Thoughts on the Carruthers Michigan Court of Appeals Opinion

It has taken some time to digest the Michigan Court of Appeals opinion in the Carruthers medical marihuana case published on July 11, 2013.  More than that, it has taken time to respond in a clear and measured manner, without calling names of people who have no apparent understanding, no common sense, and no respect for the will of the voters.

To start, it seems the whole case went badly when Defendant’s attorney at the time made the claim that the brownie medibles at issue were “not made from the ground up leaves [of marihuana]” but rather were made with “Cannabutter” containing THC extract.  Cannabutter is of course made from butter and cannabis leaves and/or flowers, both of which are defined as usable marihuana.  Where does the court think the cannabutter comes from, exactly?

Other erroneous “facts” accepted by the court include that “the evidence reflects that the amount of THC contained in a brownie cannot be measured…

Armed with this incorrect knowledge about medical marijuana, the court then took the opportunity to show their contempt and hostility for the voter-initiated Michigan Medical Marihuana Act by holding that the only “mixture or preparation” that falls within the definition of “usable marihuana” is a “mixture or preparation” of the “dried leaves and flowers of the marihuana plant.”  That would exclude resins, compounds, manufactures, salts, or other derivatives included in the general definition of marihuana.  

Here is the statute:
Sec. 7106.
(3) “Marihuana” means all parts of the plant Cannabis sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.
History: 1978, Act 368, Eff. Sept. 30, 1978 
Popular Name: Act 368
© 2009 Legislative Council, State of Michigan

The Court of Appeals then proceeded to vent their hostility with the Act by claiming that their narrow construction “provides an essential mechanism for implementing the voters’ desire to continue prosecutions for possession and use of marijuana in excess of that which is permitted for “medical use”.  They must have missed this statement in the findings of the Act, Section 2(b):

“…changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana.”

The Court of Appeals then continues a show of ignorance by stating that “Our interpretation also does not preclude the medical use of marijuana by ingestion of edibles; to the contrary, such use is authorized by the MMMA, within the statutory limitations, provided that the edible is a “mixture or preparation” of “the dried leaves and flowers of the marihuana plant,” rather than of the more potent THC that is extracted from marijuana resin.”  They hold that edibles made with THC extracted from marijuana resin are not “usable marihuana” under the MMMA.

This has the (hopefully) unintended consequence of hurting a large number of some of the patients who benefit most from potent cannabis preparations to reduce pain and help with other maladies.  The court says that edibles can be made only from dried leaves and flowers, and not their extract.  The goal of a good cannabis chef is to make an edible that is of a effective measured dosage, and that tastes good.  Edibles made without removing the plant matter containing chlorophyll makes it taste like eating a plant (and not a very tasty vegetable at that) rather than eating a brownie.  You might as well cook it up like kale, with a little seasoning, and eat it that way.  (That would work, but yuck).  Some patients barely can eat.  They need good tasting extracts and tinctures in order to be able to ingest the medicine, not chlorophyll.

So now the court goes on to say “…those brownies did not constitute “usable marihuana” under the statutory definition.  The parties agree, however, as do we, that the brownies did constitute “marihuana” under the statutory definition.”

So, while any product containing “resin” or an extract would be excluded from protection under Section 4 of the act (allowing a certain amount of usable marihuana), there still is the availability of arguing the affirmative defense in Section 8 where the Defendant can show that “The patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms…”

The most conservative interpretation (and therefore the safest for patients and caregivers) is to understand that the court has ruled that there is no marijuana, other than plants or usable marijuana lawfully possessed, which is legal under Section 4.  Accordingly, plants should be cut and kept whole until dry, and counted as a plant up to the time it is dryed (and typically put in glass jars).

In the long run, the truth eventually will win out and either this case will be overturned, or another case will supersede it.  For now, the court has provided law enforcement with a sword to harass the most needy patients.  Understand that while this case was remanded for a Section 8 hearing, the court stated: “This is not to say that establishing a section 8 defense under such circumstances would be an easy task; to the contrary, we suspect that the bar to establishing such a defense under those circumstances indeed would be a high one, and one that would become increasingly higher as the amount and/or potency of the marijuana possessed increases.

We hope the Michigan Supreme Court has an opportunity to hear and modify this hostile decision.  Even if that happens, it could take many months for a decision to be issued, if the case gets that far.  In the meantime, persons concerned with this issue should contact their State Representative and State Senator and let them know their concerns.

Michigan NORML supports both HB 4271 (the Provisioning Center Bill) and HB 4623 (Decriminalization of up to an ounce of marihuana).  HB 4271 would allow for edibles to be sold in provisioning centers (although possession of resin still would not be allowed under section 4 without other amendments.  HB 4623 would be a bigger step in the right direction, as it would bring state law in alignment with Ann Arbor and East Lansing ordinances (the two cities producing the greatest numbers of PhD’s in Michigan).

