Ever since Michigan passed the medical marijuana act back in 2008, any lawyer truly in the loop of the new law would advice clients that pot dispensaries are illegal. Different county prosecutors handled the new and innovative law in different ways.

The medical marijuana law in Michigan was based on the model adopted in other states and features a small grow operation through limits on the number of plants that can legally be produced. This law, as enacted, however, does not provide for the sale of marijuana or for any large scale operation whatsoever.

This did not stop pot farmers from progressing into massive grow operations. Likewise, dispensary owners openly displayed their wares in stripmall storefronts, mistakenly believing they had cover under the new law.

In some counties, there appeared to be an "out-of-sight-out-of-mind" approach, while other county sheriffs raided and broke-up dispensaries and grow operations. Oakland County has taken a more hands-on approach, raiding dispensaries and recommending prosecution for the operators.

Last September, the Michigan legislature blew the lid off with a new series of laws that creates a complex licensing scheme to grow, test, transport and distribute medical marijuana. The state begins taking applications for those licenses in December.

Until then, the Oakland County Sheriff has warned many of the operating dispensaries to close down or risk raids, seizure and prosecution. Notices have been posted on the doors of many of the most infamous and the largest of the dispensaries and grow operations.

When the licensing takes effect, those that successfully apply for and are granted a license or licenses, will be in the good graces of the law; those that do not have licenses will be illegal and an easy mark for prosecution.

Currently, those that have the expertise to grow a quality product are gearing up to obtain a grow license, while other entrepreneurs will apply for the dispensary license. Get ready for the state regulations to follow; this is going to be a heavily regulated industry to be sure.

At present, there is a small window of opportunity to get in on the ground floor of a booming industry. This opportunity is unique as marijuana is decriminalized throughout the country.

If you have an interest in obtaining a Michigan grow license or a dispensary license, contact our law firm to discuss your options. We offer a free initial consultation.

Post #580

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Can a medical marijuana card-holding insured homeowner collect on an insurance policy when his house blows-up and burns down due to a mistake he made while cooking-up a batch of marijuana honey oil?  According to U.S. District Judge Thomas Ludington, sitting in Bay City, the answer is, "No!"

In a recent case decided by Judge Ludington, a Bay City homeowner was making a batch of what has come to be known as marijuana honey oil.  Honey oil is a marijuana derivative that concentrates THC -the active ingredient in a marijuana leaf- into a wax or oil; smoking or ingesting the substance produces an enhanced "high".

To get to the wax, however, requires an intensive production process.  Marijuana leaves [er, much more than are allowed under the Michigan Medical Marijuana Act] are crammed into a pvc tube capped on one end.  Then butane, and lots of it, is infused into the tube; essentially, the leaves are marinated in butane.

This marination process causes the plant matter to waste away, leaving a liquid mixture of butane and THC which is then strained through a filter.  The residue collected in the filter is then scrapped off and spread over a plate or other drying surface where the butane is allowed to evaporate.  What remains is a highly potent wax or oil that can be smoked or used in cooking.

Why go through this process?  Because medical marijuana in its most common leaf form fetches only between $10 and $20 per gram.  The oil, on the other hand, goes for up to $80 per gram.

The possibility of higher profit apparently lured the insured homeowner in the Bay City case to cook-up a double batch; this required copious amounts of butane.  Anxious to sample his product, he was cleaning a razor with a hand-held torch when butane fumes that had collected throughout the basement during the production process ignited, burning down the house.

Although the homeowner's insurance company paid-out to the tune of six figures, it did so under a "reservation of rights".  In the ensuring litigation, the federal judge ruled that what happened in the home was no accident; the homeowner was engaged in intentional acts that created predictable risks.

The case is illustrative of the lingering disconnect that the recent marijuana laws have created due to marijuana still being classified as a Schedule 1 drug via the federal Controlled Substance Act.  Insurance companies are going to begin to deploy express exclusions; landlords are going to prohibit marijuana production; and banks will not get involved in financing the marijuana production process.

Thus, for the foreseeable future, marijuana will continue to be produced the old-fashioned way; via the hippie farmer, one plant at a time.  Industrial production will require a re-alignment of the federal laws.

We here at the Law Blogger are reminded of the lyrics and title of a song by the Rastafarian legend Peter Tosh:  "Legalize it, Mon."

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Michigan Senator Rick Jones' bill passed the Senate on Tuesday that will restrict the use of medical marijuana by proscribing it in all public venues, and allows a property owner to prohibit any otherwise legal use of marijuana on his property.  If the bill passes the House, then Michigan's Medical Marijuana Act, passed via voter initiative back in 2008, will be amended by the restrictions.

A close reading of the original act shows that smoking pot has been prohibited in public places all along. Jones' bill clarifies the term "public" by expanding the definition to include private property that is open to the public, i.e. like a restaurant, store or amusement park.

The more onerous restriction, however, comes in the form of granting landlords the power to prohibit medical marijuana use when the restriction is written into the lease.  In discussing his bill with the media last month, Senator Jones described complaints he received from constituents whose rental properties were ruined by pot-growing tenants.

