THE ONGOING WAR AGAINST MICHIGAN’S MEDICAL MARIJUANA LAW

“Laws are like cobwebs, which may catch small flies, but let wasps and hornets break
through.”

- Jonathan Swift, ‘A Critical Essay upon the Faculties of the Mind’

In November, 2008, over 3 million Michigan voters approved the Michigan Medical Marijuana Act by a broad 63% margin, creating a situation that virtually eliminated the ‘criminal’ element that has profiteered on a multi-billion dollar underground industry for nearly 75-years, ever since the substance was classified as a ‘dangerous narcotic.’ The vote was nearly two to one in favor of this measure.

In addition to the ‘underground economy’, pharmaceutical companies that also reap billions for creating synthetic ‘marinol’ pills, were opened to competition from providers and patients seeking treatment to their pain & suffering from the same plant that George Washington & Thomas Jefferson harvested on a regular basis.

Indeed, over 500 U.S. economists publicly endorsed a Harvard University report that showed how ending prohibition would save $7.7 billion in combined state & federal spending, while taxation of the product would yield up to $6.2 billion a year.

That’s a lot of money that could solve a lot of our societal woes.

But those that profit from keeping marijuana classified as a ‘dangerous drug’ are not happy with this situation.        

Consequently, over 800,000 people were arrested for marijuana in 2009, 90 percent for possession.

The Drug Enforcement Administration (DEA) was established on July 1, 1973 and signed into law by President Richard Nixon. It created a single federal agency to enforce U.S. drug laws as well as consolidate and coordinate the government’s drug control activities. With a budget exceeding $2.4 billion dollars, the DEA employs over 10,800 people, including over 5500 special agents. To date 15 states have passed medical marijuana initiatives; and if you ‘follow the money’, obviously, the DEA is not happy with this national trend.

With Michigan’s law, which was modeled after the state of Oregon’s approach, The Michigan Department of Community Health is responsible for issuing Registry ID Cards and promulgating rules that govern the manner it, which it considers applications for renewals of ID cards and Caregiver applications. 

Additionally, they must submit an annual report to the Legislature that does not disclose specific information about applicants and caregivers, but contains information on the number of applications, the number approved in each county, the nature of the debilitating medical conditions, and the number of cards revoked.

Which brings us to the latest and potentially most devastating tactic employed by the DEA to circumvent the will of Michigan’s voters.

The D.E.A. vs. The Michigan Dept. of Community Health

On December 22, 2010, a lawsuit was filed in the case of U.S.A. vs. Michigan Dept. of Community Health (MDCH) stating that on June 4th, DEA resident agent in charge, Michael Yasenchak, issued a DEA subpoena to the MDCH in Lansing to provide “copies of all documents, records, applications, payment method of application for Medical Marijuana Patient Cards & Caregiver cards & copies of front & back of any cards located for seven named individuals.

A compliance date was set for June 15th, but to date the MDCH has not complied with the subpoena.  The DEA was also advised through the Attorney General in Michigan that due to potential civil & criminal penalties for violation of the Confidentiality provisions of the Michigan Medical Marijuana law, the MDCH was reluctant to comply with the subpoena in the absence of a court order.

Section 4(a) of the Act provides that “a qualifying patient shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty for medical use of marijuana in accordance with this act.” Moreover, Section 6 (h) sets out strict rules of confidentiality, making them exempt from disclosure under the Freedom of Information Act.

The section goes on to state: “The department shall verify to law enforcement personnel whether a registry ID card is valid, without disclosing more information than is reasonably necessary to verify the authenticity of the registry ID card.”

Should an employee of the department or other state agency or local unit of government disclose confidential patient information, the act is punishable by imprisonment for not more than 6 months, or a fine of not more than $1,000 or both.

The brief filed by the DEA claims the MMMA remains illegal under Federal law and that according to the case of U.S. v. Hicks, “State medical marijuana laws do not, and cannot, supercede federal laws that criminalize the possession of marijuana.”  Donald Davis, U.S. Attorney and John Bruha, Assistant U.S. Attorney filed the brief.

New Attorney General Bill Schuette Prepared to Turn Over Patient Information

On January 5, 2011, new Michigan Attorney General Bill Schuette filed a response to this case in which he states: “DCH will comply with a valid order from this court requiring DCH to comply with the DEA subpoena. The order should also make clear that, pursuant to the Supremacy Clause of the U.S. Constitution, DCH and its employees and agents will be immunized from liability for providing information that is confidential under Michigan law.”

