Msc Mcqueen Hearing.

[CaveatLector]

Well, I went and here are my impressions.

 

McQueen's counsel, Chartier, wasn't bad. Made good points, is well-spoken, clearly knew the law and put a ton of time into her case. She easily withstood questioning from the Justices but I didn't like seeing her conceding points. If I remember correctly she did concede a point that had to do with interpretation regarding the definite article, "the."

 

The Isabella County Prosecutor did, frankly, a poor job. There was a lot of her telling the Justices what the act meant (transfer in particular) where her interpretations were clearly too narrow.

 

The Solictor General, Bursch, even though he looked like he was 12 years old and Orville Redenbacher's grandson to boot, is a fantastic orator. That guy was extremely well-spoken and well-prepared. It was clear that, he too, had a good grasp on the law. I don't believe I've seen a better advocate in any courtroom. He was phenomenal. With that said, his arguments weren't as convincing to me but it is easy to see how a good advocate can sell sand in a desert.

 

As for the legal arguments, we've been through them all here and there is no use rehashing. However, several of the Justices seemed to favor the state. That, or they were just playing devil's advocate. If I had to predict I would say Markman, Hathaway, and Zahra will all vote in favor of the state. Probably Young will as well but I don't know--he seemed to be asking questions in more of a devil's advocate sort of way. However, he did make it a point to pursue the idea that medical use must be done to alleviate "the" patient's medical condition. He reasoned that a caregiver to cg transfer is not directly doing that and hinted that such a transfer wouldn't be legal. Chartier did bring up the idea that patient to patient transfers WERE being made to alleviate THE patient's (the tranferor's) condition in that participation in the locker box program gave them access to other strains so the transfer DID help them. I don't know that the Justices bought that. I think they are thinking that such a transfer's benefit is too attentuated to be considered alleviating the medical condition by the transferor. I expect to see some discussion of proximate and but-for cause in the opinion in regard to medical purpose as it relates to these transfers. They didn't discuss those issues in the courtroom but that's where I think their minds were going. As for the other 3 Justices, who knows. They didn't ask many, if any, questions. We shall see.

 

Interestingly, Bursch basically asked the court to make another appendix to the opinion like they did in King/Kolanek. I don't know if they will address all transfers, as all transfers are not before them as issues. However, I think they will at least hint at answers to those questions.

 

The Bylsma case pretty much focused on the term "possession" and whether the building owner possessed the plants in the collective. Unfortunately I don't feel that Bylsma's attorney did a great job advocating. However, the prosecutor did an equally poor job if not worse. But, Bursch made a re-appearance in that case and he was just as good as in McQueen. I can't predict how that case will go. The Justices were a hard read there but, for the most part, seemed to favor the state.

 

If I had to guess I would say they will rule that compensation is allowed only for a pt to a connected cg. I would further guess that they will say that no other transfers, with or without remuneration, are allowed. That's if they choose to make a broad ruling. Technically those issues aren't all before them but they could make a ruling of what IS allowed and, by virtue of that, answer the pt to pt question and incidentally put the brakes on all other transfers without ruling on them in particular.

 

Anyway, all a bunch of guesses of course. Could go either way. It's just my read of the demeanor, etc.

Edited October 11, 2012 by CaveatLector

[AmishRnot4ganja]

Nice synopsis. Thanks.

[CaveatLector]

Did you see the arguments for King/Kolanek? Did you anticipate 7-0 based on the questions and responses there?

I didn't see that case, no. But, admittedly, I would NOT have guessed that outcome. I would have guessed a 4-3 outcome with King/Kolanek losing.

 

Like I said, it's all opinion. It's like trying to read a jury. Just my best guess. But I would put money on Markman and Zahra voting against McQueen.

[Kingpinn]

Bite your tongue .I was FRAMED

Edited October 11, 2012 by Kingpinn

[CaveatLector]

Bite your tongue .I was FRAMED

I did see your case at the COA level though. I don't remember my impressions on that. Wasn't that more than 2 years ago now? Maybe 2.5 to 3 years?

[SFC]

Thanks Cav for the play by play. I guess we will all find out in about 3 months or so.

[+Malamute]

Yea.... thanks.

 

And, never try to predict what they will do for sure. :-)

 

I mean, we can speculate as always, but one thing i learned is, you cannot read this court by oral arguments. :-)

[Herb Cannabis]

Your efforts are appreciated, thank you.

[TheHarvester]

CavealLector thank you for an outstanding synopsis and your thoughts. Would you give a few more?

In regards to the McQueen case..

What is important for Chartier to get out to the Judges to gain the best consideration? What do you think the Prosecution's strongest argument is. Did the Justice's challenge the PA on her narrow interpretations of the act?

