This article was originally published on the Marijuana Patients Organization site on September 11, 2013.
I am deeply disappointed by the Michigan Court of Appeals’ ruling in People v. Johnson, et al., Court of Appeals No. 308104. I believe that the decision is wrong in a number of respects and ignores the intention of the drafters of Michigan’s medical marijuana law by holding that the provisions of the Public Health Code must be strictly construed. In doing so, the court has by definition weighted Public Health Code over the medical marijuana initiative passed by the voters.
The initiative was intended to abrogate much of what the Legislature did and was meant to create a “sea change.” By applying the rule of liberal construction in the Public Health Code in the manner that the Court of Appeals did, I believe they frustrated the intention of the drafters of the law.
My client’s premises were inspected by the Ferndale Police, there was an opinion by L. Brooks Patterson (the Chief Executive Officer for Oakland County) stating that dispensaries were a local issue, and Ferndale had signed off on the dispensary.
To state that there is no ambiguity regarding the validity of dispensaries ignores the fact that the Michigan v. McQueen decision cited by the Court of Appeals was an overturning of a trial judge decision to the contrary.
The Dempster decision on which we rely states that when a statute is poorly drafted, and the defendant’s conduct is not malum in se, that any clarifying law should not apply retroactively. Unfortunately the court of appeals did precisely that. The Court of Appeals got it wrong when they said that there had to be a consistent line of adverse authority for this doctrine to apply. Dempster involved an agency interpretation of a statute. Ms. Dempster relied on it and an opinion of counsel. The Court of Appeals distinction is misplaced.
I would note that while the prosecutor is arguing that Michigan v. McQueen in, 293 Mich. App. 644, 811 NW2d 513 2011, aff’d on other grounds 493 Mich. 135 (2013) is fully retroactive, most of Michigan prosecutors have taken a conflicting position with respect to People v. Koon.
In Koon, the Michigan Supreme Court ruled that a person who had a medical marijuana card could not be prosecuted for operating under the influence of a controlled substance unless the prosecutor proved actual impairment. They overturned the decision of the Court of Appeals which stated that the prosecutor need not show actual impairment. Because marijuana was a Schedule 1 controlled substance, they stated that the offense was a per se violation.
Many prosecutors around the state are arguing that the peoples’ reliance on the lower court decision in means that Koon should not be granted retroactivity. There is a fundamental inconsistency between the prosecutor’s position in my case and their position with respect to Koon.
The rule of lenity and the sister doctrine of strict construction of penal statutes has constitutional underpinnings. It is based on the notion of notice and placing an individual on clear notice of what conduct is prohibited by statute. Its origins trace back to the First Justice Marshall and I respectfully submit that the legislature cannot abrogate it. Facing a similar issue, the California Supreme Court in People v. Avery, 38 P3d 1, 5 (Cal. 2002) stated that the California Legislature was powerless to abrogate the doctrine of strict construction of penal statutes. U.S. Supreme Court Justice John Marshall stated the doctrine was needed of respect for the individual. The ruling wrongly ignored this fundamental tenant of our law.
Our further appellate strategy is not carved in granite. I was given one day’s notice about the decision in People v. Johnson. Because of that, I have only had a chance to read through the opinion one time. Any statement about my intentions at this point is going to be exceptionally preliminary until I have a chance to speak with my clients, speak with co-counsel, et cetera. My opinion at this time is that we will be continuing our appeal. The decision about whether we file a motion for rehearing or appeal directly to the Supreme Court has not yet been decided.
Based on the court’s statements that the rule of lenity doesn’t apply to this poorly constructed statute, I really have no choice but to continue the appellate fight at this point. I believe that the critical flaw in the Court of Appeals’ decision below was that it ignored the numerous administrative interpretations of the statute, ignored the numerous statements about how poorly drafted the statute was, and placed the needs of law enforcement in front of the rights of the accused.
http://milawyersweekly.com/fulltext-opinions/wp-files/opinions2/07-83051.pdf