The fight to legalize marijuana once and for all seems to have no visible end so far, even though Michigan voters have passed initiatives to legalize medicinal and now recreational marijuana at the ballot box.
Although marijuana is now completely legal in the State of Michigan, Michigan NORML and a group of citizens and non-government organizations led by this writer and including a physician, a pharmacist, a medical marijuana patient, and the Michigan Medical Marijuana Association have sued the Michigan Board of Pharmacy and its chairperson Nichole Cover seeking to declare the Board’s continued listing of marijuana as a controlled substance under state law null and void.
In the interests of accuracy I'm going to be quoting extensively in this column from the lawsuit itself and related filings. To wit: Under Michigan law, the Board of Pharmacy is charged with the duty to schedule, re-schedule, and de-schedule substances based upon their medical benefits, relative harm and potential for abuse.
Notwithstanding the passage of the Michigan Medical Marihuana Act and the Medical Marihuana Facilities Licensing Act, the Board continues to list marijuana as a Schedule I drug with no accepted medical benefits and high potential for abuse.
Thus, in spite of sweeping change, marijuana remains contraband in Michigan, subject to summary search and seizure
According to the lawsuit, in passing the Facilities Licensing Act the Legislature recognized the medical benefits of marijuana and displaced the listing of marijuana in the controlled substances act as Schedule I contraband.
It also displaced the requirement that marijuana be prescribed by a physician, dispensed by a pharmacist, and handled by persons with a controlled substances license.
Given the law’s requirement that “harmful drugs” may be dispensed only by prescription, marijuana can no longer be classified as a harmful, controlled substance.
Plaintiffs state that the absurdity of the continued inclusion of marijuana on Michigan’s list of controlled substances is demonstrated by the contradictory positions that Ms. Cover faces as chairperson of the Pharmacy Board.
Ms. Cover also sits on the Medical Marihuana Licensing Board established by the legislature to address “the necessity for access to safe sources of marihuana for medical use and the immediate need for growers, processors, secure transporters, provisioning centers, and safety compliance facilities.”
Ms. Cover is also affiliated with Walgreens Pharmacy, whose position on marihuana is that it “has been used to relieve pain, digestive and psychological disorders for more than 3,000 years….”
Yet the Pharmacy Board continues to adhere to the proposition that marijuana “has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.”
In the opinion of the plaintiffs, this irreconcilable conflict renders void the continued listing of marijuana as a controlled substance under Michigan law.
To quote from our brief, "For Mr. Sinclair, this matter bookends a life dedicated to social justice. As a young man in the 1960s—more than fifty years ago—he advocated for marijuana reform and an end to the War in VietNam.
"Then his poetry, music, and advocacy brought him into the crosshairs of law enforcement. He was arrested in 1967 and sentenced upon conviction in July 1969 to 9 ½-to-10-years in prison for possession of the two joints of marijuana he had given to an undercover policewoman named Lovelace at the Detroit Artists Workshop in December 1966.
Sinclair's arrest "followed a year-long undercover infiltration of his group of friends, family, and colleagues. His arrest galvanized opposition to the drastic and cruel marijuana laws in Michigan. Thousands rallied with musicians Stevie Wonder, Bob Seger, and John Lennon and Yoko Ono on December 10, 1971 at Crisler Arena in Ann Arbor to demand his release from Jackson Prison.
"Mr. Sinclair had already served 29 months in prison by the time he was released on bond (three days after the Ann Arbor rally) by the Michigan Supreme Court. Three months later, the Court overturned Sinclair’s conviction and ruled that the state’s marijuana law was unfair and unreasonable and that it was unconstitutional to classify marijuana with narcotics such as opium."
The plaintiffs are represented by attorneys Matthew Abel and Michael Komorn. On February 19, Assistant Attorneys General Michelle M. Brya, Joshua 0. Booth, and Erika N. Marzorati filed with Judge Colleen O'Brien in the Court Of Claims as defense counsel for the Michigan Board of Pharmacy and Nichole Cover.
These learned representatives of Michigan Attorney General Dana Nessel filed a motion for summary disposition, to which our lawyers filed a response and counter-motion for summary disposition ON MARCH 9 which included, among others, the following arguments:
I. Michigan has redefined Marihuana
Marihuana is a legally defined term in which “Industrial hemp” is excluded. [HB 6331, March 28, 2019]. Marihuana is now defined as only those “parts of the [hemp] plant” with a delta 9 THC concentration of more than .3%.
Yet defendants continue to list cannabis as a Schedule 1 contraband, providing the justification for continued police raids.
II. Michigan has legalized marihuana for adult use
“The purpose of this act [MCL 333.27952] is to make marihuana legal under state and local law for adults 21 years of age or older.... The intent is to prevent arrest and penalty for personal possession and cultivation of marihuana by adults 21 years of age or older; remove the commercial production and distribution of marihuana from the illicit market.”
Any use, production, or distribution of marihuana is only “illicit” because defendants here continue to list marihuana as a Schedule 1 controlled substance.
III. Schedule 2 is a red herring
Marihuana remains Schedule 1 in the Public Health Code and the Pharmacy Board’s administrative rules promulgated thereunder. Consequently, Michigan law states that marihuana simultaneously “has currently accepted medical use in treatment in the U.S.” and does not. This is precisely the unharmonizable absurdity that renders marihuana’s inclusion on Schedule 1 repealed by implication.
Marihuana cannot both have and not have accepted medical use. It cannot be both “authorized under this act” and not authorized by it.
And therein lies the rub. The MMFLA and the MMRTA have irrevocably displaced marijuana’s listing as a controlled substance. Otherwise, every use, possession, and distribution of marihuana under those laws is a violation of the Controlled Substance Act.
Because marihuana has currently accepted medical use in treatment in the U.S., it cannot be Schedule 1. Because the legislature and voters have displaced the requirements that apply to controlled substances, marihuana must be removed from the controlled substances list altogether. Continued classifying marihuana with the harmful drugs is arbitrary, capricious, absurd, and in irrevocable conflict with controlling law. It must be de-scheduled.
It has been legislatively and judicially determined that marijuana is not a harmful drug and that to classify it with the opioids is unconstitutional. People v Sinclair, 387 Mich 91; 194 NW 2d 878 (1972).
Defendants admit that as a Schedule 1 drug, marijuana is contraband. MCL 333.7525(1) provides: “A controlled substance listed in schedule 1 that is possessed, transferred, sold, or offered for sale in violation of this article is contraband and shall be seized and summarily forfeited to this state.” But marijuana cannot be Schedule 1. For the same reason, it cannot be Schedule 2. Moving marijuana to Schedule 2 does nothing to remove the constitutional infirmity of listing marijuana as a controlled substance.
That's our case in a nutshell. Free The Weed!
—New Orleans,
March 22, 2019
(c) 2019 John Sinclair. All Rights Reserved.
