Introduction

This commentary analyzes the Michigan Supreme Court’s order denying leave to appeal in People v. Soto and Justice Bolden’s dissent from that denial. While the Court issued no majority opinion on the merits, the dissent squarely spotlights a live and consequential tension in Michigan’s marijuana laws: the interaction between the Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL 333.27951 et seq., and Article 7 of the Public Health Code (PHC), MCL 333.1101 et seq.

The central issue is whether, and when, conduct involving large quantities of marijuana falls within the MRTMA’s exclusive, generally non-felony penalty framework (MCL 333.27965) or remains chargeable as felony conduct under the PHC’s possession-with-intent-to-deliver (PWID) provisions (MCL 333.7401). Justice Bolden contends that a recent published Court of Appeals opinion in Soto conflicts with People v Kejbou, 348 Mich App 467 (2023), lv den 513 Mich 1062 (2024), and that the conflict effectively allows prosecutorial charging labels to determine whether nonviolent conduct receives misdemeanor treatment under the MRTMA or felony treatment under the PHC.

The parties are the People of the State of Michigan and the defendant, Julia Kathleen Soto. The case arises out of a law enforcement operation that resulted in the seizure of approximately 20 pounds of marijuana from Soto’s residence and felony charges under the PHC, including PWID 5–45 kilograms and maintaining a drug house, each charged as second or subsequent offenses. Soto challenged the felony prosecution, arguing the MRTMA displaces PHC felonies for conduct regulated by the MRTMA’s penalty structure.

Summary of the Opinion

The Michigan Supreme Court denied leave to appeal, stating only that it was not persuaded the question should be reviewed. This leaves intact the Court of Appeals’ published decision in People v Soto (Soto II), which held that when a defendant is charged with possession with intent to deliver more than twice the amount authorized by MCL 333.27955, the MRTMA does not supersede Article 7’s felony PWID provisions, specifically MCL 333.7401(2)(d)(ii).

Justice Bolden dissented. She would have granted leave, citing an apparent tension between Soto II and Kejbou. In her view, the MRTMA’s structure and express exclusivity language—“may be punished only as provided in this section” (MCL 333.27965)—mean that conduct addressed by MRTMA penalties should not be escalated into PHC felonies based solely on charging choices. Bolden urged either the Court to resolve the split or the Legislature to clarify and modernize the statutory framework to avoid harsh, inconsistent outcomes for nonviolent marijuana conduct that exceeds MRTMA limits.

Detailed Analysis

I. The Statutory Framework: MRTMA and PHC in Tension

Two statutory regimes govern marijuana in Michigan:

• Public Health Code, Article 7 (PHC): Historically criminalizes marijuana as a Schedule 1 controlled substance. Relevant here is MCL 333.7401, which makes it a felony to manufacture, deliver, or possess with intent to deliver marijuana in specified quantities. For 5–45 kilograms (or 20–200 plants), the PHC prescribes up to 7 years’ imprisonment or a significant fine. For 200 plants or more, the penalty is up to 15 years or a $10,000,000 fine.
• MRTMA (2018 initiative): Legalizes and regulates adult-use marijuana, decriminalizing specified possession and cultivation, creating civil infractions for minor overages, and defining exclusive misdemeanor penalties for more serious overages outside the Act’s safe harbor. See:
  • MCL 333.27955(1)(b): Within one’s residence, a person 21+ may possess up to 10 ounces and cultivate up to 12 plants for personal use (with no more than 12 plants on the premises at once).
  • MCL 333.27954(5): “All other laws inconsistent with this act do not apply to conduct that is permitted by this act.”
  • MCL 333.27965: Establishes exclusive penalties for unauthorized conduct. Subsection (1) addresses civil infractions for amounts at or under the Act’s limits. Subsection (4) imposes a misdemeanor when a person possesses or cultivates more than twice the amount allowed by Section 5, with incarceration permitted only if the violation was habitual, willful, and for a commercial purpose, or involved violence. Crucially, this section states that a person “may be punished only as provided in this section and is not subject to any other form of punishment or disqualification, unless the person consents to another disposition authorized by law.”

The textual cornerstone of the tension is that the MRTMA did not expressly repeal the PHC’s marijuana felonies, yet it purports to make its own penalties exclusive for certain marijuana-related conduct and to render inconsistent laws inapplicable to conduct “permitted by this act.” That combination leaves courts to determine when MRTMA penalties “cover the field” for particular conduct—even when that conduct falls outside the safe harbor amounts.

