Medical marijuana law is beset with legal problems

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PHOTO COURTESY OF RESCHEDULECANNABIS.COM

by Cynthia Price
Legal News

It is likely that most of the 63% of Michigan voters who approved medical marijuana in the 2008 elections had no idea how difficult making it work would be.

The law, which became effective before rules were even promulgated, has raised issue after issue, and that situation is playing out in West Michigan.

The Michigan Medical Marihuana Act, which uses a variation on the spelling of “marijuana,” is Initiated Law Number 1 of 2008, and was effective Dec. 4, 2008.

The Michigan Department of Community Health (MDCH) was designated as the agency to oversee its administration, and MDCH promulgated rules which were approved in April 2009. The department created the Michigan Medical Marihuana Program, with a web site of www.michigan.gov/mdch/0,1607,7-132-27417_51869---,00.html.

The summary of the act reads:

“AN INITIATION of Legislation to allow under state law the medical use of marihuana; to provide protections for the medical use of marihuana; to provide for a system of registry identification cards for qualifying patients and primary caregivers; to impose a fee for registry application and renewal; to provide for the promulgation of rules; to provide for the administration of this act; to provide for enforcement of this act; to provide for affirmative defenses; and to provide for penalties for violations of this act.”

Many feel that in fleshing out the voters’ wishes, the framers of the law left out some important details. For example, there is no mention made of medical marijuana dispensaries. This has led some local governments to assume they are legal — for example, Forest Township in Genessee County has allowed several — and some to assume they are not.

Municipalities, in fact, count themselves as some of the most baffled entities in the process.

Nonetheless, a  February poll conducted by Marketing Resource Group, Inc., out of Lansing, indicated that 59% of voters asked would still support approving medical marijuana use, and only 35% would definitely not, with 2% leaning toward approval and 2% leaning against.

Said Karen O’Keefe of the Marijuana Policy Project, which helped draft the law and made the announcement about the results, “This poll proves that a strong majority of Michigan voters stand firmly behind the compassionate medical marijuana law they enacted two years ago.”

The way this plays out has led to a number of interesting legal cases, but perhaps garnering the most national attention has been the case of Joseph Casias v. Walmart Stores, Inc. and Troy Estill (who was the store manager at the time of the actions).

Casias is a certified, card-carrying medical marijuana patient who is suffering from an inoperable brain tumor. He was apparently an exemplary employee at the Walmart Store in Battle Creek, but when the Medical Marihuana Act passed and he found out smoking the substance gave him relief, he began to use it regularly — but, he claims, never at work.

When he sustained an injury in late 2009, he underwent a drug test which showed positive for marijuana use. In accordance with company policy, Walmart terminated him, and he sued for wrongful discharge.

Judge Robert Jonker of the U.S. District Court Western District of Michigan decided against Casias. The primary reason was that, as one of the headings in his opinion stated, “The Michigan Medical Marihuana Act does not regulate employment.”

Although U.S. Attorney General has declared that the Department of Justice will not pursue marijuana use as illegal in states which have approved its medical use, there have not been tests of how this applies to company-employee relationships. In fact, in an update presentation given to the Prosecuting Attorneys Association of Michigan, an employee of the MDCH Medical Marihuana Registry Program stated, “There is no language in the Act that protects anyone from being terminated from their job for the medical use of marihuana.” 

Kalamazoo attorney Daniel Grow has joined the American Civil Liberties Union (ACLU) defense team on the case, and has submitted an appeal on the decision. Grow’s reading of the law indicates that “affirmative protection” of the medical marijuana user is mandated.

Grow says that, despite the common assumption, drug testing can make the distinction between a person who has active marijuana ingredients in their system and is therefore “high” on the job and someone who has smoked the substance within the past several days, leaving an inactive cannabis residue. He says that in the past there has been no real need for such a distinction, or at least the lack of it has not been challenged, but now with the spread of medical marijuana laws, such is necessary.

Grow says that, despite the broad acceptance of marijuana for medical uses by the general public, law enforcement and many municipal officials have not changed their attitudes. He is currently representing clients who, despite the clear wording in the law, have had their allowed number of plants (which is 12) confiscated and destroyed.

The ACLU has also joined the legal team on another controversial local case.

The City of Wyoming voted to ban medical marijuana, based on the assumption that the law’s vague wording leaves it open for abuse.

Retired lawyer John TerBeek of Wyoming sued the city. He believe that the municipality has no right to supersede state law with its ordinances.

TerBeek is a medical marijuana patient himself, and he says, noting the highly addictive substances often prescribed for pain such as his, “That’s why I prefer marijuana — I like to keep away from addictive medications.”

TerBeek pointed to the same type of unbudging attitudes on the part of some who have jurisdiction over the act, but he concludes, “We’ll have to let the courts resolve it.”
Local attorney Mike Nelson has taken over the case, working with the national office of the ACLU.

With 58,125 patient registrations issued by the MDCH (even though the department is running behind in processing applications), it seems that local units of government are going to have to keep grappling with the situation.

Matt Bach, communications director of the Michigan Municipal League (MML), said that organization has not taken a position on the law, but offers educational programs on the subject to its members, the cities and towns of Michigan.

MML’s web site has a page which links to municipal ordinances passed, including that of Grand Rapids, which can be found at www.mml.org/resources/information/mi-med-marihuana.html.
That pages also includes a link to a report MML and the Michigan Townships authorized, “A Local Government View of the MMMA” by Gerald A. Fisher, a consultant who also teaches at Thomas M. Cooley Law School Auburn Hills campus.
 

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