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Court of Appeals Upholds Award of Attorney Fees for Board of Review under Michigan Drain Code

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Friday, 20 April 2012 20:38

The Kent County Drain Commissioner sought to make improvements to the Waters Drain and to apportion the cost of such improvements to property owners located in the Waters Drain Special Assessment District pursuant to the Michigan Drain Code. Plaintiffs owned land within the special assessment district. As permitted by Section 155 of the Drain Code (MCL 280.155), plaintiffs appealed the apportionment to the probate court. The probate court appointed a three-member board of review. The Hubbard Law Firm represented the Drain Commissioner, and argued before the board of review that the Drain Commissioner's apportionment should be upheld. After hearing, the board of review rejected plaintiffs' challenge and upheld the Drain Commissioner's apportionment. The probate court ordered plaintiffs to pay $6,659.97 for the Drain Commissioner's attorney fees.

This case concerned a provision of the Drain Code that contains broad language giving the probate court discretion to determine the "whole costs and expenses" of the appellate proceeding.

Plaintiffs appealed the ruling, arguing that the "whole costs and expenses" language of Section 158 of the Drain Code MCL 280.158 does not encompass attorney fees. While the statute does not explicitly reference attorney fees, it does provide that an "appellant shall pay the whole costs and expenses of such appeal." The Court of Appeals, in a published opinion, accepted The Hubbard Law Firm's argument, and held that the use of the expansive term "whole" in MCL 280.158 reveals the Legislature's intent that a landowner appealing an apportionment must pay the entire or total amount of costs and expenses of the appeal. The Drain Commissioner's legal expenses in defending such an appeal would constitute a portion of the entire or total expenses of an appeal. In light of the Legislature's use of the broad term "whole" to modify the phrase "costs and expenses," the Court of Appeals concluded that the phrase "whole costs and expenses" of MCL 280.158 encompasses attorney fees.

View the Opinion.

For more information about this Opinion, or the Michigan Drain Code in general, contact Attorneys Andria Ditschman ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) or Michael Woodworth ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ).


House Judiciary Committee Starts Hearings on Proposed Medical Marihuana Bills

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Tuesday, 06 March 2012 19:34

On March 1, 2012, the House Judiciary Committee and lawmakers heard comments from key groups on the state of the Medical Marijuana Act, but particularly on the four bills that are in front of the Committee.  The Key groups included associations of patients, compassion clubs, the American Civil Liberties Union, the Michigan State Medical Society and Michigan State Police.  The roster was assembled Wednesday, February 29, 2012, by the office of state Senator John Walsh, R-Livonia, chairman of the committee.

The four bills (HB 4834, 4851, 4853 and 4856) are being considered simultaneously, as a package, and collectively contain nine different proposed changes to Michigan law. The bills would amend various acts related to medical marihuana to:

  • require a patient registry identification card to contain a photo ID;
  • require registry identification cards to be valid for two years;
  • require LARA to privatize portions of the application process for a registry ID card;
  • revise confidentiality provisions to apply to private vendors;
  • define "bona fide physician-patient relationship" to include an in-person, physical examination of the patient, and revise other definitions, such as "enclosed, locked facility" and "written certification";
  • place the penalty for selling marihuana in violation of registry identification card restrictions within the sentencing guidelines; and,
  • regulate the transportation of medical marihuana in a motor vehicle and prescribe penalties for a violation.

The focus of the second hearing scheduled for March 8 will be on the individuals who want to address the legislative body.  Thursday's hearing is in Lansing, 10 a.m.-noon in Room 519 of the House Office Building (124 N. Capitol Ave.) Individuals interested in attending can call the office of state Rep. John Walsh -- 517-373-3920; or send an e-mail to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .


Back to Basics: Michigan's Medical Marihuana Activists Gearing Up to Gather Signatures

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Monday, 16 January 2012 22:12

Michigan's Medical Marihuana Act is a citizen initiated law which was approved by 63% of the voters in 2008.  Now in 2012, after a year of frustrations, supporters are gearing up to hit the streets (and now the internet) to gather enough signatures to bring a new citizen initiated law proposal to the people.  Recently approved language of the constitutional amendment aims to end the marihuana prohibition as we know it.  The proponents of the initiative have to gather over 322,000 qualifying signatures before July to put the proposal on the ballot in the general elections this November.  To be approved, it has to get more votes in support of the amendment than those against it.

The proposed amendment reads:

"For persons who are at least 21 years of age who are not incarcerated, marihuana acquisition, cultivation, manufacture, sale, delivery, transfer, transportation, possession, ingestion, presence in or on the body, religious, medical, industrial, agricultural, commercial or personal use, or possession or use of paraphernalia shall not be prohibited, abridged or penalized in any manner, nor subject to civil forfeiture; provided that no person shall be permitted to operate an aircraft, motor vehicle, motorboat, ORV, snowmobile, train, or other heavy or dangerous equipment or machinery while impaired by marihuana."

With over 129,000 registered medical marihuana users in the state, the required number of petitions may not be a difficult goal for the proponents of the bill to attain.  However, whether or not the voters will have the same acceptance for free recreational use compared to the 2008 support for limited medical use will remain to be answered on November 6, 2012.


Medical Marihuana Act Gets its Day at Michigan Supreme Court

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Tuesday, 10 January 2012 18:41

On January 12, 2012, the Michigan Supreme Court will hear arguments on two of the most cited cases in Michigan's young, but busy, medical marihuana history.

In People v Kolanek, the Supreme Court will rule on whether or not a defendant can assert a Section 8 affirmative defense without first obtaining a valid registry identification card, and the timing of a qualifying physician certification with relation to the arrest.  (Section 8 of the Michigan Medical Marihuana Act provides an affirmative defense for patients who, although they do not have a registry identification card, meet certain criteria for the medical use of marihuana.)

The Supreme Court will also hear the infamous "dog kennel" case: People v King.  In People v King, the Court will determine the definition for the term "enclosed, locked facility" as well as the interplay between different sections of the Michigan Medical Marihuana Act.

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