Letter of the law Report designed to assist local governments with provisions of the Medical Marihuana Act

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By Tom Kirvan
Legal News

The 63-page report was prepared by attorney Gerald Fisher, a professor of law at Cooley Law School in Auburn Hills, at the request of the MML and the MTA. Fisher is an expert on municipal and zoning law in Michigan, and has served as a special counsel for various governmental entities throughout the state during a distinguished 38-year career in the legal profession.

“The passage of the act in 2008 has posed various challenges for local governmental units over the past two years, particularly as it applies to the protection of important public interests,” Fisher said. “Municipalities have been responding to provisions of the statue in various ways, depending on their location, population size, and history of drug enforcement.”

Which is principally why Fisher was retained by the MML and the MTA, to help make some legal sense of a state statute that purports to run afoul of current federal law.

“This law has created considerable uncertainty among everyone in terms of implementation,” said William Mathewson, general counsel for MML. “This white paper is a valuable resource for local governments and attorneys in assisting their communities to find, if not the best answer, at least a direction to take with respect to implementation of the act.”

According to a press release prepared by the MML, the Medical Marihuana Act went into effect on December 4, 2008, a month after Michigan voters overwhelmingly approved a “legislative initiative to permit the use and cultivation of marihuana for specified medical conditions.” The Michigan Department of Community Health is charged with administering the act, while municipalities have faced a challenge in defining their role, according to MML and MTA officials.  The act allows certain individuals to obtain, possess, cultivate/grow, use and distribute marijuana, but ensuring critical plumbing and electrical inspections on cultivation facilities, and the question of how marijuana will be dispensed, are not clarified in the law. Nor does it specify how patients and caregivers would initially acquire marijuana for medical purposes.

Fisher was first contacted by MML and MTA officials in June and began work in earnest on the report in late July after attending a meeting in Ypsilanti, where many of the “stakeholders” expressed their views on the act.

“Over the course of the following months I tried to talk to as many people as possible, from all sides of the issue, to solicit their input,” Fisher said. “In just the case of the MTA, there are more than 1,200 townships that they represent in the state, with population varying widely, some in the U.P. with 250 residents, to others in southern Michigan that have upward of 100,000 residents. Their resources are correspondingly far different when it comes to responding to this act.”

The act, according to the report prepared by Fisher, allows a “qualifying patient” to obtain a certification from a physician and a “registry identification card” from the state, which will “authorize the patient to avoid prosecution and other penalty for cultivating” up to 12 marijuana plants for eventual consumption. The intended use of the drug is to help patients with a “debilitating medical condition” that causes “severe and chronic pain,” Fisher indicated.

The statute also allows a “primary caregiver” to cultivate and distribute marijuana to no more than five patients. Fisher noted in his report that “while the Department of Community Health maintains the name and address of both the caregiver and the patient on a confidential registry,” law enforcement officials are not privy to such information.

“Thus, it would seem fair to say that the fundamental purpose of the Act is the creation of a private and confidential patient-caregiver relationship to facilitate the lawful cultivation, distribution, and use of marihuana strictly for medical purposes,” Fisher wrote.

However the drug is spelled, the fact remains that the act runs into a serious roadblock when it comes to federal law, Fisher indicated.

“The long status quo in both Michigan and the United States is to classify marihuana as a Schedule 1 controlled substance, and to treat its cultivation, sale, and use as serious criminal offenses,” Fisher said. “The Act carves out from this long status quo an exception for purposes of Michigan law . . . However, there is no counterpart exception carved out from the laws of the United States.”

Fisher noted that “there is a sentiment by many in the state that assistance should be provided to those truly suffering, and for this purpose a defined medical use exception should be made to the general policy that activities involving marihuana use are to be treated as criminal acts.” However, it also should be recognized that this exception “creates a parallel system in which the same conduct is deemed both lawful and unlawful depending on whether the engaged persons have ID cards,” Fisher wrote in the October 5 report.

Making the distinction places a heavy burden on law enforcement officials, Fisher stated, especially when police investigators are denied access to the “identity and locations of those authorized to lawfully engage” in marijuana cultivation and distribution. It also places police at unnecessary risk, he said.

“The experience of law enforcement indicates that the presence of significant quantities of unlawful controlled substances is often accompanied by large quantities of cash, and by weapons used to protect the controlled substances and cash,” Fisher said. “Thus, confrontations between law enforcement and persons engaged in unlawful drug enterprises can be extremely dangerous, and there is a need to use the element of surprise in order to protect the lives of officers and members of the public.”

Correspondingly, Fisher pointed to the experience in California, where the state approved the medical use of marijuana more than a decade ago. A “White Paper” presented by California law enforcement authorities in 2009 indicated that “concentrations of marihuana distribution activity” have led nearby to a dramatic increase in robberies, burglaries, and aggravated assaults. The dispensaries or “pot clubs” are often used as a front by organized crime gangs to traffic in drugs and launder money, Fisher said of one of the findings in the White Paper.

Other ripple effects from the operation of distribution outlets, according to the California White Paper, include “street dealers lurking about dispensaries to offer a lower price” to patrons; marijuana smoking in public and in front of children in the vicinity of dispensaries; an increase in robberies and burglaries at or near dispensaries; a “loss of trade for other commercial businesses located near dispensaries.”

Michigan’s statute, by virtue of its “provisions and omissions,” also opens the door to “potential serious adverse influence of children,” in addition to “uninspected installations of plumbing and electrical facilities that may create dangerous health, safety, and fire conditions,” Fisher wrote. Thus, he said, the act’s “regulatory gray areas” undoubtedly “signal the need for local regulations to establish clarity and stability.”

Fisher predicts that by early to mid-2011 many communities will have local regulations in place, setting the stage for countless court battles in the months and years ahead.

“Some proponents of the Act will resist regulatory interference, and litigation will undoubtedly ensue, and thus widespread litigation appears to be in the making,” he said. “In addition, as a result of criminal prosecutions anticipated to rise due to the confusion within the statute, the liberty of many is likely to be jeopardized. We could be in for a long slog.”

The prospect of the Michigan Legislature plugging holes in the act is slim unless all the stakeholders “make a good faith effort to pursue lasting negotiated solutions” to the statute’s shortcomings, Fisher said. Since the act was passed by ballot initiative, the Michigan Constitution requires that any amendment or repeal be approved by “three-fourths of the members” of each house of the legislature, he indicated.

Absent any action by the Michigan Legislature, the act could be challenged on constitutional grounds, Fisher noted.

“One or more local governments may wish to consider the institution of a federal declaratory judgment action to determine the validity of the Act under the Supremacy Clause of the United States Constitution,” Fisher said, particularly if the argument was framed that the statute creates “significant health, safety, and quality of life problems not fully curable by local regulation.”

As part of his report, Fisher offered a sample “licensing and regulation ordinance” for municipalities to consider adopting. The 12-page document may be an effective interim measure until a long-term solution is approved by the state Legislature.

“It is unfortunate indeed that, in the current economic climate, significant time and resources will be devoted to emotional court battles that have a low probability of producing a comprehensive and lasting solution, and that many unsuspecting criminal defendants will have been caught in the statute’s web of uncertainty,” Fisher said. “This state of affairs provides a sound basis for the pursuit of negotiated solutions to the gathering legal conflicts.”

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