Can An Unregistered Patient Have A Caregiver Whom Is Protected By Section 8?

[CaveatLector]

Sheesh.  I spent all this time writing this and then the thread was locked before I got it posted.  So I started a new thread.  I am definitely not trying to  .  I just figured this may help.  A mod can feel free to lock this or merge it with the thread that was just locked or even just delete it altogether.  I'm not trying to cause waves just help out.

 

The trouble in this argument is that everyone is potentially correct.  You may as well be arguing religion here.  I will say upfront that my opinion isn't any better than anyone else's.  However, I will also say that my opinion weaves in the text of the law as well as proper use of rules of statutory construction and interpretation and the law's history in the courts thus far.  The bottom line is that using proper rules of statutory construction and interpretation still leaves us in a "gray" area.  In other words, interpretation of the law could go either way as there is evidence to support both sides of this argument.  Reasonable minds can differ. 

 

With that said, those are the precise reasons I stay out of this debate.  I used to complain that peanut's opinion held some authority on this board if, for no other reason, that he had thousands more posts than anyone else.  That kind of leads some (new people especially) to believe that he knows what he is talking about.  That is why I did not care for peanut's constant posting of insanely dangerous ideas.  Furthermore, because of what I do, I generally urge one to stick to the sure path.  I am okay with discussing theory but I have seen far too many people take others' theoretical arguments as gospel based only on who posted them.  Therefore, in an effort to remain non-hypocritical, I tend to advocate the safe path.

 

With all THAT said, I'll dive in and give this a go.  First, let's set argument parameters.  Whether Greg's ideas (his contracts, etc.) can be proved-up in court is really not relevant to the unregistered cg issue.  So I will ignore that issue for the time being.  The question should be whether an unregistered cg can transfer and be protected by sec. 8.  Whether the elements within sec. 8 can be proven sufficiently is a different issue.

 

Sec. 8 clearly provides at least a modicum of protection for an unregistered cg.  However, the cg must meet all requirements.  These requirements are:

 

(1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;

 

(2) The patient and the patient's primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition; and

 

(3) The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition.

 

Close examination of (3), above, is important as I do believe the courts will closely scrutinize this section.  I think I posted about this a few days ago in a different context.  The question that will be asked is whether the cg was engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition.  Read the pertinent clause below with my added highlight:

 

. . .  engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition . . .

 

So now cut out the fat to make this simpler and read it this way:  The cg must be engaged in the transfer of mj to treat or alleviate the pt's serious condition.  Now ask yourself whether the reason the cg is engaging in the transfer is to treat the patient.  Or, are they doing so to be compensated?  Are they doing so to make profit?  What is their purpose in the transfer?  As I wrote before, Rite-Aid, while it may sell aspirin, is not selling it to you to relieve your headache.  They are doing it to make profit for shareholders.  The relief of your headache is incidental to the transfer for Rite-Aid as they are a business and the primary goal of a business is to make profit.  This is one way to interpret section (3), above.  If you recall the COA touched on the idea that the main purpose of a transaction outside of sec 4 protections must not be a business purpose.  They will revisit that if necessary.  Will the supremes overturn a ruling with that line of reasoning?  No one knows.

 

Next, let's examine supporting evidence that tends to show that the intent of the act was not to allow for money to change hands in a sec. 8 defense.  Sec. 4 contains the clause:

 

(e) A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.

 

That subsection could be interpreted as an exception to the requirement contained within the definition of medical use.  See the definition below:

 

(f) "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.

 

The definition of medical use requires that a transfer be made to treat the pt's condition.  It doesn't allow the transfer to be made for pecuniary benefit on the part of the cg.  However, 4(e) swoops in and makes it okay for the cg to receive pecuniary benefit.  There is no such exception in sec. 8.  So what can this mean?  It could mean that an unregistered cg better be making a transfer free of charge.  Why?  Because 4(e) expressly allows a carded cg to receive compensation and, as proper statutory interpretation tells us, where something is explicitly expressed in one part of a statute but not in another then the drafter will be deemed as deliberately leaving it out of the other.

