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Eric L. VanDussen

Michigan’S Supreme Court To Decide Who Can Sell Medical Marihuana

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By Eric L .VanDussen - March 30, 2011 - http://www.examiner.com/headline-in-traverse-city/michigan-s-supreme-court-to-decide-who-can-sell-medical-marihuana

 

Michigan’s Supreme Court (SCt) released an order on Wednesday indicating that they will ultimately decide whether “Michigan Medical Marihuana Act (MMMA) … permits patient-to-patient sales of marihuana.” The high court agreed to review “the August 23, 2011 judgment of the Court of Appeals” that found such activities to be a public nuisance and in violation of Michigan’s Public Health Code.

 

The Court of Appeals’ (COA) ruling caused many medical marihuana dispensary-type businesses to voluntarily close their doors. It also emboldened law enforcement agencies throughout the state to pursue criminal and civil actions against medical marihuana ventures that dared to remain open.

 

The controversial case at issue originated in 2010, when the Isabella County Prosecutor’s office asked a circuit court judge to issue an injunction against the Compassionate Apothecary (CA) in Mt. Pleasant, Michigan.

 

On December 16, 2010, Circuit Judge Paul H. Chamberlain issued an order declining to issue an injunction. Judge Chamberlain opined that the CA “would suffer a great hardship if this court enjoined them from operating their business because not only would they lose their business and property, but they would suffer such loss despite conforming to the laws of this state … The public owns a large interest in this case because the same public voted to enact the MMMA, which lends support for its interest in providing a system by which registered qualifying patients may engage in the medical use of marihuana to alleviate their debilitating medical conditions and symptoms associated with such conditions.”

 

Isabella County’s prosecutor argued in his appellate brief to the COA that the MMMA, “clearly did not intend to allow the operation of dispensaries under the guise of patient to patient transfers. The [MMMA] intended to create a relationship between qualifying patients and registered caregivers as means of obtaining medicinal marihuana.”

 

The CA countered in their COA brief that if the “[MMMA] wished to require a connection through the Department’s registration process to the patient from which the registered caregiver is receiving compensation, it could have easily said so… It does not. Accordingly, the converse is true; any registered qualifying patient may provide compensation to any registered primary caregiver for costs associated with assisting that registered qualifying patient in the medical use of marihuana.”

 

Michigan’s Attorney General (AG) filed an amicus brief with the COA arguing that the CA’s “business activities of facilitating the transfer, delivery or sale of marihuana between registered qualifying patients and between registered primary caregivers and qualifying patients not in a registered relationship with the caregivers are not protected by the [MMMA]. Because [the CA’s] activities are unprotected, they violate other existing laws and are illegal.”

 

The Michigan Association of Compassion Centers (MACC) was also allowed to file an amicus brief. MACC argued in their brief that the “sale of marihuana between Patients and Caregivers is not illegal. The Controlled Substances Act makes it illegal for individuals to possess, manufacture, and distribute marihuana but does not make it illegal for them to sell marihuana.”

 

On June 7, 2011, the COA heard oral arguments pertaining to the CA appeal. COA Judge Cynthia Stephens asked Michigan’s Assistant Attorney General when “a patient, who is a registered patient, gives another patient the product – with or without compensation – who then gets prosecuted?” Assistant AG Heather Meingast responded, stating the person that would be prosecuted was the “selling patient, or the transferor patient would be subject to prosecution… a patient cannot assist other patients through the delivery of medical marihuana because that activity is solely delegated to a registered primary caregiver…”

 

The COA’s August 23, 2011 opinion found that the, “operation of CA is a public nuisance and must be enjoined… Because defendants possess marihuana, and they possess it with the intent to deliver it to CA members, defendants’ operation of CA is in violation of the [Public Health Code]. Further, their violation of the PHC is not excused by the MMMA because defendants do not operate CA in accordance with the provisions of the MMMA. Through CA, defendants actively participate in the “sale” of marihuana between CA members, but the “medical use” of marihuana does not include the “sale” of marihuana. In addition, even if defendants were engaged in the “medical use” of marihuana, they would not be entitled to the immunity granted by § 4(i) because defendants are not assisting registered qualifying patients with “using or administering” marihuana.”