Seeing the handwriting on the wall of the senate chamber, the pro-pot caucus proposed tie-barring Jones' bill to a bill languishing in the House that would legalize edible marijuana [think pot brownies]; something that was recently outlawed by the Michigan Court of Appeals as being outside the scope of the MMA.

The plenary Senate wasn't having it, and Jones' bill passed with the "super-majority" needed to amend voter-initiated legislation like the MMA.  This bill could get legs in the House and become law by this summer.

So here is a shout-out to all you medical marijuana patients out there: if you are going to medicate, then you may need to own your home.  Otherwise, you may have no where to go to [legally] smoke your pot.

We here at the Law Blogger do not see too many tears being shed over these restrictions.  But we would expect that, should this bill become law, it will sustain marijuana's criminalization enough to keep the criminal defense bar happy for some time to come.

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In 1936, marijuana was vilified as the harvest of the Devil; the gateway drug to the hard stuff.  Reefer Madness was a propaganda campaign that swept the country in the years following prohibition.

Fast forward to the post-modern era of the second decade in the 21st Century, and we see marijuana legalized in a growing number of states, at least for its, er, medical use; the Justice Department ignores significant manufacturing and distribution operations, as directed by the U.S. Attorney General; and the SCOTUS is considering whether to hear a case this term to remove marijuana from Schedule 1 of the Controlled Substance Act.

While the Michigan Medical Marijuana Act has attracted much attention in the courts and the media all over Michigan, it has had a disturbingly polarizing effect on Dearborn District Judge Mark W. Somers.  The Dearborn judge has petulantly declared the MMA unconstitutional, and has referred to marijuana as: "Devil's weed", "Satan's surge", and "Satan's weed".

Judge Somers has lectured defendants wrongly convicted in his courtroom on the topic of Mexican drug-cartel-related child deaths and how the medical marijuana industry is directly related to this scourge.  In an infamous case, People -v- Brandon, Judge Somers ruled that, "the MMA is rendered unconstitutional in its entirety by operation of the Supremacy Clause of the United States Constitution."

Now he has been disqualified by the Michigan Court of Appeals from deciding any more cases involving the MMA on the basis that he has pre-judged individuals accused of marijuana possession and distribution, despite the availability of valid defenses.

We here at the Law Blogger find it disturbing indeed when a judge takes matters into his own hands, and substitutes his own world view for the law.  In disqualifying Judge Somers, we applaud the Court of Appeals that ruled the probability of actual prejudice at the hands of this rogue judge was too high to pass constitutional muster.

Perhaps it is time for the Judicial Tenure Commission to take a serious look at whether Mark Somers is fit and qualified to be a judge.

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52-4 District Judge
Kirsten Hartig

By: Timothy P. Flynn

This ruling is going to get some attention in high places.  Troy District Judge Kirsten Nielsen Hartig has ruled that Michigan's motor vehicle code provision criminalizing the operation of a motor vehicle with the presence of a controlled substance [marijuana] violates the equal protection clause of the Michigan and United States Constitutions.

The case, People v Sulaka, arose in 2010 when the accused was allegedly speeding and, when pulled-over, could not produce a drivers license.  In the process of making an arrest for this seemingly innocuous violation, the Troy Police officer detected the odor of marijuana coming from the car and took Sulaka to the hospital for a blood draw which yielded a trace amount of THC.

Our friend, Superlawyer Neil Rockind, argued that the controlled substance provision of the motor vehicle code improperly created a strict liability crime, improperly shifted the burden of proof from the prosecutor to the accused, and unconstitutionally created two classes of people treated differently under the law.

Judge Hartig was persuaded to invalidate the motor vehicle code on equal protection grounds.  Here's how the idea works: there are two classes of people subjected to the controlled substance provision of our motor vehicle code.  One group of drivers have medical marijuana cards and are permitted to have THC in their blood stream while driving, so long as the level does not impair their ability to drive [so says the Michigan Supreme Court in a recent case dealing with the medical marijuana act].  The other group of drivers has no such pot card and are strictly liable for operating a vehicle with any amount of THC in their blood.

In her ruling, Judge Hartig relied on a case from the Georgia Supreme Court that held that the effects of legally used marijuana [i.e. medical marijuana here in Michigan] are indistinguishable from the effects of illegal marijuana consumption: the driver is still buzzed under either set of circumstances.  Therefore, no rational public safety interest is served by creating these distinct classes of drivers thus, the equal protection clause of our Constitution is offended.

The case has already made one trip to the Oakland County Circuit Court for the prosecutor's appeal of Judge Hartig's initial dismissal of the case.  Oakland Circuit Judge Colleen O'Brien relied on the now-reversed Court of Appeals decision in the People v Koon case, which ruled that even drivers with medical marijuana cards violated the motor vehicle code when driving with THC in their bloodstream.  [The Law Blogger's take on the Koon case is here.]