 

There is a lot more that can be said on this topic but I've spent enough time on a Sunday morning on this so I'll wrap it up for now.  I will point out that while I acknowledged that p2p could reasonably be gleaned from the statute that there were reasonable arguments against it as well.  Those on the pro-dispensary and farm mkt bandwagons told me how ridiculous my arguments were.  I was not arguing for or against p2p, just laying out positions.  We all know what happened in the sup ct with that. Similarly here, I am not arguing for or against sec 8 protections.  I am simply indicating that there are areas of uncertainty in this law.  A court could well find that section 8 protections should be afforded an unreg. cg but not if money changed hands.  It is a possibility that I, personally, would not risk. 

Edited July 28, 2013 by CaveatLector

[Restorium2]

Thanks for taking the time sir.

[GregS]

So there we have it. Thanks for the fun all.

[bobandtorey]

Sheesh.  I spent all this time writing this and then the thread was locked before I got it posted.  So I started a new thread.  I am definitely not trying to  .  I just figured this may help.  A mod can feel free to lock this or merge it with the thread that was just locked or even just delete it altogether.  I'm not trying to cause waves just help out.

 

The trouble in this argument is that everyone is potentially correct.  You may as well be arguing religion here.  I will say upfront that my opinion isn't any better than anyone else's.  However, I will also say that my opinion weaves in the text of the law as well as proper use of rules of statutory construction and interpretation and the law's history in the courts thus far.  The bottom line is that using proper rules of statutory construction and interpretation still leaves us in a "gray" area.  In other words, interpretation of the law could go either way as there is evidence to support both sides of this argument.  Reasonable minds can differ. 

 

With that said, those are the precise reasons I stay out of this debate.  I used to complain that peanut's opinion held some authority on this board if, for no other reason, that he had thousands more posts than anyone else.  That kind of leads some (new people especially) to believe that he knows what he is talking about.  That is why I did not care for peanut's constant posting of insanely dangerous ideas.  Furthermore, because of what I do, I generally urge one to stick to the sure path.  I am okay with discussing theory but I have seen far too many people take others' theoretical arguments as gospel based only on who posted them.  Therefore, in an effort to remain non-hypocritical, I tend to advocate the safe path.

 

With all THAT said, I'll dive in and give this a go.  First, let's set argument parameters.  Whether Greg's ideas (his contracts, etc.) can be proved-up in court is really not relevant to the unregistered cg issue.  So I will ignore that issue for the time being.  The question should be whether an unregistered cg can transfer and be protected by sec. 8.  Whether the elements within sec. 8 can be proven sufficiently is a different issue.

 

Sec. 8 clearly provides at least a modicum of protection for an unregistered cg.  However, the cg must meet all requirements.  These requirements are:

 

(1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;

 

(2) The patient and the patient's primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition; and

 

(3) The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition.

 

Close examination of (3), above, is important as I do believe the courts will closely scrutinize this section.  I think I posted about this a few days ago in a different context.  The question that will be asked is whether the cg was engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition.  Read the pertinent clause below with my added highlight:

 

. . .  engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition . . .

 

So now cut out the fat to make this simpler and read it this way:  The cg must be engaged in the transfer of mj to treat or alleviate the pt's serious condition.  Now ask yourself whether the reason the cg is engaging in the transfer is to treat the patient.  Or, are they doing so to be compensated?  Are they doing so to make profit?  What is their purpose in the transfer?  As I wrote before, Rite-Aid, while it may sell aspirin, is not selling it to you to relieve your headache.  They are doing it to make profit for shareholders.  The relief of your headache is incidental to the transfer for Rite-Aid as they are a business and the primary goal of a business is to make profit.  This is one way to interpret section (3), above.  If you recall the COA touched on the idea that the main purpose of a transaction outside of sec 4 protections must not be a business purpose.  They will revisit that if necessary.  Will the supremes overturn a ruling with that line of reasoning?  No one knows.

 

Next, let's examine supporting evidence that tends to show that the intent of the act was not to allow for money to change hands in a sec. 8 defense.  Sec. 4 contains the clause:

 

(e) A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.

 

That subsection could be interpreted as an exception to the requirement contained within the definition of medical use.  See the definition below:

 

(f) "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.

 

The definition of medical use requires that a transfer be made to treat the pt's condition.  It doesn't allow the transfer to be made for pecuniary benefit on the part of the cg.  However, 4(e) swoops in and makes it okay for the cg to receive pecuniary benefit.  There is no such exception in sec. 8.  So what can this mean?  It could mean that an unregistered cg better be making a transfer free of charge.  Why?  Because 4(e) expressly allows a carded cg to receive compensation and, as proper statutory interpretation tells us, where something is explicitly expressed in one part of a statute but not in another then the drafter will be deemed as deliberately leaving it out of the other.

