What -Is- "clear And Unambiguous Compliance" With The Mmmact?

[+Green Cross]

Throwing this out, asking your input: what -IS- "clear and unambiguous compliance" with the MMMAct?

 

I got to wondering. Being a researcher I consulted 8 lawyers knowledgeable in the Act including Karen O'Keefe Esq. Asked that question, each summarized: "until an Appeals Court rules otherwise there is no bullet-proof answer except caregiver-patient duos linked together through the Registry," and both must stay within medicine weight limits. As in, "clear and unambiguous compliance" means having both names on both cards. Worryingly, even patient-to-patient transfers may be challenged as trafficking by aggressive prosecutors. That's draconian in a state where 63% of voters passed our plain language ballot initiative. Until we get clarity it sure seems that moderation and prudence would be good defensive strategies. Don't know whether these are true, just reporting lawyers' responses. What say you?

[Rx420]

Delete

[Rx420]

What do they mean "caregiver patient duos"? I thought it was one cg to 5 patients (6 if cg was a caregiver patient to themselves). I think that's pretty clear.

[whodathot]

Makes you wonder why this law was written so poorly.

[lawyercaregiver]

The law was actually rather artfully drafted. The purpose was a little bit like blackjack- you know, come as close to legalization as possible without going over or something like that.

 

The contradictions and holes were left intentionally due to polling and focus group data and were not filled because doing so would have meant the law would not have passed.

 

Like all legislation this was a compromise, and not a particularly good one but it was the best we could do given the procedures allowed under Michigan law.

 

I agree clear and unambiguous compliance with the MMMA is rather tricky given the unclear and ambiguous language of the Act.

 

The way I read it, this is a very expansive law that virtually legalizes marijuana, leaving only a thin sheen of medical veneer to overlay it.

 

So I think dispensaries, collectives, etc should be allowed and certainly patient to patient transfers. HOWEVER, I do not believe any of these creative ideas represent clear and unambiguous compliance with the State law until the Michigan courts say so.

 

The Act clearly and unambiguously set up a registry system and a caregiver system with very specific weight limits and plant counts. Beyond that the game is craps- not blackjack.

[+Green Cross]

What do they mean "caregiver-patient duos"?

 

I was told that means one patient named one caregiver on a form; that caregiver attested to serve that patient on a form; lastly, the MMMP approved both forms (no denial letter sent) resulting in it issued ID cards to both persons containing each other's info. Due to backlogs at the Program, valid application copies serve as proofs until cards are sent out. That's what the MMMP calls "linked through the Registry." You're right that one caregiver may serve up to 5 patients each of whom have performed the steps above.

 

Anyone else have definitions of "clear and unambiguous compliance" that would withstand hostile prosecutor or Court scrutiny?

[Wayne'sWorld]

Round and round and round we go. What's the law? Nobody knows. So it begs these questions:

 

How many people on this forum believe they understood what they were voting for? How many voted not having a clue what they were voting for? Is the opposition then correct in stating this law is not understandable? Simple yes or no answers!

 

This community appears to be making the oppositions case for them.

[peanutbutter]

no

[+RevThad]

 

 

Anyone else have definitions of "clear and unambiguous compliance" that would withstand hostile prosecutor or Court scrutiny?

 

The simple answer to this question is no. A hostile prosecutor or court is going to do whatever they wish regardless of "clear and unambiguous compliance". One such prosecutor has already made statements in the courtroom on the record saying "it's only... cancer" about a patient being able to medicate while awaiting trial.

 

Hell, there isn't even clear and unambiguous understanding of the presumption of innocence in our courtrooms these days. Judges, are treating folks like criminals prior to any trial or sentencing, stripping patients of their right to use medications while awaiting those phases of the judicial process.

 

I want to reflect a bit longer on the initial question though, and perhaps will share my thoughts later.

[Rx420]

I was told that means one patient named one caregiver on a form; that caregiver attested to serve that patient on a form; lastly, the MMMP approved both forms (no denial letter sent) resulting in it issued ID cards to both persons containing each other's info. Due to backlogs at the Program, valid application copies serve as proofs until cards are sent out. That's what the MMMP calls "linked through the Registry." You're right that one caregiver may serve up to 5 patients each of whom have performed the steps above.

 

Anyone else have definitions of "clear and unambiguous compliance" that would withstand hostile prosecutor or Court scrutiny?