In essence, what Schuette said in his response is that if MDCH is granted immunity from prosecution for violating the MMWA, they’ll give up all the patent records requested in the subpoena.

Because Schuette was so willing to simply cave in and comply with the DEA request, sacrificing the rights of confidentiality of over 45,000 medical marijuana patients in Michigan, Traverse City attorney Jesse Williams sought legal standing in the case for his clients. He represents the Michigan Association of Compassion Clubs and 42 unnamed clients whom, he said, are “subject of the DEA’s subpoenas.”

The attorney for medical marijuana advocates says Schuette should “fight a federal request for patients records.”

“The Attorney General has a clear & unambiguous conflict of interest and applicants argue that he should immediately recuse himself from representing the Dept. of Community health in this matter,” Williams said in court documents, noting how releasing the information would violate patient-physician confidentiality guaranteed under the Michigan law.

U.S. Magistrate Judge Hugh Brennerman, Jr. was to hear the request on January 11th, but Williams’ last minute request to intervene pushed the hearing to February 1st.

While the DEA says it is seeking records of seven people in the Lansing area as part of an investigation; in the 30-page filing, Williams said the government is seeking confidential records of up to 42 people who have been recommended by doctors to use marijuana for medical reasons.

“Applicants and medical marijuana patients throughout Michigan have a heightened expectation of privacy in such records, as they concern especially sensitive medical consultations; physicians have a recognized constitutional right to create such records without fear of federal punishment or investigation,” Williams wrote.

He also contends the DEA is on a fishing expedition. “It is indisputable that the AG is not adequately representing applicant’s interests,” he states.

Schuette’s spokesman, John Sellek, said Schuette has no intention of recusing himself. He added that the AG’s office, as counsel to state departments, can offer advice & recommendations to clients but ultimately follows clients’ wishes and that Schuette’s opinion on the marijuana law didn’t factor into his office’s response to the DEA request for information.

“There’s no conflict at all,” Sellek said. “You have to remember, the AG doesn’t make the decision.”

The Story Sickens

Meanwhile – whether a case of irony or coincidence – on January 12th, one day after the Federal judge agreed to postpone the matter until a February 1st hearing, Oakland county authorities raided the Oak Park headquarters and retail complex of medical marijuana entrepreneur and advocate Rick Ferris, 46, of Berkley, but made no arrests.

About 8 Sheriff’s deputies presented a search warrant as they burst into the Michigan Medical Marijuana Magazine office, the adjoining registered non-profit Big Daddy’s Compassion Club, and the Big Daddy’s Hydro Shop that sells equipment for indoor plant cultivation.

Rich Thompson, who writes for MMM Magazine, said between 8 and 10 officers came into the building and were polite. “There was no yelling or flash grenades”, although he did note three officers were masked.

Officers asked to see driver’s licenses and medical marijuana cards, but according to Thompson, “since everybody had proper ID, there were no concerns. Thompson said the dispensary uses a locker system that “was found to be in compliance. It’s safe and secure and legally correct.”

But according to close associates of those targeted in the raid, less than $3,000 in cash was seized and there were 21 plants at one location along with one seedling. The injunction that halted MDCH from giving confidential patient information to the DEA was enacted on January 11th and Rick & Sue Ferris’ names are listed on the injunction. The search warrants authorizing these raids were signed on January 11th.

While no arrests were made, the only residence searched in conjunction with this raid was that of Sue Ferris. Officers allegedly pulled garland from the walls, smashed Christmas presents and the tree itself, broke open piggy banks and took money from then. There were reportedly 7 children living at the residence.

According to Tim Beck, who ran the recent Detroit decriminalization initiative, which was arbitrarily nullified by a 3-person elections panel, “Some activists theorize the purpose of this police action was ‘payback’ because MACC had the nerve to challenge Schuette and temporarily win in court on January 11th.”

Ironically, the brief submitted by MACC lists their address as that of Ferris’ address in Oak Park – the very place that was raided on January 12th.

Noted one activist that requested anonymity: “Schuette staked his credibility on this anti-pot campaign and has indicated he will make it his priority to fight the new law or obstruct it at every opportunity.”

As for the activists challenging Schuette’s move: “These are real people putting their freedoms on the line every day for the benefit of patients statewide.”

Recent Federal Decisions Side with Patients

The notion that Federal Law via The Supremacy Clause is supreme and can be used by local Michigan governments to undermine the Michigan Medical Marijuana Act is simply not true.
In 2004 when California passed their own state medical marijuana law, San Diego county underwent a three-year legal battle that ended up when the U.S. Supreme Court refused to hear their case without comment or explanation, which is not uncommon for the high court.

