Court rules THCF clinic is a fraud
III. THROUGH THE MAZE
The MMMA consists of ten sections detailing the protections, procedures, and defenses surrounding the use of medical marijuana in this state. However, much of the confusion caused by the MMMA arises from difficulty understanding the interplay between sections 4, 7, and 8. Section 4 addresses the protections afforded to qualifying patients, caregivers, and others under the act:
(a) A qualifying patient who has been issued and possesses a registry identification card 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 or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that [*53] does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.
(b) A primary caregiver who has been issued and possesses a registry identification card 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 or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act, provided that the primary caregiver possesses an amount of marihuana that does not exceed:
(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and
(2) for each registered qualifying patient who has specified [*54] that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and
(3) any incidental amount of seeds, stalks, and unusable roots.
(c) A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.
(d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.
(e) A registered primary caregiver may receive compensation for costs associated with assisting [*55] a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.
(f) A physician 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 or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise [*56] violating the standard of care for evaluating medical conditions.
(g) A person 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 or disciplinary action by a business or occupational or professional licensing board or bureau, for providing a registered qualifying patient or a registered primary caregiver with marihuana paraphernalia for purposes of a qualifying patient's medical use of marihuana.
(h) Any marihuana, marihuana paraphernalia, or licit property that is possessed, owned, or used in connection with the medical use of marihuana, as allowed under this act, or acts incidental to such use, shall not be seized or forfeited.
(i) A person 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 or disciplinary action by a business or occupational or professional licensing board or bureau, solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana.
(j) A registry identification [*57] card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows the medical use of marihuana by a visiting qualifying patient, or to allow a person to assist with a visiting qualifying patient's medical use of marihuana, shall have the same force and effect as a registry identification card issued by the department.
(k) Any registered qualifying patient or registered primary caregiver who sells marihuana to someone who is not allowed to use marihuana for medical purposes under this act shall have his or her registry identification card revoked and is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $ 2,000.00, or both, in addition to any other penalties for the distribution of marihuana. [MCL 333.26424.]
The unusual structure of this section reflects the intent of the MMMA as set forth in MCL 333.26422(b). Instead of describing an affirmative right to grow, possess, or use marijuana, § 4 simply indicates that registered qualifying patients, primary caregivers, and physicians are protected from arrest, prosecution, or penalty if they meet [*58] the specific requirements set forth. 11
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11 Most legislation either grants rights and privileges to citizens by stating that a person may do a certain activity, or it makes certain activity illegal. In either circumstance, the statute affirmatively indicates what an individual may or may not do. The MMMA does the opposite; instead of granting a right or implementing a prohibition, the statute leaves the underlying prohibition of the manufacture, possession, or use of marijuana intact and states that individuals meeting certain criteria "shall not be subject to arrest, prosecution, or penalty . . ." for using, possessing, or growing marijuana under specified circumstances. As a result, this state finds itself in the unusual position of having a statute that precludes enforcement, in certain circumstances, of another statute that makes certain activity illegal. Needless to say, this decision to use one statute to undercut the enforceability of another statute, instead of simply redefining the circumstances under which marijuana use and possession are legal in this state, greatly adds to the confusion that surrounds this act.
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A closer look at the pertinent subsections of § 4 further shows [*59] this to be the case. Section 4(a) specifies that a qualifying patient with a registry identification card is not subject to arrest, prosecution, or penalty "for the medical use of marijuana in accordance with this act." MCL 333.26423 defines a "qualifying patient" as "a person who has been diagnosed by a physician as having a debilitating medical condition." Accordingly, even if a qualifying patient has a registry identification card, that patient is entitled to protection under the MMMA only if he or she has also been diagnosed with a debilitating medical condition. In order to "diagnose" a patient, a physician must "determine the identity of (a disease, illness, etc.) by a medical examination." Random House Webster's College Dictionary (2001). Accordingly, despite whether an individual has a registry identification card, that individual is not a "qualifying patient" under the MMMA and, therefore, is not entitled to the act's protections unless a physician has determined that the patient suffers from an identifiable debilitating condition. 12
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12 Accordingly, an individual is not entitled to protection under the MMMA if a physician has acknowledged only that the individual suffers from [*60] symptoms of a disease or illness (such as pain, nausea, or anxiety), but has not actually diagnosed that person with a debilitating disease or illness. Also, the term "medical use" is only employed in specific sections of this act, while the term "use" is employed in other sections, thereby suggesting two separate meanings for the term "use" within the act.
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Under § 4(a), a qualifying patient may engage in the "medical use" of marijuana without fear of arrest. Interestingly, the term "medical use," as defined by the MMMA, is much broader than one would anticipate. MCL 333.26423(e) defines the term "medical use" as "the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition." The definition of "medical use" is unexpectedly broad: although a qualifying patient may not sell marijuana, just about anything else an individual can do with marijuana would be considered medical use under the MMMA. 13
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13 An example [*61] of this conflict is § 4(a) and § 7(b)(5) of the act. Section 4(a) allows 18-year-old high school students to grow and use marijuana if they are properly registered with the state. Section 4(a) also states that as long as he or she is a qualifying patient who has a registry card, he or she "shall not be subject to arrest, prosecution, or penalty in any manner whatsoever." Reading § 4(a) in isolation allows 18-year-old students to possess marijuana in our schools without being subject to arrest, prosecution, or penalty in any manner whatsoever. Conflicting with § 4(a) is § 7(b)(2)(B), which provides that one may not possess medical marijuana on the grounds of any preschool or primary or secondary school.
Sections 4(b) and 7(b)(5) are also in conflict. Section 7(b)(5) states that a person may not use marijuana if that person does not have a serious or debilitating medical condition. Section 4(b) allows primary caregivers to assist qualifying patients. Nothing in § 4(a) or (b) allows primary caregivers to use marijuana, unless they qualify under § 4(a). The conflict arises because the act allows primary caregivers to grow marijuana, but it prohibits those who are not "qualifying patients" [*62] to use marijuana. I note that caregivers receive registration cards under the statute but are not required to have a "written certification" stating they have a debilitating condition. The only logical conclusion is that "primary caregivers" who do not possess a "qualifying patient" registry card are not permitted to use marijuana under the MMMA.
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Section 4(a) also provides that a qualifying patient is not subject to arrest, prosecution, or penalty for the medical use of marijuana if that patient has no more than 12 marijuana plants in an enclosed, locked facility. Alternatively, the qualifying patient may designate a primary caregiver to grow up to 12 plants in an enclosed, locked facility. However, because the statute provides that a qualified patient may be in possession of the specified number of marijuana plants only if the patient has not designated a primary caregiver to grow marijuana for him or her, if the qualified patient has made such a designation, the statute provides him or her with no protection from arrest if found in the possession of any marijuana plants.
