Curing The Law

[+EdwardGlen]

http://www.michigandaily.com/content/daily-fix-prescription-pot-laws

 

Medical marijuana may be legal in Michigan, but when the law comes under scrutiny, more questions than answers are found. Michigan voters called for the legalization of medical marijuana in 2008. But the resulting law’s ambiguity has caused problems for patients trying to obtain the drug for treatment. Last week, Michigan Court of Appeals Judge Peter O’Connell called for a revision of the current law, which he argues has been too “open for interpretation.” Michigan lawmakers should clarify the existing legislation so that patients who are prescribed marijuana can get it without fear of violating the law.

 

Last Wednesday, Judge O’Connell released a 30-page opinion on an Oakland County case in which two Madison Heights residents were charged with marijuana possession. In the opinion, he argues that state legislators should refine the medical marijuana law since it contradicts current Public Health Codes that make the possession and manufacture of marijuana illegal, according to a Sept. 16 article in The Detroit News. O’Connell goes on to say that even users “who proceed with due caution” could “lose both their property and liberty” because of these inconsistencies.

 

Michigan’s economy wins if legislators can create a viable way of obtaining legal medical marijuana. If Michigan created a system like California’s — where individuals who hold a prescription for medical marijuana have access to regulated and taxed dispensaries — the state could gain millions of dollars in revenue annually. The marijuana industry also could contribute to the diversification of Michigan’s economy. Instead, the ambiguities in the law prevent the state from capitalizing on this potential source of income.

 

Cardholders deserve a clear way to obtain marijuana. The drug can be a useful treatment for various health issues. Among other things, marijuana helps stimulate hunger in people undergoing chemotherapy, relieves pain, is used to treat glaucoma and helps control nausea. Despite the fact that Michigan’s law is among the most liberal in the country, it fails to establish a clear, easily accessible and legal way for cardholders to obtain marijuana. There’s no reason to deny medical marijuana cardholders access to the treatment they need and have been legally prescribed.

 

Michigan’s law — which can be broadly interpreted — is the crux of the problem. Though medical marijuana users may think they are operating within their legal rights by possessing the drug, prosecutors sometimes take legal action against users under other state guidelines. This ambiguity exists despite the fact that nearly 63 percent of voters sent a clear message to the state by voting in favor of legalizing medical marijuana in 2008. Lawmakers need to respond to the public mandate by creating a unified legal structure in which both citizens and law enforcement officials can operate appropriately. O’Connell’s suggestion is sensible — he calls for the Michigan Supreme Court to examine legal routes which will combine ample drug regulation with allowing dispensaries to remain open.

 

Those prescribed the drug deserve a way to get treatment without fear of prosecution. The Michigan legislature must take swift action to resolve the ambiguities and correct the contradictions in the existing law.

[Hempcheff]

the law is not the problem, it is the lack of liberal interpretation by the "authorities" and the use of segments of the law out of context that is causing an issue,

[peanutbutter]

O'Connell completely ignored the teeth in our new law.

 

There are criminal penalties provided within our law that are aimed at government officials.

 

That would include judges.

 

While in the process of trying to convince the entire government of Michigan to be as restrictive as possible, he may have committed a criminal act.

 

In his rant, the judge named Bob Reddens doctor.

 

Section 6 (h) (1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

[bobandtorey]

O'Connell completely ignored the teeth in our new law.

 

There are criminal penalties provided within our law that are aimed at government officials.

 

That would include judges.

 

While in the process of trying to convince the entire government of Michigan to be as restrictive as possible, he may have committed a criminal act.

 

In his rant, the judge named Bob Reddens doctor.

 

Section 6 (h) (1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

 

lets get togetter a Law sued

[David1946]

So what are the chances of anything being done against that Judge? Plenty! Lets start a lettering writing campaign to The Judicial Tenure Commission and be sure and a copy goes to the news papers and any and all Senators.

 

JUDICIAL TENURE COMMISSION

3034 WEST GRAND BOULEVARD

SUITE 8-450

DETROIT, MI 48202

[+JuztBudz]

Thank you for an excellent idea David...we need to present this problem to the only group that can actually fix it! Peace...j.b.

