Of the 33 states that have passed some form of lenient marijuana-use legislation, 10 of those, most recently Michigan, have legalized marijuana for recreational use. The District of Colombia is also in both groups of states.

In Michigan, beginning next month, persons over 21-years of age may purchase,possess and use recreational-use marijuana. The era of prohibition, although not over, is deteriorating rapidly.

Coincidentally, one of the collateral consequences of President Trump’s brusque dismissal of Attorney General Jeff Sessions last week removes from the USDOJ -at least temporarily- an outspoken opponent of pot legalization. In the "old days" of the Obama Administration, the USDOJ's official policy was set forth in the so-called Cole Memo where United States Attorneys were instructed not to pursue federal prosecutions for marijuana possession in states that had some form of lenient marijuana legislation.

Mind you, having just returned from California last week [a state that is a half-decade ahead of Michigan relative to dispensing product] this is not your father’s marijuana; the products are diverse, potent, cheaply and locally produced.

Michiganders must keep in mind that, despite the new recreational marijuana law, it still remains illegal: a) at the federal “Schedule 1” level; b) to smoke marijuana in public places; and c) to drive under the influence of active THC in your bloodstream.

Highlights of Recreational Use of Marijuana

The new recreational marijuana law allows:

• Persons 21 and older to purchase, possess and use up to a dozen plants;
• Keep up to 2.5 ounces of marijuana in a locked container at one’s residence;
• The promulgation of regulations for all aspects of the marijuana business [i.e. growth, testing, dispensing, and transportation];
• Commercial sales of marijuana-infused products via state-licensed dispensaries; and
• Municipalities to promulgate ordinances to ban, restrict or otherwise regulate the distribution of marijuana.

Content has exploded across the local press with all sorts of useful tips on how to ride the recreational pot wave. Here are examples from the Freep [which even went so far as publishing a handy stoner's glossary of sorts] and the Detroit News.

Here Come the Regulations

If the regulations accompanying last year’s expansion of medical marijuana licenses are any example, you can expect similar recreational-use state regulations and local ordinances that: a) favor heavily-capitalized producers; b) segregate different phases of the process [i.e. testing, growth, dispensary and transport]; and c) tax the hell out of the still-cash-only revenue stream; a very healthy revenue stream predicted to be on the par with liquor and tobacco combined.

If Colorado, California and the State of Washington are comparable examples, Michigan can expect well-run, fun stores that adopt the Apple mode of retailing their in-demand products. It’s as if a “50-Shades of Grey” mentality has taken over the populace now that these goods are so smartly distributed at the retail level. Just as you can browse for a fine –and expensive- cigar in a smoke-friendly cigar store environment, you can now browse the isles and wall display units for a $25 doobie. With taxes, you’ll part with nearly $30 for a high-quality joint.

Michigan’s Department of Licensing and Regulatory Affairs [LARA] seems proactively positioned to utilize what our state government has learned from the medical marijuana regulations for this next quantum leap. LARA certainly recognizes the revenue potential to such the cash crop that is marijuana, whether medicinal or recreational.

Expungement of Prior Marijuana Convictions

Now that both medical and recreational use of marijuana are legal in Michigan, some county circuit court judges may favorably consider petitions to remove marijuana-based convictions from a person’s criminal record. Currently, the state legislature has a bill pending to require judges to consider such expungements. Also, governor-elect Gretchen Whitmer has already indicated her willingness to utilize her clemency powers to expunge low-level marijuana-based convictions and remove scores of inmates doing prison time for such offenses.

Here is a link to the Law Blogger post detailing how a twice-convicted marijuana possessor and distributor is serving a life-sentence in Missouri.

This must come as good news to the 3600 marijuana-based felons and the nearly 50,000 people convicted of marijuana-related misdemeanors over the past 5-years.

Getting Off Schedule 1

Getting off Schedule 1 will be complicated. There will have to be a Democratic majority in both houses of Congress for the stars to align for this prospect. Some Republican legislators acknowledge the job-growth and tax revenue attributes to a strong marijuana industry. So far, however, the political will to make this happen has not been exhibited.

