LAW AND DISORDER

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.