 

Thanks. Now I guess I can answer. I am not an attorney, but I can say I attended the first OU sessions in Ann Arbor in May and again in Sept 2009. I left those sessions with pretty much the same view you received from the attys you surveyed. Small operations linking one caregiver to no more than 5 patients. I also left those sessions with the impression there were vague areas in the law and that some would push the outer edges and in the end the edges would be clarified and defined by the courts that included co-ops and dispensaries. Hence, to answer your original question then I would say if you stick to the letter of the law what you are hearing from the attys is probably right on, given my understanding. Is there ambiguity? Yes in a number of areas. Do I wish to venture into the gray areas? No, but others will and god bless them.

 

JMHO

[+Green Cross]

Got it RevThad. Thanky kindly. As Elvis used to say, 'nice-a meet-cha.'

 

But dang brother, if "No" is the answer then it follows that patients, caregivers, compassion clubs, dispensaries, etc -must become informed- on what -is- legal behavior under the MMMAct. Loss of liberty and property is too costly for folks not to know their defensible rights and limits. I support increased efforts to educate the mmj community, leo, and the wider public: such efforts first require clarity of our rights.

 

US Attorney General Holder's recent pronouncement, in sum, was that the feds should leave alone folks who are in "clear and unambiguous compliance" with their State mmj laws. Given the Supremacy Clause we now have federal guidance. Meanwhile, Michigan's law has wiggle room...and leo/prosecutors/courts have prisons. Bottom line, our liberty and property and herbal therapy -depend on- one accepted definition of what constitutes "clear and unambiguous compliance" that will withstand Court challenge. But dang it again, attorneys consulted agree "it all depends" on circumstances in individual cases. Am seeking all input here.

[peanutbutter]

Got it RevThad. Thanky kindly. As Elvis used to say, 'nice-a meet-cha.'

 

But dang brother, if "No" is the answer then it follows that patients, caregivers, compassion clubs, dispensaries, etc -must become informed- on what -is- legal behavior under the MMMAct. Loss of liberty and property is too costly for folks not to know their defensible rights and limits. I support increased efforts to educate the mmj community, leo, and the wider public: such efforts first require clarity of our rights.

 

US Attorney General Holder's recent pronouncement, in sum, was that the feds should leave alone folks who are in "clear and unambiguous compliance" with their State mmj laws. Given the Supremacy Clause we now have federal guidance. Meanwhile, Michigan's law has wiggle room...and leo/prosecutors/courts have prisons. Bottom line, our liberty and property and herbal therapy -depend on- one accepted definition of what constitutes "clear and unambiguous compliance" that will withstand Court challenge. But dang it again, attorneys consulted agree "it all depends" on circumstances in individual cases. Am seeking all input here.

 

It all depends ..

 

There seems to be an agreement that our law doesn't really exist yet. Not until it is confirmed by the Michigan supreme court.

 

Even then, there is suggestion that federal law should nullify our new law.

 

There is not one single detail that 100% of people asked will agree on.

 

So, as far as the feds go, there is no mmj law in Michigan.

[+RevThad]

Got it RevThad. Thanky kindly. As Elvis used to say, 'nice-a meet-cha.'

 

But dang brother, if "No" is the answer then it follows that patients, caregivers, compassion clubs, dispensaries, etc -must become informed- on what -is- legal behavior under the MMMAct. Loss of liberty and property is too costly for folks not to know their defensible rights and limits. I support increased efforts to educate the mmj community, leo, and the wider public: such efforts first require clarity of our rights.

 

US Attorney General Holder's recent pronouncement, in sum, was that the feds should leave alone folks who are in "clear and unambiguous compliance" with their State mmj laws. Given the Supremacy Clause we now have federal guidance. Meanwhile, Michigan's law has wiggle room...and leo/prosecutors/courts have prisons. Bottom line, our liberty and property and herbal therapy -depend on- one accepted definition of what constitutes "clear and unambiguous compliance" that will withstand Court challenge. But dang it again, attorneys consulted agree "it all depends" on circumstances in individual cases. Am seeking all input here.

My answer was predicated on the quote cited "hostile prosecutors and courts".

 

The truth of the matter is, there are courts across the state recognizing the intent of the law, they just don't get the same amount of coverage that the cases that are in front of the "hostile" prosecutors and judges...

