COA further limits medical-marijuana defense

A man who was growing marijuana before he obtained a doctor’s certification or a registry identification card under the Michigan Medical Marijuana Act cannot invoke the act’s affirmative defense, even though he was arrested after he obtained both the certification and registry card.

Brian Reed’s marijuana plants were spotted from a police aircraft. At the time, Reed lacked both the physician’s authorization and registry identification card. The card is a prerequisite to invoking the MMMA’s affirmative defense to avoid prosecution for certain marijuana offenses.

By the time Reed was arrested for manufacturing marijuana, he had all of the MMMA’s required documentation. He moved for dismissal, invoking the act’s affirmative defense. He appealed when the trial court denied his motion.

On appeal, Reed relied upon People v. Kolanek. Kolanek hadn’t obtained the act’s required documentation until after his arrest for possession of marijuana. In refusing to dismiss marijuana charges against Kolanek, the Michigan Court of Appeals ruled that “the relevant deadline for obtaining the physician’s statement required to establish the affirmative defense in MCL 333.26428 was the time of a defendant’s arrest.”

Reed argued his documentation was in place before he was arrested, so dismissal was required under Kolanek.

The Court of Appeals ruled against Reed and further limited the MMMA’s affirmative defense:

We now extend [Kolanek] and hold that, for the affirmative defense to apply, the physician’s statement must occur before the commission of the purported offense.

We further hold that defendant has no immunity under MCL 333.26424 because defendant did not possess a registry identification card at the time of the purported offense.

The case is People v. Reed.

Fired worker takes on Ford Motor Co.

The U.S. Equal Employment Opportunity Commission (EEOC) has filed suit against Ford Motor Co. Inc. for failing to provide a reasonable accommodation to a disabled worker at its Dearborn facility.

According to the EEOC, Ford refused to let employee Jane Harris participate in its liberal telecommuting program as a reasonable accommodation for her gastrointestinal condition, which she said had rendered her disabled. The EEOC claims that instead of accommodating the worker, Ford criticized her job performance, and placed her on a “performance enhancement plan.” She complained about being denied the accommodation, and a few months later, Ford fired her, which EEOC said is a violation of the ADA.

The EEOC said that it tried to reach a pre-litigation settlement. The agency is seeking back pay and compensatory damages for emotional distress, and punitive damages. The case is EEOC v. Ford Motor Company Inc., Case No. 2:11CV13742, and was filed in U.S. District Court for the Eastern District of Michigan.

COA turns down Kilpatrick appeal to keep book money

The Michigan Court of Appeals today denied former Detroit Mayor Kwame Kilpatrick’s appeal to keep profits from the publishing of his memoir, which have been ordered into an escrow account to pay $860,000 in restitution to the city of Detroit.

The court denied the appeal “for lack of merit in the grounds represented.”

Kilpatrick’s lawyer, Daniel P. Hajji, argued in his brief that Michigan’s “Son of Sam” law, which prohibits people convicted of crimes from profiting from publicity they garner as a result of those crimes, is an unconstitutional content-based restriction on speech.

Hajji said in an email to Michigan Lawyers Weekly that his client intends to appeal to Michigan Supreme Court. In the brief, Hajji stated that this is a case of first impression.

Isn’t it ironic? Children can’t sue under federal lead-paint law

For many years, lead was a key component of paint.

Pigments used to color paint contained lead. Lead is highly opaque, so a little paint could go a long way — think “one-coat” coverage. Lead is also a very durable material and almost impervious to water, so a dirty wall could be scrubbed clean without affecting the painted finish.

But no paint job, not even a lead-based paint job, lasts forever. It eventually it cracks and peels, producing lead dust. The process also produces chips, which apparently taste sweet.

Kids just love ‘em.

But lead is toxic. Over time, if you get enough of it in you, it attacks the nervous system, among other things. You begin to act as if your brain has turned to mush. Some historians say this explains the often-insane behavior of ancient Roman nobility, who swilled wine from goblets made of lead.

Recognizing all of this, Congress enacted the Residential Lead-Based Paint Hazard Reduction Act of 1992 (RLPHRA), 42 U.S.C. §§ 4851-4856. From Sixth Circuit Judge Richard Allen Griffin, writing in Roberts v. Hamer, et al.:

Congress enacted the RLPHRA based upon its findings that low-level lead poisoning, caused primarily by the ingestion of household dust containing lead from deteriorating or abraded lead-based paint, endangers the health and development of children living in as many as 3.8 million American homes. 42 U.S.C. § 4851.

The act requires property owners to disclose the potential presence of lead-based paint in residential structures and to provide information about how to guard against the paint’s dangers. If the disclosures aren’t made and the information is not provided, the act allows someone who buys a home or rents a residence, “the purchaser or the lessee” in the act’s words, to collect three times their provable damages.

Christina Roberts, whose two children were conceived and raised in an apartment, alleged that her landlords didn’t follow the act. She sued as next friend on behalf of her children, who, she alleged, were poisoned by lead paint in the apartment.

The federal district court dismissed the case.

Griffin agreed. Roberts’ children have no cause of action under the act, he said.

