Michigan Court of Appeals decided September 14, 2010

The MMMA went into effect on December 4, 2008. The Department of Community Health started issuing cards on April 4, 2009. Between those dates, on March 30 2009 Redden was raided in Madison Heights where 21 plants were found. Because Redden did not have a card at the time of the offense Judge Turner in 43rd District held a section 8 hearing and found that Redden met the requirements and dismissed the case. The Oakland County Prosecutor appealed and Judge Lisa Gorcyca ruled that judge turner should have bound the case over to the circuit court because there was a question of fact as to whether Redden qualified under section 8. Defendant appealed. The Court of Appeals ruled that a card holder that is in compliance with the law may use section 4 as a defense to dismiss a case. A non card holder may use section 8 as a defense to a marijuana case. The ballot proposal explicitly informed voters that the law would permit registered and unregistered patients to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana. The court ruled that issues such as the existence of a bona fide patient physician relationship, the amount of marijuana possessed being reasonable, whether it was being possessed for a medical purpose and whether the defendant suffered from a debilitating medical illness where all issues of fact for a jury.

The court stated it questioned the relationship when the physician’s only job was to see medical marijuana patients such that it raised a question of fact whether he was assisting someone to obtain marijuana under false pretenses.

With respect the amount reasonably necessary to ensure an uninterrupted supply the court ruled that the amounts in section four, 2.5 ounces and 12 plants, are not instructional. That is the maximum amount and more testimony must be elicited on that issue.

There must be evidence that the marijuana that was being grown and possessed was for the purpose of medication.

With respect to the illness, the court defined “serious” as weighty, important or significant, critical or threatening or giving cause of apprehension. The doctor in this case simply said his patients suffered from “pain” and Nausea” which is not enough to qualify as serious.

Judge Peter D. Oconnell wrote a concurring opinion, which is interesting and provides a history of the enactment, how it was written and suggestions. He is one of the oldest sitting judges since 1994. Only 6 of the 28 judges have been there as long or longer. He was a district court judge for 16 years before that and was the chief assistant prosecuting attorney in Isabella County. His term expires in 2019

Sec 4(a) “medical use” is broad; if a patient has designated a caregiver they are not allowed to have plants.

4(b) any assistance that a registered caregiver provides to a patient other than the one that he is not connected though the registration process is not protected. Each enclosed facility must be for each patient. a caregiver having 60 plants must have five separate facilities that only that patient and the caregiver have access

4(e) only addresses reimbursement of costs and does not provide fees for the labor involved or profit financially

4(f) protects a physician only if there is a bona fide relationship and if the physician completed a full assessment of the patient’s medical history

4(i) provides protection to a “person” who assists or is otherwise in the presence of vicinity of medical use, not sale or distribution or manufacture

Section 7 – interpreting this section and the entire act this justice believes that a patient must be suffering from a debilitating illness. Because he believes that most are are, even if issued a card, then most do not qualify. A patient has the burden of proving that they suffer, a mere assertion is not sufficient, like an certification. When placing the patient’s medical condition into evidence they waive any privilege. Once established the prosecution has the right to rebut

Section 8 – by using the term patient instead of qualifying patient the purpose of section eight is to establish an affirmative defense for those users and growers who are not registered with the state.

8(a)(1) – must establish bona-fide relationship and under 7(b)(5) they suffer from a debilitating or serious condition

bona-fide means legitimate,

“in the course of” means more than once

patient-physician relationship – must maintain records, complete understanding of medical history, specific medical issues must be identified and a plan to address them, professional setting, set boundaries for the patient, monitor patient’s progress, continuity of treatment, especially with chronic pain. A legal duty must arise from the relationship under which the physician can be accountable for malpractice contract to 4(f) which states no civil liability

Karen O’Keefe of the MMP was the principle drafter of the act and she submitted an affidavit that stated that act’s intent was to provide two forms of defenses wherein sec 4 providing the greater level of protection and sec 8 the lesser level

Section 3(l) providing for certifications is the most abused section of the act

What has been lost in the rush to implement the MMMA is a comprehensive set of administrative rules. Under MCL 333.26425(a), the DCH only had 120 days to draft the administrative rules that are currently in effect. As demonstrated by the rules that did come into being, this was a totally unreasonable time limit for such a task.

No system of regulation can succeed without a clear set of rules. Those wishing to use marijuana need to know when, how, and under what conditions they can legally do so. Providers need to know under what conditions they can legally grow, harvest, and distribute their product, and the operators of the new medical-marijuana clinics that appear to be springing up on every corner need to know if they are in fact set up to dispense marijuana to the public legally. Until today, the DCH, the Legislature, and the appellate courts have answered very few of these questions. Pressure and confusion results from trying to operate under a system in which no one has stepped forward and stated specifically what actions are legal and what actions are not. It appears that most elected officials, including my colleagues, understand the political nature of this controversy and simply choose to address the MMMA only to the extent that a particular occasion requires. I, on the other hand, right or wrong, prefer giving some notice to those concerned before they are deprived of their liberty and property.

What is clear from reading the lower court record in this case is that no one has set out a comprehensive plan to implement the new MMMA. The job of setting public policy should not be handed to the courts as a consequence of the inaction of legislative or administrative officials. Those elected and appointed officials can choose to remain silent and allow the courts to interpret this act piecemeal or on a case-by-case basis. Or the statute can be revised, or the pertinent administrative rules revised, to provide a clear direction to all citizens, including the judges of the courts, who are affected by this act.

For those who instituted the process of placing the proposal on the ballot, the MMMA was both an avenue for allowing society to explore the medical uses of marijuana and a first step in legalizing marijuana in Michigan.