by Cynthia Price
Legal News

On Thursday morning, the Michigan House Judiciary Committee took testimony on bills intended either to clarify or to restrict the Michigan Medical Marihuana Act and related laws.
Which view you take of the proposed legislation depends on one’s opinion about legalizing any use of marijuana.

Thomas M. Cooley Law School Professor Gerald Fisher is widely considered to be one of the leading authorities on the Michigan Medical Marihuana Act (MMMA). His view of the situation is that there are two camps with very different positions on the MMMA, even though both support it.

According to Fisher, one group holds the view that MMMA is essential to help people with chronic pain or other illnesses which marijuana can address. The other faction sees MMMA as a step along the way to allowing “a more liberal use of marijuana.”

The Act resulted from a ballot initiative in 2008. With 3,008,980 yes votes representing 63% of votes cast (the no votes numbered 1,792,870), it was clear that support for the measure was broad.

Says Fisher, “I’ve heard very, very few people say they think it should be repealed outright.”

Yet many citizens were unaware as they voted that the MMMA was already written. “The ballot language was a summary created by the drafters, and even though the whole bill was available to read, I’m sure that less than one-tenth of one percent did that. Voters read the summary and thought that the Michigan Legislature would fill in the blanks; I think just about everybody did.”

Fisher says that the organization drafting the proposal favors legalization of marijuana and intentionally wrote the legislation under consideration to be as broad as possible.

As reported previously, this broad language has caused headaches for governmental entities of every stripe. Municipalities have attempted to wrap their arms around the extent of MMMA, residents have sued, the Federal government has issued guidelines, and confusion reigns.

But Fisher comments, “The term ‘poorly written’ would be used by people who want a reasonable stability in the law. But it was drafted very carefully by the lobbyist group whose mission is legalization. So drafting it in a way that creates significant ambiguities, and a very wide authority, would be one step toward legalization. So that group would say that it’s really not poorly written.”

Dozens of legislators feel that clarifying some of the MMMA’s provisions is necessary to make the Act functional.

Therefore, bi-partisan groups of representatives have introduced four bills:

—HB 4834 requires the inclusion of a photograph on the mandated identification card for medical marijuana users. In language to be added to the MMMA, applicants for the state-issued ID would be required to provide:

“Two identical, 2 inch by 2 inch, color photographs that…show the applicant’s current appearance, have been taken within the immediately preceding 6 months, and meet all of the following specifications: (A) The picture is a full face front view against a plain, white or off-white background. (B) The applicant’s head measures between 1 inch and 1-3/8 inches from the bottom of the chin to the top of the head,” and shows the applicant wearing no hat or headgear that obscures the hairline, nor  dark or nonprescription glasses, “unless medically necessary.”

This bill also adds: “(3) The Department [defined in HB 4851 as the state department of community health] shall not allow any person access to any information about patients in the department’s confidential list of persons to whom the department has issued registry identification cards… except for the following: (A) authorized employees of the department in the course of their official duties; (B) state or local law enforcement officials, but only as to inquiries made in the course of their official duties and as to information associated with an individual for whom the  officers or official provides either a name and date of birth or a Registry Identification Number.”

—HB 4851 address both what constitutes a “bona fide physician-patient relationship” and requirements for “enclosed locked facility.”

In order to satisfy the terms of “bona fide physician-patient relationship,” the proposed bill calls for all four of the following to be present”

“(1) The physician has completed a full assessment of the patient’s medical history and current medical and psychological condition, including an appropriate, in person, physical examination of the patient. (s) The physician has treated or consulted with the patient with respect to the patient’s debilitating medical condition for a reason other than the patient’s application…for a Registry Identification Card and has maintained records… (3) The physician has a reasonable expectation that he or she will provide follow-up care, examination, and treatment to the patient to monitor the efficacy of the use of medical marihuana… (4) If appropriate, the physician has notified the patient’s primary care physician of the .. certification for the use of medical marihuana…”

The additions concerning the “enclosed locked facility” read in part (changes in capitals):

“(D) (c) ‘Enclosed, locked facility’ means a closet, room, or  other COMPARABLE, COMPLETELY enclosed area equipped with SECURED  locks or other FUNCTIONING security devices that permit access only  by” a registered qualifying patient or a primary caregiver, depending on which maintains the facility.