 

There is a lot more that can be said on this topic but I've spent enough time on a Sunday morning on this so I'll wrap it up for now.  I will point out that while I acknowledged that p2p could reasonably be gleaned from the statute that there were reasonable arguments against it as well.  Those on the pro-dispensary and farm mkt bandwagons told me how ridiculous my arguments were.  I was not arguing for or against p2p, just laying out positions.  We all know what happened in the sup ct with that. Similarly here, I am not arguing for or against sec 8 protections.  I am simply indicating that there are areas of uncertainty in this law.  A court could well find that section 8 protections should be afforded an unreg. cg but not if money changed hands.  It is a possibility that I, personally, would not risk. 

I would also say it may take a so-called perfect Storm to take affect  and we have alway said that our case is just that for a Sec 8 jury trail to take place 

[GregS]

I will say this. But for the Supreme Court decision in McQueen that states that sales are included in "transfer", I might agree that an exchange that involves money is a bad risk. Profit, in business and legal parlance, is the difference between the purchase price and the costs of bringing to market. Covering caregiver cost is not prohibited nor profitable. Labor is an operating expense, as are other direct and indirect costs, to include a grow facility, utilities, nutes and chemicals, &c. Not a lot of us have as much to lose as a high powered attorney or a doctor without a clue (the latter which is neither patient nor caregiver. I am not aware the status of the former). In fact, too damm many of us have too little to lose.

Edited July 28, 2013 by GregS

[Dr. Bob]

Well I guess that settles it.

 

The contract is not worth the paper it is written on.  An 'unregistered caregiver' if such a thing even exists, would require a rather extraordinary story and is not allowed to have compensation.  It is also clear that the patient is key to the defense of the 'unregistered caregiver' and that this is not a practical but rather is the theoretical concern.  I still don't see a success section 8 defense of a caregiver make it through the courts.

 

The latter point brings to mind Green.  In that case a patient acted as an 'unregistered' and apparently unqualified caregiver by providing meds for another patient's medical use.  The SC shot it down after the COA gave it a blessing.

 

CL, do you feel that has any bearing on this situation?

 

Dr. Bob

[CaveatLector]

I will say this, but for the Supreme Court decision in McQueen that states that sales are included in "transfer", I might agree that an exchange that involves money is a bad risk. Profit, in business and legal parlance, is the difference between the purchase price and the costs of bringing to market. Covering caregiver cost is not prohibited nor profitable. Labor is an operating expense. Not a lot of us have as much to lose as a high powered attorney or doctor (the latter which is neither patient nor caregiver). In fact, too damm many of us have too little to lose.

Yes, and I tend to agree.  However, the supremes made note of 4e when wrestling with the notion of whether a transfer, within the definition of medical use, contemplated sales.  Read this excerpt from the opinion:

 

Nor do other provisions of the MMMA limit the definition of “medical use” to

exclude sales. For instance, § 4(e) allows a registered primary caregiver to “receive

compensation for costs associated with assisting a registered qualifying patient in the

medical use of marihuana,” but states that “[a]ny such compensation shall not constitute

the sale of controlled substances.”43 While this section specifically contemplates that a

registered qualifying patient may compensate his caregiver, it does not narrow the word

“transfer” as used in the § 3(e) definition of “medical use.”44 Rather, § 4(e)

independently describes the relationship between a registered caregiver and his registered

qualifying patient and provides an additional protection for the patient-caregiver

relationship by emphasizing that it is not a criminal act for a registered qualifying patient

to compensate a registered primary caregiver for costs associated with providing

marijuana to the patient.45

 

The supremes first told us that transfer include sales.  Therefore, a sale is permitted under the definition of medical use.  Then they went on to say that a transfer under the definition of medical use was not limited (narrowed) by 4e.  In fact, they indicated that 4e provides additional protection by emphasizing that sales are not a criminal act. 

 

I think it is entirely possible that they could use that same reasoning to find that sales are NOT protected under section 8.  First of all sec. 8 does not employ the term "medical use."  Secondly, there is no 4e to "emphasize" that "sales are not a criminal act."  In fact, one could argue that transfers are limited (narrowed) by the language in sec. 8 that states that the transfer must be made by the cg to "treat the patient" and not to make a profit.

