On September 21, 2011, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) joined other Federal offices speaking on matters related to medical marihuana.  The Bureau's memo came in response to numerous inquiries from gun dealers.  It stated that guns or ammunition cannot be sold to registered users of medical marihuana.

"There are no exceptions in federal law for marihuana purportedly used for medicinal purposes, even if such use is sanctioned by state law," said the letter by Arthur Herbert, ATF's assistant director for enforcement programs and services.

Federal firearm licensees, or FFLs, can't sell a gun to someone who answers "yes" on a required form that asks whether the buyer is a controlled substance user.  In its memo, ATF takes the position that there are no exceptions in federal law for medical marihuana users even if the use is sanctioned by state law. But, the restrictions do not end with whether an express declaration has been made on an application or not.  According to the letter signed by Arthur Herbert, licensed dealers can't sell a gun or ammunition if they have "reasonable cause to believe" the buyer is using a controlled substance.  That includes if the buyer presents a medical marihuana card as identification, or talks about drug use, having a medical marihuana card or a recent drug conviction, ATF spokesman Drew Wade said Wednesday.

The ATF memo can be reached through this link: ATF Memo 092111 .

On September 20, the Michigan Court of Appeals issued an opinion regarding the calculation of pension benefits in the case of Macomb Co v AFSCME Council 25 Locals 411 & 893 (Docket No. 296416, for publication), affirming the Michigan Employment Relations Commission's (MERC) ruling in favor of the unions.

Macomb County has an Employees Retirement System Ordinance, which provides pension benefits for employees who are members of the system. Under the ordinance, an independent retirement commission decides (among other things) which mortality tables are used to calculate pension benefits. Since 1982, the County had used mortality rates of 100% female/0% male to calculate joint and survivor pension benefits. However, in 2006, the County's retirement commission adopted a new mortality table with rates of 60% female/40% male, resulting in lowering of monthly retirement benefits for those under the joint and survivor pension. The employees (charging parties) demanded bargaining over this change. The County rejected the demand, and the charging parties filed Unfair Labor Practice charges with MERC, asserting violation of the Public Employee Relations Act (PERA).

MERC ruled that, under PERA, the County has a duty to bargain over the method by which the joint and survivor pension benefits are determined, and that the 24-year practice of using the 100% female mortality table constituted a tacit agreement that the practice would continue where a key term in the ordinance ("actuarially equivalent") was undefined and ambiguous. MERC found that this unilateral change in the mortality table used to calculate benefits constituted an Unfair Labor Practice under PERA.

The County appealed MERC's decision to the Michigan Court of Appeals, arguing that it had no duty to bargain over which mortality table is used because actuarial assumptions are the sole responsibility of the independent retirement commission established by the ordinance. The Court of Appeals, in a 2-1 decision, rejected that argument, and agreed with MERC that the County "violated [its] duty to bargain when, without bargaining, they changed the method used to calculate joint and survivor pension benefits under the parties' collective bargaining agreement."

Judge Markey dissents, and would hold that, under the County's ordinance, mortality tables and actuarial assumptions are not a mandatory subject of bargaining under PERA but, even if they are, these matters are covered by the collective bargaining agreement already in place.

The County has 42 days from the date of the opinion to seek leave to appeal from the Michigan Supreme Court.

For more information about collective bargaining agreements and PERA, please contact Andria Ditschman at (517) 886-7139 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; or Michael Woodworth at (517) 886-7119 ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ).

The Michigan Court of Appeals issued a published opinion on the matter of People v Bylsma on Tuesday, September 27, 2011.  According to the opinion, a registered primary caregiver can only grow or tend plants for those registered qualifying patients that are connected to the caregiver through the registry system.

The Court denied the immunity and affirmative defense privileges to the Defendant, who was a registered primary caregiver for two registered qualifying patients.  Defendant owned or operated a locked facility with 88 plants, some of which belonged to other caregivers or patients.  These caregivers and patients testified that the Defendant was assisting them in the growth process as they were novice.  It was claimed that the plants were identifiable by tags and particular strands as to which one belonged to whom.  Court's opinion was based on the finding and analysis that the Michigan's Medical Marijuana Act did not authorize possession of the plants by more than one person, and that person could either be the patient or the caregiver he was connected through the registry.

This recent opinion by the Court of Appeals is likely to add to the list of opinions that have deeply affected both the medical marijuana users and the industry that have flourished around it.

The opinion can be found at People of Michigan v Bylsma.