Law and disorder
Legal battles over drug testing, grow operations and ordinances continue
Published: January 26, 2011
Even though it's not an election year, when it comes to medical marijuana, you have to consider Michigan a battleground state. The battles over who, where, when and how medical marijuana can be used and distributed are being fought in the courts, and although some of them may be settled this year, it will probably take another couple of years before all of the present cases are finally put to rest.
One of the key cases is the American Civil Liberties Union suit against Wal-Mart for firing Joseph Casias. Casias, of Battle Creek, is a cancer patient who uses medical marijuana at his oncologist's recommendation. After injuring his knee at work he took a required drug test, which found he had been using marijuana — legally under the Michigan Medical Marihuana Act.
"There are now two big motions before federal Judge Robert Jonker that were argued back in November," says ACLU of Michigan staff attorney Dan Korobkin. "One is a motion to remand the case to the state court. The second motion, Wal-Mart filed to dismiss the suit entirely. ... It was a fairly lengthy hearing and we expect a ruling any day now. He [Judge Jonker] has to decide the first motion, whether the case is heard in state court or federal court. If it stays in federal court, then he'll rule on the dismissal. This is the first big case in Michigan about the rights of medical marijuana patients who also have jobs. This is a case about whether a medical marijuana patient has to choose between making a living and supporting a family or treating a medical condition and pain based on the advice of a doctor. When the law was enacted, citizens said you shouldn't have to make that choice."
Once those motions are ruled on, and assuming there are no appeals, then the actual case will be argued — or be done with if Wal-Mart gets its way. Casias was named Associate of the Year in 2008 at the Battle Creek Wal-Mart and had an exemplary employment record.
"Following all rules of the Michigan Medical Marijuana Act protects you from being fired by Wal-Mart or any other employer," says Korobkin. "We don't argue that you can use marijuana and show up at work under the influence. He was fired for just being a medical marijuana patient."
In an unrelated case, the ACLU has sued Livonia, Bloomfield Hills and Birmingham on behalf of registered medical marijuana patients Linda Lott and her husband Bob, who live in Birmingham. Linda has multiple sclerosis and Bob, her caregiver, has glaucoma. He would like to grow marijuana in a Livonia warehouse he owns, and she would like to medicate at a private social club she belongs to in Bloomfield Hills. In the past year, each of those cities passed a law completely banning medical marijuana in defiance of state law.
"How can a city completely ban medical marijuana?" asks Korobkin.
They've done it, but now we'll eventually find out if they've done it legally under Michigan law.
While medical marijuana is legal under state law, it isn't under federal law. That issue is also playing out in the case of five Okemos growing facilities that were raided by the Drug Enforcement Agency early in December, where investigators allegedly found more than 400 plants. The federal government has a policy of not raiding medical marijuana facilities that are in full compliance with state law, so maybe they believe these growers were doing something wrong. So far, aside from breaking up grow operations and depriving patients of their medication, it has come down to a tussle between the DEA and Michigan's Department of Community Health, which administers the medical marijuana patient and caregiver documentation.
The DEA wants the state to turn over personal records of individuals it is investigating. However, there are potential civil and criminal penalties for violating confidentiality promised in the Michigan Medical Marihuana Act. Whoever actually hands the records over to the feds could be liable. As it stands now, Community Health officials are seeking immunity from prosecution if they turn over the records. The Michigan Association of Compassion Clubs, a medical marijuana support organization, has filed an injunction opposing the DEA's records.
"That's a damn interesting case," says attorney Matt Abel of Detroit's Cannabis Counsel law office. "There are a lot of factors; one is federal supremacy, which is well established. However, medical marijuana patients and caregivers have privacy rights guaranteed to them under state law. Whoever gives documents to the feds is violating state law. Can the federal government give immunity for violating state law? If the court orders that records be turned over, it will have a chilling effect on medical marijuana patients."
Abel is not personally involved in the case but, as a medical marijuana activist, he keeps an eye on legal developments. Another case he's watching is the recent raid on the complex housing Big Daddy's Compassion Club and Big Daddy's Hydro in Oak Park. Oakland County sheriff's deputies raided the complex owned by Rick "Big Daddy" Ferris on Jan. 12. They took money, marijuana and equipment, but oddly, no one has yet been charged with anything. Police said that some drug dealers busted elsewhere in Oakland County claimed they got all their pot from Big Daddy's — although there was no discussion on whether the alleged dealers acquired the marijuana from Big Daddy's legally or not.
What the raid did do was show once again that Oakland County Prosecutor Jessica Cooper and Sheriff Mike Bouchard want to keep their boot heels on the neck of medical marijuana in their county. In August, sheriff's deputies busted two alleged marijuana dispensaries in Oakland County.
"Oakland is the most difficult county to deal with, the most unreasonable," says Abel. "They have the largest budget, the largest staff, a conservative bench, and a whack-job prosecutor. ... In the Big Daddy's case they didn't charge anybody right away. It was a smash and grab, take your stuff and then you have to prove that they don't have the right to it. It's a bad incentive for the police. They don't take things they believe were purchased with drug proceeds. They take things they can get money for at auction."
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