 

I will note that sales are not made specifically illegal under the PHC because they didn't need to be, given the fact that mere possession was criminalized.  So some would argue that since sales are not made illegal then a sale shouldn't affect the outcome in the present situation.  However, you have to realize that to get protection under the MMA you must comply with the MMA.  If section 8 were interpreted to mean that a transfer must be made entirely to benefit a pt then arguably a sale with profit to the cg is benefitting the cg and therefore does not qualify the cg for sec. 8 protection.

 

I will further note that, in my opinion, the supremes screwed up in interpreting section 4e.  They literally wrote that 4e provides an, "additional protection" for sales.  If their interpretation is that a transfer includes a sale then how is 4e an additional protection from being prosecuted for a transfer that includes a sale?  If you are protected for a sale via the definition of medical use, and by extension because a transfer includes a sale, then 4e is useless.  The supremes have always followed the proper statutory construction and interpretation rules in this type of instance.  Read the following:

 

But we have consistently held that “[c]ourts must

give effect to every word, phrase, and clause in a statute and avoid an

interpretation that would render any part of the statute surplusage or

nugatory.” State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich

142, 146; 644 NW2d 715 (2002).

 

With that in mind then you need to consider why 4e was necessary if a transfer includes a sale.  The Supremes' interpretation of transfer as including a sale renders 4e as surplusage---useless.  So, there is a chance that a similar case could be brought where this contradiction is fixed.  Essentially their reasoning is the same as if 4e read something like: "And as for transfer including a sale---yes, we really really mean it darn it."  My point is that if you are already protected for a sale under the term "transfer," then why do you need to have an "additional" protection for a sale later in the act.  It just does not make sense.

 

Regardless, I do realize that there is a distinct possibility that the courts would agree that a sale can be protected under sec. 8.  I am not saying it wouldn't.  I just urge caution because so much of the law in this area (both the statutory law and caselaw) is very vague.

 

 

 

[GregS]

Well I guess that settles it.

 

The contract is not worth the paper it is written on.  An 'unregistered caregiver' if such a thing even exists, would require a rather extraordinary story and is not allowed to have compensation.  It is also clear that the patient is key to the defense of the 'unregistered caregiver' and that this is not a practical but rather is the theoretical concern.  I still don't see a success section 8 defense of a caregiver make it through the courts.

 

The latter point brings to mind Green.  In that case a patient acted as an 'unregistered' and apparently unqualified caregiver by providing meds for another patient's medical use.  The SC shot it down after the COA gave it a blessing.

 

CL, do you feel that has any bearing on this situation?

 

Dr. Bob

You missed the part where Cav says, "Whether Greg's ideas (his contracts, etc.) can be proved-up in court is really not relevant to the unregistered cg issue.  So I will ignore that issue for the time being.  The question should be whether an unregistered cg can transfer and be protected by sec. 8.  Whether the elements within sec. 8 can be proven sufficiently is a different issue." Nothing was said regarding the value of the contract. You're making things up again.

 

You will have to explain your take on Green more clearly. What is your point?

[GregS]

I find your reasoning out there in the ether Cav, and incredibly absorbing.

 

I would be comfortable enough taking the risk and, as a practical matter, that standing Supreme Court precedent is enough to stand on. Stare decisis is on our side..

 

PNC in Saginaw Bob. When would be a good time for your patients? You know my terms.

Edited July 30, 2013 by GregS

[CaveatLector]

I find your reasoning out there in the ether Cav, and it is incredibly absorbing.

 

I would be comfortable enough taking the risk that standing Supreme Court precedent is enough to stand on.

Fair enough.  Reasonable minds can differ.  However, keep in mind that this is not my position, per se, it is a possibility.  There is a difference between what I think would happen as a practical matter and what could happen on a theoretical level.

 

Seriously though, since sales of mj have never been criminalized in Michigan, why does 4e exist?  Is it the MMA asserting, "and we really, really mean what we wrote regarding transfer?"  If transfer includes a sale then a sale is automatically protected anytime "medical use" is protected.  So why "emphasize" this in a cryptic manner in 4e?  If the drafter's intent was to emphasize that a sale was protected then an easier route would have been just to list, "sale" under "medical use."

