By Steve Thorpe
Southfield attorney Neil Rockind is an acknowledged expert on Michigan’s medical marijuana laws. After a successful career as a prosecutor, Rockind became a criminal defense lawyer in 1997 and has handled many high profile cases. He is admitted to practice before the United States Court of Appeals for the 6th Circuit, the United States District Courts for the Eastern District of Michigan, Western District of Michigan and the Northern District of Ohio.
Thorpe: In a recent opinion, the Michigan Supreme Court ruled 4-1 that the Michigan Medical Marihuana Act (MMMA) does not cover patient-to-patient transfers or sales, and doesn’t protect dispensaries, compassion clubs or other places where those transfers occur. What will be the immediate and long-term effects of the ruling?
Rockind: Having spent a lot of time speaking with one of the drafters of the Michigan Medical Marijuana Act, I feel comfortable speaking of the intent of the statute — it was to make marijuana available to those in need of it as medicine. While the terms of the initiative and Act have been and continue to be vigorously debated, what cannot be seriously disputed is that providing access to medical cannabis for patients and those in need was the goal of the MMMA. The McQueen opinion limits access. In my opinion, that undercut its goal. Period. We are already witnessing the immediate effects of McQueen — less access for patients. Dispensary owners are getting cease-and-desist letters from authorities, dispensaries are closing and patients are left without a source for their medical cannabis, the medicine that has proven effective for them. These are the immediate effects. The long-term effects, absent a legislative change or initiative, are worse: some patients without access to their medicine are turning to the black market and others are returning to prescription medications that were either ineffective or that carried severe risks of dependency. Unfortunately, until you’ve come into contact with a patient whose quality of life has markedly improved on medical cannabis, these effects may seem trivial or insignificant. I’m moved by their stories and I understand their fears.
Thorpe: The one dissenting member of the Supreme Court, Justice Michael Cavanaugh, believes transfers of marijuana between qualified patients, along with facilitating those transfers, is protected under the law. He stated in his opinion that “The majority’s view is inconsistent with the purpose of the MMMA.” Can you explain his argument?
Rockind: Of course. Justice Cavanaugh was pointing out that on the one hand the majority recognized that the MMMA creates a “right” to the medical use of marijuana but then through an extremely narrow interpretation of a word, limits the available ways that a patient can exercise or fulfill that right. Evoking memories of former President Clinton’s infamous deposition testimony, e.g.,“it all depends on what the definition of ‘is’ is?”, the majority took great pains to interpret the word “the” in the immunity section, §4(d)(2), to mean that only the receiving patient in a transfer is entitled to immunity. This narrow interpretation undermines the intent of the MMMA, which is improving “the health and welfare of its citizens” by making medical marijuana available and accessible to patients without fear of penalty.
Initiatives are to be interpreted differently than statutes created by the legislature — they are to be “liberally construed” to accomplish the intent of the electorate. Justice Cavanaugh reasons that had the majority interpreted the MMMA, with the “intent of the MMMA” in mind, it would have interpreted the word “the” in §4(d)(2) differently. By interpreting it so strictly and not liberally, the majority undercut the intent of the Act and created a situation where as Justice Cavanaugh put it, “qualified patients who are in need of marijuana for medical use, yet do not have the ability to either cultivate marijuana or find a trustworthy primary caregiver, are, for all practical purposes, deprived of an additional route to obtain marijuana for that use-another qualified patient’s transfer.”
Thorpe: Tell us about the repercussions of the McQueen case in 2011.
Rockind: That is difficult to do without some perspective. From early on, the medical cannabis industry exploded with new commercial ventures. An entire stream of commerce was created where prior to the enactment of the MMMA, there was none. Dispensaries opened and operated out in the open — some even on the streets leading up to the Capital Building in Lansing. Industry groups formed. Owners and operators advertised and petitioned local communities to permit them to open ventures in their communities. It was incredibly exciting and promising. The reason? Owners and operators believed that they had a plan or interpretation in place that protected their conduct and business in the case of a nuisance action or criminal prosecution.
The McQueen case in 2011, where the Court of Appeals ruled that the McQueen dispensary was a nuisance and that patient to patient transfers were not permitted, changed that environment considerably. Law enforcement felt emboldened, local communities instituted bans on dispensaries and many businesses voluntarily shut their doors and ceased operating.
There were additional repercussions for criminal defense lawyers, like me, and our clients, in particular those clients who relied on the absence of a ruling or interpretation prohibiting patient to patient transfers: our clients were stripped of their defense. These clients acted in good faith when they engaged in their work at a dispensary yet because of McQueen, they were told that they could not argue their good faith defense to a jury. Many were denied a medical marijuana defense altogether. In my opinion, the 2011 McQueen opinion left a path of devastation and destruction in its wake.
Thorpe: The original voter initiative was passed in 2008 and appears to enjoy overwhelming public support. Why is it taking so long to interpret the law?
Rockind: The initiative passed in 2008 but the MMMA was not enacted until April of 2009. Yet still, some four years after the Act became law, there are few, relatively speaking, interpretations of the law. I can say with certainty that it is not due to less law enforcement action or cases. We hear about raids, arrests and prosecutions on a daily basis. One of the reasons, and I am just speculating here, is that early on the courts were denying medical marijuana defenses at trial. Some judges even prohibited defendants from holding a §8 hearing, a hearing on whether an affirmative defense of medical purpose warranted a dismissal or would be presented to a jury. At that time, stripped of their ability to raise a medical marijuana defense, many defendants were presented with favorable plea offers and many, out of fear, accepted. Due in part to the Supreme Court opinion in King/Kolanek, we are seeing more cases making it to hearings and trials and I expect to see more interpretations from the Court of Appeals as a result.
Thorpe: Can you tell us about House Bill 5580, sometimes called the “Safe Access” bill? How would it protect dispensaries and customers? What sorts of powers would it give local governments?
Rockind: The House Bill is now House Bill 4271 or as it is known, the “Provisioning Centers Act.” The Act creates and permits, with the consent of local communities, provisioning centers, i.e., commercial entities that acquire, possess and dispense medical cannabis directly to registered qualifying patients or indirectly through a patient’s registered primary caregiver. The Act creates a comprehensive “dispensary” system. In short, the Act creates places where patients may purchase medical cannabis, establishes rules for who may work at those places, limits the amount of excess marijuana patients and caregivers can sell to a center, limits the amount of cannabis that patients can acquire within a 10 day period, separates centers from physicians and certifications, gives the state’s licensing authority power over a center’s advertising and requires that centers keep records of transfers and acquisitions. Importantly, it empowers municipalities with the right to regulate or ban centers in their own jurisdiction. In my opinion, the Act is brilliantly written and comprehensive. There is no sensible reason why it should not pass.
Thorpe: What do you see as the future of this issue? Will clarity and consistency eventually emerge?
Rockind: Both are good questions. I think that as long as marijuana is viewed as a narcotic or drug with no medical benefit and as long as people continue to view it as an evil, we are going to witness a veritable tug-of-war on this issue. While many people believe that marijuana has medicinal value and favor broader access, there are some who maintain that it is an evil. Sadly, many of those who are opposed to easing limitations on marijuana access are in positions of power. Nevertheless, in just a few years, we have witnessed extraordinary change and those of us in the fight to make medical cannabis more available are going to keep fighting these battles both in court before judges and juries and in the court of public opinion. It may take some time, but we will win.