Many criminal defense attorneys and medical marijuana activists have been waiting for months for the Michigan Supreme Court to issue its decision in the case of State of Michigan v. McQueen. This case is only the second case in the history of the Michigan Supreme Court dealing with the Michigan Medical Marihuana Act.
The defendants in the case, Brandon McQueen and Matthew Taylor, owned and operated a medical marijuana dispensary called CA (formerly known as Compassionate Apothecary, LLC), which was located in Isabella County, Michigan. The Isabella County Prosecutor’s office filed a case to shut down CA on the grounds that was an illegal public nuisance; the prosecutors claimed the illegality stemmed from the fact that the operations occurring at CA were not in accordance with the Michigan Medical Marihuana Act and were thus illegal. At CA, licensed medical marijuana patients could rent out lockers to supply other licensed patients with medical cannabis. CA would collect a service fee for allowing this activity to occur at its facility.
At the trial court level, the Isabella County Prosecutor’s office lost its case when the circuit court judge ruled that the activity that occurred at CA was fully legal within the bounds of the Michigan Medical Marihuana Act, which is silent on whether or not medical marijuana dispensaries are allowed under law.
The prosecutor’s office appealed the decision and won their case at the Michigan Court of Appeals level. The Court of Appeals judges ruled that the activity that took place at CA was not within the bounds of the Michigan Medical Marihuana Act, because the law does not allow for sales of marijuana and CA was facilitating that process.
The defendants appealed the case to the Michigan Supreme Court. Oral arguments took place in October, 2012, and the Court issued its decision on February 8, 2013.
The decision of the Court is as follows
2. To be eligible for protection from nuisance actions and other actions included in Section 4 of the Michigan Medical Marihuana Act, a patient must engage in marijuana-related conduct only for the purpose of alleviating his or her own medical condition or symptoms. Therefore, patient-to-patient transfers of medical marijuana are not a protected activity, because that is not done to alleviate the transferor’s condition or symptoms.
3. To be eligible for protection from nuisance actions and other actions included in Section 4 of the Michigan Medical Marihuana Act, a registered primary caregiver must engage in marijuana-related conduct only for the purpose of alleviating the medical condition or symptoms of the patients he or she is connected to through the government registration process. There is no Section 4 protection for caregivers who transfer marijuana to patients with whom they are not connected through the government registration process or to anyone else.
4. Any person can assist a registered patient with “using” or “administering” marijuana, but those terms are limited to conduct involving the actual ingestion of marijuana.
5. The affirmative defense in Section 8 of the Michigan Medical Marihuana Act applies only to protection from criminal prosecutions involving marijuana.
Accordingly, the Michigan Supreme Court held that the patient-to-patient transfers that occurred at CA (whether they would be considered “sales” or not) are not permitted by the Michigan Medical Marihuana Act, and thus those activities at CA are considered an illegal public nuisance and must be stopped.
Medical marijuana activists are, naturally, upset about this landmark decision by the Michigan Supreme Court. Their primary concern rests with the fact that this decision essentially shuts down many Michigan pot dispensaries. This is because many dispensaries ran on the patient-to-patient transfer model. Now, patients only have two legal options. First, if they have legally appointed a caregiver, they may obtain marijuana from the registered caregiver. Second, they may grow it themselves, however growing marijuana is an extremely difficult and expensive process and for those who are ill or unknowledgeable about how to grow marijuana, this is likely not an option.
Under the law, each caregiver can only have up to five patients. This is why dispensaries will now struggle. To continue to serve the number of patients they had been serving, dispensaries will need to find many caregivers to grow the medicine and then provide it to their up to five patients. The costs and overhead of running such an operation will likely place many dispensaries out of business.
The Michigan Supreme Court is the court of last resort in Michigan on matters affecting state law. Therefore, the defendants may not appeal this case any further. For those who dislike the Michigan Supreme Court’s interpretation of the Michigan Medical Marihuana Act, they can either wait for the court to change its mind in the far-away future, or they can contact their state legislator. The legislative branch is the one that writes the laws, and the judicial branch interprets the law. For the law itself to change, it is the Michigan House and Michigan Senate that will have to vote for a change in the law.
In the meantime, local police and prosecutors will likely be using the Michigan Supreme Court’s opinion in the McQueen case to arrest and prosecute patients who transfer to other patients. It will be up to defense lawyers to find a way to argue that their clients still have protection from prosecution under the medical marijuana law.
Stephanie M. Service is a criminal defense attorney at the law firm of The Kronzek Firm PLC. She is knowledgeable about Michigan’s firearms laws, including restoration of gun rights. She practices criminal defense throughout Michigan.