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Dea V Dch - Subpoena Hearing Rescheduled For Feb 1

Eric L. VanDussen

By Eric L. VanDussen
in Legal Professionals

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peanutbutter Advanced Member

peanutbutter

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State right to self determination is becoming up front and central in Michigan.

 

In June of last year the DEA requested information, from the Michigan Department of Community Health (MDCH), about seven persons that had been

issued medical marijuana cards.

 

The Michigan law establishes a privileged communication between the applicant and the state licensing agency (MDCH).

 

The protection is so strong that breaches of this privileged communication are a criminal offense.

 

Examples of privileged communication are between a husband and wife or between a client and attorney. Such privileged communications are protected even from federal authorities. Even though no criminal penalties are attached to breaches of these communications. In the case of the communication between citizens and the MDCH those protections are so strong that criminal penalties are attached to violations.

 

The new attorney general of Michigan, Bill Schuette, has submitted a response to federal court. In that answer, Schuette states a willingness to provide the information to the DEA.

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Mememe Advanced Member

Mememe

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Article VI clause II of the US constitution

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

 

So, we just need to take that authority away. The states gave the feds their power, why can't states start taking it away?

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lawyercaregiver Advanced Member

lawyercaregiver

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Well you can't take away the Supremacy Clause of the U.S. Constitution unless you change the Constitution. A project like that reminds me of those "Bad Idea Jeans" commercials from Saturday night Live:

 

"So I figured, hey, when am I every gonna go back to Haiti so why should I wear a condom."

 

or

 

"I thought now that we had kids it would be a good idea to get some guns for the house..."

 

BAD IDEA!

 

The subpoena request is usually attached to a Motion like this, sometimes with the names redacted so do we have it?

 

Unfortunately I can't think of a good argument for MDCH to deny unless we can argue it is merely a fishing expedition. That is if the court upholds the probable cause determination then we probably lose...Hope I am wrong and I certainly hope NORML (Hi Matt!) or the MMMA gets involved in this...

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bobandtorey Advanced Member

bobandtorey

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IMO we need are Lawyers their to find out how and what they are doing we can not stand here and Waite maybe we all need to be their for support for are MMMA,MMP,

I was at the Detroit court house inn the summer about the Marihuana to be put on the Ballot and we know that it was not on their so what happen to the appeal don't know i guess we lost because we cant stand up together we need to fill the court room in Lansing

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treehugger Advanced Member

treehugger

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Unfortunately I can't think of a good argument for MDCH to deny unless we can argue it is merely a fishing expedition. That is if the court upholds the probable cause determination then we probably lose...Hope I am wrong and I certainly hope NORML (Hi Matt!) or the MMMA gets involved in this...

 

Oh, i can see an argument right away. The two cases they cite for the relevancy of the supremacy clause are where state laws coincide with federal laws (ie; taxes and fraud), in this situation they diverge. Other than the mandated notification to LEO of the validity of the patient/caregiver identification, the state is under direct obligation to satisfy al privacy clauses of the mmma legislation. T

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rafaeltoral Advanced Member

rafaeltoral

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I'm no lawyer, but did we not already win this battle in Oregon?

 

"Ruling protects pot patients

The Oregonian - Thursday, September 06, 2007

 

 

Ruling protects pot patients

 

Privacy - A federal judge denies a grand jury access to Oregon medical marijuana treatment records

 

Thursday, September 06, 2007

ANNE SAKER

The Oregonian Staff

 

A federal judge has thrown out sweeping subpoenas for patient records kept by Oregon's medical marijuana program and a private clinic, saying privacy concerns overruled a grand jury's demand for information.

 

Chief U.S. District Judge Robert H. Whaley in Yakima ruled on the subpoenas four months after a grand jury in that city issued them. The grand jury wanted to know about 17 patients who got medical marijuana from a grower with operations in Oregon and Washington.

 

Advocates for medical marijuana have said the subpoenas marked a new tactic in federal efforts to stop state-run programs such as Oregon's. In California, federal drug agents have closed medical marijuana dispensaries and prosecuted doctors who prescribed marijuana to patients.

 

The state of Oregon and the private Hemp and Cannabis Foundation went to court this summer to stop the subpoenas, and Whaley convened a hearing Aug. 1.