 

So, to me, 4e has a purpose.  Its purpose can be construed as modifying the idea of "medical purpose."  If that is its purpose then it becomes clear that such a modification was not included in the "medical purpose" type of language in sec. 8.  Furthermore, why would the drafters "emphasize" that a sale was okay under section 4 but not emphasize that under section 8?  The Supremes' interpretation, regarding 4e as an emphasis of a concept, is odd.  Really odd.  It flies in the face of proper statutory interpretation and construction in several ways.

[GregS]

Fair enough.  Reasonable minds can differ.  However, keep in mind that this is not my position, per se, it is a possibility.  There is a difference between what I think would happen as a practical matter and what could happen on a theoretical level.

 

Seriously though, since sales of mj have never been criminalized in Michigan, why does 4e exist?  Is it the MMA asserting, "and we really, really mean what we wrote regarding transfer?"  If transfer includes a sale then a sale is automatically protected anytime "medical use" is protected.  So why "emphasize" this in a cryptic manner in 4e?  If the drafter's intent was to emphasize that a sale was protected then an easier route would have been just to list, "sale" under "medical use."

 

So, to me, 4e has a purpose.  Its purpose can be construed as modifying the idea of "medical purpose."  If that is its purpose then it becomes clear that such a modification was not included in the "medical purpose" type of language in sec. 8.  Furthermore, why would the drafters "emphasize" that a sale was okay under section 4 but not emphasize that under section 8?  The Supremes' interpretation, regarding 4e as an emphasis of a concept, is odd.  Really odd.  It flies in the face of proper statutory interpretation and construction in several ways.

Sometimes it is better to be lucky than to be right, or good. What of stare decisis?

 

I can't begin to second guess the drafters. I expect the court intended a clarification. Whether that is what we got is inconsequential until the issue is again breached.

[GregS]

Have we worn this out, and are we ready to address evidence?

Edited July 28, 2013 by GregS

[Hayduke]

only if you volunteer to run as the court jester.

 

Too much my man. In fact way too much.

 

You need to go to 'time out' and chill out.

 

Sorry GregS the demons are getting the better of you.  Please knock it off.  You are not the center stage guy.  Just not...

[+Malamute]

Honestly. I just read all of this and there is nothing in this post that wasn't covered to all ends in the other threads.

 

 What a waste of reading time. ;-)

[GregS]

Honestly. I just read all of this and there is nothing in this post that wasn't covered to all ends in the other threads.

 

 What a waste of reading time. ;-)

Not at all. Today's discussion has been stimulating and for the most part thoughtful, factual, timely, and germane. It has not been without its sideshows. But hey. C'est l' interwebs.

Edited July 28, 2013 by GregS

[GregS]

only if you volunteer to run as the court jester.

 

Too much my man. In fact way too much.

 

You need to go to 'time out' and chill out.

 

Sorry GregS the demons are getting the better of you.  Please knock it off.  You are not the center stage guy.  Just not...

But will you please address the issues?

 

And these are my better angels.

Edited July 28, 2013 by GregS

[GrowGoddess]

Honestly. I just read all of this and there is nothing in this post that wasn't covered to all ends in the other threads.

 

 What a waste of reading time. ;-)

 

For my situation I found the thread kind of helpful.

 

I like how CL pointed out his opinion of Sec. 8 covering transfers in regards to money exchanged and no money having been exchanged.

 

The way I read it a transfer without money can protect a caregiver truly donating (giving meds free) to a legal patient not registered to the CG. Of course, as in many cases, it is a "grey" area.

[GregS]

For my situation I found the thread kind of helpful.

 

I like how CL pointed out his opinion of Sec. 8 covering transfers in regards to money exchanged and no money having been exchanged.

 

The way I read it a transfer without money can protect a caregiver truly donating (giving meds free) to a legal patient not registered to the CG. Of course, as in many cases, it is a "grey" area.

How do you prove, by a preponderance of evidence if the cg were to wind up in court using a sec. 8 defense, that a physician has stated...AND that the purpose of the caregiver's action is to treat or alleviate? Oral testimony alone is not a good bet. Cross examination can be brutal. If you mean to say between registered and connected parties I would agree.

Edited July 31, 2013 by GregS

[CaveatLector]

. What of stare decisis?

Stare decisis is good until it's not.  That's not meant to be glib, just the truth.  It's like a dog.  It has never bitten someone until it has.  High courts reverse themselves plenty.  Usually you won't find the same panel reversing itself but reversals do occur.