The county had sued the state in 2006, contenting the state law requiring counties to issue ID cards to people who have a doctor’s prescription to use marijuana violated federal laws that categorized marijuana as a dangerous drug.

The county argued that in the conflict between state & federal law, that federal law trumped the state, based upon the U.S. Constitution’s Supremacy Clause, which says Federal law basically trumps State law.

But his argument found no traction in the California state courts.

In 2006 San Diego Superior Court Judge William Nevitt ruled against the county and in August 2008, the state 4th District Court of Appeals upheld that ruling.

The appeals court said the ID card requirement did not conflict with federal law, known as the Controlled Substances Act, noting the purpose of that law “is to combat recreational drug use, not regulate a state’s medical practice.”

The California Supreme Court refused to take the county’s appeal so in a last ditch effort, the county appealed to the U.S. Supreme Court.

In addition to California, a 2007 ruling by a U.S. District Court in Washington quashed a subpoena for records sought in Oregon. The judge said that federal law could ‘trump’ state sovereignty, but found that keeping the records confidential was “integral to the success of the program.”

With this pending case in Michigan, according to attorney Greg Schmid, if Schuette’s tactic prevails, “A court order from a U.S. judge will operate to relieve the staff of criminal liability for release of information in limited situations where there is a court order issued by a federal judge.”

“There is a relevancy argument. If MMMA does not provide any defense in federal court, then what possible relevance does the requested information have? However, the court may rule that the requested info may produce relevant evidence, and that is enough justification for the court order compelling the production of the information.”

“The impact of this will not be fully appreciated until we see that the patients confidential information will lead to their caregivers and doctors. Then they will try to subpoena the records of all patients served by the same revealed caregiver and/or same revealed certifying doctor.”

“Then they can run the data and ask for all patients served by either the doctor or caregiver, ad absurdum, until they get lots of the patient records in existence. Then maybe a little direct intimidation by the FBI contacting and questioning the doctor or caregiver, or maybe a raid since the MMMA does not constrain their search warrant applications the way it does with respect to state law enforcement.”

“Would the data find its way to state Law Enforcement Organizations? Likely, yes. Would they go to the trouble? They might not. Remember that they would need to get a separate court order for each subpoena, because the MDCH staff is only protected if they disclose pursuant to the specific order of a federal judge.  So far with this case, that is 7 people.”

“The problem with this scenario is that they want this limited request of 7 named individuals to turn into a media event, distracting the MMMA community with this outrage, and scaring patients, caregivers and doctors from participating in the registry program.  It will have that effect to the extent people believe they are on a list that is being given to the feds.  Of course, that is false, but it will be perceived that way.”

As for the million-dollar question, does a grant of immunity from a Federal judge automatically immunize the MDCH from violation of State laws in this action?

“Generally, yes,” answers Schmid. “However, where this gets tested is in state court, which is the only place where state criminal laws can be prosecuted. And you won’t see county prosecutors prosecuting staff in light of the Attorney General’s position, which gives local prosecutors cover.”

“The court most likely will not grant immunity as such, only issue a court order. They may mention immunity in the order, since the Attorney General asked the state to address that in the order, but it will not be a grant of blanket immunity, only an order compelling MDCH to provide the information for the seven named individuals.”

“The effect of the order is to create a defense in state court which would be raised by a defendant, such as the MDCH staff, as an affirmative defense to state law charges,” he concludes.

Meanwhile, in related areas, on January 20th, Senator Rick Jones (who also has a law enforcement background) submitted a new Senate Bill 17, which was referred to the Committee on Health Policy, and seeks to prohibit the organization of medical marijuana clubs.

On the opposite side of the fence, several United States Senators in states  adopting medical marijuana laws are working to have pot declassified from the list of dangerous controlled substances.

And of course we are all waiting for President Obama to follow through on his campaign promise and issue an Executive Order commanding the DEA to lay off states with Medical Marijuana registries and concentrate on enforcing border control and illegal immigration instead.

Perhaps Schuette and Jones would do well to heed the words of George Washington: “Laws made by common consent must not be trampled on by individuals.”

Watch more on this unfolding saga in the days and weeks ahead.
 

Follow up to this article:

Federal Magistrate Hears Arguments in the Case of DEA vs. MICHIGAN DEPT. OF COMMUNITY HEALTH