Of course, the Oakland County Prosecutor has again appealed Judge Hartig's second dismissal so the case seems destined to grind further through the appellate process.  Regardless of how Judge O'Brien rules in the [second] appeal of right, both sides are heavily invested in this case and can be expected to apply for further discretionary appeal to the Michigan Court of Appeals.

We shall see whether the Court of Appeals will grant leave in light of our High Court's ruling in the Koon case.  At some point, our legislature needs to address the disconnect between the motor vehicle code and the medical marijuana act.

Unlike alcohol, which utilizes a blood-alcohol threshold for driving, there is no similar scale for drivers who recently smoked marijuana.  As long as there are lawyers like Rockind out there to skillfully protect the rights of the accused, this will continue to be a problem for the courts.  Perhaps its time for the legislature to act on this issue instead of leaving it up to local law enforcement, prosecutors and municipal judges.

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By: Timothy P. Flynn

Does the Michigan Medical Marijuana Act presume that a certified patient can only consume marijuana by smoking herb, or can pot brownies do the trick?  That was the question posed by a case from the Oakland County Circuit Court that went to the Michigan Court of Appeals.

Now, on last week's remand back to the Oakland County trial court, an evidentiary hearing will be conducted in the People v Carruthers case to determine whether the accused was using a "reasonable" amount of marijuana by baking the pot brownies.

Earl Carruthers was charged with illegally manufacturing marijuana when pot brownies and several ounces of "loose" pot were found in his vehicle; he possessed a medical marijuana card and a caregiver certificate at the time of his arrest.  Oakland County Circuit Judge Michael Warren precluded him from submitting evidence to the jury about his status as a card-carrying medical marijuana patient and care provider.  Judge Warren also ruled that the entire weight of the pot brownie mixture [some 55 ounces] could be taken into account relative to the manufacturing charge.

Even though the circuit court allowed Carruthers to appeal the evidentiary rulings prior to his trial, the Defendant elected to plunge into the trial without the ability to present an affirmative defense as to his medical marijuana use; he was jury-convicted. In appealing this conviction, the broad immunity provision and the narrower affirmative defense section of the MMA were once again interpreted by the Michigan Court of Appeals; this time in the "usable marijuana" context.

 Complicating this issue is the fact that the MMA itself defines "usable marijuana" two different ways: first, the Act references the broad definition set forth in the public health code, then proceeds to promulgate its own, much narrower definition of marijuana:

"Usable marihuana" means the dried leaves and flowers of the marihuana plant and any mixture or preparation thereof, but does not include the seeds, stalks, or roots of the plant.

Whether Carruthers could avail himself of the MMA's immunity provisions [case dismissed; no jury trial] hinged on the weight of the edible.  Judge Warren ruled the whole pot brownie had to be weighed; Defendant asserted that only the net weight of the THC, the active ingredient in marijuana, could be taken into account.  Although the prosecutor's expert stated that THC was present in the brownies, it was impossible to conclude how much.

This ruling could make it difficult for a marijuana patient or care provider to produce pot brownies in conformity with the weight limitations of the MMA.  Critics within the defense bar expressed concerns that the Court of Appeals' decision limits ingestion via the lungs, i.e. with smoke.  Patients that have lung conditions and cannot smoke are thus precluded from legally ingesting baked goods laced with marijuana.

The case will be heading to the Michigan Supreme Court for certain.  Our High Court will once again be called upon to "fill-in-the-blanks" of the MMA.

We here at the Law Blogger must say that the ingestion of pot brownies by a legitimate card-carrying patient sure seems to be consistent with the spirit, if not the letter, of the Medical Marijuana Act.  Stay tuned, as we will be following this one...

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By:  Timothy P. Flynn

Earlier this week, medical marijuana advocates here in Michigan urged supporters to obtain and spend $2 dollar bills in support of the medical marijuana industry.  The idea behind the campaign is to demonstrate the strength of the marijuana economy.

Estimates place annual revenue from marijuana in Michigan, legal and illegal, at approximately one billion dollars.  The two dollar bill campaign is designed to raise awareness of the potential tax revenues and economic growth possibilities of the industry.

Not surprisingly, since the passage of the Michigan Medical Marijuana Act, Michigan now has over 130,000 registered marijuana "patients" with another 30,000 care-providers.  That's a lot of folks using and producing marijuana.

As we have reported here at The Law Blogger, recent appellate decisions have fostered a "grow-your-own" or barter system for the necessary evil of marijuana cultivation.  Dispensary schemes or for-profit business models have been ruled illegal.

A recent study from Harvard University estimated that 13% of all adult Michiganders used marijuana at least once over the past year.  That's a lot of joint consumption.

Should the State of Michigan regulate and tax this robust industry?  Should the business model shift from the hippy farmer to the for-profit business model?

Legislators and judges alike could not give two cents in support of this still-illicit industry, never mind a two dollar bill.  As things now stand, the law says: no profits from pot.

We would love to hear from our readers on this issue that is here to stay.  Please comment.