[Wayne'sWorld]

While I share every frustration this community faces shouldn't we first wait for the Michigan Supreme Court rulings on some of these very important issues? Spending much needed energy and revenue pursuing judicial misconduct at this time will only result in rulings from superior courts and administrative law judges excusing judicial error based on unfamiliarity with our newly enacted law. Actually doesn't sound unreasonable to me that this will be the end result of any effort to hold lower court judges accountable.

[Hempcheff]

While I share every frustration this community faces shouldn't we first wait for the Michigan Supreme Court rulings on some of these very important issues? Spending much needed energy and revenue pursuing judicial misconduct at this time will only result in rulings from superior courts and administrative law judges excusing judicial error based on unfamiliarity with our newly enacted law. Actually doesn't sound unreasonable to me that this will be the end result of any effort to hold lower court judges accountable.

 

are you suggesting not taking action regarding these hearings/cases, and just let the courts run these cases through, delivering a tidy bundle of clarification for patient and caregivers all in one package, derived from a pre-chosen agenda to regulate and decide how to best stifle the rights the said patients and caregivers, both registered and non-registered?

 

no thanks, pro active measures are in order and are necessary to ensure that the will of the voters in the State of Michigan, and the intent of the law are both are both heeded when such decisions are made, to ensure that a reasonably liberal interpretation of the law is followed by authorities as they have been instructed to do.

[+EdwardGlen]

are you suggesting not taking action regarding these hearings/cases, and just let the courts run these cases through, delivering a tidy bundle of clarification for patient and caregivers all in one package, derived from a pre-chosen agenda to regulate and decide how to best stifle the rights the said patients and caregivers, both registered and non-registered?

 

no thanks, pro active measures are in order and are necessary to ensure that the will of the voters in the State of Michigan, and the intent of the law are both are both heeded when such decisions are made, to ensure that a reasonably liberal interpretation of the law is followed by authorities as they have been instructed to do.

Being proactive at this juncture is exactly what we need to be. Its being done to us by every city, town, or village that enacts an ordinance that prevents sick people from either growing their medication or acquiring it.

[jinx]

O'Connell completely ignored the teeth in our new law.

 

There are criminal penalties provided within our law that are aimed at government officials.

 

That would include judges.

 

While in the process of trying to convince the entire government of Michigan to be as restrictive as possible, he may have committed a criminal act.

 

In his rant, the judge named Bob Reddens doctor.

 

Section 6 (h) (1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

 

You are right on !!!!!

My letter to the Michigan Judicial Tenure Commission goes out tomorrow AM/.

Dr. Jinx

[+Silverblue]

If writing a letter would help I'd like to see a draft of something we could all work from, the main points to say.

 

Sb

[Harmony]

I "think" what WaynesWorld is trying to say is write the politician representing your area. In other words: "if a tree falls through your roof and breaks a window will you fix the roof or the window first?" The judge is a tiny fish in a pool of sharks. The law must be fixed so judges are not able to fall on any prejudices. In my humble opinion... Send the letter to the person from your area who votes on it behind the closed doors we the people don't get in...

[Wayne'sWorld]

I wish all of the amateur lawyers all the luck in the world. Oddly enougn my daughter is attending New York University Law School and despite the fact that she will graduate with a diploma, exceptional education, and exceptional summer work resume. She still doesn't become a lawyer until she passes the state bar.

 

Lawyers, judges, and the courts will sort this out in the end. That's the facts of the American justice system , not my practicing law. The Judicial Tenure Commission will excuse a wide range of error for lower court judges writing opinion on voter enacted statutes, especially such a controversial one, most likely apply the same principle to the appelate court justices too. Until such time as the Michigan Supreme Court rules on various aspects of the law as applicable to individual cases. Once ruled upon by the Michigan Supreme Court then citizen's have backing for filing complaints against judges who refuse to follow those rulings. Again this is just the system, and the wheels of justice do drag political a ss on convtroversial issues, especially at election time (you know schedules change constantly just like Congress). Not practicing law just the facts regarding how the system is structured.

