macomb County Circuit and Probate Courts,

Joint Administrative Order 2014-17J; available at

http://circuitcourt.macombgov.org/sites/default/files/content/government/circuitcourt/pdfs/2014-

17J%20Signed%20Joint%20LAO%20in%20re%20Security%20Policy%20for%20Court%20Facilities.pdf; 36th

District Court, Prohibited Items Policy, available at http://www.36thdistrictcourt.org/general-

information/prohibited-items; 35th District Court, Court Policies, available at http://www.35thdistrictcourt.org/; 1st

District Court, Administrative Order 2001-01J: Security Policy for Court Facilities, available at

http://www.co.monroe.mi.us/District%20Court/OrdersDirectives/LAO_2001_01J.pdf; 36th District Court,

Prohibited Items Policy, available at http://www.36thdistrictcourt.org/general-information/prohibited-items; 35th

District Court, Court Policies, available at http://www.35thdistrictcourt.org/; 1st District Court, Administrative

Order 2001-01J: Security Policy for Court Facilities, available at

http://www.co.monroe.mi.us/District%20Court/OrdersDirectives/LAO_2001_01J.pdf.

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B. People v Llewellyn Did Not Involve a Similar Express Preemption Statute

In the instant matter, the Legislature clearly expressed its intent to preempt certain

defined local units of government from regulating firearms. This is unlike the statutory scheme

involved in Llewellyn, where the Legislature did not expressly prohibit cities (or any other local

government) from regulating obscenity. In Llewellyn, the Legislature did not expressly state its

intent to preempt regulation of obscenity and therefore the Court analyzed whether the

Legislature intended to occupy the field of regulation. However, here the Legislature enacted

MCL 123.1101 and MCL 123.1102 and expressly stated its intent to prohibit cities, villages,

townships, and counties from regulating firearms and therefore an analysis of whether the

Legislature may have intended to occupy the field should not be applied.

In Llewellyn, the Court examined whether a statutory scheme enacted by the Legislature

occupied the field of regulation which the City of East Detroit ordinance sought to enter.

Llewellyn, 401 Mich at 322. The statutory scheme in Llewellyn included a “five-section statutory

framework intended to define and regulate obscenity.” Id. at 326. The five statutes were

described as follows:

The first section, M.C.L.A. s 750.343a; M.S.A. s 28.575(1) prohibits the sale,

transmutation, and exhibition of obscene material. Moreover, a standard for a

prima facie case of the prohibited conduct is established, and the penalty for

conviction is provided.

M.C.L.A. s 750.343b; M.S.A. s 28.575(2) establishes with particularity the

definition and the standards for obscenity to be applied in cases under M.C.L.A. s

750.343a; M.S.A. s 28.575(1).

M.C.L.A. s 750.343c; M.S.A. s 28.575(3) provides that any person who publishes

or distributes material portraying illicit sex or perversion is guilty of violating s

343a.

M.C.L.A. s 750.343d; M.S.A. s 28.575(4) prohibits the conditioning of

distribution of a publication upon the acceptance of materials covered under s

343a.

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Finally, M.C.L.A. s 750.343e; M.S.A. s 28.575(5) specifically prohibits the

distribution of obscene materials to minors, providing also its own penalty

provision.

Llewellyn, 401 Mich at 326-327.

Llewellyn did not involve a statute prohibiting local units of government from regulating. Unlike

in the instant case, in Llewellyn, the statutory scheme did not address local preemption.

Therefore, the Court analyzed whether the Legislature intended to occupy the field of obscenity

regulation to the exclusion of the City of East Detroit, by examining the four Llewellyn factors.

In the instant matter, unlike the statutory scheme in Llewellyn, the Legislature expressly

stated its intent to preclude cities, villages, townships, and counties from regulating firearms.

Unlike Llewellyn, because there is a statute which expressly defines the Legislature’s intent to

prohibit certain defined local units of government, it is not necessary to analyze whether the

Legislature intended to occupy the field of regulation. The Legislature’s intent may be gleaned

from the plain and unambiguous language of the statute. Thus, Ann Arbor Public Schools

respectfully requests that this Honorable Court deny Appellants’ application for leave to appeal

and allow Ann Arbor Public Schools’ policies to stand.

II. If it is necessary to consider the factors set forth in People v Llewellyn, the Court of

Appeals properly analyzed the Llewellyn factors

If, even in light of the plain language of MCL 123.1102, it is determined that it is

necessary to consider the factors set forth in People v Llewellyn, the Court of Appeals properly

analyzed the Llewellyn factors. As this Court explained in Llewellyn:

A municipality is precluded from enacting an ordinance if 1) the ordinance is in

direct conflict with the state statutory scheme, or 2) if the state statutory scheme

preempts the ordinance by occupying the field of regulation which the

municipality seeks to enter, to the exclusion of the ordinance, even where there is

no direct conflict between the two schemes of regulation. Llewellyn, 401 Mich

314, 322 (internal citations omitted).

