Mmma Research Memo Doc.

[Guest thequietone]

It is a long read, but I urge everyone to take the time to read it.

 

MMMA Research Memo

[TajMahal]

Who wrote this?

[TajMahal]

Taj, It was written by law clerk to the PA. Thanks, Bb

 

Thanks, helps to know.

[greenbuddha]

At least now we know that local LEOs will have to 'ask' for Federal help in 'arresting' patients or care givers that are 'following' the MMM Act and that 'legally' local LEO and PAs CAN NOT enforce Federal law.

 

So unless I totally misread the paper, it appears that local LEOs CAN NOT LEGALLY use Federal law to harass MMJ patients and caregivers that are acting within the MMM Act guidelines... FEDERAL agents have to come in to do that, and of course they CAN be asked to come in by local LEOs.

 

But, staying within the 12 plant limit for 'patients' and the 72 plant limit for combined 'patient AND care giver combination' should make it much less likely for 'legal' problems to occur.

 

Of course we all know how reliable / unreliable these kinds of 'assumptions' about the law can be.

 

Dispensaries? Not even going there in terms of discussion. Too many things have to be worked out at the FEDERAL level.

[pic book]

This law clerk gives all kinds of reasons for Burdick to appeal Chamberlain's Dec. 16 decision (if Burdick had not already done so). The memo makes it plain that local prosecutors are severly constrained--totally limited as they don't have standing and so cannot file a case in Federal court--in any effort they would make to use Federal law (and courts) to force their interpretation of MI law onto MI state courts, and to void the Act.

 

The OCPO was hoping for a totally different stance from their law clerk.

 

One must ask himself why the clerk's memo totally ignores Burdick's own opinion that Chamberlain it makes it legal statewide for dispensaries operated in a certain manner to do business in Michigan, and until/unless overturned, those dispensaries are protected by the reigning interpretation of the Act (as decided in Chamberlain). In ignoring Chamberlain and not making any reference to the decision in that case coming up soon before the Appeals court, this law clerk makes it plain that within the OCPO it is a hated decision, and a sensitive matter in the Oakland County Prosecutor's Office, and the best stance for a law clerk there is to avoid mentioning an issue that has so obviously inflamed/enraged the prosecutor, who was hoping to find standing to file in Federal court and to use his office and Federal law to quash the dispensaries the Chamberlain decision allows.

 

From this it seems that the OCPO believes Burdick's appeal will fail. They were thinking that the only chance of corralling dispensaries in this state is Federal prosecution, and they wanted to bring it themselves in Federal court. This memo adamantly forecloses that avenue of enforcement to the OCPO.

 

I look for OCPO to file a friend of the court brief on berhalf of (Isabella County Prosecutor) Burdick.

[Hempcheff]

Lol, I bet they dont even pay any attention to this research, and soon we will get the version that was supposed to get turned in, ya know, the one that works out for ocpd.....

[peanutbutter]

This paper is flawed on several topics.

 

I do applaud the attempt to define exactly what a dispensary is. However .. that definition is conjecture and not legal code.

The author is correct in that it is possible, AND IT HAS BEEN DONE, to define a caregiver in their own home with one single patient as a dispensary.

 

The author attempts to apply pharmacy legal code to dispensaries. Without noting the supremacy clause of the MMMA.

 

IF any part of existing pharmacy legal code restricts the abilities and actions of a medical marihuana patient or caregiver, then it doesn't apply to medical marihuana. (yes 'h' and not 'j')

 

Also ignored is "medical use" within the MMMA. Ask the PA "what does delivery of marijuana mean to you?" Delivery is defined as "medical use" within the MMMA and is allowed.

 

And in the end, the author ignores a question asked of the voters directly. That question asked if unlicensed caregivers should be protected from arrest and prosecution.

 

The voters said yes.

[mibrains]

i believe we need to "as a community" foster a author to write a ( "Green Paper" )

i sincerely believe we need a resource written by pt's and caregivers that outlines our use and needs with verifiable results, and then we have a tool to reference when we communicate with the other side.

distribution becomes the issue, it would need to be sent to all township / city offices and then followed up with interviews to insure it was read by the official in charge....thereby opening up a dialog that would be productive to the forward movement of our community.

[thanks2]

Lol, I bet they dont even pay any attention to this research, and soon we will get the version that was supposed to get turned in, ya know, the one that works out for ocpd.....

I agree. Law Clerks are usually law students who work for free, in most cases. He is probably Cooper's student and she told him the out come she wants. So he puts together his best argument to support her. Not to discredit students, but they have no experience. Interesting read though.

[peanutbutter]

The author also fabricates a section of law.

 

He claims that marijuana must be kept in a "locked enclosed facility." Further that it must be out of public view.

 

"Locked enclosed facility" applies to growing plants. And there is no requirement that even the plants must be out of public view.

