To date, the Department of Justice has sent five other states similar guidance letters.  Within the last month, Arizona, Rhode Island, Colorado, Hawaii, and Montana all received clarification of the Department's position on medical marihuana.  More recently, New Jersey sent a letter to the Department asking to clarify its position on state employee liability.  The Department has not responded yet. 

     All five states received the letters in response to either their proposed or adopted plans to license large-scale medical marihuana dispensaries.  With the exception of the Rhode Island letter, the Department of Justice wrote the letters because the states inquired about their rights.  The United States Attorney in Rhode Island wrote the state without request. 

     The federal letters all share similar language.  The letters remind state officials that marihuana is a schedule I substance and that enforcement of the Controlled Substances Act remains a core priority.  The letters distinguish enforcement priority between seriously ill individuals and large-scale commercial marihuana cultivations and distribution operations, emphasis on the latter. 

     The bigger issue is whether state officials or employees who are charged with implementing these licensing regulations are subject to liability under the Controlled Substances Act.  So far, the Washington letter is the only letter that specifically says state employees are not protected.  Other letters use broad language, a liberal interpretation of which could encompass state employees.

     For example, the Colorado letter says that it is well settled that a State cannot authorize violations of federal law and the Department is considering prosecuting those who "set up" marihuana growing facilities and dispensaries.  United States Attorneys from Arizona, Rhode Island, and California are committed to prosecuting those who "knowingly facilitate" the conduct of the dispensary owners.  The Hawaii letter says penalties will be enforced against those who seek to create marihuana distribution centers pursuant to the state licensing bill.  Conduct of the state employees charged with implementing the licensing regulations could be encompassed within the Department's broad definitions of liability.  Therefore, many of the states decided to put licensing on hold.  The Governor of Washington went so far as to veto the state's licensing legislation.  Feel free to view the Arizona, California, Colorado, Hawaii, Montana, Rhode Island, and Washington letters. 

Ever since California enacted the first medical marihuana law in the early 1990's, the interplay between the Federal Controlled Substances Act and state medical marihuana statutes have caused local governments and state agencies quite a headache.

     Many interpreted a 2009 letter from Assistant United States Attorney - Ogden - reporting that the federal government would not allocate its resources to prosecuting patients and distributors who are in "clear and unambiguous compliance" with state medical marihuana laws as the Obama administration's silent bow to state rights.  The consensus was that the political climate was shifting towards accepting medical marihuana as a therapeutic rather than a Schedule I controlled substance. 

     Fast forward two years later.  Federal raids and complaints against medical marihuana dispensaries are on the rise.  The recent nationwide crackdown is evidenced by the Department of Justice's response to a request to clarify rights regarding a proposed zoning ordinance in Oakland California.  The ordinance called for the licensure of industry-sized marihuana grow centers.  The Department responded by warning the City of Oakland that any commercial operation was a violation of federal law.  After the responsive letter was released, California's U.S. Attorney announced that if the City passed the law, it was likely that the city council and other local officers ordaining and enforcing the ordinance would face penalty.

     One month after the California show down, the Governor of Washington requested similar guidance from the U.S. Attorney General.  Specifically, the Governor wanted to know the Department's position in light of the Ogden and California letters.  The Governor further inquired whether state employees charged with inspecting and auditing licensed dispensaries would be immune from federal prosecution. 

     In a swift and pointed response, U.S. Attorneys from both the Eastern and Western Districts of Washington wrote that the proposed legislation is contrary to federal law, the department could pursue both civil and criminal penalty against dispensaries, and state employees who conducted activities mandated by the legislative proposals would not be immune from liability under the Controlled Substances Act.

     It seems the federal government has limited and further defined the scope of the Ogden letter.  Deference to use may only be given to individuals who do not manufacture or distribute medical marihuana.  Federal law enforcement agencies are not as concerned with seriously ill individuals who use medical marihuana in compliance with state law.  Rather, the federal government made it a point that its "limited resources" are more effectively spent enforcing the Controlled Substances Act against large-scale grow operations. 

     Whether state employees charged with implementing state licensing schemes are subject to liability may be in conflict with Section 885(d) of the Controlled Substances Act.  The Section states that no civil or criminal liability shall be imposed on any officer of any State who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.  For more information, please read the following California and Washington articles.

     Last week, Eric VanDussen was denied access to videotape court proceedings in the upcoming case of People v Anderson.  The Michigan Supreme Court reviewed the denial, remanded the issue, and required an explanation of why the "fair administration of justice" excluded Mr. VanDussen.  In a brief response, the Court of Appeals explained that because Mr. VanDussen supplemented his initial request with information showing that he is engaged in news gathering, he fits into the "media" category as defined by Administrative Order 1989-1 and will be able to film the proceedings. 

     A seminar aimed at helping medical marihuana patients was cancelled after Highland Township threatened the scheduled speaker with a land-use violation.  Rather than subjecting the patrons to potential police action, the owner of the seminar location decided to forego holding the meeting.  This presents an interesting conflict between an individual's right to assemble and speak on private property and a municipality's application of its zoning ordinance.  The Township's decision was based on its moratorium banning facilities or activities related to the growth, sale, or dispensation of marihuana.  More information can be found in the following article.