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In the instant matter, the policies at issue do not directly conflict with state law. There is

no state law which expressly states that visitors are allowed to openly carry firearms onto school

grounds when students are present. Rather, the frequent use of the phrase “weapon free school

zones” demonstrates the Legislature’s intent to keep schools weapon free.

The four Llewellyn factors include the following:

First, where the state law expressly provides that the state’s authority to regulate

in a specified area of the law is to be exclusive, there is no doubt that municipal

regulation is pre-empted.

Second, pre-emption of a field of regulation may be implied upon an examination

of legislative history.

Third, the pervasiveness of the state regulatory scheme may support a finding of

pre-emption. While the pervasiveness of the state regulatory scheme is not

generally sufficient by itself to infer pre-emption, it is a factor which should be

considered as evidence of pre-emption.

Fourth, the nature of the regulated subject matter may demand exclusive state

regulation to achieve the uniformity necessary to serve the state’s purpose or

interest.

Llewellyn, 410 Mich at 324 (internal citations omitted).

After consideration of the Llewellyn factors, the Court of Appeals correctly concluded that

“application of the Llewellyn factors counsels against a finding of field preemption.” Ann Arbor,

318 Mich App at 350.

A. Ann Arbor Public Schools’ Board Policies Do Not Directly Conflict with the

State Statutory Scheme

There is no state law which directly conflicts with Ann Arbor Public Schools’ policies.

Therefore, the first consideration in Llewellyn, whether the ordinance at issue is in direct conflict

with the state statutory scheme, does not apply.

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Appellants argue that Ann Arbor Public Schools’ “policy is in direct conflict with state

law and therefore preempted, without the need to venture into a field preemption analysis.”

Appellants’ Supplemental Brief, p 20. However, Appellants fail to identify a state law which

directly conflicts with Ann Arbor Public Schools’ policies.

For purposes of preemption, a direct conflict exists between local regulation and a state

statute where “the ordinance prohibits an act which the statute permits, or permits an act which

the statute prohibits.” Llewellyn, 401 Mich at 334. There is no state law which authorizes visitors

to openly carry firearms onto school grounds when students are present. The Michigan Firearms

Act establishes a list of premises on which carrying a concealed pistol is prohibited, even for

individuals licensed under the act to carry a concealed pistol. It states in part:

Subject to subsection (5), an individual licensed under this act to carry a

concealed pistol, or who is exempt from licensure under section 12a(1)(h), shall

not carry a concealed pistol on the premises of any of the following:

(a) A school or school property except that a parent or legal guardian of a

student of the school is not precluded from carrying a concealed pistol

while in a vehicle on school property, if he or she is dropping the student

off at the school or picking up the student from the school. […] [MCL

28.425o(1) (emphasis added).]

This provision generally prohibits an individual who is licensed to carry a concealed

pistol from doing so on school property. While this applies to concealed pistols, it makes no

mention of firearms that are unconcealed, or open carried. The Court of Appeals properly

analyzed this argument, and acknowledged that “MCL 28.425o imposes a blanket prohibition on

carrying a concealed pistol on school grounds (‘shall not’) subject to certain specific and limited

exceptions. The statute does not expressly forbid additional regulation or declare that its subparts

supersede any other school-related firearm rules.” Ann Arbor, 318 Mich App at 347.

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Indeed, no state law expressly authorizes the open carry of firearms or addresses open

carry on school property. Because the law is silent with respect to open carrying a firearm on

school property, and in light of the powers conferred upon school districts by the Revised School

Code, school districts have the right and duty to regulate the open carry of firearms on their

premises.

B. State Law Does Not Expressly Provide that the State’s Authority to Regulate

Firearms Is to Be Exclusive

State law does not expressly provide that the state’s authority to regulate firearms is to be

exclusive to the exclusion of all other regulation. Therefore, the first Llewellyn factor does not

support finding that Ann Arbor Public Schools’ policies are preempted. Rather, the statute

provides that the state’s authority to regulate firearms is to be exclusive with respect to cities,

villages, townships, and counties. Section 2 of the Firearms and Ammunitions Act states:





firearms, or components of pistols or other firearms, except as otherwise provided

by federal law or a law of this state. MCL 123.1102.

The Firearms and Ammunition Act expressly defines “a local unit of government” as “a city,

village, township, or county.” MCL 123.1101(b).

Under the doctrine of expressio unius est exlusio alterius, “the express mention in a

statute of one thing implies the exclusion of other similar things.” Bradley v Saranac Bd of Educ,

455 Mich 285, 298; 565 NW2d 650 (1997); Rembert v Ryan’s Family Steak Houses, Inc, 235

Mich App 118, 159; 596 NW2d 208 (1999).