We consider … the text of the relevant provision. …

“Any person who knowingly violates the provisions of this section shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual. 42 U.S.C. § 4852d(b)(3).”

The language plainly and expressly limits private recovery to a “purchaser or lessee” of target housing, and no one else. … “Where a statute names the parties granted the right to invoke its provisions, such parties only may act.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6-7 (2000) … .

Because the language is plain — indeed, it could not be more so — we stop here and hold that children of a lessee may not sue a lessor for violations of the RLPHRA’s disclosure requirements.

We decline to expand the cause of action or to infer an implied one where Congress has expressly created one. …

Congress created a cause of action for purchasers and lessees, not those who happen to benefit from the sales and leases, yet are not, themselves, purchasers or lessees.

All is not lost, noted Griffin, citing Mason ex rel. Heiser v. Morrisette, 403 F.3d 28 (1st Cir. 2005), for the proposition that children can pursue causes of action under state and local lead-paint abatement laws.

No quibble here with Griffin’s analysis. The quibble is with Congress, which enacted a law out of concern for millions of children who are at-risk for lead poisoning but didn’t provide the children with a federal remedy.

Frederick Douglass said it best, “At a time like this, scorching irony, not convincing argument, is needed.”

Foster Care Review Board looking for a few good judges, attorneys

The Foster Care Review Board is seeking nominations for its annual Child Welfare Awards, which honor judges, lawyers, foster care workers, and foster parents for exemplary service to children in Michigan’s foster care system.

“The awards recognize those who protect, care for, and advocate for foster care children and their parents,” said James Novell, FCRB program manager. “These people have tremendous responsibilities, yet receive little, if any, recognition. The Child Welfare Awards were established to honor them and call attention to their difficult and demanding work.”

Categories include Jurist of the Year (judges and referees); Foster Care Worker of the Year, LGAL of the Year (lawyer guardians ad litem); Foster Parent of the Year; and Parent Attorney of the Year.

Deadline is Sept 15. Award recipients will be recognized at the Nov. 10 FCRB annual training conference. Nomination forms can be found at http://www.courts.michigan.gov/scao/services/fcrb/fcrb.htm.

The FCRB provides a third-party review of the foster care system, and is administered by the State Court Administrative Office.

COA: State workers’ mandatory health-care charge unconstitutional

A statute requiring public employees to contribute three percent of their pay to finance state retiree health-care benefits is unconstitutional, the Michigan Court of Appeals has ruled.

In AFSCME Council 25, et al. v. State Employees Retirement System, et al., the court upheld a lower court ruling that struck down MCL 38.35.

The state and unions representing state workers negotiated a three percent pay raise, which the state Civil Service Commission (CSC) approved.

The statute negated the raise by requiring state workers to contribute the amount of the raise to fund health care benefits for state retirees.

Court of Appeals Judge Karen M. Fort Hood, joined by Judges Jane M. Beckering and Cynthia Diane Stephens, ruled that the CSC has plenary authority over state workers’ pay.

Fort Hood explained that Michigan’s Constitution has an express mechanism to override the commission.

[A]n increase in the rate of compensation authorized by the commission may be rejected or reduced by the Legislature “by a two-thirds vote of the members elected to and serving in each house” provided the vote occurs within 60 calendar days of the transmitted increase. Mich Const 1963, art 11, § 5, ¶ 7.

The Legislature tried but failed to override the CSC in this manner, and then enacted the statute.

But, Fort Hood ruled, by enacting the statute:

the Legislature acted to reduce the compensation of classified civil servants by three percent without an accompanying agreement with the unions or the [commission].

NLRB requires employers to post worker rights notices

It doesn’t matter if you’re a union shop or not. Starting in mid-November, you will be required to post notice of worker rights to organize, and to be protected from abuses by labor unions.

The National Labor Relations board issued the final rule — following a 60-day comment period that drew some 7,000 responses — which requires most private employers to notify employees of their rights.

Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted, according to a press release from the NLRB. Also, employers who customarily post notices to employees regarding personnel rules or policies on an Internet or Intranet site will be required to post the board’s notice on those sites. Copies of the notice will be available from the agency’s regional offices, and it may also be downloaded from the NLRB website.

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

To see a list of frequently asked questions, click here.

Medical marijuana dispensaries close in wake of COA ruling

State of Michigan v. McQueen, the Michigan Court of Appeals ruling that yesterday declared patient-to-patient sales of marijuana at a Mt. Pleasant medical marijuana dispensary were a public nuisance, could have a far-reaching effect.

The Lansing State Journal reports this morning that many of Lansing’s medical marijuana dispensaries were closed yesterday in the wake of the COA’s ruling.

And from The Detroit Free Press:

Rick Thompson, editor-in-chief of Michigan Medical Marijuana Magazine, said the ruling effectively shuts down the state’s 400 to 500 dispensaries, which allow sales in a safe place between people who trust one another, rather than on the streets between strangers.

“Other than a place like this, people would have to go back into neighborhoods,” he said Wednesday at his office in Big Daddy’s Management Group in Oak Park. Big Daddy’s serves about 3,500 certified patients in five locations, including about 100 low-income patients who pay nothing to Big Daddy’s for their marijuana.

