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Thursday, November 4,2010

Will of the people

Law enforcement sees medical marijuana law as vague, may have to wait for courts to clear it up

by Neal McNamara
For 40 years, attorney Richard McLellan has been representing regulated industries like liquor, gambling and insurance. And now, he is venturing into a new regulated industry: medical marijuana.

McLellan, who was once appointed acting director of Michigan’s office of drug abuse by former Gov. William Milliken, is working with a group that wants to set up a private, for-profit medical marijuana cultivation venture. He called it a “high-end medical marijuana project.”


“We think there is a role in this emergent medical marijuana market for an entity that really focuses on the quality and issues related to those persons who most benefit medically from marijuana,” he said. “It’s a very complicated business in assuring the medical efficacy of the product — that it’s grown and manufactured and tested in a way that gives the patients what they need. We think there is a great need to, over time, come up with a system that has the confidence of the physician community.”


McLellan said there needs to be a business plan, financial support and an understanding of how such a venture could exist under the state’s medical marijuana law. McLellan used to work for the Dykema Gossett law firm, which was hired to write the law. He even wrote some of it.


“Our focus is to take the law as we have it and develop a strategy within the confines of the existing law,” he said.


But it is Michigan’s existing medical marijuana law that some say is too vague, poorly written and the root of a ton of legal questions. Across the state, medical marijuana dispensaries and compassionate care clubs are popping up, and cities, towns and villages are trying to change zoning laws to fit the unexpected new businesses. Prosecutors in counties across the state have to reconcile traditional law enforcement views on medical marijuana with the new law. And the state Department of Community Health is having trouble distributing medical marijuana cards as fast as applications are coming in, and some patients are being arrested for it.


Ingham County
Prosecutor Stuart Dunnings views the medical marijuana law as
“horrible” — not for its intent, but for its vagueness. To wit: The law
says you can only grow marijuana in a locked area. Does that mean you
can grow it outside as long as there’s a locked fence? What if someone
grows a marijuana plant that produces more than is allowed under the
law? What if someone is arrested for possession of marijuana — as
Dunnings has seen a rash of recently — and then goes and applies for a
medical marijuana registration card?


“Everyone is sort of walking around with big question marks,” Dunnings said.


As far as medical
marijuana dispensaries, Dunnings believes they are illegal if they are
outside the scope of a caregiver/patient relationship. Under the law, a
medical marijuana caregiver can provide up to five patients with the
medicine.


“If they are servicing more than five patients, then it’s illegal,” he said.


Dunnings says that his
office could create a policy regarding medical marijuana prosecutions,
but he does not know if it would hold up in court. Plus, the state
would still have an unclear law.


Dunnings has been
meeting with various medical marijuana stakeholders to better educate
his office in the law. He met last week with East Lansing attorney
Robert Baldori, who represents people charged with marijuana offenses,
to discuss “safe harbor” areas. Baldori, who favors marijuana
decriminalization, says that many words in the law lack a definition —
something that the Legislature should step up to. For example, he said,
the law says a patient can “acquire” medical marijuana, but the word is
not defined.


“The Legislature is treating this like a hot potato,” he said. “They should clarify this.”


Three senators
introduced bills last year that would change medical marijuana law, but
those have gone nowhere. The three senators who wrote the bills — Roger
Kahn, R-Saginaw, Wayne Kuipers, R-Holland, and Gerald Van Woerkom,
R-Muskegon — did not respond to requests for comment.


On the law enforcement
side, a committee of prosecutors with the Michigan Prosecuting
Attorneys Coordinating Council has formed to collect information about
medical marijuana cases. The committee chairman, Berrien County
Prosecutor Art Cotter, says changing the law compeltely is unlikely: it
would take a 3/4 majority vote from both chambers of the Legislature,
or an entirely new ballot proposal — plus, the original ballot proposal
passed with 63 percent of the vote. Rather, the committee will give
direction to prosecutors from across the state on how to proceed with
issues in the law. Cotter said that, eventually, the court would have
to interpret the vague spots in the law.


“Until this is in the Court of Appeals, every prosecutor essentially has to make his own decisions,” he said.


Cotter says that he has
met with compassionate care clubs in his county to make sure the law is
at least basically understood on both sides.


Victor Fitz, the Cass
County prosecutor, is against the medical marijuana law “without
question.” He wants it clarified so prosecutors know how to proceed.


“It’s the most poorly
crafted piece of legislation that I’ve seen in my 27 years as a
prosecutor,” he said. “It needs to be clarified in some fashion for the
benefit of both the prosecutors, defendants and the system as a whole.”


He used the case of
Sylvester Vanderbutts as an example. When Vanderbutts’ house was raided
by South Haven Police last September, they found 48 plants and seven
ounces of loose marijuana — above the limit provided in
the law, even though Vanderbutts is authorized by the state to have
medical marijuana (he is a cancer patient). Vanderbutts was convicted
at the end of April of possession of marijuana with intent to deliver,
operating a drug house, possession of marijuana and manufacturing
marijuana.


“Because of a poorly
worded section of the law, some defendants are making the argument that
they can have as much marijuana as needed,” Fitz said. “The statute
indicates the limit is 12 plants and 2 1/2 ounces of marijuana.
Clearly, an objective standard makes it easier for the law to be
implemented fairly.”


Robin Schneider is the
head of the Capital City Compassion Club, which plans to open a
compassionate care club at 2010 E. Michigan Ave. — next to Emil’s
Restaurant — in Lansing by the beginning of June. She said the club
would operate Monday through Friday as a place for medical marijuana
patients to relax, take yoga classes and attend support groups. But on
Saturdays, the club would host a “medical marijuana farmers’ market,”
where growers could come and supply patients with homegrown cannabis.
Membership in the club would be $25 per year, and the products offered
on Saturdays would run $10 per gram and up. When asked how under the
state law the club could be legal, she pointed to a clause that says a
person cannot be arrested for assisting someone in using or giving
marijuana:


“A person shall not be
subject to arrest, prosecution, or penalty in any manner, or denied any
right or privilege … for assisting a registered qualifying patient with
using or administering marihuana,” reads the law.


“A caregiver can
provide marijuana to any patient,” she contends. She said she has met
with Dunnings regarding medical marijuana and law enforcement.


McLellan says that he
has talked to enough physicians to be convinced that there are
legitimate uses for medical marijuana. McLellan suffers from severe
arthritis, and 10 years ago, before advances in other pain medication,
he might have been eligible for medical marijuana. He thinks the amount
of people grumbling against the law has been low compared to those
opposed to gambling or teetotalers. He ran into Dunnings recently, and
may meet with him to talk about some uncertainties in the law and how
that might affect a possible medical marijuana cultivation venture.
But, since he helped write, the law, were the gray areas intentional?


“The clients had a very
clear understand of what they were trying to accomplish,” he said. “I
think it’s clear their intention was to implement medical marijuana and
provide for dispersed growing. What was not intended was to make this a
licensed pharmaceutical business.”


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