About HB 4851, Fisher comments, “These provisions are very consistent with the standpoint of those who want a stable set of rules for treating medical conditions. For example, if someone is very ill, they’re probably already going to have a good patient/physician relationship.”

—HB 4853 adds “SELLING MARIHUANA IN VIOLATION OF REGISTRY IDENTIFICATION CARD RESTRICTIONS” to the list of felonies in the Code of Criminal Procedure; and
—HB 4856 adds a section to the Michigan Penal Code stating “A person shall not transport or possess medical marihuana in or upon a motor vehicle or any self-propelled vehicle designed for land travel” in the absence of a few enumerated factors.

House Judiciary Committee Chair John Walsh stated that the bills would not be passed out of committee for full House consideration Thursday, a large number of people showed up to make comments.

These included representatives from the Michigan State Police, who testified with a neutral position on the bills; representatives of the National Patients’ Rights Association, the American Medicinal Marijuana Association, the Michigan State Medical Society (who testified in support of HB 4851), the Newaygo County and the Genesee Compassion Clubs, and Americans for Safe Access; Jeff Sauter of the Prosecuting Attorney’s Association of Michigan and the Eaton County Prosecuting Attorney’s Office, testifying in support of the bills; Matthew Abel, representing Cannabis Counsel, PLC; and a number of individuals testifying on behalf of themselves.

Fisher, who served as manager of the Municipal Practice Group at Secrest Wardle (which has a Grand Rapids office) before joining Cooley Law School, pointed out that there is another serious issue involved with the process: in light of the MMMA’s genesis as a ballot initiative, what percentage of the vote will be required to pass it through the two houses of the Legislature?

“For the most part, I think it would be a 3/4 vote, which is going to be very difficult. But there’s been an argument made by some that if the bill doesn’t contradict what the statute says, you’re not bound by that 3/4 requirement.”

Justice Peter D. O’Connell of the state Court of Appeals last year used a popular culture reference to explain what he called Michigan medical marijuana law’s “obfuscations, ambiguous language and confusingly overlapping sections.”

“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 most of the haze from this act,” O’Connell says in a footnote in a September 2010 concurring opinion in People vs. Redden.

While Michigan courts slowly try to crystallize the vague and confusing language of the medical marijuana law, law enforcement officials have reached one conclusion — profiting from the law is illegal.

Several state law enforcement officials, including the Michigan attorney general, have concluded that marijuana dispensaries in most cases — those operating as a business — are illegal and have been raided by police. Many have shut down.

Officials say the law’s intent wasn’t to make money but provide relief to medically suffering patients.

The law says caregivers who can provide pot to up to five patients may receive “compensation for costs.”

“To me, that means they can recover whatever it costs to grow the plant,” said Paul Walton, spokesman for Oakland County Prosecutor Jessica Cooper. “The law was intended for there to be small operations for compassion, not profit. Dispensary suggests to me it’s being done for commercial sales and that is not provided for.”

Patients must designate caregivers, and vice versa, officials say.

“I can’t think of any business model where a business can operate for a long time with five customers,” said Steve Hiller, deputy chief assistant prosecutor in Washtenaw County. “I don’t think you can have a caregiver with a storefront with hundreds of patients even if he gets together with other caregivers.”

Walton pointed out that the criminalization of marijuana remains the “default.” In People vs. Redden, the appeals court noted the law is “exemptive,” not “permissive,” he said.

Walton cautioned that marijuana remains illegal under federal laws. His office contacts the U.S. Drug Enforcement Administration in any cases involving more than 100 plants.

Special Agent Rich Isaacson, spokesman for the DEA’s Detroit office, said his agents adhere to the policy of the U.S. Department of Justice that basically ignores state medical marijuana laws.

“There’s no such thing as medical marijuana in the federal system,” he said. “It really hasn’t altered the way the DEA conducts business. Marijuana is a ‘schedule one’ drug. There is no medical benefit from it.”

But he added that people adhering to Michigan requirements won’t be pursued.

“We target large-scale drug traffickers,” he said.

Matthew Abel, a Detroit-based medical marijuana attorney, contends that law enforcement is trying to push the envelope too far.

Abel said the “sale” of marijuana is not outlawed and the state should stay out of medical marijuana users’ transactions.

“A sale is equivalent to a transfer or delivery,” Abel said. “What does the government care where patients get their marijuana?”

