Michigan Supreme Court Selects [Another] Medical Marijuana Case

The criminal defense bar saw all this litigation coming from a distance.  At this blog, we knew that the Michigan Medical Marijuana Act would be challenged, diced, and spliced for years after its passage in 2008. 

Well, no disappointment on that front, as the Michigan Supreme Court has selected yet another medical marijuana case for briefing and argument during their term which will commence next week.  This case will follow the Supreme Court's seminal Kolanek decision and nearly a dozen opinions from the intermediate appellate court issued over the past four years.

This time, the action arises from Kent County and the issue involves the collective farming and distribution scheme of a certified "care provider".  The case, People v Bylsma, was decided by the Michigan Court of Appeals in a published decision one year ago.

The care provider was the subject of a raid conducted by the Grand Rapids PD which yeilded more than 88 plants from a grow operation housed in a commercial rental facility.  Problem: this care provider only had two certified "patients"; a person is allowed up to five under the Act.  You may possess up to 12 plants for each patient.

In the trial court, Mr. Bylsma asserted the immunity afforded by the medical marijuana act, and moved to dismiss the case.  He also argued that the Act does not prevent multiple care providers from collaborating their grow operations.  The lower court denied the motion to dismiss, and Bylsma's appeal to the Michigan Court of Appeals resulted in that decision being affirmed.

Now, the Michigan Supreme Court will take a look.  Its decision will further develop our growing medical marijuana jurisprudence.

This case presents an opportunity to further address one of the primary tensions that have developed between care providers attempting to distribute medical marijuana, and perhaps turn a profit in doing so, and the law enforcement agencies that have been uncertain about what is legal and what remains illegal.

The Kolanek decision smoothed out the mechanics of the immunity and affirmative defense provisions of the Act.  Prosecutors took a very restrictive view of the latter, while the criminal defense bar argued for a broader application of the defense.

We here at the Law Blogger recently had the opportunity to brief this issue in a case pending before the Court of Appeals.  Both Kolanek and now Bylsma will affect the outcome in our case.

As for Bylsma, let's just sit back and see whether the Supreme Court will interpret the Act in a manner which will allow these pot farmers to make some money.

www.clarkstonlegal.com
info@clarkstonlegal.com



Read more »

Posted in: criminal defense lawyer,Kolanek,lawyer,medical marijuana,Medical Marijuana Act,Michigan Court of Appeals,Michigan Supreme Court,Ryan Bylsma

Oakland County Re-Visits Medical Marijuana Drama

The Oakland County Sheriff's interpretation of the Michigan Medical Marijuana Act (MMA) and the Controlled Substances Act has forced two local marijuana facilities to lock their doors.  One of the pot-growing operations, Big Daddy's Hydro, in Oak Park, closed voluntarily; the other facility, right here in Commerce Township where this blog post is being composed, was the subject of a task-force raid.

The Oakland Press ran a front-page story on Saturday about Big Daddy's Hydro.  The facility was on the receiving end of an Oakland County Sheriff's raid back in January.  Since then, the owners were resolved to carry on their operation; an operation they insisted was legal under the MMA.  Sounds like a movie might be in there somewhere.

Before Hollywood came knocking to negotiate the movie rights to this true crime drama, however, Big Daddy's in Oak Park locked its doors.  The decision was based on the observations of its management group that "patients" were being shook down on the street after leaving the facility.  Also, it did not help that four members of the management group were charged with distribution felonies by the Oakland County Prosecutor.

Big Daddy's is consolidating pot growing and distribution operations into their Chesterfield Township facility in Macomb County, and in Detroit.  Therefore, Big Daddy's alleged violations of the MMA or the Controlled Substances Act are now in the hands of Prosecutors Eric Smith and Kym Worthy.

The more recent raid on the Commerce Township facility presents an example of an increasingly sophisticated approach to medical marijuana enforcement by the Oakland County Prosecutor.  This bust was executed by a joint task force with a federal component; the DEA.  [Remember, marijuana remains illegal in any form under federal law.]  Also, the Sheriff has commented publicly that the facility violated the Controlled Substances Act, not the MMA.

Criminal defense attorney Neil Rockind was quoted in the Oakland Press yesterday as saying, "They can try to describe it any way they want.  I know what happened...and if they want to pursue a case then I'll be there."  Yeah, sounds like Neil; never one to shy away from high-stakes criminal defense litigation.

The Michigan Court of Appeals handed prosecutors a serious weapon when it issued its People v McQueen decision last month.  The published, thus binding, decision of the Court of Appeals runs a lance through most MMA distribution schemes; at least if those involved want to make any money from their elaborate growth and distribution operations.

This brings us back to the intent of the medical marijuana referendum that passed overwhelmingly by Michigan voters in the 2008 election.  The MMA is designed to encourage a "grow-your-own" and "trade-among-friends" approach to distribution.