Section 4(b) specifies the circumstances in which a registered primary caregiver is protected from arrest. MCL 333.26423 [*63] defines a "primary caregiver" as "a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has never been convicted of a felony involving illegal drugs." Section 4(b) specifies that a registered primary caregiver may assist only a qualifying patient 14 to whom he or she is connected through the department's registration process with the medical use of marijuana. Accordingly, a primary caregiver may not assist any qualifying patient in the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marijuana unless that caregiver is connected to that qualifying patient through registration with the Department of Community Health (DCH). Section 6(d) specifies that "each qualifying patient can have no more than 1 primary caregiver, and a primary caregiver may assist no more than 5 qualifying patients with their medical use of marijuana." MCL 333.26426(d). Accordingly, no primary caregiver who wishes to benefit from the protections offered by the MMMA may assist more than five qualifying patients in acquiring, possessing, cultivating, manufacturing, using, internally possessing, [*64] delivering, transferring, or transporting marijuana, presuming that the five qualifying patients in question are connected to that caregiver through the department's registration process. 15 Any assistance that any primary caregiver provides on behalf of any qualifying patient to whom that caregiver is not connected by the registration process is not subject to the protections of the MMMA.
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14 The act uses both the terms "qualifying patient" and "patient." While qualifying patients enjoy greater protections under § 4 than patients do under § 8, both qualifying patients and patients must follow all of the provisions of the act, including the requirement that all patients growing marijuana do so in an "enclosed locked facility." Growing marijuana in the back yard thus subjects the grower and the homeowner to the penalties found in the Public Health Code. This requirement is consistent with the language of the ballot proposal. The issue whether each patient's 12 marijuana plants must be grown in a separate locked facility is best left for another day. Those caregivers who commingle various patients' plants in one facility may look forward to becoming test cases. Primary caregivers may have [*65] only five patients and, if the qualifying patient designates him- or herself as his or her own caregiver, then that caregiver is allowed only four additional patients.15 Many Michiganders are faced with the often unwelcome intrusion of medical marijuana dispensaries in their communities, and local governments are faced with the difficult task of determining whether they are obliged to allow such dispensaries to operate in their communities. Yet, interestingly, under a proper reading of § 4(b), the operation of a dispensary would make little economic sense, because in order to abide by the provisions of the MMMA, the dispensary would have to be operated entirely by one individual, and could have, at most, five customers. This is because, first, the MMMA has no provision for the sale of marijuana, and second, a primary caregiver is permitted to receive compensation for only the costs associated with assisting a qualifying patient to whom he or she is connected through registration with the DCH.
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Similarly, a primary caregiver may not possess more than "12 marijuana plants kept in an enclosed, locked facility" for each qualifying patient to whom the caregiver is connected through the registration [*66] process and who has that patient's permission to cultivate the allotment of marijuana plants. MCL 333.26423 defines an "enclosed, locked facility" as "a closet, room, or other enclosed area equipped with locks or other security devices that permits access only by a registered primary caregiver or registered qualifying patient." Although it is unclear from the statute whether each grouping of 12 plants must be in a separate enclosed, locked facility, 16 it is clear that under no circumstances may a primary caregiver be in possession of more than a total of 60 marijuana plants, presuming that the primary caregiver acts in that capacity for the statutory maximum of five qualifying patients, all of who have given him or her the authority to cultivate marijuana for them. Because a qualified patient who has designated a primary caregiver to cultivate marijuana for him or her may not him- or herself have possession of any marijuana plants, the primary caregiver is the only individual permitted to be in possession of the qualifying patient's marijuana plants under this circumstance. Accordingly, this means that each set of 12 plants permitted under the MMMA to address the purported medical [*67] needs of a particular qualifying patient must be kept in an enclosed, locked facility that can only be accessed by one individual, either the qualifying patient or the qualifying patient's primary caregiver; any other individual with access to the marijuana plants designated for a particular qualifying patient would be considered in possession of marijuana and subject to arrest and prosecution for violating the Public Health Code. 17
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16 Anyone growing more than 12 plants in one separate enclosed, locked facility should not complain or be surprised when or if a federal drug enforcement agent appears. Again, under federal law, cultivating marijuana is illegal. Growing large quantities of marijuana in an enclosed, locked facility is the same as waving a red flag in front of a 3,000 pound bull. Any questions in this regard are quickly answered by reading the Gus Burns article in the April 22, 2010, Saginaw News, "Federal agents and sheriff's deputies say seized marijuana in Saginaw County was illegal and not medicine." Federal agents and sheriff's deputies say seized marijuana in Saginaw County was illegal and not medicine | MLive.com (accessed September 13, 2010). Caregivers who do not want to become a test case should [*68] proceed with caution. No clear, reliable, or lasting resolution to this conflict between state and federal law seems in view.17 It is important to remember that under the laws of this state, "A person need not have actual physical possession of a controlled substance to be guilty of possessing it. Possession may be either actual or constructive." People v Wolfe, 440 Mich 508, 519-520; 489 NW2d 748, amended 441 Mich 1201; 489 NW2d 748 (1992). "Constructive possession exists when the totality of the circumstances indicates a sufficient nexus between the defendant and the controlled substance." People v Meshell, 265 Mich App 616, 622; 696 NW2d 754 (2005), citing Wolfe, 440 Mich at 521. The "essential element" is that a defendant has "dominion or right of control over the drug with knowledge of its presence and character." People v McKinney, 258 Mich App 157, 166; 670 NW2d 254 (2003) (internal citations omitted). "Because it is difficult to prove an actor's state of mind, only minimal circumstantial evidence and the reasonable inferences that arise from the evidence are required to prove that a defendant had constructive possession." People v Brown, 279 Mich App 116, 137; 755 NW2d 664 (2008). [*69] Accordingly, an individual who places himself in the proximity of marijuana is at risk of being charged with possession of the substance.
In light of these rules concerning what constitutes possession, the MMMA places the entire burden of cultivating a particular qualifying patient's marijuana plants entirely on one individual (either the qualifying patient or his or her primary caregiver). No other individual can legally even water the plants or enter the enclosed, locked facility to turn on a grow light without risking arrest and prosecution for violating the Public Health Code. This means that primary caregivers and qualifying patients cannot legally form a cooperative and grow marijuana in a shared facility without violating the MMMA and thus being subject to arrest and prosecution under the Public Health Code.
Presumably the drafters affiliated with the Marijuana Policy Project agree. Diane Byrum, a spokesperson for the project, said, "'The Michigan proposal wouldn't permit the type of cooperative growing that allows pot shops to exist in California. Those kinds of operations are what have faced federal crackdowns.'" Satyanarayana, Is Marijuana Good Medicine? Detroit Free Press, [*70] October 25, 2008, http://www.freep.com/article/2008102...-good-medicine (accessed September 10, 2010). Accordingly, before the November 2008 vote on this ballot proposal, even the drafters of the MMMA were unequivocal that the statute would not permit marijuana growing cooperatives in Michigan.