[Sledge]

Thank you CL

[CaveatLector]

Chartier did a fine job explaining her position regarding "sale" and the COA's failures in its interpretations. I feel that the idea of a sale, and whether it is legal, is secondary to the idea that selling mm for a profit is NOT engaging in activity whose purpose is to alleviate the medical condition. At least as far as the seller is concerned. Several of the Justices seemed to address that issue. I think that will be the one hurdle that is very difficult to overcome. Why? Because even if a sale is legal (not made illegal anywhere in Michigan law) the question becomes whether the conduct related to the mm is for the purpose of alleviating the pt's med. condition. Certainly the purpose is so in regard to the buying pt but can the same be said for the selling cg or pt? I don't know how one gets around that conundrum. So I think that is ultimately the prosecution's best argument against transfers that include the selling element.

 

Some treatment was also given to whether transfers could be made outside the cg/5 pt framework at all. Markman made several comments regarding reading the act in context and considering previous paragraph, etc., while interpreting others. I think he was pointing out that the act can be parsed to force a "legal" transfer outside the framework but that a statute isn't to be read in such a manner. The more I think about it the more I realize this will not be the landslide that K&K were,

 

The Justices absolutely challenged the prosecutor on her narrow interpretation. Specifically of "transfer" as used in the definition of medical use. At one point she was asked why she felt the way she did regarding interpreting transfer so narrowly. Her answer was something like, "because that's what I think." She didn't back it up with anything concrete. Keep in mind though that she is a county PA. This may be her first appearance in front of a panel of 7 Justices willing to force her to justify her position. That can be intimidating. Her brief may be better constructed than her oral arguments were and, ultimately, that will be more persuasive I would think. But I don't know. But her position that transfer only covered cg to registered pt was backed up by nothing more than her thought that the act should be interpreted that way.

 

Ultimately I could see some Justices taking the position that a sale is not covered because it is being done for a business purpose. So, for those who say that sale is not illegal, you need to realize that a sale necessarily involves a transfer. Transfer is illegal unless exempted from criminal liability under the MMA. But, if the sale takes you out from under the umbrella of MMA coverage then you have a transfer hanging out there that is not covered--therefore a prosecutable offense.

 

We shall see.

[CaveatLector]

Out of curiosity, why did the title of this thread come out with only caps at the beginning of each word? I thought I capitalized MSC as well as the Q in McQueen in the intial posting but it didn't show up that way. So I just tried to edit it and capitalized them again but it didn't take. Seems odd.

[Highlander]

So, for those who say that sale is not illegal, you need to realize that a sale necessarily involves a transfer. Transfer is illegal unless exempted from criminal liability under the MMA. But, if the sale takes you out from under the umbrella of MMA coverage then you have a transfer hanging out there that is not covered--therefore a prosecutable offense.

 

We shall see.

 

For a long time I have been trying to figure out a way to explain that "sale" doesn't have to be illegal under the PHC in order for a person to lose their medical defense because they "sold."

 

I'll try this.

 

Say you're a patient and CG growing 72 plants. You give away marijuana for free to someone who is clearly not a qualifying patient. Everyone except a few dolts on the fringe understand that the protection given by the MMMA only applies if you comply with the MMMA. Slip up and you lose the whole umbrella. I don't like this any more than the next person, and this is why I support lesser, specific penalties for people who are carded but get caught maybe smoking in public, a couple plants over, a few grams over etc. I don't like the fact that if you violate the MMMA even just a wee bit that you lose all protection, but that's a different discussion.

 

But, back to my "for instance." The pt/CG, being the nice guy that he is, gives some marijuana to his cousin (not a card-holder) free of charge. Cousin proceeds to burn one while burning along the county highway, and he gets stopped for speeding. LEO finds the MMJ, and very quickly compels Cousin to 'fess up where it came from or risk the wrath of the system. Cousin sings like a bird, and 45 minutes later, LEO has a warrant and is standing on pt/CG's front porch. Leo comes in, dismantles the grow, takes meds, money, guns, and flat screen TVs.

 

The pt/CG doesn't just get charged with the high court misdemeanor of distribution without remuneration, but he also gets charged with "maintaining a drug house" and the generic "delivery" under PCH, where "delivery" covers more than just "delivery" as we understand the common definition (Said another way, you don't get charged with "growing 72 plants" you get charged with "delivery.")

 

The act of distributing MJ to a non-cardholder is enough to drop the entire house of cards.

 

This is why it doesn't matter that the PHC doesn't prohibit "sale." It doesn't have to.

 

If the MMMAct does not provide for "sales" then if you "sell" marijuana, you lose the protection of the act - not just for the "SALE" you just conducted but anything else cannabis-related you're involved in.

 

"Sale" doesn't need to be illegal under some other act for this to happen. Growing marijuana is illegal under other laws.

 

If you sell marijuana, you did something not protected under the MMMA. Then you are no longer protected for growing marijuana. You don't get charged with the sale. You get charged with the growing.

Edited October 11, 2012 by Highlander