Joseph Casias became a well-recognized name in Michigan’s Medical Marihuana circuits after being fired from his position at Wal-Mart for failing a drug test.  With ACLU’s legal support, Mr. Casias sued his employer for wrongful discharge and violation of the MMMA.  The US District Court for the Western District of Michigan dismissed Mr. Casias’ complaint finding that the MMMA did not regulate private employment.  Mr. Casias appealed to the US Court of Appeals for the Sixth Circuit.  Oral arguments were held on April 18, 2012.  Almost five months after hearing the arguments, the Court released its opinion AFFIRMING the lower court’s decision .

In its analysis, the Court not only addressed the statutory interpretation of the language used in the act, but drew supporting conclusions from sister states’ judicial decisions on similar employment cases.   The Court also concurred with the District Court in responding to Casias’ public policy argument, refusing to broaden the MMMA’s reach to private employment and business settings .

The Casias opinion fell short of addressing the much awaited “federal law” vs “state law” preemption analysis, leaving that chapter in the medical marihuana saga to another day.

The opinion of the Court can be found at: Casias v Wal-Mart.

The Supreme Court’s February 8, 2013 decision in the http://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/12-13-Term-Opinions/143824%20Opinion.pdf "> State of Michigan v McQueen , popularly known as the Isabella Dispensary case will have ramifications that are greater than initially anticipated.  The 4-1 majority opinion disagreed with the Court of Appeals’ interpretation regarding the reach of “medical use” as that term appears in the Michigan Medical Marihuana Act (MMMA).  Stating that the transfer of medical marihuana inherently included the act of sales, the Supreme Court overruled the Court of Appeals’ findings to the contrary.  However, the Supreme Court Justices further found that the Act’s Section 4 immunities were only available for qualifying patients who were alleviating their own debilitating conditions.  The opinion is unequivocal : “Section 4 does not authorize a registered qualifying patient to transfer marijuana to another registered qualifying patient.”   Therefore, even though the Court of Appeals’ August 2011 decision was for the wrong reasons, it reached the correct result in finding the defendant McQueen’s dispensary operation a public nuisance.

The McQueen opinion immediately negates the most recent opinion of the Michigan Court of Appeals’ January 29, 2013 decision in http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20130129_C308133_41_308133.OPN.PDF "> People v Green which had approved a transfer of medical marijuana between two qualifying patients where there is no exchange of money or other compensation.  An appeal of that decision by the State of Michigan is expectedly imminent.

Justice Cavanagh authored the only dissent in the case, and newly elected Justice McCormack took no part in the decision.

In a recently released   Opinion and Order, 30th Circuit Court Judge William E. Collette addressed the reach of   Casias v WalMart’s ruling excluding private employers from   Michigan’s Medical Marijuana Act’s prohibitory rules.

In Casias medical marihuana users were held to have no expectancy of job protection in a private employment setting.  In the Ingham County case Kemp v Hayes Green Beach Memorial Hospital, a former radiology technologist was fired for testing positive in a drug test ordered after a patient overheard her comments about being a registered MMMA patient.  Kemp informed her employer that she would test positive as she was indeed an MMMA patient who ingested marijuana.  The hospital terminated her employment after test results showed traces of “11-carboxy-THC.”  Kemp applied for unemployment benefits.  After an initial determination of disqualification, Kemp filed for redetermination and was qualified for the benefits based on the fact that she was a registered MMMA card holder and was prescribed medical marijuana.  Appeals by the employer to an administrative law judge and then to the Michigan Compensation Appellate Commission denied Kemp unemployment benefits based solely on Casias.  Kemp appealed the decision to the circuit court.

Judge Collette’s final opinion differentiates Casias from Kemp by finding the former was a wrongful termination action against a private employer whereas the latter sought unemployment benefits provided for by state laws enforced and interpreted by a state agency.  Hence, Judge Collette concluded that the “conditions for disqualification from unemployment benefits are state action that are subject to the protections of the MMMA.”  The Opinion and Order further goes on to observe based on recent case law, that  “11-carboxy-THC” is neither a schedule 1 controlled substance under Michigan law and its presence did nothing to show that Kemp used medical marijuana in a manner inconsistent with the MMMA.  Kemp’s unemployment benefits were reinstated.

City of Royal Oak joined 21 other Michigan communities by its adoption of a human rights ordinance disallowing discrimination based on 16 factors including sexual orientation, age, height, weight, condition of pregnancy and HIV status.  Violations will be a civil infraction punishable by a fine up to $500.00. The ordinance will take effect on March 14, 2013.

