Feb 092013
 February 9, 2013

Michigan v McQueen and Taylor medical marijuana dispensaryBy Rick Thompson, The Compassion Chronicles

A groundbreaking decision has been reached by the Michigan Supreme Court in a historic case that could end medical marijuana dispensaries in Michigan. In a ruling one Justice calls “inconsistent with the purpose of the MMA,” the Court directly contradicts an appellate ruling from only a week ago.

In the case of Michigan v McQueen and Taylor, the Supreme Court (MSC) considered the legality of operations of a dispensary (Compassionate Apothecary) from Mount Pleasant. In their published Opinion the Court held that a lower court, the Michigan Court of Appeals (COA), was wrong in 2011 when they determined that the legal term ‘transfer’ did not include sales or selling marijuana. Transfer of marijuana between a caregiver and his patient(s) is a protected action under the Michigan Medical Marijuana Act. From the attached Syllabus:

Because a transfer is any mode of disposing of or parting with an asset or an interest in an asset, including the payment of money, the word “transfer,” as part of the statutory definition of “medical use,” also includes sales. The Court of Appeals erred by concluding that a sale of marijuana was not a medical use.

The Court upheld the COA’s opinions on the legality of other transfers, however. The MSC determined that caregivers are not allowed to transfer to persons other than their five patients, and patients are not allowed to charge each other for any cannabis they exchange. The Court held that the 2011 COA reached the correct result because the Act does not permit a registered qualifying patient to transfer marijuana to another registered qualifying patient for medical use- even if there is no sale involved.

Section 4 does not authorize a registered qualifying patient to transfer marijuana to another registered qualifying patient… Thus, Section 4 does not offer immunity to a registered primary caregiver who transfers marijuana to anyone other than a registered qualifying patient to whom the caregiver is connected through the state’s registration process.

The MSC determined that because the activities taking place at the Compassionate Apothecary were not in compliance with the MMA the business could be declared a nuisance and be shut down through normal procedures by the Isabella County Prosecutor’s Office. This ruling may incite the other 83 Michigan prosecutors to take similar action against distribution centers operating within their borders- even if those centers are legally operating under a city license.

For Michigan’s medical marijuana dispensaries it is a scene they have seen before. Michigan saw a wave of dispensary closures after the COA opinion in MCQueen was released in 2011; more than 100 are still open and operating in 2013.”It is a narrow reading of the MMMA that will make safe access to marijuana for many patients much less safe,” said John Targowski, attorney from the Kalamazoo firm of Targowski and Grow.

In response, the Michigan Attorney General issued a press statement. “Dispensaries will have to close their doors. Sales or transfers between patients or between caregivers and patients other than their own are not permitted under the Medical Marijuana Act.”

The AG vowed to “send a letter to Michigan’s 83 county prosecutors explaining that the ruling clearly empowers them to close dispensaries and include instructions on how to file similar nuisance actions to close dispensaries in their own counties,” per the statement.

The MSC decision is baffling for several reasons. The timing is odd, considering one Supreme Court Justice recently retired and plead guilty to federal crimes (Hathaway) and her replacement has been named but did not participate in the ruling. “Who knew the Supreme Court was going to decided McQueen in February?” said Cannabis Counsel attorney Matthew Abel of Detroit. Abel is in California to speak at a conference.

The Opinion directly overrules an opinion from the Court of Appeals less than a week prior. In the case of People v Green, the COA stated that registered patients can legally transfer between themselves without compensation. The MSC held that, because the person giving the cannabis is note any medical benefit from the transfer, these no-cost transfers are illegal. “This ruling completely reverses Green,” confirms Birmingham attorney Michael Komorn of Komorn Law.

In a dissenting opinion, MSC Justice Cavanagh held a more broad interpretation of the Act and would have protected the legality of certain patient to patient transfers. Cavanagh wrote:

“Furthermore, the majority’s view is inconsistent with the purpose of the MMMA—to promote the “health and welfare of [Michigan] citizens”—because qualified patients who are in need of marijuana for medical use, yet do not have the ability to either cultivate marijuana or find a trustworthy primary caregiver, are, for all practical purposes, deprived of an additional route to obtain marijuana for that use—another qualified patient’s transfer. MCL 333.26422(c).”

In reaching their decision the MSC interpreted the word “the”, as included in Section 4, to mean both patients engaged in the transfer of marijuana must receive benefit from the exchange. From Cavanagh’s dissenting opinion:

The majority reasons that the reference to “the” qualified patient requires the conclusion that only the recipient of marijuana is entitled to Section 4 immunity for a patient-to-patient transfer of marijuana because only the transferee’s medical condition may be alleviated as a result of the transfer.

He goes on to point out the inconsistency of the MSC’s decision. “The majority’s singular reliance on the reference in Section 4(d)(2) to “the” qualifying patient ignores the fact that Section 4(a) and the introductory language of Section 4(d) refer to “a” qualifying patient.” Many experts argue that the term is plural, not singular, indicating exchanges could legally take place between anyone already licensed by the state to possess and transfer marijuana.

Reaction to the pronouncement has been mixed. Some distribution centers and farmer’s markets across the state have announced closures, while cannabis specialist attorneys are calling for a more calm and careful consideration of the Opinion.

Komorn sees this ruling as an opportunity for local communities to protect the will of the voters. “I think that each community should look at their own situation and then decide how to proceed,” he said. “It is a new opportunity to revisit what each local community needs. If they want to they could provide licenses now, and all that activity could be approved on a county-wide basis.”

Read the Attorney General’s press statement HERE.

AG response to McQueen ruling

Read the entire text of the Supreme Court ruling, with a summary, HERE.

