The Michigan Court of Appeals has recently determined that the Michigan Medical Marihuana Act affirmative defenses were not applicable in a case where Ted Allen Anderson was charged with unlawfully manufacturing marihuana.  Anderson possessed 15 marihuana plants in a closet in the house and an additional 11 marihuana plants growing in a garden behind the garage.  Anderson claimed the marihuana was for medical use, and the amount he possessed was a reasonable amount.  After being charged with manufacturing marihuana in violation of MCL 333.7401(2)(d)(iii), Anderson filed a motion to dismiss; however, the trial court determined that Anderson failed to establish the elements of the defense under MCL 333.26428, since Anderson failed to present adequate testimony regarding the amount of marihuana that was reasonably necessary to maintain an uninterrupted supply for his treatment.  The Court of Appeals affirmed the trial court's decision.  See People of the State of Michigan v Ted Allen Anderson, No. 300641 (2011).

On June 8, seven Senators introduced a bill to amend the Michigan Medical Marihuana Act (MMMA).  The bill would amend Section 7 of the Act to provide that "nothing in this Act shall be constructed to create a private cause of action against this State or a political subdivision of the State."  In part, the language of the bill may be in response to the decision in Casias v Wal-Mart, Case No. 1:10-cv-0078, US District Court Western District of Michigan, Southern Division (2010).  In that case, the court opined "[t]he MMMA meant to provide some limited protection for medical marijuana [sic] users from state actions...[n]othing in the language or purpose of the MMMA indicates an intent of the Michigan voters to regulate privateemployment..." (Emphasis added).  After the court's decision, questions remain unanswered regarding the MMMA rights, if any, of persons employed by the State government or with local units of government, and whether the MMMA provides protections for medical marihuana users with respect to their employment.  This bill may also immunize government actors from liability should they be required to turn over records previously thought to be confidential.  See United States v Michigan Department of Community Health, Case No. 1:10-mc-109, US District Court Western District of Michigan (2011).  In addition, this bill may alleviate some of the fear local government entities face in retaliation for passing ordinances regulating the use of medical marihuana. 

On June 7, 2011, the Michigan Court of Appeals heard oral arguments on the matter of State v McQueen.  The Isabella County Prosecutor argued the Michigan Medical Marihuana Act (MMMA) only provides limited exceptions to engage in activity involving medical marihuana.  Specifically contemplated in the act is the caregiver/patient relationship whereby a qualifying caregiver may provide medical marihuana to his or her registered qualifying patients.  It was contended that by creating a system for patients to acquire marihuana from caregivers, the act impliedly prohibits patients from transferring medical marihuana amongst themselves or acquiring it from an unaffiliated dispensary.  Patient-to-patient transfers would eliminate the need for the caregiver/patient relationship, contrary to the intent of the MMMA.  Further, the prosecutor argued that because the MMMA does not mention patient-to-patient transfers of medical marihuana they are not allowed.

Next to argue was an attorney speaking on behalf of the Attorney General.  The Attorney General wanted the Court to declare that:

1)    Patient-to-patient transfers are not authorized;

2)    Transfers between caregivers and unaffiliated patients are prohibited;

3)    The possession limits provided in the MMMA should be strictly enforced;

4)    The MMMA does not authorize "Sales;" and

5)    The MMMA does not authorize commercial or for profit activity.

Afterward, McQueen's attorney began his argument by conceding that the only permitted uses of medical marihuana are those provided in the MMMA.  He went on to explain that because patients are entitled to the "medical use" of marihuana, the definition of which allows transfers, patients should be allowed to transfer medical marihuana to each other.  This interpretation of the MMMA would allow a caregiver or patient to assist other patients who they are not connected to through the registration process.

The panel went on to question McQueen's attorney about how much medical marihuana his clients possessed to ascertain whether his client might possess more than what is allowed under the MMMA.  Judge Hoekstra questioned whether McQueen was in constructive possession of the medical marihuana contained in the 27 lockers in his store.  This would tend to show McQueen possessed more than allowed.  However, because the issue was not briefed, McQueen's attorney respectfully refused to answer the question.

Although both counsels argued at length about whether patient-to-patient transfers of medical marihuana are allowed under the MMMA, the expected opinion may not specifically speak directly on this issue.  The Court may limit its opinion to whether the business model and activity performed in the Mount Pleasant dispensary constituted a nuisance and whether it was proper to deny the County's injunction.  An analysis of the Court's opinion will follow when made available.

