Judge says medical-marijuana law needs help O'Connell's 30-page opinion calls law complex maze

By Ed White

Associated Press Writer

DETROIT (AP) -- A Michigan appeals court judge sounded an alarm this week over the state's medical-marijuana law, issuing an extraordinary 30-page opinion that called the law a complex maze and urged state officials to set clear rules.

Judge Peter O'Connell was part of a three-judge panel that affirmed a decision by a lower court to reinstate drug charges against two people in Oakland County who were caught with marijuana plants last year. A doctor had said they would benefit from medical marijuana, but they didn't get a state card until it became available a month later.

O'Connell went a step further in the ruling, issuing a separate concurring opinion that referred to a Harry Potter book and quoted poet Robert Frost and William Shakespeare. He warned that marijuana users "who proceed without due caution" could "lose both their property and their liberty" if they run afoul of the state's fledgling law, approved by voters in 2008.

He said prosecutors, defense lawyers and police were at times scratching their heads over how to follow it. O'Connell said Michigan's law clashed with federal law and other state laws, and lacked clear authority for doctors, people who want to use marijuana and businesses that want to dispense it.

"Our legislative and administrative officials must make a choice: They can either clarify the law with legislative refinements and a comprehensive set of administrative rules, or they can do nothing," the judge wrote. "In this situation, no decision is, in fact, a decision to do nothing."

Voters approved the use of marijuana to ease debilitating conditions such as cancer, HIV, glaucoma and other illnesses. The law also allows people to grow marijuana for patients approved to use it.

The judge noted that patients or their caregivers may grow marijuana, but there isn't a provision for the legal purchase of marijuana seeds or plants.

"Another oddity is that the act allows a patient to possess 2.5 ounces of marijuana and 12 plants," the judge wrote. "What is the legal consequence if the plants are all harvested at the same time and they happen to produce more than 2.5 ounces?"

O'Connell also pointed out that 18-year-old high school students possibly could use medical marijuana, yet the law states that marijuana can't be possessed at schools.

The judge said reading the law was like participating in the Triwizard Tournament in J.K. Rowling's "Harry Potter and the Goblet of Fire."

"The maze that is this statute is so complex that the final result will only be known once the Supreme Court has had an opportunity to review and remove the haze from this act," said O'Connell, a former prosecutor and trial judge who was first elected to the appeals court in 1994.

"The judge had a lot of things to say about medical marijuana. I don't necessarily agree with the conclusions he's reached," said Robert Mullen, the attorney for the two people caught with marijuana plants.

Berrien County Prosecutor Arthur Cotter said the judge's opinion was a "great service," but it would take another vote by Michigan residents or approval by 75 percent of the Legislature to make changes.

"There are a lot of flaws," Cotter said. "It was passed by public initiative. There wasn't any legislative debate. Some provisions are very ambiguous."

Published: Fri, Sep 17, 2010