In his eight-page decision issued Tuesday, Whaley wrote that grand juries have wide latitude to conduct investigations and can issue subpoenas for almost any kind of information. The subpoenas cannot be quashed unless the person or organization fighting the subpoena can show the demand is unreasonable, the judge said.

 

Whaley found that the subpoenas against Oregon's program and the foundation were unreasonable.

 

"There is an obvious tension between the state's authorization of the production and use of marijuana as a medicine and the federal authority to make such activity a crime," Whaley wrote. "The point at which that tension should be broken by the compelled production of records to a federal grand jury has not been reached with these subpoenas."

 

Oregon voters enacted the state's medical marijuana program in 1998, and 14,868 state residents hold patient cards. Another 7,115 people hold licenses to grow medical marijuana; they cannot sell marijuana but can accept donations to defray expenses.

 

The state law governing the program expressly states that medical records will be kept confidential.

 

The Hemp and Cannabis Foundation is a Portland organization with clinics in Oregon, Washington, Colorado and Hawaii where doctors can examine patients and determine whether marijuana would be useful as medicine.

 

Whaley tossed out the subpoena to the foundation because its medical records "represent implementation of the state's program and are integral to the success of the program."

 

D. Paul Stanford, the foundation's founder and chief executive officer, said Wednesday the ruling will "protect medical marijuana patients' records and confidentiality. There are limits to the government's power to intimidate doctors and patients, and fortunately, the federal courts have delineated those limits."

 

Adam Wolf, a lawyer for the American Civil Liberties Union's Drug Law Reform Project who argued on behalf of the foundation, said the ACLU believes the case is important. "This should reassure physicians and patients that they are safe," Wolf said.

 

Assistant U.S. Attorney James Hagerty in Yakima, who is presenting the evidence to the grand jury, was on vacation and not available to comment. When contacted last month about the subpoenas, Hagerty refused to discuss the investigation.

 

But Stanford said the grand jury is looking at one man who ran a Goldendale, Wash., grow site for Oregon patients and an Estacada site for Washington patients. Stanford said that activity was not allowed under either state's medical marijuana program.

 

Madeline Martinez, executive director of the Oregon branch of the National Organization for the Reform of Marijuana Laws, was jubilant over the ruling.

"I'm celebrating! Power to the people!" she said. "We were really afraid that this big, broad arm of the government was trying to overreach. We're patients. We're not criminals. We're just thrilled to pieces about this."

 

The ruling comes just before Oregon NORML, the Hemp and Cannabis Foundation and other groups convene the third annual Hempstalk festival this weekend at Sellwood-Riverside Park. The city of Portland had turned down the group's application for a permit for the event but relented after the ACLU stepped in."

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peanutbutter Advanced Member

peanutbutter

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Unfortunately I can't think of a good argument for MDCH to deny unless we can argue it is merely a fishing expedition. That is if the court upholds the probable cause determination then we probably lose...Hope I am wrong and I certainly hope NORML (Hi Matt!) or the MMMA gets involved in this...

 

That's a shame ..

 

The Supreme Court has held that the institution of marriage would be undermined if communications between husband and wife could be forced into the open. Therefore the need of law enforcement doesn't outweigh the existence of the institution of marriage for everyone.

 

The communications that take place between a lawyer and client can not be forced into the light of day. Not without very clear important reasons. And might require criminal involvement of the attorney in the criminal activity itself. It is fundamental to the very nature of the relationship that such communication be protected.

 

Both protections, at any time, could represent a inconvenience to federal authorities in an investigation.

 

The confidentiality in the MMMA was a protection granted by the people. It is fundamental to the continuation and existence of of program. It is so important that criminal penalties are attached to violations of those protections.

 

Such penalties are not attached to either marriage or attorney/client communications. Yet those protections are still in force for those communications. Even against federal law enforcement.

 

The test that was used was to weigh the desire of law enforcement against the potential destruction of an entire institution.

 

That is does the needs and wants of a single criminal investigation outweigh the institution of marriage itself?

Courts have determined that authorities must find another way to proceed. They can not force a wife to testify against a husband. No matter how extreme the case.

 

Bottom line is that this case would undermine the entire program in Michigan.

 

So the question is would the desire of federal authorities outweigh the protections for the entire program for Michigan?

 

In other words: Does the need of the fed against a few people in the Lansing area urgent enough to strip everyone in the program of rights and protections?