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Section 4(e) permits a registered primary caregiver to receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marijuana. However, under § 4(b) a registered primary caregiver may assist only a registered qualifying patient to whom he or she is connected through registration with the DCH. Accordingly, §§ 4(b) and 4(e) can only be reconciled by concluding that the primary caregiver's "compensation for the costs associated with assisting a registered qualifying patient in the medical use of marijuana" will come from only a registered qualifying patient to whom he or she is connected through the department's registration process. 18 Because a primary caregiver may assist only the five or fewer qualifying patients to whom the caregiver is connected through the registration process, there is no circumstance under the [*71] MMMA in which the primary caregiver can provide assistance to any other qualifying patient, and receive compensation in exchange, without being subject to arrest and prosecution under the Public Health Code. 19
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18 Stated another way, only the person the qualifying patient names as his or her primary caregiver on his/her registration form can receive compensation for associated costs, and that compensation can only be received from the "qualifying patient to whom he or she is connected through the department's registration process."19 A familiar example may help clarify how the provisions of the MMMA are connected to each other. Michigan has statutory qualifications for persons entering into a state of matrimony. See MCL 551.1 (restricting marriage to couples of opposite gender); MCL 551.3 (disqualifying couples who are of specified, close degrees of familial affinity). There is also a registration requirement, in the form of a marriage license. MCL 551.2. Married couples have many statutory rights and duties. See, e.g., MCL 557.204 (the equal right to property acquired during the marriage); MCL 554.45 (the right to hold property as joint tenants); MCL 557.151 (the right to joint ownership [*72] of personal property); MCL 205.93(3)(a) (the right to transfer property and free from use tax); MCL 600.2162 (the right not to testify against a spouse); MCL 552.7 (authorizing actions for separate maintenance). The registration, or licensing, requirement inheres in all statutory references to marriage, and thus there is no need to repeat it with each statutory mention. MCL 206.311(3) authorizes the filing of joint tax returns by "husband and wife," but does not reiterate that this concerns couples licensed to marry each other. To conclude that any married person, qualified and registered under the laws of this state, may file jointly with any other married person, so qualified and registered, would be nonsensical and lead to an absurd result. As the statutory registration, or licensing, requirement carries through all marriage law, the registration requirement of the MMMA should be understood to carry through all provisions of that act.
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In addition, a primary caregiver may receive compensation for only the costs associated with assisting a registered qualifying patient in the medical use of marijuana. This simply means that the primary caregiver may receive reimbursement for monetary [*73] expenses incurred in the course of assisting the qualifying patient in the medical use of marijuana. The statute does not authorize compensation for the labor in cultivating marijuana, or for otherwise assisting the qualifying patient in its use, nor does it indicate that the primary caregiver may profit financially from this role.
Section 4(f) protects a physician from arrest for providing written certifications, if the certifications are provided in the course of a bona fide physician-patient relationship, and if the physician has first completed a full assessment of the qualifying patient's medical history. Unfortunately, the statute does not indicate how the existence of an authentic physician-patient relationship can be discerned. However, a factfinder might wish to ask certain questions when determining whether the physician-patient relationship is authentic, including (a) whether the physician signing the written certification form is the patient's primary caregiver, (b) whether the patient has an established history of receiving medical care from that physician, (c) whether the physician has diagnosed the patient with a particular debilitating medical condition instead of simply [*74] stating that a patient's reported symptoms must be the result of some unidentified such condition, (d) whether the physician has been paid specifically to sign the written certification, and (e) whether the physician has a history of signing an unusually large number of such certifications. Needless to say, those doctors hired specifically to sign certification forms are suspect and deserve special scrutiny by prosecutors, the DCH, and the legislative oversight committees of both the House and Senate. 20
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20 The DCH should keep track of the number of certification forms each doctor signs. If it is determined that certain doctors are collecting money for routinely signing the forms, those doctors should be disqualified from participation in the Michigan Medical Marijuana Program. It is beyond question that one doctor treating 100, 500, or 1,000 terminally ill patients, with a 10-minute examination, has not been acting pursuant to bona fide physician-patient relationships. A revolving-door, rubber-stamp, assembly-line certification process does not constitute activity "in the course of a bona fide physician-patient relationship," especially where the doctor fails to set any medical boundaries [*75] for his or her patients and fails to monitor the patient's progress on a regular basis.
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Section 4(f) also indicates that "[a] physician shall not be subject to arrest . . . for otherwise stating that, in the physician's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition." This provision does not create an alternative scenario under which a physician may issue a written certification to a patient in the absence of a bona fide physician-patient relationship with that patient or a full assessment of the patient's medical history. Instead, this provision merely provides a physician with additional protection from legal penalty, or disciplinary action from a professional licensing board, if a physician opines in general that an individual might benefit from the use of medical marijuana.
Section 4(i) provides that "a person shall not be subject to arrest . . . solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for [*76] assisting a registered qualifying patient with using or administering marihuana." In a possible attempt at chicanery, the drafters of the act thus slipped into this subsection the term "person," instead of discussing the protections and responsibilities of a "caregiver" or "qualifying patient." Reading § 4(i) in isolation could cause one to conclude that it constitutes a nullification of all provisions in the Public Health Code that punish individuals who come in contact with medical marijuana. However, when reading § 4(i) in context, it is clear that it is not, nor is it intended to function as, a permission slip to manufacture or sell marijuana in Michigan. First, because the MMMA does not grant rights to anyone, the use of the word "person" instead of the more specific terms "qualifying patient" and "primary caregiver" does not constitute an expansion of any rights. Instead, although a "person" may not be subject to arrest under § 4(i) for "assisting a registered qualifying patient with using or administering marihuana," it is clear that this protection does not extend to assisting a registered qualifying patient in the medical use of marijuana as defined by MCL 333.26423(e). Instead, [*77] this protection from arrest only extends to providing assistance in "using or administering" marijuana, which is much more limited. Such assistance is in the nature of holding or rolling a marijuana cigarette, filling a pipe, or preparing marijuana-laced brownies for the qualifying patient suffering from a terminal illness or a debilitating condition. Section 4(i) does not protect persons generally from arrest for acquiring, possessing, cultivating, manufacturing, delivering, transferring, or transporting marijuana on behalf of the qualifying patient.
Finally, § 4(k) imposes a penalty on those registered qualifying patients or registered primary caregivers who sell marijuana to "someone who is not allowed to use marihuana for medical purposes under this act . . . ." The penalty is severe: a violator faces up to two years in prison or a fine of up to $ 2,000. However, that this subsection specifies a particular punishment for a specific type of violation does not mean that, by default, the sale of marijuana to someone who is allowed to use marihuana for medical purposes under this act is permitted. The MMMA does not give any individual permission to sell marijuana in the state of Michigan [*78] for any purpose. Instead, the MMMA merely identifies circumstances under which qualifying patients and primary caregivers are protected from arrest and prosecution for the "medical use" of marijuana. If the drafters of this statute wanted to legalize the sale of marijuana to qualifying patients from primary caregivers or other qualifying patients, they would have included the term "sale" in the definition of "medical use." MCL 333.26423(e). They did not and, therefore, the sale of marijuana is not a permitted activity under § 4. 21 Stated differently, the MMMA does not legalize the sale of marijuana to any individual, even one registered as a qualifying patient. 22
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21 As explained earlier, § 4(e) permits a primary caregiver to receive compensation for costs associated with assisting a registered qualifying patient to whom he or she is connected through the DCH's registration process. Again, this means that the primary caregiver may receive reimbursement for monies paid in the course of assisting the qualifying patient in the medical use of marijuana, but may not receive compensation or otherwise profit from the labor in cultivating marijuana or otherwise assisting the qualifying patient [*79] in its medical use.22 Accordingly, I can find no circumstance under which the MMMA legalizes the sale of marijuana by medical marijuana dispensaries. The statute simply does not permit such activity.
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Section 7 of the act is very specific about who can legally use medical marijuana. It provides as follows:
(a) The medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.