Complications, no doubt, arise in the context of the war on drugs which has its roots back to the 1971 Controlled Substance Act which listed marijuana on Schedule 1 in the first place. In the decades since, many of the United States' multilateral treaties have marijuana prohibition as one of its central policy planks. A few referendums spread across a few states are not -yet- strong enough to derail these long-standing treaties.

Yes, it is very complex. To the North, Canada has legalized marijuana across all nine of her provinces. In Central and South America, to our South, multilateral treaties have provided the framework for the decades-long war on drugs, with military style interdiction of drug manufactures and couriers.

Until marijuana is off schedule 1, the industry has certain distinct risks. For example, do not look for marijuana-based business transactions to be conducted within banks for the next half-decade or so. Same for insurance.

Therefore, in the short term, marijuana will continue to be a strictly-cash business. This will slow down its growth. Some people don't think this is a bad thing.

We Can Help

Marijuana prohibition is a thing of the past. The new law in Michigan, and the general decriminalization process, will create some interesting opportunities for those individuals who have been burned by now-outdated laws.

If you or someone you know has a marijuana-based conviction, simply click on the link below and give our office a call to schedule a free consultation to assess your options under the new landscape.

Post #621
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For the past 10-years, the marijuana legalization process has gained traction in the United States and other Western countries. Canada and California went legal last week; 8 states have legalized recreational use of marijuana; another 20 states have legalized medical marijuana.

Yesterday, however, the other shoe fell in Washington D.C., with the United States Attorney General reversing USDOJ policy and instructing United States Attorneys to begin prosecuting marijuana violations of the Controlled Substance Act. Attorney General Jeff Sessions' policy statement rescinds the Obama-era Cole memo; a memo that included a series of enforcement directives designed to leave policing marijuana dispensaries to the individual states.

AG Sessions' personal animus against pot is well known. He has gone on record saying that marijuana users are "not good people".

Sessions' pronouncement sends a fledgling billion dollar industry into an era of uncertainty. For the past decade, banks, insurance companies and capital investors took baby-steps into the massive marijuana industry; an industry that, until the past decade, operated solely within the Wild West of the black market.

This policy shift will chill the macro moves of the major industry players. The combined markets of California and Washington, both recreational use states, were expected to eclipse the revenue of the alcohol industry. That's some big money folks.

And because it's such big money, you can bet some of the money will be spent to deploy lobbyists in a full-court-press on Congress to, once-and-for-all, remove marijuana from Schedule 1 of the Controlled Substance Act. We here at the Law Blogger are not holding our breath, as this has been tried before, and the efforts, of both lobbyists and litigants, have failed.

Unfortunately for the marijuana industry, Congress' attitude toward marijuana seems influenced by the hubris of a failed 30-year "war on drugs" that involves a series of mutual prohibition treaties with many of our trading partners to the South. This attitude does not take into account that the ganja smuggler is a thing of the past; today high-quality pot is produced in a 2x2 closet with a grow lamp and some TLC.

Seriously, it is now time to end marijuana prohibition. Marijuana should be removed from Schedule 1 and placed into its own category; a category most-closely related to alcohol. Yes there are problems, health and otherwise, that arise from chronic marijuana use.

Prohibition, however, is not the answer. Regulate the weed; tax the revenue generated from weed; just stop the prohibition of the weed.

Post Script: Some U.S. Attorneys have made ominous statements promising aggressive prosecution for pot distributors, Massachusetts, while others, Colorado, have said they will not prosecute federal marijuana cases.

Post #613
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While the federal government turns its back on recreational marijuana, Michigan is prepared to blow the lid off medical marijuana production and dispensation. Government's relationship to the plant continues to evolve.

This blogger recalls when medical and recreational marijuana laws began to sweep the country nearly ten years ago. Back then, a key USDOJ memorandum indicated that President Obama's Attorney General directed the corps of United States Attorneys not to devote resources to marijuana prosecutions in states that legalized the controlled substance for either medical or recreational use.

The Trump Administration, especially through Attorney General Jeff Sessions, has signaled an end to the hands-off approach of its predecessor relative to recreational use of marijuana. This poses a huge roadblock to continued industry growth.