 

The CA filed their SCt application for leave to appeal on October 4, 2011. They argue within their brief that, “Under the guise of legal reasoning, the Court of Appeals engaged in judicial activism and issued an opinion invalidating protections embodied in a law passed by 63% of Michigan voters. The Court of Appeals personal opinions are so pervasive that not one medical marihuana case decided by that court has returned a decision in favor of a defendant. This is not accidental. Because of this activism, thousands of qualifying patients are left without adequate access to medicine legal for them to consume in Michigan. Also as a result of this activism, businesses such as CA have shuttered their doors in fear of being criminally prosecuted for engaging in conduct - patient-to-patient transfers - that comports with the statutory language, but that the Court of Appeals has now deemed illegal without a statutory basis upon which to ground its opinion. Instead, the Court of Appeals has used a broad brush to paint all "dispensaries" illegal. The unsurprising upheaval that occurred as a result of this blatant judicial activism cannot be countenanced by this Court, and the unprecedented maneuver of denying medication to qualifying patients and closing businesses with the stroke of a pen cries out for review.”

 

The SCt has not yet set a date to hear oral arguments in this appeal. Their order, which was released on Wednesday, states that the “Attorney General and the Michigan Association of Compassion Centers are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.”

 

(Anyone who is interested in obtaining documents referred to in this article can contact Eric L. VanDussen directly at: ericlvandussen@gmail.com – you can watch the COA oral arguments at:

)

--

Eric L. VanDussen

Videographer & Freelance Journalist

(231) 651-9189

Edited by Eric L. VanDussen

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Me too.

Looks good for our side.

I cannot see how they would take up a case they believed to be adjudicated correctly.

Cross your fingers.

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Allowing for PTP CTP PTC CTC among cardholders and people whom qualify for the affirmative defense so cases are not automatically brought and given the full weight of state resources is the only way to create a working affordable program in real world practice . We already know the Feds have Stated the States cannot conduct grows . I hope we can get a break here . Not looking to far ahead but taxation has to be addressed . From a State prospective since the Federal Government has been so ridiculous we need to create law that exempts medicinal cannabis use in our State from any specific taxation at ANY level but for our card fee's . That would give amnesty to individuals locked into a system where compliance is impossible without the allowance of expenses . D.C. has let tens of thousands of state legal caregivers and patients

down who need realistic tax treatment under law that can be complied with and which should be non existent to subsidized for individual caregivers and patients involved in transfers while cannabis is phased back into medicinal use . .

Edited by Croppled1

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Thank-You Eric L. VanDussen

 

for taking the time to share this w/ Us ....

 

I really hope the Supreme Court thinks about

 

what is Best for the Patient ...

 

If Patients & Caregivers are NOT Allowed to Help Each other ,

 

there is No Need for Compassion Club ....

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The CA brief filed for appeals on Oct 4 was brilliant. It cololessed all the negatives we are suffering from the state to thwart the people's law with clear, hard to miss the point language. thanks Eric!

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Allowing for PTP CTP PTC CTC among cardholders and people whom qualify for the affirmative defense so cases are not automatically brought and given the full weight of state resources is the only way to create a working affordable program in real world practice . We already know the Feds have Stated the States cannot conduct grows . I hope we can get a break here . Not looking to far ahead but taxation has to be addressed . From a State prospective since the Federal Government has been so ridiculous we need to create law that exempts medicinal cannabis use in our State from any specific taxation at ANY level but for our card fee's . That would give amnesty to individuals locked into a system where compliance is impossible without the allowance of expenses . D.C. has let tens of thousands of state legal caregivers and patients

down who need realistic tax treatment under law that can be complied with and which should be non existent to subsidized for individual caregivers and patients involved in transfers while cannabis is phased back into medicinal use . .

 

Mhttp://www.cnn.com/video/#/video/bestoftv/2012/03/30/tsr-sylvester-dc-pot-dnt.cnnedical marijuana in

Washington

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Please understand that besides the governor, Bill S.(Attorney General) and Robert Young(Supreme Court Chief Justice) were two of the largest recipients of Republican dollars. Hows this for controlling enforcement and the courts? Follow the money

 

Robert M Lynas donates millions of dollars to the Michigan Republican party.(He is #2 and R.DeVos-Amway is #1) His company R A Miller Inc, receives multi-million dollar contracts from the government. (Our tax dollars).