Meanwhile, Michigan Attorney General Bill Schuette praised the ruling in a press release and said he’ll coach Michigan’s 83 prosecutors on how to use the ruling to shut down dispensaries:

“This ruling is a huge victory for public safety and Michigan communities struggling with an invasion of pot shops near their schools, homes and churches,” said Schuette.

“Today the Court echoed the concerns of law enforcement, clarifying that this law is narrowly focused to help the seriously ill, not the creation of a marijuana free-for-all.”

Schuette will send a letter to Michigan’s 83 county prosecutors explaining that the ruling clearly empowers them to close dispensaries and provide instructions on how to file similar nuisance actions to close dispensaries in their own counties.

Stand by for an appeal.

COA: Medical marijuana ‘sales’ enjoined

The Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., does not permit patient-to-patient marijuana “sales,” and a medical marijuana dispensary that facilitated such sales should have been enjoined as a public nuisance, according to the Michigan Court of Appeals in State of Michigan v. McQueen, et al.

The operators of Compassionate Apothecary (CA), an Isabella County medical marijuana dispensary, rented locker space to MMMA-registered caregivers and patients to store their excess marijuana. Other registered patients were given the opportunity to buy the stored marijuana. CA took a percentage of the sales.

This worked out great for CA and the individuals renting locker space. In the first 10 weeks of operation, 19 pounds of marijuana were sold. The individuals renting the lockers made more than $76,000. CA grossed $21,000.

All of this is illegal, said COA Judge Joel Hoekstra, and the trial court should have put a stop to it.

[T]he trial court made two findings of fact that were critical to its determination that defendants operated CA in accordance with the MMMA.

First, it found that even though defendants, in their operation of CA, owned the lockers that CA rents to its members, it was the members who rent the lockers, and not defendants, that possess the marihuana stored in the lockers.

Second, it found that defendants did not own, purchase, or sell the marihuana stored in the lockers but merely “facilitated its transfer from patients to patients.”

Reviewing these two findings under the proper definitions for “possessing” and “selling,” we are left with a definite and firm conviction that the trial court made mistakes.

Mistake number one: given that “possession” involves exercising “dominion and control” when it comes to controlled substances, CA exercised both.

When a member comes to CA to purchase marihuana, the member, under the supervision of a CA employee, inspects samples of the available strains of marihuana, and after the member selects a strain of marihuana to purchase, the CA employee retrieves the marihuana from the respective locker, weighs and packages the marihuana, and provides it to the member in exchange for monetary payment.

Under these circumstances, defendants, in their operation of CA, exercise dominion and control over the marihuana.

Mistake number two: CA may have not owned the marijuana that patients were purchasing, but CA was certainly brokering the sales.

[CA] collect[s] the purchase price. After a 20 percent service fee is deducted for CA, the remainder of the purchase money is given to the CA member who supplied the marihuana.

Without defendants’ involvement, there would be no sales. Under these circumstances, defendants are not just “facilitating” the transfers of marihuana between CA members, but they are full participants in the selling of marihuana.

Because CA possesses and sells marijuana, Hoekstra said this must be done in accordance with the MMMA to be entitled to immunity from prosecution. But:

While the MMMA indicates that a qualifying patient may obtain marihuana from his or her primary caregiver, see MCL 333.26424(b)(1), the MMMA does not state how a primary caregiver or a qualifying patient, if the patient does not have a primary caregiver, is to obtain marihuana.

Specifically, in regard to this case, the MMMA does not authorize marihuana dispensaries. In addition, the MMMA does not expressly state that patients may sell their marihuana to other patients.

Defendants, therefore, are left with inferring the authority to operate a dispensary from various provisions of the MMMA.

Hoekstra ruled that no such authority can be inferred from the MMMA.

The question becomes whether the “medical use” of marihuana permits the ““sale” of marihuana.

We hold that it does not because the “sale” of marihuana is not the equivalent to the “delivery” or “transfer” of marihuana. The “delivery” or “transfer” of marihuana is only one component of the “sale” of marihuana — the “sale” of marihuana consists of the “delivery” or “transfer” plus the receipt of compensation.

The “medical use” of marihuana, as defined by the MMMA, allows for the “delivery” and “transfer” of marihuana, but not the “sale” of marihuana. MCL 333.26423(e). We may not ignore, or view as inadvertent, the omission of the term “sale” from the definition of the “medical use” of marihuana. …

Therefore, the “medical use” of marihuana does not include the “sale” of marihuana, i.e., the conveyance of marihuana for a price.

Breakfast, lunch and leniency

A study released earlier this year by the National Academy of Sciences suggests a link between full judicial bellies and lenient treatment of prisoners seeking parole.

“Extraneous factors in judicial decisions” analyzed more than 1,100 decisions by an Israeli parole board and concluded that prisoners had a much better chance — 65% — of being granted parole first thing in the morning and right after lunch.

Woe unto those whose cases were heard just before the lunch break and just before quitting time: favorable parole decisions dropped to near zero.

The New York Times digested the study last week. Thanks to the SBM Blog for putting the article on today’s menu.