In Detroit, only two of over two hundred applications to operate medical marijuana "centers" were recently approved. The City has taken rigorous actions to shut down the unlicensed -and heretofore thriving- dispensaries. One of our clients reported that a cease and desist letter was tacked onto the door of his shop last month.

Meanwhile, just across the Detroit River, Canada is considering nation-wide legalization in all 9 of its provinces. This is the equivalent of removing marijuana from Schedule 1 of the Controlled Substance Act.

As an industry, marijuana is poised to explode as state laws across the nation are relaxed and as decriminalization takes place. In most medical and recreational use states, industrial warehouse space is suddenly in high demand as skilled growers seek adequate space to produce marijuana.

Some prospective licensees are willing to spend over a million dollars to re-purpose a warehouse for high-output marijuana production. Investors are tripping over each other to prepare for the rare state licensing opportunities that will unfold in December.

Just 8-months before taking applications for 500 and 1000-plant grow licenses and dispensaries, the State of Michigan is poised to earn millions in tax revenues from this relatively new industry. The state's Department of Licensing and Regulatory Affairs [LARA] is gearing up for the new license applicants this December, creating the Bureau of Medical Marijuana Regulation.

The problem for legitimate industry growth continues to be inclusion of marijuana on Schedule 1. As long as marijuana is illegal under the federal Controlled Substances Act, the banks and insurance companies, so vital to industry growth, will remain on the sidelines and marijuana will continue to be a predominantly cash-based industry.

This problem will not stop the artisans that have been growing high-quality marijuana over the past decade. Like craft beers, they will continue to produce a product for which demand seems high and insatiable.

If you need to explore your options regarding the acquisition of one of the several state licenses soon to be available from the State of Michigan, give our law firm a call to schedule a free consultation.

Post #588
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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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For the past 85-years, Dykema Gossett, one of Michigan's largest law firms, has developed a corporate and commercial transactional clientele. The firm's website touts serving clients in the automotive, energy, hospitality, gaming and financial sectors. 

Just over a month ago, Dykema announced the formation of its Cannabis Law Group. To form the group, the firm pulled together its lawyers with marijuana-related projects in the intellectual property, land use, zoning, tax and employment law sections.

Dykema's cannabis law group also sports its own blog on the firm's website. The posts are relevant and informative in this new and constantly changing area of the law.

While you would not necessarily pair one of Michigan's largest law firms with the marijuana industry, Dykema, in fact, has been in on the ground floor. The firm served as legal counsel to the lobbyist group that drafted our medical marijuana law back in 2008.

The firm's blog noted the failure of the "MI Legalize" effort to get on the 2016 ballot on the sole basis of deficient signatures; about 100,000 short.

Post #544

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In early November, I attended an excellent panel discussion on the topic of medical marijuana put on by the Oakland County Bar Association; the 1/2 day seminar addressed the topic from the perspective of medical marijuana card holders that desired to legally grow their businesses along with their pot. The panel had an all-star cast, including our friend, preeminent defense lawyer Neil Rockind.

At the conclusion of the presentation, Mr. Rockind told the packed room to be on the lookout for a big-news-splash coming soon on the topic of blood testing for marijuana. The following month, Rockind, along with two other well-known medical marijuana lawyers, filed a complaint with the U.S. Department of Justice's Office of Investigative & Forensic Sciences.

The primary thrust of this complaint accuses the Michigan State Police crime laboratory with negligence and, worse, intentional deceit. The complaint, in a 7-page letter to the DOJ forensic office's director, alleges that the lab is influenced by the state prosecutor's association in its method of reporting lab results such that a report that would normally support a misdemeanor charge [i.e. use of marijuana, or driving under the influence of drugs] is elevated to a felony [i.e. possession or manufacture of synthetic marijuana].

In doing so, Rockind characterizes the prosecutor's influence, in getting the lab to deviate from established scientific principles, as political; the crime lab has become politicized. The result is that a scientific lab now produces forensic reports that support a felony rather than a misdemeanor conviction.

Toward the end of the complaint, Rockind requests an audit by the DOJ's forensic office pursuant to General Accountability Office standards, as well as a Michigan State Police internal affairs investigation, apparently already underway.