 

Michigan 2 Cogressional Districts (Peter Hoekstra / Bill Huizenga) $94,636,527 Contracts to MILLER RA INDUSTRIES

 

http://www.followthemoney.org/database/StateGlance/state_candidates.phtml?s=MI&y=2010

 

I am beginning to understand why the seeds of protest are sown from the actions of the politicians. A wink, nod and "donation" are what matters not the will of the people. This is going to change as more and more people are screwed. First they took my job, then my insurance, my savings and now my law. They have gone totally out of control and need to know they can't remain in the shadows forever.

 

Regards and peace,

C

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Not looking to far ahead but taxation has to be addressed . From a State prospective since the Federal Government has been so ridiculous we need to create law that exempts medicinal cannabis use in our State from any specific taxation at ANY level but for our card fee's .

 

NO TAX per Rick Snyder per our law

post-15416-0-05162600-1333158782_thumb.jpg

Edited by Mememe

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interesting post me... hadn't seen that before. ;-)

 

 

so income for providing services in this state can't be taxed? but still, it would just require amending the law to allow for taxable sales. seems to me, most of the dips are kinda operating under the idea that the employees staffed are registered caregivers & using the line of thinking bb has w the markets.

 

hopefully the courts take a similar mind, at a minimum...

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The way I see it dispensaries should be allowed on condition that there are always enough patient/caregiver cards possessed by employees on site to cover the weight. For example if a dispensary had thirty ounces of meds in the building there would necessarily have to be two fully loaded patient/caregiver employees or the equivalent on site. If an employee needs to go get lunch they would either need to take their portion of the weight off site with them or have a stand-in caregiver take possession of the meds while they are gone.

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they could use an individual, on-site safe... only the registered cg has access to each one... not even the 'operator'. but as the day went down, they would have to leave & restock, or have someone else come in & work his stash, from his safe. but yeah, would likely need at least 3 cg's to operate the place... even more, depending... or have a line of patients waiting... and not too many, or u'l run out.

 

trying to make it consistent w an ill equipped law, no doubt.

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I've posted some of this information in another thread but I believe that it's equally relevant here. The Court of Appeals was WAY off (and anybody with a modicum of objective judgment realizes this). I'd like to believe that this is why the Michigan Supreme Court is hearing the case.

 

The CoA opinion seems to ignore that the MMA definition of "medical use" includes the word "transfer" (the meaning of which we shall explore below). My interpretation of the language is that any person for whom "medical use" is authorized under §4 has the right (as a function of MMA's definition of "medical use" and their human right to dispose of tangible personal property by any legal manner) to transfer cannabis to anyone who is authorized under the MMA to "acquire" and "possess" cannabis.

 

How else are patients without a caregiver supposed to acquire cannabis? Oh, that's right. The Court of Appeals doesn't even mention patients who do not have (and/or do not want) a relationship with a caregiver. Oops! You don't exist and anybody who sells medicine to you is a criminal (under the Public Health Code)! Silly me! I'd thought that §7(e) dealt with the application of PHC (or any other act or part of an act) to "medical use ... as provided for under this act."

 

For purposes of comparison, here are some (slightly) different definitions of "transfer":

 

Transfer is defined as "any mode of disposing of, or parting with, an asset or an interest in an asset." Bus. Edge Group, Inc. v. Champion Mortg. Co., 519 F.3d 150, 154 (3d Cir. N.J. 2008) In another case, transfer is judicially defined as "every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payments of money, release, lease and creation of a lien or other encumbrance." Compuware Corp. v. Innovatec Communs., LLC, 2005 U.S. Dist. LEXIS 45621, 26-27 (E.D. Wis. Aug. 24, 2005) -- http://definitions.u...com/t/transfer/

 

The act by which the owner of a thing delivers it to another person, with the intent of passing the rights which he has in it to the latter.

