Category Archives: Michigan Supreme Court

Michigan’s Supreme Court to decide who can sell medical marihuana

Michigan’s Supreme Court (SCt) released an order on Wednesday indicating that they will ultimately decide whether “Michigan Medical Marihuana Act (MMMA) … permits patient-to-patient sales of marihuana.”  The high court agreed to review “the August 23, 2011 judgment of the Court of Appeals” that found such activities to be a public nuisance and in violation of Michigan’s Public Health Code.

The Court of Appeals’ (COA) ruling caused many medical marihuana dispensary-type businesses to voluntarily close their doors.  It also emboldened law enforcement agencies throughout the state to pursue criminal and civil actions against medical marihuana ventures that dared to remain open.

The controversial case at issue originated in 2010, when the Isabella County Prosecutor’s office asked a circuit court judge to issue an injunction against the Compassionate Apothecary (CA) in Mt. Pleasant, Michigan.

On December 16, 2010, Circuit Judge Paul H. Chamberlain issued an order declining to issue an injunction.  Judge Chamberlain opined that the CA “would suffer a great hardship if this court enjoined them from operating their business because not only would they lose their business and property, but they would suffer such loss despite conforming to the laws of this state … The public owns a large interest in this case because the same public voted to enact the MMMA, which lends support for its interest in providing a system by which registered qualifying patients may engage in the medical use of marihuana to alleviate their debilitating medical conditions and symptoms associated with such conditions.”

Isabella County’s prosecutor argued in his appellate brief to the COA that the MMMA, “clearly did not intend to allow the operation of dispensaries under the guise of patient to patient transfers. The [MMMA] intended to create a relationship between qualifying patients and registered caregivers as means of obtaining medicinal marihuana.”

The CA countered in their COA brief that if the “[MMMA] wished to require a connection through the Department’s registration process to the patient from which the registered caregiver is receiving compensation, it could have easily said so… It does not.  Accordingly, the converse is true; any registered qualifying patient may provide compensation to any registered primary caregiver for costs associated with assisting that registered qualifying patient in the medical use of marihuana.”

Michigan’s Attorney General (AG) filed an amicus brief with the COA arguing that the CA’s “business activities of facilitating the transfer, delivery or sale of marihuana between registered qualifying patients and between registered primary caregivers and qualifying patients not in a registered relationship with the caregivers are not protected by the [MMMA]. Because [the CA’s] activities are unprotected, they violate other existing laws and are illegal.”

The Michigan Association of Compassion Centers (MACC) was also allowed to file an amicus brief.  MACC argued in their brief that the “sale of marihuana between Patients and Caregivers is not illegal. The Controlled Substances Act makes it illegal for individuals to possess, manufacture, and distribute marihuana but does not make it illegal for them to sell marihuana.”

On June 7, 2011, the COA heard oral arguments pertaining to the CA appeal.  COA Judge Cynthia Stephens asked Michigan’s Assistant Attorney General when “a patient, who is a registered patient, gives another patient the product – with or without compensation – who then gets prosecuted?”  Assistant AG Heather Meingast responded, stating the person that would be prosecuted was the “selling patient, or the transferor patient would be subject to prosecution… a patient cannot assist other patients through the delivery of medical marihuana because that activity is solely delegated to a registered primary caregiver…”

The COA’s August 23, 2011 opinion found that the, “operation of CA is a public nuisance and must be enjoined…  Because defendants possess marihuana, and they possess it with the intent to deliver it to CA members, defendants’ operation of CA is in violation of the [Public Health Code].  Further, their violation of the PHC is not excused by the MMMA because defendants do not operate CA in accordance with the provisions of the MMMA. Through CA, defendants actively participate in the “sale” of marihuana between CA members, but the “medical use” of marihuana does not include the “sale” of marihuana. In addition, even if defendants were engaged in the “medical use” of marihuana, they would not be entitled to the immunity granted by § 4(i) because defendants are not assisting registered qualifying patients with “using or administering” marihuana.”