If his allegations are proven, then it does give us grave concerns over here at the Law Blogger that forensic crime labs, tasked with getting to the scientific truths of a specific case, can be influenced in their reporting methods by a political organization like the prosecutor's association. We will certainly monitor this file as it moves through the DOJ.

Post #521

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In the wake of the decriminalization and outright state legalization(s) of marijuana, there are some inchoate legal conflicts brewing around office water coolers. While some "patients" here in Michigan can legally possess and use marijuana, it remains on Schedule 1 of the federal Controlled Substance Act.

Despite the continued federal illegality of marijuana, it is nevertheless an "employer beware" workplace environment here in Michigan. Some states [Illinois, Maine, Connecticut, and Rhode Island] have gone so far as to protect employees from workplace discrimination on the basis of their certified medical pot use; sounds like an employment lawyers dream [or nightmare] to us here at the Law Blogger.

Generally, however, state laws do not provide much guidance, especially to employers, regarding medical marijuana use. Some issues that are percolating:

• Can employers test for marijuana? 
• Can workers come to work high on medical marijuana?
• What if the job is highly skilled labor, or involves a safety component?
• If an employee is terminated due to marijuana-based "misconduct" is the employee entitled to unemployment benefits?

To date, the chief case to address the workplace marijuana issue is Coats v Dish Network from Colorado. The case involved a quadriplegic employee's use of medical marijuana. The state law prohibits an employer from firing an employee for participating in any "lawful activity".

The Coats court held that, because marijuana use is a violation of federal law, it does not afford the employee protection, even though Coats had a valid medical marijuana certification. The unfortunate aspect of the case is that Coats, as a quadriplegic in constant discomfort but nevertheless an excellent employee, was a poster-child for the legitimate use of medical marijuana.

Local employment lawyer Jason Shinn concludes that, because of its Schedule 1 status, Michigan employers do not need to accommodate pot-smoking employees. Shinn is aware, however, of a recent determination by the Michigan Unemployment Insurance Agency that a discharged medical marijuana employee was not disqualified from receiving unemployment benefits.

The question, however, is whether the medical marijuana eligibility determination was an Agency-wide policy determination, or a fluke. The UIA is not saying, at least not on its web site.

We here at this blog expect these workplace issues will arise with more frequency as marijuana become more acceptable in society as a whole. Despite is overall acceptance, the question remains: is there a place for marijuana in the workplace?

As an employer of lawyers and paralegals entrusted with peoples' lives, we say, "no".

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Post #514

The push toward global legalization of marijuana has taken a few lurching steps over the past month, especially here in the Americas. Two steps forward; one step back.

The Supreme Court in Mexico just ruled that 4 individual plaintiffs could legally grow marijuana for their personal use; but the ruling fell short of outright legalization in that country. Legal experts suspect that the ruling could initiate a trend, however, that would make the cultivation and distribution of marijuana legal in Mexico.

To the North, newly elected Canadian Prime Minister, Justin Trudeau, has promised to make the legalization of marijuana one of his primary parliamentary goals; medical use of marijuana is already legal across Canada.

Here in the United States, however, pot legalization continues to struggle. For example, a legalization initiative for recreational use lost in Ohio on Tuesday.

Among the dozens of presidential hopefuls in the 2016 campaign, only Senator Bernie Sanders has called for the removal of marijuana from Schedule 1 of the Controlled Substance Act. Until pot is removed from the Act, legalization really has not chance to succeed here in the U.S.

Complicating removal of marijuana from Schedule 1 are the numerous eradication treaties the U.S. has signed with Latin American countries; a legacy of our failed decades-long "war-on-drugs". That war, relative to marijuana cultivation, has truly failed.

Legalization in California would move the needle significantly. Although the legalization measure on the Cali ballot failed in 2014, it will be on the ballot again in 2016.

In Michigan, two legalization initiatives are currently working their way onto the ballot for 2016. This choice could harm the legalization effort as voters attempt to sort their way through two separate complex proposals.

Our appellate courts have issued over a dozen published opinions interpreting the Michigan Medical Marijuana Act.

 Ever since its prohibition in the 1920s, the movement for legalization has been slow and painful. Also, there continues to be legitimate debate about the true palliative features of marijuana.

