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Ag Letter To Dch Requesting Mmma Rule Amendments


Eric L. VanDussen
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The attached letter from the AG was requesting the DCH to amend its medical marihuana rules about a year ago. I've submitted a FOIA reqeust to the AG asking for all documentation pertaining to their reqeusted amendments and I'm wondering if any attorneys or anyone else knows if the DCH has held any public hearings on this issue since October 7, 2009.

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This is the FOIA I sent the AG:

 

To the Michigan Attorney General's Freedom of Information Act Coordinator:

 

I am hereby requesting copies of the following public records under the authority of Michigan’s Freedom of Information Act:

 

1. All public records that have been exchanged between any Michigan Attorney General (AG) official or employee and the Michigan Department of Community Health (DCH), which are associated with the letter Chief Deputy AG Carol L. Isaacs wrote to the DCH on October 7, 2009. (See attached letter)

 

2. All public records pertaining to any legislators, persons or organizations who have expressed questions, concerns and or confusion about medical marihuana issues, including, but not limited to, whether local zoning ordinances can regulate the production of medical marihuana or the sale of paraphernalia; what constitutes "a public place" where a qualified medical marihuana patient is prohibited from smoking marihuana; how should local law enforcement agencies handle Freedom of Information Act requests involving information in their police reports about registered medical marihuana patients; whether one qualifying medical marihuana patient can give unused marihuana to another qualifying marihuana patient; whether a local unit of government can ban non-profit medical marihuana compassion clubs or co-ops; whether DCH can take away a registry identification card for prior marihuana convictions; and what constitutes an "enclosed locked facility" for purposes of cultivating marihuana plants.

 

Please note that these FOIA requests are only soliciting public records that were composed, received or maintained by the Michigan Attorney General’s office or its employees since November 1, 2008. Further, when responding to this request, all relevant email communications should be included.

 

Thank you for your time,

 

Eric L. VanDussen

10-07-09 AG letter to COH.pdf

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  • 4 weeks later...

It seems that for awhile now, we've been asking these questions and requesting to sit down to discuss these and related issues. One source says pt/pt transfers are legal, another says it is not, for example. Someone's dragging their feet on this, obviously. The MDCH does not want to handle this program, it seems. Many who we need to clarify these issues do not want to because they don't take us seriously. IMHO.

 

Eric, Thank you for all your hard work.

 

Sincerely, Sb

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  • 2 weeks later...

I think what's interesting is that the AG has identified around 750 public documents that somehow pertain to what's being contemplated in this one letter (below). It will be interesting to see what they produce and what they try to redact (black out) under some claim of attorney-client privilege.

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STATE OF MICHIGAN - DEPARTMENT OF ATTORNEY GENERAL

 

October 7, 2009

 

Mr. Kurt Krause

Chief Deputy Director - Department of Community Health

 

RE: Michigan Medical Marihuana Act

 

Dear Mr. Krause:

 

I am writing to recommend that the Department of Community Health (DCH) address issues that have arisen during the implementation of the Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq (the Act). As you are aware, the Act was passed by Michigan citizens on November 4, 2008, pursuant to Mich Const 1963 art 2, § 9, which grants the power to propose, enact or reject laws by citizen initiative and referendum. The Act allows individuals with debilitating medical conditions and written certification from a physician to use and possess limited amounts of marijuana to alleviate their condition.

 

Although the Legislature can amend the Act, any amendment will require a vote of the electors or three-fourths of the members elected to and serving in each house of the legislature, because the Act was passed under the initiative provisions of Const 1963 art 2, § 9.

 

As your staff has acknowledged, DCH is charged with implementation of the Act, and has the authority to promulgate administrative rules pursuant to MCL 333.26425. Consistent with this obligation, DCH held a public hearing on January 5, 2009 seeking comment on its proposed administrative rules, and subsequently issued final administrative rules on April 4, 2009.

 

Since then, Michigan citizens and legislators have expressed concern and confusion about numerous issues, including whether local zoning ordinances can regulate the production of medical marijuana or the sale of paraphernalia; what constitutes "a public place" where a qualified patient is prohibited from smoking marijuana; how should local law enforcement agencies handle Freedom of Information Act requests involving information in their police reports about registered patients; whether one qualifying patient can give unused marijuana to another qualifying patient; whether a local unit of government can ban non-profit medical marijuana compassion clubs or co-ops; whether DCH can take away a registry identification card for prior marijuana convictions; and what constitutes an "enclosed locked facility" for purposes of cultivating marihuana plants.