 

Leave this crap to lawyers with licenses and clients who can afford the fight. Have hope for the rest, and support them in court every chance you get. This community has much greater things to do and a plan moving forward to attempt the possible. Support them 100% and leave the independent activism aside for a while. There is plenty for everyone to do as a team, alliance, or coalition, or on committes of any and all of the fine organizations in Michigan working hard for cannbis reform. We all have a medical marijuana law to protect, defend, and most importantly promote. This community has an obligation to the patients, caregivers, and public who supported us.

 

Made a commitment to the better half not to lead anymore, left that behind when I retired from AFSCME Local 831 Caro after 20 years of fierce battle with the opposition. SUPPORT UNIONS!!!!

 

As far as the future goes? My number one suggestion? Really smooths the ride to your destination.

 

START GREASING THE WHEELS!!

 

Oh, and educating the public. Got some great suggestions there. Like Eric Van Dussen's fine work? Quite the journalist there eh?

[Wayne'sWorld]

Yes harmony, always, always write your legislators. It does make a difference if you go about it right. Not the most literate? Don't fret. Join MMP or MINORML. I'm only promoting them here in terms of getting access to to their "letters to legislator's feature". Just fill in personal info and send, you also become the voice of many through membership.

[Hempcheff]

from waynesworld:

 

"Lawyers, judges, and the courts will sort this out in the end. That's the facts of the American justice system , not my practicing law. The Judicial Tenure Commission will excuse a wide range of error for lower court judges writing opinion on voter enacted statutes, especially such a controversial one, most likely apply the same principle to the appelate court justices too. Until such time as the Michigan Supreme Court rules on various aspects of the law as applicable to individual cases. Once ruled upon by the Michigan Supreme Court then citizen's have backing for filing complaints against judges who refuse to follow those rulings. Again this is just the system, and the wheels of justice do drag political a ss on convtroversial issues, especially at election time (you know schedules change constantly just like Congress). Not practicing law just the facts regarding how the system is structured."

 

 

it sounds like your leaning towards a sit back, dont act, let the dust settle, and hope that after the courts are done we still have a law that protects us? to wait and see if we as a community are locked down with decisions from people that have been fed innacurate facts by the authorities above them.

 

Because we all know if we let Leo decide who gets arrested and who gets tried, we will have no-one looking out for the best interests of the patients.

 

no thank you.

[Wayne'sWorld]

So how does this community exert enough pressure, and on whom? What can the MMMAorg and it's members MAKE happen? What avenue will you take with both time and money to implement what this community wants or needs? Lawsuits are free? Access to the courts is free? Everyone here has the knowledge to file and pursue legal action against the state of Michigan? I'm just not getting much more than static from all this. Guess I'm from Missouri. SHOW ME!!!!!

[peanutbutter]

There has been a change in procedure.

 

It used to be that someone could file anonymously and electronically.

 

Now it has to be by US mail with notarized signatures.

 

This was a change that took place in the last few days:

 

Anyone may file a request for investigation (or “grievance”) against a state judge, magistrate, or referee on the Commission’s complaint form. A copy of the Request for Investigation form can be requested by telephone at (313) 875-5110, or can be downloaded by clicking here. (Note: You will need Adobe Acrobat Reader to open the downloaded file. To get Acrobat Reader, click here.)

 

The court rules require that the person filing the grievance (“the grievant”) have his or her signature verified (i.e., notarized) to establish that he or she has sworn to the truthfulness of the statements made in the grievance. The Request for Investigation may include copies of any relevant documents or transcripts. Because of the requirements of an original signature and verification by a notary public, Requests for Investigation CANNOT be accepted electronically (that is, by e-mail or facsimile). Therefore, Requests for Investigation and any accompanying documents MUST be sent to:

JUDICIAL TENURE COMMISSION

3034 WEST GRAND BOULEVARD

SUITE 8-450

DETROIT, MI 48202

 

The Commission may also institute an investigation on its own, or at the request of the Chief Justice of the Michigan Supreme Court or the State Court Administrator. The Commission may also consider complaints made anonymously (if submitted in writing), and it may open a file into matters it learns of in other ways, such as news articles or information received in the course of a Commission investigation.