143824 McQueen Opinion from MSC with Syllabus

Source: The Compassion Chronicles

About Johnny Green

Johnny Green is a marijuana activist from Oregon. He has a Bachelor's Degree in Public Policy. Follow Johnny Green on Facebook and Twitter. Also, feel free to email any concerns.
  • McNuggett

    People of Michigan take control of this issue and learn to grow your own. If you can grow a tomato you can grow marijuana. Learn about NPK the 3 main elements needed to grow any plant.Use organic compost teas containing worm castings and bat guano. Compost teas can be brewed in 5 gallon buckets for vey little money.

    • Rick Thompson

      McNugget (great name) tons of people are already growing in Michigan, we have a robust caregiver community and hydro stores are popping up like Starbucks did in the 90′s. We have the knowledge, but federal housing doesn’t allow cultivation. Our Attorney General decided that landlords can evict someone for legally growing medicine. There are soooo many ways that cultivation can get you in trouble in Michigan, it just isn’t an acceptable option for many people. Sad thing is, the need for medical grade cannabis hasn’t diminished but the cartel schwag bastards will be polluting the bodies of the sick.

  • alfred e newman

    just because something legally possible to defeat something doesn’t make it right ! now people will suffer and more arrests will be made. how’s Bill Shuette golng to explan that ? i know he doesnt care but WE do Bill

  • http://www.facebook.com/macm25 Corey Miller

    Regardless of how easy it is to grow patients need a place to acquire medicine safely. Caregiver Collectives could be the option. It will take some organizing and extra money but totally worth it in the end.

  • http://www.facebook.com/timothy.rice.9279 Timothy Rice

    if I’m not mistaken the Chesterfield case the chief of police stated it would be legal…for caregiver to patient. transfer in the parking lot of the police department…. would be legal…

    We know where Gov. Snyder lives….

    are patients need a safe place to get there . Medicine what what safer place than the governor’s driveway???

    The press would have a field day….

    • Rick Thompson

      TJ, you know it! I remember a church group protested outside Snyder’s house in 2012. Maybe, if there was no consumption and transfers were all between legally connected patients and caregivers, this could work out… hmmmmm………

  • http://twitter.com/Pot_College Cannabis College

    man, that shit is crazy

  • HughJaiss

    This is purely and simply about the money. Eventually a patient will go to a Michigan dispensary a State Trooper will open the door for them. Another will make sure “the papers are in order” another will measure out the medicine and another will ring up the sale and take the CASH!!! MMMP cards (now $100 for 2 years) will be $300 a year or more. The governor wants to add 13¢ to the gasoline tax to put more troopers to work. For public safety??? Nice spin!!! Grower overages?? Forgeddabout it!! MSU will grow it!! Go Moo U. Hydro stores? Good luck!!

  • http://www.facebook.com/copyrightlawyer John Di Giacomo

    Mr. Green, to be clear, the attorneys that handled both this case and the Green case in the Court of Appeals are Matt Newburg and Eric Misterovich of the Lansing-based Newburg Law. They have been consistently fighting the AG on this front. I recommend that you contact them directly for any future articles, as the attorneys cited here were not involved in any of the cases cited above.

    • Rick Thompson

      Mr. Di Giacomo, I am the author of this piece, Rick Thompson. Matt Newburg is a friend of mine. I was in the Supreme Court when this case was argued. If I had wanted his comments in the article I would have included them. As it is, there were three lawyers with whom I had conversation and I felt that this was sufficient. I have found that, when lawyers lose a case, they tend to comment in a way that is not objective and objectivity is what I was looking for. In follow-up articles I may call Mr. Newburg for his opinion, or I may not. Thanks for your journalistic suggestion.

  • http://www.facebook.com/MariahKaze Chris Christian

    Legalize it. I think we have to go through this “sorting out” process before “the government” finds it’s place in all of this – which is eventually No Place. Yes, grow your own – but it’s not quite like growing tomatoes :) Tomatoes don’t waft quite the same smell ….. LOL

    • moldy

      Yep. It’s time to shove legalization down their fucking throats just like CO. That would end this shit.

      • alfred e newman

        double thumbs up on that one Happy 420

  • esotericknowledge

    It’s funny that all this law jibber-jabber tries to mask: “I’m scared of a plant.” How about society just not listen to people who are scared of existence as God/Nature made it, maybe we should round them up and put them in padded rooms so they will stop harming society.

    • alfred e newman

      i would’nt go that far but i would light up in front of them just to piss them off

  • http://seanpratt.info Sean P. Pratt

    Does the satisfaction of helping another human being not count as compensation?

  • http://www.facebook.com/people/Greg-Chambers/1785399536 Greg Chambers

    History illiterates and Ignorant fanatics.

  • http://www.facebook.com/TheRevRob Robert Moran Jr

    “KEEP UP THE FIGHT YOU MICHIGANDERS!” & Don’t let “THE MAN” beat you all, Up there in Michigan, Stand Together & Stand Strong! and FIGHT TO KEEP THE RIGHTS THAT YOU’VE ALL FOUGHT SO HARD TO GET ALREADY! Because this decision “COULD AFFECT ALL OF US, EVERYWHERE!”

  • rock and roll brad

    A friend with weed is a friend indeed.

  • Paul Rimelspach

    As far as I surmise from reading the court decision, the judges use circular logic in that they say that patient to patient transactions are not considered a part of ‘access’. they then say that because of this ‘non-access’ the dispensaries are not granted immunity from ‘prosecutions’ – a word actually written and adopted into MI law. A mean-spirited stunt pulled in order to greedily capitalize on sales taxes???