43rd District Court Judge Robert Turner says it is one of the worst pieces of legislation he has ever seen.  He made that assessment of the Michigan Medical Marijuana Act (MMA) back in June 2009 when dismissing pot growing charges brought by the Oakland County Prosecutor against Robert Lee Redden and Torey Alison Clark.

Last week, the Michigan Court of Appeals affirmed Oakland Circuit Court Judge Martha Anderson's reinstatement of the criminal charges against Redden and Clark.  Now, the accused Madison Heights couple will either have to plead or go to trial.

At the time of the raid on the couple's residence, the Oakland County Sheriff seized 1.5 ounces of pot, some nominal cash, and about 21 small plants.  Three weeks prior to the raid, each defendant had submitted to a medical certification exam with Dr. Eric Eisenbud (not making it up) of Colorado (and of the recently founded Hemp and Cannabis Foundation Medical Clinic) and applied for a medical marijuana card pursuant to the MMA.  Their cards, however, had not been issued at the time of the raid.

At the couple's preliminary examination before Judge Turner, the prosecutor argued that: a) the defendants were required to abstain from "medicating" with marijuana while their applications to the State of Michigan's Department of Community Health were pending; and b) the defendants did not have a bona fide physician-patient relationship with Dr. Eisenbud.

Judge Turner indicated that the MMA was confusing relative to what constituted a reasonable amount of marijuana.  The defendants in this case were found with an ounce and a half; the MMA allows 2.5 ounces.

Judge Turner made the following ruling:

For that reason, I believe that section 8 entitles the defendants to a dismissal, even though they did not possess the valid medical card, because section 8 says if they can show the fact that a doctor believed that they were likely to receive a therapeutic benefit, and this doctor testified to that.  And Dr. Eisenbud is a physician licensed by the State of Michigan.  And that’s the only requirement that the statute has.  You don’t have to be any type of physician, you just have to be a licensed physician by the State of Michgan.

So, based on that, I find section 8 does apply.  And I believe I’m obligated to dismiss this matter based on section 8 of the statute.

 Under the applicable court rules, the prosecutor appealed the district court dismissal to the Oakland Circuit Court.  In reversing her district court counter-part, Judge Anderson held that Judge Turner improperly acted as a finder of fact in dismissing the case.  Judge Anderson also questioned whether the couple could avail themselves of the MMA's affirmative defenses at all, due to their purported failures to comply with the provisions of the act; i.e. keeping the pot segregated and locked-up, and waiting until they received their cards from the Department of Community Health prior to growing their pot.

At the time of the Madison Heights bust, however, the couple could not have received marijuana cards because the DCH had not started issuing the cards.  To date, almost 30,000 certifications have been issued.

In their opinion last week affirming Judge Anderson, the Court of Appeals held that the MMA's affirmative defenses were available to defendants even though they did not have their cards at the time their pot was confiscated.  The Court of Appeals held against defendants, however, on the basis that, at the time of their preliminary examination in district court, their affirmative defense under the MMA was incomplete and thus created fact questions.

The Court found the following fact issues to be unresolved at the conclusion of the exam: the bona fides of the physician-patient relationship; whether the amount of marijuana found in the residence was "reasonable" under the Act; and whether the marijuana was being used by defendants for palliative purposes, as required by the Act.

The most interesting thing about the Court of Appeals' Redden decision is the scathing concurring opinion of Judge Peter D. O'Connell.  Judge O'Connell wrote separately because he would have more narrowly tailored the affirmative defenses available in the MMA, and because he wished to "elaborate" on some of the general discussion of the Act set forth in the briefs and at oral argument.

Elaborate he did.  Judge O'Connell's 30-page opinion first notes that the possession, distribution and manufacture of marijuana remains a federal crime and further notes that Congress has expressly found the plant to have "no acceptable medical uses."

In what will undoubtedly become a classic line from his opinion, Judge O'Connell writes, "I will attempt to cut through the haze surrounding this legislation."  The judge is skeptical that folks are really using pot to "medicate" and suspects that they are using the plant for recreational purposes.

He also takes note of the poor quality of the legislation to the extent that it conflicts with other provisions set forth in the Health Code.

Judge O'Connell next takes a tour de force through the legislative history of the MMA.  Here, we learn that the act was based on model legislation proposed by lobbyists known as the Marijuana Policy Project of Washington D.C.  The group advances both the medicinal and recreational uses of marijuana.

"Confusion", and lots of it, is how Judge O'Connell views the MMA.  In one of the many footnotes to his opinion, the Judge warns against all marijuana use until the score is settled, once and for all, by the Michigan Supreme Court:

Until our Supreme Court provides a final comprehensive interpretation of this act, it would be prudent for the citizens of this state to avoid all use of marijuana if they do not wish to risk violating state law.  I again issue a stern warning to all: please do not attempt to interpret this act on your own. Reading this act is similar to participating in the Triwizard Tournament described in Harry Potter and the Goblet of Fire: the maze that is this statute is so complex that the final result will only be known once the Supreme Court has had an opportunity to review and remove the haze from this act.

Euan Abercrombie, 1st year student at the Hogwarts school would probably remark; "Wow".

For their part, the criminal defense bar, commenting via listserv, have basically gone wild over the concurring opinion, with its multiple web site references and pictures of marijuana advertisements.  The consensus among the defense bar, however, is that the majority opinion is correct and that Judge Anderson, at the end of the day, got it right; Redden was not the cleanest case to dismiss under the Act.

Finally, it seems that the Oakland County Sheriff and Prosecutor correctly anticipated last week's Court of Appeals' decision.  A few weeks prior to the issuance of the Redden decision, they conducted a series of dispensary raids, ruffling tons of feathers along the way.

For some preliminary guidance, we have prepared a legal guide for the MMA for those seeking to use marijuana for legitimate palliative purposes under the Act.  Take note, however, that at least one appellate jurist would have folks managing chronic "pain" with prescription meds until the medical marijuana mess is sorted out by our Supreme Court.

April 2011 Update:  As we've warned our readers, and as Judge O'Connell warned in his opinion, marijuana possession remains a federal crime.  This week, the feds raided a warehouse-style dispensary in Commerce Township.  The law enforcement action is covered in this article in the Oakland Press.

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