 

With that said, stare decisis doesn't apply here.  I was pointing to an error in the court's reasoning in how they arrived at a decision in regard to a sec. 4 issue.  Here we are dealing with sec. 8.  I fully expect that a court could arrive at a decision using a different line of reasoning--distinguishing the sec. 4 reasoning from the sec. 8.  One thing is certain--the Supremes' reasoning regarding 4e being "additional" protection is a really lame-arse piece of nonsense.   

 

Keep in mind that I am not saying this will happen.  Nor am I saying it may.  I am saying it could.  We have seen the courts using legal reasoning that requires the "reasoning" run the gauntlet to arrive out the other side as an accepted argument.  The McQueen decision in the COA comes to mind.  All I am saying is that section 8 is not a sure-fire way of avoiding conviction unless you really grease the skids.  So where does that leave us?  Well, in uncertaintyville for certain.  So how do we address the uncertainty?  Someone goes through the system and appeals it up.  Or someone gets their state rep or state senator to ask the AG to issue an opinion on the issue (probably not the smartest idea).  Or we seek legislative solutions.

[GregS]

I think Chief Justice Francis is a closet smoker, or maybe just another powerful man who has used it in his past.

 

Regarding your last point, that is the direction we should take in a full court press, exercising all reasonable options, and with a healthy bank account.

 

I wouldn't take Schuette to a worm rassle, even if I thought he'd win.

Edited July 29, 2013 by GregS

[GregS]

Stare decisis is good until it's not.  That's not meant to be glib, just the truth.  It's like a dog.  It has never bitten someone until it has.  High courts reverse themselves plenty.  Usually you won't find the same panel reversing itself but reversals do occur.

 

With that said, stare decisis doesn't apply here.  I was pointing to an error in the court's reasoning in how they arrived at a decision in regard to a sec. 4 issue.  Here we are dealing with sec. 8.  I fully expect that a court could arrive at a decision using a different line of reasoning--distinguishing the sec. 4 reasoning from the sec. 8.  One thing is certain--the Supremes' reasoning regarding 4e being "additional" protection is a really lame-arse piece of nonsense.   

 

Keep in mind that I am not saying this will happen.  Nor am I saying it may.  I am saying it could.  We have seen the courts using legal reasoning that requires the "reasoning" run the gauntlet to arrive out the other side as an accepted argument.  The McQueen decision in the COA comes to mind.  All I am saying is that section 8 is not a sure-fire way of avoiding conviction unless you really grease the skids.  So where does that leave us?  Well, in uncertaintyville for certain.  So how do we address the uncertainty?  Someone goes through the system and appeals it up.  Or someone gets their state rep or state senator to ask the AG to issue an opinion on the issue (probably not the smartest idea).  Or we seek legislative solutions.

Does it not matter that transfer has or can be construed to have the same meaning in both sec. 4 and sec. 8, stare decisis aside? Is your point that the term does not mean the same in both sections, or close enough to the same, and are they that substantially different? Is that an accurate reading of your earlier post regarding your take on judicial construction in the matter?

Edited July 30, 2013 by GregS

[phaquetoo]

For my situation I found the thread kind of helpful.

 

I like how CL pointed out his opinion of Sec. 8 covering transfers in regards to money exchanged and no money having been exchanged.

 

The way I read it a transfer without money can protect a caregiver truly donating (giving meds free) to a legal patient not registered to the CG. Of course, as in many cases, it is a "grey" area.

true but you cant transfer medibles, unless they have leaves and budds in them, and they have to be noticable! if a non registered c.g transfers oil, tincture, cannabutter, I read the law to say pt and c.g will be breaking their new law!

 

Peace

Jim

[phaquetoo]

Stare decisis is good until it's not.  That's not meant to be glib, just the truth.  It's like a dog.  It has never bitten someone until it has.  High courts reverse themselves plenty.  Usually you won't find the same panel reversing itself but reversals do occur.

 

With that said, stare decisis doesn't apply here.  I was pointing to an error in the court's reasoning in how they arrived at a decision in regard to a sec. 4 issue.  Here we are dealing with sec. 8.  I fully expect that a court could arrive at a decision using a different line of reasoning--distinguishing the sec. 4 reasoning from the sec. 8.  One thing is certain--the Supremes' reasoning regarding 4e being "additional" protection is a really lame-arse piece of nonsense.   