(b) This act shall not permit any person to do any of the following:
(1) Undertake any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice.
(2) Possess marihuana, or otherwise engage in the medical use of marihuana:
(A) in a school bus;
(B) on the grounds of any preschool or primary or secondary school; or
(C) in any correctional facility.
(3) Smoke marihuana:
(A) on any form of public transportation; or
(B) in any public place.
(4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.
(5) Use marihuana if that person does not have a serious or debilitating medical condition.
(c) Nothing in this act shall be construed [*80] to require:
(1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana.
(2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.
(d) Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marihuana to avoid arrest or prosecution shall be punishable by a fine of $ 500.00, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marihuana other than use undertaken pursuant to this act.
(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act. [MCL 333.26427.]
When interpreting § 7, it is important to remember that an individual acquires protection from arrest and prosecution under this act only if suffering from serious or debilitating medical condition. A person without such a condition, as defined by the act and diagnosed by a physician, is prohibited from using marijuana and remains subject to the penalties set [*81] forth in the Public Health Code. Section 7(b)(5) acts as an affirmative defense to a prosecution under the Public Health Code, meaning that the defendant has the responsibility of establishing that he or she was suffering from a serious or debilitating medical condition as a prerequisite to establishing a medical marijuana defense. Once the defendant has presented sufficient evidence to establish the existence of a sufficiently serious medical condition, the prosecuting attorney may seek to rebut it, including by cross-examination of the defendant's physician regarding whether the defendant had a serious or debilitating medical condition. Of course, the prosecution may also call medical experts to rebut the defendant's evidence.
A defendant asserting the medical marijuana defense bears the burden of establishing the existence of a qualifying medical condition; a mere assertion is not sufficient. 23 Further, it logically follows that a defendant resorting to that defense by placing into evidence his or her medical condition necessarily waives any physician-patient privilege that would otherwise limit a prosecutor's prerogative to question the defendant's physician or examine pertinent [*82] medical records.
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23 Although most qualifying patients and primary caregivers apparently believe they are immune from arrest or prosecution if they possess registration cards, the MMMA makes no such provision. Instead, the act leaves a qualifying patient or primary caregiver subject to criminal proceedings for any conduct not for the purposes of alleviating the qualifying patient's debilitating medical condition or its symptoms. MCL 333.26424(a) and (b); MCL 333.26427(b)(5). In my opinion, all certification forms should include a warning that, even though the patient has a registry card, the patient could still be prosecuted for conduct that is not in strict accordance with the provisions of the MMMA.
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In the present case, both defendants contend that they are entitled to assert an affirmative defense under § 8 of the MMMA. Section 8 addresses affirmative defenses for patients and caregivers under the act. It reads as follows:
(a) Except as provided in section 7, a patient and a patient's primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:
(1) [*83] A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;
(2) The patient and the patient's primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition; and
(3) The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition [*84] or symptoms of the patient's serious or debilitating medical condition.
(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a).
(c) If a patient or a patient's primary caregiver demonstrates the patient's medical purpose for using marihuana pursuant to this section, the patient and the patient's primary caregiver shall not be subject to the following for the patient's medical use of marihuana:
(1) disciplinary action by a business or occupational or professional licensing board or bureau; or
(2) forfeiture of any interest in or right to property. [MCL 333.26428.]
In this section, the act speaks for the first time in terms of a patient instead of a qualifying patient. The purpose of § 8 is to establish an affirmative defense for those marijuana users and growers who are not registered with the state. Read out of context and with a limitless imagination, one could conclude that qualifying patients, patient caregivers, physicians, or persons in general, may not be arrested or prosecuted for any actions involving marijuana, i.e., the [*85] act in essence legalizes marijuana in Michigan. But, as I have previously stated, the language of the ballot proposal and a contextual reading of the act belies this premise.
In order for defendants to assert an affirmative defense under § 8(a)(1), they must first establish that Dr. Eric Eisenbud, the physician who signed their medical marijuana authorizations, treated them in the course of a bona fide physician-patient relationship, and they must further establish that they have a serious or debilitating condition under § 7(b)(5). Both defendants have failed to establish either prerequisite to asserting a § 8 affirmative defense.
At issue is the term, "in the course of a bona fide physician-patient relationship." This phrase has three components: physician-patient relationship, bona fide, and in the course of. When construing a statute, a court should presume that every word has some meaning; a construction rendering some part nugatory or surplusage should be avoided. People v Seiders, 262 Mich App 702, 705; 686 NW2d 821 (2004). "Physician-patient relationship" clearly means that a patient must have the traditional doctor-patient relationship. Use of the qualifier "bona fide" indicates [*86] that the drafters of this act were concerned about such doctors as the Livingston County one described in part IV, infra, who routinely sell written certifications for profit, rather than provide them for any genuine medical reason. Any such doctor is not engaging in the good faith practice of medicine, and any such certifications must be disallowed under this act. 24 "In the course of" clearly means that the bona fide relationship has been in existence beyond just one occasion. An individual who visits a doctor for the first time for the sole purpose of obtaining certification for use of medical marijuana, especially after an arrest on drug charges, does not satisfy the requirement that such certification come about in the course of a bona fide physician-patient relationship. Conversely, a primary-care physician who has long been treating a patient suffering from a terminal illness or a serious or debilitating condition is certainly acting in the course of a bona fide physician-patient relationship. (THIS IS THE DOC-IN-THE-BOX CLAIM I MADE IN WASHINGTON)
Court rules THCF clinic is a fraud
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24 Some seek medical marijuana for treatment of depression and anxiety disorders. At the very least, the progress of such treatments should be carefully monitored by a doctor. But the MMMA [*87] appears to discard the concept of any monitoring within the "bona fide" physician-patient relationship. Where monitoring of patients is not taking place, how can the physician-patient relationship be a "bona fide" one? Should the medical profession step forward on this issue? I note that the medical profession generally opposed the MMMA because, as one official put it, "it's not in the public health interest to see people smoke." Satyanarayana, supra note 17, quoting Donald Allen, Director of the Office of Drug Control and Policy.
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Certain protocols must be adhered to, or elements met, before a bona fide physician-patient relationship can be established. Among these are the following: the physician must create and maintain medical records; the physician must have a complete understanding of the patient's medical history; specific medical issues must be identified, and plans developed to address each; treatment must be conducted in a professional setting; the physician must, where appropriate, set boundaries for the patient; and the physician must monitor the patient's progress. Important for treatment of most medical conditions, especially those involving chronic pain, is continuity [*88] of treatment. Some chronic pain patients with serious or debilitating conditions need constant monitoring for their own safety. I note that, in the present case, while some of these protocols, or elements, are present in Dr. Eisenbud's treatment of defendants, others are lacking in both substance and in process.
In order to have a bona fide physician-patient relationship, a legal duty must be established between the physician and his or her patient. If no duty arises from the relationship, then no legally recognizable physician-patient relationship exists. Only once a physician-patient relationship is established and a treatment plan is instituted may a physician be held liable for malpractice under Michigan law. However, by insulating a physician from "prosecution, or penalty in any manner," including "civil penalty" in connection with that physician's certification of a patient for medical marijuana, § 4(f) leaves a physician so acting unaccountable in the matter to society and to his or her patient. It is problematic to classify a physician-patient relationship where the physician has no enforceable duties to the patient as bona fide. In my opinion, because such physicians as Dr. [*89] Eisenbud, in the course of approving written certifications for medical marijuana use, do not establish a legally binding physician-patient relationship in the matter, such relationships, in the eyes of the law, are not bona fide.