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The Medical Marijuana Act provides medical pot users with certain immunities relative to their use of marijuana.  Even a medical marijuana patient, however, cannot "medicate" while driving a vehicle, raising the question: just how much pot legally can be in the patient-driver's system?

Earlier this week, the Michigan Supreme Court released a much-anticipated decision resolving a conflict in the Motor Vehicle Code and the Medical Marijuana Act here in Michigan.  In a unanimous per curiam opinion, issued without oral arguments, the Supreme Court held in People v Koon that a medical marijuana patient is legal to drive a vehicle, even with some THC in his blood.

Rodney Koon was charged under the "zero tolerance" provision of the Motor Vehicle Code which proscribes driving with any amount of a Schedule 1 drug in the driver's system.  Koon, a properly registered medical marijuana patient, was initially stopped for speeding in Grand Traverse County.

Both the district court and the Grand Traverse County Circuit Court agreed with Mr. Koon's lawyers that the MMA provided Koon with immunity from prosecution under the motor vehicle code's "zero tolerance" provision -case dismissed.  The Michigan Court of Appeals reversed that dismissal, reasoning that even under the MMA, driving under the influence of marijuana remains illegal, and concluding that any amount of marijuana found in a driver's system constitutes "under the influence".

The Supreme Court disagreed, holding that some proof that a driver is operating a vehicle while under the influence of marijuana is necessary; evidence of a miniscule amount of THC in that driver's blood-stream, without more, is not enough to strip that driver of the immunity from prosecution available under the MMA.

This decision essentially amounts to a "sliding-scale" for pot-card carrying drivers.  You had better be sure sufficient time has elapsed between toking-down, and getting behind the wheel. 

We here at the Law Blogger suggest that 15 or 20 minutes clearly is not sufficient to keep the rest of us safe from a pot patient's stoned driving.  But what about an hour or two? 

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Across the state, doctors who have been taking fees for rubber-stamping, falsifying, or pre-authorizing written certifications for folks applying for medical marijuana cards are collecting criminal convictions.  In order to receive a pot card, the patient must demonstrate they have a "debilitating medical condition".

The Michigan Medical Marijuana Act requires a prospective patient to present medical records to a physician within a bona fide physician-patient relationship.  The physician must then make an evaluation as to whether the patient has a debilitating medical condition.

In doing so, section 4 of the MMMA affords doctors immunity from prosecution simply for providing the requested certifications.  In this regard, the Act states:

A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions.

Well, as with all things "medical marijuana"-related, schemes have popped-up within the medical community.For example, in Macomb County, Lois Butler-Jackson was jury-convicted last month of conspiracy and health care fraud.  The Macomb County Prosecutor and the Michigan Attorney General teamed-up to prove that Dr. Butler-Jackson was pre-authorizing certifications for unseen  patients; stacks of the certifications were then distributed, presumably for a fee, by other individuals to pot card-seeking members of the public.
Up in Cadillac, MI, Dr. Edward Harwell has been charged by the Michigan Attorney General with a series of felonies for allegedly issuing medical marijuana certifications to undercover law enforcement officers without obtaining proper medical verification of the requisite debilitating medical condition.

We here at the Law Blogger have long-suspected that the, er, "medical" nature of the Act is a ruse created by dedicated pot-lobbists whose real goal is to use the fashionable medical marijuana legislation as a proverbial Trojan-Horse for outright legalization.

This legalization highway, however, is getting littered with casualties such as the less-than-forthright physicians featured in this post; and the marijuana dispensaries recently outlawed by the Michigan Supreme Court.

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The case discussed in this note involves marijuana dispensaries.  They're out there folks; maybe not like Santa Monica Blvd, but they're out there.  Take a look at this Directory of Dispensaries.

The Michigan Supreme Court outlawed medical marijuana distribution schemes pot farmers have been using since 2008 to achieve some basic economy of scale and, imagine this, make money from the effort. The Act provides immunities and defenses for legitimate “patients” and “caregivers”, but pecuniary schemes like the one at issue in this casenote are clearly not protected by the MMMA.

Compassionate Apothecary, a medical marijuana dispensary, or “provisioning center”, was the business model that underwent recent scrutiny by the Michigan Supreme Court in People v McQueen. The Court’s decision spells the end of these easy distribution schemes.

The Compassionate Apothecary (CA) was a “pot club”, if you will. Except for their revenue generation, this club was run about as close to the requirements of the Michigan Medical Marijuana Act as possible. Our High Court, however, determined that the scheme did not comply with the Act, largely on pecuniary grounds.

Brandon McQueen was both a registered patient and the primary care giver to three patients. His business partner, Matthew Taylor, cared for two registered qualifying patients. Together, they ran CA, a membership organization with a physical location consisting of lockers for pot storage and transfer. To be a member, you have to verify your status as a “card-carrying” patient or provider.