In the instant matter, the Legislature specifically identified four types of entities as local

units of government in the Michigan Firearms and Ammunition Act – cities, villages, townships,

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and counties. MCL 123.1101(b). The express inclusion of these entities implies the exclusion of

others, such as school districts. To expand this definition to add school districts is contrary to the

clearly expressed legislative intent.

Additionally, with regard to the first Llewellyn factor, the Court of Appeals correctly

stated:

It bears repeating that the statute on which plaintiffs rely [MCL 123.1101] does

not include schools or school districts in its list of “local units of government,”

despite that for many other purposes, the Legislature has explicitly identified

school districts as “local units of government.” See, e.g., MCL 550.1951

(including “school districts” within the definition of “local unit of government” in

an act providing that certain entities are subject to the Patient's Right to

Independent Review Act, MCL 550.1901 et seq.); MCL 286.942(g) (including

“school district[s]” within the definition of “local unit of government” for

purposes of the Rural Development Fund Act, MCL 286.941 et seq.); and MCL

123.381 (including “school district[s]” within the definition of “local unit of

government” in an act concerning the construction of water and waste supply

systems). Ann Arbor, 318 Mich App at 350.

Washtenaw Circuit Court Judge Kuhnke also addressed the definition of local unit of

government and stated:

MCL 123.1101 does not include schools as a local unit of government and as I

pointed out and I think Counsel acknowledges, the Legislature knows very well

ah - - how to include the schools if it means to and at 123.11011B local unit of

government is specifically defined as a city, village, township, or county. It

doesn’t say includes but is not limited to. There is no et cetera at the end of

that list. There’s nothing else that indicates that this list is meant to be

inclusive of anything other than the four things that are included in the list

which are city, village, township, or county. MSD Tr, p 20 (emphasis added)

(Appendix 20b).

While the statute expressly provides that cities, villages, townships, and counties may not

regulate the possession of pistols or other firearms except as otherwise provided by state or

federal law, the statute does not expressly prohibit school districts from enacting such regulation.

See MCL 123.1102. As noted above, the Legislature knows how to include schools in the

definition of local unit of government when it intends to do so. See, e.g., MCL 15.501 (Public

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Officers and Employees); MCL 123.381(a); (Joint Water Supply and Waste Disposal Systems

Act); MCL 141.422d(4) (Uniform Budgeting and Accounting Act); MCL 286.942 (Rural

Development Fund Act); MCL 550.1951 (General Insurance Laws).

Given the clear and unambiguous language of MCL 123.1101 and MCL 123.1102, the

state did not expressly provide that the state’s authority to regulate firearms is to be exclusive.

C. Preemption of the Field of Regulation Should Not Be Implied by

Examination of Legislative History

The second Llewellyn factor requires examination of legislative history. The legislative

history cited by Appellants does not support precluding school districts from enacting policies

prohibiting firearms on school grounds when students are present. (Appendix 575a.) The Court

of Appeals correctly held that this factor does not support preemption.

Appellants have cited and continue to cite the Second Analysis for 1991 House Bill 5437

in arguing that this factor supports a finding of field preemption. However, this analysis

discusses concerns about gun control ordinances and the then-authority of local units of

government to “enact and enforce gun control ordinances.” (Appendix 575a.) Appellants state

that “[t]he 1991 Legislative Analysis then provides a description of efforts by several

municipalities to enact gun control ordinances.” Appellants’ Supplemental Brief, p 18 (emphasis

added) (Appendix 575a). Appellants also point to a statement in the 1991 Legislative Analysis

that is concerned that “gun enthusiasts will be unfairly prosecuted.” (Appendix 575a.)

The legislative history cited by Appellants does not address schools. It is well-settled that

Michigan school districts have broad authority and an important interest in ensuring the safety

and welfare of its students while they are at school. Ritchie v Coldwater Cmty Schs, 947 F Supp

2d 791, 813 n 9 (WD Mich, 2013); Liebau v Romeo Cmty Schs, unpublished opinion per curiam

of the Court of Appeals, issued July 30, 2013 (Docket No. 306979). (Appendix 31b-38b.) During

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the school day, “[t]eachers and school officials are responsible for the education and well-being

of their students.” DJY v Ypsilanti Cmty Schs, unpublished opinion of the United States District

Court for the Eastern District of Michigan, issued February 12, 2015 (Case No. 14-cv-11467).

(Appendix 46b.) School officials act in loco parentis, or in place of students’ parents, while a

student is at school, and have a significant amount of authority during that time to maintain order

in the learning environment. See id (Appendix 39b-49b); see also New Jersey v TLO, 469 US

325, 339-340; 105 S Ct 733; 83 L Ed 2d 720 (1985).