Abel envisions medical marijuana evolving into a “service industry” in which suppliers charge for the marijuana and expenses, such as labor and equipment.

“General Motors’ labor is an expense, not profit,” Abel said. “For them to say the law says all dispensaries are all illegal, the law doesn’t say that.”

One example of a potentially legal dispensary is 3rd Coast Compassion Center in Ypsilanti. Director Jamie Lowell said the nonprofit organization accepts private donations to pay bills and salaries. He said the facility operates within the confines, spirit and intent of the law.

The law enforcement stance goes against some medical marijuana advocates who contend that a group of caregivers can join forces and serve dozens or even hundreds of patients, sometimes referred to as “collectives.”

But, Hiller said, according to court rulings, caregivers cannot share each others’ patients, and each patient’s stash must be stored separately, according to court rulings.

A precedent-setting Court of Appeals ruling — People vs. Ryan M. Bylsma, stemming out of Kent County, issued Sept. 28 — says that Bylsma, a caregiver, can only grow plants for patients who are formally registered to him through the Michigan Department of Community Health’s registration process.

Ultimately, experts say the courts and possibly the Legislature should have the final say in the law’s evolvement.

The law, passed by 63 percent of voters in the 2008 election, within the next year will undergo its first reviews by the Michigan Supreme Court in two cases: People vs. Larry King and People vs. Alexander Kolanek.

In the King case, the court will address whether King — a 55-year-old medical marijuana patient — grew and stored it in a sufficiently locked and enclosed facility in and outside his Owosso home in Shiawassee County. King grew pot in a 6-foot-high chain-link dog kennel under lock and key and in a closet inside the home. But the appeals court ruled that the outdoor facility was not secure enough because it didn’t have a roof and was not stationed to the ground, and the indoor closet didn’t have a lock.

King was charged with two counts of felony manufacturing marijuana.

Attorney Dan Korobkin of the American Civil Liberties Union, representing King, said the court accepted the case also because King raised an “affirmative defense,” that his medical requirement for the drug usurps the criminal charge.

“The criminal prosecution of Larry King is a gross injustice,” Korobkin said, also pointing out the outdoor facility was sturdy and indoor facility sufficiently isolated from access in his home.

Korobkin noted the dissenting opinion of Justice E. Thomas Fitzgerald, who said the law’s “susceptibility to multiple interpretations should not result in the use of the act as a sword, rather than a shield.”

The second high-court case is the People vs. Alexander Kolanek. Justices will mull whether a marijuana possession charge should stick. Kolanek gained approval from a doctor and his patient card after his arrest, although the doctor says he and Kolanek discussed him getting the card prior to his arrest. The COA reversed Oakland Judge Edward Sosnick, who had sided with Kolanek.

Kolanek was arrested in April 2009 in Oakland County for having eight marijuana cigarettes in the trunk of his vehicle.

The appeals court has ruled in two other significant medical marijuana cases that may be appealed.

The court ruled Aug. 23 in favor of the state vs. Brandon McQueen and Matthew Taylor, who were doing business as Compassionate Apothecary LLC, a Mount Pleasant dispensary.

The dispensary was shut down for being a public nuisance, in violation of the public health code.

CA rented lockers to patients and caregivers to exchange marijuana. CA also kept up to 20 percent of the transaction cost.

The appeals panel, in overturning Isabella County Circuit Court, ruled that patient-to-patient sales are illegal.

Another important case was People vs. Robert Redden and Torey Clark, both of whom had received doctor approval for but not yet received patient cards when police raided their Madison Heights home in March 2009 and confiscated 21 plants. They were charged with felonies.

At their preliminary examination, 43rd District Court Judge Robert Turner threw out the case and called it “one of the worst pieces of legislation I have ever seen in my life.”

But the circuit court reinstated the charges and was upheld in September 2010 by the appeals court, which said Redden, who suffered from “pain,” and Clark, who suffered from “nausea,” didn’t meet the criteria for “debilitating medical conditions required by the MMMA.” Redden said he had a degenerative hip condition and Clark was recovering from ovarian cancer surgery.

The pair currently faces criminal charges in Oakland Circuit Court in Pontiac.

 

For more please visit:  http://www.sourcenewspapers.com/articles/2011/10/05/news/doc4e8cbf6604e43472576322.txt?viewmode=fullstory

Your recent article on medical cannabis is very inaccurate in several regards.