On June 3, 2011, the U.S. District Court for the Western District of Michigan ordered the Department of Community Health to turn over its records concerning medical marihuana patients.  The Drug Enforcement Administration had subpoenaed the Department of Community Health ("DCH") for medical marihuana information, as part of an on-going investigation.  The DCH had previously refused to release information of medical marihuana users to federal investigators, citing patient confidentiality and claiming that its agents could become liable under the Michigan Medical Marihuana Act, which makes it a misdemeanor offense for the disclosure of confidential information.

On May 27, 2011, the State of Arizona brought a civil action against the United States and the Department of Justice.  The complaint alleged that the letter it received from Dennis Burke, the U.S. Attorney for the District of Arizona, was part of a coordinated effort on the part of the federal government to threaten prosecution of individuals including state employees who conduct lawful activities under a state's medical marihuana law.  Because the letter creates uncertainty as to whether state employees are subject to prosecution under the Controlled Substances Act (CSA), the complaint requests declaratory relief to clarify whether the Arizona Medical Marihuana Act (AMMA) provides a safe harbor from federal prosecution, or in the alternative, whether the AMMA is preempted by the CSA.

Certain employees and officers of the State of Arizona have a mandatory duty to implement and oversee the administration of the AMMA.  Failure to faithfully implement the AMMA exposes the State to liability.  However, according to the letter, compliance with the AMMA subjects the very same actors to liability under federal criminal statutes.  Therefore, the actors face the certain dilemma of choosing between complying with Arizona state law and risking serious federal prosecution.  The complaint also states that state employees cannot comply with both the federal requirements of reporting wrongdoing and with the AMMA's confidentiality requirements.  The complaint may be viewed here.

On May 24, 2011, advocacy groups filed suit in the U.S. Court of Appeals for the District of Columbia to compel the Obama Administration to respond to a 9 year-old petition to have marihuana rescheduled under the Controlled Substances Act.  Upset that it has taken the federal government 9 years to respond to the rescheduling petition, the writ of mandamus filed accuses the government of unreasonable delay in violation of the Administrative Procedures Act.  The groups argue further that marihuana is no longer a schedule one substance because its medical purpose is recognized by 16 states, has a lower abuse potential then other schedule one substances, and is safe for use under medical supervision.  If the Court of Appeals grants the relief sought, states with medical marihuana legislation could expedite the rescheduling process and eliminate potential future conflicts with the Controlled Substances Act.  For More information, please read the following article.

A medical marihuana caregiver filed suit in the U.S. District Court in Grand Rapids after police raided his home last year.  An attorney for the caregiver stated that despite the rights conferred on his client as a caregiver, the police refused to allow the caregiver to prove that he was licensed and seized both the his medical marihuana and equipment.  As a result of the "illegal" search and seizure, the caregiver was forced to shut down his medical marihuana store and his patients were deprived of their medicine.  The lawsuit alleges unlawful arrest and imprisonment, malicious prosecution, excessive force, and illegal search and seizure.  Read more here.

On May 18, 2011 three House of Representative members introduced a bill that would amend Section 4 of the Michigan Medical Marihuana Act, by limiting the location of a "locked facility" in which marihuana is cultivated, to be no closer than 500 feet from a church, school, or day care center.  In addition, the amendment identifies someone who cultivates marihuana in violation of the requirements of the Act, as being guilty of a felony punishable by imprisonment for not more than two years or a fine of not more than $2,000.00, or both, in addition to any other penalties applicable to the distribution of marihuana.

On March 8, 2011 Representative Callton introduced a bill that would ban marihuana clubs, or marihuana bars.  A similar bill (SB 017) was introduced by Senator Jones in the Senate.  In both bills, the term "marihuana bar" and "marihuana club" are defined as a place where people either pay a fee to become a member of an organization or pay a fee to enter an establishment, where persons could then use medical marihuana in a manner consistent with the Medical Marihuana Act.  A violation of both bills would result in a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.

On Thursday, May 12, 2011, eight Michigan Senators introduced a bill that would require the Department of Community Health to forward patient and caregiver information to the State Police within 48 hours after the issuance of a medical marihuana registry card.  The bill would require the information be transmitted in a format that allows immediate access to data necessary to determine whether an individual in custody for possession or distribution of marihuana is a qualifying patient or primary caregiver.  In addition, the Department of Community Health would be required to notify the Department of State Police, within 48 hours, if a registry identification card has been voided or is invalid.