[peanutbutter]

I must point out again.

 

The help of the Michigan Medical Marijuana Association was offered to the prosecutors of Oakland county BEFORE they raided Bob and Torey.

 

We had been working over every section in detail for months before they conducted the illegal raid.

 

We have now been working every minute detail of this law for over two years.

 

We still wish to help those offices and officers to understand this law. This is in an attempt to avoid costly cases that will be won by the defendants and to prevent unnecessary suffering for those being illegally attacked.

[greenbuddha]

The author also fabricates a section of law.

 

He claims that marijuana must be kept in a "locked enclosed facility." Further that it must be out of public view.

 

"Locked enclosed facility" applies to growing plants. And there is no requirement that even the plants must be out of public view.

 

Very good points!

[peanutbutter]

Pb, You're 100% on the fact that the law only gives the Prosecutor the right to rebut the medical use of marijuana in Section 4. Thanks, Bb

 

Actually that is something I've never considered before. I'll have to look closer at that.

 

The AD is the route established, by the law and voters, for unregistered caregivers to defend themselves.

 

That section of the law results in "case shall be dismissed" when a fixed list of information is presented before a judge.

 

None of those items include the state issued ID card.

Patient count is not one of those items either.

[hofner67]

Actually that is something I've never considered before. I'll have to look closer at that.

 

The AD is the route established, by the law and voters, for unregistered caregivers to defend themselves.

 

That section of the law results in "case shall be dismissed" when a fixed list of information is presented before a judge.

 

None of those items include the state issued ID card.

Patient count is not one of those items either.

 

I'm so glad you guys( BB and PB), anybody for that matter, can still look at the situation rationally. You give me hope.

 

For me, however, the law and the actions of the police, prosecutors and politicians are at such a disconnect (with felony convictions in hand} that I am reduced to fear. I admire your poise. I look for a better solution and maybe a better time. They don't want to understand. In the end, no matter the law, the judges, prosecutors, and police must conform to any solution in order for it to be a solution. They appear, no matter what the law says, to not relent to the will of the people.

 

What are we gonna be able to do? Appeal to the Supreme Court of MI(joke)? We need some federal protections.

[peanutbutter]

One other error in the paper ..

 

The author claims that it is unlikely that federal law will change soon.

 

That is what all of these people assume.

 

It will be a mind bending day for them when federal law changes.

 

They will be mentally left in the middle of the ocean watching the boat heading out of sight. Wondering how long a life jacket is good for.

[bobandtorey]

Actually that is something I've never considered before. I'll have to look closer at that.

 

The AD is the route established, by the law and voters, for unregistered caregivers to defend themselves.

 

That section of the law results in "case shall be dismissed" when a fixed list of information is presented before a judge.

 

None of those items include the state issued ID card.

Patient count is not one of those items either.

 

I understand that and i think that is why we are still inn court because it is so BIG and it protects us all thats the part the PA don't like if we go FREE then evey one gos FREE IMO

[Guest 1TokeOverLine]

One other error in the paper ..

 

The author claims that it is unlikely that federal law will change soon.

 

That is what all of these people assume.

 

It will be a mind bending day for them when federal law changes.

 

They will be mentally left in the middle of the ocean watching the boat heading out of sight. Wondering how long a life jacket is good for.

 

Bill Cosby "How long can you tread water, heh, heh"

 

1T

[peanutbutter]

I understand that and i think that is why we are still inn court because it is so BIG and it protects us all that's the part the PA don't like if we go FREE then every one gos FREE IMO

 

From day one, I've always thought your case will be the most important ever, for mmj in this state.

[GreenFunk]

i believe we need to "as a community" foster a author to write a ( "Green Paper" )

i sincerely believe we need a resource written by pt's and caregivers that outlines our use and needs with verifiable results, and then we have a tool to reference when we communicate with the other side.

distribution becomes the issue, it would need to be sent to all township / city offices and then followed up with interviews to insure it was read by the official in charge....thereby opening up a dialog that would be productive to the forward movement of our community.

 

Let's not let this go by without notice - GREAT IDEA!!

 

Michigan Municipal League White Paper

http://www.mml.org/pdf/newsroom/2011-1-3-medical-marijuana.pdf

 

“The League did not take a position on the passage of the act, but it has worked with all sides on the issue, including caregivers, patients, police, attorneys and lawmakers, in an effort to work out the many concerns.”

 

“The League, along with the Michigan Townships Association, commissioned an independent white paper on the new law. The paper, released in October by Gerald A. Fisher, professor of law at the Thomas M.Cooley Law School, outlines the legal options communities have regarding the Medical Marijuana Law. The white paper also calls for all sides of the issue to sit down to form a negotiated consensus over the ambiguous and contradictory portions of the law. You can view the white paper here: http://www.mml.org/pdf/fisher-med-marihuana-white-paper8-5-10.pdf.”