The Court of Appeals noted that the Supreme Court’s reliance on legislative history has

evolved since Llewellyn was decided:

We note that in the almost 40 years that have passed since our Supreme Court's

decision in Llewellyn, the Supreme Court's views regarding the propriety of

judicial reliance on legislative history have changed considerably. For example, in

People v Gardner, 482 Mich 41, 57, 58; 753 NW2d 78 (2008), the Court

discussed the many “problems inherent in preferring judicial interpretation of

legislative history to a plain reading of the unambiguous text” and expressed a

decided preference for “historical facts” about “the Legislature's affirmative acts”

rather than “staff analyses of legislation.” “[R]esort to legislative history of any

form is proper only where a genuine ambiguity exists in the statute. Legislative

history cannot be used to create an ambiguity where one does not otherwise

exist.” In re Certified Question from US Court of Appeals for Sixth Circuit, 468

Mich 109, 115 n 5; 659 NW2d 597 (2003). Ann Arbor, 318 Mich App at 350, n 6.

The Court of Appeals also correctly ruled that this Legislative history is “useless, as it

speaks to ordinances and local units of government rather than to schools.” Ann Arbor, 318 Mich

App at 351.

The second Llewellyn factor requires us to consider legislative history. Plaintiffs

point to the House Legislative Analysis we cited in CADL, reciting that MCL

123.1102 “was designed to address the ‘proliferation of local regulation regarding

firearm ownership, sale, and possession’ and the ‘concern that continued local

authority to enact and enforce gun control ordinances may result in the

establishment of a patchwork of ordinances.’” CADL, 298 Mich App. at 236, 826

NW2d 736. We find this fragment of legislative history useless, as it speaks to

ordinances and local units of government rather than to schools. As no other

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legislative history has been presented to us, we conclude that this factor does not

support preemption. Ann Arbor, 318 Mich App at 350-351.

Ann Arbor Public Schools is not a municipality. Further, Ann Arbor Public Schools does

not have the authority to enact or enforce ordinances. Ann Arbor Public Schools cannot

criminalize behavior.

Appellants point to no other legislative history to support their position. Ann Arbor

Public Schools is seeking to limit visitor access to school grounds when students are present in

order to provide for the safety and welfare of students and to minimize disruption to the

educational environment. Therefore, the Court of Appeals correctly concluded that this factor

does not support preemption.

D. The Pervasiveness of the State Regulatory Scheme Does Not Support a

Finding of Preemption

The third Llewellyn factor concerns “the pervasiveness of the state regulatory scheme.”

Llewellyn, 401 Mich at 232. The Court of Appeals properly analyzed this factor and concluded

that although firearms are pervasively regulated in Michigan, the “use of the phrase ‘weapon free

school zones’ presses against the preemption of a district policy affirming that its school will

remain ‘weapon-free.’” Ann Arbor, 318 Mich App at 353-354. The pervasiveness of the state

regulatory scheme does not support a finding of preemption.

Pervasiveness alone is not generally enough to infer preemption. The Court in Llewellyn

stated: “While the pervasiveness of the state regulatory scheme is not generally sufficient by

itself to infer preemption, it is a factor which should be considered as evidence of preemption.”

Llewellyn, 401 Mich 314 at 324 (internal citations omitted).

Appellants merely argue that numerous state statutes regulate the possession and carrying

of firearms “with respect to both place and manner of carry.” Appellants’ Supplemental Brief, p

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21. However, Appellants fail to acknowledge the numerous references to “weapon free school

zones” in state statutes.

As the Court of Appeals noted, there are numerous Michigan statutes specifically

referencing “weapon free school zones.” The Court of Appeals opined:

These four words telegraph an unmistakable objective regarding guns and

schools; indeed, we find it hard to imagine a more straightforward expression

of legislative will. The Legislature contemplated that this repeatedly invoked

phrase would be interpreted to mean exactly what it says—no weapons are

allowed in schools. Viewing the AAPS policies against this statutory backdrop,

we infer that firearm policies consistent with the “weapon free school zone”

concept are unobjectionable. Field preemption analysis does not permit us to

ignore this statutory language simply because there are many statutes regulating

firearms. To the contrary, the pervasiveness of the Legislature’s use of the phrase

“weapon free school zones” presses against the preemption of a district policy

affirming that its schools will remain “weapon-free.” Ann Arbor, 318 Mich App at

353-354 (emphasis added).

The frequent use of the phrase “weapon free school zones” demonstrates the

Legislature’s intent to keep schools weapon free. Moreover, federal laws have established “gun

free school zones,” 18 USC 922(q)(2)(A), and the Michigan Department of Education (“MDE”)

classifies the presence of a weapon, such as a firearm, as an emergency. Accordingly, the Court

of Appeals properly analyzed this factor and correctly ruled that the “relevant segments of a

multifaceted statutory framework evince the Legislature’s intent to prohibit weapons in schools

rather than to rein in a district’s ability to control the possession of weapons on its campuses.”

