McQueen Is Not A Death Notice – It Is Just An Opinion
In a disappointing but not surprising opinion, the conservative branch of the Michigan Supreme Court found in favor of the State of Michigan against the Compassionate Apothecary in a civil injunction case that required the Compassionate Apothecary to close as a public nuisance. Newspapers, journalists and headline writers are creating dramatic headlines and sub-headlines about the meaning of this opinion. Put down the hari-kari knife, step away from the ledge and put down the cyanide kool-aid. This opinion has very limited meaning for the vast majority of medical marijuana patients and caregivers and has very limited meaning in most of our cases. How can that be, you might ask? Let me explain.
Immunity Was The Issue in McQueen – Not The Affirmative Defense
The McQueen case was in the context of a civil case. Not a criminal case. This is extremely important. In civil cases, which are different from criminal prosecutions, other issues at play. In the McQueen case, the issues at play were whether the dispensary or club violated the public nuisance law and thus could be shut down. It was not a criminal prosecution. No one, not McQueen, not Taylor, the individuals behind the club, were charged with crimes. McQueen involved a §4, i.e., claim pursuant to MCL 333.26424, immunity claim only. The McQueen majority focused its opinion on the immunity provisions contained within Section 4, i.e., MCL 333.26424, of the Michigan Medical Marijuana Act. It went to great lengths to distinguish between §4 immunity and the §8 medical purpose affirmative defense”
Absent a situation triggering the affirmative defense of § 8 of the MMMA, § 4 sets forth the requirements for a person to be entitled to immunity for the “medical use” of marijuana. It is entitlement to that immunity—not the definition of “medical use”—that demonstrates that the person’s medical use of marijuana is in accordance with the MMMA. Therefore, we turn to § 4 to determine whether patient-to-patient sales are entitled to that section’s provision of immunity.
In a footnote, footnote 52, the Court explained that this opinion was focused exclusively on §4 immunity and not §8, the medical purpose or affirmative defense:
These situations are limited to “any prosecution involving marihuana,” MCL 333.26428(a), a “disciplinary action by a business or occupational or professional licensing board or bureau,” MCL 333.26428(c)(1), or “forfeiture of any interest in or right to property,” MCL 333.26428(c)(2). For further discussion of the § 8 affirmative defense, see part III(C) of this opinion.
In other words, the section that defense lawyers and those unfortunate enough to be charged with crimes have relied on in defense of cases, i.e., §8, were not at issue in the McQueen case. At issue in the McQueen case, as I have been explaining for some time to those interested in listening, were whether “registered qualifying patient transfers of marijuana to another registered qualifying patient” were entitled to immunity protection under §4 of the Medical Marijuanat Act. I was emboldened by the recent opinion of People v Green, and thought that the Green case was perhaps a harbinger of good things to come but , as it turns out, it was not. The McQueen majority opinion ruling addresses these transfers but in a nuanced way. It focuses on whether the transferring patient may claim immunity for the transfer and whether the receiving/acquiring patient may claim immunity for the transfer. The McQueen majority concluded the transferring patient is not immune but that the acquiring patient may claim immunity but that the transferring patient may not. As it explains in footnote 62:
Of course, a registered qualifying patient who acquires marijuana—whether from another registered qualifying patient or even from someone who is not entitled to possess marijuana—to alleviate his own condition can still receive immunity from arrest, prosecution, or penalty because the § 4(d) presumption cannot be rebutted on that basis. In this sense, § 4 immunity is asymmetric: it allows a registered qualifying patient to obtain marijuana for his own medical use but does not allow him to transfer marijuana for another registered qualifying patient’s use.
