In November of 2008, Michigan voters, by an overwhelming 2 to 1 margin, legalized the medical use of cannabis. It was a decree and acknowledgement that marijuana is medicine and that the patients who use it, and those that assist them, should be protected from arrest, prosecution or any penalty. Almost four years into the program and despite promises of accountability, the cards protecting patients and caregivers from arrest take six months to arrive, no new conditions have been added to the registry such as post-traumatic stress disorder, and the privacy of the registry list of patients and caregivers is in jeopardy of being compromised. Unfortunately, the patients and caregivers who signed up for the state-run Medical Marijuana Program (MMP) are no safer than they were prior to 2008, when the 63 percent majority vote mandated change.
A few weeks ago, Michigan's Supreme Court agreed to hear an appeal of an Isabella County case, People v. Compassionate Apothecary, addressing the legality of the transfers of medical marijuana between registered, card-carrying patients when money is exchanged.
After the trial court in Isabella County found that these transfers were lawful and conformed with the voter's intent of the MMMA, the Michigan Court of Appeals reversed this decision, equating transfers and delivery to "sales," and from there decreed them illegal. This, despite a section in the act that states: "that compensation received for transferring medical marijuana, shall not constitute the sale of controlled substances."
The Appeals Court ruling underscores a troubling trend -- in similar cases, all have favored prosecutors and police -- reversing every trial Court decision that has ruled in favor of patients or caregivers and raising questions of the political ping pong game taking place in the Court of Appeals.
One thing that is very clear about the Act is that it never outlined any specific distribution system. Instead, the act uses a broad definition of assisting in "medical use," (Section 333.26424 4(b)) which permits transfers and delivery between patients and patients, and patients and caregivers. Even former Michigan Attorney General Mike Cox has previously stated that nothing in the Act prohibits medical marijuana dispensaries, yet they are raided and shut down continuously. The Medical Marijuana Community is still hopeful but not optimistic for a pro-patient ruling from the traditionally conservative Michigan Supreme Court.
One thing is for certain: the state of medical marijuana in Michigan is currently in flux, with patients and caregivers still unsure of what is and isn't acceptable. This confusion has struck fear and anxiety into patients and caregivers while law enforcement officials continue to operate with an arrest first, ask questions later mentality.
At the same time, Michigan legislators have attempted to provide their own "fixes" to the Act by introducing a series of Bills which have advanced out of the House Judiciary Committee. Despite the Judiciary Committee's desire to include the medical cannabis community in the process, many medical cannabis groups and organizations do not support the Bills, including the Michigan Medical Marijuana Association.
Many of the proposed changes would effectively create more laws or reasons to arrest patients and caregivers. One Bill (HB 4834) allows Law Enforcement access to the registry list after 135,000 patients were promised this would never happen. Another bill (HB 4856) criminalizes the transportation of medical marijuana. House Bill 4853 criminalizes patients' safe access for acquiring medicine and limits the protections set out in the initiative, by restricting sales to an "unauthorized person," who may also be a state-approved patient. House Bill 4851 unnecessarily attempts to redefine the bona fide doctor-patient relationship.
One thing that is certain from this Legislative exercise is that the State continues to address Michigan Medical Marijuana as a public safety issue rather than a public health issue. Another certainty is that in the next few months, legislators and judges will set important precedents for medical marijuana. Everyone with a stake in this debate, patients, caregivers and law enforcement alike, would be wise to follow the discussion closely to learn how it impacts them moving forward.
Attorney Michael Komorn has been a practicing criminal defense for 18 years, and for the last 4 has devoted his practice to representing the medical cannabis community. He is President and CEO of the Michigan Medical Marijuana Association.