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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."