As for the transferring patient, the McQueen majority makes clear that he/she is not entitled to immunity. The Court focused on specific language in §4 to conclude that immunity is only available when the marijuana transfer is to alleviate the transferring patient’s debilitating condition and that only two (2) individuals are entitled to be presumed to have engaged in a lawful transfer entitled to immunity for the “receiving patient’s medical relief”: 1) the patient’s registered primary caregiver and/or 2) the receiving registered qualifying patient can claim immunity for a transfer. Why? Because, the Court says, any other individual transferring marijuana is not entitled to immunity because their transfer was not, per §4, for the receiving patient’s medical benefit. In other words, transfers that comply with MCL 333.26424 are presumed to be for the benefit of the receiving patient’s medical benefit and the only people entitled to this presumption or immunity are the patient’s registered primary caregiver or the patient himself. Anyone else transferring to the patient, cannot claim the immunity:
Defendants’ business facilitates patient-to-patient sales, presumably to benefit the transferee patient’s debilitating medical condition or symptoms. However, those transfers do not qualify for § 4 immunity because they encompass marijuana-related conduct that is not for the purpose of alleviating the transferor’s debilitating medical condition or its symptoms. Because the defendants’ “medical use” of marijuana does not comply with the immunity provisions of §§ 4(a), 4(b), and 4(d), defendants cannot claim that § 4 insulates them from a public nuisance claim
In other words, the transferee can say that it was to alleviate his/her debilitating condition but another patient cannot say that is so for purposes of §4: “Thus, § 4 immunity does not extend to a registered qualifying patient who transfers marijuana to another registered qualifying patient for the transferee’s use because the transferor is not engaging in conduct related to marijuana for the purpose of relieving the transferor’s own condition or symptoms.” McQueen opinion, p 18. It is a personal right of the receiving patient and his primary caregiver. No one else may claim that the transfer was for that patient’s medical benefit under §4. In other words, the transferring patient is not transferring it for his own benefit.
Don’t Panic – It Isn’t As Bad As It Sounds
McQueen directly contradicts and I would suggest overrules Green. So a transferring patient or other caregiver are not entitled to immunity under §4. But what does it all mean? Very little other than that transferors of marijuana other than a registered primary caregiver to his registered patients are not protected when they transfer or deliver marijuana. Period. Those acquiring marijuana may still receive immunity. Registered primary caregivers may still transfer to their patients. Registered primary caregivers may still grow for their patients. Registered qualifying patients may still engage in medical use. All of the above and more are entitled to immunity under MCL 333.26424. McQueen does not alter the state of the law in this regard at all.
In fact, McQueen disabuses the Court of Appeals and many prosecutors in another important area as well – sales. The McQueen majority specifically disagreed with the lower courts and prosecutors who contended that the fact that money exchanged hands renders any transfer or delivery unlawful. According to the Supreme Court, the fact that money exchanged hands or that a sale took place, does not render the transaction or transfer unlawful. McQueen page 12-13. Sales do not violate Michigan Medical Marijuana Act. McQueen 12-13.
What is important to important to remember is that even if these transfers are not protected under §4, they may be entitled to protection under MCL §333.26428, i.e., the affirmative defense section of the Michigan Medical Marijuana Act. In other words, let’s be careful not to read the McQueen opinion as stating that all transfers of marijuana between patients or by individuals not connected through the registry are illegal. The McQueen opinion does not state that – it does not even come close to stating as much.
SECTION 8 AFFIRMATIVE DEFENSE
Any transfer, even one that involves the transfer of money, may be entitled to protection under §8. McQueen explicitly says as much:
Finally, even though § 4 does not permit defendants to operate a business that facilitates patient-to-patient sales of marijuana, our decision in Kolanek makes clear that § 8 provides separate protections for medical marijuana patients and caregivers and that one need not satisfy the requirements of § 4 immunity to be entitled to the § 8 affirmative defense, which allows “a patient and a patient’s primary caregiver, if any, [to] assert the
medical purpose for using marihuana as a defense to any prosecution involving marihuana . . . .” However, by its own terms, § 8(a) only applies “as a defense to any prosecution involving marihuana . . . .”
Why didn’t McQueen and Taylor get to argue and why didn’t the Court address whether their conduct was protected by §8? Because, the Court stated, §8 only applies in criminal prosecutions involving marijuana and neither McQueen nor Taylor were prosecuted. Accordingly, they could not assert a defense under §8.
In short, had McQueen or Taylor been criminally prosecuted, they couldn’t claim immunity under §4 but they could assert a defense under §8. Their transactions would not deemed unlawful or illegal merely because they occurred and the fact that money exchanged hands is meaningless. They just can’t wave their cards and claim to be immune – they will have to come to court and defend themselves but, and this is a very important but, they will have the opportunity to do so.