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Coa Rules In Redden-Clark Case


Eric L. VanDussen
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From: Karen O'Keefe <kokeefe@mpp.org>

 

Subject: Oakland Circuit Court decision in Redden/Clark

 

The Oakland Circuit Court of Appeals ruled against a patient couple -- Robert Redden and Torey Clark -- yesterday. There was both a majority opinion (2 of the 3 judges) and a concurrence.

 

There was some good news: the majority (2 of 3) found that patients don't have to be registered to raise the defense (as we intended). It seemed to acknowledge that they didn't have to have a defined debilitating condition, too, but could have a non-enumerated "serious" condition. However, they found their doctor didn't have a bona fide relationship with them, which is required by the act. The doctor worked for THC Foundation (I think), only did medical marijuana recommendations, and was licensed in other states. The majority also found that they prove they had serious or debilitating conditions (the doc just said they had "pain" and "nausea").

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20100914_C295809_44_295809.OPN.PDF

 

The concurrence opined on all kinds of matters that had nothing to do with the case at hand — mostly to say sales are not allowed, etc — and criticizing doctors that only issue MMJ recommendations harshly —— even including photos in the decision and excerpts from ads for medical marijuana doctors. He quoted MPP's campaign spokesperson from 08 saying coops wouldn't be allowed. He also had a narrow interpretation of the affirmative defense.

 

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20100914_C295809_45_295809C.OPN.PDF

 

Be careful, folks!

 

-Karen

 

(As always, this is not legal advice, please consult with a MI-licensed attorney for legal advice.)

 

Karen O'Keefe, Director of State Policies

Marijuana Policy Project

236 Massachusetts Ave. NE, Suite 400

Washington, DC 20002

P: 202-462-5747, ext. *2023

F: 202-552-0982

kokeefe@mpp.org

http://www.mpp.org

 

Please visit http://www.mpp.org/subscribe to sign up for MPP's free e-mail alerts.

 

"For certain persons, the medical use of marijuana can literally mean the difference between life and death." -- Lymphoma Foundation of America, HIV Medicine Association of the Infectious Diseases Society of America, and American Medical Students Association, Supreme Court amicus brief, 2004

20100914_C295809_44_295809.OPN.pdf

20100914_C295809_45_295809C.OPN.pdf

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This sounds all bad, both the opinion and the concurrence. As I'm not a lawyer, is this as high as this case can go? What is the impact of the concurring opinion? Is it, too, interpreted as precedent in other cases?

 

I am truly disturbed by some of the conclusions the court has drawn, particularly the concurring opinion. A few low-lights:

 

This one is critical, so it is listed first, not in the order it appears:

 

"Although most qualifying patients and primary caregivers apparently believe they are immune from arrest or prosecution if they possess registration cards, the MMMA makes no such provision. "

"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."

 

"it is becoming increasingly clear that the act is being used as a subterfuge to legalize marijuana in Michigan. It is well crafted in its obfuscations, ambiguous language, and confusingly overlapping sections."

 

"Any assistance that any primary caregiver provides on behalf of any qualifying patient to whom that caregiver is not connected by the registration process is not subject to the protections of the MMMA."

 

"Anyone growing more than 12 plants in one separate enclosed, locked facility should not complain or be surprised when or if a federal drug enforcement agent appears. Again, under federal law, cultivating marijuana is illegal. Growing large quantities of marijuana in an enclosed, locked facility is the same as waving a red flag in front of a 3,000 pound bull. Any questions in this regard are quickly answered by reading the Gus Burns article in the April 22, 2010, Saginaw News, “Federal agents and sheriff’s deputies say seized marijuana in Saginaw County was illegal and not medicine.” http://www.mlive.com/news/saginaw/index.ssf/2010/04/federal_agents_and_sheriffs_de.html (accessed September 13, 2010). Side note: Like how they used the DEA and Sheriff's statements to back up this claim, rather than actual law. "If the sheriff says it is illegal, well then it must be illegal."

 

"In light of these rules concerning what constitutes possession, the MMMA places the entire burden of cultivating a particular qualifying patient’s marijuana plants entirely on one individual (either the qualifying patient or his or her primary caregiver). No other individual can legally even water the plants or enter the enclosed, locked facility to turn on a grow light without risking arrest and prosecution for violating the Public Health Code. This means that primary caregivers and qualifying patients cannot legally form a cooperative and grow marijuana in a shared facility without violating the MMMA and thus being subject to arrest and prosecution under the Public Health Code."

 

"there is no circumstance under the MMMA in which the primary caregiver can provide assistance to any other qualifying patient, and receive compensation in exchange, without being subject to arrest and prosecution"

 

"The statute does not authorize compensation for the labor in cultivating marijuana"

 

"Section 4(i) provides that “a person shall not be subject to arrest . . . solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana.” In a possible attempt at chicanery, the drafters of the act thus slipped into this subsection the term “person,” instead of discussing the protections and responsibilities of a “caregiver” or “qualifying patient.”

