MICHIGAN SUPREME COURT RULES THAT ALL MEDICAL MARIJUANA DISPENSARIES ARE ILLEGAL

Last week the Supreme Court released one of the most significant opinions to date on the Michigan Medical Marihuana Act (MMMA). In State of Michigan v. McQueen, the Court determined all medical marijuana dispensaries are illegal and may be enjoined as nuisances because such businesses facilitate patient-to-patient transfers of marijuana. The Attorney General of Michigan’s office responded to the ruling with a press release that stated AG Schuette will send a letter to the 83 county prosecutors explaining the ruling and instructing them on how to file nuisance actions and shut down dispensaries in their counties.

The prosecutor from Isabella County alleged that Compassionate Apothecary owned and operated by McQueen and Taylor did not comply with the MMMA and was contrary to the Public Health Code (MCL 333.1101 et seq.) making it a public nuisance. The court denied a request for a temporary restraining order and show cause order. After conducting a hearing, the court denied a preliminary injunction request and closed the case, citing the business was in compliance with the MMMA because patient-to-patient transfers were included in the definition of “medical use” of marijuana. The Court of Appeals reversed the Circuit Court’s decision and remanded for entry of judgment in favor of the prosecutor. The Court of Appeals concluded that the business could be enjoined as a public nuisance because of a violation of the Public Health Code which prohibits possession and delivery of marijuana. Additionally, the Court of Appeals elucidated that McQueen and Taylor engaged in the sale of marijuana and that the “medical use” of marijuana did not include patient-to-patient sales. The Supreme Court granted the defendants’ leave to appeal.

The Meaning of “Medical Use”

The Supreme Court looked at how the MMMA defined “medical use” to determine if a sale is encompassed within the definition. The definition contained the word “transfer” as one of the nine activities involved in “medical use.” So the Court consulted dictionaries to define “transfer.” The cited definition included the payment of money as a mode of transfer. The Court went on to state that no other provision of the MMMA limited the definition of “medical use” to exclude sales. Therefore, the Court held that “medical use” in § 3(e) of the MMMA includes the sale of marijuana to treat or alleviate a registered patient’s medical condition.

Eligibility for § 4 Immunity

The Court stated § 4(d) creates a presumption of medical use and illustrates how it may be rebutted. So the Court concluded that a rebutted presumption of medical use makes § 4 immunity inapplicable. In other words, § 4 creates a personal right and protection for a registered qualifying patient’s use. If the use is for some other purpose—including alleviating the pain of another registered patient—then the presumption has been rebutted. For a registered qualifying patient to be eligible for § 4 immunity, the activity must be to alleviate the patient’s own medical condition or related symptoms. For a registered primary caregiver to be eligible for § 4 immunity, the caregiver must be engaged in conduct that alleviates the medical condition or associated symptoms of a registered qualifying patient(s) that the caregiver is connected with through the Michigan Department of Community Health’s (MDCH) registration process. Therefore, § 4 does not provide immunity for patient-to-patient transfers or sales nor to caregivers who transfer or sell marijuana to any person other than the patients connected with through the MDCH.

Additionally, the Court stated the defendants were not aiding qualifying registered patients with using or administering marijuana. The defendants transferred and delivered marijuana by facilitating the patient-to-patient sales even though these activities were not protected under § 4(i). Although, the Court concluded any person under that section may help a registered qualifying patient with using or administering marijuana—limited to assisting with actual ingestion of marijuana.

Application of § 8 Affirmative Defense

Section 8 allows a patient and a patient’s primary caregiver to assert the medical purpose for using marijuana as a defense to any prosecution related to marijuana. However, the Court reiterated that § 8 applies to criminal prosecutions featuring marijuana and does not provide a basis that the defendants’ actions are in compliance with the MMMA. The Court stated that a dispensary’s business model totally relies on transactions that do not comport with the MMMA, and so the prosecutor is entitled to injunctive relief under MCL 600.3801. The Court then affirmed on alternative grounds.

If you need assistance with your MMMA case, the experienced attorneys at The Kronzek Firm PLC, are available to help you.