Ann Arbor, 318 Mich App at 353.

E. The Nature of the Regulated Subject Matter Does Not Demand Exclusive

State Regulation

The fourth Llewellyn factor considers whether the nature of the regulated subject matter

demands exclusive state regulation to achieve the uniformity necessary to serve the state’s

purpose. The Court of Appeals properly analyzed this factor and determined that this factor did

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not weigh in favor of preemption. Ann Arbor, 318 Mich App at 354-355. School district policies

regulating visitor access to school property will not create confusion, there already exists a

confusing array of regulation regarding firearm possession, and there are particular local

concerns that school districts must take into consideration when enacting policies.

School districts may ban students and employees from possessing firearms on school

property. With regard to students, the Revised School Code provides that a student who

possesses a dangerous weapon, including a firearm, in a “weapon free school zone” shall be

expelled from the school permanently. MCL 380.1311. With regard to employees, the Michigan

Firearms Act states that it “does not prohibit an employer from prohibiting an employee from

carrying a concealed pistol in the course of his or her employment with that employer.” MCL

28.425n(b). The authority of school district employers to ban firearms among employees is

further bolstered by case law, labor decisions, and tenure decisions. See, e.g. Hoven v Walgreen

Co, unpublished opinion of the United States District Court for the Western District of Michigan,

issued December 4, 2012 (Case No. 1:11-cv-881) (Appendix 54b.) (“Defendant was well within

its legal rights to prohibit Plaintiff from carrying his concealed handgun in the course of

employment”); Peyton Packing Co, 49 NLRB 828 (1943) (“The Act, of course does not prevent

an employer from making and enforcing reasonable rules covering the conduct of employees on

company time”); Streeter v River Rouge, STC 78-34 (1979) (“By intentionally bringing the

weapon to school [the teacher] subjected the students, staff, and herself to an increased risk of

physical injury”).

1. School District Policies Regulating Visitor Access to School Property

Do Not Create Confusion

Appellants argue that permitting school districts to enact policies regulating firearms

“would enable local governments to ‘create a crazy quilt patchwork scheme of [firearms]

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regulation.” Appellants’ Supplemental Brief, p 22, quoting City of Brighton v Twp of Hamburg,

260 Mich App 345, 346; 677 NW2d 249 (2004).

Appellants’ argument lacks merit. School district policies do not amount to “local

governments” creating regulation. A school district is not a “local government” as defined by

MCL 123.1101. Whether or not to include school districts in the list of entities that are prohibited

from regulating firearms should be left to the Legislature to decide. Moreover, the Court of

Appeals correctly analyzed this factor and opined:

The Legislature has broadly empowered school districts to “[p]rovid[e] for the

safety and welfare of pupils while at school or a school sponsored activity or

while en route to or from school or a school sponsored activity.” MCL

380.11a(3)(b). Indisputably, the Legislature recognized that different school

districts would employ different methods and strategies to accomplish this goal.

Most parents of school-age children send those children to schools located within

a single school district. Most parents easily learn and adapt to the policies and

procedures applicable to their children’s schools and district. We discern no

possibility of meaningful “confusion” or burdening of law enforcement. To the

contrary, the AAPS policy ensures that the learning environment remains

uninterrupted by the invocation of emergency procedures that would surely be

required each and every time a weapon is openly carried by a citizen into a school

building. Ann Arbor, 318 Mich App at 354-355.

School districts across the state have various differing policies regarding visitor access to school

property, in order to provide for the safety and welfare of students. These differing policies have

not produced mass confusion. As the Court of Appeals noted, most parents learn the policies

applicable to their children’s schools. Visitors or other individuals who are not parents of

students in the school can readily check the rules, just as they must do before entering private

property or various courts. Ann Arbor Public Schools’ policies are also available to the public

online.

The school district policy at issue in the instant matter is unlike the regulation involved in

Llewellyn. In Llewellyn, the Court was concerned that:

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the uncertainty of local definitions of obscenity would effectively chill the right to

free expression, and raise serious due process problems in that an unwary national

or statewide distributor of books or films may be subject to criminal prosecution

and incarceration although there was little opportunity to discover the nature of

the prohibited conduct. It is a long-standing rule in this state that criminal offenses

must establish with reasonable certainty the elements of the offense so that all

persons subject to their penalties may know what acts it is their duty to avoid.

Llewellyn, 401 Mich at 314.

The Court in Llewellyn was concerned that numerous local ordinances would inhibit commerce

and chill free expression. The Court opined that “a uniform, statewide system of obscenity

regulation provides not only the fairest, but also the most effective means of combating

obscenity.” Llewellyn, 401 Mich at 329. Consequently, the Court applied the doctrine of field

preemption.