 

Federal guidance is nice, but it doesn't have any bearing on state law, not unless they wish to challenge it on those grounds. Preemption does not apply to state mmj laws, just as they don't apply out in California, they do not apply here. As an example, a district court judge here in Michigan cannot use federal tax law to penalize somebody who is compliant with Michigan tax law. Federal law in the future may make it a crime not to pay taxes on medications purchased, yet under state law we pay no taxes on medications, while both laws state something different there is no conflict (the feds can still enforce their law).

 

I have more to add but want to allow others to chime in first.

[+Green Cross]

Federal guidance is nice, but it doesn't have any bearing on state law, not unless they wish to challenge it on those grounds.

 

Respectfully disagree for the reason that many municipalities/townships, even one entire county, have or are in-process of creating restrictive zoning and/or ordinances prohibiting any cannabusiness, citing federal Schedule I marijuana status. Theory being 'you can't do in Michigan what is prohibited federally.' The ACLU is challenging this on grounds that no Michigan governmental entity can enforce federal law so such entities' zoning/ordinances cannot be based on federal law. That will be another long-row-to-hoe but it's good to know the ACLU is taking action.

[+Green Cross]

...they will leave unambiguously legal patients and caregivers alone.

 

Amen brother man. Leave alone our patients who have legal rights for the medical use of marijuana.

[+RevThad]

Respectfully disagree for the reason that many municipalities/townships, even one entire county, have or are in-process of creating restrictive zoning and/or ordinances prohibiting any cannabusiness, citing federal Schedule I marijuana status. Theory being 'you can't do in Michigan what is prohibited federally.' The ACLU is challenging this on grounds that no Michigan governmental entity can enforce federal law so such entities' zoning/ordinances cannot be based on federal law. That will be another long-row-to-hoe but it's good to know the ACLU is taking action.

If these counties and municipalities wish to challenge the state law, and the protections it provides, they would have to challenge it based on those grounds (that preemption makes the state law unconstitutional). However, they will have an uphill fight in doing so, especially in light of recent rulings about states enforcing federal laws... Just look at the Arizona immigration situation, they were only attempting to criminalize under state law what is already criminal under federal law, and were told no.

 

Further, other ruling relating to the CSA and mmj set a very high burden for counties and local municipalities to ignore state law in favor of federal law. As one ruling put it"A state, county or city cannot do indirectly that which they cannot do directly".

 

In the same ruling and this is very on point, they stated:

 

This assumption against preemption has particular force in this case.

Preemption, it must be remembered, is fundamentally a question of congressional intent.

(In re Tobacco Cases II, supra, 41 Cal.4th at p. 1265.) And we are adjured to presume

against preemption unless we find it to be the “‘“clear and manifest purpose of

Congress.”’” (Ibid., quoting Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 506,

quoting Maryland v. Louisiana (1981) 451 U.S. 725, 746.) But in enacting the CSA,

Congress made it clear it did not intend to preempt the states on the issue of drug

regulation. Indeed, “[t]he CSA explicity contemplates a role for the States in regulating

controlled substances . . . .” (Gonzales v. Oregon, supra, 546 U.S. at p. 251.) It

provides: “No provision of [the CSA] shall be construed as indicating an intent on the

part of Congress to occupy the field in which that provision operates, including criminal

penalties, [/b]to the exclusion of any State law on the same subject matter which would

otherwise be within the authority of the State, unless there is a positive conflict between

that provision . . . and that State law so that the two cannot consistently stand together.”

29

(21 U.S.C. § 903.) “This express statement by Congress that the federal drug law does

not generally preempt state law gives the usual assumption against preemption additional

force. [Citation.]” (National Pharmacies, Inc. v. De Melecio (D.P.R. 1999) 51

F.Supp.2d 45, 54; see also Note, Guns, Drugs, and . . . Federalism? — Gonzales v. Raich

Enfeebles the Rehnquist Court’s Lopez-Morrison Framework (2006) 61 U. Miami L.Rev.

237, 251 [describing 21 U.S.C. § 903 as a “direct preemption disclaimer”].)

 

Despite this, the City argues that in enacting the CSA, Congress intended to

occupy the field of marijuana regulation so extensively that ordering the return of a

defendant’s medical marijuana under state law would be absolutely anathema to

congressional intent. We cannot agree. It’s abjuration of preemption is simply too clear.

