Macc Files Federal Appeal

[peanutbutter]

There are seven caregivers they want information on.

 

Every seems to be assuming that these caregivers are members of MACC and are doing something against the state law.

 

No one knows who these people are that the feds want the information about.

 

The could be compassion club leaders. We just don't know. The only hint that we have is that are supposed to be in the Lansing area.

[peanutbutter]

In case nobody noticed, right after the federal ruling was issued, a county judge signed a subpena requested by a county PA to present to the MDCH.

 

The judge signed the subpena and it was presented to the agency.

 

These folks figure if the feds can do it then so can we.

 

I think it would be a very bad thing for our community to agree that they have the RIGHT to do that any time they wish to.

[peanutbutter]

IF .. IF .. IF

 

The MMMA decides that there is a part of our law that isn't worth defending, could someone please post that as the stand of the MMMA.

 

That way I won't bother letting anyone know if another group decides to make a stand.

[peanutbutter]

If this confidentiality section of the law is ignored for criminal investigations, then there SHOULD be a sharp reduction in applications.

 

The registry program was very clearly NOT established to provide leads for criminal investigations. If that is deemed a proper use of the information we provide to the state, then our applications are simply signed confessions for courts to use against us.

 

Then our law is used to convict us rather than protect us.

[Dr. Bob]

Cards are given to provide information to LEO to show that a patient was registered under the MMMA and therefore not subject to arrest. Proving we are in compliance with the law is part of the deal. As for releasing information to a county prosecutor, the information was requested by registration number, as is required by the law. The information provided was what was required by law.

 

Agree or not, the court ruled and we have to follow the ruling until a higher court says otherwise. Simply adopting an attitude that we wont cooperate with anything, opposing every enforcement action, and demanding we do things our way under our interpretation of the law is going to continue the confrontational environment that currently exists. The key is to beat them at their own game. Adopt to the rulings, learn from them and figure out a way to accomplish what we want to do under framework the courts establish.

 

We are registered, use in private, keep our limits, transfer for cost to our registered patients. We build our numbers and political power.

 

Dr. Bob

[1337Gr33n]

leaving ANY part of our law up to a FEDERAL Judge in conservative GR, is NOT a good idea. Just ask Walmart Joe.

[Highlander]

Lots of confusion surrounding this case. I’ve tried to piece it together over the months. Someone needs to lay out what exactly is going on, so folks on this forum know what they are debating. I'm not sure I have it exactly right either.

 

The Feds had the lead on the investigation/raid of a large growing facility near Lansing. Seven caregivers were growing there.

 

Those seven caregivers refused to show mmj cards to the feds, the likely reasoning is “Feds won’t respect out cards/law, so why show our CG cards and give up the ID our patients.”

 

Feds thinks caregivers are probably growing for “strawmen” patients, so they request the records from MDCH.

 

We know who those 7 caregivers are, and they know who their patients are (assuming they have patients), but the LEOs and the courts don’t know who the patients are.

 

MACC tried to intervene, saying that they represent numerous cardholders, and one or more of the patients connected to the CGs in question could be a MACC member. The court rule that MACC had no standing because it wasn’t actually representing a party with standing. It was representing non-specific people who may or may not exist. If one of the 35 patients connected to those caregivers would have stepped forward and asked to be represented, probably MACC would have been able to intervene. I may have questioned MACC's intentions in the past, but if our current and former AGs could evaluate state vs. fed law consistently as it relates to Obamacare and MMJ laws, then maybe the MACC could have used their legal $ for something else.

 

But none of the 35 possible patients of those CGs under investigation stepped forward – none. We don’t even know if the caregivers even have any patients at all. Maybe the courts thought that if those 35 people exist, then at least one could step forward. We know who the seven CGs are, and if those 7 CGs each have 5 patients, those 35 patients know who they are.

 

It isn’t as if the feds are seeking records for 35 “random” registrants. Those up to 35 people are connected to 7 growers already under investigations. So it isn’t that the 35 people whose records are requested don’t know who they are. This isn’t a situation where “any one of us could be one of those 35 people and have our records end up in the hands of the feds.”

 

The feds are investigating a large-scale grow.

 

So picture what a mess this situation is. A CG is standing there next to 60 plants and a federal agent. He tells the agent he is a legit MMJ caregiver under state law. But the state law doesn’t matter to the federal agent, so the CG is not compelled to prove his legal status – to give up the ID of his patients. Cards don’t matter to the feds. All they see are plants (and I think a lot of these federal LEOs see plants pointing weapons at them, but that is another discussion altogether).