 

So the MML maintains that the MMAct is ambiguous, whether we agree or not. So, they are literally calling everyone to the table to discuss why we agree/disagree & what our ideas are. Is anyone in the MMMA forming a Green Paper? Our organized, official viewpoint & response as Patients & Caregivers? I don't get on here often so I definitely could have missed something...but this says they have already worked with patients & caregivers on this? If you read it, it sure doesn't sound that way. IMO, it's extremely dangerous to our cause to leave this open with no official response from our side.

[peanutbutter]

Working on it ..

 

Page 12 attempts to establish a method of law not currently applied in our nation. That is: anything at all that is not distinctly allowed under law is illegal.

 

The MMMA does not distinctly allow a registered patient to watch television at the same time as smoking cannabis. This does not mean that people are to be arrested for smoking a joint in front of a television.

 

The MMMA does forbid some activities. Such as driving while under the influence or smoking in public. These activities are indeed illegal as laws, such as the MMMA, specifically forbid the activity.

 

The author is correct in that there is no legal definition of exactly what a dispensary is. That definition has never been established in law. Whatever definition is used for this examination is only valid for the sake of conversation and not criminal charges.

 

Until such time as there a legal definition of exactly what a dispensary consists of, and a law is passed in which dispensaries are made illegal, they remain legal. Simply having the word “dispensary” on the outside of a building does not rise to the level of a criminal act.

 

Even if there were such a law, it would have to be the activities within the building that would determine if the building is illegal. Not the sign.

 

Our nation applies laws such that to be illegal a law must have been passed making the activity illegal. We do not put people in jail simply because there is no law that permits their activity.

 

There is simply no criminal law such as “operating a marijuana dispensary.” It doesn’t exist. If it did exist, I’m sure that the PA of Oakland county would have filed those exact charges in several cases in that county. What penalties are there in the law for operating a marijuana dispensary? There are none at all.

 

Page 17 talks about “compensation.”

 

The author references the case of Stokes v Millen Roofing Co. 466 Mich 660; 649 NW2d 371 (2002) in it’s definition of “compensation.”

 

That reference notes that compensation may be provided for service.

 

There is nothing within the MMMA that implies anyone must take a vow of poverty or that they must provide their labor free of charge to those in need.

 

Near the bottom of the page the author says this “while only a single definition of ‘use’ out of nearly two dozen .. “ In doing so the author overlooks the definition that exists within the MMMA itself. Since it is defined within the law itself, it is not required to go to other sources for that definition.

 

Within the MMMA delivery of marihuana is defined as use. I’m confident that the PA of Oakland County understands what “delivery” of marijuana consists of.

 

333.26423 (e) "Medical use" means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition.

 

Any person who is arrested for selling marijuana isn’t charged with “sales.” They are charged with “delivery.”

 

For purposes of the MMMA, delivery is allowed and protected. Granted within limits.

 

On page 18 the author goes on to say that dispensaries “run afoul of the MMMA.” He bases this on his former incorrect conclusions about “compensation” and “use” and the argument starting on page 19 that:

 

“if marihuana is stored in the open where any “patients”/customers may view or access it, then it is clearly not being kept in compliance with the MMMA. MCL 333.26424(a)-(b). An “enclosed locked facility” where marihuana is to be stored must be accessible only to the registered primary caregiver or registered qualifying patient for whom the marihuana is stored. MCL 333.26423©.”

 

That regulation is only for the living growing plants. Claiming that the law requires the final marihuana needs to be stored that way is simply fabricating law.

 

Here is the section of code he used to arrive at the conclusion that all marihuana must be kept that way:

Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.

(b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act, provided that the primary caregiver possesses an amount of marihuana that does not exceed:

(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and

(2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and

 

As can be seen simply by reading the section, the author is in error.

 

Next the author tries to apply older laws about controlled substances to the MMMA. As if the older laws would take precedence over the newer law when the newer law was intended to protect citizens against these very older laws the author now wishes to apply.

 

The author overlooks this section of the MMMA when he does that:

 

333.26427(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.

So if the older pharmacy law conflicts with any aspect of “medical use” it no longer applies.

 

The same applies to any public health code. If it conflicts with “medical use” it simply does not apply.

[Honeyoil]

Nice analysis PB. Do you think sending it to the author would get a response?

[GreenFunk]

Working on it ..

 

Nice! I'm glad to see this information is getting compiled into one single document. Keep up the great work!

[SpartanHort]

I don't think I read that much in my first 2 years of college, that's alot of legaleeze. 2 things struck me in the memo; did the clerk(author) say/imply P2P transfers were illegal? and secondly how can a PA and judge not allow the mentioning of being a legal MMMA patient at trial. If it's not a federal case why is the federal legality of MM pertainant. If the county or state is bringing the charges don't they have to follow state law.

SH