Congress enacted the CSA to combat recreational drug abuse and curb drug trafficking.

(Gonzales v. Oregon, supra, 546 U.S. at p. 271; Gonzales v. Raich, supra, 545 U.S. at pp.

10-13.) Its goal was not to regulate the practice of medicine, a task that falls within the

traditional powers of the states. (Gonzales v. Oregon, supra, 546 U.S. at p. 269.)

Speaking for the majority in Gonzales v. Oregon, Justice Kennedy explained, “The

[CSA] and our case law amply support the conclusion that Congress regulates medical

practice insofar as it bars doctors from using their prescription-writing powers as a means

to engage in illicit drug dealing and trafficking as conventionally understood. Beyond

this, however, the statute manifests no intent to regulate the practice of medicine

generally.”

 

 

Just a couple things to keep in mind.

[+Green Cross]

Agreed on most points. 'Preciate yours, and everyone's, input. Keep 'dem weighty thoughts a-comin'.

 

Another important aspect is that municipalities/et al. can't make state law, obviously, but they do control two levers: zoning and ordinances. The attorney general has not taken the lead in creating statewide standards of enforcement and has left it to local gov. units to decide their level of (in)tolerance of mmj within their jurisdiction. Thus we witness uneven protections/enforcements depending muchly on the actions of sheriffs, police chiefs, and county prosecutors.

 

Meanwhile at the local gov. level, a patchwork of zoning, ordinances, and moratoriums tries to hold back the tsunami of demand for the medical use of marijuana. Local gov. authorities are forced, which they resent highly, to balance patients' rightful medical use with overall public safety, then add in that such authorities are strapped for revenue given the economic malaise, so they fear being litigated if their zoning/ordinances aren't bullet-proof. In this arena of confusion leo/pros./courts take a hostile stand against the MMMAct despite it limiting patients' lawful access and use. I push for more education to all stakeholders, but especially recommend that patients and caregivers get in line with what is "clear and unambiguous compliance" with the MMMAct since literally their liberty and property, and now their family pets, depend on having that clarity.

[+Green Cross]

The patient-caregiver community has these forums, leo/pros./courts have their own, COA Judge O'Connell has his Redden concurrence, and now the cities-villages-townships publish their collective position on the MMMAct. Just released is their "White Paper: A Local Government View of the MMMAct." This was prepared at the request of the Michigan Municipal League and Michigan Townships Association to be a resource for Michigan local governments. Informative reading expressing their call-out for help getting clarity on the MMMAct.

 

http://www.mml.org/pdf/fisher-med-marihuana-white-paper8-5-10.pdf

[lawyercaregiver]

Boy you really stepped in it on this one Greeny.

 

To clarify my earlier comment:

 

Clear and unambiguous compliance at this time only includes 1 caregiver with 5 patients registered with the State.

 

The spirit of this law suggests that considerably more expansive modes of distribution should be available to patients. However, this is neither clear nor unambiguously stated in the law. I have faith the courts of this State will royally screw this thing up but hopefully I am wrong. The nice thing about Michigan is that direct democracy for judges thing we have going.

 

On the claim federal law does not influence Michigan law.

Please...

 

I think (hope and pray) ultimately the State will agree that the dispensary question is a zoning question for the locals- but it may take several election cycles of INVOLVED PATIENTS. It does not take very many votes to influence these judge elections!!

[+Green Cross]

Boy you really stepped in it on this one Greeny.

 

We all have our talents.

[Clear and Unambiguous]

Who woulda thunk I would chime in on this one?

 

I assume the question behind the question here is addressing cooperatives and collectives, since the most obvious and narrow definition of compliance focuses on 1 caregiver and 5 patients.

 

Trying to go beyond that is quite a difficult task, but I will be your huckleberry.

 

Here is my ten step plan to clear and unambiguous compliance.

 

1. You start with the memorandum put out by the U.S. Justice department concerning medical marijuana. Oh and by the way, lets all wish a happy birthday to the memorandum. She will be 1 year old on Tuesday!

 

You can find her here- http://www.justice.gov/opa/documents/medical-marijuana.pdf

 

They go as far as to provide information in bullet form! Use this to help formulate the larger picture of how your cooperative or collective operates.

 

2. You find a township or city that is accepting of your collective or cooperative and work with them to outline details such as a proper location and operating procedures. Obtain some sort of written approval, such as a zoning approval.