 

Keep in mind that I am not saying this will happen.  Nor am I saying it may.  I am saying it could.  We have seen the courts using legal reasoning that requires the "reasoning" run the gauntlet to arrive out the other side as an accepted argument.  The McQueen decision in the COA comes to mind.  All I am saying is that section 8 is not a sure-fire way of avoiding conviction unless you really grease the skids.  So where does that leave us?  Well, in uncertaintyville for certain.  So how do we address the uncertainty?  Someone goes through the system and appeals it up.  Or someone gets their state rep or state senator to ask the AG to issue an opinion on the issue (probably not/or is the smartest idea).  Or we/They seek legislative solutions.

 

The 1st thing that comes to my mind is dont register, dont do any pt/cg deals, do what ive done all of my life, and not worrie about this crap any more, at least no more than I used to! The only prob with that, Is im already registered as a pt/c.g, that isnt gonna just go away if I decide to not register!  Oh shucks what to do what to do?  I guess I cant do anything other than what ive been doing, do my best to follow the law, If I hadnt been in the system yet, Im pretty sure I would not register at this time, but for those of us in the system, we are kinda stuck, yea we can save our cash and not let the state make money off of us, to donate to leo to arrest us! ahhhrrrrgggg!  or we can renew and maybe, just maybe it may keep us from arrest!  Who knows?

 

Ok as far as this topic goes,  It seems that a few are happy with the outcome and opinions and or answers that were being suaght in this thread and another or 8 lol!  so we are going to agree to disagree and put this behind us, and now maybe work together to get this coa ruling fixed/changed/disapear,  Untill than people need to use common sense, people need to NOT give leo a chance to arrest you!

 

We need to medicate in the way leo says, so lets get some of these people who cant smoke some vapes and teach em how to use them, it only takes a few puffs to work for me, save the vaped mm and back cookies, bake brownies with leaves and buds in it, and never make more than you have to, so the brownie or cake mix dont weigh over your legal amount, (you can make a few cookies at a time, and a few cupcakes at a time) and lets get thru this!

 

I have copd and when I vape my dr. loves how my lungs sound, You just have to get used to it, (I dont recomend people on oxygen to smoke it in any form) The medibles that are legal have to have budds and leaves in them and noticable, I wouldnt even use bubble hash, give what they want, and maybe, just maybe one day we will get what we want!

 

Peace

Jim

[GregS]

You are a good boy Jim. Your sincerity and absence of any malice is refreshing.

[CaveatLector]

Does it not matter that transfer is or can be construed to have the same meaning in both sec. 4 and sec. 8?

Well, that is part of my point.  You are protected for medical use in accordance with the act.  Transfer, according to the supremes, includes a sale.  That's all good but you have to look to where in the act the sale is permitted.  4e permits a sale by the cg.  Therefore they are protected. 

 

Similarly, use is protected but you have to look to see who is protected for use.  Only the pt is protected for use according to sec 4a.  It is a "right" given in the act that is exclusive and personal to the patient and reserved for the patient in 4a.  So you cannot just point to an element of medical use and argue that a person should be able to engage in whatever behavior that element entails UNLESS that behavior is allowed by the act.

 

The fact that the act explicitly permits a sale in sec. 4e is what gives me pause.  The supremes basically called it an "extra" protection.  So, according to them, you are protected for a sale by virtue of its relationship to a transfer under the definition of medical use.  Then you have "extra" protection for the sale in 4e.  That whole line of reasoning makes no sense legally speaking.  That is the point I am trying to convey.  If they were using proper rules of statutory interpretation then they were misconstruing 4e because rules of statutory interpretation don't allow for extra fluff to be read into a statute.  The rules tell us that everything is in the statute for a reason.  So what is the reason for 4e if not to tell us that a cg is protected for a sale?  Saying that 4e was inserted to "emphasize" protections for a sale is an elementary interpretation.  In fact, if the drafters wanted to clearly indicate that a sale was protected then why not just add "sale" to the definition of medical use to "emphasize" this notion and then leave 4e out altogether? 

 

So, to answer your question, a transfer could be construed to include a sale in sec. 8.  What I am saying is that the supremes made a mistake in their reasoning when they interpreted the statute.  If they choose to go back and fix it should a section 8 case be brought to them then someone could be left holding the bag. If they choose to leave it be then you may be in the clear to sell under section 8.  So no one knows how this will end.

 

I sure would love to know what was going through their minds when they reasoned that 4e is there to "emphasize" that a sale is okay.