In this regard, the catch-22 for patients is found in §§ 4(f) and 8(a). Section 4(f) provides that "a physician 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." But §§ 8(a) and 8(a)(1) of the act state that a patient can assert a medical marijuana defense if in the course of a bona fide physician-patient relationship the physician makes certain statements and authorizes the patient to use medical marijuana. It would be unusual, if not outright peculiar, for the law to recognize a physician-patient relationship where no potential liability attached to the actions of the treating physician.
Because one part of the MMMA provides that no civil liability, and thus no potential malpractice liability, attaches to physicians who authorize the use of medical marijuana, while another part of the act states that a physician must have a bona fide physician-patient relationship [*90] in order to implement the affirmative medical marijuana defense, the act presents a seemingly irreconcilable internal conflict.
Adding to the confusion in this case is that, according to the record, all of Dr. Eisenbud's patients visited him for a single treatment plan and for no other purpose. In each instance then, the patient is not only directing the treatment plan, but setting his or her own boundaries and monitoring his or her own progress. It strains credibility to suggest that a treatment plan has already been established before the doctor has examined the patient. The confusion is resolved by simply concluding that a one-stop shopping event to obtain a permission slip to use medical marijuana under § 8 does not meet the requirements of subsection 8(a)(1) that such authorization occurs in the course of a bona fide physician-patient relationship. Stated another way, a § 8 affirmative defense is not available unless the testifying physician is the patient's treating physician for the underlying serious or debilitating condition. Dr. Eisenbud was not either defendants' treating physician, and therefore, the § 8 affirmative defense was not available to them.
In an attempt to explain [*91] and help this Court interpret the protections contained in the MMMA, Karen O'Keefe, who was identified in part II of this opinion as Director of State Policies at the MPP in Washington, D.C., filed an affidavit in this case. In the affidavit, Ms. O'Keefe states, in paragraph four, that she was the "principal drafter of Michigan's medical marijuana ballot initiative." In paragraph eight she states, "We intended for both Michigan law and MPP's model legislation to include two levels of protection [defenses]," with § 4 providing the greater level of protection, and § 8 a lesser level of protection. While that affidavit may assist this Court in separating those two types of protection, it does not address any protections under either § 4 or § 8 concerning the sale of marijuana in Michigan. What it does accomplish is to confirm that the MMMA was intended to provide defenses from arrest and prosecution for the use of small amounts of marijuana for medical purposes. But neither the affidavit nor the act itself asserts that the MMMA provides any protections for the sale of marijuana in Michigan. To have authorized the sale of medical marijuana in Michigan, the MMMA would have had specifically [*92] to make such provision. It did not. I further note that the language of the ballot proposal did not mention that sale of marijuana was included in the act. It is therefore clear that neither § 4 nor § 8 of the MMMA affords any protections for the sale of marijuana in Michigan. 25
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25 The MMMA contains a number of catch-22 situations for the unsuspecting: The act allows someone who is properly registered to possess marijuana, but anyone receiving compensation for the marijuana from someone other than the registrant's qualifying primary caregiver may be prosecuted. The act also allows caregivers and patients to grow marijuana, but then provides that this must be done in an enclosed locked facility. Anyone growing marijuana in his or her backyard can thus be prosecuted under the Public Health Code. Another peculiarity is that patients, or their caregivers, may grow marijuana, but there is no provision for the legal purchase of marijuana seeds or plants in the first instance. The act also includes no caregiver-reporting requirement, which raises the questions, how much may a caregiver charge his or her qualifying patient, and how does a caregiver report the income on tax returns? Another [*93] oddity is that the act allows a patient to possess 2.5 ounces of marijuana and 12 plants. MCL 333.26424(b)(1) and (2). What is the legal consequence if the plants are all harvested at the same time and they happen to produce more than 2.5 ounces?
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IV. WHAT MUST BE CONTAINED ON THE WRITTEN CERTIFICATION AND HOW DOES ONE OBTAIN A WRITTEN CERTIFICATION FROM A QUALIFIED PHYSICIAN?
Through no fault on the part of legitimate patients and caregivers who are taking pains in good faith to comply with the law and conduct themselves accordingly, the current written certification process reflects badly on them. The process also reflects badly on legitimate physicians who honestly believe that marijuana would assist their patients.
Section 3(l) of the MMMA defines "written certification" as
a document signed by a physician, stating the patient's debilitating medical condition and stating that, in the physician's professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's debilitating medical condition or symptoms associated with the debilitating medical condition.
In the present case, the defendants' written [*94] certification forms fail to set forth their respective debilitating medical conditions and therefore are invalid on their face. I further regard the process used to obtain the written certification under the current administrative rules as suspect and opine that Section 3(l) of the MMMA is clearly the most abused section in the MMMA. 26
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26 I reiterate that, even with a registry card, a qualifying patient can be prosecuted for uses of marijuana exceeding the scope of the statutory defenses. See MCL 333.26424(d)(2).
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I do not direct my critical comments toward those qualifying patients who do in fact have a serious debilitating condition and seek some solace in medical marijuana. This act was intended to help those individuals. My comments are directed at those who are currently abusing the written certification process, i.e., the majority of the persons who are becoming certified at this time. My comments are also directed at those who are charged with the oversight of the administrative process.
At oral arguments, it was revealed that a certain Livingston County doctor was selling written certifications for $ 50. Apparently all one had to do to obtain a written certification to use medical marijuana was [*95] to show up at this doctor's house and slip $ 50 under the door. This history of the written certification process may in fact jeopardize the entire medical marijuana process for those who are legitimately entitled to use it. New checks and balances on this process are certainly in order to resolve this problem. 27
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27 There currently exist no checks and balances on physicians signing the written certification forms. A simple revision to the form that requires a doctor under penalty of perjury to attest that each patient has a serious or debilitating condition, and name that condition, might clean up the process. Doctors who are indiscriminately selling written certifications could then be penalized by the courts for issuing false certificates. This would work an important reform, given that § 4(f) appears to immunize even physicians who intentionally sign false certifications. Limiting the number of certifications one doctor may sign might further deter fraudulent certifications.
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I will set forth the histories of the MMMA and its written certification process in parts V and VI of this opinion, and leave readers to form their own opinions whether the written certification process is serving [*96] its legitimate purpose or is being abused. It is within the providence of our legislative and executive officials to retain or change that process. But I reiterate that in the present case both defendants' written certifications 28 do not comply with the statute and are therefore invalid ab initio. 29 The balance of this opinion will address issues concerning the written certification process, which the Legislature or DCH are free to change if persuaded that a problem exists.
