Michigan Court of Appeals decided August 23, 2011

Attorney General Bill Schutte on behalf of the state of Michigan sued a dispensary seeking to enjoin it from selling marijuana to the public. Compassionate Apothecary (CA). The trial court ruled that they were operating within the MMMA

The defendant operated CA which rented lockers to member patients for their overages which they would make available to other member patients. They were patient to patient transfers. The trial court ruled that the defendants were not in possession of the marijuana because it was owned by the patient member. The court of appeals disagreed and stated that the defendant did exercise dominion and control over the marijuana and therefore possessed it. The court ruled that the defendants also sold the marijuana, on behalf of the paitent/member.

The Public Health Code has no provision calling for the distribution of a schedule one controlled substance because they have no accepted medical use in treatment

Medical use of marijuana is defined in sec 3(e) and includes “delivery” and “transfer” of marijuana but it does not include the “sale” of marijuana which is what the court ruled that CA was engaged in. sale is delivery plus compensation

Michigan Supreme Court decided February 8, 2013

Michigan Supreme Court ruled that medical use does include sales but found that CA still did not fall under medical use because it only protected the patient and not other patients and therefore did not qualify for sec 4(a) immunity. They took a very literal meaning. Sec 4 creates a personal right which is limited to the patient’s own debilitating medical condition and not a different registered qualifying patient.

The court further stated the immunity for other persons under secion 4(i) only protects those who assist patients with administering and using medicine. That subsection intentionally omitted medical use which is defined as transferring, delivering and sales.

Also sec 8 only applies to criminal prosecutions.

The court included an appendix which concisely states the six holdings of this case

MCQUEEN SUPREME COURT APPENDIX

As an aid to judges, practitioners, and the public, we provide the following summary of our holdings in this case:

(1) The term “medical use,” as defined in § 3(e) of the Michigan Medical Marihuana Act (MMMA), MCL 333.26423(e), encompasses the sale of marijuana “to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.”

(2) To be eligible for immunity under § 4 of the MMMA, MCL 333.26424, a registered qualifying patient must be engaging in marijuana-related conduct for the purpose of alleviating the patient’s own debilitating medical condition or symptoms associated with the debilitating medical condition.

(3) To be eligible for § 4 immunity, a registered primary caregiver must be engaging in marijuana-related conduct for the purpose of alleviating the debilitating medical condition, or symptoms associated with the debilitating medical condition, of a registered qualifying patient to whom the caregiver is connected through the registration process of the Michigan Department of Community Health (MDCH).

(4) As a result, § 4 does not offer immunity to a registered qualifying patient who transfers marijuana to another registered qualifying patient, nor does it offer immunity to a registered primary caregiver who transfers marijuana to anyone other than a registered qualifying patient to whom the caregiver is connected through the MDCH’s registration process.

(5) Section 4(i), MCL 333.26424(i), permits any person to assist a registered qualifying patient with “using or administering” marijuana. However, the terms “using” and “administering” are limited to conduct involving the actual ingestion of marijuana.

(6) The affirmative defense of § 8 of the MMMA, MCL 333.26428, applies only to criminal prosecutions involving marijuana, subject to the limited exceptions contained in § 8(c) for disciplinary action by a business or occupational or professional licensing board or bureau or forfeiture of any interest in or right to property.