MEDICAL POT ISSUES WIND WAY THROUGH COURTS

In 2008, 63 percent of Michigan voters approved the use of medical marijuana.

Yet three years later, attorneys battle in the state courts over
whether communities have the right to prohibit an activity, which in
their eyes violated federal law, even when approved by a voter referendum.

Communities throughout the state are watching what courts decide in
particular with one local case.

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. Circuit Judge Wendy Baxter granted the
city's motion for summary disposition and dismissed the case.
Communities across Michigan will be watching to see how the state
courts interpret state and federal law.

Early this year, attorneys from both sides will file respective
motions to the Michigan Court of Appeals.

Dan Korobkin, attorney with the ACLU, said the ACLU's position hasn't
changed on the issue.

"Livonia or any other community can't make its own decision to ban
medical marijuana in their community," Korobkin said. "The approval
of medical marijuana was a decision made by the voters and approved
throughout the state. Medical marijuana patients, who are registered
with the state and got a doctor's approval, will not be prohibited or
banned from an activity that is in accordance with state law."

Don Knapp, Livonia's city attorney, said the city's position hasn't
changed. Knapp said the ordinance was not aimed at legal medical
marijuana users, but was directed at the growing facilities and
dispensaries. "We wanted to take away any of the problems associated
with medical marijuana," Knapp said. "In Oakland, California, there
are places with a lot of dope and a lot of cash that are the targets
of armed robberies.

"We didn't want these places popping up next to pizzerias or other
small businesses and be a target for crime that would impact these
other businesses."

State 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.

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.

The ACLU filed a suit in December 2010 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. The case
against the cities of Bloomfield Hills and Birmingham was transferred
to Oakland County Circuit Court.

Baxter agreed with the city of Livonia and dismissed the lawsuit.

"Livonia's ordinance directly conflicts with and is preempted by the
Michigan Medical Marihuana Act, which regulates the use, distribution
and maintenance of medical marijuana and 'occupies the field of
regulation,'" Baxter wrote in her ruling.

"However, the MMMA is pre-empted by the Controlled Substances Act,
which completely bans the use of marihuana and bans its use by
physicians for a medical purpose. Therefore, plaintiffs have failed
to state a claim for which relief can be granted and 'no factual
development could possibly justify recovery.'"

On Nov. 29, Oakland County Circuit Judge Colleen O'Brien dismissed
the ACLU claims against Birmingham and Bloomfield Hills. Neither of
the cities had applied their ordinances against the plaintiffs, so
any question about how ordinances might apply was "hypothetical,"
O'Brien ruled.

"The court, in its discretion, denies the request for declaratory
relief for the reason that no actual controversy exists here for the
court to decide," O'Brien wrote in her ruling.

Patient-to-patient prohibited

In August, the Court of Appeals ruled in a separate case involving a
dispensary in Isabella County that sales were not permitted between
registered patients and ruled a dispensary closed as a public
nuisance. The court found it violated state health laws. That ruling
shut down most dispensaries because "they effectively said the
Michigan Medical Marihuana law does not allow patient-to-patient
sales," Knapp said.

All the Lotts wanted to do was grow it in Livonia and use it at their
home in Birmingham, Korobkin said. "The fact that Livonia doesn't
like the law isn't a reason to ban it from the city," Korobkin said.

When asked if the Lotts would be willing to discuss their situation
for this story, Korobkin said the ACLU was acting as a spokesman for
the Lotts during the lawsuit, Korobkin said. "The local laws have
really taken a toll on the Lotts and hundreds of medical marijuana
patients," Korobkin said. "Most patients have the doctor's permission
or they are registered as patients or caregivers. They don't consider
themselves as criminals and they don't want to be treated as
criminals in cities where they live or work.

"The decisions on the ordinances in Livonia, Bloomfield Hills and
Birmingham has a detrimental effect on their health and takes a toll
on their physical health."

One year ago, the Law Offices of Thomas M. Loeb of Farmington Hills,
and Neil Rockind of Southfield, filed a joint lawsuit in Oakland
County Circuit Court against Bloomfield Township for its medical
marijuana ordinance passed in October. Rockind, whose case probably
won't be heard until February, said the law is designed to be
inclusive for patients and caregivers. "To me, the law isn't as
confusing as people make it, Rockind said. "The act is designed to
give very broad protection to caregivers and patients."

Rockind said some of the issues raised in some of the court cases
don't even discuss the medical, pain-killing use of the drug, but
whether growing facilities are enclosed in lots. Arguments also are
raised on whether a doctor is an expert in cannabis and whether
patients can self-medicate. "Ironically, the act isn't being used to
help them, it's being used to hurt them," Rockind said.

Knapp would not be surprised if the Livonia case ends up in the
Michigan Supreme Court. "If the city of Livonia was not successful
before the Court of Appeals, we're going to try and take it to the
Michigan Supreme Court," Knapp said.