Both bills currently sit in the House Judiciary Committee, chaired by Kevin Cotter of Mt. Pleasant.  They need to move forward.

Looking out a bit further on the horizon, all three judges on the Court of Appeals who rendered the Carruthers decision stand for re-election in 2014.  They need to be defeated at the polls (preferably in the primary elections in August 2014).

The positives far outweigh the negatives when looking whether to legalize marijuana.  Prohibition creates crime. Legalize and regulate!

Copyright 2012 Matthew Abel, Cannabis Counsel, PLC, Executive Director of Michigan NORML

One comment

  1. Brian Richards

    Matthew, I love your spirit.

    Can I suggest a defense against the decision? Because the court blew it on the definition of “preparation.” They ignored dictionary definitions of the word “preparation” and created their own–without citing any reference or precedent.

    The COA decided that an extract of an extract could not be considered a preparation. In part because the THC content may be too high. But the standard and medical definitions of the word “preparation” clearly contradict their view of the meaning of “preparation.”

    American Heritage Dictionary: 4. A substance, such as a medicine, prepared for a particular purpose.
    Colliers English Dictionary: 4. (Medicine / Pharmacology) something that is prepared, esp a medicinal formulation.
    Oxford American Dictionary: 3. a substance that has been specially prepared for use as a medicine, cosmetic, etc. (ie,) a pharmaceutical preparation, (or) preparations for the hair and skin.

    So we know that a preparation is a medicinal formulation. Using language from the definitions, we can come up with this construction: The dried leaves and flowers of marijuana is substance that has been specially prepared for use as a medicine, or medical preparation (Canna Butter).

    But there is more.

    We can also see how the word “preparation” is used in the context of creating a modern medicine from the dried seeds and leaves of a common garden plant. The preparations in this case are commonly called digitalis and it is prepared from the dried leaves and seeds of the Foxglove plant (digitalis purpurea).

    Indeed, within the following definition of digitalis, we see the word “preparation” applied using language eerily similar to Section 4’s definition of usable marijuana:

    The American Heritage® Medical Dictionary: 2. A pharmaceutical prepared from the seeds and dried leaves of the purple foxglove, Digitalis purpurea, and prescribed as a cardiac stimulant in the treatment of congestive heart failure and other disorders of the heart.

    Without going into exact detail, the medicinal preparations derived from the digitalis include the process of extraction, where the extract is used in the formulation of a class of medicines called Digitalin. The different medicines in this class (preparations, per common definition) are all created from the extract and then additional formulations are needed to create the various medicines.

    This usage demonstrates that a preparation can include more than one distinct preparatory process. And that directly contradicts the court’s unsubstantiated claim that using a process after a process (extraction after an extraction) is not a preparation. We know standard, accepted definition and usage shows this is indeed a preparation, as described by Section 4(a),(b). And Section 4(a),(b) is exacting in declaring ANY preparation qualifies (no matter what the THC content).

    Finally, that leaves us with the term “thereof” The court says it points back to “dried leaves and flowers.” I agree. But the COA doesn’t tell us what “thereof” means. (Maybe it is a secret legal word that I don’t know). My collection of dictionaries tells me acceptable definitions of “thereof” include “from or out of that origin or cause.” and “from or because of that.”

    With these definitions we see that a preparation such as Canna Butter is created from an origin of dried leaves and flowers of the marihuana plant.

    There is no leeway in these definitions that would allow the COA’s conclusion that Canna Butter is not a preparation thereof the dried the flowers and leaves of the marijuana plant.

    The COA appears so blindly driven to their conclusion that they contradicted accepted definitions, and as a deliberative body, they deliberately withheld their reasoning for contradicting acceptable definitions of what constitutes a preparation as stated in Sections 4(a),(b).

    The Court’s blind reach also drove them to come to their conclusion regarding Sections 4(a),(b) without recognizing their interpretation creates a legal a paradox when read with Section 4(h):

    4(h) Any marihuana, marihuana paraphernalia, or licit property that is possessed, owned, or used in connection with the medical use of marihuana, as allowed under this act, or acts incidental to such use, shall not be seized or forfeited.

    This paragraph doesn’t include “usable marijuana” at all. In fact, using the court’s reasoning, it specifically omits it! Apparently marijuana, outside the Court’s definition of “usable marijuana” is illegal, but 4(h) tells us it can’t be seized. And an illegal substance that can’t be seized makes for a very empty evidence locker. Plus, something that can’t be seized is also very difficult to weigh.

    I have prostate cancer. I applied for my MMMA card after personal research and doctor-provided studies indicated that Simpson Oil and other marijuana preparations may stop the growth of prostate cells. At my stage of treatment the standard alternative is castration, either physically or chemically. My preference is to use the marijuana preparations, stay alive and keep my manhood.

    I read the law very carefully before my application. I’m a professional writer. I know what words mean. I study definitions. In my opinion the Court’s construction of 4(a).(b) demonstrates a decided level of illiteracy.

Leave a Reply