THE BLOG
03/08/2013 10:39 pm ET Updated May 08, 2013

Supreme Court Ruling Puts Onus on Communities, Residents and Juries

Recently, the Michigan Supreme Court ruled on Compassionate Apothecary in Mount Pleasant (McQueen v. State of Michigan), sending many patients scrambling, fearing their access to medicinal marihuana will be severely restricted, with Michigan Attorney General Bill Schuette interpreting the decision as widespread authority to shut down all dispensaries.

While the decision could be viewed that way, the Supreme Court was much more pragmatic in its decision, essentially telling communities, "It's your choice." The ruling, issued earlier this month, allows prosecutors to shut down dispensaries as a public nuisance, but not as an illegal drug operation. The decision seems to lean toward taking a civil approach instead of filing criminal charges, allowing attorneys and county prosecutors to have a local option of how they want to address dispensaries.

What this means to dispensaries is that registered patients are still protected from arrest when acquiring cannabis, but the provider, or dispensary, is subject to arrest and prosecution, regardless of whether or not money is exchanged. The Court's opinion seems to suggest the voter-approved initiative should be decided by jurors on what is criminal and what is medical.

While it would be difficult for a city to say that a dispensary is now a nuisance when it has functioned for several years providing safe access to the community, at least one city, Flint, is intent on doing so.

In communities where dispensaries are working, what is the incentive to shut them down? Many have thrived and provide compassionate services to the sick, without incident and operating within municipal guidelines.

It is important to remember that Compassionate Apothecary was shut down not because of criminal charges or illegal sales, but deemed a public nuisance, and its owners were not and have not been charged with any crimes.

Essentially, the Supreme Court's ruling puts the decision on medical marijuana back where it belongs -- in the hands of the people. In dispensary cases, owners/operators now have the option of a jury trial, to let residents of the surrounding community decide whether or not to accept the business or view it as criminal behavior. Despite this, for dispensary operators who want to avoid liabilities, it is not advisable to stay open.

The wildcard in this ruling is whether and to what extent Michigan's law enforcement community will pursue closing dispensaries, and if they seek to shut down or criminally charge those facilities. Until this happens, dispensary operators who remain open should be prepared to defend themselves in nuisance or criminal cases.

As new legislation is discussed in Michigan relating to legalizing dispensaries, it is important to remember the intent of the MMMA -- to provide a safe, uninterrupted supply of medical marijuana to patients. While the dispensary model can be successful, and was in several Michigan communities, the safest advice would be to encourage patients and caregivers to return to the self-sustaining cottage industry model while seeing how the battle plays out in Lansing.