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Appeals court upholds removal of judge opposed to MI Medical Marijuana Act

November 15, 2013



Michigan’s Court of Appeals has upheld the disqualification of Dearborn District Judge Mark Somers that was sought by attorneys representing Glen Novoy in a 2011 medical marijuana case. 19th District Court Chief Judge Richard Wygonik entered his order removing Judge Somers from Novoy's case in February of 2012. Judge Wygniwhich was appealed to the Wayne County Circuit Court. The City of Dearborn’s initial appeal was denied by the circuit court.

The Court of Appeals’ November 14, 2013 opinionprovided the following rationale for approving the disqualification procedures followed by the lower courts: “It seems apparent to this Court that Judge Somers’ previous decision to declare the MMMA unconstitutional in its entirety, without any appellate courts agreeing or so holding, creates a serious risk of actual bias impacting defendant’s due process right to present a complete defense under a valid state law… Furthermore, Judge Somers stated on the record at the original hearing on this motion that he believes federal preemption still applies to the MMMA. Although Judge Somers may still allow defendant to present evidence in support of his defense under the MMMA, this predisposed belief regarding the unconstitutionality of this law creates a serious risk that actual bias exists, and will, in effect, hamper defendant’s due process rights. Thus, it appears that Judge Somers prejudged defendant’s intended defense under the MMMA, and the probability of actual bias on the part of Judge Somers is too high to be constitutionally tolerable.”

During a December 21, 2011, hearing conducted by Judge Somers on a motion for his disqualification, Mr. Novoy's defense attorney, Neil Rockind, argued that: “I have seen very few sitting judges who have chosen to sit down for interviews to talk about a particular act. To me it is almost unconscionable. I can't, for the life of me, understand how a judge, who is likely to have cases who will come before him or her of the variety of the sort and maybe even that will touch upon the subject, that is going to be the subject of the interviewer, that a judge would actually sit down and have a discussion. It is revealing. The decision to actually sit down, the choice to grant the interview, the choice to take part in the conversation, the choice to publicly talk about your feelings about the Medical Marijuana Act, its implications, its consequences, whether you talk about it in the form of a case, opinions that you've reached or just personally feelings that you have or even observations of the impact of the Medical Marijuana Act in your opinion and how it has impacted the communities and others. The choice, I think, was a very bad one. What I think that choice did, Judge Somers, was it communicated to members of the public, it certainly resonated with me, that you have personal feelings about, either marijuana, or more importantly the Medical Marijuana Act, that … actually interfere with, your ability to decide these cases fairly… I would fear that there was a great risk of your impartiality being compromised.”

Judge Somers responded to Mr. Rockind’s arguments at the December 21, 2011, hearing, stating: “This Court has no personal prejudice or bias against anyone who seeks palliative measures. This Court has no personal opinion that would cause it to disregard any lawfully enacted law of the state, whether it's by public initiative or through the legislature. With regard to controlled substances, specifically, and to marijuana, specifically, it's not a matter of this Court's personal opinion. But for, but for, this Court belief that federal preempts the area, this Court would have no problem, whatsoever, whatsoever, with the initiative that was passed by the majority of voters in this state… [T]his Court has no bias or prejudice against any defendant who comes into this court charged with a controlled substance offense, regardless of what that substance might be. The Court is prepared to deal with each and every case based on the facts and the law that are presented and to the best of its ability to apply that law, whether it agrees with it or not… The Court is denying the motion, as there is no actual bias or prejudice and it is the Court's opinion, based on a reasonable, objective standard, no appearance of prejudice or bias either.”

The Court of Appeals additionally found in their November 14 opinion that “Judge Somers allegedly referred to marijuana as, “devil’s weed” and “satan’s surge,” … Judge Somers also allegedly lectured the defendants who appeared before him in marijuana cases, stating that they have contributed to drug cartels and homicides in Mexico and other related areas. Lastly, Judge Somers took part in an interview and publicly expressed his personal feelings on the MMMA after ruling that this law was unconstitutional in its entirety. When viewing all of this conduct collectively, Judge Somers did not avoid the “appearance of impropriety” in regard to cases involving marijuana and the MMMA. Reasonable minds could perceive that Judge Somers’ ability to carry out judicial responsibilities with impartiality in this area is impaired. Therefore, Judge Wygonik did not err in granting defendant’s motion to disqualify Judge Somers from presiding over defendant’s possession of marijuana case involving the MMMA.”

When reached for comment on the court's opinion, Novoy's appellate attorney, Stuart Friedman, said he “was very satisfied with the Court of Appeals analysis of the facts and their thoughtful and well-reasoned decision.”

The attorney for the City of Dearborn, William Debiasi, disputed Judge Somer’s disqualification throughout the proceedings in the Novoy case. He did not respond to a message seeking a comment for this story.

Novoy’s case will now be assigned to another district judge in Dearborn

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