 

After a request for investigation is filed, the Commission and its staff acts as expeditiously as possible yet gives every complaint careful attention. The Commission determines the scope of the staff’s investigation. If the Commission needs additional facts or information from the grievant, a member of the staff will contact the grievant. After the investigation, the grievant will be advised of the Commission’s resolution of the grievance. For a summary of the investigative proceedings, please refer to the Complaint Process page.

 

quoted from this page:

 

http://jtc.courts.mi.gov/

 

After you get to the page click on "how to file a grievance" on the left side.

[peanutbutter]

The procedure:

 

Commission Procedures During

The Complaint Process

 

This summary is provided to assist in the general public's understanding of the disciplinary process. For specific provisions governing Commission proceedings, please refer to the applicable Michigan Court Rules and Internal Operating Procedures.

 

 

PRELIMINARY INVESTIGATION

 

Commission Review of Complaints

Upon receipt, the staff carefully reviews each properly executed and notarized Request for Investigation form, along with any supporting documents or other evidence. It also reviews the court file if necessary. The staff requests from the grievant any additional information needed to evaluate the allegations, including but not limited to transcripts or videos of court proceedings. It may not pursue any further investigation without authorization by the Commission.

 

Based on an assessment of the initial information, the staff prepares a report for the Commission recommending a course of action. Each grievance is considered and voted upon by the Commission. It determines whether the matter is within its jurisdiction and whether sufficient facts exist to warrant further investigation.

 

Investigation at the Commission’s Direction

When the Commission determines that a complaint warrants review beyond the initial investigation, the Commission directs the staff to investigate the matter and report back. The Commission will give the staff specific instructions on how to conduct the additional investigation. It may include contacting witnesses, reviewing court records and other documents, observing courtroom proceedings, and conducting such other inquiry as the issues may warrant.

 

At times the judge may be asked to comment on the allegations, in which case the judge is given a copy of the grievance as part of the investigation. The Commission may limit the inquiry to the judge to a particular aspect of the grievance. The judge’s response is then considered along with all other information. A judge's comment is required under MCR 9.207© prior to the disposition of a grievance in any way other than an outright dismissal under MCR 9.207(B)(1).

 

CONFIDENTIAL DISPOSITION OF GRIEVANCES

 

If any investigation reveals facts that warrant dismissal of the grievance based on lack of jurisdiction or as the allegations are found to be untrue or unprovable, it may be closed. If the grievance has not been provided to the judge with a request for comment, the Commission provides a copy of the grievance to the judge upon closing the case.

 

After an investigation and opportunity for a judge to provide comments to the allegations, the Commission may determine that although there was no judicial misconduct, certain actions of the judge should preferably not be repeated. On those occasions, the Commission may dismiss the matter with a letter of explanation to the judge. If after an investigation and opportunity for comment by the judge, the Commission determines that improper or questionable conduct did occur, but it was relatively minor, the Commission may dismiss the case with a cautionary letter to the judge. In cautionary letters, the Commission will advise caution or express disapproval of the judge’s conduct. Neither a cautionary letter nor a letter of explanation is a form of discipline.

 

The Commission may also dismiss a matter contingent upon the judge satisfying conditions imposed by the Commission, which may include a period of monitoring of the judge's conduct in the bench. The failure of the judge to satisfy the conditions may result in reinstatement of the grievance.

 

When conduct that is more troublesome is found, the Commission may issue an admonition. That resolution is designed in part to bring problems to a judge’s attention at an early stage in the hope that the misconduct will not be repeated or escalate. An admonition consists of a notice to the judge containing a description of the improper conduct and the conclusions reached by the Commission. Upon receipt of an admonition, a judge has 28 days to file a petition for review by the Supreme Court. The Executive Director has 14 days to respond. The Supreme Court then reviews the matter, and any resulting opinion or order is published and has precedential value.