 

3. Go back to the memorandum and make sure you are staying on track.

 

4. Ask the hosting city or township, and always remember that THEY are the host and you are the guest, to assist in coordinating communication at the county level. Sadly, this is this where bureaucracy tends to break down and where compliance becomes very difficult. It is crucial that this step is taken.

 

5. Go back to the memorandum and make sure you are staying on track.

 

6. Once operations begin, stay in constant contact with officials from the local to the county level to make sure they feel their wishes are being respected. Contribute to local civic causes. Be a good guest and a good neighbor.

 

7. Go back to the memorandum and make sure you are staying on track.

 

8. Be politically involved. Vehemently oppose any candidate that opposes the will of the people in any way, as this likely means that they will be opposed to you as well.

 

9. Go back to the memorandum and make sure you are staying on track.

 

10. Go back to the memorandum and make sure you are staying on track.

 

I should point out that I am not an attorney or a lawyer, but.......

 

I did stay at a Holiday Inn Express last night!

[medicinejeff]

2. You find a township or city that is accepting of your collective or cooperative and work with them to outline details such as a proper location and operating procedures. Obtain some sort of written approval, such as a zoning approval.

 

 

 

What if the township is saying NO on everything?

[Momma]

The patient-caregiver community has these forums, leo/pros./courts have their own, COA Judge O'Connell has his Redden concurrence, and now the cities-villages-townships publish their collective position on the MMMAct. Just released is their "White Paper: A Local Government View of the MMMAct." This was prepared at the request of the Michigan Municipal League and Michigan Townships Association to be a resource for Michigan local governments. Informative reading expressing their call-out for help getting clarity on the MMMAct.

 

http://www.mml.org/pdf/fisher-med-marihuana-white-paper8-5-10.pdf

 

I have read almost half of this paper and it seems to me at this point all of us are ( or could be) caught in a catch 22 situation. It seems to me a tad bit convenient for the Feds to have viable anti MMJ laws on the books that countermand state laws. This being the case even though they are playing nice at the moment could turn on a dime. It also allows convenience and circumstance to dictate if and when they choose to enforce the Federal laws. I am not sure it is even legal for the Feds to choose which laws they enforce at what time. Once they have said they will not come after Mi citizens for posessing MMJ, would that not automatically set a precedent in all cases. Doesn't it stand to reason because of the Supremacy Clause, the Feds have chosen to break the law themselves?

 

Also in reading just half of it there appears to be special interest involved that might want to assume controls of either specific property where MMJ is grown ( ie I will buy dilapidated deserted warehouses for pennies on the dollar and resell specific space to the dispensaries for growing..) sorry that reeks of someone making a whole bundle of cash and in the long run patients and caregivers paying the price of course.

 

Throughout the first half they continually referring to Cal studies to point out rise in crimes etc...I don't know about California but the dispensaries I have seen in my area so far are not exactly in high end business districts to begin with so I would think that nefarious types of all sorts might hang around that particular neighborhood any way. Many of the dispensaries are starting on a shoe string budget so it sort of makes sense they are going to go where the lowest rents are and that means not the best business districts or neighborhoods. I understand where they can, according to the court rely on studies from other communities, to project what might happen here but I still think the the studies can only be linked in an apples to apples demographic situation.

 

Just my think sos so far.. I will weigh in on the other half when I can get to it.

[Momma]

2. You find a township or city that is accepting of your collective or cooperative and work with them to outline details such as a proper location and operating procedures. Obtain some sort of written approval, such as a zoning approval.

 

 

 

What if the township is saying NO on everything?

 

Townships and local govt's all have elected officials. We need to make it clear to them as well that if they dont' respect the will of the people they will be gone.

[peanutbutter]

Throughout the first half they continually referring to Cal studies to point out rise in crimes etc...

 

The 90's "white paper" issued in California is in error.

 

The LA chief of police has said that is no rise in crime related to dispensaries. A bank is more likely to be robbed than a dispensary.

 

There have been a lot of newspaper headlines about dispensaries.

 

Almost every one of them about a dispensary being raided.

 

The police are generating the headline stories. Not the dispensaries.

 

So far in Michigan, three times out of four, when the people wearing sky masks and pointing guns enter a dispensary in Michigan, they also carry badges with them.