Judge Dismisses Medical Marijuana Case Against Birmingham, Bloomfield Hills [Another Setback]

Oakland County Circuit Court judge says the case, filed in December 2010 by the American Civil Liberties Union, is based on hypothetical situations.

The charges filed against Birmingham and Bloomfield Hills for banning medical marijuana have been dropped.

Tuesday, Oakland County Circuit Judge Colleen O’Brien dismissed the lawsuit filed by the American Civil Liberties Union (ACLU) against the two cities nearly a year ago exactly.

On Dec. 1, 2010, the ACLU — on behalf of Birmingham residents Robert and Linda Lott —sued the cities for banning medical marijuana, saying both Birmingham and Bloomfield Hills were in direct violation of the 2008 Michigan Medical Marihuana Act (MMMA), which allows and provides protection for the medical use of marijuana for patients and their caregivers when used to treat “dehibilating medical conditions.”

Linda has suffered from multiple sclerosis for 28 years, the original lawsuit states, is blind and confined to a wheelchair, while Robert has glaucoma. Both qualify as patients under the MMMA and are registered as such with the Michigan Department of Community Health.

In April 2010, however, Birmingham adopted ordinance No. 2026, which prohibits any activity that violates federal law. Because using medical marijuana is still illegal under the federal Controlled Substance Act, the Lotts could be arrested for possessing the drug and charged with a misdemeanor offense.

The pair were suing Bloomfield Hills for a similar ordinance because Linda can not use marijuana at a social club she belongs to there.

However, O’Brien said in her four-page ruling Tuesday that the case is based on hypotheticals because neither of the Lotts have been arrested. “An actual controversy does not exist where the injury sought to be prevented is hypothetical,” O’Brien writes.

According to Birmingham city attorney Tim Currier, this means Birmingham’s ordinance will stay in place.

“The primary concern when Birmingham passed their ordinance was over dispensaries and grow operations, which historically have brought criminal activity to the area,” Currier told the Birmingham Eccentric on Wednesday. “The judge’s dismissal of the case leaves the ordinance in place.”

In July, a Wayne County judge dismissed another lawsuit filed by the Lotts and the ACLU, this time against the city of Livonia, for not allowing them to grow marijuana in a warehouse they own there.

In late July, Wayne County Circuit Court Judge Wendy Baxter upheld Livonia’s zoning ordinance, which also forbids violating any federal law. The ACLU appealed the ruling in August.

via Birmingham Patch

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