Sometimes, the justification for legalization simply comes down to the argument that it is less harmful than alcohol; alcohol is legal, ergo, marijuana also should be legal. This may not be good enough for the legislatures and the electorates called upon to vote on legalization measures.

Only time will tell...

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Post #505

Unlike the United States Supreme Court, our Michigan Supreme Court stays focused and working through the summer. Accordingly, yesterday it released decisions in the remaining two cases from the trio of medical marijuana cases arising here in Oakland County.

The cases involved pot manufacturing, delivery and possession charges brought against Richard Lee Hartwick and Robert Tuttle.  Both defendants asserted the immunity and affirmative defenses that are set forth in the Michigan Medical Marijuana Act.

Right out of the box, Justice Brian Zahra, writing for a unanimous court, noted the distinction in how the MMA came into being compared to most other laws.  As a voter-based initiative, the MMA was not drafted by legislators with the assistance of the bipartisan legislative council and its staff.  No, the pot law was drafted by the national pot lobby, without a review for, "content, meaning, readability and consistency".

Perhaps because of the manner it was drafted, the MMA has been a highly litigated piece of legislation since its passage in 2008.  There are more than a dozen published Court of Appeals decisions attempting to make sense of the Act; the Michigan Supreme Court has addressed the Act in 9 separate cases.

The Supreme Court remanded both cases back to the Oakland County Circuit Court for new evidentiary hearings to determine whether the accused in each case is entitled to the immunity from prosecution set forth in section 4 of the Act. The High Court affirmed that neither defendant was entitled to assert the affirmative defenses contained at section 8 of the Act.

Upon remand, the Supreme Court crafted a 4-part test to be used by the trial court in assessing whether an accused has complied with the Act. An accused now has the burden to demonstrate through a preponderance of evidence:

• he has a valid medical marijuana card;
• he has kept the amount of marijuana within the limits mandated in the Act [i.e. 12-plants per patient and 2 ounces for personal use];
• all plants were kept in a closed locked facility; and
• he was participating in the medical use of marijuana.

What this tells us here at the Law Blogger is that, unless these guys followed the MMA grow, housing, and storage requirements to the tee, they are doomed for conviction. For our part, we've always been concerned that the sheriff and the courts do not understand how pot is grown and what constitutes "smokable marijuana".

A fresh-cut plant, for example, contains water weight and stem wood; none of it is smokable.  Fast forward several weeks, when the plant is dried and detached from its stem, and it is smokable and weighs less.

How will the sheriff weigh the collieweed, mon?  This is the question that will likely play out at the evidentiary hearings ordered by Justice Zahra and the High Court.

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Justice Richard Bernstein

Yesterday, the Michigan Supreme Court, in one of Justice Richard Bernstein's first opinions, held that when a husband-wife medical marijuana operation is not conducted in strict accord with the Medical Marijuana Act, the wife, whose role was limited to assisting with the harvest schedule, is not afforded immunity under the MMA. So let's break that down.

In the case, People v Cynthia Mazur, Oakland County Circuit Judge Colleen O'Brien denied defendant's request for immunity under the act because the grow operation conducted within the marital home was not in accord with the provisions of the MMA. Ms Mazur's role in the operation was limited to writing-out the harvest schedule of the pot plants on sticky notes.

Defendant's husband was both a registered marijuana patient as well as a care-provider. Ms. Mazur, however, was neither.

She appealed the trial court's denial of her request for immunity, but the Michigan Court of Appeals affirmed Judge O'Brien's ruling. The Supreme Court agreed to take a look.

In its opinion, the High Court left the door open for the defendant, however, by ruling that her sticky notes detailing harvest dates constituted supplying hubby with "marijuana paraphernalia" as that phrase is defined in the act. Accordingly, Justice Bernstein's opinion concluded that if these sticky notes were the prosecutor's only evidence, then the charges against Mazur had to be dismissed; the prosecutor could, however, rely on other evidence to secure a conviction, the Court held.

This case is the first of a triad of pot cases from the Oakland County Circuit Court to result in an opinion from the Michigan Supreme Court. Decisions in the two remaining cases are expected within the next few weeks as the High Court prepares to end its 2014-2015 term.

