On February 10, 2011, the Michigan Court of Appeals released its unpublished opinion in People v Walburg (PDF). Here, the defendant, who was charged with the delivery and manufacture of marihuana, did not possess a medical marihuana registry identification card or a statement from a doctor regarding his medical need for marihuana at the time of arrest.  Despite those facts, the circuit court granted the defendant's motion to dismiss the charges pursuant to the Michigan Medical Marihuana Act's affirmative defense provision. The appellate court reversed the court below. 

While many issues surrounding the MMMA remain unresolved, the courts have recently provided guidance on the legal status of patients lacking a registry identification card or a doctor's recommendation. For example, in People v Redden, issued September 14, 2010, the Court held that possession of a registry identification card is not required to assert the affirmative defense.  Further, in People v Kolanek, issued January 11, 2011, the Court held that in order to assert the affirmative defense, an individual must receive a physician recommendation to use marihuana prior to his arrest and subsequent to the MMMA's effective date.

With Redden and Kolanek as guidance, the Court of Appeals reinstated the charges because the defendant failed to obtain a physician recommendation prior to his arrest.

On February 3, 2011, the Michigan Court of Appeals published a decision clarifying the definition of an "enclosed, locked facility" pursuant to the Michigan Medical Marihuana Act (MMMA).

In May 2009, and acting on an anonymous tip, local police observed marihuana plants growing in a dog kennel in defendant's backyard.  The 6 foot tall dog kennel was made of chain link fence, had an open top which was covered with black shrink wrap, and was not anchored to the ground.  Defendant also had multiple plants growing inside an unlocked closet in his home.

Defendant, a qualifying patient pursuant to the MMMA, was charged with two counts of manufacturing marihuana.  The trial court determined that defendant's dog kennel and house constituted enclosed, locked facilities and dismissed the charges pursuant to the affirmative defense available under Section 8 of the MMMA.

The MMMA defines "enclosed, locked facility" as a closet, room, or other enclosed area equipped with locks or other security devices that permits access only by a registered primary caregiver or registered qualifying patient. 

The Court of Appeals reversed the lower court ruling, finding that defendant's dog kennel did not satisfy the statutory definition of an enclosed, locked facility.  The court limited the definition to those "things of the same kind, class, character, or nature" as the specifically enumerated items, being a "closet" or "room."  In coming to its decision, the court found the dog kennel lacked the characteristics of a closet or room.

The court further held that the marihuana plants cultivated within a closet did not meet the statutory requirements because the closet, and the house as a whole, was not secured by locks.

In a dissenting opinion, Judge Fitzgerald opined that the dog kennel did fit the definition of an "enclosed, locked facility" because the fence was six feet high and by definition, a top is not required to enclose something.  Further, the kennel was locked, the plants were obscured from view, and the police officers were only able to gain access to the plants after the defendant retrieved a key from inside his home.  Additionally, Judge Fitzgerald noted that defendant's home was not required to have a lock because the MMMA contemplates the use of "other security devices" to secure marihuana plants.

With its moratorium set to expire on February 16, the City of East Lansing will hold a public hearing on February 15, 2011, to consider an ordinance that would regulate commercial medical marihuana operations.  The proposed ordinance would allow dispensaries in East Lansing's B-4 zoning district, an area comprised of professional office buildings, as a special use.  The proposed ordinance would not limit the number of dispensaries that may open or restrict the number of caregivers that may operate a dispensary.  The ordinance does provide that a dispensary may not be located within 1,000 feet of a school zone or 500 feet of another dispensary.  For more information on the East Lansing ordinance please read the following article.

On January 25, 2011, the City of Royal Oak passed an ordinance - aimed at preventing medical marihuana dispensaries and growing operations - that prohibited all enterprises contrary to federal law.  Reliance on federal law to prohibit the medical use of marihuana is nothing new and similar ordinances are being challenged by the ACLU and by individuals in Lyon Township; however, the Royal Oak ordinance is slightly different.

The Royal Oak ordinance makes two exceptions to the federal prohibition by permitting qualifying patients to possess and use marihuana in his or her home.   However, the ordinance does not provide an exception for the cultivation of marihuana. 

According to the Daily Tribune, the City Commission agreed to the regulations at 1:05 am, 5 ½ hours after the meeting started.  An attorney present at the meeting threatened litigation arising from the City's prohibition on the cultivation of medical marihuana as contrary to the Michigan Medical Marihuana Act.