The Ann Arbor Public Schools’ policies here, on the other hand, apply to visitors to the

school district. The policies present a single set of rules that visitors must follow at one school

district. Unlike the concern for national or statewide distributors in Llewellyn, the number of

school districts individuals visit is generally limited. The policies are readily available to all

individuals who visit the school district. Thus, the need for uniformity is lessened.

2. There Exists a Confusing Scheme of Laws Delineating Where

Firearms May Be Carried

There exists a panoply of laws that define where an individual may open carry, where an

individual may concealed carry, where firearms are not prohibited, and where property owners

may prohibit firearms. The current scheme of regulation is already confusing.

For example, the Federal Gun Free School Zone Act prohibits possession of a firearm

(open or concealed) within 1,000 feet of school property. 18 USC 922(q)(2)(A). This statute has

an exception if the individual possessing the firearm is licensed to do so by the state.

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The Michigan Penal Code prohibits possession of a weapon (open or concealed) in a

school zone. MCL 750.237a(4). “Weapon free school zone” is defined as “school property and a

vehicle used by a school to transport students to or from school property.” MCL 750.237a(6)(e).

“School property” is defined as “a building, playing field, or property used for school purposes

to impart instruction to children or used for functions and events sponsored by a school, except a

building used primarily for adult education or college extension courses.” MCL 750.237a(6)(c).

This statute also contains an exception if the individual is licensed to carry a concealed weapon.

The Michigan Firearms Act prohibits possession of concealed pistols in: schools (except

a parent in a vehicle while dropping off or picking up student), day care centers, sports arenas,

bars, churches, entertainment facilities with seating capacity of 2,500 of more, hospitals, dorms

or classrooms of a college or university, casinos. MCL 28.425o. The prohibitions apply even if

the person has a valid concealed pistol license (“CPL”).

While the above statute only prohibits concealed carry of pistols in casinos, not open

carry of pistols in casinos, the Michigan Department of Treasury promulgated a rule prohibiting

all firearms in a casino:

R 432.1212 Weapons in casino.

Rule 212. (1) An individual may not carry a firearm or other weapon in a casino,

except for the following entities:

(a) State, county, city, township, or village law enforcement officers, as

defined in section 2(e) of Act No. 203 of the Public Acts of 1965, as amended,

being § 28.601 et seq. of the Michigan Compiled Laws.

(b) Federal law enforcement officers, as defined in 5 USC § 8331.

(c) Armored car personnel picking up or delivering currency at secured areas.

(2) Law enforcement officers conducting official duties within a casino shall, to

the extent practicable, advise the Michigan state police gaming section of their

presence.

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(3) Private casino security personnel may carry handcuffs while on duty in a

casino.

Michigan Dept of Treasury, Rule 432.1212 (1998-2000).

Additional regulation of firearms in Michigan may be found in the Michigan Penal Code,

MCL 750.234d, which provides as follows:

(1) Except as provided in subsection (2), a person shall not possess a firearm on

the premises of any of the following:

(a) A depository financial institution or a subsidiary or affiliate of a depository

financial institution.

(b) A church or other house of religious worship.

(c) A court.

(d) A theatre.

(e) A sports arena.

(f) A day care center.

(g) A hospital.

(h) An establishment licensed under the Michigan liquor control act, [MCL

436.1 to MCL 436.58].

(2) This section does not apply to any of the following:

(a) A person who owns, or is employed by or contracted by, an entity

described in subsection (1) if the possession of that firearm is to provide

security services for that entity.

(b) A peace officer.

(c) A person licensed by this state or another state to carry a concealed

weapon.

(d) A person who possesses a firearm on the premises of an entity described in

subsection (1) if that possession is with the permission of the owner or an

agent of the owner of that entity.

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(3) A person who violates this section is guilty of a misdemeanor punishable by

imprisonment for not more than 90 days or a fine of not more than $100.00, or

both.

MCL 750.234d.

Notwithstanding the exception above which permits an individual who is licensed by the state to

carry a concealed weapon in a court, the Supreme Court has promulgated an administrative order

which prohibits weapons in any courtroom. Administrative Order No 2001-1. The order

specifically acknowledges “[t]he issue of courthouse safety is important not only to the judicial

employees of this state, but also to all those who are summoned to Michigan courtrooms or who

visit for professional or personal reasons.” Id. The order directs each court “to submit a written

policy conforming with this order to the State Court Administrator for approval.” Although every

court has submitted its own written policy regarding possession of firearms, the policies have not

resulted in confusion. Likewise, specific school district policies will not create a “crazy quilt

patchwork scheme of [firearms] regulation.”3

Additionally, private property owners may prohibit individuals from openly or concealed

carrying firearms on his or her property, “regardless of whether the person is a CPL holder.”