The High Court’s syllabus best describes how the collective operated:

To be a member of CA, an individual had to be either a registered qualifying patient or a registered primary caregiver. Caregivers could only be members of CA if a qualifying patient with whom he or she was connected through the state’s registration process was also a member. Patients and caregivers who were members of CA could rent lockers from CA. Patients would rent lockers from CA when they had grown more marijuana than they needed to treat their own debilitating medical conditions and wanted to make the excess available to other patients. Caregivers would rent lockers when their patients did not need all the marijuana that they had grown. Patients and caregivers desiring to purchase marijuana from another member’s locker could view the available marijuana strains in CA’s display room. After the patient or caregiver had made a selection, a CA employee would retrieve the marijuana from the appropriate locker, weigh and package the marijuana, and record the purchase. The price of the marijuana would be set by the member who rented the locker, but CA kept a service fee for each transaction.

CA’s recorded pricing and service fees placed them out of compliance with the Act. Thus, it was a no-brainer for the High Court to affirm the intermediate appellate court and outlaw dispensaries.

In Ypsilanti, Third Coast Compassion Club takes issue with the decision. Without disclosing whether Third Coast charges different prices for various pot strains, or fees to facilitate transactions, their spokesperson said, “ultimately, we’re a private club, not a public store…” Well, good luck with that…

While the decision no doubt spells hardship for those in the, er, budding industry, Jim Lynch of the Detroit News observes “Panicked Uncertainty”. Hardly; but dedicated legitimate patients must now go underground or grow their own.

Free Press coverage touched on the legislative history of the Act; the Freep spoke with pot lobbyist Tim Beck of Detroit, a retired health insurance executive who was one of the scriveners of the original proposal put on the 2008 ballot. Beck indicated the words “sale” or “dispensary” were far too dangerous to use in the ballot initiative, so they were deliberately kept out of the text of the initiative.

The distribution concept integrated into the MMMA is one of: “grow your own”.  Professional horticulturists were not contemplated by the initiative and are not found within the scope of the Act.

Michigan Attorney General William Schuette, who joined the Isabella County Prosecutor in filing the complaint for a permanent injunction against Compassionate Apothecary as a public nuisance, said the Supreme Court’s decision clarifies the MMMA as follows:

 The law does not allow retail sales of medical marijuana.
 Sales or transfers are limited to those between caregivers and their five registered patients.
 Sales or transfers between registered patients are barred.
 Caregivers are not protected when selling or transferring marijuana to unregistered patients.

Among the patients and caregivers that commented to the state’s media yesterday, the theme seemed to be, “where am I gonna get my pot now?” Some medical marijuana patients that spoke with the Oakland Press, the Detroit News and Free Press said they were disappointed in the ruling because it will make marijuana more difficult to obtain.

87th District State Rep Mike Callton (R Nashville) introduced a bill last May which he characterizes as follows:

This isn't about restricting anyone's freedom or access to a substance that is now legal for those with a prescription. This is about making sure patients are safe and the product is safe. Since medical marijuana became legal in Michigan, dispensaries are popping up left and right and we need to make sure these places pass the grandma test.

Well, technically, the Act refers to a physician “certification”, not prescription; like the word “sale”, the word “prescription” does not appear in the MMMA.  So, to fill-in this gap, Rep Callton articulates the “grandma test” on his official website:

If you wouldn't feel safe having your grandma go to one of these places to pick up her medical marijuana, as if she went to a pharmacy, then it needs to be cleaned up or closed down.

Bottom line: the Supreme Court’s decision is a rationale application of the MMMA. Legitimate patients can legally obtain and use marijuana. But, growers beware; and take care not to make a profit, least you find yourself on the wrong side of felony charges.

For now anyway, pot farming is a labor of love…

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Just prior to the holidays, the Michigan Supreme Court deepened its medical marijuana jurisprudence by deciding another key case applying the Michigan Medical Marijuana Act.  The case, People v Bylsma, arose out of Kent County and is distinctive because it is the first case under the Act that involves a collective grow operation.

Ryan Bylsma was a certified care provider under the MMMA.  He operated a medical marijuana collective with other pot growers.  He claimed that he assisted other farmers with their grow operations and that he only maintained 24 plants in the facility.

Bylsma was busted when a Grand Rapids city inspector observed suspicious wires coming from the structure of the collective.  The inspector forced his way into the structure [without a warrant], observed the extensive marijuana operation, and alerted the Kent County Sheriff.  Nearly 90 plants were seized from the structure.

The collective farmers had a locked facility, but they did not segregate their plants.  All three pot farmers were certified under the act.  Apparently, the structure was traced back to Bylsma from an owership perspective thus, he took the rap for possession of all the plants.

The Kent County Circuit Court trial judge did not buy into Bylsma's assertion that his pot possession within the collective was strictly limited to the 24 plants designated for his two patients.  Bylsma's motion to quash the information was denied and appealed to the Michigan Court of Appeals.

The intermediate appellate court affirmed the trial court, holding that since the strict plant limits and other provisions of the MMMA were not observed by Bylsma, then he could not avail himself of the immunity under section 4 of the Act, nor could he avail himself of the affirmative defenses under section 8 of the Act.

