As we have previously advised our clients, the Michigan Medical Marihuana Act (MCL 333.26421, et seq.) (the “MMMA”) contains numerous vague provisions, which will require litigation to establish binding precedents. We’ll do our best to keep our clients updated as the court decisions are issued.
In People v King, http://www.michbar.org/opinions/appeals/2011/020311/48045.pdf, the Court of Appeals held that a dog kennel – a moveable six foot tall, chain-link fence with a lock on the gate but no cover on the top – did not constitute an “enclosed locked facility.” As a result, the defendant, who possessed a valid medical marihuana registry card from the State, was not entitled to the statutory affirmative defense because he did not comply with MMMA. What is perhaps most interesting about this case is that it illustrates how easily susceptible the vague provisions of the MMMA are to differing interpretations, as both the majority opinion and the dissenting opinion used legitimate rules of statutory construction to come to opposite conclusions.
Section 4 of the MMMA provides that qualified patients who possess a valid registration card will not be subject to arrest, prosecution, or penalty in any manner provided that the qualified patient possesses no more than 2.5 ounces of usable marihuana, and no more than 12 marihuana plants kept in an “enclosed, locked facility” if the patient has not specified a primary caregiver. The MMMA defines “enclosed, locked facility” as “a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient.” The MMMA does not further define “enclosed.”
The majority opinion began with the premise that controlled substances, including marihuana, are considered to be harmful and prohibited by state law. The majority opinion quoted from the People v Redding concurring opinion to state that the MMMA “does not create any sort of affirmative right under state law to use or possess marijuana.” The majority opinion used the terms “narrow circumstances”, “very limited, highly restricted exception”, “narrowly tailored protections”, and “certain narrowly defined medical purposes” in describing the intent of the MMMA to provide protection from prosecution under state law for medical marihuana users. According to the majority opinion, strict compliance with the MMMA is necessary to assert the affirmative defenses of the MMMA. The majority opinion applied the doctrine of ejusdem generis (“the scope of a broad general term following a series of items is construed as including ‘things of the same kind, class, character, or nature as those specifically enumerated’”) and determined the opened-top, moveable, chain-link dog kennel is not of the same kind or character as a closet or room. The majority opinion noted that the intent of the restriction is to ensure that the marihuana will be inaccessible to anyone other than a licensed grower or a qualifying patient, in order to prevent access by the general public, especially juveniles.
In contrast, the dissenting opinion pointed out that the words of an initiative law should be given their ordinary and customary meaning as they would have been understood by the voters. Because the MMMA does not define the term “enclosed”, the dissenting opinion applied Webster’s Dictionary definition of “enclose” (which includes: “to surround, as with a fence; to enclose land”) and determined that the dog kennel sufficed regardless of whether there was a top/ceiling or whether the kennel could be moved. The dissenting opinion suggested that the police, the prosecutor, and the majority of the court were using the MMMA as a sword to attack persons who have legitimate medical reasons to grow and use marihuana, rather than using it as a shield to protect such persons, as the dissenting opinion believes was originally intended by the voters.
Both the majority opinion and the dissenting opinion in King used legitimate rules of statutory construction, yet came to opposite conclusions. Until we have more binding guidance from the courts, qualified patients, primary caregivers, and even municipalities should proceed with caution regarding the MMMA. Patients and caregivers who do not clearly and unambiguously follow the strict requirements of the MMMA, as may be interpreted differently by different prosecutors and judges, face the possibility of state or even federal prosecution. Municipalities who incorporate the vague provisions of the MMMA into their own local licensing or zoning ordinances run the risk of having to pay for costly litigation as test cases.
This entry was posted
on Friday, February 11th, 2011 at 1:17 pm and is filed under Litigation News, Municipal News.