Signed into law on December 31, 2012, the Iran Economic Sanctions Act , Public Act 517 of 2012, MCL 129.311, et seq., is only couple pages long and, at least on its face, is simple enough to interpret as a preventive measure in assuring that public entities are not engaged in businesses with persons or financial institutions that are tied to the Iranian energy sector. Beginning April 1, 2013, public entities accepting bids for requests for proposals (RFPs) are required to certify that bidders are not “Iran linked businesses”. The Act defines an “Iran linked business” as a person engaging in investment activities in the energy sector of Iran or a financial institution that extends credit to another person, if that person will use the credit to engage in investment activities in the energy sector of Iran. The “investment activity” is then defined as investments or credits (of 45 days or more) of 20 million US Dollars or more.

If a certification by a bidder is later found to be false, the bidder not only may lose all existing contracts with the public entity, but must be reported to the Attorney General who may bring a civil action demanding not more than $250,000.00 or 2 times the amount of the contract, the cost of reasonable attorney fees and the public entity’s investigation.

As simple as the Act appears, it actually results in a huge burden on financial institutions to investigate where the funds they will loan will be invested. Short of continuous monitoring of its loans, extending a certification based on the current knowledge of the financial institution may not protect it from the acts of its debtors.

Starting April 1, the State of Michigan or an agency or authority of the state, school district, community college district, intermediate school district, city, village, township, county, public authorities, or public airport authorities are required to seek these certifications from bidders on RFPs. Whereas public authority is not defined within the Act, it is likely that the Act would be held to be applicable to both Drainage Districts and Transportation Authorities. Hubbard attorneys This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spambots. You need JavaScript enabled to view it and This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spambots. You need JavaScript enabled to view it can be reached at (517) 886-7176 for comments and questions.

Signed into law on October 16, 2012, 2012 PA 341 gives transit service providers the ability to require certain employees to be fingerprinted and undergo a state and federal criminal history check. Moreover, once fingerprinted, the agencies will receive automated notification if the fingerprinted employee is arrested in the future.

If a transit agency chooses to obtain such criminal history checks, the new law requires the agency to develop a written fingerprint policy describing how fingerprints are takes, to whom the fingerprints are sent, and how the fingerprints are used. Any criminal history data regarding employees kept on file by a transit agency is exempt from disclosure under the Freedom of Information Act.

This new law goes into effect 91 days after the final adjournment of the 2012 Regular Session of the Michigan Legislature.

For more information about this new law and the policy required if a transit agency determines to implement it, contact Attorney  This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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On May 1, 2012, a new house bill intended to clear the murky waters surrounding the State's Medical Marihuana Act was introduced by Representatives Callton, Daley and Cavanagh.  Unlike many bills introduced in the last year and a half, HB 5580 allows for protected acquisition, possession, cultivation, manufacture, delivery, transfer, transportation and sale of medical marihuana in the State.  The new bill allows for distribution and cultivation sites called "Medical Marihuana Provisioning Centers" ("MMP Centers") to be located at municipalities allowing such businesses.  State criminal law immunities are provided for these centers and their employees as long as their conduct is within the limits of the bill and allowed by the municipalities in which they occur.  Included in the list of protected activities are sales of medical marihuana by the qualified patients and registered caregivers to the MMP Centers and vice versa and transportation of medical marihuana to qualified patients' homes or MMP Centers.  A primary concern of most local governments with respect to physical locations of medical marihuana growth and distribution centers is also addressed in the bill.  It would prohibit their existence within 1,000 feet from any preexisting school and ban the sharing of a building with a physician.

The Act also introduces "Safety Compliance Facilities" for testing medical marihuana for contaminants or potency.  The employees and owners of these facilities are also granted immunities.  Local municipalities are given the right to regulate and license both the MMP Centers and Safety Compliance Facilities. Access to cultivation and growth sites are limited to business employees and in limited instances, others including employees of a municipality required to inspect the activities.  In case of transportation and transfer of medical marihuana, such activities are granted immunity only through those localities where they are allowed.  Non-resident medical marihuana card holders from other states, the definition of usable marihuana and record keeping requirements in relation to confidentiality concerns are also addressed in the proposed bill.

The language of HB 5580 addresses many of the hurdles the Michigan medical marihuana community, law enforcement and the judiciary have tried to navigate since the passage of the Michigan Medical Marihuana Act.  Although acceptance as proposed is highly doubtful within the current mosaic of State legislation, the Bill would provide for some balance between the medical marihuana community and the State and local government.

A full text of the proposed bill can be found here.