 

Now pretend you are a patient asking for free meds. Will you become one of those 35 patients? Your CG is a big-time grower who wants your 12 plants so he can grow trees and sell overages to others and make big dollars. Now your CG is under investigation, the feds want to know who his patients are because they think the patients are in on the game . And when you as a patient emailed your new CG and told him “I want two oz./ month free and you can sell the rest” you pounded the nail in your own coffin.

 

This thread could also be about the price of free meds.

[peanutbutter]

Nobody except the feds themselves know who these people are.

 

They could be anyone that is a caregiver in the Lansing area.

 

And when I say Lansing area I accept that the feds are not lying. If you assume that leo always lies, then these could be any caregiver in the entire state.

 

If the feds have released the names, please let me know exactly who they are requesting information about.

[peanutbutter]

So it is sounding like:

 

If this is about anyone with the remotest connection to a dispensary, they can sink or swim on their own and don't deserve our support.

 

If this is about compassion club folks, then they need to be supported.

 

And until we know exactly who they are, we assume they are dispensary folks. We tell these caregivers to go to hell until they prove they have nothing to do with a dispensary.

[peanutbutter]

leaving ANY part of our law up to a FEDERAL Judge in conservative GR, is NOT a good idea. Just ask Walmart Joe.

 

We simply MUST have change at the federal level.

 

The court system is one way that can take place.

 

Most of the excuses they use against us on a state level is justified by federal law.

 

A change at the federal level would make major change in our lives.

[Highlander]

Nobody except the feds themselves know who these people are.

 

They could be anyone that is a caregiver in the Lansing area.

 

And when I say Lansing area I accept that the feds are not lying. If you assume that leo always lies, then these could be any caregiver in the entire state.

 

If the feds have released the names, please let me know exactly who they are requesting information about.

 

I don't mean to imply that "we" know who the 7 CGs are but that 7 specific people are under investigation as a result of the Nov. 2010 raid in Meridian Twp. Attorney Dave Clark of Lansing represents one of those seven. I don't know the other six, but as I understand it, they are also specific people under investigation. The seven people know who they are. If their patients have two brain cells to rub together, they know who they are too. The public doesn't. LEO doesn't. LEO wants to know.

 

Since there were 400+ plants involved in this, there would have to be 30+ patients being grown for.

 

So far, those 7 people under investigation have not provided cards for the 30+ patients being grown for.

 

This leads some people to believe that either a.) there are no patients or b.) the patients are in on a racket.

 

Other people believe that the 7 CGs are protecting the privacy of their patients.

[Dr. Bob]

To release the names of caregivers to the public, they would violate the MMMA. The fact that they didn't is encouraging. They are asking for legitimate information as part of a criminal investigation. The same information that is available to local law enforcement within the state.

 

There are criminals using the MMMA as cover for drug dealing and commercial farming. Supporting the Act means keeping it for patients, not as cover for criminal activity. If a caregiver is under investigation, they need to present their cards to justify the grow. That includes the cards that show a patient has named them as caregiver. Refuse to show you are covered under the MMMA, you can be arrested for possession of a Schedule 1 narcotic. Show the cards to prove you are in compliance, you are safe. That is why the cards are there. Expecting LEO to take our word for it or somehow 'sense' we are legal patients and/or caregivers is not a reasonable plan of action.

 

Dr. Bob

[Highlander]

So it is sounding like:

 

If this is about anyone with the remotest connection to a dispensary, they can sink or swim on their own and don't deserve our support.

 

If this is about compassion club folks, then they need to be supported.

 

And until we know exactly who they are, we assume they are dispensary folks. We tell these caregivers to go to hell until they prove they have nothing to do with a dispensary.

 

As cold as this will sound, it isn't about people, it is about the law. Stated this way because that is what the court sees.

 

Connection to a dispensary or not is irrelevant here. This should not be the business of the federal government. That is the matter at hand and, to that end, I don't care if those fighting the fight (MACC) support something else (dispensaries) that I don't support. I say good on the MACC. I don't care if the jane and john does are CC folks or dispensary folks. Maybe one of those 35 is also a registered sex offender and doesn't deserve support. Maybe the other 34 kill puppies. We're not supporting them; we're supporting the law that provides a right to privacy. I expect our MI AG to protect the rights that we in MI voted for.

[Highlander]

To release the names of caregivers to the public, they would violate the MMMA. The fact that they didn't is encouraging. They are asking for legitimate information as part of a criminal investigation. The same information that is available to local law enforcement within the state.

 

There are criminals using the MMMA as cover for drug dealing and commercial farming. Supporting the Act means keeping it for patients, not as cover for criminal activity. If a caregiver is under investigation, they need to present their cards to justify the grow. That includes the cards that show a patient has named them as caregiver. Refuse to show you are covered under the MMMA, you can be arrested for possession of a Schedule 1 narcotic. Show the cards to prove you are in compliance, you are safe. That is why the cards are there. Expecting LEO to take our word for it or somehow 'sense' we are legal patients and/or caregivers is not a reasonable plan of action.