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28 In the present case, Dr. Eisenbud testified that he met with each defendant for about a half an hour, spending five minutes reviewing the medical records, and about ten minutes on the physical examination, while also interviewing them. On those bases Dr. Eisenbud then certified that he was treating both defendants "for a terminal illness or a serious debilitating condition." Such foolishness is so obvious on its face as to deserve no more than a footnote in this opinion to expose it, although I note that even Dr. Eisenbud's certifications appear to be more credible than the Livingston County doctor described in the previous paragraph.29 The certification forms here at issue state as follows:
I, Eric Eisenbud, MD, [*97] am a physician, duly licensed in the State of Michigan. I have completed a full assessment of this patient's medical history, and I am treating this patient for a terminal illness or a debilitating condition as defined in Michigan's medical marijuana law. I completed a full assessment of this patient's current medical condition. The assessment was made in the course of a bona fide physician-patient relationship. I have advised the patient about the potential risks and benefits of the medical use of marijuana. I have formed my professional opinion that the potential benefits of the medical use of marijuana would likely outweigh any health risks for the patient. This patient is LIKELY to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate a serious or debilitating medical condition or symptoms of the serious or debilitating medical condition. [Capitals in the original.]
I note that Dr. Eisenbud attempts to specify neither what the subject ailment is, nor whether it constitutes a terminal illness or a debilitating condition.
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V. HISTORY OF THE MMMA
The MMMA has a noble purpose, i.e., providing an avenue for improving the health or comfort of those [*98] afflicted with a serious or debilitating medical condition. 30 One supposes that most citizens voting for the MMMA envisioned that those individuals suffering from such conditions would visit their regular doctors, obtain prescriptions for marijuana, and then have the prescription filled at a licensed pharmacy. Citizens would rightly expect such process because the drug delivery system in Michigan has always dispensed drugs in this manner. 31
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30 Some assert that marijuana is not a bad thing, especially in light of current research, and that those thinking otherwise are illogical prudes. Then there is the view of the National Institute on Drug Abuse, which maintains that marijuana smoke contains 50 to 70 percent more carcinogenic hydrocarbons than does tobacco smoke. http://www.nida.nih.gov.proxy.lib.pd...marijuana.html (accessed September 10, 2010). The Partnership for a Drug Free America similarly reports that "[s]tudies show that someone who smokes 5 joints per week may be taking in as many cancer causing chemicals as someone who smokes a full pact of cigarettes a day." Marijuana Facts | Effects of Weed (accessed September 10, 2010). While each of these views is legitimate, [*99] for purposes of this opinion I am not concerned with which view the law should reflect. This Court's job is to interpret statutes as they are written. Public policy is determined by the other branches of government.31 A question that arises is why the need for a specialized medical marijuana business, instead of dispensing through pharmacies as is the case of other legal prescription drugs, if the marijuana is for medical purposes? The answer, in many cases, is that the medical purpose is mere pretext.
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The DCH is the agency charged with regulating this new industry. Under the act, the DCH was required to draft within 120 days administrative rules to implement the act. MCL 333.26429(a). The Governor oversees administrative agencies such as the DCH, and the Legislature also plays a role, maintaining checks and balances to ensure that administrative agencies function properly. Under the normal process, those elected or appointed officials would maintain sufficient control of the process to assure that a Schedule 1 drug would not be sold, distributed, or otherwise transferred to the public without a legitimate process in place to regulate the use, sale, and delivery of that drug.
Further, [*100] in legitimate medical practice, doctors would observe their ethical duties to sign their names to written certification forms only if their patients were actually suffering from terminal illnesses or serious or debilitating medical conditions, as the act specifies. 32 No ethical doctor would advertise for sale, to unqualified patients, their signatures on those forms. Doctors with the personal integrity demanded of that profession would not examine a patient for just several minutes, opine from that short examination that the patient has a terminal illness or a serious or debilitating condition, and then certify that the patient would benefit from the use of a Schedule 1 drug. Or would they? Given that these practices have become widespread in Michigan, either I, or the doctors engaging in that practice, should review the question of what integrity and ethics in the medical profession entails.
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32 In proper medical practice, when a doctor prescribes a drug, that doctor carefully monitors the patient to see if the drug is working, if there are side effects, etc. Shouldn't doctors similarly monitor their patients' uses of marijuana, including determining and prescribing proper dosages, [*101] monitoring side effects, etc.? Does giving the okay for a marijuana card create an ongoing physician-patient relationship and obligate the physician to keep abreast of the situation? Under the MMMA and current rules, however, doctors are not doing their job, neither setting boundaries for their patients nor inquiring into the effectiveness or adverse side effects of the marijuana use. In reality, what have resulted are faux physician-patient relationships.
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The ballot proposal was not intended to legalize marijuana in the State of Michigan. It was intended to protect "from arrest the vast majority of seriously ill people who have a medical need to use marijuana." MCL 333.26424(b)(2). It was not intended to protect those individuals who are "fraudulently obtaining written certifications."
VI. HISTORY OF THE WRITTEN CERTIFICATION PROCESS
Shortly after the MMMA was passed, advertisements began appearing in the print media. These notices advertised that, for a price, one could visit the marijuana doctor and get certified for the use of marijuana. One such ad reads as follows:
[SEE FIGURE IN ORIGINAL]
Soon thereafter, a billboard appeared on I-75 advertising that, with a phone call, one could be [*102] certified for the use of medical marijuana in Michigan. Radio spots then began to advertise that the marijuana doctor would be in Saginaw on Monday, in Bay City on Tuesday, and Midland on Wednesday. With a quick visit to the doctor one could become certified to use, grow, and possibly sell marijuana.
In California, where a similar law has been on the books for a few years, these doctors have taken the process one step further. They have actually set up tents on the beaches and posted signs in front of them advertising easy access to medical-marijuana certification:
[SEE FIGURE IN ORIGINAL]
College students typically patrol in front of the tents and on the beach, encouraging all passersby to enter the tent and get certified for using marijuana. Doctors in California are now advertising that they will refund the certification fee to anyone for whom they cannot find a marijuana-worthy medical ailment. 33
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33 The sale of written certifications has become a very profitable industry in California, as I fear it will soon become here in Michigan. See Mortensen, California and Uncle Sam's tug-of war over Mary Jane is really harshing the mellow, 30 J Nat'l Ass'n Admin L Judiciary 127, 152 (2010) [*103] (identifying an "enormous administrative and regulatory void" in connection with medical marijuana in California, and reporting that it is being filled primarily by "free market principles and by the discretion of marijuana-friendly California doctors who have made a healthy profit off of medical 'recommendations,'" and opining that such "void-fillers do not have the health, safety, and welfare of Californians in mind").
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The Hemp and Cannabis Foundation advertises on its website that the organization has offices in Detroit/Southfield, Grand Rapids, Kalamazoo, Flint, Saginaw, Marquette, Traverse City, and Lansing, and lists six doctors, none of whom reside in Michigan and only one of whom, the afore-mentioned Dr. Eisenbud, is licensed to practice in this state. Home | The Hemp and Cannabis Foundation, THCF Medical Clinics, THC Foundation, Medical Marijuana Doctors, Medical Marijuana Clinics, Medical Marijuana Referrals, Medical Marijuana Permit, Medical Marijuana Card, Serving The Cannabis Community Since 1 (accessed September 10, 2010).
The Michigan Medical Marijuana Certification Center advertises electronic filing on its website, providing a form that can be filled out online to start the certification process. Locations (accessed September 10, 2010). One can even E-file one's signature on the form.
According to the DCH, it had issued 27,755 patient registrations as of September [*104] 3, 2010, and has been struggling to manage the rate of applications coming in. MDCH - Michigan Medical Marihuana Program (accessed September 10, 2010).