The Kent County Drain Commissioner sought to make improvements to the Waters Drain and to apportion the cost of such improvements to property owners located in the Waters Drain Special Assessment District pursuant to the Michigan Drain Code. Plaintiffs owned land within the special assessment district. As permitted by Section 155 of the Drain Code (MCL 280.155), plaintiffs appealed the apportionment to the probate court. The probate court appointed a three-member board of review. The Hubbard Law Firm represented the Drain Commissioner, and argued before the board of review that the Drain Commissioner's apportionment should be upheld. After hearing, the board of review rejected plaintiffs' challenge and upheld the Drain Commissioner's apportionment. The probate court ordered plaintiffs to pay $6,659.97 for the Drain Commissioner's attorney fees.

This case concerned a provision of the Drain Code that contains broad language giving the probate court discretion to determine the "whole costs and expenses" of the appellate proceeding.

Plaintiffs appealed the ruling, arguing that the "whole costs and expenses" language of Section 158 of the Drain Code MCL 280.158 does not encompass attorney fees. While the statute does not explicitly reference attorney fees, it does provide that an "appellant shall pay the whole costs and expenses of such appeal." The Court of Appeals, in a published opinion, accepted The Hubbard Law Firm's argument, and held that the use of the expansive term "whole" in MCL 280.158 reveals the Legislature's intent that a landowner appealing an apportionment must pay the entire or total amount of costs and expenses of the appeal. The Drain Commissioner's legal expenses in defending such an appeal would constitute a portion of the entire or total expenses of an appeal. In light of the Legislature's use of the broad term "whole" to modify the phrase "costs and expenses," the Court of Appeals concluded that the phrase "whole costs and expenses" of MCL 280.158 encompasses attorney fees.

View the Opinion.

For more information about this Opinion, or the Michigan Drain Code in general, contact Attorneys Andria Ditschman ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) or Michael Woodworth ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ).

On March 1, 2012, the House Judiciary Committee and lawmakers heard comments from key groups on the state of the Medical Marijuana Act, but particularly on the four bills that are in front of the Committee.  The Key groups included associations of patients, compassion clubs, the American Civil Liberties Union, the Michigan State Medical Society and Michigan State Police.  The roster was assembled Wednesday, February 29, 2012, by the office of state Senator John Walsh, R-Livonia, chairman of the committee.

The four bills (HB 4834, 4851, 4853 and 4856) are being considered simultaneously, as a package, and collectively contain nine different proposed changes to Michigan law. The bills would amend various acts related to medical marihuana to:

• require a patient registry identification card to contain a photo ID;
• require registry identification cards to be valid for two years;
• require LARA to privatize portions of the application process for a registry ID card;
• revise confidentiality provisions to apply to private vendors;
• define "bona fide physician-patient relationship" to include an in-person, physical examination of the patient, and revise other definitions, such as "enclosed, locked facility" and "written certification";
• place the penalty for selling marihuana in violation of registry identification card restrictions within the sentencing guidelines; and,
• regulate the transportation of medical marihuana in a motor vehicle and prescribe penalties for a violation.

The focus of the second hearing scheduled for March 8 will be on the individuals who want to address the legislative body.  Thursday's hearing is in Lansing, 10 a.m.-noon in Room 519 of the House Office Building (124 N. Capitol Ave.) Individuals interested in attending can call the office of state Rep. John Walsh -- 517-373-3920; or send an e-mail to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Michigan's Medical Marihuana Act is a citizen initiated law which was approved by 63% of the voters in 2008.  Now in 2012, after a year of frustrations, supporters are gearing up to hit the streets (and now the internet) to gather enough signatures to bring a new citizen initiated law proposal to the people.  Recently approved language of the constitutional amendment aims to end the marihuana prohibition as we know it.  The proponents of the initiative have to gather over 322,000 qualifying signatures before July to put the proposal on the ballot in the general elections this November.  To be approved, it has to get more votes in support of the amendment than those against it.

The proposed amendment reads:

"For persons who are at least 21 years of age who are not incarcerated, marihuana acquisition, cultivation, manufacture, sale, delivery, transfer, transportation, possession, ingestion, presence in or on the body, religious, medical, industrial, agricultural, commercial or personal use, or possession or use of paraphernalia shall not be prohibited, abridged or penalized in any manner, nor subject to civil forfeiture; provided that no person shall be permitted to operate an aircraft, motor vehicle, motorboat, ORV, snowmobile, train, or other heavy or dangerous equipment or machinery while impaired by marihuana."

With over 129,000 registered medical marihuana users in the state, the required number of petitions may not be a difficult goal for the proponents of the bill to attain.  However, whether or not the voters will have the same acceptance for free recreational use compared to the 2008 support for limited medical use will remain to be answered on November 6, 2012.