On May 11, 2011, the Delaware Senate voted on legislation that would decriminalize possession, use, and distribution of medical marihuana.  The strict bill regulates everything from the quality of marihuana to how it is transported i.e. tamperproof containers.  Further, unlike citizens in other states, Delaware citizens who receive a doctor's recommendation to use medical marihuana will not be able to grow in their own home.  Instead, qualified patients will only be able to receive medical marihuana through state-licensed dispensaries.  Delaware's Department of Health and Social Services will be charged with issuing one dispensary license per county, to a not-for-profit organization.  The bill also establishes a state-supervised safety compliance center that will test medical marihuana grown at dispensaries.  In addition, Delaware's bill not only requires a "bona fide physician-patient relationship" for a doctor to recommend medical marihuana, it also requires the patient to have exhausted other medical remedies before being recommended.  The intent is to limit access to medical marihuana to patients who have serious debilitating conditions.  The bill does not allow patients suffering from glaucoma, crohn's, or early stages of hepatitis C to obtain medical marihuana.  A more lenient provision of the bill allows patients to purchase a generous 6 ounces of medical marihuana each month.  For more information, read the following article. 

     The City of Lansing is in the process of drafting an ordinance to regulate medical marihuana dispensaries.  The current version of the proposed ordinance requires dispensaries to move to industrially zoned areas.  The proposal does not allow already existing dispensaries to stay in their current locations if they are not located in an industrial area.  This affects 37 out of the 41 dispensaries located in the City.  If these 37 dispensaries can establish themselves as lawful pre-existing nonconforming uses, they may be entitled to invoke protections against such a re-location requirement.   More information can be found here.

     On May 9, 2011, the American Civil Liberties Union (ACLU) called on U.S. Attorney General Eric Holder to make clear that the Department of Justice will not prosecute people who comply with state medical marihuana laws.  Concerned about recent letters that threaten state employees and state licensed providers of medical marihuana, the ACLU is seeking clear guidance that state laws will be respected.  According to the ACLU's letter, the Department of Justice's attempt to dissuade states from enacting and implementing medical marijuana laws is an abuse of its role as an impartial prosecutor and undermines the legislative process of various sovereign states.  The ACLU's letter may be viewed here.

     To date, the Department of Justice has sent five other states similar guidance letters.  Within the last month, Arizona, Rhode Island, Colorado, Hawaii, and Montana all received clarification of the Department's position on medical marihuana.  More recently, New Jersey sent a letter to the Department asking to clarify its position on state employee liability.  The Department has not responded yet. 

     All five states received the letters in response to either their proposed or adopted plans to license large-scale medical marihuana dispensaries.  With the exception of the Rhode Island letter, the Department of Justice wrote the letters because the states inquired about their rights.  The United States Attorney in Rhode Island wrote the state without request. 

     The federal letters all share similar language.  The letters remind state officials that marihuana is a schedule I substance and that enforcement of the Controlled Substances Act remains a core priority.  The letters distinguish enforcement priority between seriously ill individuals and large-scale commercial marihuana cultivations and distribution operations, emphasis on the latter. 

     The bigger issue is whether state officials or employees who are charged with implementing these licensing regulations are subject to liability under the Controlled Substances Act.  So far, the Washington letter is the only letter that specifically says state employees are not protected.  Other letters use broad language, a liberal interpretation of which could encompass state employees.

     For example, the Colorado letter says that it is well settled that a State cannot authorize violations of federal law and the Department is considering prosecuting those who "set up" marihuana growing facilities and dispensaries.  United States Attorneys from Arizona, Rhode Island, and California are committed to prosecuting those who "knowingly facilitate" the conduct of the dispensary owners.  The Hawaii letter says penalties will be enforced against those who seek to create marihuana distribution centers pursuant to the state licensing bill.  Conduct of the state employees charged with implementing the licensing regulations could be encompassed within the Department's broad definitions of liability.  Therefore, many of the states decided to put licensing on hold.  The Governor of Washington went so far as to veto the state's licensing legislation.  Feel free to view the Arizona, California, Colorado, Hawaii, Montana, Rhode Island, and Washington letters. 

Ever since California enacted the first medical marihuana law in the early 1990's, the interplay between the Federal Controlled Substances Act and state medical marihuana statutes have caused local governments and state agencies quite a headache.

     Many interpreted a 2009 letter from Assistant United States Attorney - Ogden - reporting that the federal government would not allocate its resources to prosecuting patients and distributors who are in "clear and unambiguous compliance" with state medical marihuana laws as the Obama administration's silent bow to state rights.  The consensus was that the political climate was shifting towards accepting medical marihuana as a therapeutic rather than a Schedule I controlled substance. 

     Fast forward two years later.  Federal raids and complaints against medical marihuana dispensaries are on the rise.  The recent nationwide crackdown is evidenced by the Department of Justice's response to a request to clarify rights regarding a proposed zoning ordinance in Oakland California.  The ordinance called for the licensure of industry-sized marihuana grow centers.  The Department responded by warning the City of Oakland that any commercial operation was a violation of federal law.  After the responsive letter was released, California's U.S. Attorney announced that if the City passed the law, it was likely that the city council and other local officers ordaining and enforcing the ordinance would face penalty.

