Pubdate: Wed, 26 Jan 2011
Source: Metro Times (Detroit, MI)
Column: Higher Ground
Copyright: 2011 Metro Times, Inc
Author: Larry Gabriel
Bookmark: (Cannabis - Michigan)


Legal Battles Over Drug Testing, Grow Operations and Ordinances Continue

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."

There have been calls for lawmakers in Lansing to clarify the law so 
that it's clear whether dispensaries are legal, and sort out who can 
transfer marijuana to whom. Well, Sen. Rick Jones, the former Eaton 
County Sheriff and now representative of Eaton, Barry and Allegan 
Counties, has jumped into the fray. Jones was named chair of the 
Senate Judiciary Committee after Gov. Rick Snyder came into office. 
When named, Jones said, "I will work tirelessly to protect our 
families. Whether it's cracking down on identity theft, gang violence 
or sexual predators, we must stay one step ahead of the criminals."

I'm not sure which part of that applies in the first piece of 
legislation he's sponsored. His Senate Bill No. 17, introduced last 
week, calls for a ban on "marihuana clubs" and "marihuana bars." A 
"marihuana club" is defined as "an association of individuals with 
membership restricted to those who pay money or any other thing of 
value to become members."

So, restricting the right of medical marijuana patients to associate 
with each other protects our families, stops gang violence and sexual 
predators. What a long, strange, and legally weird trip it's been. It 
doesn't look like any of these cases will be resolved soon, and there 
are many more on the docket as the drug war bumbles on.  
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MAP posted-by: Richard Lake