 

Dr. Bob

 

Very well stated.

 

If the state cops encountered a 60-plant grow at a house through legit means and there was one guy there saying "I'm a caregiver to 5 patients but the confidentiality provisions of the law prevent me from disclosing the ID of my patients, so just run along now.." the cops would laugh in his face and take all his stuff and he'd win that ride to the greenbar hotel you talked about earlier.

 

But if it is a federal agent standing there, and you are in a facility with over 100 plants that by reasonable standards is legal under state law (for arguements sake), you are faced with a decision - "out" your patients in the hopes that producing State MMJ cards will satisfy a federal agent, or bring those five patients along for the ride with you.

 

I'm not sure which is the more reasonable response.

[Dr. Bob]

Very well stated.

 

If the state cops encountered a 60-plant grow at a house through legit means and there was one guy there saying "I'm a caregiver to 5 patients but the confidentiality provisions of the law prevent me from disclosing the ID of my patients, so just run along now.." the cops would laugh in his face and take all his stuff and he'd win that ride to the greenbar hotel you talked about earlier.

 

But if it is a federal agent standing there, and you are in a facility with over 100 plants that by reasonable standards is legal under state law (for arguements sake), you are faced with a decision - "out" your patients in the hopes that producing State MMJ cards will satisfy a federal agent, or bring those five patients along for the ride with you.

 

I'm not sure which is the more reasonable response.

 

That is why common sense dictates you stop at 99. That is a huge capacity for two caregivers and 7 patients, the biggest problem at that level is how 9 people need that amount of meds or is it a commercial grow.

 

Dr. Bob

[peanutbutter]

BB I know that.

 

At least that was what I thought.

 

The thing messing with my mind is how quickly several members of our community now think it's OK to use the registry as a tool for criminal investigation.

 

Criminal investigation is indeed allowed within the registry program. In very very limited situations.

 

And this isn't one of them.

 

Yes .. we show our cards to the officer in front of us. And it is against CRIMINAL law for that officer to pass that information on to ANYONE else. Including a PA, supervisors and partners.

 

That process is supposed to be the very end of a criminal investigation. It's not supposed to go any further than that initial contact.

[johndeeremuskies]

I believe if we had an AG worth a sh it the feds would not reciee anything but this AG has an agenda and it isnt the will of the people.

[peanutbutter]

i know one of the names involved pb though im not positive how "involved" he was. id be happy to discuss my thoughts with you in pm if you want to.

 

So then you have no idea if this name is one of the seven or not. That is unless you have had access to the DEA documents.

 

Standing is an issue in this case. This ruling by the US supreme court may help establish standing.

http://norml.net/attached/SupremeXCourtX10thXAmendmentXruling.pdf

 

This is about a states rights issue and seems to have been published within the last couple of days.

[+Silverblue]

I'm very worried about this.

 

Sb

[peanutbutter]

I'm very worried about this.

 

Sb

 

I understand.

 

We need a change on the federal level.

 

Whatever direction is required to get the job done.

[peanutbutter]

By Daniel Grow, Targowski & Grow, PLLC.

 

In U.S.A. v Michigan Dept. of Comm. Health (Case No. 1:10-mc-109, W.D.Mich., June 3, 2011), HWB, Hugh W. Brenneman, Jr. concluded that medicinal marihuana patients in Michigan have no expectation of privacy under the Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421, et. seq. (“MMMA” or “the Act”). He basically reasoned that there could be no such expectation because the federal government still criminalizes, investigates and prosecutes any use of marijuana. Gratuitously commenting that that any belief otherwise is “delusional,” his opinion goes on to suggest that the enactment of such privacy language “w[as] oversold by the Act’s supporters” and that as such, they “performed a disservice to their constituency.”

 

Brenneman’s opinion flies in the face of the MMMA’s intent and clear statutory language approved directly by Michigan voters in 2008.

 

The background of the case relates to an investigative subpoena by the DEA directed to the Michigan Department of Community Health (“MDCH”). While the MDCH had no frank objections to responding to the subpoena seeking information regarding patients participating in the MMMA’s registry program, the department was appropriately worried about violating the MMMA’s privacy provisions. The MDCH sought immunity from the penalties stated in the Act, and sought a declaratory judgment from the court exempting them from the penalties under the MMMA for transmitting the requested information.

