Coa Rules In Redden-Clark Case

[+RevThad]

I am at a loss for words. We can lie back and take it, or we can get in their face. I am going to leave the call up to you. If you will support a march on the Court, I will call for it.

Joe, I am not the type to lie back and take it, and surrender is NEVER an option. I will stand at your side, behind you, or in front of you, if the community deems this worthy of protest.

 

I just am not sure that this opinion is detrimental in any way. I am just a layman, but have been around enough legalese to get a pretty good read on these things. I am sure a lawyer will correct me if I am wrong, and I hope that they do step up and say something on the matter.

 

The only pertinent part of this opinion is that Sec. 4 and Sec. 8 provide different protections for different folks (i.e. registered vs unregistered), and that Sec. 8 was a viable defense for unregistered patients and caregivers...

 

The rest of the opinion, at least in my understanding of it, was to remand back down to be tried by the proper court. They did use some language that was not favorable, but none of it was binding. As they even suggested that they would not be "legislating from the bench", they suggested that the facts and evidence be put to the test by the lower court...

 

As always I wish you well.

[+RevThad]

It's the doctor/patient relationship that's the problem. Almost all of our cards have been invalidated. The court put us in the position of defending our relationship with our doctors in court. Nothing good there.

They reaffirmed the protections under Section 4

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).

 

Then went on to suggest that if an unregistered patient was using the AD provided in Section 8, that it would be fair for a prosecutor to test whether or not there was a bona fide relationship... Which is of course the way any evidendiary hearing should be conducted, weighing the facts as presented vs the other side's facts. They didn't suggest what needed to be proved, just that the lower court acted incorrectly because it was not the trier of fact, just a speed bump along the way.

 

I hope that makes sense... if not I can clarify my words.

[+EdwardGlen]

OPEN SEASON HAS NOW BEEN DECLARED ON ALL OF US!!

 

 

The Michigan Court of Appeals has reinstated drug charges against two Madison Heights residents who were using marijuana on the advice of a doctor, but had not yet obtained the necessary registration cards issued by the state Department of Health and Human services.

 

Robert Redden and Torey Clark were arrested in a Madison Heights home March 30, 2009, after police found one and a half ounces of marijuana and 21 marijuana plants.

 

The two presented documentation from an out-of-state doctor who said he examined both of them and determined that Redden was suffering from pain that would be alleviated by marijuana. Clark, he said, was suffering from nausea. The doctor, in making the determinations, did not say what was causing the conditions.

 

Redden and Clark appeared in district court on one count each of manufacturing more than 20, but fewer than 200, marijuana plants. By then, the two had obtained the necessary registration cards. The district court dropped the charges in July 2009.

 

Prosecutors appealed to the circuit court, which reinstated the charges, saying the two should have abstained until they had been granted the cards. Redden and Clark appealed to the higher court.

 

In a decision released Tuesday, a three-member appellate panel agreed, and sent the matter back to the district court for review.

 

Attorneys representing the pair could not be immediately reached.

 

Michigan is grappling with how to enforce its 2008 medical marijuana laws. Police, in recent raids on businesses and homes, say marijuana providers are far exceeding the amount they are allowed to dispense to patients and that some patients are acquiring the drug, even though they are not seriously ill.

 

More than a dozen Oakland County residents were arrested in late August and face a variety of charges. Those cases are pending.

 

 

Read more: Appeals court reinstates charges in medical marijuana case | freep.com | Detroit Free Press http://www.freep.com/article/20100915/NEWS03/100915051/1001/rss01#ixzz0zd9CX6mn

[+EdwardGlen]

Much love Bob and Torey we are all still behind you and every other QP and or QCG wrongfully arrested.

[peanutbutter]

This ruling is in contrast with the Keith Campbell ruling.

 

This one says that the MMA didn't give us rights. In the Campbell ruling it says it did give us rights.

[AbsoluteRoyal]

This is the single worst ruling I've ever read. You see a surgeon for 10 minutes prior to him stopping your breathing, and cutting you from navel to neck. Does the doctor/patient relationship exist in that case?

 

Is there any chance at this going to the supreme court or the ruling could somehow be overturned? I have been shaking mad since I read the decision earlier

[+RevThad]

I must have missed the portion of the opinion that said registered patients were no longer protected from arrest, it would be in direct contradiction to the portion of the ruling that I posted.

 

The prosecution contends that this section justifies its position that § 4 must be adhered to in order for a defendant to invoke § 8, because the affirmative defense is only available to a defendant who complies with the other provisions of the MMMA.

 

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.

 

 

 

Again my reading of the ruling, suggests and reaffirms the protections from arrest by those that satisfy the requirements of Section 4. Then goes on to state that if the qualifications of Section 4 aren't met, the patient (unregistered) can and must rely on the language of Section 8.

 

If relying on the the AD of Section 8, the law itself suggests that the evidence be subject to rebuttal by the prosecutor in an evidentiary hearing.

