Big decisions 

Court rulings encourage medical marijuana users, balk prosecutors

Nobody's dancing around throwing buds of their favorite cannabis strains into the air, but marijuana activists across Michigan are feeling a little less discriminated against after a couple of state Supreme Court decisions favorable to their cause. 

Most folks who pay attention to the legal wrangling over the Michigan Medical Marihuana Act (MMMA) expected the high court to settle contentions about the details of the law. But few expected the conservative court would rule so definitively on its first MMMA cases. On May 31, in a 7-0 decision, the high court came down on the side of registered medical marijuana patients and caregivers in the case of People vs. King. 

Citing the "plain language" of the law, Justice Mary Beth Kelly wrote an unambiguous opinion supporting the right of registered patients and caregivers to defend themselves in court using the MMMA. In a number of cases prosecutors have used a legal technicality to convince judges to disallow the so-called affirmative defense. For instance, one provision of the MMMA is that anyone growing medical marijuana must keep it in "enclosed, locked facilities." In the King case out of Owosso, the defendant was growing marijuana outdoors in a padlocked dog kennel with a six-foot-high, chain-link fence. Prosecutors argued that this wasn't secure because there was no roof; therefore King could not use the MMMA to defend himself. "They reversed a whole bunch of Court of Appeals precedent that has prevented patients from raising the affirmative defense," said attorney Matt Abel of the Cannabis Counsel law office. "I'm pleased with the decision; it's a correct interpretation of the law. It's a telling rebuke, perhaps, to the Court of Appeals. It would be hard not to notice."

That rebuke came in the form of an unusual 10-point appendix at the end of the opinion in the King case that plainly states the intent of the people in voting for the MMMA and refutes the arguments prosecutors have made against medical marijuana patients and caregivers. "In light of the need for guidance regarding the medical use of marijuana in Michigan, the following is designed to summarize our numerous holdings in these cases," Kelly wrote. The opinion can be found at tinyurl.com/7utor4l. The gist of the opinion is that the protections of the MMMA should be defined broadly rather than in the narrow manner espoused by state Attorney General Bill Schuette.

"The court voted unanimously on King," says attorney Stewart Friedman. "This is from a court which rarely speaks unanimously. I thought that was an interesting note. The 10-point summary, which I've never seen before, spoke in a number of ways that was really cutting to the chase, as though they were expecting the ruling to be read by a hostile audience. The overarching read that I took on the King case, is they were saying, 'Knock it off, the voters have spoken. You might not like what the people have to say but you've got to honor it.'"

Friedman represents several individuals in the case of Ferndale's Clinical Relief, which was part of the first wave of dispensary busts in 2010. Oakland County is appealing the dismissal of charges against the Clinical Relief workers. However, the Supreme Court ruling echoes some of the sentiments of the Circuit Court that dismissed those charges, ruling that the Clinical Relief workers acted with the sincere intent to follow the law. 

The court also ruled on People vs. Kolanek in the same opinion as the King case. This case involved Alexander Kolanek, whose doctor told him, before the MMMA was passed, that marijuana might be a useful treatment for his condition. After the law passed, Kolanek, who did not have a state registry card, was arrested for possession of marijuana. After the arrest he then applied for a registry card. The court ruled against Kolanek, saying that medical recommendations to use marijuana are only relevant if they are made after the law went into effect, and patients must get a doctor's recommendation before they begin to use marijuana. Again, the court presented a straightforward interpretation of the law. 

Regardless of the Kolanek case, the medical marijuana community is breathing a sigh of relief that a definitive ruling has gone their way. The King decision will affect numerous cases being heard or under appeal right now. Even some folks who have previously been found guilty have an option to apply for a retrial.

Another pending case, People vs. McQueen, involving a Mount Pleasant medical marijuana dispensary, has been accepted for a hearing by the Supreme Court. Last year's appeals court ruling against McQueen effectively shut down dispensaries across much of the state. The court's acceptance of the case has fueled speculation that the justices disagree with the appeals court. "I think the Supreme Court is not happy with the Court of Appeals," Friedman says, in reference to the McQueen case. Generally, if the high court agrees with an appeals court decision, it declines to hear the case.

That's what happened in the Coalition for a Safer Detroit case. The Supreme Court declined the city's appeal of an appellate court decision in favor of putting the group's referendum question on the ballot. As a result, the question of legalizing the possession of small amounts of marijuana for personal use on private property will be before Detroit voters in November. 

There is no active campaign for this initiative and not much money, but activists expect this will win at the polls. But there are a couple of points they might consider. One is that the African-American community can be more conservative on social issues than the community at large. A recent Rasmussen poll found that 56 percent of Americans support legalizing marijuana and regulating it in a manner similar to alcohol. However, that same poll found that African-Americans favored the idea by a slimmer 53 percent. Detroit's population is 90 percent black, so these numbers are pertinent. The margin of error is small and Detroit Police Chief Ralph Godbee has already come out against legalization, saying that even if the city code change passes, his department may continue to enforce state and federal laws prohibiting marijuana.

The other caution here is the current hysteria about K2, also known as spice. The controversial but legal (for the moment) substance has been implicated in a couple of recent teen deaths. As the alarm over K2 grows, I wonder if there will be spillover regarding marijuana itself.

K2 is being described as synthetic marijuana, although it has nothing to do with marijuana. It is a chemical formulation that is sprayed on herbs. And marijuana activists should be clear, as they have been, that marijuana and K2 have nothing in common. There has never been a death attributed to a marijuana overdose. The warning we should get from K2 is that chemicals aimed to mimic certain effects of marijuana fall far short of what the whole and natural plant does. You can't fool Mother Nature.

It's always a shot in the arm when prominent politicians jump on the legalize-it bandwagon. The latest to do so publicly is New York Governor Andrew Cuomo. Cuomo recently called on the New York Legislature to decriminalize possession of small amounts of marijuana that are in public view in order to avoid unnecessary charges against "disproportionately black and Hispanic youth," according to a statement from his office. The stop-and-frisk policy of New York police is famous across the nation for driving hundreds of thousands of arrests for small amounts of marijuana. A commentary from NORML executive director Allen St. Pierre attributes the policy change to a planned Cuomo run for the White House in 2016 and the prospective candidate's maneuvering to get out front on the issue.

More by Larry Gabriel

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