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Opinions/Editorials Title: Michigan Medical Marijuana Act (MMMA), Drafted by DC Marijuana Lobbying Group, Is a Mess Michigan Medical Marijuana Act (MMMA), Drafted by DC Marijuana Lobbying Group, Is a Mess The Michigan Medical Marijuana Act (MMMA) is based on model legislation provided by the Marijuana Policy Project (MPP), a Washington, D.C.-based lobbying group organized to decriminalize both the medical and recreational uses of marijuana. The statutory language of the MMMA was drafted by Karen O’Keefe, the Director of State Policies at the MPP in Washington, D.C. It did not come from the legislature, but came as Proposition 1 in 2008. It is a mess. Marijuana remains a Schedule I drug pursuant to Michigan Law. People v Redden, 290 Mich App 65, 799 N.W. 2d 184 (2010) Opinion of O'Connell, P.J., concurring A motion for reconsideration was DENIED on 26 October 2010. An application to appeal to the Michigan Supreme Court was WITHDRAWN on 22 June 2011. Redden pleaded guilty to marijuana possession, and was sentenced on 18 July 2013. He was assigned to serve time at Michigan State Prison and was discharged on 9 January 2014. He is on twitter People v Redden, 799 N.W. 2d 184, 199 (2010), O'Connell, P.J. concurring at 2: From the Opinion of the Court at 4: The district court noted that the MMMA “is probably one of the worst pieces of legislation I’ve ever seen in my life..." The Analysis was given at 12-16: MCL 333.26428(a)(1) states that a medical-purpose defense shall be presumed valid if: A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition . . . . We find that there was evidence in this particular case that the doctor’s recommendations did not result from assessments made in the course of bona fide physician-patient relationships.10 Dr. Eisenbud testified that he was board-certified in ophthalmology. He answered “That’s right,” when asked the following question: “So, your sole employment, at this point, is to review people to see whether or not you think they can have marijuana under the Michigan Medical Marijuana -- or any other medical marijuana law, correct?” He testified that he saw Clark and Redden once each and was currently working in at least six states. He refused to divulge what defendants’ debilitating medical conditions were. Dr. Eisenbud indicated that he was not scheduled to see defendants again until they were due to renew their documentation for using marijuana for medical purposes. The MMMA does not define the phrase “bona fide physician-patient relationship.” When words or phrases are not defined in a statute, a dictionary may be consulted. People v Peals, 476 Mich 636, 641; 720 NW2d 196 (2006). Random House Webster’s College Dictionary (1997) defines “bona fide” as “1. made, done, etc., in good faith; without deception or fraud. 2. authentic; genuine; real.” We do not intend to legislate from the bench and define exactly what must take place in order for a bona fide physician-patient relationship to exist. We do find, however, that the specific facts in this case, as set forth in the prior paragraph, were sufficient to raise an issue for the trier of fact concerning whether the doctor’s recommendations resulted from assessments made in the course of bona fide physician-patient relationships between Dr. Eisenbud and Redden and between Dr. Eisenbud and Clark. Indeed, the facts at least raise an inference that defendants saw Dr. Eisenbud not for good-faith medical treatment but in order to obtain marijuana under false pretenses. Accordingly, the district court erred in finding as a matter of law that defendants had satisfied all the requirements of a § 8 defense. (2) AMOUNT OF MARIJUANA POSSESSED MCL 333.26428(a)(2) states that the § 8 affirmative defense will be presumed valid if [t]he patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition . . . . There was no testimony or evidence presented regarding whether the amount of marijuana possessed by defendants was “not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s . . . condition or symptoms . . . .” Id. Defendants were found in possession of approximately one and one-half ounces of marijuana and 21 marijuana plants. The district court addressed this element of the affirmative defense and concluded that because the amount of marijuana, when divided between defendants, was less than that of the two and one-half ounces and 12 marijuana plants permitted under § 4, this portion of the affirmative defense was satisfied. However, the plain language of the statute does not support that the amount stated in § 4 is equivalent to the “reasonably necessary” amount under § 8(a)(2). Indeed, if the intent of the statute were to have the amount in § 4 apply to § 8, the § 4 amount would have been reinserted into § 8(a)(2), instead of the language concerning an amount “reasonably necessary to ensure . . . uninterrupted availability . . . .” MCL 333.26428(a)(2). Without any evidence on this element of the affirmative defense, the district court could not have properly found the affirmative defense established as a matter of law. There was a colorable question of fact concerning whether the amount possessed was in accordance with the statute. (3) PURPOSE OF MARIJUANA IN QUESTION MCL 333.26428(a)(3) indicates that, for the medical-purpose defense to be valid, evidence must show that [t]he patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition. Here, there was testimony and evidence that Redden and Clark could benefit from the medical use of marijuana. However, although an inference could be made that the specific marijuana they allegedly manufactured was being manufactured for medical purposes, there was no explicit testimony or other evidence establishing this fact. Therefore, we find that there was considerable doubt concerning whether defendants satisfied this portion of the defense, see King, 412 Mich at 153-154, and the district court therefore should not have concluded that the defense was established as a matter of law. (4) SERIOUS OR DEBILITATING MEDICAL CONDITIONS Dr. Eisenbud did not identify the nature of defendants’ debilitating medical conditions, beyond stating that Redden had “pain” and Clark had “nausea.” Section § 7(b)(5) states that the MMMA “shall not permit any person to . . . [u]se marihuana if that person does not have a serious or debilitating medical condition.” MCL 333.26427(b)(5). Section 3, the definitions section of the MMMA, states: (a) “Debilitating medical condition” means 1 or more of the following: (1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail patella, or the treatment of these conditions. (2) A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis. (3) Any other medical condition or its treatment approved by the department, as provided for in section 5(a). [MCL 333.26423.] Section 3 does not define the phrase “serious medical condition.” MCL 333.26423. In his written documents, Dr. Eisenbud stated that each defendant was likely to receive benefit from marijuana to “treat or alleviate a serious or debilitating medical