Pubdate: Sun, 28 Aug 2011 Source: Redford Observer (MI) Copyright: 2011 Observer & Eccentric Newspapers Contact: http://www.hometownlife.com/section/CUSTOMERSERVICE20 Website: http://www.hometownlife.com/section/NEWS16 Details: http://www.mapinc.org/media/5240 Author: Ken Abramczyk, Observer Staff Writer ACLU APPEALS MEDICAL MARIJUANA RULING The American Civil Liberties Union has appealed a Wayne County Circuit Court ruling that supported the city of Livonia's ban on medical marijuana facilities. The ACLU of Michigan filed an appeal Monday with the Michigan Court of Appeals and the city of Livonia received notice of the claim of appeal Tuesday. The ACLU is appealing the ruling by Circuit Judge Wendy Baxter, who granted the city's motion for summary disposition last month. "We think that she made a wrong decision," said Dan Korobkin, staff attorney with the ACLU. State law vs. federal law At the heart of the case is whether the voter-approved state law permitting medical marijuana use or sales pre-empts federal law banning marijuana or whether the federal Controlled Substances Act pre-empts state law. The ACLU filed a suit in December on behalf of Linda and Robert Lott of Birmingham against the cities of Livonia, Bloomfield Hills and Birmingham regarding the authority of communities to prohibit medical marijuana use or sales on the grounds that marijuana possession violates federal law. The Lotts own a portion of a property in Livonia where they said they wanted to grow medical marijuana, according to the ACLU. The ACLU argued in court that Livonia could not enact laws that violate state laws. Michigan voters approved the use of medical marijuana in 2008. The city of Livonia later enacted an ordinance that did not mention medical marijuana, but prohibited activities that violate federal law. Linda Lott is a registered medical marijuana patient with multiple sclerosis. She uses medical marijuana to get rid of back spasms. Prescription drugs don't work on the pain, according to her husband Robert. Korobkin said the question was whether local governments had a right to punish people who had the right to use medical marijuana, such as the Lotts. "The facts and the legal questions speak for themselves," Korobkin said. "The Michigan Medical Marihuana Act says that someone who engages in medical marijuana use can't be arrested, punished or prosecuted in any way." Korobkin said the Livonia ordinance allows the Lotts to be punished and that state voters did not intend for that to happen when they voted in 2008. City will defend ordinance Don Knapp, Livonia's city attorney, said he expected the appeal. "We intend to vigorously defend the city's zoning ordinance," he said. "The ACLU even agrees that pre-emption is the critical issue and the federal law conflicts with the state law. You can't ask local governments to be complicit in violating a federal law." Korobkin said there is "no actual conflict" between the laws, but that they "say two different things." While the pre-emption is a separate issue, attorneys and medical marijuana supporters and opponents are watching other legal developments. On Wednesday, a three-judge panel of the Michigan Court of Appeals ruled that the law allowed the medical use of marijuana in limited circumstances, but not the sale of it. The court ordered that a Mt. Pleasant dispensary should be closed. The dispensary was selling marijuana to people certified to buy it for medical purposes. The court ruled that the facility's operators have no authority under the law to operate a dispensary that "actively engages in and carries out patient-to-patient sales" of marijuana. The legal discussions and arguments continue in California courts, a state in which voters passed a medical marijuana initiative 15 years ago. A Superior Court judge in Orange County decided recently that Anaheim's ban on dispensaries does not violate state law. The judge concluded that neither the medical marijuana initiative passed by voters in 1996 nor a state law that followed pre-empted local ordinances intended to regulate the distribution of the drug. That case is headed to the state Court of Appeal. - --- MAP posted-by: Richard R Smith Jr.