MIDLAND COUNTY JUDGE DECLARES MEDICAL MARIJUANA UNCONSTITUTIONAL

A Midland County judge has ruled the state's medical marijuana act is
unconstitutional, with the opinion carrying the potential to set
precedent if it survives a challenge that is sure to come in the
Michigan Court of Appeals.

The opinion, penned last week by Midland County Circuit Court Judge
Jonathan E. Lauderbach, addresses two separate cases regarding
probation conditions and the use of medical marijuana.

"Whether this is good or bad public policy for Michigan is not for
this court to decide," he wrote of allowing medical marijuana use,
explaining all the nation's courts are bound by the Supremacy Clause
to be guided first by the U.S. Constitution and federal laws. That
means even if defendants prove they are seriously ill and use medical
marijuana to ease their symptoms, Lauderbach would conclude the
Michigan Medical Marihuana Act of 2008 is unconstitutional and
"therefore must be declared to be "'without effect,'" his opinion states.

The cases behind the decision

The defendants in the cases at hand, Jonathon Murray Finney, 29, and
Todd Alan VanWert, 46, both of Midland, have already been sentenced
for offenses including marijuana possession, and each entered the
muddy legal battle over medical marijuana usage in different ways
related to probation.

Finney was brought before Lauderbach for a probation violation
hearing, which court documents list as twice testing positive for
marijuana use after he was prohibited from doing so by a probation
condition against drug use. On the same day his probation violation
hearing was conducted, his attorney, Edward M. Czuprynski of Bay
City, presented Lauderbach with a motion requesting modification of
Finney's probation conditions to allow him to use medical marijuana.

In VanWert's case, Czuprynski filed the motion asking for probation
condition modifications before the sentencing hearing.

Czuprynski presented copies of medical marijuana cards possessed by
both Finney and VanWert and cited a section of the act stating
qualifying patients are protected from arrest and prosecution, and
are not to be denied any right or privilege providing they follow the
act's provisions.

"Modification of the defendant's probation terms ... is needed and
necessary to put him in compliance with the probation this court has
ordered while exercising his legal right to use medical marijuana as
permitted by law," Czuprynski wrote in the motions.

Assistant Midland County Prosecutor Richard Dresser answered
Czuprynski's motion in Finney's case, stating judges routinely "order
defendants to refrain from doing things that would otherwise be
lawful," like consuming alcohol, entering bars, or possessing weapons
including firearms. He cited the decision of a Cass County Circuit
Court judge who found a defendant who possessed a medical marijuana
card and used marijuana did indeed violate her probation terms by
doing so, at the same time pointing out the ruling does not set
binding precedent.

"While it may not be a violation of Michigan law for a person issued
a medical marijuana card to possess or use marijuana, it is still a
violation of federal law," Dresser wrote, presenting the federal case
U.S. vs. Hicks, in which Judge Lawrence P. Zatkoff decided a
defendant who used medical marijuana violated supervised release
conditions by doing so. Zatkoff also wrote even if marijuana
possession were legal, it would still have been a violation of the
defendant's supervised release conditions.

Czuprynski, in a reply to Dresser's answer and brief supporting his
reply, stated the use of medical marijuana by probationers is
different from other probation terms because a doctor recommends its
use, and courts must respect the relationship between doctors and
their patients. He added probationers continue to use prescribed
controlled substances while on probation. To further support the
point, Czuprynski cited guidelines from U.S. Attorney General Eric
Holder that directs federal prosecutors not to prosecute individuals
whose actions comply with existing state medical marijuana laws, but
rather prosecute those whose actions clearly do not comply. That
means Finney is exempt from federal prosecution because of Holder's
directive, so the court is without legal authority to prohibit his
use of medical marijuana while on probation, Czuprynski wrote.

"A court simply has no authority to prohibit a probationer from using
medical marijuana once a doctor recommends its medical use,"
Czuprynski wrote, later pointing out decisions of federal courts are
not binding on state courts. "Moreover, this court must not interfere
with the doctor-patient relationship and impose its judgment on what
the best course of treatment for a patient is."