 

Explanatory letters, cautionary letters, and admonitions are confidential (unless an admonition is reviewed by the Supreme Court at the judge's request, as described above). Due to the rules of confidentiality, the Commission and its staff ordinarily cannot advise anyone of the nature of the action taken. An exception is that the Commission is permitted to advise the grievant that corrective action has been taken, when it issues an admonition or cautionary letter to resolve its investigation. Upon completion of an investigation that results in a straight dismissal, or the issuance of an explanatory letter, the grievant will simply be advised that the Commission has closed the matter.

 

For generalized summaries of the conduct which resulted in explanatory letters, cautionary letters, and admonishments for the most recent year available, please see the Recent Commission Actions and Notices page.

 

In circumstances where the misconduct is more serious, but not necessarily serious enough to warrant a formal complaint, the Commission may recommend that the Supreme Court privately censure the judge after a comment is obtained under MCR 9.207©(1). Such a sanction is more severe than an admonishment by the Commission as it is rendered by the Supreme Court.

 

 

 

PUBLIC DISPOSITION OF GRIEVANCES

 

The Formal Complaint

In cases involving allegations of serious misconduct, the Commission may institute formal proceedings after the preliminary investigation is complete. Before issuing a formal complaint, the Commission must afford the judge notice of the charges. The judge then has 28 days to present, in writing, any matters the judge chooses for consideration by the Commission. MCR 9.207©(1). When formal proceedings are instituted, the Commission issues a formal complaint, which constitutes a written statement of the charges. The judge’s answer to the notice of charges is filed with the Commission and served within 14 days after service of the notice. MCR 9.209. The formal complaint, the judge’s answer, and all subsequent pleadings are public documents, available for inspection at the Commission’s office.

 

The rules provide for some discovery between the parties after formal proceedings are instituted. At least 21 days before a public hearing on the formal complaint, the parties must exchange the names and addresses of all persons they intend on calling as witnesses at the hearing, and provide statements and affidavits given by those persons. The Commission is required to make available to the respondent judge, for inspection or review, all exculpatory material in its possession that it intends to introduce as evidence at the hearing.

 

The Commission may petition the Supreme Court for an interim order suspending a judge pending final adjudication of a formal complaint. MCR 9.219.

 

Hearing

After the judge has filed an answer to the charges, the Commission sets the matter for a hearing. As an alternative to hearing the case itself, the Commission may request the Supreme Court to appoint a master to hear and take evidence in the matter and to report to the Commission. Masters are active judges or judges retired from courts of record.

 

The judge may be represented by counsel at the hearing. The evidence in support of the charges is presented by an examiner appointed by the Commission. The Michigan Rules of Evidence apply to the hearings, which are conducted like civil trials. MCR 9.211(A).

 

Standard of Proof

The general standard of proof in Commission proceedings is a preponderance of the evidence. In re Ferrara, 458 Mich 350 (1998).

 

Commission Consideration Following Hearing by Master

Following the hearing on the formal complaint, the master files a report with the Commission. The report includes a statement of the proceedings and the master’s findings of fact and conclusions of law with respect to the issues presented by the formal complaint and the judge’s answer.

 

Upon receipt of the master’s report, the judge and the examiner are given the opportunity to file objections to the report and to brief the issues in the case to the Commission. Prior to a decision by the Commission, the parties are given the opportunity to present oral arguments before the Commission.

 

Disposition of Cases After Hearing

After hearing the testimony, or after reviewing the master’s findings, the Commission may dismiss the matter if it determines that there has been insufficient evidence of misconduct. However, if the Commission determines that misconduct has been established by a preponderance of the evidence, it may recommend that the Michigan Supreme Court impose discipline against the judge. The Commission itself has no authority to discipline a judge; the Michigan Constitution reserves that role for the Supreme Court. The Commission may recommend that the Court publicly censure a judge, impose a term of suspension, or retire or remove the judge from office. The Commission issues a Decision and Recommendation, which triggers the next series of steps.

 

The Supreme Court Hearing

Within 21 days after issuing its Decision and Recommendation, the Commission files the original record in the Supreme Court and serves a copy on the judge. Within 28 days after service, the judge may file a petition in the Supreme Court to modify or reject the Commission’s Decision and Recommendation. The Commission has 21 days to respond with a brief of its own supporting its finding. Even if the judge does not file a petition, the Supreme Court reviews the Commission’s Decision and Recommendation. The Supreme Court may remand the matter to the Commission for taking further evidence.

