LOCAL MEDICAL-MARIJUANA PROPONENTS DISMISS MICHIGAN APPELLATE JUDGE'S OPINION

KALAMAZOO -- A recent concurring opinion by a Michigan court of
appeals judge that the state's nearly 18-month-old medical marijuana
law is overly broad and lacks sufficient specificity was nothing more
than grandstanding, according to local medical marijuana advocates.

"It was less of a legal opinion and more like an editorial," said
John Targowski, a Kalamazoo attorney who has represented several
clients in medical marijuana-related cases since the law took effect
in April 2009. "To be honest, it's kind of scary."

In the 30-page concurring opinion, Judge Peter O'Connell urged
lawmakers to refine and set clearer rules for the law, which he said
left local judges, prosecutors and defense attorneys often confused
on how to follow it.

The judge also stated that the law flies in the face of federal law
and other state laws and lacked clear authority for doctors, people
who want to use marijuana and businesses that want to dispense it.

O'Connell was part of a three-judge panel that upheld a decision by a
lower court to reinstate drug charges against two people in Oakland
County who were caught with marijuana plants last year. A doctor had
said they would benefit from medical marijuana, but they didn't get a
state card until it became available a month later.

The law allows for qualifying patients with a debilitating condition
- -- such as cancer, HIV/AIDS, multiple sclerosis and a host of other
illnesses -- to possess up to 12 marijuana plants and up to 2.5
ounces of usable marijuana. Voters overwhelmingly passed it in November 2008.

O'Connell wrote that medical marijuana users "who proceed without due
caution" could "lose both their property and their liberty" if they
unwittingly don't follow the rules of the law.

"Our legislative and administrative officials must make a choice:
They can either clarify the law with legislative refinements and a
comprehensive set of administrative rules, or they can do nothing,"
he wrote. "In this situation, no decision is, in fact, a decision to
do nothing."

One of those areas is the so-called "affirmative defense" clause in
the law, which states that a medical marijuana user who has a
doctor's recommendation to use the drug but doesn't yet possess a
state-issued ID card indicating they are a registered user, is
shielded from prosecution.

The law states that a copy of the submitted application to the state
can be used as a temporary ID card if the applicant hasn't received
their ID card or a rejection letter within 20 days of submitting
their application for the card. Prosecutors in local cases on the
issue have contended that the clause is an ambiguous element of the law.

The judge noted that patients or their caregivers may grow marijuana,
but there isn't a provision for the legal purchase of marijuana seeds
or plants. The law states that it is legal for registered patients to
share their medical marijuana with other registered patients, however.

"Another oddity is that the act allows a patient to possess 2.5
ounces of marijuana and 12 plants," the judge wrote. "What is the
legal consequence if the plants are all harvested at the same time
and they happen to produce more than 2.5 ounces?"

O'Connell also pointed out that 18-year-old high school students
possibly could use medical marijuana, yet the law states that
marijuana can't be possessed at schools.

Where there is ambiguity, judges should seek to understand what
voters wanted when they passed the law, Targowski said, not nullify
its intent. He, like several area medical marijuana proponents, is
expecting the law to wind-up before the Michigan Supreme Court.

Greg Francisco, executive director of the Michigan Medical Marijuana
Association, said O'Connell's opinion was "more of a diatribe than a
legal analysis" of the law.

"He came across more like a philosopher king," Francisco said. "He
should be writing fiction. It was not nuanced at all."

Still, he welcomed the opinion.

"He did us a favor," he said. "It outlines our opponents' arguments
for us. It lets us know where they stand."