Wal-Mart wins a round

Judge rules private employers can fire medical marijuana patients

Well the first shoe has dropped on a high-profile medical marijuana case and it made a big, ugly clunk to the ears of activists. U.S. District Judge Robert Jonker ruled in favor of Wal-Mart and threw out the reinstatement suit brought by Joseph Casias.

Casias, a brain cancer patient who lives in Battle Creek, was fired by Wal-Mart after he tested positive for marijuana use. Casias is a registered medical marijuana patient who contends that he never went to work high. Wal-Mart's policy does not condone the use of marijuana for any reason. The judge concurred.

"The fundamental problem with [Casias'] case is that the [medical marijuana law] does not regulate private employment," Jonker wrote in a 20-page opinion issued Feb. 11 "Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state. ... All the [law] does is give some people limited protection from prosecution by the state, or from other adverse state action in carefully limited medical marijuana situations."

He ruled that the law "says nothing about private employment rights. Nowhere does the [law] state that the statute regulates private employment, that private employees are protected from disciplinary action should they use medical marijuana, or that private employers must accommodate the use of medical marijuana outside of the workplace."

Casias is appealing the decision in the U.S. Court of Appeals for the Sixth Circuit. He's asking for reinstatement to his position, compensation for loss of wages and something known as "exemplary damages," which is similar to but not the same as punitive damages. Suffice to say that the wheels of justice will move excruciatingly slow as they do in the appeals stage of cases.

"This is very tough for Joseph and his family because he hasn't been able to find work since he was terminated by Wal-Mart; this hasn't been easy on him," says Dan Korobkin, a staff attorney for the ACLU of Michigan, part of Casias' legal team. "He's been in it for the long haul ever since we started this case. He understands that this is not just about him but about thousands of medical marijuana patients around the state. ...

"This is a case about whether a medical marijuana patient has to choose between making a living and supporting a family, while treating a medical condition and pain based on the advice of a doctor. When the law was enacted, citizens said you shouldn't have to make that choice."

This is an important case that could set a precedent that reverberates across the state, and possibly the nation.

Anecdotal comments have been appearing in news stories from people saying things like, "When I voted for the Michigan Medical Marihuana Act I thought it was going to be for people really sick with cancer and multiple sclerosis, but I'm having second thoughts now that I'm seeing everybody with a headache or a hangnail getting medical marijuana cards." There are some people thinking that out there, but the vast majority of Michigan voters still support the MMMA, according to a recent poll done by the Marketing Resource Group of Lansing and funded by Gersh Avery and the Michigan Association of Compassion Centers.*

The late January poll of 600 likely voters found 61 percent said they would vote in favor of medical marijuana again. The MMMA passed in 2008 with 62.6 percent of the vote. The poll, with a four percent margin of error, shows no real change. So whoever those folks who seem to have changed their minds are, they are a definite minority.

A few columns back, I wrote that medical marijuana does not seem to be a partisan political issue in Michigan. And indeed, some regulate-and-tax Republicans would take marijuana even further toward legalization. But the Michigan Democratic Party may yet find the partisan divide on the issue. At their state convention a couple of weeks ago, Democrats passed the Beatrice Solomon Patient and Caregiver Protection Resolution in support of the MMMA. The resolution does nothing other than affirm the party's support for the law, but it adds to the palette of issues for candidates to run on in future elections. However there were some interesting whereas statements in the text of the resolution. For instance, it reads: "Whereas, 418,208 people of Oakland County voted to allow seriously ill people to use Marijuana in 2008 or 66 percent of the voters."

Could they be sending a message to Oakland County Prosecutor Jessica Cooper that voters in her county supported the MMMA by an even higher margin than statewide. Oakland County has aggressively gone after medical marijuana facilities that it claims were operating as dispensaries. The issue of dispensaries, facilities that sell medical marijuana to card-carrying patients outside of the patient-caregiver relationship, was not addressed in the MMMA and therefore, some contend, dispensaries are illegal.

Another curious statement in the resolution says: "Whereas the Michigan Medical Marijuana Amendment got 1,113,986 more votes than Governor Rick Snyder and 1,357,597 more votes than Attorney General Bill Schuette in the 2010 election. Whereas the turnout of the 2010 election was 2,763,309 voters lower than the 2008 election."

Are the Democrats trying to let the current Republican administration know there is a sleeping giant out there? Gov. Snyder may be able to anger retirees by taxing their pensions but don't piss of the marijuana users. Attorney General Bill Schuette was an active opponent of the MMMA before the 2008 election and has made no bones about his continued opposition to it.

Finally it could be interpreted that the Dems support marijuana dispensaries in saying: "Whereas, not all patients are able to grow their own medicine, nor are all caregivers able to grow medicine for their own patients, we believe that people who are authorized to possesses medical marijuana should be able to transfer legally cultivated incidental overages to other caregivers or patients who are legally authorized to be in possession and who are fully compliant with all of the restrictions and or limitations outlined in the Michigan Medical Marijuana Constitutional Amendment approved in 2008."

It's likely the Dems, in the wake of a state Republican landslide in November, want to curry favor with the electorate and remind them that they are on the same side of a very popular issue. That's nice. But to really show their oysters, they need to make a legislative move to shore up the MMMA and make some noise about hemp. In the hard economic times we live in, and with the state stripping every expense imaginable, it seems the economic innovation of hemp could be a big part of a turnaround.

Some economists believe that even without hemp, marijuana itself could give us an economic boost. I just came across this 2005 paper by Jeffrey Miron, a visiting professor of economics at Harvard that was endorsed by 530 economists including three Nobel laureates. Miron's published report reads: "Replacing marijuana prohibition with a system of legal regulation would save approximately $7.7 billion in government expenditures on prohibition enforcement — $2.4 billion at the federal level and $5.3 billion at the state and local levels. ... Revenue from taxation of marijuana sales would range from $2.4 billion per year if marijuana were taxed like ordinary consumer goods to $6.2 billion if it were taxed like alcohol or tobacco."

*Erratum: The original version of this article misidentified the group that funded the poll study.

Larry Gabriel

Larry Gabriel covers cannabis for Metro Times. He also writes the Detroit Watch in the monthly Michigan Cannabis Industries Report. Larry's chapter "Rebirth of Tribe" in the book Heaven Was Detroit, from jazz to hip-hop and beyond chronicles the involvement of Marcus Belgrave, Wendell Harrison, Harold McKinney,...
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