 

The DCH and the Legislature have the authority-indeed the duty-to provide guidance in its implementation of the Act, either through the administrative rulemaking or the legislative amendment processes. Should litigation arise over the interpretation of definitions and requirements in the Act, "The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled by the courts without cogent reasons." Boyer-Campbell v Fry, 271 Mich 282; 260 NW 165 (1935). This standard requires reviewing Courts to give "respectful consideration" and "cogent reasons" for overruling an agency's interpretation. Furthermore, when the law is "doubtful or obscure," the agency's interpretation is an aid for discerning the Legislature's intent. SBC Mich v PSC (In re Complaint of Rovas), 482 Mich 90, 103; 754 NW2d 759 (2008).

 

Alternatively, DCH may issue a declaratory ruling to interested persons as to the applicability of the Act or the administrative rules to an actual state of facts. MCL 24.263 provides: "On request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency. . . . A declaratory ruling is binding on the agency and the person requesting it unless it is altered or set aside by any court. An agency may not retroactively change a declaratory ruling, but nothing in this subsection prevents an agency from prospectively changing a declaratory ruling. A declaratory ruling is subject to judicial review in the same manner as an agency final decision or order in a contested case."

 

The Act contemplates DCH taking action through the administrative rule process to provide substantive and detailed definitions of the Act's terms, and we are requesting that DCH amend its rules to address the issues described above. We understand the tremendous effort involved in the implementation of new laws, and as always, the Attorney General is prepared to provide legal advice and assistance upon request.

 

Sincerely yours,

 

Carol L. Isaacs

Chief Deputy Attorney General

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I think what's interesting is that the AG has identified around 750 public documents that somehow pertain to what's being contemplated in this one letter (below). It will be interesting to see what they produce and what they try to redact (black out) under some claim of attorney-client privilege.

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Indeed, how many backdoor binding declarations have they attempted to get passed, how or who has been attempting to steer the rules changes through backdoors... Looks like there will be lots and lots of reading ahead...

 

P.S. Thanks for the extra effort, by you and those that made this possible.

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  • 1 month later...

Let me just save the AG and the MDCH some money and problems and answer all of these questions based on the fact that I know everything :D (not legal advice, my opinion, etc)

 

Since then, Michigan citizens and legislators have expressed concern and confusion about numerous issues, including whether local zoning ordinances can regulate the production of medical marijuana or the sale of paraphernalia; what constitutes

 

---"a public place" where a qualified patient is prohibited from smoking marijuana

 

A public place is a non-private location frequented by the general public. Private places are locations where the general public is not admitted. A public concert, sporting event etc is still a "public" place because anybody can buy tickets to the event. A private event for cardholders only (just to pull a totally random example out of my head) is PRIVATE because not just "anybody" can get in.

 

---how should local law enforcement agencies handle Freedom of Information Act requests involving information in their police reports about registered patients;

 

 

I should defer to PB on this answer but IMHO I think police reports can be found by FOIA and if the patient's name is mentioned that is unfortunate but no worse than, for example domestic violence investigations or drunk driving reports being released right before an election (Hello GWB). The press needs power to have this information and hopefully they will screen it so unsubstantiated stories and claims don't get into the papers.

 

Of course maybe with the internet it is a whole new ball game that requires different rules? But that is a very different thread.

 

---whether one qualifying patient can give unused marijuana to another qualifying patient

 

Yes, and purchase trade etc. Patients are fully protected in the possession and use of cannabis and BOTH sides of that transaction were obviously intended to be protected. It is ludicrous to argue otherwise.

 

---whether a local unit of government can ban non-profit medical marijuana compassion clubs or co-ops

 

Does he really not understand the difference between a Compassion Club and a co-op? And why not ask about dispensaries also? This prosecutor is a first class jerk.

 

IMHO co-ops CAN be banned by the local zoning people- maybe the business model just does not fit into the city plan?

 

But ban a club of people seeking to associate freely with others? I would call moo poo and say this was a joke were it not so serious. For the record, an old old document written on HEMP paper includes this little thing called the First Amendment that used to protect the right of citizens to "peaceably assemble." Jerk!!