Dr. Fredrick Neumann of Sterling Heights is a family practitioner who writes recommendations for approximately 10 percent of his longtime patients. Doctors are already being attacked by forcing them to close their practices and testify in court in order for patients to benefit from the affirmative defense in the Michigan Medical Marihuana Act, despite the terms which do not require such, but rather just the Physician Certification which tracks the language of the first element of the affirmative defense. This has a chilling effect.

The language of the Michigan Medical Marihuana Act is the clearest law I’ve read in 22 years of practice. None of the proposed bills help protect patients or doctors, but make a bad situation worse. A bill clarifying that doctors not have to testify to private patient information is absent.

Cannabis has been medicine for 6,000 years. Prohibition of cannabis has lasted only 90 years.

Henry Anslinger was out of a job with the end of alcohol prohibition; Hearst wanted to dominate the paper industry and hemp paper was his biggest threat, so he partnered with Anslinger to rename cannabis marijuana for a racist hue to their anti-competitive attack undercutting his competition in paper.

The press has been a reliable partner in this 90 years of lies in the biggest anti-trust violation in history. As a result we have been clear cutting old growth forest for 90 years to make paper and building materials instead of regrowing hemp every five months, marching our way into global climate change. When public policies are based on a pack of lies, unintended consequences ensue.

Activist judges, and forfeiture-addicted law enforcement and drug courts ignore the plain terms including the definition of “medical use” to include “acquisition;” the superiority clause at 7(e); the Findings and Declaration at Section 2; and the Dual Sovereignty Doctrine (for example Michigan criminal courts offered the defense of entrapment before the federal criminal courts because of dual sovereignty; pre-emption is inapplicable given that the Controlled Substances Act expressly does not occupy the field).

Will you follow the 90 years of deceit on this topic or be a real reporter and investigate and report the truth, speaking truth to power? Then again there is way too many advertising dollars from BigPharma going to the corporate media to expect that undue influence to continue.

The corporate media continues to blabber the rhetoric of deceit, such as “pot,” “pothead,” “stoner,” “buzz,” etc.

Moreover, the recent Court of Appeals opinion allows for the assistance of patients in preparing the cannabis in one of the ways it is commonly consumed, at page 16 of the opinion, but the media again reports the lie that this opinion closes all facilities despite the fact that all of the clients of Cannabis Counsel PLC remain open and operating according to the recent Court of Appeals opinion. No sale of cannabis is made, and 4(e) allows compensation for costs, including costs of preparing the medicine to assist patients in using or administering the cannabis.

In the final analysis, the State is in violation of the MMMA for failing to hold hearings within six months of petitions to add conditions. Cards are purposely delayed to feed the forfeiture/war on drugs Bryne grants racket. A state so lacking in compassion lacks the capacity to administer a medical cannabis program, so legalization is the only way to protect patients. That is what we are forced to initiate next, an end to prohibition.

For more please visit:

URL: http://www.themorningsun.com/articles/2011/09/03/opinion/srv0000013582297.prt

© 2011 themorningsun.com, a Journal Register Property

August 31, 2011

In a second major medical marijuana decision this month, the Michigan Court of Appeals said that users must have their state-issued identification cards before they can legally grow their own drugs.

With their ruling in a Montmorency County case, appellate judges upheld a Circuit Court decision that Brian Bebout Reed could be tried for manufacture of marijuana even though he’d gotten his user’s card.

According to court records, Reed, who had chronic back problems from a degenerative disc disease, was trying to find a doctor to approve marijuana use in August 2009 when a narcotics team spotted six plants growing on his property.

Later that month, he got a doctor’s certification and received his user’s card in October. Ten days after he got his card, he was arrested for growing the marijuana.

He argued the charges should be dismissed because he’d become a registered user before his arrest.

The appellate court rejected that position: “It would qualify as absurd if it were possible to assert the …affirmative defense by obtaining a physician’s statement after the crime has been committed but before an arrest has been made.”

Without the card at the time of the alleged crime, there is no immunity “from arrest, prosecution, or penalty,” the court said.

Last week, the appellate court outlawed retail sales at marijuana dispensaries. In that case, the court ruled that a dispensary’s business model of charging clients a fee to store marijuana that could be sold to any registered patient was illegal.

BY DAWSON BELL

DETROIT FREE PRESS LANSING BUREAU