Supreme Court Drops Pot Bombshell

A groundbreaking decision has been reached by the Michigan Supreme Court in a historic case that could end medical marijuana dispensaries in Michigan. In a ruling one Justice calls "inconsistent with the purpose of the MMA," the Court directly contradicts an appellate ruling from only a week ago.

In the case of Michigan v McQueen and Taylor, the Supreme Court (MSC) considered the legality of operations of a dispensary (Compassionate Apothecary) from Mount Pleasant. In their published Opinion the Court held that a lower court, the Michigan Court of Appeals (COA), was wrong in 2011 when they determined that the legal term 'transfer' did not include sales or selling marijuana. Transfer of marijuana between a caregiver and his patient(s) is a protected action under the Michigan Medical Marijuana Act. From the attached Syllabus:

Because a transfer is any mode of disposing of or parting with an asset or an interest in an asset, including the payment of money, the word “transfer,” as part of the statutory definition of “medical use,” also includes sales. The Court of Appeals erred by concluding that a sale of marijuana was not a medical use.

The Court upheld the COA's opinions on the legality of other transfers, however. The MSC determined that caregivers are not allowed to transfer to persons other than their five patients, and patients are not allowed to charge each other for any cannabis they exchange. The Court held that the 2011 COA reached the correct result because the Act does not permit a registered qualifying patient to transfer marijuana to another registered qualifying patient for medical use- even if there is no sale involved.

Section 4 does not authorize a registered qualifying patient to transfer marijuana to another registered qualifying patient... Thus, Section 4 does not offer immunity to a registered primary caregiver who transfers marijuana to anyone other than a registered qualifying patient to whom the caregiver is connected through the state’s registration process.

The MSC determined that because the activities taking place at the Compassionate Apothecary were not in compliance with the MMA the business could be declared a nuisance and be shut down through normal procedures by the Isabella County Prosecutor's Office. This ruling may incite the other 83 Michigan prosecutors to take similar action against distribution centers operating within their borders- even if those centers are legally operating under a city license.

For Michigan's medical marijuana dispensaries it is a scene they have seen before. Michigan saw a wave of dispensary closures after the COA opinion in MCQueen was released in 2011; more than 100 are still open and operating in 2013."It is a narrow reading of the MMMA that will make safe access to marijuana for many patients much less safe," said John Targowski, attorney from the Kalamazoo firm of Targowski and Grow.

In response, the Michigan Attorney General issued a press statement. “Dispensaries will have to close their doors. Sales or transfers between patients or between caregivers and patients other than their own are not permitted under the Medical Marijuana Act.”

The AG vowed to "send a letter to Michigan’s 83 county prosecutors explaining that the ruling clearly empowers them to close dispensaries and include instructions on how to file similar nuisance actions to close dispensaries in their own counties," per the statement.

The MSC decision is baffling for several reasons. The timing is odd, considering one Supreme Court Justice recently retired and plead guilty to federal crimes (Hathaway) and her replacement has been named but did not participate in the ruling. "Who knew the Supreme Court was going to decided McQueen in February?" said Cannabis Counsel attorney Matthew Abel of Detroit. Abel is in California to speak at a conference.

The Opinion directly overrules an opinion from the Court of Appeals less than a week prior. In the case of People v Green, the COA stated that registered patients can legally transfer between themselves without compensation. The MSC held that, because the person giving the cannabis is note any medical benefit from the transfer, these no-cost transfers are illegal. "This ruling completely reverses Green," confirms Birmingham attorney Michael Komorn of Komorn Law.

In a dissenting opinion, MSC Justice Cavanagh held a more broad interpretation of the Act and would have protected the legality of certain patient to patient transfers. Cavanagh wrote:

"Furthermore, the majority’s view is inconsistent with the purpose of the MMMA—to promote the “health and welfare of [Michigan] citizens”—because qualified patients who are in need of marijuana for medical use, yet do not have the ability to either cultivate marijuana or find a trustworthy primary caregiver, are, for all practical purposes, deprived of an additional route to obtain marijuana for that use—another qualified patient’s transfer. MCL 333.26422(c)."

In reaching their decision the MSC interpreted the word "the", as included in Section 4, to mean both patients engaged in the transfer of marijuana must receive benefit from the exchange. From Cavanagh's dissenting opinion:

The majority reasons that the reference to “the” qualified patient requires the conclusion that only the recipient of marijuana is entitled to Section 4 immunity for a patient-to-patient transfer of marijuana because only the transferee’s medical condition may be alleviated as a result of the transfer.

He goes on to point out the inconsistency of the MSC's decision. "The majority’s singular reliance on the reference in Section 4(d)(2) to “the” qualifying patient ignores the fact that Section 4(a) and the introductory language of Section 4(d) refer to “a” qualifying patient." Many experts argue that the term is plural, not singular, indicating exchanges could legally take place between anyone already licensed by the state to possess and transfer marijuana.

Reaction to the pronouncement has been mixed. Some distribution centers and farmer's markets across the state have announced closures, while cannabis specialist attorneys are calling for a more calm and careful consideration of the Opinion.

Komorn sees this ruling as an opportunity for local communities to protect the will of the voters. "I think that each community should look at their own situation and then decide how to proceed," he said. "It is a new opportunity to revisit what each local community needs. If they want to they could provide licenses now, and all that activity could be approved on a county-wide basis."

Read the Attorney General's press statement HERE.

AG response to McQueen ruling

Read the entire text of the Supreme Court ruling, with a summary, HERE.

143824 McQueen Opinion from MSC with Syllabus