 

"The MMMA does not give any individual permission to sell marijuana in the state of Michigan for any purpose."

 

"My comments are directed at those who are currently abusing the written certification process, i.e., the majority of the persons who are becoming certified at this time."

 

"For those who instituted the process of placing the proposal on the ballot, the MMMA was both an avenue for allowing society to explore the medical uses of marijuana, but also a first step in legalizing marijuana in Michigan."

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Now you go to the Supremes Bob. You don't give up now!

Thats right don't give up now I still feel you will win in the end what your bone disease isn't pain full and debilitating I've seen you walk and can see your pain the Doc at the clinic reviewed you medical records before you get an appointment and Torreys cancer? You will do better in the higher courts keep your head up.

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From: Karen O'Keefe <kokeefe@mpp.org>

 

Subject: Oakland Circuit Court decision in Redden/Clark

 

The Oakland Circuit Court of Appeals ruled against a patient couple -- Robert Redden and Torey Clark -- yesterday. There was both a majority opinion (2 of the 3 judges) and a concurrence.

 

There was some good news: the majority (2 of 3) found that patients don't have to be registered to raise the defense (as we intended). It seemed to acknowledge that they didn't have to have a defined debilitating condition, too, but could have a non-enumerated "serious" condition. However, they found their doctor didn't have a bona fide relationship with them, which is required by the act. The doctor worked for THC Foundation (I think), only did medical marijuana recommendations, and was licensed in other states. The majority also found that they prove they had serious or debilitating conditions (the doc just said they had "pain" and "nausea").

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20100914_C295809_44_295809.OPN.PDF

 

The concurrence opined on all kinds of matters that had nothing to do with the case at hand — mostly to say sales are not allowed, etc — and criticizing doctors that only issue MMJ recommendations harshly —— even including photos in the decision and excerpts from ads for medical marijuana doctors. He quoted MPP's campaign spokesperson from 08 saying coops wouldn't be allowed. He also had a narrow interpretation of the affirmative defense.

 

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20100914_C295809_45_295809C.OPN.PDF

 

Be careful, folks!

 

-Karen

 

(As always, this is not legal advice, please consult with a MI-licensed attorney for legal advice.)

 

Karen O'Keefe, Director of State Policies

Marijuana Policy Project

236 Massachusetts Ave. NE, Suite 400

Washington, DC 20002

P: 202-462-5747, ext. *2023

F: 202-552-0982

kokeefe@mpp.org

http://www.mpp.org

 

Please visit http://www.mpp.org/subscribe to sign up for MPP's free e-mail alerts.

 

"For certain persons, the medical use of marijuana can literally mean the difference between life and death." -- Lymphoma Foundation of America, HIV Medicine Association of the Infectious Diseases Society of America, and American Medical Students Association, Supreme Court amicus brief, 2004

 

 

 

 

HOLY CRAP!! Scare tactics and the old "You're all too stupid" arguments, same old BS in a bright new shiny wrapper. "Eat and enjoy," they tell us! Just like the prescriptions, EAT AND ENJOY! guys

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Watching stuff happen.

 

http://coa.courts.mi.gov/DOCUMENTS/OPINIONS/FINAL/COA/20100914_C295809_45_295809C.OPN.PDF

 

"I also agree with counsel that it is the responsibility of this Court to interpret this law in a

way that gives fair notice to all concerned regarding what conduct is allowed and what conduct is

prohibited under this law. Without some guidance from the appellate courts, the lower courts

will continue to stumble about. The system of justice will become hopelessly unpredictable and

intolerably frustrating for the people it was established to serve. Right or wrong, we all have the

duty to interpret the law to the best of our ability. Any delay in this process frustrates those

citizens who are making a good faith effort to adhere to the law."

 

 

 

 

http://www.mlive.com/news/detroit/index.ssf/2010/09/appeals_court_judge_says_michi.html

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Can we combine this with the other thread. It is so critical that we are all aware of this ruling and its implications that I'd hate to have people's thoughts and conversations separated into multiple threads.

 

This is a sad day for MM in Michigan, with this case as well as the reported patient raids. Struggling to not get discouraged.

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This doesn't make me sad......

 

It INFURIATES me!

 

It makes me wish now more than EVER I would have went to law school.

 

It HAS to go to the supreme court!

 

WE are screwed! Our primary Dr's WON'T/CAN'T Recommend MM for the most part, FORCING us to take our records to an MM Specialist.

 

Now they say those are illegal?! How are we to get recommendations?

 

Also, as long as we have a qualifying condition..............it shouldn't be an issue! Where are the courts getting that they can now be our Dr's as well as our Judges!?

 

I need to medicate...........................

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It's a good thing that judges aren't elected based on their intelligence!