II. Precedents Cited and Their Influence

• People v Kejbou, 348 Mich App 467 (2023), lv den 513 Mich 1062 (2024)

  Kejbou addressed a felony prosecution under MCL 333.7401(2)(d)(i) for manufacturing 200+ plants. The Court of Appeals concluded that the MRTMA “supplanted” aspects of Article 7 for unlicensed grow operations, reasoning that the MRTMA broadly decriminalizes use, possession, and cultivation, while the PHC criminalizes the same, and that the MRTMA’s penalty scheme therefore controls for unauthorized cultivation. Kejbou held that Article 7 could not be used to override MRTMA’s penalty structure for conduct the MRTMA addresses—treating large-scale unlicensed cultivation within the MRTMA’s misdemeanor framework (MCL 333.27965(4)) rather than as a PHC felony.

  Impact in Soto: Justice Bolden reads Kejbou as recognizing MRTMA’s primacy where the Act provides a penalty for the conduct, even for large, arguably “commercial” grows. She views Soto II as difficult to reconcile with Kejbou given that both cases involved large-scale, home-based cultivation operations, yet Soto II allowed a felony PWID charge to proceed under the PHC.

• People v Peltola, 489 Mich 174 (2011)

  Peltola is cited by the Court of Appeals in Soto II for the canon that legislative inclusion of certain terms in one context and their omission in another is presumed intentional (expressio unius). Soto II reasoned that because “possession with intent to deliver” appears in MCL 333.27965(1) (civil infraction context) but not in MCL 333.27965(4) (misdemeanor for more-than-twice the amount), the electorate intended to exclude PWID at larger quantities from the MRTMA’s misdemeanor penalty and to leave such conduct to PHC felonies.

  Impact in Soto: Bolden criticizes reliance on this omission without accounting for the MRTMA’s exclusivity clause—that persons committing acts enumerated in § 15 “may be punished only as provided in this section.” To her, the broader structure and exclusivity language outweigh a narrow inference from omission.

III. The Competing Legal Reasoning

A. The Soto II approach (as described in the dissent)

• Focuses on textual omission of “possession with intent to deliver” in MRTMA § 15(4), while noting its presence in §§ 15(1) and (2).
• From that omission, infers the electorate chose not to include PWID beyond twice the allowed amounts within MRTMA’s misdemeanor penalties.
• Concludes that PHC felony PWID provisions continue to apply to larger-quantity PWID, notwithstanding MRTMA’s penalty framework for “more than twice the amount” in cultivation or possession.

B. The Kejbou-informed approach (embraced by the dissent)

• Looks to MRTMA’s purpose and structure: decriminalization within limits, civil infractions and misdemeanors for overages, and express exclusivity of MRTMA penalties for non-authorized conduct covered by the Act.
• Highlights two textual anchors:
  • MCL 333.27954(5): “All other laws inconsistent with this act do not apply to conduct that is permitted by this act.”
  • MCL 333.27965: A person committing the listed acts “may be punished only as provided in this section and is not subject to any other form of punishment or disqualification, unless the person consents to another disposition authorized by law.”
• Reasons that where the MRTMA assigns a penalty grade to conduct (e.g., cultivation of more than twice the amount allowed), the PHC cannot elevate that same conduct to a felony merely by recharacterization as PWID.
• Warns that allowing prosecutors to pick PHC felonies for conduct falling within MRTMA’s penalty scaffolding undermines legislative and electoral intent and creates unequal outcomes based on labeling rather than conduct.

C. Why the lines are hard to draw

Two interpretive challenges are doing the work here:

• Overlap of conduct categories: The same fact pattern—large-scale, unlicensed, home-based cultivation—can be charged as “manufacture” (cultivation) or as PWID under the PHC. If the MRTMA’s § 15(4) covers cultivation at more than twice the limits as a misdemeanor, can the prosecutor avoid that outcome by charging PWID instead?
• Text vs. structure: The omission of PWID in § 15(4) is real. But so is § 15’s exclusivity clause. Kejbou treats MRTMA’s penalty framework as displacing PHC felonies for the same underlying conduct. Soto II treats the omission as a conscious carve-out, preserving PHC felonies for higher-quantity PWID.

IV. Practical and Doctrinal Impact

A. Prosecutorial discretion and unequal outcomes

Justice Bolden underscores a key practical consequence: prosecutorial charging choices may now determine whether identical conduct receives a civil infraction, a misdemeanor, or a felony. Post-Soto II, prosecutors can emphasize PWID under the PHC to elevate penalties, whereas Kejbou suggests MRTMA governs when it penalizes the conduct. This invites inconsistent treatment statewide and heightens plea/leverage dynamics in nonviolent marijuana cases.