 

It is a rule founded on the plainest dictates of common sense, adopted in all systems of law, that no one can transfer a right to another which he has not himself: nemo plus juris ad alienum transfers potest quam ipse habet.

 

To transfer means to change; for example, one may transfer a legacy, either, (1)By the change of the person of the legatee, as, I bequeath to Primus a horse which I before bequeathed to Secundus. (2)By the change of the thing bequeathed, as, I bequeath to Tertius my History of the United States instead of my copy of the Life of Washington. (3)By the change of the person who was bound to pay the legacy, as, I direct that the sum of one hundred dollars, which I directed should be charged upon my house which I gave to Quartus, shall be paid by my executors. -- http://www.lectlaw.com/def2/t100.htm (originally found in Bouvier Law Dictionary, 1856)

 

“Transfer” means the passing of property or any interest in property, in possession or enjoyment, present or future, by inheritance, descent, devise, succession, bequest, grant, deed, bargain, sale, gift, or appointment. -- MCL 205.256(o) (http://legislature.michigan.gov)

[emphasis mine]

 

One may argue (correctly) that the first two definitions are simply "persuasive precedent" and the judges didn't need to rule using those definitions. However, the third definition is written into the Michigan Estate Tax Act of 1899 (last amended in 1998). MCL 205.256 was law prior to the ruling. MCL 205.256 is constitutional. This is the definition of "binding precedent" as I understand the concept.

 

Any questions and/or comments are welcomed. If anyone reading this is capable of ensuring that this information reaches the appellant or their counsel, please do so. I think it may just help their case (and "the community" as a whole)...

 

This writing (or portions thereof) may be reused and/or disseminated under CC-BY-NC license. See http://www.creativecommons.org for more information. Since I'm not using my given name here, "Peragro" is an acceptable attribution for the purposes of this license.

Edited by Peragro

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Again, you can dig up 1000 different definitions of transfer from caselaw or statutes and that doesn't matter. The only definition that is relevant is a dictionary definition. You are overthinking this.

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Again, you can dig up 1000 different definitions of transfer from caselaw or statutes and that doesn't matter. The only definition that is relevant is a dictionary definition. You are overthinking this.

 

Which dictionary's definition do you think they'll use? Do you think they'll use a definition that includes 'sale' as a synonym of 'transfer'?

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How about we wait until we see what they rule? The ball is in their court now, and I don't think they are coming to this forum for guidance on issues of the law. We are going to get a collective ulcer looking for the proper definition of a word. Overthinking is one thing, obsession is another. We are obsessed in this community over every singe word to the point we tend to miss what the sentence and the paragraph are actually saying.

 

Just a thought.

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Seeing as it's a LAW and the "normal" definitions of the word "transfer" are generally terse, I don't think it's at all inappropriate to give a "legal" definition and precedents. This is precisely what "we" should have been doing. It's clear that the MCOA and MSC don't speak "our" language, so "we" need to speak "their" language. It's not that "transfer" has any special legal meaning. It's that Merriam-Webster fails to define the word specifically enough (but, as mentioned, the word is already defined in MSC 205.256).

 

Given the MSC's decision, do any of you still believe that I was "overthinking" this?

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Not me most here knew that the SC would not let just anyone sell MMJ to any card person

But I am glad he didn't get arrested he should too

Edited by bobandtorey

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bobandtorey, I concur that MSC (and the "low-functioning" AG) was out to "crush" the MMMP from the word "go". What I wish those fools (and the State legislature) would recognize is that "we" are not criminals (well; not any more so than the general population). We shouldn't have to explain to them how/why State-level medical use does and should "work"!

 

Even if some people do "abuse" the MMMA (which seems to be a "manufactured problem"; see: COINTELPRO) all this "collective punishment" does is breed (more) contempt for and mistrust of government. After four solid decades of deceitful, self-interested, and outright kleptocratic administrations, more distrust in "the system" is absolutely the last thing this country (and our State) needs.

 

OK, Greg. You have failed both the "reading comprehension" and "temporal awareness" portions of this examination. My reply to the posts above, which nobody forced you to read, was/is at least semi-relevant and the question was absolutely serious. Seeing as my last post in this thread was less than five months ago, not "a year", your exaggeration is baseless and crude.

