All eyes on McQueen

By Andy Balaskovitz

Oral arguments before the state Supreme Court heard today on major medical marijuana case

Thursday, Oct. 11 — The Michigan Supreme Court heard oral arguments this morning from both sides of a medical marijuana case that effectively shut down most of Lansing’s dispensaries over a year ago.

In State of Michigan vs. McQueen, the Supreme Court will determine whether patient-to-patient transfers — which includes sales — of cannabis are legal. The two sides set forth starkly different arguments today based on what is expressly written into the Michigan Medical Marihuana Act.

The state argued that the law is silent on patient-to-patient “sales” as well as “transfers,” and are thus illegal. “Unless conduct is prohibited by law, it is not unlawful,” said Mary Chartier, a Lansing attorney representing defendant Brandon McQueen. Risa Scully, one of the attorneys representing the state, later countered: “If it was (legal), the statute would say so.”

One of the sections of the law being examined says: “A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.” “Medical use” is also being argued, which the law defines as “the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms association with the debilitating medical condition.”

The McQueen case began in December 2010 in Mt. Pleasant when the state, through the Isabella County prosecutor, sought to close down Compassionate Apothecary — which was co-owned by McQueen and Matthew Taylor — as a public nuisance. CA members were qualified patients and caregivers who purchased cannabis that was stored in lockers from other members. The prosecutor argued that the statute doesn’t allow for patient-to-patient sales or transfers. After a Circuit Court ruling in favor of CA, the state Court of Appeals reversed the decision, saying the “medical use” of cannabis does not allow for sales.

Following the Court of Appeals ruling in August 2011, more than 20 dispensaries in Lansing closed. Fewer than 10 were open as of a month ago.

The seven-Justice court agreed to hear McQueen’s appeal. This morning’s hour-long argument on the sixth floor of the Hall of Justice in downtown Lansing resulted in “excellent arguments by both sides,” Justice Brian Zahra noted at the end of the session.

As it relates to transfers versus sales, Justice Stephen Markman asked, “Isn’t the inclusion or absence of the word ‘sale’ really what’s critical here?” Chartier said: “The attachment of price to a transfer is immaterial.” Moreover, Chartier argued the Public Health Code also is silent on the sale of marijuana, even though it bans the delivery and manufacturing of marijuana. Risa Scully, one of the attorneys representing the state, called Chartier’s argument “disingenuous.”

Right out of the gate, Justice Brian Zahra asked Chartier that if he and a friend each had a prescription for Vicodin, “Could I purchase the Vicodin?” Chartier responded that the Public Health Code prohibits the sale of such drugs, but that the Medical Marihuana Act has “protections” built in for patients permitting the sale of cannabis.

Chief Justice Robert Young Jr. questioned how a patient’s transferring or selling cannabis alleviates that patient’s medical need for the drug, to which Chartier replied there are “indirect” benefits, such as the ability to acquire other, more helpful strains in lieu of what they have in possession.

Skully followed Chartier to argue that not only should patient-to-patient sales be illegal, but also transfers. There’s only two ways patients should get cannabis, Skully argued: to grow it themselves or find a caregiver to grow it for them. Chartier’s intrepretation would “create a free-for-all of medical marijuana,” she said. To which Markman replied: “What you refer to a free-for-all,” the defense calls a “marketplace.”

“I’m not here to solve that problem,” Skully said.

Skully lasted about 10 minutes against the justice’s questioning as she deferred to another attorney, Solicitor General John Bursch from the Attorney General’s Office, to finish up. Bursch emphasized the “one-to-one” relationship between a caregiver and a patient, as introduced by Skully. He also asked the court to rule that, along with no patient-to-patient transfers, there should be no caregiver-to-caregiver transfers; no caregiver reimbursement for services except from the patient; and that caregivers are compensated only for costs, not to make a profit.

No clear winner emerged from today’s arguments as the justices consider the case before issuing a final ruling. Justices Michael F. Cavanagh and Marilyn Kelly remained silent throughout the arguments, the only two justices who didn’t ask questions.

An opinion on this case would have to be issued before the court’s term ends on July 31. But it’s unclear what effect — if any — the upcoming election will have on a ruling. Zahra and Markman are both up for re-election.

If a new justice is elected to the court, “We just don’t know if the court will re-hear the case,” Supreme Court spokeswoman Marcia McBrien said after the case. “Traditionally, justices have not participated in the decision of cases argued before they took office,” though exceptions have occurred when an incoming justice’s vote was needed to break a tie on the decision of the case.

The Supreme Court also heard arguments today on a case involving multiple patients and caregivers growing in a common space. The Grand Rapids Police Department seized 88 plants from a commercial space being leased by Ryan Bylsma. Bylsma was allowed to possess up to 24 plants (he is a caregiver for two patients) and argued that the rest of the plants belonged to other caregivers and patients. His motion to dismiss charges of manufacturing cannabis was denied at the trial court level in an evidentiary hearing; the Court of Appeals affirmed the lower court's decision, rejecting Bylsma's argument that the MMMA allows for collective-style growing.