 

---whether DCH can take away a registry identification card for prior marijuana convictions

 

Sure if it is in the law. I think, yep, here it is. Hmmmmm, I don't see it anywhere. There is something about caregivers not being allowed to have a prior drug conviction but nothing about taking away a registry ID card for any reason. Maybe we can extend this authority over caregivers (and certainly over such things as dispensary, co-op and farmer's market licenses)if we torture and strain and make things up but how can you possibly get to 'registry ID' cardholders?

 

Probably at some point the MDCH will realize the revenue stream they could generate by issuing dispensary and co-op licenses??

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Eric_FOIA__Ltr_Page_1.jpg

 

Eric_FOIA__Ltr_Page_2.jpg

 

Eric_FOIA__Ltr_Page_3.jpg

 

Gotta love those bureaucrats. They now want to send you 1/2 the original estimate of documents and double the charge for sending? I get the feeling that they pulled the first estimate out of their nether parts figuring that you would just give up and now that you have shown that you are serious, they are setting up another block while they scramble behind the scene to figure out what to send to you. CYA (Cover Your donkey) is the operational acronym that every government employee lives by.

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I need to go work for the AG. I would love to make $32 per hour to basically "google" documents and obliviously get paid for 4 hr lunches, a couple of coffee breaks, a dozen smoke breaks down at the parking garage, and a chat or two with Mom.

 

And what lawyer could bill 12 hours for sorting 800 pages? Law firms review millions of documents during heavy litigation and each person will review thousands in a day. Lawyers are not legally allow to get paid for 4 hr lunches, a couple of coffee breaks, a dozen smoke breaks down at the parking garage, and a chat or two with Mom.

 

Only the Rich have rights...

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---how should local law enforcement agencies handle Freedom of Information Act requests involving information in their police reports about registered patients;

 

 

I should defer to PB on this answer but IMHO I think police reports can be found by FOIA and if the patient's name is mentioned that is unfortunate but no worse than, for example domestic violence investigations or drunk driving reports being released right before an election (Hello GWB). The press needs power to have this information and hopefully they will screen it so unsubstantiated stories and claims don't get into the papers.

 

Of course maybe with the internet it is a whole new ball game that requires different rules? But that is a very different thread.

 

OH yeah ..

 

First off it is very difficult to balance between normal police work and the requirements of the confidentiality section of the mmj law.

 

Even if a licensed patient is convicted for being outside the mmj law, the patient still retains their ID card, in most cases. That means they are still protected by section 6 (h) of the law.

 

The MDCH and the office of the attorney general have concluded that ANY person can violate this section of law. In addition to members of the general public, this section of law includes this list of potential violators:

an employee or official of the department or another state agency or local unit of government

This section undermines many of the immunity protections local officers and court officials would normally expect to be protected by. Many of these immunities evolved in the absence of a distinct law that forbid the named activity. Some of those immunity protections should have been stripped from these officials by the passage of this new law.

 

The people passed criminal law against these employees and officials if they disclose this information. It would be difficult to apply immunity to persons the law targets. To date not one single person has been arrested for this criminal action.

 

The MDCH has concluded that ANY information that is disclosed in ANY way may violate that section of law. Unless that disclosure is distinctly allowed in the law. Such as the normal process employees of the MDCH follow to issue the ID card.

 

The act does not allow courts or police to disclose the status of any person as a person identified within the MDCH data file. ie John Doe is a registered medical marijuana patient.

 

The act and the MDCH rules do not allow the patient themselves to disclose the identity of their own caregiver or doctor.

 

The patient does has the lawful ability to disclose information about themselves. This is a process that has come to be allowed by the MDCH under rule 333.121. Under that rule, the patient is not allowed to disclose information about anyone else but themselves. Disclosure of caregiver information must be proceeded by a signed waiver from that caregiver. Disclosure of doctor identifying information must be proceeded by a waiver signed by that doctor. Even if it is the patients own doctor.

 

Overall the MDCH rules don't even consider FOIA. The rules only look at any disclosure at all. Any disclosure would include in response to a FOIA.

 

Confidentiality is the issue that forbids the MDCH from farming out the card printing work to any entity outside the MDCH. No public disclosure would be involved in that process.

 

So then, what is required? What is required of these officials is to protect these identities to the very end. Those identities would include anything that would identify any patient, caregiver or doctor. Any identifying information at all. License numbers, social security numbers, addresses, birth dates .. ANYTHING AT ALL.

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