B. Guidance for lower courts

Both Kejbou and Soto II are published Court of Appeals decisions. Soto II attempted to distinguish Kejbou based on the charging statute (manufacturing plants versus PWID by weight). The Supreme Court’s denial of leave leaves that tension in place. Trial courts will confront motions arguing that the MRTMA’s exclusivity clause and Kejbou’s rationale apply notwithstanding a PWID label, especially where the underlying facts are cultivation-heavy. Conversely, under Soto II, courts may permit PHC PWID felonies where quantities exceed twice the MRTMA limits and the State can frame the case as intent to deliver rather than cultivation.

C. Litigation pressure points

• What counts as “conduct covered by MRTMA penalties”? Expect contested framing: is the conduct fundamentally “cultivation beyond twice the limit” (MRTMA misdemeanor) or “PWID 5–45 kg” (PHC felony)?
• Commercial purpose findings: Under § 15(4), incarceration is limited unless violations are habitual, willful, and for a commercial purpose, or involved violence. That predicate will be heavily litigated where MRTMA ranges apply.
• Statutory construction canons: Disputes will continue over whether expressio unius (as in Peltola) can overcome the MRTMA’s broad exclusivity language and purpose clauses, and whether courts should avoid “implied repeal” while still giving practical effect to MRTMA’s penalty exclusivity.

D. Legislative reform

Echoing the dissent, the Legislature could bring coherence by:

• Clarifying whether PWID at higher quantities is within MRTMA’s § 15(4) misdemeanor scheme or reserved to PHC felonies.
• Harmonizing weight and plant-count thresholds across MRTMA and PHC to avoid end-runs by charge-labeling.
• Codifying when incarceration is permissible for nonviolent, unlicensed conduct and defining “commercial purpose.”
• Explicitly addressing the exclusivity clause’s interaction with PHC offenses, including whether any category of PWID remains a felony for nonviolent, adult-only conduct absent licensing.

V. Complex Concepts Simplified

• Safe harbor (MRTMA § 5): Lists amounts of marijuana adults 21+ can possess and cultivate legally (e.g., up to 10 ounces in the home and up to 12 plants for personal use on the premises). Conduct within these limits is “not unlawful,” not grounds for arrest or prosecution.
• “All other laws inconsistent … do not apply” (MCL 333.27954(5)): If MRTMA permits the conduct, contradictory laws (like PHC felonies) cannot be used to penalize it.
• Exclusive-penalty clause (MRTMA § 15): For non-authorized conduct listed in § 15, a person “may be punished only as provided in this section,” meaning MRTMA’s penalties are exclusive unless the person consents to another disposition. This is the heart of the Kejbou approach.
• “Possession with intent to deliver” (PWID): A PHC felony when quantities meet statutory thresholds. PWID focuses on intended distribution rather than mere possession or cultivation.
• Expressio unius est exclusio alterius: A canon of statutory interpretation: the inclusion of one thing implies exclusion of others. Soto II used this to infer that because § 15(4) omits “PWID” while including it in § 15(1), larger-quantity PWID was excluded from § 15(4)’s misdemeanor scheme.
• Implied repeal/supplanting: Courts disfavor finding that a newer law repeals an older one by implication. Kejbou avoided the term “repeal” but recognized that the MRTMA “supplanted” PHC provisions where the MRTMA assigns penalties for the same conduct.
• Commercial purpose qualifier: Under MRTMA § 15(4), even misdemeanor overages generally do not carry jail time unless the violation was habitual, willful, and for a commercial purpose, or involved violence. This shows MRTMA’s calibrated approach to nonviolent overages.

Conclusion

The Michigan Supreme Court’s denial of leave in People v. Soto leaves intact a significant tension within Michigan’s marijuana jurisprudence. On one path, Kejbou reads the MRTMA’s exclusivity and purpose as constraining PHC felonies when MRTMA penalties cover the same conduct—particularly large-scale unlicensed cultivation—keeping such cases within MRTMA’s civil/misdemeanor regime unless aggravated by violence or proven commercial purpose. On the other path, Soto II uses textual omission to preserve PHC felony PWID charges for larger quantities, even when the underlying facts are indistinguishable from cultivation cases addressed by MRTMA penalties.

Justice Bolden’s dissent argues persuasively that the result should not hinge on a prosecutor’s choice to label the conduct as PWID rather than cultivation, because the MRTMA’s exclusive-penalty clause and decriminalizing purpose were meant to prevent precisely such felony exposure for nonviolent adult conduct. Absent Supreme Court clarification, the Legislature is best positioned to reconcile the MRTMA and PHC, align thresholds, and ensure that penalties are driven by conduct and legislative design—not by charge-labeling.

Key takeaway: Until the statutory scheme is harmonized, Michigan practitioners should expect continued litigation over whether MRTMA’s § 15 penalties displace PHC felonies for high-quantity, nonviolent marijuana cases—and continued uncertainty over when “possession with intent to deliver” can be used to bypass the MRTMA’s calibrated, generally non-felony framework.