 

Registered patients and caregivers are afforded all of the protections of Section 4 still under this ruling, and because they are protected from arrest except under the conditions in section 7, would not need to rely on the AD.

[DenturesLost]

The ruling does NOT state that the was not a bonafide dr/pt relationship. The ruling only calls the relationship into question. It leaves the lower court with the power to make this decision on remand. People are misreading this. Essentially all the coa said was that the prosecutor should have his day in court to try and prove xyz. Whether he CAN prove xyz is another issue altogether.

 

All in all I firmly believe that once this hits the liberal michigan supreme court it will be reversed. So bide your time.

[+RevThad]

Is there any chance at this going to the supreme court or the ruling could somehow be overturned? I have been shaking mad since I read the decision earlier

Well, next stop for this case is back to the lower court, where there will be an evidentiary hearing.... Of course the attorneys involved could try to raise this directly up to the next court of appeals which would be the Supreme Court. I am not sure that the Supreme Court would entertain it at this point, but certainly will be a place this case eventually visits.

 

It is a tactical battle plan the lawyers involved will have to decide on... either way the law is on our side.

[peanutbutter]

Oh no .. the next stop is the Supreme Court.

 

Everyone wants this in the Supreme Court.

 

Everyone.

[peanutbutter]

http://www.youtube.com/watch?v=kmrtVCohlaU

[David1946]

My home is sacred to me. Its where my children sleep and play and where my wife and I provide for our family. After today I am more than ever willing to stand toe to toe to any uniformed intruder breaking into my home in the guise of law enforcement because I choose to use an alternative medication.

[badinuf]

Government officials sleeping with the judges. Just a system.

[+RevThad]

Oh no .. the next stop is the Supreme Court.

 

Everyone wants this in the Supreme Court.

 

Everyone.

I agree that we all want this to reach the Supreme Court. However, at present the only thing that would be reviewable (appealable) would be whether or not the district court rightfully dismissed the case, or did they err in not holding it over for trial. At present they would probably not grant a hearing on it, as the COA ruling is pretty sound with its remanding to the lower court.

 

The issues we all care about need to be decided down below, so to speak, then brought up the chain. This ruling was a small victory for our side, believe it or not.

 

It reaffirmed the position that Section 4 protects a registered patient and caregiver from “arrest, prosecution, or penalty in any manner . . . .”.

 

It also affirmed the position that unregistered patients and caregivers are entitled to the protections of Section 8.

 

The rest of the stuff is to be decided in the lower courts, and is subject to review and appeal back up the chain.

[peanutbutter]

I agree that we all want this to reach the Supreme Court. However, at present the only thing that would be reviewable (appealable) would be whether or not the district court rightfully dismissed the case, or did they err in not holding it over for trial. At present they would probably not grant a hearing on it, as the COA ruling is pretty sound with its remanding to the lower court.

 

The issues we all care about need to be decided down below, so to speak, then brought up the chain. This ruling was a small victory for our side, believe it or not.

 

It reaffirmed the position that Section 4 protects a registered patient and caregiver from “arrest, prosecution, or penalty in any manner . . . .”.

 

It also affirmed the position that unregistered patients and caregivers are entitled to the protections of Section 8.

 

The rest of the stuff is to be decided in the lower courts, and is subject to review and appeal back up the chain.

 

I believe that the decision by the COA can be appealed to the Supreme Court.

 

The remand would be appealed. That is the way things get to the high court.

 

One good thing is that the COA included so many issues completely unrelated to this case. All of which can be argued before the high court.

[bobandtorey]

It also affirmed the position that unregistered patients and caregivers are entitled to the protections of Section 8.

 

that is what are Lawyers told me today that the AD will be in court sounds like a good thing to me and the story go on and on

[+RevThad]

I believe that the decision by the COA can be appealed to the Supreme Court.

 

The remand would be appealed. That is the way things get to the high court.

Yes, I agree the ruling can be appealed. The only thing that the high court could review though is whether or not there was an error in the original dismissal or in the reversal of that dismissal.

 

The other issues, the ones that are important to all of us, would need to be tried first in one of the lower courts, then appealed up. Hope that makes sense.

 

The Supreme Court could always take up those issues through other channels, but for them to touch those issues via this case, much more needs to be done in the lower courts.

 

At least that is my understanding of the way the law works here in Michigan, I am merely a layman and could be wrong in my understanding...

[bobandtorey]

It also affirmed the position that unregistered patients and caregivers are entitled to the protections of Section 8.

 

that is what are Lawyers told me today that the AD will be in court sounds like a good thing to me and the story go on and on

 

 

well here it gos my Lawyer wants us to ask for money to help pay for some of the court cost so i am going to start a fund i do not know how but i will try

[+RevThad]

It also affirmed the position that unregistered patients and caregivers are entitled to the protections of Section 8.

 

that is what are Lawyers told me today that the AD will be in court sounds like a good thing to me and the story go on and on

Exactly. Now the lawyers go back to the grind stone and fight it out some more in the lower courts, or appeal the remand. Either way we are making progress, and this is not as scary a thing as some initially thought.