Because of the backlog of applications, the House Oversight Committee on Community Health has proposed House Bill 5902 to privatize the issuance of registry cards to the public. That legislation would require the DCH to contract with a third party to take over the issuance of medical marijuana registry cards. In essence, this bill proposes to turn over regulation to the persons regulated--an arrangement that, under normal circumstances, would be deemed highly suspect.
Even advertisements for new careers are beginning to appear in the newspapers. One such advertisement appeared in the July 19, 2010, Northern Express Weekly:
[SEE FIGURE IN ORIGINAL]
That someone is spending money to run such an ad well proves that confusion runs rampant concerning what is, and is not, legal under the MMMA.
Unfortunately, the administrative rules associated with the MMMA do not provide for any checks and balances on the accuracy of the medical certifications signed by these doctors. At one thousand new medical marijuana users per [*105] week, 34 Michigan will soon have more registered marijuana users then we do unemployed--an incredible legacy for the Great Lakes State. And soon we will even have graduates from the Medical Marijuana Academy.
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34 See Yung, Who's making money off medical marijuana?, Detroit Free Press, June 21, 2010, p 4A.
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What has been lost in the rush to implement the MMMA is a comprehensive set of administrative rules. Under MCL 333.26429(a), the DCH only had 120 days to draft the administrative rules that are currently in effect. As evidenced by the rules that did come into being, this was a totally unreasonable time limit for such a task. 35
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35 The current administrative rules include no reporting requirements, no log-keeping requirements, and no directions for school officials or law enforcement officers on how to regulate the new medical marijuana industry. The DCH should continue the rule-making process, taking pains to hear from all interested parties. At oral arguments, the attorneys for both sides expressed their approval of a negotiated rule making process. The goal would be to set boundaries for all associated with the MMMA.
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No system of regulation can succeed without a clear set of rules. [*106] Those wishing to use marijuana need to know when, how, and under what conditions they can legally do so. Providers need to know under what conditions they can legally grow, harvest, and distribute their product, and the operators of the new medical marijuana clinics that appear to be springing up on every corner need to know if they are in fact set up to dispense marijuana to the public legally. Until today, the DCH, the Legislature, and the appellate courts have answered very few of these questions. Pressure and confusion results from trying to operate under a system where no one has stepped forward and stated specifically what actions are legal and what actions are not. It appears that most elected officials, including my colleagues, understand the political nature of this controversy and simply choose to address the MMMA only to the extent that a particular occasion requires. I, on the other hand, right or wrong, prefer giving some notice to those concerned before they are deprived of their liberty and property. 36
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36 I am reminded of Shakespeare's sentiments, "Yet the first bringer of unwelcome news / Hath but a losing office" (Henry IV, part 2), and "Come hither, sir. Though it [*107] be honest, it is never good to bring bad news" (Antony and Cleopatra), and a more modern equivalent, "please don't shoot the messenger".
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What is clear from reading the lower court record in this case is that no one has set out a comprehensive plan to implement the new MMMA. The job of setting public policy should not be handed to the courts as a consequence of inaction of legislative or administrative officials. Those elected and appointed officials can choose to remain silent and allow the courts to interpret this act on a piece-meal or case-by-case basis, or the statute can be revised, or pertinent administrative rules revised, to provide a clear direction to all citizens, including the courts, who are affected by this act.
VII. CONCLUSION
To quote from Sir Walter Scott's 1808 poem, Marmion, "O, what a tangled web we weave / When first we practise to deceive!" Of central importance to this appeal is the question, is the MMMA a subterfuge for legalizing marijuana in this state, or is it a legitimate medical reform intended to help only those individuals who have a terminal illness or a serious or debilitating medical condition?
The answer is simple. For those who instituted the process [*108] of placing the proposal on the ballot, the MMMA was both an avenue for allowing society to explore the medical uses of marijuana, but also a first step in legalizing marijuana in Michigan. For some citizens who voted for the bill out of empathy for the terminally ill or those suffering from debilitating conditions, it was a vote for a medical process that would help those in need. Unfortunately for all concerned with the implementation of the medical mission, including compassionate-care groups, marijuana growers, marijuana users, marijuana dispensers, police, prosecutors, municipalities, townships, etc., the act has resulted in much confusion. And it has suggested itself to many purely recreational marijuana consumers as a vehicle to aid in their continuing illicit indulgence in that vice.
In any event, the MMMA is currently the law in the state of Michigan. To the extent possible, it must be administered in a manner that protects the rights of all of our citizens. When prosecutors and defense attorneys agree that the law is hazy and unclear and poses hazards to all concerned because it does not with sufficient clarity identify what conduct is now legal and what conduct remains illegal, [*109] it is time for action from our legislative and executive officials. While the MMMA may be controversial and polarizing, politics should be set aside in the interest of the rule of law in our state. 37
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37 I note that Senators Kahn, Kuipers, and Van Woerkom have introduced bills that might resolve some of the issues raised in this opinion.
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With the MMMA, two roads have diverged in the forest: 38 one leads to refining and distilling the administrative rules and other law associated with the act, and the other leads to the regulators and regulated alike being totally confused concerning how to give effect to the act. The former leads to the orderly implementation of the MMMA, while the latter leads to disrespect for the law and possibly contempt for the rule of the law itself. 39 Our legislative and administrative officials must make a choice: they can either clarify the law with legislative refinements and a comprehensive set of administrative rules, or they can do nothing. In this situation, no decision is, in fact, a decision to do nothing. 40
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38 This line is adapted from the beginning of Robert Frost's poem, The Road Not Taken ("Two roads diverged in a yellow wood,").39 An example of confusion [*110] at best, or disrespect for the law at worst, is that there is a marijuana shop in Lansing that is less than 100 feet from a school. Clearly, this shop is in violation of the federal Safe and Drug-Free Schools and Communities Act, 20 USC 7101 et seq.40 I recall an old cartoon that depicted a king in his palace, with his subjects outside rioting, pillaging, and otherwise destroying the kingdom. The king asks, "Why are they rioting, I didn't do anything?" His wisest advisor responds, "Maybe that is the problem."
Court rules THCF clinic is a fraud
I'm interested in learning what the outcome and ramifications of such cases are.
However, it would be much more useful to the layperson if they were discussed in a clear and concise manner, and without resorting to namecalling. Otherwise, most people simply won't read it, and probably won't be nearly as interested in reading those people's posts in the future.
I'm just sayin'.
Court rules THCF clinic is a fraud
Court rules THCF clinic is a fraud
The problem is when judges and attorneys become involved it becomes more complicated that it really is. All they have to do is follow the intent of the law. The voters want MMJ for patients, if they're basically in the guidelines, leave them alone.
Court rules THCF clinic is a fraud
Quote:
Originally Posted by postableme
I'm interested in learning what the outcome and ramifications of such cases are.
However, it would be much more useful to the layperson if they were discussed in a clear and concise manner, and without resorting to namecalling. Otherwise, most people simply won't read it, and probably won't be nearly as interested in reading those people's posts in the future.
I'm just sayin'.
Hi chet,
Glad to know your interested in "these type of cases" but, it should be that the poster is irrelevant to the information being posted, especially in these types of cases...if people miss the info. because of the person giving the same message with the same data...well then I guess one can be as color blind as they wish...
