The Isabella County Case is epic. It is a perfect storm that will resolve some of the most controversial issues created by the Michigan Medical Marijuana Act (2008); patient-to-patient transfers, for-profit medical marijuana clubs (dispensaries), as well as a the right to assemble. This new “friend of the court” (amicus curiae) brief submitted by Attorney Matthew Newburg to the Michigan State Court of Appeals, will silencethe A.G. Bill Schuette’s discrimination and lay his legal arguments to rest.
We, as in the “Royal WE,” have been waiting for what seems an eternity for some closure to the legal controversy that surrounds the Michigan Medical Marijuana Act since its passing. Adding insult to injury, Bill Schuette, the anti-medical marijuana leader who had been defeated with the passing of our bill, now darkens the Attorney General’s desk, and has been eager to use that power not to uphold the laws of the state of Michigan, but to destroy a program directly passed by its citizens. Well folks, that time is now! The final battle between light and dark side shall collide in the State of Michigan v. McQueen. On December 16, 2010, Larry Burdick, Isabella’s Prosecutor was unable to convince the court that the actions of the Apothecary Compassion owners Brandon McQueen and Matthew Taylor were in anyway unlawful; the nuisance charges dropped, and the case closed. One would think the Compassion Apothecary would be allowed to return to their lives unabated.
Instead Burdick, with the support of AG Schuette, took the case to the Michigan Court of Appeals to seek a retrial. Schuette, then submitted an amicus curiae to carry his personal vendetta against the program in the higher courts. In his brief, Schuette cleverly rehashed Burdick's original contention citing that the MMMA did not allow for-profit clubs, but only payment for caregiver expenses. Then through a skewed reading of the act’s caregiver system, patients are not to transfer between one another, and that the club owners “exceeded established limits for qualified patients and caregivers.” With this brief, Schuette hopes to reverse the lower courts previous ruling. Then the “journey towards the dark side [would] be complete.”
In plain language, a patient-topatient transfer could be anything from one patient passing a doob to another patient, to an actual transfer of medication for compensation. The amount the club was allowed to have on the premises largely depended on the interpretation of the MMMA’s caregiver system. And lastly, the club owners, in an attempt to run a viable business, charged caregivers 20% commission for vending space; akin to a farmers’ market scenario.
Fortunately, on May 11, Matthew Newburg, Amicus Attorney representing the Michigan Association Compassion Centers (MACC), filed amicus curiae on behalf of the club owners. In the brief, Newburg squarely put Schuette and Burdick against the ropes with logical haymakers and legal jabs citing statutory ignorance and misuse of power. However, Newburg’s elegance is not found in the assertions of Schuette’s clouded actions, but in the bulldog style used to convey the rights of the medical marijuana patients and caregivers. His address focused, among a myriad of other issues, on patient-to-patient transfers, as well as the “sale” of marijuana in the state.
Unlike the actual rules set forth by the MMMA (2008) or the administrative rules of 2009, Newburg addresses Patients and caregivers separately, and using the act itself coupled with current law regarding agent-principle relationships, creates a legal scaffolding to address incongruencies. In the brief he argues that patient-to-patient transfers are legal because the control of “usable marijuana,” is actually the property of the patient. The caregiver is contractually charged with obtaining medication for their patient either through cultivation or using the caregiver system to relieve patient suffering. And the liberal language of the MMMA, gives credit to his claims. Ultimately, the relief of suffering is the main goal of the act and the primary caregiver of the patient. Patient’s that are bed-ridden or shutins are dependent on their caregiver to provide a service they cannot provide themselves. He argues that caregivers ought to be allowed to do their job within the confines of current MMMA regulations.
The most ingenious and advantageous of Newburg’s argument considers the “sale” of marijuana legal! Yes, you can check it out yourself. This does not mean we can all jump up and down quite yet. However, technically, while the “trafficking, manufacture, delivery, or possession” is still considered illegal, because the “sale” of marijuana had never been specifically addressed, there is no prosecution for those who are legally allowed to possess or transfer it. In other words, any patient or caregiver has the legal right to sell, not transfer their marijuana.
As Third Coast owner Jamie Lowell stated, “At stake is the ability for the patients to consistently get their medication as needed; at stake the ability for people to carry out this law and to fully realize its intent!” It is up to the Court of Appeals Judge to choose between the light or dark side of the legal force. Hopefully, the Michigan Court of Appeals Judge will choose wisely and stay the powerful hand of the people.
JC Trout
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