[bobandtorey]

Exactly. Now the lawyers go back to the grind stone and fight it out some more in the lower courts, or appeal the remand. Either way we are making progress, and this is not as scary a thing as some initially thought.

 

 

Thanks

[bobandtorey]

Karen O'Keefe, The author of the law seems to have the same problem I do with this ruling.

 

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").

 

The ruling not only questions the relationship, but also the quality. Both of which are bad for us.

 

 

i guess that every one that went their will have their cards nulled

[+RevThad]

We do not intend to legislate from the bench and define exactly what must take place in order for a bona fide physician-patient relationship to exist. We do find, however, that the specific facts in this case, as set forth in the prior paragraph, were sufficient to raise an issue for the trier of fact concerning whether the doctor’s recommendations resulted from assessments made in the course of bona fide physician-patient relationships between Dr. Eisenbud and Redden and between Dr. Eisenbud and Clark. Indeed, the facts at least raise an inference that defendants saw Dr. Eisenbud not for good-faith medical treatment but in order to obtain marijuana under false pretenses. Accordingly, the district court erred in finding as a matter of law that defendants had satisfied all the requirements of a § 8 defense.

 

They are suggesting that somebody using the AD, must show in an evidentiary hearing before the trier of fact (not the prelim judge) that they meet all of the guidelines under Section 8. They found that such a trial of the facts, has not occurred, and therefore it was too soon for the lower court to dismiss the case under the AD.

 

They suggest that if there is a question as to whether or not an unregistered patient is in compliance with the MMMA, the burden falls upon the patient to show that they are covered under Section 8... Which is already the way the law is written..

 

(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a).

 

Which means the prosecutor gets a chance to rebut that evidence... The COA just ruled on where such a hearing needs to take place if there is a question of compliance with subsection (a) of Section 8.

[+RevThad]

i guess that every one that went their will have their cards nulled

Nah, anybody that has a valid card (or paperwork while waiting for their card), is granted by this ruling the protections of Section 4, which includes being protected from arrest as long as they are not in violation of the things listed in Section 7...

 

Section 7 states:

(a) The medical use of marihuana is allowed under state law to the extent

that it is carried out in accordance with the provisions of this act.

(b) This act shall not permit any person to do any of the following:

(1) Undertake any task under the influence of marihuana, when doing so

would constitute negligence or professional malpractice.

(2) Possess marihuana, or otherwise engage in the medical use of

marihuana:

(A) in a school bus;

(B) on the grounds of any preschool or primary or secondary school; or

© in any correctional facility.

(3) Smoke marihuana:

(A) on any form of public transportation; or

(B) in any public place.

(4) Operate, navigate, or be in actual physical control of any motor

vehicle, aircraft, or motorboat while under the influence of marihuana.

(5) Use marihuana if that person does not have a serious or debilitating

medical condition.

© Nothing in this act shall be construed to require:

(1) A government medical assistance program or commercial or non-profit

health insurer to reimburse a person for costs associated with the medical use of

marihuana.

 

 

Card holders just had their rights reaffirmed by this ruling.

[TajMahal]

"The concurring opinion is a nightmare"

 

Absolutely, could not believe high court judges injecting their personal beliefs via quotations from an ancient time in the past.

Makes them look foolish and retarded. Michigan and especially her citizens deserve far better.

[+Silverblue]

My home is sacred to me. Its where my children sleep and play and where my wife and I provide for our family. After today I am more than ever willing to stand toe to toe to any uniformed intruder breaking into my home in the guise of law enforcement because I choose to use an alternative medication.

I hope anyone reading this and other posts saying or implying they'd do physical battle with leo understands that this site dos not support those actions.

 

People, Please don't hate me for this, I understand the anger, I've witnessed violent behavior and did all I could to hold myself back from retalliating.

 

I'm sure many of us think about doing this too but please consider what I'm about to say:

Often I think about what I'd do in such a situation, the things I do in my mind would never be advisable or carried out even if I were physically able to do so, though I do believe very strongly in self defense, but an armed madman who is very well trained, with heightened reflexes and agility, will be a difficult being to put down. Aren't there usually more than one when they make these "visits?" With the laws so stacked against us, pleading self defense doesn't always work, and would only make matters worse for the defendant, though that person is totally LEGAL and may technically have the right of self defense. Ok, say you succeed in killing them, how many more will come after you? They hide behind their badges and uniforms, wearing masks like common thieves. So you kill him, word gets out, newspapers pick it up, our terribly biased media runs the story, "violent marijuana suspect kills police officers". Even though you were totally justified in defending yourself, home, and family, your actions will cause more harm to our community- two wrongs don't make a right. I pray I never see the day I'm confronted by these kind of people, it'd be very difficult to remain peaceful, if I were able to combat them.

 

People like those rouge leos are itching for a fight, remember the Saginaw sheriff trying to provoke the crowd? That's what they want, they wanna prove we're violent. As tempting as it is to fight back, remaining peaceful proves them wrong.

 

Sincerely, Sb