The real issue here is I don't hold back "anything" related too or against THCF period...they violate every public policy known in the healthcare community...I.E. PAUL STANFORD IS A FRAUD AND CROOK..
It would behoove us all for the doc-in-the-boxes to go away..as this is why these cases arise...because as the concurring judge shows us...this is completely wrong.
Court rules THCF clinic is a fraud
Quote:
Originally Posted by wreckinger
I am sorry sir, but your accusations are completely false regarding The Hemp and Cannabis Foundation. The medical evaluations our doctors conduct and authorizations our doctors sign are 100% completely valid and are in full compliance of every states medical marijuana law they operate in. If you read close enough to the judge's comments you would have noticed that he acknowledged the legitimacy of Dr. Eisenbuds authority to issure a medical marijuana recommendation and comended Dr. Eisenbuds evaluation stating:
"The district court also noted that although Dr. Eisenbud testified regarding defendants' legitimate need to use marijuana for medical purposes, there was no testimony regarding what was a reasonably necessary amount for defendants to possess. The district court concluded that it would simply apply the amount of two and one-half ounces and 12 plants set by § 4 as what was reasonably necessary, [*11] and it granted defendants' motion to dismiss, explaining:
"For that reason, I believe that section 8 entitles the defendants to a dismissal, even though they did not possess the valid medical card, because section 8 says if they can show the fact that a doctor believed that they were likely to receive a therapeutic benefit, and this doctor testified to that [sic]. And Dr. Eisenbud is a physician licensed by the State of Michigan. And that's the only requirement that the statute has. You don't have to be any type of physician, you just have to be a licensed physician by the State of Michigan.
So, based on that, I find section 8 does apply. And I believe I'm obligated to dismiss this matter based on section 8 of the statute.
Regarding the prosecution's request for a clarification about whether "the doctor's testimony rose to the level of a bona fide physician-patient relationship," the district court stated:
Based on his testimony, he indicated that he -- he read their medical records, he saw them, and I think his total time was about half an hour totally spent with them, which, based on my own personal experience, I don't find inconsistent with my own doctor. So I guess it's a bona fide [*12] relationship."
The judge clearly confirms that Dr. Eisenbud was licensed in Michigan at the time of their appointment and was within the scope of his authority to recommend medical marijuana for these patietns, while establishing that his medical evaluation did meet the criteria of a "bona fide physician-patient realtionship."
As Killerweed mentioned before, the prosecuting argument was weather or not the patients were legal or not because they did not physically posses the state issued license, which is a problem in every state that has a medical marijuana registry AND an affirmative defense argument set up in their MMJ law. Remember, this is not the ruling majority opinion, and the case is still in litigation.
Similar issues are happening here in Colorado where it is taking the state registry 7-8 months to issue licenses, eventhough in the law it states that the patient has to be notified within 35 days otherwise they are to be considered legal.
THCF's protocal has been investigated and approved by state regulatory authorities in 9 states. We follow a protocol developed by the Oregon Health Department and it has been investigated and found valid and meeting current acceptable standards of medical practice in in Washington, Colorado, Hawaii, Nevada, and Montana.
Furthermore, THCF stands behind and defends its patients no matter what the problem or charge may be. We are the only organization to defend patients in a DEA investigation from a grand jury subpoena. The federal court judge wrote at the end of his decision, " ... (THCF) Clinic's records represent the implementation of the State's program and are integral to the success of the program."
The Hemp and Cannabis Foundation has been helping patients obtain a medical marijuana permit nationwide since 1999, helping over 100,000 patients. Now don't you think that an organization that has been around that long and has helped so many people obtain a medical marijuana permit would be under close federal scrutiny, and if there had been any questions or investigations regarding the legitimacy of their practices, THCF would have been shut down long ago? Fact of the matter is that our organization is always up to standard and in complience with current medical marijuana laws for each and every state we operate in.
Furthermore, THCF stands behind and defends its patients no matter what the problem or charge may be.
YOU ARE SO WRONG HERE !! I HAVE IN MY POSSESSION MANY DECLARATIONS FROM THE HEAD CEO DENYING APPROX. 17 PATIENTS LAWFUL COVERAGE AFTER BUYING ONE OF THOSE FRAUDULENT DOCUMENTS THIS COURT FOUND TO BE TRULY NOT A BONA-FIDE RELATIONSHIP ..I.E. THE EXACT SAME ONES YOU THINK THAT FEDERAL CASE WAS ABOUT...I SUGGEST YOU REALLY READ THAT FEDERAL CASE..IT IS NOT WHAT IT APPEARS TO BE( no prosecutor in their right mind, with even half a brain would produce"probable cause" info. to any grand jury proceeding, this is very highly suspect...AND WILL BE SUPERSEDED AS TO THCF, NOT THE STATE...GUESS YOU MISSED THE PART ABOVE WHICH SHOWS THCF OR IT'S EMPLOYEE DOCTORS ARE NOT AMENABLE TO ANY AGENCY OVERSITE TO SHUT THEM DOWN...OR SUE THEM..., and gives out fraudulent documentation to patients,.....HELLO??
Court rules THCF clinic is a fraud
Quote:
Originally Posted by justpics
lol block o text
Better than block-o-head.lol.;)
This is called read it for your own self....sorry you have such a discriminatory animus towards reading legal info. from the courts...I could cut out alot of this block text and just say as I do, THCF is a fraud, paul stanford is a fraud, the documentation from thcf or any doc-in-the-box with a 1 yr. is a pretext to allow the clock of the aff. defense to be reset every year, just for the judicial system to make money....:D
But, my choice is to show every step of the process of shutting down doc-in-the-boxes....U.S. wide....they are why we go to jail with our thoughts they will protect us...as the judge points out...tis not the case, they fraud patients and take their money unlawfully.
Court rules THCF clinic is a fraud
Instead of posting endless blocks of text, if you want people to read your posts, you can read through it and just quote the most relavent sections.
No one is going to read all that.
Court rules THCF clinic is a fraud
Quote:
Originally Posted by justpics
Instead of posting endless blocks of text, if you want people to read your posts, you can read through it and just quote the most relavent sections.
No one is going to read all that.
What is relevant to some is irrelevant to others...I as well as others have read the whole text I posted...it's a mater of what your interested in reading..if it is block text to you, then don't read it...
We can't please everyone now can we?
What was so relevant to me..the court ruled against the way THCF operates to fraud patients..and how the concurring judge explains why...but, to understand why, ya got's to read the whole damn thing or you get the remarks posted above because people don't fully understand why the appeals court ruled like it did...reschedule, instead of THCF pretext to fully legalize cannabis in the u.s.....just as the state of Oregon did.
The court is correct about the bona-fide patient-physician relationship issue, because the owner of THCF is not a licensed healthcare practitioner(which they left out of the current ruling, I am sure if the patients don't plea bargain, it will come out in a trial...). A person signed with THCF is actually doing business with the owner/operator via contract which in turn is invalid, because fee splitting is illegal and to boot THCF website clearly claims they do not "DIAGNOSE" any patients but, are only a IME clinic..in Oregon state, IME clinics can be owned and operated by laypersons....non licensed healthcare laypersons.