     One month after the California show down, the Governor of Washington requested similar guidance from the U.S. Attorney General.  Specifically, the Governor wanted to know the Department's position in light of the Ogden and California letters.  The Governor further inquired whether state employees charged with inspecting and auditing licensed dispensaries would be immune from federal prosecution. 

     In a swift and pointed response, U.S. Attorneys from both the Eastern and Western Districts of Washington wrote that the proposed legislation is contrary to federal law, the department could pursue both civil and criminal penalty against dispensaries, and state employees who conducted activities mandated by the legislative proposals would not be immune from liability under the Controlled Substances Act.

     It seems the federal government has limited and further defined the scope of the Ogden letter.  Deference to use may only be given to individuals who do not manufacture or distribute medical marihuana.  Federal law enforcement agencies are not as concerned with seriously ill individuals who use medical marihuana in compliance with state law.  Rather, the federal government made it a point that its "limited resources" are more effectively spent enforcing the Controlled Substances Act against large-scale grow operations. 

     Whether state employees charged with implementing state licensing schemes are subject to liability may be in conflict with Section 885(d) of the Controlled Substances Act.  The Section states that no civil or criminal liability shall be imposed on any officer of any State who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.  For more information, please read the following California and Washington articles.

     Last week, Eric VanDussen was denied access to videotape court proceedings in the upcoming case of People v Anderson.  The Michigan Supreme Court reviewed the denial, remanded the issue, and required an explanation of why the "fair administration of justice" excluded Mr. VanDussen.  In a brief response, the Court of Appeals explained that because Mr. VanDussen supplemented his initial request with information showing that he is engaged in news gathering, he fits into the "media" category as defined by Administrative Order 1989-1 and will be able to film the proceedings. 

     A seminar aimed at helping medical marihuana patients was cancelled after Highland Township threatened the scheduled speaker with a land-use violation.  Rather than subjecting the patrons to potential police action, the owner of the seminar location decided to forego holding the meeting.  This presents an interesting conflict between an individual's right to assemble and speak on private property and a municipality's application of its zoning ordinance.  The Township's decision was based on its moratorium banning facilities or activities related to the growth, sale, or dispensation of marihuana.  More information can be found in the following article.

     Eric VanDussen is working on a documentary showing how different law-enforcement officials, prosecutors, and courts are enforcing the Michigan Medical Marihuana Act (MMMA).  Paramount to the success of the documentary is Mr. VanDussen's ability to videotape court proceedings.  Recently, the Michigan Court of Appeals denied Mr. VanDussen's request to videotape, People v Anderson, a criminal case that is likely to have an impact on the MMMA.  Citing Administrative Order 1989-1, the Court of Appeals did not believe the fair administration of justice required the videotaping.  Mr. VanDussen has asked the Michigan Supreme Court to review the denial.

     On March 24, 2011, the Alpena County Circuit Court determined that "The Health Center," a medical marihuana facility that served 60 clients, acted outside the "medical use" exception provided in the Michigan Medical Marihuana Act (MMMA) when it provided a location for qualified patients to sell medical marihuana to other qualified patients. 

     In interpreting what constitutes a "medical use," the Circuit Court found dispositive the fact that the MMMA specifically mentions caregiver-to-patient sales of medical marihuana.  It says that "a registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana."  The receipt of such compensation "shall not constitute the sale of controlled substances."  Therefore, the Court concluded that the drafters of the MMMA considered the issue of medical marihuana sales and chose not to include patient-to-patient in the definition.  It found patient-to-patient sales did not constitute the "medical use" of marihuana and "The Health Center," to the extent that it is engaged in prohibited sales, is a public nuisance.  This opinion is at odds with a case out of Isabella County currently awaiting appeal, State v McQueen, which held patient-to-patient sales fell within the MMMA.

     On March 28, 2011, the Office of the Attorney General announced that it filed two amicus briefs in support of Oakland and Isabella County Prosecutors.  The two cases involved are State v McQueen and People v Redden. 

     In McQueen, the Isabella County Prosecutor challenged the legality of a for-profit medical marihuana dispensary.  Schuette's brief urges the Michigan Court of Appeals to hear the case and argues operating the dispensary violates the Michigan Medical Marihuana Act (MMMA) for three reasons: 1) the MMMA does not allow the sale of medical marihuana for profit; 2) the MMMA does not provide for patient-to-patient transfers of medical marihuana; and 3) the dispensary owners are in possession of an amount of medical marihuana in excess of the legal limit provided under the MMMA.  Therefore, Schuette argues that because the dispensary violates state law, it should be declared a public nuisance and closed to protect public health and safety.

     In Redden, the Oakland County Prosecutor asked the Michigan Supreme Court to review whether unregistered users of medical marihuana are entitled to assert a defense under the MMMA.  Schuette argues that only qualified patients and caregivers registered with the Michigan Department of Community Health are protected by the MMMA.  For more information please read the following press release.