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FBA & ELO Present: Medical Marijuana

March 17, 2013

By: Kyle Michael Sullivan

Staff Writer, Grand Rapids

Editor's Note: On March 7, 2013, the Federal Bar Association (FBA) and Environmental Law Association (ELA) co-hosted a panel on medical marijuana at the Cooley Grand Rapids campus. Kyle Sullivan is the current Vice President and President-elect for the Grand Rapids FBA.~ AW

“You cannot smoke on a train. You cannot smoke on a plane. You cannot smoke on a boat. You cannot smoke with a goat. You cannot smoke in a bar. You cannot smoke in a car. You cannot smoke in your home, even if you are living there alone. You cannot smoke here or there. You cannot smoke anywhere!”[1]

Anyone unfamiliar with Professor Devin Schindler (Thomas M. Cooley Law School) might have been surprised to hear a brilliant Constitutional Law professor quote such a poem during an academic panel discussion with two other distinguished attorneys: Timothy McMorrow (Kent County Prosecutor’s Office) and Catherine Mish (Grand Rapids City Attorney), but it was a surprisingly effective summary of “section 7.”[2] “Section 7” describes the scope of the 2008 Michigan Medical Marijuana Act (MMMA)[3], limiting marijuana usage to only a slightly less extreme extent than “Smoking Sam.”

McMorrow and Mish are currently engaged in a fierce legal battle over a recent charter amendment decriminalizing marijuana usage in Grand Rapids, approved by an overwhelming majority of voters this past November.

After personal introductions, the panel delved into explaining the MMMA—a statute they agree is “very confusing.” They first explained “Section 4,”[4] which provides that qualifying patients, registered with the state, may possess up to 2.5 ounces of usable marijuana and up to 12 plants kept in an enclosed, locked facility. This section also provides for “caregivers,” who are allowed to grow up to 12 plants per patient and allowed to receive compensation for their assistance.

The panel then discussed the MMMA’s affirmative defense section: “section 8.”[5] This section requires a physician’s letter and that patients and caregivers do not possess more marijuana than is “reasonably necessary to ensure the uninterrupted availability of marijuana” for medical purposes. The panel concluded their introduction of the MMMA with a brief discussion of its scope and limits, codified in its “section 7.”

This is when things really got interesting. The floor was opened for questions[6], and federalism came alive. The panelists began discussing the problems that arise when various federal, state, county, and municipal regulations conflict with one another. Some sample discussion:

  • What is a police officer to do with marijuana seized from patients (registered under state law) when returning it to them would violate federal law? 
  • What is the effect of a municipality enacting zoning regulations, essentially trying to outlaw the MMMA within its jurisdiction? 
  • What is happening in other jurisdictions with similar legal conflicts? Do law enforcement officials break into homes to enforce laws declaring marijuana-related activities unlawful? 
  • How does Printz[7] affect these issues?
  • What about Grand Rapids’s recent decriminalization referendum that forbids city officials from reporting marijuana-related offenses to the county? 
  • What potential effects do these marijuana laws (and violations) have on professional licensing—must bona fide patient status be disclosed on a bar application?

This event was a fascinating discussion guided by three remarkable legal minds and fueled by a passionate audience of more than 50, yearning to know the ins and outs of this monumental legal issue. And as much as I love Civil Procedure, this collegial discussion brought (a tad) more excitement to vertical conflicts of law than Erie[8] ever could.

But my favorite quote of the entire event arose as McMorrow was discussing the “history and tradition” of marijuana in Anglo-American culture: “When Jesus was at the Last Supper with his Disciples, they didn’t pass around a joint.”

[1] From James R. Neal’s “Smoking Sam”

[2] MCL 333.26427

[3] MCL 333.26421 et seq.

[4] MCL 333.26424

[5] MCL 333.26428

[6] Moderated by Professor Christopher Hastings

[7] Printz v. United States, 538 U.S. 1036

[8] Erie Railroad Co. v. Tompkins, 304 U.S. 64