 

The Court clerk places the matter on the Court calendar. The judge and the Commission have an opportunity to present oral arguments to the Court, which reviews the record on a de novo basis. In re Ferrara, 458 Mich 350 (1998). After reviewing the record, the Court issues an opinion and judgment directing censure, removal, retirement, suspension, or other disciplinary action, or rejecting or modifying the Commission’s Decision and Recommendation. The court rules allow a judge to file a motion for rehearing in the Supreme Court unless the Court directs otherwise in its opinion.

 

CONFIDENTIALITY OF COMMISSION PROCEEDINGS

 

The Michigan Constitution authorizes the Supreme Court to provide for the confidentiality of complaints to and investigations by the Commission, Michigan Constitution; article 6, section 30. The court rules provide that complaints and investigations are privileged and confidential, subject to certain exceptions, unless and until a formal complaint is issued. MCR 9.221.

 

The instances where the confidentiality and privilege provisions may not be applicable are fully addressed in MCR 9.221. One provision is that under MCR 9.221(B), the Commission may make public statements during the investigating stage if, on its sole determination by majority vote, it is in the public interest to do so. Nevertheless, the Commission’s statement, if any, is limited to the fact that (1) there is an investigation pending, (2) the investigation is complete and there appears to be insufficient evidence for the Commission to file a complaint, or (3) with the consent of the respondent, that the investigation is complete and some specified disciplinary action has been taken.

 

Pursuant to MCR 9.221(D), when formal proceedings are instituted, the formal complaint, answer, and all subsequent pleadings, the formal hearing, and the hearing before the commission provided for in MCR 9.216 are open to the public. Materials filed with and proceedings before the commission prior to the issuance of a formal complaint remain confidential unless offered into evidence in a formal hearing. Commission deliberations during formal proceedings remain confidential.

 

Additional provisions addressing discretionary waiver of confidentiality or privilege, a public safety exception, and terms of disclosure to the grievant, state court administrator, and attorney grievance commission are also contained within MCR 9.221.

[peanutbutter]

Sec. 8. (a) Except as provided in section 7, a patient and a patient's primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:

 

(1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;

 

The state issued ID card is evidence that a doctor has made this statement.

 

Guilt is established by a preponderance of evidence. The burden would be on the state to disclose the name of the doctor. Which is a violation of criminal law.

[Wayne'sWorld]

I'm seriously excited to see the response you receive. Have my notions. But I'd be the first to say I'm not always right. Sounds like a lengthy process time if it ever reaches final disposition.

[peanutbutter]

I'm seriously excited to see the response you receive. Have my notions. But I'd be the first to say I'm not always right. Sounds like a lengthy process time if it ever reaches final disposition.

 

On the other side of the coin, this looks like it may be a fast track to the Supreme court.

 

The very first thing that takes place is that the judge involved has to think.

[lawyercaregiver]

The very first thing that takes place is that the judge involved has to think.

 

Then we are truly doomed.............................

[lawyercaregiver]

I would not advocate filing a judicial tenure commission complaint against O'Connell. What is the charge? I don't think being biased, pigheaded, or even stupid is a valid claim.

 

Maybe there is something about legislating from the bench that he violated but everything was an interpretation of an ambiguous law. Unfair obnoxious opinions get you voted out of office in Michigan, usually not by the judicial tenure board. They act in case of fraud like selling your orders, or some other crime or serious malfeasance the judge committed.

[+Silverblue]

I wish all of the amateur lawyers all the luck in the world.

We're doing our best to UNDERSTAND the law so we can FOLLOW it, just as you are doing. It sure seems like many who are SUPPOSED to know what the law says and means, do not have much of a clue. See what that judge has done so far; people who should know are getting it wrong. Who knows, some "amateur lawyer" just might surprise us. There are many people who may seem like they have little or nothing to offer, yet are sometimes given the chance to shine, and show the world, as well as themselves, just how Valuable they truly Are. I know this well.

 

Sb