MICHIGAN ASSOCIATION OF MUNICIPAL ATTORNEYS

MEDICAL MARIHUANA WEBINAR, JANUARY 16, 2013

Gerald A. Fisher, Professor

Thomas M. Cooley Law School fisherg@cooley.edu

Michael E. Fisher, Asst. City Attorney

City of Livnia mfisher@ci.livonia,mi.us

mailto:fisherg@cooley.edumailto:mfisher@ci.livonia,mi.us

1. THE ACT

The Michigan Medical Marihuana Act, enacted by the process of initiative in 2008, MCL 333.26421 (“MMMA”), as recently amended by the Michigan Legislature.

THE ACT

Critical points to recognize in construing the Act, as pointed out in People v Kolanek, 491 Mich. 382 (2012):

THE ACT

FIRST, the Act must be construed in two parts: Section 4: Detailed provisions for registration and regulation of qualifying patients and primary caregivers.

Section 8: Governance for affirmative defenses from prosecution available to patients and primary caregivers

THE ACT

SECOND, the MMMA and the Public Health Code* must be read together, with the Public Health Code providing a broad and generally applicable rule regarding the manufacture, use, and delivery of marihuana, and the MMMA carving out a narrow exception to that rule.

THE ACT

Kolanek on the Public Health Code: MCL 333.7403(2)(d) (making possession of marijuana a misdemeanor); MCL 333.7401(2)(d) (making the manufacture or delivery of marijuana or the possession of marijuana with intent to deliver it a felony). Marijuana remains a schedule 1 substance in Michigan's Public Health Code, MCL 333.7212(1)(c), and medical use of marijuana is not recognized as a legal activity at the federal level.

THE ACT

Well known today: Two Major Actors Qualifying patient certification and

registration* Qualifying Patient may designate a primary

caregiver as part of the registration process

THE ACT

Asterisk: The registration process culminates with the issuance of “Registry identification card” under MCL 333.26426 which, as amended by HB 4834, effective April 1, 2013, will contain a photograph if this is administratively required by rule. By HB 4851, to avoid arrest under Section 4, must have photo ID.

THE ACT - SECTION 4

To become a qualifying patient, must be certified by a physician, who has a bona fide physician-patient relationship with the qualifying patient. Effective April 1, 2013, “bona fide phys-patient relationship” must abide the new definition provided by statute: HB 4851

2. WHAT MAY A QUALIFYING PATIENT DO – SECTION 4

The qualifying patient, registered under Section 4, is allowed the medical use* of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and,

WHAT MAY A QUALIFYING PATIENT DO – SECTION 4

Second, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility.*

WHAT MAY A QUALIFYING PATIENT DO – SECTION 4

Asterisks “Medical Use” is a pivotal definition in the

Act

“Enclosed, locked facility” also newly defined in HB 4851, effective April 1, 2013, requiring fully enclosed facility, and providing details on outdoor facility.

WHAT MAY A QUALIFYING PATIENT DO – SECTION 4

Question: Is it permissible for a qualifying patient to sell marijuana to another qualifying patient or to a primary caregiver? State v McQueen 293 Mich.App. 644 said ‘NO’ Michigan Supeme Court granted leave,

conducted oral argument, and is still thinking about this question.

WHAT MAY A QUALIFYING PATIENT DO – SECTION 4

The ultimate decision of the Michigan Supreme Court in State v McQueen will have significant impact on whether viable DISPENSARIES may be operated in Michigan unless and until there is new legislation.

3. ELECTIONS OF NOVEMBER 2012

In Michigan, the proponents of lawful recreational use of marihuana drafted, and started the process of circulating a petition for amendment of the Michigan Constitution. However, the effort appeared to go up in smoke – petitions were never turned-in.

ELECTIONS OF NOVEMBER 2012

In several Michigan cities, local electors have made marijuana more readily available for use: Detroit Kalamazoo Grand Rapids Flint Ypsilanti

ELECTIONS OF NOVEMBER 2012

The subject of marihuana (or marijuana) was addressed in other states: State of Colorado State of Washington

4. WHAT MAY A PATIENT DO – SECTION 8

Section 8 governs the rights of patients and primary caregivers asserting an affirmative defense to any prosecution involving marihuana.