 

Michigan’s Act contains express confidentiality provisions. Subsection (6)(h) of the MMMA states that applications and supporting information submitted by qualifying patients are confidential, and further states that and that any person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information is guilty of a misdemeanor, and subject to fines and jail time. MCL 333.26462. Brenneman dodged the application of (6)(h), and reasoned that the Act’s confidentiality provisions are only binding on the State of Michigan and its agents, not the federal government and its agencies. Quixotically, Brenneman would release the State of Michigan and its agents from its obligation to keep such information confidential merely because the information is requested by a federal agency.

 

As provided in subsection ©(3) of Rule 45 of the FRCP, a judge may quash a subpoena if it requires disclosure of privileged or other protected matter where no exception or waiver applies. Subpoenas have been quashed under this Rule for a multitude of reasons, including subpoenas pertaining to student records, medical records, counselor-student communications, attorney-client communications, trade secrets, and confidential research. Brenneman analyzed whether the subpoena was appropriate by considering the Controlled Substance Act’s language on subpoenas, applying the permissive language of §874 of the CSA, which grants the Attorney General the power to subpoena, rather than applying the proscriptive rule stated in FRCP 45©.

 

Brenneman’s opinion goes on to express his view of preemption in his efforts to void the MMMA’s confidentiality provisions. His opinion states “a state law authorizing the use of medical marijuana…cannot negate, nullify or supersede the federal Controlled Substances Act.” It continues, “[t]he MMMA’s confidentially provisions ‘stand as an obstacle’ to the accomplishment and execution of the purpose and objectives of Congress.” [FN1]

 

While Brenneman’s opinion recognized the CSA’s language expressing that Congress did not intend to occupy the field of all drug enforcement, the opinion concludes this is just not one of those areas. But the question the opinion fails to reach is how the MMMA confidentiality provisions necessarily are “an obstacle” to the implementation of the CSA. An obstacle cannot simply mean any inconvenience, but a legitimate prevention of Congress’s goals. The opinion colorfully notes that the “large elephant in the room” is that the CSA still criminalizes marijuana, and suggests that no State law will be able to change that. Perhaps the “elephant” that is being ignored is that without the Michigan’s new law, the DEA would have no agency to subpoena for these records. Indeed, the records wouldn’t even exist. Stated another way, the patient registry and the agency charged with keeping the patient records confidential didn’t exist before 2008, and the information held by that agency is s!

olely a function of the trust of those patients offering their information. Denying access to this trusted information can’t possibly be considered an obstacle to any legitimate law enforcement technique used prior to 2008. Just as the absence of a patient registry prior to 2008 was not an obstacle to the CSA, keeping it confidential creates no obstacle now.

 

In short, the intent of the MMMA is to provide an affirmative defense to qualifying patients in possession of a small amount of marihuana for medicinal use. It is well settled that if the DEA seeks information regarding physicians recommending marihuana to patients, such efforts are wholly outside the scope of the DEA’s purpose, and in Golzalez v Oregon the Supreme Court held that medical decisions are outside the intended scope of the CSA. 126 S. Ct. 923. Justice Kennedy stressed that the CSA was intended to control drug abuse and illegal trafficking, not to regulate the practice of medicine, an area traditionally under the control of the states. Id. In contrast, under Brenneman’s opinion, there was no need for the DEA to demonstrate the legitimacy of its subpoena, it was merely presumed. What the opinion demonstrates is a willingness to preempt any state law that might somehow cause the DEA inconvenience, delay, or additional effort in terms of pursuing their ends. However!

this is not the correct rule, nor should it be.

 

The cursory dismissal of the patient’s statutory right to confidentiality neglects a host of constitutional foundations, namely the separation of powers and state sovereignty; topics which deserve more than a simple presumption of constitutionality of a federal agency’s action. With Brenneman’s opinion, the notion that there is a presumption of constitutionality of all agency action no matter how intrusive to a person or how incidental or ancillary to the original purpose of the agency becomes further entrenched.

 

Unfortunately for those affected, once a bell is rung it cannot be un-rung.

 

[FN1] Interestingly, the CSA itself has been criticized by the Supreme Court. Justice O’ Connor’s dissent in Gonzalez v. Raich found the CSA's introductory declarations too vague and unspecific to demonstrate that any federal statutory scheme will be undermined by statutes like Michigan’s Act. She noted that the CSA’s declarations “are not even specific to marijuana” and that when states carve out a “...limited class of activity for distinct regulation, the inadequacy of the CSA's findings is especially glaring.”

 

Daniel W. Grow

Targowski & Grow PLLC

141 E Michigan Ave Ste 201

Kalamazoo, MI 49007

Phone: (269) 519-8222

Fax: (269) 345-1655

e-Mail: dan@targowskigrow.com

Web: www.targowskigrow.com