     Eric VanDussen is working on a documentary showing how different law-enforcement officials, prosecutors, and courts are enforcing the Michigan Medical Marihuana Act (MMMA).  Paramount to the success of the documentary is Mr. VanDussen's ability to videotape court proceedings.  Recently, the Michigan Court of Appeals denied Mr. VanDussen's request to videotape, People v Anderson, a criminal case that is likely to have an impact on the MMMA.  Citing Administrative Order 1989-1, the Court of Appeals did not believe the fair administration of justice required the videotaping.  Mr. VanDussen has asked the Michigan Supreme Court to review the denial.

Less than a month ago we referred to an article discussing the federal push to 'stymie' medical marijuana dating back to 1996, when medical marijuana first became legal in California.  The article discussed three phases of federal government involvement with state medical marijuana laws.  The first phase of attacks targeted doctors while a second phase took aim at landlords.  After several cases and years of litigation neither method proved successful to overcome California's medical marijuana laws.

Fast forward to present day where Michigan seems to be the stage for the reenactment of the same show:  on April 17, 2011, a Saginaw doctor, Ruth A. Buck, will be indicted on charges of aiding and abetting the distribution of marijuana, a Class I controlled substance under federal law.  Under Michigan law, a licensed health professional may recommend use of marijuana for a a number of "debilitating conditions" listed in the Act.  The wording of the Act carefully avoids reference to "prescribing" marijuana as such a prescription would place a physician in direct violation of federal law.  The federal complaint in Dr. Buck's case questions the due diligence of her patient reviews and alleges that she referred at least one patient to a Bay City dispensary to acquire marijuana.

The series of cases involving California doctors in the late 90's were typically tried and decided on somewhat different claims and grounds.  Some complaints tried to compel the physicians to disclose patient names, or sought to convict doctors as accomplices in the procurement and possession of marijuana.  The United States District Court for Northern California found these tactics to be unconstitutional in the frequently cited case of Conant v McCoffey.

It will be interesting to see if after fifteen years and fourteen states with similar medical marijuana laws, the show first played out in California will come to a different conclusion in Michigan.

     On March 24, 2011, the Alpena County Circuit Court determined that "The Health Center," a medical marihuana facility that served 60 clients, acted outside the "medical use" exception provided in the Michigan Medical Marihuana Act (MMMA) when it provided a location for qualified patients to sell medical marihuana to other qualified patients. 

     In interpreting what constitutes a "medical use," the Circuit Court found dispositive the fact that the MMMA specifically mentions caregiver-to-patient sales of medical marihuana.  It says that "a registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana."  The receipt of such compensation "shall not constitute the sale of controlled substances."  Therefore, the Court concluded that the drafters of the MMMA considered the issue of medical marihuana sales and chose not to include patient-to-patient in the definition.  It found patient-to-patient sales did not constitute the "medical use" of marihuana and "The Health Center," to the extent that it is engaged in prohibited sales, is a public nuisance.  This opinion is at odds with a case out of Isabella County currently awaiting appeal, State v McQueen, which held patient-to-patient sales fell within the MMMA.

     On March 28, 2011, the Office of the Attorney General announced that it filed two amicus briefs in support of Oakland and Isabella County Prosecutors.  The two cases involved are State v McQueen and People v Redden. 

     In McQueen, the Isabella County Prosecutor challenged the legality of a for-profit medical marihuana dispensary.  Schuette's brief urges the Michigan Court of Appeals to hear the case and argues operating the dispensary violates the Michigan Medical Marihuana Act (MMMA) for three reasons: 1) the MMMA does not allow the sale of medical marihuana for profit; 2) the MMMA does not provide for patient-to-patient transfers of medical marihuana; and 3) the dispensary owners are in possession of an amount of medical marihuana in excess of the legal limit provided under the MMMA.  Therefore, Schuette argues that because the dispensary violates state law, it should be declared a public nuisance and closed to protect public health and safety.

     In Redden, the Oakland County Prosecutor asked the Michigan Supreme Court to review whether unregistered users of medical marihuana are entitled to assert a defense under the MMMA.  Schuette argues that only qualified patients and caregivers registered with the Michigan Department of Community Health are protected by the MMMA.  For more information please read the following press release.

     Banks in California are feeling the squeeze from the federal government.  Presently, several government agencies are asking banks to report any suspicious activity pertaining to the sale of marihuana.  Instead of complying with the requests, banks have opted to take the easier route and close all accounts of medical marihuana dispensaries.  Further, a recent push by the IRS to audit the books of medical marihuana dispensaries has resulted in an overall denial of business tax deductions.  The federal tax code precludes business deductions to those engaged in activities connected with the manufacture and delivery of drugs listed in Schedule I of the federal Controlled Substances Act.  Marihuana is such a drug.  One dispensary in California plans to fight the IRS in court.  The dispensary would like the court to review whether marihuana should continue to be classified as a Schedule I drug. 

     Other advocacy groups are working with legislators to introduce five new marihuana reform bills.  One proposed bill, the Truth in Trials Act, would make evidence of the medical use of marihuana admissible in federal court.  Others bills include an effort to declassify marihuana from a Schedule I to a Schedule II substance, a federal decriminalization bill, an outright legalization bill, and a bill that would shape the way banks treat dispensaries.  For more information, please read the following article.