 

I can't believe that a judge would try and rule on the fact that a licensed doctor of any form shouldn't be allowed to recommend marijuana. The AMA and many other agencies never stop physicians from treating individuals outside of their scope of practice. For example a cardiologist is never stopped from addressing an individuals chronic pain through prescribing narcotics.

 

I also find it ironic that there is nothing stopping an attorney from representing a client outside of his/her scope of practice. Any attorney can be a judge no matter what area of the law they are versed in. I could be a great criminal attorney but be not well versed in divorce law/estate law/juvenile law and could run for a Probate Court judgeship.

 

I also like the fact that this judge suggests changing the Public Health Code to change the scheduling of marijuana when it is the DEA that forms the scheduling and decides what is to be a schedule drug. The DEA is also the controlling party when it comes to controlled substance licensing for physicians, pharmacists, etc.

 

Hang in there Bob and Torey. You have one of the best attorneys in the area for this. My thoughts and prayers are with you both!

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This is really a mixed bag. Some good, some not so good. Nothing really drastic, in that it was a review of whether there was an err in not holding over for a proper evidentiary hearing by the trial court. While the language in some parts did seem harsh, there were some really good spots. Such as...

 

However, as defendants argue, this position ignores that the MMMA provides two ways

in which to show legal use of marijuana for medical purposes in accordance with the act.

Individuals may either register and obtain a registry identification card under § 4 or remain

unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in §

8.

The plain language of the MMMA supports this view. Section 4 refers to a “qualifying

patient who has been issued and possesses a registry identification card” and protects a

qualifying patient from “arrest, prosecution, or penalty in any manner . . . .”7 MCL

333.26424(a). On the other hand, § 8(a) refers only to a “patient,” not a qualifying patient, and

only permits a patient to “assert the medical purpose for using marihuana as a defense to any

prosecution involving marihuana . . . .” MCL 333.26428(a). Thus, adherence to § 4 provides

protection that differs from that of § 8. Because of the differing levels of protection in sections 4

and 8, the plain language of the statute establishes that § 8 is applicable for a patient who does

not satisfy § 4.

The language of the ballot proposal itself supports this interpretation

 

 

The rest of the opinion (in my humble opinion after reading and rereading it) simply suggests that there wasn't enough evidence introduced during the prelim for the district court to not bind over. That if there are still reasonable questions about whether or not a crime was committed that the trial court is the place to test and try those questions with all of the facts, in an evidentiary hearing.

 

Defendants next contend that the circuit court erred by ruling that the district court was

precluded from ruling that defendants’ use of medical marijuana was permitted under the

MMMA. We find no basis on which to reverse the circuit court’s disposition, because there are

indeed triable issues in this case, and the district court improperly acted as a trier of fact in

denying the bindover.

 

In other words this case will still be remanded back down to start trial, at which point the facts of the case and defense will be put to the test. If need be at that point, this court stated that they expect to see more motions on the other various issues.

 

So where do we stand after this ruling? We have one finding of fact by them... That registered patients and caregivers with cards/paperwork are protected from “arrest, prosecution, or penalty in any manner..." if they meet the requirements of section 4, and that the AD does apply to folks that are not registered with the state, and can be used for protection from prosecution once they reach the trier of fact.

 

All other issues are de novo (without consideration) at this time.

 

So Bob and Torey keep your chins up. Sunny days are still ahead.

 

While it is not a perfect ruling, there doesn't seem to be a reason to panic in the streets. Section 4's protections have just been solidified... now they go to work on testing the limits of Section 8.

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so everyone with a recomendation from a clinic is breaking the law?

Absolutely not. The court found that even folks that weren't registered are entitled to the protections of Section 8 (aka: Affirmative defense).

 

They did suggest however that a prosecutor could test whether or not a bona-fide medical relationship was established between doctor and patient, during the evidentiary hearing. Which is not a bad thing, it will mean that doctors issuing recommendations actually consider and document patients qualifying issues, and puts the shady docs (recommendations without medical records) on notice.

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Absolutely not. The court found that even folks that weren't registered are entitled to the protections of Section 8 (aka: Affirmative defense).

 

They did suggest however that a prosecutor could test whether or not a bona-fide medical relationship was established between doctor and patient, during the evidentiary hearing. Which is not a bad thing, it will mean that doctors issuing recommendations actually consider and document patients qualifying issues, and puts the shady docs (recommendations without medical records) on notice.

 

Thank you I was confused, I still am but a little less so now

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Thank you I was confused, I still am but a little less so now

No worries... Here is another snippet that is refreshing...

 

The ballot proposal explicitly informed voters that the law would permit registered and

unregistered patients to assert medical reasons for using marijuana as a defense to any

prosecution involving marijuana. The language supports the view that registered patients under § 4 and unregistered patients under § 8 would be able to assert medical use of marijuana as a defense. Accordingly, we hold that the district court did not err by permitting defendants to raise the affirmative defense even though neither satisfied the registry-identification-card requirement of § 4.8

 

 

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