Other prongs of Czuprynski's arguments include the medical marijuana
act is not superseded by the state act addressing probation or its
condition to obey federal laws, Finney's due process rights will be
violated if the court interprets the federal Controlled Substances
Act to control over the Michigan Medical Marihuana Act, that federal
law does not preempt the medical marijuana act, and that prohibiting
Finney from using medical marijuana would constitute an unauthorized
practice of medicine.

In his opinion, Lauderbach denied both motions to modify probation
conditions, and found Finney did in fact violate his probation terms
by using marijuana when he was not to use any drugs.

The opinion

The bulk of the 27-page opinion, which was filed on June 8, lays out
the rationale for Lauderbach's decision regarding the probation
conditions and violation, beginning with the history of the cases of
Finney and VanWert. It concludes that the medical marijuana act is
unconstitutional.

In Finney's case, he did not deny using marijuana during the testing
period, but rather stated he was allowed to use it under the medical
marijuana act. Finney is employed as the caregiver for another man
who uses medical marijuana, who testified he is confined to a
wheelchair and that Finney does everything for him.

The opinion also contains transcripts from a court hearing during
which Lauderbach questions VanWert, learning he first visited Ruth
Ann Buck, an area doctor facing federal drug charges for issuing
1,870 medical marijuana certifications to non-debilitated patients,
and later a doctor in Cadillac, to obtain a referral for a medical
marijuana card. VanWert told Lauderbach he avoided the doctor he
regularly saw because he believed that doctor would ask him to leave
or prescribe him a narcotic when asked for a medical marijuana certification.

Finney and VanWert both state they suffer from migraine headaches,
and Finney also has other medical conditions that interfere with
strenuous activity including problems with bones, joints and muscles.
VanWert's certification papers, which are included in court
documents, state he has problems with his knees, hands and wrists.
Court documents state Finney acknowledged in a presentence interview
that he began using marijuana when he was 16, and VanWert
acknowledged using marijuana one to two times weekly between 1984 and
2000, then resuming in May 2010.

Lauderbach found though each defendant argued he was a "qualifying
patient" under the act, neither could meet the requirements the act
lays out in order to be deemed so -- including a "bona fide
physician-patient relationship and the existence of a serious or
debilitating medical condition," he wrote, adding the court cannot
"turn a blind eye to the context in which they received their
registry identification cards."

Both men's past use of marijuana and the finding that neither
received a recommendation from their regular doctor led to Lauderbach
deeming appropriate a condition prohibiting use and possession in
this case as in any other case where the court orders probationers to
refrain from doing something they might otherwise be legally entitled
to do, the opinion states.

"This court is required to prohibit Mr. Finney and Mr. VanWert from
violating federal law and accordingly must order them not to use
marijuana for any purpose," the opinion states.

When taking up the probation violations filed against Finney,
Lauderbach found prosecutors proved by a preponderance of evidence
that Finney used marijuana on the dates in question.

Reaction

"We're were very pleased with the opinion," Midland County Prosecutor
Mike Carpenter said, adding it is well thought out and is binding
only in Midland County unless other chief circuit court judges adopt
it in their jurisdictions or if it is affirmed by the Court of Appeals.

Carpenter and other attorneys across the state also are watching for
a Court of Appeals decision in an Isabella County case regarding
marijuana dispensaries, called People vs. McQueen.

"Once we have that, we will decide on how to proceed with enforcing
laws," Carpenter said. "The Medical Marihuana Act was horribly
written," he said, calling it a "Trojan horse to create exactly what
we have, which is chaos."

Simply verifying if a person is a card holder is one of the
fundamental problems rendered for law enforcement and prosecutors, he
said, adding the Department of Health can only verify if a person is
a card holder by name if contacted during regular business hours and
given a name. The cards themselves do not show photos of the card
holders, so officials have no way to verify if the card holder is
indeed the person holding it under the restraints of the act.

Messages left for Czuprynski were not returned.