WHAT MAY A PATIENT DO – SECTION 8

People v Kolanek, 491 Mich. 382 (2012) focused on the issue of a patient’s affirmative defense under Section 8, and sided with the proponents of the Act.

WHAT MAY A PATIENT DO – SECTION 8

People v Kolanek resolved issues that could have gone either way: The Court in Kolanek concluded that the §8 “patient” was not identical to the §4 “qualifying patient,” thus allowing the §8 “patient” to be free of significant §4 regulations, and,

WHAT MAY A PATIENT DO – SECTION 8 The patent may establish a presumption to entitlement to the

affirmative defense by showing the three elements of Section 8(a):

(1) A physician has stated . . . that 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.

5. WHAT MAY A PRIMARY CAREGIVER DO – SECTION 4

A primary caregiver with a registry

identification card may assist up to 5 qualifying patients to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act.

However, (continued)

5. WHAT MAY A PRIMARY CAREGIVER DO – SECTION 4

However, the primary caregiver cannot possesses an amount of marihuana that exceeds 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and

For each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility, with any incidental amount of seeds, stalks, and unusable roots.

5. WHAT MAY A PRIMARY CAREGIVER DO – SECTION 4

In People v Bylsma, ___ Mich ___, No. 144120 (December 19, 2012), a caregiver had a rented space with 88 marihuana plants, and claimed immunity under Sections 4 (and reserved a claim under Section 8. Constuing Section 4, the Court held:

WHAT MAY A PRIMARY CAREGIVER DO – SECTION 4

People v Bylsma, continued Under Sections 4(a) and 4(b), only a

qualifying patient OR that patient’s primary caregiver may “possess” the plants, but not both; and

MMMA is only a “limited exception” to the Public Health Code, and thus, “possession” for MMMA purposes is the same as that under the Public Health Code; and

WHAT MAY A PRIMARY CAREGIVER DO – SECTION 4

People v Bylsma, continued Multiple patients and caregivers may not

combine their marihuana into a single “enclosed, locked facility,” and only ONE PERSON may possess the marihuana plants located in such facility

Accordingly, the Court held that the defendant, in possession of 88 plants, was not entitled to immunity under Section 4.

6. WHAT MAY A PRIMARY CAREGIVER DO – SECTION 8

People v Bylsma, ___ Mich ___, No. 144120 (December 19, 2012): The Supreme Court remanded the case back to the trial court to allow the defendant to assert a Section 8 affirmative defense. The court provided very little in the way of guidance on the nature of this defense for the primary caregiver. The question will be whether the statute will be interpreted to mean that the Sections 4 and 8 primary caregivers are distinct, as in the case of the qualifying patient (Sec 4) and patient (Sec 8).

WHAT MAY A PRIMARY CAREGIVER DO – SECTION 8

One thought while People v Bylsma winds its way through the judicial loop during the next months (or years) is to consider pursuing caregiver activity in violation of Section 4 based on equitable jurisdiction of the courts, rather than by criminal prosecution.

7. IS A COMMUNITY PERMITTED TO REGULATE BY PROHIBITING ALL ACTS NOT

PERMITTED BY FEDERAL LAW

Addressed in Ter Beek v City of Wyoming, 297 Mich App 446 (July 31, 2012), application for leave to appeal pending. The Court concluded that: The ordinance has the effect of causing any

medical use of marijuana pursuant to the MMMA on any property within the city of Wyoming to be a violation of defendant’s zoning ordinance, and

IS A COMMUNITY PERMITTED TO REGULATE BY PROHIBITING ALL ACTS NOT PERMITTED

BY FEDERAL LAW

Ter Beek (continued) Therefore, the ordinance is preempted by

State Law, i.e., by the MMMA. Was there a ripeness question inTer Beek?

8. FEDERAL PREEMPTION ISSUE

Also addressed in Ter Beek v City of Wyoming, 297 Mich App 446 (July 31, 2012), application for leave to appeal pending. HOLDING: MMMA not preemted under the

Supremacy Clause of the Unitied States Constitution.

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