Deruiter and Mansour: Two Starkly Different Court of Appeals Decisions and Their Impact on Patients and Caregivers
On July 17, 2018, the Court of Appeals published Deruiter v. Township of Byron, a watershed case for patient and caregiver rights. Then, two days later, the Court of Appeals published People v. Mansour, perhaps one of the most damaging opinions for patient and caregiver rights the Court has ever issued. Despite medical marihuana being legal in Michigan for almost 10 years, the legal landscape for patients and caregivers continues to be turbulent.
Deruiter v. Township of Byron
The Deruiter case involves efforts to create local municipal limitations on patient and caregiver rights under the Michigan Medical Marihuana Act (MMMA). Specifically, this case involved municipalities attempting to prohibit cannabis cultivation via zoning limitations.
The MMMA allows patients and caregivers to grow marihuana in an enclosed, locked facility. Some individuals have the ability to establish such grows within their homes, garages, basements, or spare rooms. However, not every individual is fortunate enough to have this space available. Nor do some individuals want to have their grows in residential areas or around their families and neighbors. Especially caregivers, which can cultivate up to 72 plants on behalf of the patients they assist. The larger the grow, the more space, electricity, and expensive cultivation equipment is required. This leads several patients and caregivers to seek out non-residential space for their cultivation; locations more suitable for the conduct required.
Home Occupancy Ordinances
Since the adoption of the MMMA, municipalities across Michigan have attempted to prohibit, limit, or restrict cannabis cultivation within their borders. Usually such limitations are established via zoning ordinances. Several municipalities, including the Township of Byron, did so by enacting a “home occupancy” ordinance. Home occupancy ordinances effectively restricted MMMA patient or caregiver conduct to residential locations by prohibiting MMMA conduct from occurring anywhere else within the community. These ordinances typically require patients or caregivers to submit an application to the municipality, pay a fee to obtain a permit, and comply with local rules. Failure to comply with local ordinances would result in revocation of the permit and demands to cease all marihuana activity, fines, or other penalties.
Such ordinances effectively prohibited caregivers from utilizing commercial or industrial space for larger grows. Further, sometimes the restrictions created by these ordinances could prohibited caregivers from growing in their own homes, as several ordinances created buffers from schools, churches, and daycare facilities. Uses often located near or within residential areas. Despite no such restrictions being contemplated by the MMMA, municipalities argued that these zoning ordinances did not prohibit caregiver and patent conduct, but instead limited the locations of such conduct. As a result, patients and caregivers throughout Michigan have been prohibited from establishing grows or penalized for doing so in violation of local ordinances, even if their conduct was not in violation of the MMMA.
Christie Deruiter, a caregiver in the Township of Byron, grew medical marihuana in an enclosed, locked facility at a commercial location within the township. This conduct violated the township’s home occupancy ordinance, and Ms. Deruiter was ordered to cease and desist all medical marihuana activities under threat of an enforcement action. Ms. Deruiter sued the township for her right to cultivate, and after a lengthy legal battle, the Court of Appeals ruled that MMMA preempted the township’s home occupancy ordinance. Holding:
We conclude that the MMMA permits medical use of marijuana, particularly the cultivation of marijuana by registered caregivers, at locations regardless of land use zoning designations as long as the activity occurs within the statutorily specified enclosed, locked facility. No provision in the MMMA authorizes municipalities to restrict the location of MMMA-compliant medical use of marijuana by caregivers. Neither does the MMMA authorize municipalities to adopt ordinances restricting MMMA-compliant conduct to home occupations in residential locations. So long as caregivers conduct their medical marijuana activities in compliance with the MMMA and cultivate medical marijuana in an “enclosed, locked facility” as defined by MCL 333.26423(d) and do not violate MCL 333.26427(b)’s location prohibitions, such conduct complies with the MMMA and cannot be restricted or penalized
The MMMA preempts zoning ordinances restricting patient/caregiver conduct
The Township of Byron’s ordinance directly conflicted with the MMMA by prohibiting what the MMMA permitted, and it improperly imposed regulations and penalties upon persons who engage in MMMA-compliant conduct. The Deruiter case makes it abundantly clear that municipalities cannot circumvent the rights and protections created by the MMMA. If patients or caregivers are MMMA-compliant, their conduct is authorized by state law. Municipalities cannot target or restrict patients and caregivers by adding layers of restrictions and regulations designed to interfere with the lawful use of marihuana.