Maintaining consistency with their Kolanek opinion, the Michigan Supreme Court affirmed the intermediate appellate court in holding that, unless an accused complies with all the provisions of the MMMA, the section 4 immunity is not available.  The High Court reversed the Court of Appeals, however, by holding that the Act's section 8 affirmative defenses are available regardless of compliance with the Act.

The decision is significant to the extent that it resolves the issue of whether pot combine owners, partners or participants can combine space and share the protections of the MMMA; they cannot.  Further, this case again emphasizes the shortcomings of the Act with regard to any distribution-for-profit scheme; there are not enumerated in the Act, and the High Court laid the groundwork for striking down any such schemes.

We here at the Law Blogger see the medical marijuana jurisprudence establishing very limited defenses for true medical marijuana pot growers and users.  Those who insist on utilizing the MMMA to turn a profit will continue to be disappointed, while legitimate medical users will be afforded the protections envisioned by the Legislature.

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Readers of this blog know that we have tracked the medical marijuana issue through the court system over the past 3-years.  Now there is an interesting twist in the on-going debate: can an employer condition your job on being pot-free, even if you have a medical marijuana card?

The answer is "yes", courtesy of the United States Sixth Circuit Court of Appeals in the seminal case of Casias v Wal-Mart Stores, Inc.

In theory, the 2008 enactment of the Michigan Medical Marijuana Act (MMMA) provides a statutory right for patients and their caregivers to cultivate and use medical marijuana.  Unfortunately, the Act is wrought with ambiguous language, resulting in befuddlement on the bench and a potentially misinformed public, many of whom believe, sincerely, that the MMMA provides more protections than it actually does.  

Joseph Casias of Battle Creek, Michigan, lost his job over his medical use of pot.  Casias worked at the local Wal-Mart, earning “Employee-of-the-Year” honors the same year the pot act received electorate endorsement.   

When hired in 2004, Casias passed a mandatory drug test as a prerequisite for employment.   In 2009, however, after injuring himself on-the-job, Mr. Casias took another drug test required by Wal-Mart corporate policy.  This time he failed the test and was fired from his job.

 

Casias, having been diagnosed with sinus cancer and an inoperable brain tumor since the age of 17, routinely used pain medications for a number of years, as prescribed by his treating oncologist.  When the MMMA was enacted, Casias obtained a valid registry card allowing him to use medical marijuana for treatment of his chronic pain. 

After his failed drug test in December 2009, Joseph showed his registry card to Wal-Mart management, explaining to his supervisor that he never used marijuana before or during work.  Wal-Mart nevertheless fired their “Employee-of-the-Year” for failing the drug test per corporate policy.   

For his part, Casias went straight to a lawyer and sued his former employer in federal court.  The case was dismissed for, “failure to state a claim”; Casias appealed the dismissal to the Sixth Circuit Court of Appeals.

The Sixth Circuit affirmed the dismissal in its September 19, 2012, decision holding that Casias was both out of luck, and out of job.

Many employees recognize that “at will” employment means that a person can be fired for good cause, bad cause, or no cause at all.  Mr. Cassias, however, assumed that the medical pot law afforded him some manner of employment protection, or exception to the company policy, for his pot use.  He badly miscalculated.

The MMMA prohibits “disciplinary action by a business or occupational or professional licensing board or bureau” against a valid, registered cardholder.  The is silent, however, as to whether such protection applies to employment.

Casias, in filing his complaint against Wal-Mart for wrongful discharge in violation of public policy and the MMMA, argued that the term “business” should be interpreted as applying to private businesses, and should include employment. 

The Sixth Circuit disagreed, holding that the word “business” is a descriptive term as applied to the type of “licensing board or bureau.”  The short answer is that the Sixth Circuit does not believe that the Act provides any employment protections for registered patients; at least not as the Act is currently written. 

Of primary concern of the appeals court was that if they agreed with Casias’ interpretation of the Act, then private business would be unable to discipline employees who held valid registry cards; employee could use pot to insulate them from a variety of performance-related deficits.

 

We do see loads of litigation arising from such an interpretation.  Not to be, however, as the Sixth Circuit’s narrow application of the Act to private business preserves the decision-making actions of private employers, and leaves patients and caregivers to continue twisting in the ambiguous winds of the MMMA.

 The Sixth Circuit did insert a sliver of hope to those who would disagree with this decision, saying that their Casias decision is solely based upon how the MMMA is currently written.  The Act just does not ly address the issue presented in this case.

Perhaps this decision works well to illuminate yet another area where the MMMA requires clarification.  Perhaps the legislature should consider amending the Act to expressly include employment sanctions within its protective scope, as apparently intended by the electorate when approving the pot resolution 4-years ago.  

As with many of the cases that have arisen since the enactment of the medical pot law, the hard truth is that the scope of the protections under the Act are limited; those who find themselves embroiled in these initial “test” cases risk losing their property, employment, and liberty. 

