+Dizledot Posted January 19, 2011 Report Share Posted January 19, 2011 There are efforts currently underway to make changes to our law by several municipal organizations. This article is dated December 2010 in the Michigan Township Associations Newsletter. Medical Marihuana Act: White paper and legal opinions examine options for regulation The Michigan Medical Marihuana Act (MMMA) was approved by Michigan voters as Initiated Law 1 of 2008 and took effect Dec. 4, 2008, but implementation and enforcement are still obscured by a haze of confusion over what the act allows. Although the initiative passed by a large margin, the actual language of the act has created scenarios that many voters never envisioned, and efforts by interest groups to interpret the act to authorize a variety of imaginative business models—and questionable practices—have further clouded the issue. Efforts to amend the MMMA are hampered by its origin as a statewide initiative, requiring a vote of three-fourths of the members elected to and serving in each house of the Legislature to amend or repeal the act.The issue is an urgent one because the act is being implemented on a massive scale. The volume of applications for patient and caregiver registrations has far exceeded initial expectations. According to the Michigan Department of Community Health Medical Marihuana Program Web page, www.michigan.gov/mdch, 69,530 original and renewal applications have been received since April 6, 2009. Some 37,730 patient registrations have been issued, and “the number of caregivers will be posted as soon as an accurate number can be obtained.” In addition, 8,205 applications have been denied, most due to incomplete application or missing documentation. Along with the level of confidentiality provided by the act, the overwhelming number of applications has prevented law enforcement personnel from efficiently confirming a patient or caregiver’s status.Currently, no state or federal case law exists to define the scope of the Michigan act. Although there is still some question of whether the Michigan law is valid under the Supremacy Clause of the United States Constitution, the federal government is not emphasizing enforcement of federal law regarding individual medical marihuana use. A 2009 memorandum to United States Attorneys on Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana stated: “As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. … “Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest: • unlawful possession or unlawful use of firearms; • violence; • sales to minors; • financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law; • amounts of marijuana inconsistent with purported compliance with state or local law; • illegal possession or sale of other controlled substances; or • ties to other criminal enterprises.” Some communities have taken the approach of a total ban of medical marihuana use as a violation of federal law. Other communities have contemplated accommodating not only individual patients and caregivers, but also cooperatives, dispensaries and other businesses based on interpretations of language in the act. (It’s important to note, however, that none of these are specifically mentioned or authorized in the act.) Many communities are considering something in between those two positions.Two recent examinations of the MMMA have focused discussions on governmental responses to the issues raised by the act. In September 2010, the Michigan Court of Appeals issued People v Redden, (___ Mich. App. ___), which addressed the defenses to criminal charges afforded patients and caregivers under the act, but which also produced a spirited call for action on the law in a concurring opinion. In October, MTA and the Michigan Municipal League released the white paper, A Local Government View of the Michigan Medical Marihuana Act, authored by Gerald A. Fisher, a professor of law at the Thomas M. Cooley Law School, Auburn Hills campus. WHITE PAPER PROPOSES CIRCUMSCRIBED VIEW OF MMMA The white paper adopted the view that “the fundamental purpose of the Act is the creation of a private and confidential patient-caregiver relationship to facilitate the lawful cultivation, distribution, and use of marihuana strictly for medical purposes.” When viewed from this perspective, municipal efforts to interpret the act have focused on facilitating the patient-caregiver relationship while ensuring the public health, safety and welfare through regulation and enforcement of residential zoning provisions and construction codes. Anything beyond the individual patient-caregiver relationship is based on interpretations of the act that may or may not hold up in court. This includes interpretations that would authorize “dispensaries” or “cooperatives.” The white paper reviews several zoning and regulatory ordinance approaches that a municipality might consider, including zoning ordinance provisions that disburse or concentrate medical marihuana-based businesses or limit their distance from other land uses such as schools. Such regulation is similar to the long-accepted approaches to regulating sexually oriented businesses with an emphasis on limiting their “secondary effects.” Licensing options, including business licensing or a requirement for a caregiver to obtain a license to cultivate or distribute medical marihuana, may assist law enforcement in distinguishing lawful medical marihuana uses or growing operations from illicit ones. This is one of the most serious deficiencies in the act, as reflected in the Redden opinions. COURT OF APPEALS CLARIFIES MMMA DEFENSES In March 2009, Robert Lee Redden and Torey Alison Clark were arrested following a search of their residence that revealed 21 marihuana plants and 1.5 ounces of marihuana. Each of them provided police with a document from a physician recommending the use of medical marihuana. Although the MMMA took effect Dec. 4, 2008, the MDCH did not begin issuing registry identification cards until April 4, 2009, so Redden and Clark did not have cards when they were arrested. The defendants were both issued cards on April 20, 2009. The MMMA does not actually make medical marihuana use legal. Instead, Section 4 of the act establishes an affirmative defense that a qualifying patient or primary caregiver who has been issued a state registry identification card may assert if he or she is arrested or prosecuted. Section 8 of the act provides a similar—but different—affirmative defense that a patient or primary caregiver who is not on the state registry may assert if they meet the requirements of Section 8. At their preliminary examination, Redden and Clark asserted the Section 8 defense and provided registry cards and testimony from the doctor who gave the written authorizations. Based on the affirmative defense, the trial court dismissed the charges. The prosecution appealed, and the circuit court reversed and remanded, questioning whether the Section 8 affirmative defense may be raised if the defendants did not have a registry identification card when arrested, whether the amount of marihuana possessed exceeded the amount permitted by the act, and whether the plants had been kept in an enclosed, locked facility, as required by the act. The court also questioned whether the defendants had a bona fide physician-patient relationship, and ruled that the affirmative defense must be actually addressed in trial court, not at the preliminary examination. In People v Redden, the Michigan Court of Appeals held that a person is not required to have a registry identification card to be able to use the Section 8 affirmative defense. Registered qualifying patients and primary caregivers may assert the Section 4 defense. Unregistered patients and primary caregivers who assist them may assert the Section 8 defense if they can provide the proof required by Section 8. The Court affirmed the circuit court’s order to bind the defendants over for trial and remanded for further proceedings to determine whether the defendants could satisfy the proof required for a Section 8 defense, specifically regarding whether a bona fide physician-patient relationship existed, whether the amount of marihuana possessed complied with Section 8, whether it was for a medical purpose, and whether each defendant suffered from a serious or debilitating medical condition. In an unusual move, Judge Peter D. O’Connell wrote an extensive concurring opinion regarding the MMMA and the issues he believes must be resolved. The opinion is not precedent, but it does provide a review of the act. O’Connell concluded: “When prosecutors and defense attorneys agree that the law is hazy and unclear and poses hazards to all concerned because it does not with sufficient clarity identify what conduct is now legal and what conduct remains illegal, it is time for action from our legislative and executive officials. … Our legislative and administrative officials must make a choice: they can either clarify the law with legislative refinements and a comprehensive set of administrative rules, or they can do nothing. In this situation, no decision is, in fact, a decision to do nothing.” EFFORTS ARE UNDERWAY MTA is participating in legislative task force meetings and working with municipal stakeholders to explore possible changes to the MMMA, including amending state agency rules. Further clarification may come only with litigation. michigan township news | December 2010 Page 29 —Catherine Mullhaupt, MTA Director of Member Information Services SpecialFeature Quote Link to comment Share on other sites More sharing options...
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