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bobandtorey Advanced Member

bobandtorey

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That's a shame ..

 

The Supreme Court has held that the institution of marriage would be undermined if communications between husband and wife could be forced into the open. Therefore the need of law enforcement doesn't outweigh the existence of the institution of marriage for everyone.

 

The communications that take place between a lawyer and client can not be forced into the light of day. Not without very clear important reasons. And might require criminal involvement of the attorney in the criminal activity itself. It is fundamental to the very nature of the relationship that such communication be protected.

 

Both protections, at any time, could represent a inconvenience to federal authorities in an investigation.

 

The confidentiality in the MMMA was a protection granted by the people. It is fundamental to the continuation and existence of of program. It is so important that criminal penalties are attached to violations of those protections.

 

Such penalties are not attached to either marriage or attorney/client communications. Yet those protections are still in force for those communications. Even against federal law enforcement.

 

The test that was used was to weigh the desire of law enforcement against the potential destruction of an entire institution.

 

That is does the needs and wants of a single criminal investigation outweigh the institution of marriage itself?

Courts have determined that authorities must find another way to proceed. They can not force a wife to testify against a husband. No matter how extreme the case.

 

Bottom line is that this case would undermine the entire program in Michigan.

 

So the question is would the desire of federal authorities outweigh the protections for the entire program for Michigan?

 

In other words: Does the need of the fed against a few people in the Lansing area urgent enough to strip everyone in the program of rights and protections?

 

does any one have a address to the court house in GR?

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Eric L. VanDussen Advanced Member

Eric L. VanDussen

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U.S. Supreme Court refused to hear Supremacy Clause arguments in 2009 CA medical marihuana appeal.

 

This is the order that two CA counties were appealing, which the US SCt refused to take up in 2009: http://www.americansforsafeaccess.org/downloads/San_Diego_Appeal_Ruling.pdf

 

Here's some articles about the SCt's refusal to address the case:

http://articles.sfgate.com/2009-05-19/bay-area/17202601_1_medical-marijuana-san-diego-county-drug-laws

http://www.sandiego6.com/news/local/story/Supreme-Court-rejects-San-Diego-Medical-Marijuana/oNP5sZAAfUyCf6INy8C2yg.cspx

http://www.signonsandiego.com/news/2009/may/18/bn18refuse-marijuana/

http://www.salon.com/news/politics/war_room/2009/05/18/scotus_marijuana

http://politicalticker.blogs.cnn.com/2009/05/18/high-court-denies-review-of-medical-marijuana-law/

http://articles.latimes.com/2009/may/19/nation/na-court-marijuana19

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bobandtorey Advanced Member

bobandtorey

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399 Federal Bldg

110 Michigan St NW

Grand Rapids MI 49503

 

Before Hon. Gordon J. Quist

Mag. U.S. District Judge

 

grmap.gif

 

 

WOW! thanks PB i would like to go are you going? or do i even have to ask what about a time? their should be a lot of people their this is the biggest thing here i think

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Silverblue Advanced Member

+Silverblue

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Posted

OK if I understand this right, schutte is selling us up the river to the feds, yet won't let them interfere in a cause HE is interested in? that a-hole didn't take long to stomp on us, can't pick and choose his battles that way, if one agency has to comply, they all do, if one doesn't, none of them do. Remember, he vowed to squash us if he had the chance, he came into this with a very strong, hostile attitude toward us. I don't think I could write an effective enough letter about this, or I would.

This is all the bad news I can handle today.

Sb

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rafaeltoral Advanced Member

rafaeltoral

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Posted

Thanks for all the great info Eric. I feel like many of the legal battles we face in Michigan have already been fought and won in other States. If we have enough dedicated people, especially legal professionals such as yourself, then we can literally stomp these eggheads into the ground with the quickness.

 

I fear we lack the dedicated people, who also have the means to effectively fight, that states such as California and Colorado may have. I worry this may allow the powers that be to get away with running roughshod over the MMMA.

 

Bob & Torey, knowing a little of what happened to you I can understand your cynicism. However, I think the ruling in Oregon, which is so very similar to our current situation, sets such a clear precedence that this thing SHOULD not get too far.

 

So my question to Eric is this: Does the ruling that took place in a Federal court in Oregon set precedence in the current pending case that we have here in Michigan?

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