 

Sorry if this comes off as USI but I believe that I basically handed the key(s) to this argument to this forum (where my anonymity is at least semi-protected). What do I get in return? I get condescended to and demeaned. Did the defense even attempt to use those precedents? I'm not going to look up the transcripts (and don't much care either way at this point) but I am curious as to how they could have failed.

 

The wonderful thing about our system of government is that this isn't a "decision" in the strictest sense of the word. A handful of old men in black dresses gave a ridiculous (and brilliantly dissented) "opinion". Said "opinion" can/should be challenged (SCOTUS). This "opinion" doesn't mean that the People of Michigan cannot pass another law which invalidates it (and "we" might as well dismantle all State-level "marihuana" laws while we're at it; just plain old "decriminalization", pl0x).

 

P.S. - That you had to edit an eight-word post... I laughed! I cried! I am curious; was it more "witty" before the edit(s) or after?

 

P.P.S. - Sorry if I rustled your jimmies but "I've been busy" and "I'm just catching up on old posts". Feel free to ignore me if you don't like it.

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Yea I bet he does! darn this seems like yrs ago! how time flys when your having fun or banned! On the out side looking in, :kfu: that smiley reminds me of bho, lol

 

Peace

Jim

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bobandtorey, I concur that MSC (and the "low-functioning" AG) was out to "crush" the MMMP from the word "go". What I wish those fools (and the State legislature) would recognize is that "we" are not criminals (well; not any more so than the general population). We shouldn't have to explain to them how/why State-level medical use does and should "work"! Thanks I agree

 

Even if some people do "abuse" the MMMA (which seems to be a "manufactured problem"; see: COINTELPRO) all this "collective punishment" does is breed (more) contempt for and mistrust of government. After four solid decades of deceitful, self-interested, and outright kleptocratic administrations, more distrust in "the system" is absolutely the last thing this country (and our State) needs.

 

OK, Greg. You have failed both the "reading comprehension" and "temporal awareness" portions of this examination. My reply to the posts above, which nobody forced you to read, was/is at least semi-relevant and the question was absolutely serious. Seeing as my last post in this thread was less than five months ago, not "a year", your exaggeration is baseless and crude.

 

Sorry if this comes off as USI but I believe that I basically handed the key(s) to this argument to this forum (where my anonymity is at least semi-protected). What do I get in return? I get condescended to and demeaned. Did the defense even attempt to use those precedents? I'm not going to look up the transcripts (and don't much care either way at this point) but I am curious as to how they could have failed.

 

The wonderful thing about our system of government is that this isn't a "decision" in the strictest sense of the word. A handful of old men in black dresses gave a ridiculous (and brilliantly dissented) "opinion". Said "opinion" can/should be challenged (SCOTUS). This "opinion" doesn't mean that the People of Michigan cannot pass another law which invalidates it (and "we" might as well dismantle all State-level "marihuana" laws while we're at it; just plain old "decriminalization", pl0x).

 

P.S. - That you had to edit an eight-word post... I laughed! I cried! I am curious; was it more "witty" before the edit(s) or after?

 

P.P.S. - Sorry if I rustled your jimmies but "I've been busy" and "I'm just catching up on old posts". Feel free to ignore me if you don't like it.

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You really don't want to start.

I did not "start" this "conversation" with you, sir. You did that all by yourself. Rudely.

I'm guessing at the "ITG-to-English" translation here. It's not my native language.

 

Yea I bet he does! darn this seems like yrs ago! how time flys when your having fun or banned! <snip>

No. I really don't. I "resurrected" this thread for two reasons:

1) To reply to "bobandtorey", who I hadn't "seen" in months.

2) To ask a "Serious Question" of the forum.

 

I wish I'd been "having fun", man. Even being "banned" would be preferable to how I've spent the past few months. Really.

 

I didn't find Greg's reply to be in any way relevant to the thread (or to "reality") so I "told" him this. Perhaps I was a little "insulting". I recognized this and apologized for any offense at the end of my post (though I do believe that everything I wrote was "well-deserved" and "harmless"). It was certainly "all in good fun". Sheesh.

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