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http://www.ourmidland.com/news/article_44916390-9b36-11e0-8cb6-001cc4c002e0.html

 

A Midland County judge has ruled the state’s medical marijuana act is unconstitutional, with the opinion carrying the potential to set precedent if it survives a challenge that is sure to come in the Michigan Court of Appeals.

The opinion, penned last week by Midland County Circuit Court Judge Jonathan E. Lauderbach, addresses two separate cases regarding probation conditions and the use of medical marijuana.

“Whether this is good or bad public policy for Michigan is not for this court to decide,” he wrote of allowing medical marijuana use, explaining all the nation’s courts are bound by the Supremacy Clause to be guided first by the U.S. Constitution and federal laws. That means even if defendants prove they are seriously ill and use medical marijuana to ease their symptoms, Lauderbach would conclude the Michigan Medical Marihuana Act of 2008 is unconstitutional and “therefore must be declared to be “‘without effect,’” his opinion states.

The cases behind the decision

The defendants in the cases at hand, Jonathon Murray Finney, 29, and Todd Alan VanWert, 46, both of Midland, have already been sentenced for offenses including marijuana possession, and each entered the muddy legal battle over medical marijuana usage in different ways related to probation.

Finney was brought before Lauderbach for a probation violation hearing, which court documents list as twice testing positive for marijuana use after he was prohibited from doing so by a probation condition against drug use. On the same day his probation violation hearing was conducted, his attorney, Edward M. Czuprynski of Bay City, presented Lauderbach with a motion requesting modification of Finney’s probation conditions to allow him to use medical marijuana.

In VanWert’s case, Czuprynski filed the motion asking for probation condition modifications before the sentencing hearing.

Czuprynski presented copies of medical marijuana cards possessed by both Finney and VanWert and cited a section of the act stating qualifying patients are protected from arrest and prosecution, and are not to be denied any right or privilege providing they follow the act’s provisions.

“Modification of the defendant’s probation terms ... is needed and necessary to put him in compliance with the probation this court has ordered while exercising his legal right to use medical marijuana as permitted by law,” Czuprynski wrote in the motions.

Assistant Midland County Prosecutor Richard Dresser answered Czuprynski’s motion in Finney’s case, stating judges routinely “order defendants to refrain from doing things that would otherwise be lawful,” like consuming alcohol, entering bars, or possessing weapons including firearms. He cited the decision of a Cass County Circuit Court judge who found a defendant who possessed a medical marijuana card and used marijuana did indeed violate her probation terms by doing so, at the same time pointing out the ruling does not set binding precedent.

“While it may not be a violation of Michigan law for a person issued a medical marijuana card to possess or use marijuana, it is still a violation of federal law,” Dresser wrote, presenting the federal case U.S. vs. Hicks, in which Judge Lawrence P. Zatkoff decided a defendant who used medical marijuana violated supervised release conditions by doing so. Zatkoff also wrote even if marijuana possession were legal, it would still have been a violation of the defendant’s supervised release conditions.

Czuprynski, in a reply to Dresser’s answer and brief supporting his reply, stated the use of medical marijuana by probationers is different from other probation terms because a doctor recommends its use, and courts must respect the relationship between doctors and their patients. He added probationers continue to use prescribed controlled substances while on probation. To further support the point, Czuprynski cited guidelines from U.S. Attorney General Eric Holder that directs federal prosecutors not to prosecute individuals whose actions comply with existing state medical marijuana laws, but rather prosecute those whose actions clearly do not comply. That means Finney is exempt from federal prosecution because of Holder’s directive, so the court is without legal authority to prohibit his use of medical marijuana while on probation, Czuprynski wrote.

“A court simply has no authority to prohibit a probationer from using medical marijuana once a doctor recommends its medical use,” Czuprynski wrote, later pointing out decisions of federal courts are not binding on state courts. “Moreover, this court must not interfere with the doctor-patient relationship and impose its judgment on what the best course of treatment for a patient is.”

Other prongs of Czuprynski’s arguments include the medical marijuana act is not superseded by the state act addressing probation or its condition to obey federal laws, Finney’s due process rights will be violated if the court interprets the federal Controlled Substances Act to control over the Michigan Medical Marihuana Act, that federal law does not preempt the medical marijuana act, and that prohibiting Finney from using medical marijuana would constitute an unauthorized practice of medicine.

In his opinion, Lauderbach denied both motions to modify probation conditions, and found Finney did in fact violate his probation terms by using marijuana when he was not to use any drugs.

