Michigan’s Supreme Court (SCt) released an order on Wednesday indicating that they will ultimately decide whether “Michigan Medical Marihuana Act (MMMA) … permits patient-to-patient sales of marihuana.” The high court agreed to review “the August 23, 2011 judgment of the Court of Appeals” that found such activities to be a public nuisance and in violation of Michigan’s Public Health Code.
The Court of Appeals’ (COA) ruling caused many medical marihuana dispensary-type businesses to voluntarily close their doors. It also emboldened law enforcement agencies throughout the state to pursue criminal and civil actions against medical marihuana ventures that dared to remain open.
The controversial case at issue originated in 2010, when the Isabella County Prosecutor’s office asked a circuit court judge to issue an injunction against the Compassionate Apothecary (CA) in Mt. Pleasant, Michigan.
On December 16, 2010, Circuit Judge Paul H. Chamberlain issued an order declining to issue an injunction. Judge Chamberlain opined that the CA “would suffer a great hardship if this court enjoined them from operating their business because not only would they lose their business and property, but they would suffer such loss despite conforming to the laws of this state … The public owns a large interest in this case because the same public voted to enact the MMMA, which lends support for its interest in providing a system by which registered qualifying patients may engage in the medical use of marihuana to alleviate their debilitating medical conditions and symptoms associated with such conditions.”
Isabella County’s prosecutor argued in his appellate brief to the COA that the MMMA, “clearly did not intend to allow the operation of dispensaries under the guise of patient to patient transfers. The [MMMA] intended to create a relationship between qualifying patients and registered caregivers as means of obtaining medicinal marihuana.”
The CA countered in their COA brief that if the “[MMMA] wished to require a connection through the Department’s registration process to the patient from which the registered caregiver is receiving compensation, it could have easily said so… It does not. Accordingly, the converse is true; any registered qualifying patient may provide compensation to any registered primary caregiver for costs associated with assisting that registered qualifying patient in the medical use of marihuana.”
Michigan’s Attorney General (AG) filed an amicus brief with the COA arguing that the CA’s “business activities of facilitating the transfer, delivery or sale of marihuana between registered qualifying patients and between registered primary caregivers and qualifying patients not in a registered relationship with the caregivers are not protected by the [MMMA]. Because [the CA’s] activities are unprotected, they violate other existing laws and are illegal.”
The Michigan Association of Compassion Centers (MACC) was also allowed to file an amicus brief. MACC argued in their brief that the “sale of marihuana between Patients and Caregivers is not illegal. The Controlled Substances Act makes it illegal for individuals to possess, manufacture, and distribute marihuana but does not make it illegal for them to sell marihuana.”
On June 7, 2011, the COA heard oral arguments pertaining to the CA appeal. COA Judge Cynthia Stephens asked Michigan’s Assistant Attorney General when “a patient, who is a registered patient, gives another patient the product – with or without compensation – who then gets prosecuted?” Assistant AG Heather Meingast responded, stating the person that would be prosecuted was the “selling patient, or the transferor patient would be subject to prosecution… a patient cannot assist other patients through the delivery of medical marihuana because that activity is solely delegated to a registered primary caregiver…”
The COA’s August 23, 2011 opinion found that the, “operation of CA is a public nuisance and must be enjoined… Because defendants possess marihuana, and they possess it with the intent to deliver it to CA members, defendants’ operation of CA is in violation of the [Public Health Code]. Further, their violation of the PHC is not excused by the MMMA because defendants do not operate CA in accordance with the provisions of the MMMA. Through CA, defendants actively participate in the “sale” of marihuana between CA members, but the “medical use” of marihuana does not include the “sale” of marihuana. In addition, even if defendants were engaged in the “medical use” of marihuana, they would not be entitled to the immunity granted by § 4(i) because defendants are not assisting registered qualifying patients with “using or administering” marihuana.”
The CA filed their SCt application for leave to appeal on October 4, 2011. They argue within their brief that, “Under the guise of legal reasoning, the Court of Appeals engaged in judicial activism and issued an opinion invalidating protections embodied in a law passed by 63% of Michigan voters. The Court of Appeals personal opinions are so pervasive that not one medical marihuana case decided by that court has returned a decision in favor of a defendant. This is not accidental. Because of this activism, thousands of qualifying patients are left without adequate access to medicine legal for them to consume in Michigan. Also as a result of this activism, businesses such as CA have shuttered their doors in fear of being criminally prosecuted for engaging in conduct – patient-to-patient transfers – that comports with the statutory language, but that the Court of Appeals has now deemed illegal without a statutory basis upon which to ground its opinion. Instead, the Court of Appeals has used a broad brush to paint all “dispensaries” illegal. The unsurprising upheaval that occurred as a result of this blatant judicial activism cannot be countenanced by this Court, and the unprecedented maneuver of denying medication to qualifying patients and closing businesses with the stroke of a pen cries out for review.”
The SCt has not yet set a date to hear oral arguments in this appeal. Their order, which was released on Wednesday, states that the “Attorney General and the Michigan Association of Compassion Centers are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.”
(Anyone who is interested in obtaining documents referred to in this article can contact Eric L. VanDussen directly at: email@example.com – you can watch the COA oral arguments at: http://vimeo.com/24835605)