The CA filed their SCt application for leave to appeal on October 4, 2011.  They argue within their brief that, “Under the guise of legal reasoning, the Court of Appeals engaged in judicial activism and issued an opinion invalidating protections embodied in a law passed by 63% of Michigan voters. The Court of Appeals personal opinions are so pervasive that not one medical marihuana case decided by that court has returned a decision in favor of a defendant. This is not accidental.  Because of this activism, thousands of qualifying patients are left without adequate access to medicine legal for them to consume in Michigan. Also as a result of this activism, businesses such as CA have shuttered their doors in fear of being criminally prosecuted for engaging in conduct – patient-to-patient transfers – that comports with the statutory language, but that the Court of Appeals has now deemed illegal without a statutory basis upon which to ground its opinion. Instead, the Court of Appeals has used a broad brush to paint all “dispensaries” illegal. The unsurprising upheaval that occurred as a result of this blatant judicial activism cannot be countenanced by this Court, and the unprecedented maneuver of denying medication to qualifying patients and closing businesses with the stroke of a pen cries out for review.”

The SCt has not yet set a date to hear oral arguments in this appeal.  Their order, which was released on Wednesday, states that the “Attorney General and the Michigan Association of Compassion Centers are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.”

(Anyone who is interested in obtaining documents referred to in this article can contact Eric L. VanDussen directly at: ericlvandussen@gmail.com – you can watch the COA oral arguments at: http://vimeo.com/24835605)

Continue reading on Examiner.com Michigan’s Supreme Court to decide who can sell medical marihuana – Traverse City Headline | Examiner.com http://www.examiner.com/headline-in-traverse-city/michigan-s-supreme-court-to-decide-who-can-sell-medical-marihuana#ixzz1qcdrdF8z

via The Examiner

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DEA Hypocrisy — Read This!

Reporter Mike Riggs at The Daily Caller has an important story online today revealing how U.S. Drug Enforcement Administration officials are making plans to reschedule natural THC under federal law.

Under the plan, THC derived from the marijuana plant would be classified as a Schedule III controlled substance, while the plant itself would remain classified as a Schedule I illegal drug. Sound fishy? It is.

As a DEA spokesperson quoted in the story explains, “THC, natural or synthetic, remains a schedule I controlled substance. Under the proposed rule, in those instances in the future where FDA might approve a generic version of Marinol, that version of the drug will be in the same schedule as the brand name version of the drug,regardless of whether the THC used in the generic version was synthesized by man or derived from the cannabis plant.”

So, in other words, if a pharmaceutical product contains THC extracted from the marijuana plant, that would be a legal commodity. But if you or I possessed THC extracted from the marijuana plant, that an remains illegal commodity.

Wait, it gets even more absurd.

Since the cannabis plant itself will remain illegal under federal law, then from whom precisely could Big Pharma legally obtain their soon-to-be legal THC extracts? There’s only one answer: The federal government’slone legally licensed marijuana cultivator, The University of Mississippi at Oxford, which already has the licensing agreements with the pharmaceutical industry in hand.

Riggs writes:

In other words, THC in plant form or as an extract, will still be illegal. What won’t be illegal is if a pharmaceutical company buys THC from a government-licensed provider, puts it in a pill, receives the DEA’s stamp of approval, and sells it a price that will likely be far higher than the price of marijuana.

Armentano said such circular reasoning is a product of decades of hostility towards marijuana research.

“This is the insane rationale necessary for banning medical marijuana,” he said. “Take away the prohibition and the political elements, and you would never have the stretching of logic necessary to pass organic THC but only if it mimics Marinol.”

Expect the DEA’s ’stretching of logic’ to become even more absurd in the future.

You can read the entire Daily Caller story, “Is the DEA legalizing THC?,”here.

 

State’s top court to settle dispute over pot bust

The Michigan Supreme Court is considering whether marijuana found by a firefighter during an emergency call can be used to prosecute a man in Oakland County.

A judge and the state appeals court so far have thrown out evidence against Mark Slaughter, who was living in a Royal Oak town house in 2007.

Slaughter’s neighbor called the fire department about a water leak. A firefighter entered his apartment, turned off water in the basement and discovered 20 marijuana plants.

Slaughter’s defense lawyer successfully argued that it was an illegal search. Prosecutors say there’s an exception when authorities find evidence of a crime during an emergency.

The state Supreme Court planned to hear arguments today.

via Freep

Justice Breyer: Founding Fathers Would Have Allowed Restrictions on Guns

If you look at the values and the historical record, you will see that the Founding Fathers never intended guns to go unregulated, Supreme Court Justice Stephen Breyer contended Sunday.

Appearing on “Fox News Sunday,” Breyer said history stands with the dissenters in the court’s decision to overturn a Washington, D.C., handgun ban in the 2008 case “D.C. v. Heller.”