One of the take-aways from this case is that spouses of registered patients may avail themselves of the immunity of the MMA, even if they are not registered care providers or patients, if the operation is conducted in strict accord with the act.  If the operation is rogue or being conducted outside compliance with the MMA, then criminal liability can attach to the non-registered spouse.  

Here at the Law Blogger, we will continue to monitor the evolution of this pot jurisprudence. Stay tuned.

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Last week, the Michigan Court of Appeals reversed the felony marijuana manufacturing conviction of a Tuscola County man based on how the 68 pot plants seized from his warehouse were weighed by the Sheriff. The defendant in the case had a valid medical marijuana card.

The Sheriff deputy testified probable cause was obtained based on the pot smell coming off the building and from the numerous pot plants that were visible by looking into the windows of the warehouse.  All the plants were seized and Johnny Randall was charged with manufacturing marijuana, a felony.

In his defense, Randall moved to dismiss the charges under the immunity section of the Medical Marijuana Act; he asserted that he was a care provider for 5 individuals [the maximum under the Act] and was a certified "patient" himself.  The trial judge wasn't having it at Randall's bench trial, denied the motion to dismiss, convicted the defendant, and sentenced him to 180-days jail, held in abeyance pending an appeal.

This is not just another pot case on appeal.  This case featured a detailed analysis of how pot plants are counted and weighed within the context of the criminal manufacture statute and the Medical Marijuana Act.

Randall's was a full-on hydroponic marijuana manufacturing operation which included dozens of plants in various stages of the process. This included drying plants and others in the mid-growth cycle.

At his bench trial, the deputy sheriff testified that some of the seized plants were dried; other plants were still maturing.  The sheriff pulled out the live plants and left them out to dry before sealing them up in an evidence bag to be used in Randall's trial.

The Court of Appeals held that only the dried marijuana leaves are to be considered the "usable" portion of the plant and thus, still growing plants and the "incidental" seeds, stalks, and unusable roots cannot be counted against the caregiver-patient.

Under this interpretation of the Medical Marijuana Act, Randall was well-below his 15-ounce weight limit as a caregiver for himself and 5 other individuals. His conviction was therefore dismissed and his sentence was vacated.

These and other aspects of the immunity provision contained in the Medical Marijuana Act were recently argued before the Michigan Supreme Court in three consolidated cases from Oakland County; a decision is expected later this spring.

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Tomorrow's election will once again feature a variety of marijuana-based initiatives, across both Oakland County and the nation.  Medical marijuana, legalization and decriminalization are all on the ballot.

Closest to home, Berkley and Huntington Woods have proposals that would legalize the use, possession and transfer of less than one ounce of marijuana on private property.  This type of local ordinance already passed in Oak Park, Ferndale and Detroit in previous elections.

Just down the road in Pleasant Ridge, voters will have the choice tomorrow to decriminalize the same conduct [use, possession, and transfer of less than an ounce].  This means that possession of a small amount of marijuana will result only in a small fine.

Across the nation, Florida has a medical marijuana proposal on its state-wide ballot which, if passed, will put states that do not have medical marijuana laws in the minority.  Meanwhile legalization initiatives are on the ballot in Alaska, Oregon, and the District of Colombia; these states could join Colorado and Washington in the legalization of recreational use.

In New York, while nothing is on the ballot tomorrow, last July, Governor Cuomo passed the Compassionate Care Act, authorizing the NY Department of Health to promulgate regulations for the dispensation of medical pot.  Folks in Gotham are scrambling for position in the high-stakes, tightly-regulated medical marijuana industry.  While significant revenues are a certainty for the lucky few selected to join the New York pot industry, entry onto the playing field may cost seven figures [for the application].

Amazing how fast the legal landscape sometimes changes.  New York's marijuana laws have long been the toughest in the nation until last summer.  And after tomorrow, the streets of our capital may start displaying the green leaf of marijuana dispensaries.

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On the last day of the month, the Colorado Supreme Court will hear oral argument on a wrongful termination case pitting legal medical marijuana use against an employer's right to regulate its work environment.  A wheelchair-bound Dish Network employee, disabled since age 16 from a serious car accident, filed suit against his former employer challenging his termination for failing a drug screen; the man used marijuana in the evenings to control his regular painful spasms.