Michigan State Police Legal Update, No 86 (Oct 26, 2010). “If the person remains on the

property after being told to leave by the owner, the person may be charged with trespassing.” Id.,

citing MCL 750.552 (Michigan Penal Code, Trespass upon lands or premises of another;

exception; violation; penalty; “process server” defined.)

3 The Court of Appeals stated: “Despite that MCL 750.234d(2)(c) permits concealed weapon holders to carry

concealed weapons in “[a] court,” our Supreme Court has promulgated an administrative order barring the presence

of all weapons in court facilities unless approved by the chief judge. Administrative Order No. 2001–1, 463 Mich.

cliii (2001). Many circuit courts have issued their own policies banning the presence of weapons. See, e.g., Oakland

County Circuit and Probate Courts, Joint Administrative Order No. 2012–06J <<

https://www.oakgov.com/courts/circuit/Documents/ao/2012–06J.pdf>> (accessed November 30, 2016)

[https://perma.cc/N4UM-EZX3].” Ann Arbor, 318 Mich App at 352 n 8.

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In light of the array of firearms regulation defining where an individual may open carry,

where an individual may concealed carry, where an individual may open carry only if he or she

has a CPL, where firearms are not prohibited, and where property owners may prohibit firearms,

Appellant’s assertion that school district policies will create “confusion” falls flat.

3. There Are Particular Local Concerns That Schools Must Take Into

Consideration When Enacting Policies

With regard to the need for uniformity, this Court in Llewellyn opined “examination of

relevant Michigan cases indicates that where the nature of the regulated subject matter calls for

regulation adapted to local conditions, and the local regulation does not interfere with the state

regulatory scheme, supplementary local regulation has generally been upheld.” Llewellyn, 401

Mich 314, 324-325. Further, this has Court noted, “A system of controls or regulations may be

said to be unitary in nature when the statutory scheme is such that it demands state-wide

uniformity in order to carry out its terms. The question is properly whether the scheme can work

effectively in the face of local intervention.” Walsh v City of River Rouge, 385 Mich at 639,

quoting Michael H. Feiler, in an article entitled, Conflict Between State and Local Enactments-

The Doctrine of Implied Preemption, appearing in 2 Urban Lawyer 398, 404-405 (1970).

The Revised School Code establishes broad powers in local school boards. Lansing Schs

Educ Assn v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010). Further, Michigan Courts

have acknowledged the importance of local control over the operation of schools:

“No single tradition in public education is more deeply rooted than local control

over the operation of schools; local autonomy has long been thought essential

both to the maintenance of community concern and support for public schools and

to quality of the educational process.” Widdoes v Detroit Public Schools, 218

Mich App 282, 287; 553 NW2d 688 (1996), quoting Durant v Bd of Ed, 424 Mich

364, n 14, 381 NW2d 662 (1985), quoting Milliken v Bradley, 418 US 717, 741-

742; 94 S Ct 3112; 41 L Ed 2d 1069 (1985).

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There are certain local concerns which school districts must take into consideration when

determining appropriate policies to ensure the safety and welfare of students. Schools, like

Courts, have particular safety concerns which must be addressed. The population the school

district serves, size of the buildings, the average age of the students in the buildings, the

proportion of students with disabilities, visitor access to school grounds, the distinct problems

the district faces, and district resources may each impact a school district’s policies. The

particular local concerns of school districts necessitate enactment of board policies to address

those concerns. Ann Arbor Public Schools’ policies enacted in the instant matter address

concerns in the Ann Arbor community and do not interfere with state regulation.

III. The Court of Appeals Correctly Held that Ann Arbor Public Schools’ Policies are

Not Preempted

School districts have the authority to prohibit firearms on school property pursuant to

their power and duty under the Revised School Code to provide for the safety and welfare of

students and to educate students. Ann Arbor Public Schools enacted the policies at issue in this

case in order to ensure the safety and welfare of its students. The Court of Appeals correctly held

that Ann Arbor Public Schools’ policies are not preempted.

MCL 123.1102 prohibits local units of government from regulating firearms “except as

otherwise provided by federal law or a law of this state:”





firearms, or components of pistols or other firearms, except as otherwise

provided by federal law or a law of this state. MCL 123.1102 (emphasis

added.)

Here, the Revised School Code confers upon school districts the specific power, right,

and duty to adopt policies that ensure the safety and welfare of their students:

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A general powers school district has all of the rights, powers, and duties

expressly stated in this act; may exercise a power implied or incident to a power

expressly stated in this act; and, except as provided by law, may exercise a

power incidental or appropriate to the performance of a function related to

operation of the school district in the interests of public elementary and

secondary education in the school district, including, but not limited to, all of

the following:

[…]

(a) Educating pupils. In addition to educating pupils in K-12, this function

may include operation of preschool, lifelong education, adult education,

community education, training, enrichment, and recreation programs for

other persons.