From the outset, those involved in growing pot have been looking to make money from the provisions of the MMA.  Because the Act is silent on pot sales, a legal debate has, er, cropped-up about whether distribution via sale is permitted or proscribed by the Act.

Also, as the Law Blogger has pointed out time and again; the premise of patients getting medical attention from marijuana, although legitimate in a number of cases, is a complete sham in the overwhelming number of patient-care provider relationships.  This scam will likely bring down the MMA in the end.

www.waterfordlegal.com

info@waterfordlegal.com

Read more »

Posted in: Big Daddys Hydro,Brandon McQueen,criminal defense lawyer,medical marijuana,Medical Marijuana Act,Michigan Court of Appeals,Neil Rockind,Oakland County Prosecutor,Oakland County Sheriff

Medical Marijuana Lawyer Seeks Further Appeal on Dispensary Case

This blog has covered the recent Michigan Court of Appeals decision in Michigan v McQueen which outlawed medical marijuana dispensaries as well as patient-to-patient pot sales.  This appeal is the latest chapter in the pot drama that has gripped our state since the passage of the referendum that legalized medicinal marijuana by a convincing 3/4 popular vote in the 2008 election.

Our readers may recall that the oral arguments in this appeal were the subject of some fanfare when journalist Eric Van Dussen sought to record the arguments, as he did in the People v Anderson medical marijuana case.  Jurisprudence in the making is certainly newsworthy; particularly when it concerns our fledgling yet tortured medical marijuana law.

Now this appeal grinds onward to the Michigan Supreme Court.  So promises Matthew R. Newburg, legal counsel to the Michigan Association of Compassion Centers, appearing as an amicus in the case.

The Court of Appeals granted Van Dussen's request to record the argument on behalf of the media; granted the Attorney General, also an amicus, 10-minutes of appellant's oral argument time; but denied Mr. Newburg's request to get in on the action at oral argument; his 10-minutes [of fame] will have to wait for another case, unless the Supreme Court grants his application for leave to appeal.

The Compassionate Apothecary claims it was simply operating a "club" of about 345 legal pot growers who "traded" various strains of medical marijuana.  In exchange for making a clubhouse available for its pot aficionado membership, Compassionate Apothecary took commissions off the top of all intramural marijuana transactions.

The intermediate appellate court ruled that the act does not authorize such commissions or transactions.  The Isabella County Prosecutor has mailed the appellate opinion to all marijuana dispensaries in the county;  advising them to cease any operations that contravene the appellate court's decision.

Going beyond the bald mechanics of his client's business model, however, Attorney Newburg told Michigan Lawyers Weekly that the MMA expressly provides for transfers from caregivers to patients and also allows patients who "grow-their-own".   The Apothecary's legal counsel also noted that the MMA is silent regarding so-called "patient-to-patient" transfers of the type that apparently went down at the club.

With those arguments in hand, the Compassionate Apothecary now proceeds to the Michigan Supreme Court.  Given the mess that this law has become, the High Court may actually take the bait and grant the Apothecary's application for leave to further appeal so they can sort it all out.

We will follow this one as it develops.  Even if the High Court declines this case, there are others building up behind it that are equally, er, "newsworthy".

www.clarkstonlegal.com

info@clarkstonlegal.com

Read more »

Posted in: Brandon McQueen,criminal defense lawyer,Matthew R. Newburg,medical marijuana,Medical Marijuana Act,Michigan Court of Appeals

Senate Proposes Statewide Registry for Medical Marijuana Patients & Caregivers

Earlier this week, a bill was submitted to the plenary Michigan Senate by the Judiciary Committee that would require a state-wide registry for medical marijuana patients and care providers.  Senator Rick Jones, a sponsor of the proposed legislation and chairman of the judiciary committee said the registry would be a "critical tool" for law enforcement.

 The mechanics of the proposed law would require the DCH to submit a registrant's name and address to the state police within 48-hours of issuing the marijuana registration card.  The police would then be able to call-up the data, for example, during routine traffic stops.

Of course, the compassion care industry is up in arms, viewing the bill as a significant affront to a registrant's privacy.  An earlier version of the bill called for the submission of a wider scope of personal information about a registrant.

Oddly, the ACLU has come around on this bill, opposing the earlier version as overly intrusive, but conceding that a state-wide registry could prevent potentially dangerous raids where lots of feathers get ruffled.  Still, the ACLU's official position is that the bill, even as amended, needs a separate "probable cause" requirement prior accessing the database.  Unworkable, in our humble opinion.

Senator Jones' committee was busy this week, also introducing another medical marijuana related bill; this one to stop those pesky lawsuits filed by high profile lawyers against municipalities over their pot ordinances.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Read more »

Posted in: medical marijuana,Medical Marijuana Act,Michigan Senate,Michigan State Police,Senator Rick Jones