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.

MAJ, MDTC announce 2011 Respected Advocate Award recipients

Two workers’ comp attorneys — Muskegon-based Thomas J. Evans and Flint-based Paul Lazar — have been announced as recipients of the 2011 Respected Advocate Award.

Every year, the Michigan Association for Justice and Michigan Defense Trial Counsel recognize someone from the opposing side with the award, “in recognition of their superb skills as courtroom adversaries, whose civility and decorum distinguishes them as outstanding advocates on behalf of their clients.”

Criteria for consideration is a “history of success in civil litigation matters, unfailing adherence to the highest standards of ethics and candor in dealing with the court and with counsel, and the respect and admiration of counsel on the opposing side of the bar.”

Evans is president at Evans Portenga, P.C., and, besides plaintiff’s side workers’ comp, also specializes in personal injury and Social Security disability.

Lazar is a principal at Hanba & Lazar, P.C., specializing in defense side workers’ comp and business-related law.

The 2011 Respected Advocate Awards will be presented at the State Bar of Michigan awards banquet on Wednesday, Sept. 14, as part of the annual SBM meeting.

Add to FacebookAdd to DiggAdd to Del.icio.usAdd to StumbleuponAdd to RedditAdd to BlinklistAdd to TwitterAdd to TechnoratiAdd to Yahoo BuzzAdd to Newsvine

In their opinions …

“My effort is in the direction of simplicity.” once wrote the namesake of the Henry Ford Hospital. Henry Ford, My Life and Work 13 (Garden City Publ’g Co. 1922). Mr. Ford apparently had nothing to do with the creation of the Medicare program.

— Sixth Circuit Judge Jeffrey S. Sutton, in Henry Ford Health System v. Department of Health and Human Services.

The case required Sutton to reconcile a provision of the Patient Protection and Affordable Care Act of 2010 with a regulation promulgated under it.

At issue was whether Henry Ford Hospital, a teaching hospital, was entitled to Medicare reimbursement for the time residents spend doing “pure research.”

The act requires the “Secretary of Health and Human Services to reimburse teaching hospitals for ‘all the time spent by an intern or resident …. in non-patient care activities … as such time and activities are defined by the Secretary.'”

One of the Secretary’s regulations “exclud[es] from hospitals’ Medicare reimbursements the time residents spent conducting pure research.”

Sutton concluded there was a clear delegation of authority from Congress to the Secretary to define “non-patient activities.” He also ruled the Secretary’s exclusion of “pure research” from those activities did not exceed Congress’ delegation of authority.

This is a pure financial headache for Henry Ford Hospital. The ruling affects the hospital’s Medicare reimbursements for Fiscal Years 1991–96 and 1998–99.

Gov. asks MSC to take up emergency manager law

Gov. Rick Snyder has asked the Michigan Supreme Court to take up a challenge of the state’s new Emergency Manager Law, which was enacted earlier this year.

A class of 28 Michigan residents are suing the state and the governor in Ingham County Circuit Court, claiming that the Act is unconstitutional.

Because there are “several Michigan communities and the Detroit Public Schools” that already have emergency managers in place, the governor asked the Michigan Supreme court to certify the law’s constitutionality, rather than wait for the case to work its way through the lower courts. The governor said in a memo to Chief Justice Robert P. Young and the Court that decisions made by the emergency managers “may well depend on the Act’s constitutionality,” according to the memo. “Without a bypass, this lawsuit may take years to reach finality, regardless of the substantive disposition of this case [Brown et al. v Richard D. Snyder, Governor and Andrew Dillon, Treasurer] …”

MCR 7.305(A) provides for the bypass.

HB 4651: Judges would review most foreclosures

Hot on the heels of yesterday’s State Court Administrative Office recommendation to cut 49 trial and appellate judgeships comes news of legislation that would require judicial review of most foreclosures on residential properties.

The Lansing State Journal reports that HB 4651

introduced in May by [Rep. Jim] Ananich, a Flint Democrat, and seven other Democratic state representatives, would require a judge to review all foreclosures on owner-occupied residential properties.

Ananich and Ingham County Register of Deeds Curtis Hertel Jr. are touting the legislation. Said Hertel, as quoted by The LSJ:

We need something to make sure banks play by the rules in these foreclosures and also put in an incentive to give people reasonable modifications.

He acknowledged that the bill, if enacted, would bring additional pressure to the court system.