The case highlights how, even as marijuana has gained legal ground and wide-spread acceptance across the country, it continues to pose a tricky policy obstacle to a drug-fee work place.  Contemporary ads for employment in Colorado and Washington, where recreational marijuana use is legalized, routinely warn of companies' zero-tolerance policy.

Basically, it's: "do not bother to apply if you use marijuana."  This Dish Network case tests the legality of that policy.

Employers, like this Blogger, see the advantage of a drug-free workplace: more focus on the job [who wants a stoned workforce]; a safer work environment; and, in some cases, compliance with state and federal laws in order to obtain government contracts.  On the other hand, Brandon Coats, the plaintiff in the Colorado case, argues persuasively that a person can drink to obliteration every night and, so long as they show-up for work the following day, they will not be fired on the basis of a positive alcohol screen.

This case, and the other marijuana employment cases, also highlight the persistent conflict of law issue that begs resolution: despite 23 states legalizing medical marijuana use, and two states legalizing its recreational use, marijuana remains a Schedule I controlled substance under the federal Controlled Substance Act.

Therein lies the cover that the Colorado Court of Appeals used in affirming the trial court's summary dismissal of Mr Coats' case.  The Court of Appeals held:

Thus, forbidding a Colorado employer from terminating an employee for federally prohibited off-the-job activity is of sufficient policy import that we cannot infer, from plain statutory language to the contrary and silence in the legislative discussions, the legislative intent to do just that.

Moreover, a review of Colorado statutes shows that if the legislature had wanted to insulate employees from discharge for off-the-job activities illegal only under federal law, it knew how to do so.

Long ago, Congress placed marijuana in the same category as cocaine, heroin and opiates: the dreaded Schedule I [i.e. no known medicinal value, with significant potential to harm].  In more recent times, SCOTUS held in 2005 that state marijuana laws [California] did not circumvent the federal prohibition.

Over here at the Law Blogger, we are not going to hold our breath until Congress removes marijuana from Schedule I, as that day will probably not come within the lifetime of anyone now living.

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Great Grandfather
and Lifer Jeff Mizanskey

Missouri, like several other states, has a three strikes and you're out law.  That means on your third offense, the sentence is life without parole.

In the case of Jeff Mizanskey, all three of his convictions involved possession and distribution of marijuana.  In 1996, he was sentenced by a circuit court judge in Missouri on his last case -possession of 7-pounds of pot- to life without parole; the bullet, as we say in the industry.

Now, approaching two decades later, even the prosecutor who put him away is calling for his release.  As applied to Mizanskey, when Missouri's 3-strikes law is predicated on all-marijuana convictions, his life sentence does not seem fair.

Much of the perception of unfairness in Mizanskey's case stems from the evolution of our marijuana laws.  With two states legalizing recreational use and nearly half the other states, including Missouri, legalizing medical marijuana, a pot-related life sentence takes on a draconian flavor.

On the other hand, as my prosecutor friends would point out, this is the law that the Missouri legislature put on the books; federal sentencing guidelines are also very harsh.  When the legislatures pass the laws, there should be an obligation to follow them; typically, sentencing judges do.

Yet some sentences are so harsh, their inherent unfairness forces change.  This happened in Michigan to the so-called drug lifer laws of the 1980s.  Governor John Engler not only signed a law nullifying the drug lifer laws, the nullification included retroactive application to all inmates sentenced under the revoked law, making each lifer eligible for parole.

In Mizanskey's case, there is momentum for Missouri Governor Jay Nixon to grant his clemency petition.  There are believed to be approximately 20 people sentenced to life terms for marijuana-related convictions.

As the legalization of marijuana unfolds over time across our nation, these individuals stand-out as markers of a failed prohibition policy.  Following the letter of the law vs doing what is right under the circumstances is an age old struggle in our free society governed by laws.

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With its power of the purse, Congress passed a vote today, 219-189, to cease funding the Justice Department, and the DEA within it, for enforcement efforts to shutter legal medical marijuana dispensaries, caregivers, and other types of legal marijuana growers.  This vote is consistent with Attorney General Eric Holder's pronouncements, issued earlier this year via a series of inter-office memos, that the DOJ was no longer prosecuting medical marijuana producers.