condition . . . .” However, he stated only that he was treating each defendant for “a terminal illness or a debilitating condition as defined in Michigan’s medical marijuana law.” He then stated at the preliminaryexamination that Redden had a “debilitating condition.” When asked what the condition was, he replied “pain.” Dr. Eisenbud stated that Clark’s debilitating condition was “nausea.” We find that defendants did not establish at the preliminary examination as a matter of law that they had serious or debilitating medical conditions as required by the MMMA. With regard to the phrase “serious medical condition,” Random House Webster’s College Dictionary (1997) defines “serious,” in this context, as “weighty, important, or significant” and “giving cause for apprehension; critical or threatening[.]” Without knowing the nature of defendants’ medical conditions, it is not possible to determine whether they are “serious.” With regard to the phrase “debilitating medical condition,” MCL 333.26423(a)(2) indicates that this phrase includes “[a] chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: . . . severe and chronic pain; severe nausea . . . .” Dr. Eisenbud indicated that Redden suffered merely from “pain” and that Clark suffered merely from “nausea.” This evidence was not sufficient to satisfy the definition set forth in MCL 333.26423(a)(2). The district court therefore erred in concluding that defendants satisfied the requirements of the MMMA as a matter of law. Whether each defendant suffered from a serious or debilitating medical condition is yet another matter for further proceedings. The circuit court’s decision to reverse the district court’s bindover ruling is affirmed, and this case is remanded for further proceedings. We do not retain jurisdiction. The Opinion of the Court gives some insight into what a mess the Michigan Medical Marijuana Act (MMMA) is. The Concurring Opinion of Judge O'Connell explores the mess in detail, addressing the origin of the Act and addressing each of its provisions. At 5-7 of Judge O'Connell's concurring opinion, Proposition 1 of the 2008 ballot, which presented the MMMA to the people of this state for a vote, described the proposed MMMA as purporting to do the following: Permit registered individuals to grow limited amounts of marijuana for qualifying patients in an enclosed, locked facility. Require Department of Community Health to establish an identification card system for patients qualified to use marijuana and individuals qualified to grow marijuana. Permit registered and unregistered patients and primary caregivers to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana. Yet, in its summary of the intended effect of the MMMA, this ballot proposal obfuscated the more confusing and contradictory aspects of the actual legislation. The statutory language creates a maze for the reader, making the statute susceptible to multiple interpretations. The MMMA is based on model legislation provided by the Marijuana Policy Project (MPP), a Washington, D.C.-based lobbying group organized to decriminalize both the medical and recreational uses of marijuana. The statutory language of the MMMA was drafted by Karen O’Keefe, the Director of State Policies at the MPP in Washington, D.C. Interestingly, the confusion caused by reading the statute piecemeal and out of context has seemed to work to the advantage of those who share the MPP’s wish for outright legalization of marijuana. Taking advantage of the MMMA’s confusion, proponents of liberalized marijuana regulations claim that the MMMA legalizes shops that sell marijuana, collective growing facilities, and the cultivation and sale of marijuana as a commercial crop. Further, those individuals who primarily wish to use marijuana recreationally are taking advantage of “pot docs” who will give them written certifications for medical marijuana without bothering to establish either a bona fide physician patient relationship or the existence of a terminal or debilitating medical condition. In looking at the specific provisions of the MMMA, it is important to remember that this act is based on a premise, namely, that marijuana can be used for medical purposes that is in obvious contradiction to the Public Health Code. By classifying marijuana as a Schedule 1 substance under the Public Health Code, the people of this state, through their elected representatives, have determined that marijuana “has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.” MCL 333.7211. This clearly contradicts the rationale for the MMMA, which indicates that provisions should be made to permit seriously ill individuals to use medical marijuana without fear of arrest because “[m]odern medical research . . . has discovered beneficial uses for marihuana in treating or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions.” MCL 333.26422(a). The obvious solution to this problem would be simply to amend the Public Health Code to make marijuana a Schedule 2 or Schedule 3 substance. With such an amendment, state law would not prohibit a licensed prescriber from prescribing marijuana if, in the prescriber’s professional opinion, this drug would effectively treat the pain, nausea, and other symptoms associated with certain debilitating medical conditions. MCL 333.7303a. Curiously, however, the MMMA has no provisions to repeal the contradictory portions of the Public Health Code, or to ensure the controlled, monitored distribution of marijuana to seriously ill individuals in accord with the well-tested provisions of the Public Health Code. Instead, it creates a new system, untested in this state, in which a physician merely “certifies” that an individual would likely “benefit” from using marijuana to alleviate pain, nausea, or other symptoms, while leaving it to the patient to register under the act and to self-regulate the quality and quantity of marijuana the patient uses. Accordingly, the confusing nature of the MMMA, and its susceptibility to multiple interpretations, creates an untoward risk for Michiganders. Reading the statute carelessly or out of context could result in jail or prison time for many of our citizens. Until our Supreme Court and the Legislature clarify and define the scope of the MMMA, it is important to proceed cautiously when seeking to take advantage of the protections in it. Those citizens who proceed without due caution will become test cases and may lose both their property and their liberty. At 24, Judge O'Connell observes, Further, 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. 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(2)(b). It was not intended to protect those individuals who are fraudulently obtaining written certifications. A full set of new regulations were required within 120 days pursuant to an ambiguous and incoherent bill drafted by Karen O’Keefe, the Director of State Policies at the Marijuana Policy Project in Washington, D.C. In a footnote 10, Judge O'Connell cautioned, Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 2.
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