Remember, the MMMA, as it currently stands, provides limited protections against state action, i.e. criminal prosecution.  While it may keep you out of jail, it simply cannot protect your job. 

Therefore, we here at the Law Blogger advise employees to proceed with caution. 

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This is a tale of one statute and two defendants.  One defendant will be sporting a conviction for marijuana possession, while the other defendant's charges are now dismissed.

This week, the Michigan Supreme Court decided an important case involving Michigan's Medical Marijuana Act.  The case, People v Kolanek, consolidated the separate convictions of Alexander Kolanek, and Larry King; the former an Oakland County case, the latter from Shiawassee County.

As detailed by this blog over the past three years, the Michigan Medical Marijuana Act has had a brief and tortured existence.  Prosecutors, law enforcement and even judges have taken a restrictive view of the use and immunities provided by the Act.  With much success, until now, they have managed to limit the use, or even the assertion of the affirmative defense set forth in section 8 of the Act.

Not surprisingly, several cases have percolated up through Michigan Court of Appeals.  Two of these cases culminated in the High Court's Kolanek decision.

In the King portion of the decision, Larry King grew six marijuana plants in an enclosed locked dog kennel.  King had a valid medical marijuana registration card.

He moved to dismiss the case against him at both the district and circuit courts; the latter agreed that he was entitled to assert the affirmative defense under the Act and dismissed the case.  The Court of Appeals reversed the dismissal and remanded the matter back to the trial court.

In Kolanek, the defendant was arrested with a half dozen joints on his person.  A week after his arrest, he obtained a statement from his physician that he would receive a palliative benefit from the use of marijuana; Mr. Kolanek apparently suffered from Lyme disease.

Interestingly, the circuit court in this case held that, even though Mr. Kolanek did not obtain his physician's statement until after his arrest, the affirmative defense in the Act was nevertheless still available to him on the basis that he did at least secure a statement from the treating physician.

Kolanek's case also moved through the Court of Appeals, which reversed the circuit court, holding that to avail oneself of the affirmative defense of the MMA, a person must secure a physician's statement prior to one's arrest for marijuana possession.  Makes sense, don't you think...

The High Court reversed the Court of Appeals in King, holding that the MMA sets forth two separate defenses: one is the affirmative defense while the other is a broader immunity to prosecution.  A defendant charged with possession may assert the affirmative defense, even if that defendant has not yet obtained a medical marijuana registration card.  In order to secure a complete immunity from prosecution, however, an accused must have been issued said registration card and otherwise be in compliance with all the requirements of section 4 of the MMA.

The decision is also notable in that it affirmed the intermediate appellate court's decision in Kolanek to the extent that a defendant must have secured a physician's statement prior to asserting the affirmative defense provided for in the MMA.

The local blogosphere has hailed the Kolanek Court as a victory for medical marijuana users.  The decision will be cited in support of the following tenets within the medical marijuana jurisprudence:

• The MMA provides for two separate and distinct protections from marijuana prosecution: an affirmative defense available to assert to a jury for accused persons that have received a physician's statement that marijuana is therapeutic treatment of a chronic condition and a broader immunity from prosecution for those issued a registration card; 
• The decision affirms the MMA's definition of the legal, albeit limited use of marijuana; 
• The immunity set forth in section 4 of the MMA is broadly construed; 
• Interpretations of the MMA must give effect to the intent of the electorate through the passage of the medical marijuana initiative.

This may not be the end of the medical marijuana cases.  The issues of cash pot transactions and inter-patient transfers are winding through the court system.

For now, however, at least defense attorneys can get down to the business of asserting the affirmative defense on behalf of their clients, as provided by the express language of the MMA, and not have this tool removed from the shed by over-zealous prosecutors and wrong-headed jurists.

Folks, as always, the best way to get a marijuana possession charge dismissed is to carefully comply with the requirements of the MMA, and obtain your registration card before you purchase, grow, or possess marijuana.  After your registration card has been issued by the State of Michigan, be sure to stay within the strict limits of the Act.

Good luck out there.

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Yes, the ballot proposal writers hired by our pot lobby handed criminal defense lawyers a gift-horse when they wrote-up the Michigan Medical Marijuana Act.  Just how are folks supposed to get their marijuana anyway?

A 3-judge panel of the Michigan Court of Appeals has reversed an Isabella County Circuit Judge that had denied the county prosecutor's request for an injunction that would close down the local Compassion Apothecary; a medical marijuana dispensary.  After this decision, consider the Apothecary closed.

The sole issue decided in the case was whether the MMA provides for the "sale" of medical marijuana.  The Court of Appeals said, "no".  That was a foregone conclusion under any plain reading of the provisions of the Act.

Anyone reading the MMA will note that the referendum writers, in their wisdom, provided two ways for "patients" to obtain their, er, "medication".  Either you "grow your own", or you get your pot from a certified care provider who can only service 5 patients at a time with an overall limit to the total number of marijuana plants on the premises.  The MMA is silent, however, on dispensaries; nor does it provide for transfer by sale.