(b) Providing for the safety and welfare of pupils while at school or a

school sponsored activity or while en route to or from school or a school

sponsored activity. MCL 380.11a(3) (emphasis added).

The Revised School Code specifically grants school districts the power and duty to provide for

the safety and welfare of students and to educate students. MCL 380.11a(3).

Courts have taken a broad view of the authority of school districts to enact policies

intended to address school safety, finding “that schools have an important interest in maintaining

the safety and security of school grounds, as well as students, staff, parents, and other members

of the public who come onto school property.” See Ritchie, 947 F Supp at 813 n 9; Liebau,

unpub op at 12. (Appendix 34b-35b.) As the Court of Appeals opined, “the Legislature has

specifically allocated to school districts very broad powers of self-governance, which specifically

include ‘[p]roviding for the safety and welfare of pupils while at school or a school sponsored

activity.’” Ann Arbor, 318 Mich App at 349. Additionally, access to school property is limited

and restricted in several ways. School environments imply limitations on even the most

fundamental rights. See Tinker v Des Moines Indep Cmty Sch Dist, 393 US 503; 89 S Ct 733; 21

L Ed 2d 731 (1969).

Pursuant to the Revised School Code, schools are also tasked with the duty of educating

students and providing a learning environment that is free from material disruption. The presence

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of a weapon, such as a firearm, is classified as an emergency by the MDE and, therefore, would

cause a material disruption to the education process. MI Ready Schools: Emergency Planning

Toolkit, Michigan Dept of Ed, p 3 (2011). The presence of an individual openly carrying a gun in

a school places students on alert, causes a distraction, and results in disorder that disrupts

teachers’ lessons, children’s attentions, and the ability of students to learn.

Additionally, the presence of an individual openly carrying a gun in a school places a

burden on school employees to determine whether that individual is carrying the gun with a

lawful intent. This adds to the disruption of the educational environment and undermines the

school’s goal of ensuring student safety. Accordingly, the MDE Emergency Planning Toolkit

provides three strategies school districts may use to respond to an emergency situation, such as

the presence of a firearm: evacuation; lockdown; or shelter-in-place. Id. at 21.

In order to maximize student safety and welfare and minimize disruptions to the

educational process, Ann Arbor Public Schools enacted Board Policies prohibiting guns on

school property when students are present. The policies are narrowly tailored to achieve these

goals and prohibit possession of a firearm on school property when students are present:

No person in possession of a dangerous weapon will be allowed to remain on

property owned or leased by AAPS at any time when students are at school, en

route to or from school or at a school sponsored activity in accordance with Board

Policy 5410 to maintain the least disruptive educational environment and to

ensure the safety and welfare of students. Board Policy 5420.

While Ann Arbor Public Schools made a policy choice to prohibit guns on school

property when students are present, other school districts may decide differently. Each local

school district must take into account specific local concerns and make its own policy

determination.

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CONCLUSION

Ann Arbor Public Schools respectfully requests that this Court deny Appellants’

application for leave to appeal and allow local school districts to retain control over the decision

to ban gun on school grounds. Unless the Legislature sees fit to act on this matter and

specifically permit school visitors to carry guns on school grounds, local school districts should

have the authority to decide how to meet the obligation to maximize student safety and minimize

disruptions to the educational process. In the instant matter, Ann Arbor Public Schools’ policies

are narrowly tailored to visitors carrying weapons on school grounds at any time when students

are at school, en route to or from school, or at a school sponsored activity.

In light of the Legislature’s clear language in MCL 123.1102, it is not necessary to

consider the factors set forth in Llewellyn, 401 Mich at 322-325, in order to determine whether

Ann Arbor Public Schools’ policies are preempted. If, even in light of MCL 123.1102, it is

determined that it is necessary to consider the factors set forth in Llewellyn, the Court of Appeals

properly analyzed the Llewellyn factors and concluded that the Legislature did not occupy the

field of regulation such that school districts may not regulate. Further, the Court of Appeals

correctly held that Ann Arbor Public Schools’ Board Policies are not preempted pursuant to the

Ann Arbor Public Schools’ duty and obligation under the Revised School Code to educate

students and to provide for the safety and welfare of students.

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Wherefore, for the reasons articulated above, Ann Arbor Public Schools respectfully requests

that this Honorable Court deny Appellants’ application for leave to appeal and let the Court of

Appeals decision stand.

/s/ William J. Blaha

William J. Blaha (P38089)

Julia M. Melkić (P77714)

COLLINS & BLAHA, P.C.

Attorneys for Defendants-Appellees

31440 Northwestern Highway, Suite 170

Farmington Hills, Michigan 48334

(248) 406-1140

Dated: February 20, 2018

4842-2615-9453, v. 1

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