Breyer wrote the dissent and was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He said historians would side with him in the case because they have concluded that Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms.

Madison “was worried about opponents who would think Congress would call up state militias and nationalize them. ‘That can’t happen,’ said Madison,” said Breyer, adding that historians characterize Madison’s priority as, “I’ve got to get this document ratified.”

Therefore, Madison included the Second Amendment to appease the states, Breyer said.

“If you’re interested in history, and in this one history was important, then I think you do have to pay attention to the story,” Breyer said. “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

That being the case, and particularly since the Founding Fathers did not foresee how modern day would change individual behavior, government bodies can impose regulations on guns, Breyer concluded.

In July 2008, the concurring opinion in “D.C. v. Heller” written by Justice Antonin Scalia and shared by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. found that the district’s ban on handgun possession at home “violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

The ruling raised concerns by dissenters like Breyer that gun laws nationwide would be thrown out. That has not happened yet.

Breyer, who just published “Making Our Democracy Work,” a book about the role of the court in American life, outlined his judicial philosophy as one in which the court must take a pragmatic approach in which it “should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.”

Since the Founding Fathers could not foresee the impact of modern day communications and technology, the only option is to take the values of the Founding Fathers and apply them to today’s challenges.

“The difficult job in open cases where there is no clear answer is to take those values in this document, which all Americans hold, which do not change, and to apply them to a world that is ever changing,” Breyer said. “It’s not a matter of policy. It is a matter of what those framers intended.”

He suggested that those values and intentions mean that the Second Amendment allows for restrictions on the individual, including an all-out ban on handguns in the nation’s capital.

“We’re acting as judges. If we’re going to decide everything on the basis of history — by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns?” he asked. “Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don’t think, for anyone who really wants to have a gun.”

via Fox News

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Michigan Supreme Court Changes the Rule on Child Pornography

MUSKEGON COUNTY — The Michigan Supreme Court has overturned the conviction of former Egelston Township Treasurer Brian Lee Hill for “producing” child pornography, a 20-year felony, by downloading it off the Internet and burning it onto compact discs for his own use.

Instead, the proper conviction should have been possession of child porn, a 4-year felony, the high court ruled.

The decision reversed a 2006 pretrial ruling by the Michigan Court of Appeals, which the appeals court reaffirmed in 2009. That ruling set a statewide precedent by declaring, for the first time by a Michigan appellate court, that such conduct was manufacturing child porn, even if — as in Hill’s case — it was for his personal use only.

The implications for the many other people already convicted across Michigan under the old legal standard were not immediately clear. Neither Hill’s Grand Rapids attorney nor Muskegon County Prosecutor Tony Tague could be reached for comment late Friday.

The state’s high court, by a 4-3 vote, vacated Hill’s convictions and remanded the case “for further proceedings not inconsistent with this opinion.”

It also wasn’t immediately clear if Hill would be freed pending a potential retrial.

Hill, now 42, has already been in prison nearly three years. Under the original conviction, his earliest “out” date would be May 22, 2012, with a “maximum” date of Aug. 22, 2027, according to the state corrections department website. Hill is a minimum-security inmate at Gus Harrison Correctional Facility in Lenawee County.

He was sentenced Aug. 22, 2007, to concurrent terms of four years nine months to 20 years for five counts of creating or manufacturing child sexually abusive materials; the same sentences for five counts of using a computer to commit those crimes; and two years for three counts of eavesdropping by installing a video device.

Muskegon County 14th Circuit Judge Timothy G. Hicks convicted Hill of those 13 felony counts after a four-hour bench trial in July 2007. Almost the sole issue was the manufacturing vs. possession debate. Hill’s attorney conceded nearly all the factual points raised by the prosecutor.

Hill, the longtime elected treasurer of Egelston Township, was arrested and charged in November 2004. He resigned his post in November 2005.

He had a hidden life that included secretly videotaping teenage male exchange students using his shower, from a camera concealed in a bathroom boom box.

A hoard of more than 100,000 images were found on a computer hard drive and compact discs, “70 or 80 percent” of which were child pornography, according to a State Police computer expert.

Friday’s decision was authored by Justice Stephen J. Markman, with Chief Justice Marilyn Kelly and justices Michael F. Cavanagh and Diane M. Hathaway concurring. Dissenting were Elizabeth A. Weaver, Maura D. Corrigan and Robert P. Young Jr.

via Muskegon Chronicle

Click here to read the Michigan Supreme Court Opinion in PDF format