The opinion

The bulk of the 27-page opinion, which was filed on June 8, lays out the rationale for Lauderbach’s decision regarding the probation conditions and violation, beginning with the history of the cases of Finney and VanWert. It concludes that the medical marijuana act is unconstitutional.

In Finney’s case, he did not deny using marijuana during the testing period, but rather stated he was allowed to use it under the medical marijuana act. Finney is employed as the caregiver for another man who uses medical marijuana, who testified he is confined to a wheelchair and that Finney does everything for him.

The opinion also contains transcripts from a court hearing during which Lauderbach questions VanWert, learning he first visited Ruth Ann Buck, an area doctor facing federal drug charges for issuing 1,870 medical marijuana certifications to non-debilitated patients, and later a doctor in Cadillac, to obtain a referral for a medical marijuana card. VanWert told Lauderbach he avoided the doctor he regularly saw because he believed that doctor would ask him to leave or prescribe him a narcotic when asked for a medical marijuana certification.

Finney and VanWert both state they suffer from migraine headaches, and Finney also has other medical conditions that interfere with strenuous activity including problems with bones, joints and muscles. VanWert’s certification papers, which are included in court documents, state he has problems with his knees, hands and wrists. Court documents state Finney acknowledged in a presentence interview that he began using marijuana when he was 16, and VanWert acknowledged using marijuana one to two times weekly between 1984 and 2000, then resuming in May 2010.

Lauderbach found though each defendant argued he was a “qualifying patient” under the act, neither could meet the requirements the act lays out in order to be deemed so — including a “bona fide physician-patient relationship and the existence of a serious or debilitating medical condition,” he wrote, adding the court cannot “turn a blind eye to the context in which they received their registry identification cards.”

Both men’s past use of marijuana and the finding that neither received a recommendation from their regular doctor led to Lauderbach deeming appropriate a condition prohibiting use and possession in this case as in any other case where the court orders probationers to refrain from doing something they might otherwise be legally entitled to do, the opinion states.

“This court is required to prohibit Mr. Finney and Mr. VanWert from violating federal law and accordingly must order them not to use marijuana for any purpose,” the opinion states.

When taking up the probation violations filed against Finney, Lauderbach found prosecutors proved by a preponderance of evidence that Finney used marijuana on the dates in question.

Reaction

“We’re were very pleased with the opinion,” Midland County Prosecutor Mike Carpenter said, adding it is well thought out and is binding only in Midland County unless other chief circuit court judges adopt it in their jurisdictions or if it is affirmed by the Court of Appeals.

Carpenter and other attorneys across the state also are watching for a Court of Appeals decision in an Isabella County case regarding marijuana dispensaries, called People vs. McQueen.

“Once we have that, we will decide on how to proceed with enforcing laws,” Carpenter said. “The Medical Marihuana Act was horribly written,” he said, calling it a “Trojan horse to create exactly what we have, which is chaos.”

Simply verifying if a person is a card holder is one of the fundamental problems rendered for law enforcement and prosecutors, he said, adding the Department of Health can only verify if a person is a card holder by name if contacted during regular business hours and given a name. The cards themselves do not show photos of the card holders, so officials have no way to verify if the card holder is indeed the person holding it under the restraints of the act.

Messages left for Czuprynski were not returned.

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This wouldn’t surprise me knowing the locals mind-set in this area of Michigan. It tends to be very pro-government, give me my freedom except when you want your freedom, conservative on personal liberties. When they want to legitimize taking someone’s right away, they certainly love the government and will pull their flags out to show us how patriotic they are. What a load of horse-crap! We get this BS from elected officials versus acting in interests of the 63% of us that said yes to medical. These idiots don’t get to pick and choose which laws they want to enforce, especially when we voted this in! This surprises me none. Absolute idiots these people are!:angry:

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they need to be clued in all MMJ charges against Dr Buch have been DROPPED as of 5 days ago. She is no longer being investigated where MMJ is concerned. so his referance to her case, then, is now a mute point. and he should have to strike it from the conclusion, thus have to amend said conclusion. this is a point that needs to be introduced durring Appeal!

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So now everyone in Midland has to freak out and destroy their plants and medicine?

 

This rectumhole judge either doesn't understand federal supremacy or (more likely) is deliberately abusing it. Federal supremacy does NOTHING to REQUIRE a state to ENFORCE a law. Our law simply tells the cops not to enforce a certain law in certain instances. I assume he'll get overturned on appeal, since the COA hasn't declared it unconstitutional (and our law has been before them).

 

There's a special place in hell for people like him. Lauderbach to cancer patients: die a horrible painful death. Lauderbach to glaucoma patients: f&$# you, go blind. Nice guy.

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