Deruiter v. Township of Byron is one of the most important MMMA cases in a long time. It reaffirms that patients and caregivers actually have rights created by the MMMA, and those rights allow for the medical use of marihuana regardless of municipal disapproval. However, these rights only apply if patients and caregivers remain compliant with the MMMA and its requirements. As powerful as the Deruiter opinion will be moving forward, caregivers and patients continue to face significant legal challenges.
People v. Mansour
While Deruiter demonstrated that an MMMA-compliant patient or caregiver has powerful, defendable rights, People v. Mansour makes it practically impossible for patients or caregivers engaged in marihuana cultivation to ever be MMMA-compliant. Two days after the Deruiter decision, the Court of Appeals issued another medical marihuana opinion. This time, the Court considered the intricacies of a § 4 defense.
Section 4 Defense
In order to parse through the baffling Mansour decision, you need to understand § 4 immunity under the MMMA. Section 4 provides immunity from arrest, prosecution, and penalty in any manner, and prohibits the denial of any right or privilege to patients and caregivers. To establish this privilege from arrest, a patient or caregiver, now a defendant, must comply with the following:
The defendant must present its registry identification card and a valid driver license or government-issued ID;
The defendant cannot possess more than a combined total of 2.5 ounces of usable marihuana and usable marihuana equivalents for each patient. (Maximum of 15 useable ounces);
The defendant cannot possess more than 12 marihuana plants for each patient, kept in an enclosed, locked facility (Maximum of 72 plants);
The defendant cannot possess more than an incidental amount of seeds, stalks, and unusable roots; and
The defendant must be engaged in “the medical use of marihuana” (the conduct at issue must be related to providing marijuana to the patient).
The MMMA effectively establishes an affirmative criminal defense if the patient or caregiver at issue is engaged in the medical use of marihuana and within the plant and weight restrictions established by § 4. If you are compliant with the MMMA’s requirements, your conduct is not subject to prosecution. Effectively, the Court of Appeals’ decision in Mansour makes it impossible to be a patient or caregiver to remain MMMA-compliant if that person is cultivating plants.
Marihuana v. Useable Marihuana
The Court in Mansour holds that in order to establish § 4 immunity from arrest, a defendant cannot possess any “marihuana” that is not “useable marihuana” under the applicable definitions of the MMMA. The Court held:
[T]he language establishing limited immunity in § 4 of the MMMA expressly conditions that immunity on the person possessing no amount of marijuana that does not qualify as usable marijuana under the applicable definitions.
The Court argues that, because both the terms “marihuana” and “useable marihuana” are defined by the MMMA, the immunity contemplated in § 4 of the MMMA does not apply to “marihuana.” So, if a caregiver has marihuana that is not “useable marihuana,” § 4 does not apply. According to the Court’s logic, § 4 immunity covers two things:
The plants; and
the final product: useable marihuana.
If at any time the marihuana at issue is not in a useable form, § 4 does not apply, and the defendant can be charged with a crime.
So, according to the Court of Appeals in a published opinion, otherwise lawfully compliant patients and caregivers cannot utilize § 4 to protect their conduct for the period of time between when the marihuana is removed from the plant to the time that marihuana is in a useable form. So, if a patient or caregiver is engaged in the medical use of marihuana by cultivating plants in an enclosed, locked facility, the second a marijuana bud is removed from the plant, it falls outside the protections of § 4 until it is sufficiently dried enough to be considered “useable marihuana.”
There are 27 judges serving the Michigan Court of Appeals, with cases heard by panels of 3 judges. Notably, none of the judges in these two cases overlap. At this time, it is unclear if the Township of Byron will appeal the Court of Appeals decision in Deruiter. The attorneys in Mansour have indicated they will take the Case to the Michigan Supreme Court. However, at this time, both decisions have precedential effect.
While it is challenging to have two widely different outcomes back to back, these opinions join a laundry list of Court of Appeals and Michigan Supreme Court cases attempting to define marijuana conduct in Michigan. Even the most cautious, well intending patients or caregivers risk criminal liability. All the more reason to exercise caution and vote for better cannabis laws in November.