As we here at the Law Blogger announce this arguably historic vote from a few hours ago, it is important to keep in mind that marijuana continues to be listed on Schedule 1 of the federal Controlled Substance Act.  As we have opined in various posts to this blog, until it is truly legalized and removed from Schedule 1, pot will continue to be a grow-your-own fringe industry serving a largely homeopathic self-medicating population.

In other words, it may not live up to its true corporate potential.  Billions of dollars of inexhaustible demand await, that's for sure.  Taxes, regulation, banking with it's compliance laws, insurance with its compliance laws; everybody's happy in the professional world.

But the hippy farmers and the Latin American drug cartels would be out if marijuana were struck from Schedule 1.  Nevertheless, this vote could be the next step in what some see as the inevitable political process of decriminalizing and, eventually, legalizing marijuana.

Well, we shall see what happens next.  But this vote sure makes former DEA agent Patrick Moen, whom we blogged about last week, look like a genius.

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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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Last week was an interesting one from a medical marijuana perspective here in Michigan.  First, the Michigan Supreme Court ruled that townships and municipalities could not ban medical marijuana with local ordinances.  Across town at the capitol, however, the bill proposing medical marijuana dispensaries is stuck in committee.

The Michigan Supreme Court held that the Michigan Medical Marijuana Act was not preempted by the federal Controlled Substances Act to the extent that a person could comply with the MMA and not violate the federal law.  The Court held, however, that the City of Wyoming's ordinance directly conflicted with the state law thus, it was invalid.

The ruling has immediate implications for Southeast Michigan where several local municipalities -Livonia, Bloomfield Hills, and Birmingham- have similar ordinances banning medical marijuana within their boarders; those ordinances are invalid.

In another development from early last week, a pair of bills pending in Lansing to allow communities to regulate medical marijuana dispensaries were assigned to the Government Operations Committee in the state senate under the chairmanship of Senator Randy Richardville [R Monroe] who is not a fan and who has vowed to put the brakes on the legislation.

This was a disappointing development for the medical pot lobby, encouraged last year by the bills swift passage in the state house.  On the other hand, Michigan Attorney General Bill Schuette has actively opposed the legislation and does not want to see a return of multiple dispensaries; Lansing had nearly 40 pot dispensaries at one time.

So, for the immediate future, dispensaries are disallowed in Michigan in favor of continuing the "grown-your-own" model expressly contemplated by the MMA.  We will monitor further developments.

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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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By: Timothy P. Flynn

Earlier this year, I was arguing a medical marijuana case before the Michigan Court of Appeals.  My case was probably about the 100th time a panel of our intermediate court of appeals had to address some facet of the Michigan Medical Marijuana Act over the past 5-years.

I could tell from the panel, which included Judge Christopher Murray, that the novelty of the MMA was wearing thin on the judges.  "Oh boy, here we go again; not another medical marijuana case."

Now, these cases are percolating up to the Michigan Supreme Court, which will be hearing arguments tomorrow on yet another medical marijuana case; this one with an interesting twist.  The case, Ter Beek v City of Wyoming, involves the legal challenge brought by a card-carrying pot smoker against his hometown for an ordinance that was passed in response to the MMA.

The challenged Wyoming ordinance subjects people to a violation for possessing marijuana on the basis of the federal prohibition of marijuana as a Schedule I drug, as set forth in the federal Controlled Substance Act. John Ter Beek, a qualified medical marijuana patient, challenged this ordinance in his law suit which seeks a declaratory judgment that the ordinance is invalid because it directly conflicts with state law: i.e. the Michigan Medical Marijuana Act.

The Court of Appeals struck down the Wyoming ordinance on the grounds the ordinance is preempted -swallowed whole- by the medical marijuana act.  In addressing the potential federal preemption of the Controlled Substance Act, the appellate court noted that Congress has traditionally left matters of public health and drug regulation to the police powers of the states.

Tomorrow's oral arguments before the Michigan Supreme Court should prove to be very interesting.  We here at the Law Blogger, having predicted back in 2009 that the MMA would be a great ride, will monitor this case and will post the MSC opinion as soon as it is made available sometime next spring.

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