The Compassion Apothecary [BTW, even the name of this dispensary was illegal so they changed it to "CA"] is a membership-based collective designed to distribute a continuous supply of marijuana to certified patients.  The Apothecary  operates a locker system whereby patients and care providers pay monthly fees for both membership in the collective and use of a locker.

The CA is a "no grow" and "no smoke" facility.  Patients can inspect [see, smell and touch] a wide variety of marijuana strains prior to purchase.  The pot price is set by the care provider; the CA takes a 20% "service fee" on the transaction.

Sounds like an organic "win-win" right?  Wrong.  The collective ran afoul of the law, according to the Court of Appeals, as the MMA does not allow patient-to-patient sales or transfers.  Also, the Court held that the CA illegally "possessed" the marijuana under both the Public Health Code, and the MMA.

Accordingly, the Court of Appeals concluded that the CA could be shut down on the basis it was a "public nuisance" as contended by the Isabella County Prosecutor.  Case closed; the CA dispensary, and all others like it, are out of business by operation of this published, thus binding, decision of the Court of Appeals.

While the CA huddles with its attorneys to decide whether to take further appeal to the Michigan Supreme Court, Michigan Attorney General Bill Schuette applauded the decision as a much needed patch on a law that "has more holes than Swiss Cheese."   AG Schuette told the Detroit News that the MMA has been "hijacked" by folks looking to profit from pot sales and by unscrupulous doctors issuing bogus patient certifications.

This blog has long-held the view that the MMA is a poor law.  The Act does not square with the reality that many qualified "patients", perhaps even a majority, once endorsed by Michigan's DCH, smoke pot recreationally, not medicinally.

Some "On-the-Take" physicians conduct cursory reviews of an applicants' medical records in their assessment of a claimed chronic or debilitating medical condition, as required under the Act.  Schuette is looking to criminalize bogus physician certifications.  We're certainly behind that legislative initiative; good luck Bill.

Whenever a law is based on a fiction, as this one is, our jurisprudence suffers.  As AG Schuette correctly points out, too many folks are equating legalization of marijuana with the medicinal use of marijuana.  In this decision, the Court of Appeals removes this stubborn disconnect.

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For some time, this blog has been tracking the various twists and turns of the Michigan Medical Marijuana Act.  Every week, there has been something new on this topic.

This week, it was a Dearborn district court judge declaring the entire MMA unconstitutional on federal preemption grounds.  Judge Mark Somers invoked the doctrine of federal preemption and the supremacy clause in denying defendant's motion to dismiss in People v Brandon. He caught headlines by ruling that the MMA conflicted with an area controlled by federal law.

This week also gave us a rare "about face" from the Court of Appeals on the issue of video taping oral arguments in a seminal marijuana case.  A journalist, Eric VanDussen, sued the Court of Appeals upon being denied access to record the oral arguments in the People v Anderson case.  The High Court remanded the case back to the COA, mandating that the intermediate appellate court, "articulate the reason why 'the fair administration of justice' warrants the denial of [VanDussen's] request to film oral argument on May 10, 2011. 

As a result of the Supreme Court's order, the COA decided to let the cameras roll.  What's the "over-under" on how long (as in minutes) it will take for the video of the Anderson arguments to make it to YouTube.  I'm thinking five minutes.  [As promised, here is the link.  Note: it appears that the link has been disabled.]

Last month, a seminar on the MMA scheduled to be conducted in a privately owned horticultural store in Highland Township was cancelled on short notice on grounds the township clerk alerted organizers that it would vigorously enforce their pot growing ordinance.  In Highland, like many other townships, an ordinance imposes a moratorium on the growth, sale or dispensation of marijuana.

Also last month, a Saginaw physician, Dr. Ruth Buck, was indicted on federal charges of aiding and abetting in the distribution of marijuana, a Schedule I drug.  The suit questions Dr. Buck's due diligence relative to her examination into her patients' so-called chronic illnesses, as required under the Act.

In addition to the Anderson case, soon to be decided by the Court of Appeals, the Redden case, pending before the Supreme Court, is destined to be the seminal case on this subject for some time.  Last month, Attorney General Bill Schuette filed an amicus brief in the Redden case.

We will have our answers soon on the question of whether the MMA has the legs to stick around to authorize the palliative use of marijuana; or whether the act will go up in smoke as a failed piece of legislation, torn apart via ordinance and the common law.

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Michigan Attorney General Bill Schuette has filed amicus briefs in two medical marijuana cases pending in Michigan appellate courts; one case is from Oakland County, the other from Isabella County.

The Oakland County case, the well-known People v Redden debacle, involved whether an unregistered marijuana user could nevertheless assert the defenses set forth in the Medical Marijuana Act. That case is pending before the Michigan Supreme Court.

In the AG's Redden brief, the assertion is that only qualified patients may avail themselves of the statutory defenses set forth in the MMA. The Court of Appeals held otherwise.

The case from Isabella County tests whether anyone can earn a profit from their pot-growing efforts.

We will monitor each of these cases and report back to our readers.

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