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Will of the people

Law enforcement sees medical marijuana law as vague, may have to wait for courts to clear it up

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For 40 years, attorney Richard McLellan has been representing regulated industries like liquor, gambling and insurance. And now, he is venturing into a new regulated industry: medical marijuana.

McLellan, who was once appointed acting director of Michigan’s office of drug abuse by former Gov. William Milliken, is working with a group that wants to set up a private, for-profit medical marijuana cultivation venture. He called it a “high-end medical marijuana project.”

“We think there is a role in this emergent medical marijuana market for an entity that really focuses on the quality and issues related to those persons who most benefit medically from marijuana,” he said. “It’s a very complicated business in assuring the medical efficacy of the product — that it’s grown and manufactured and tested in a way that gives the patients what they need. We think there is a great need to, over time, come up with a system that has the confidence of the physician community.”

McLellan said there needs to be a business plan, financial support and an understanding of how such a venture could exist under the state’s medical marijuana law. McLellan used to work for the Dykema Gossett law firm, which was hired to write the law. He even wrote some of it.

“Our focus is to take the law as we have it and develop a strategy within the confines of the existing law,” he said.

But it is Michigan’s existing medical marijuana law that some say is too vague, poorly written and the root of a ton of legal questions. Across the state, medical marijuana dispensaries and compassionate care clubs are popping up, and cities, towns and villages are trying to change zoning laws to fit the unexpected new businesses. Prosecutors in counties across the state have to reconcile traditional law enforcement views on medical marijuana with the new law. And the state Department of Community Health is having trouble distributing medical marijuana cards as fast as applications are coming in, and some patients are being arrested for it.

Ingham CountyProsecutor Stuart Dunnings views the medical marijuana law as“horrible” — not for its intent, but for its vagueness. To wit: The lawsays you can only grow marijuana in a locked area. Does that mean youcan grow it outside as long as there’s a locked fence? What if someonegrows a marijuana plant that produces more than is allowed under thelaw? What if someone is arrested for possession of marijuana — asDunnings has seen a rash of recently — and then goes and applies for amedical marijuana registration card?

“Everyone is sort of walking around with big question marks,” Dunnings said.

As far as medicalmarijuana dispensaries, Dunnings believes they are illegal if they areoutside the scope of a caregiver/patient relationship. Under the law, amedical marijuana caregiver can provide up to five patients with themedicine.

“If they are servicing more than five patients, then it’s illegal,” he said.

Dunnings says that hisoffice could create a policy regarding medical marijuana prosecutions,but he does not know if it would hold up in court. Plus, the statewould still have an unclear law.

Dunnings has beenmeeting with various medical marijuana stakeholders to better educatehis office in the law. He met last week with East Lansing attorneyRobert Baldori, who represents people charged with marijuana offenses,to discuss “safe harbor” areas. Baldori, who favors marijuanadecriminalization, says that many words in the law lack a definition —something that the Legislature should step up to. For example, he said,the law says a patient can “acquire” medical marijuana, but the word isnot defined.

“The Legislature is treating this like a hot potato,” he said. “They should clarify this.”

Three senatorsintroduced bills last year that would change medical marijuana law, butthose have gone nowhere. The three senators who wrote the bills — RogerKahn, R-Saginaw, Wayne Kuipers, R-Holland, and Gerald Van Woerkom,R-Muskegon — did not respond to requests for comment.

On the law enforcementside, a committee of prosecutors with the Michigan ProsecutingAttorneys Coordinating Council has formed to collect information aboutmedical marijuana cases. The committee chairman, Berrien CountyProsecutor Art Cotter, says changing the law compeltely is unlikely: itwould take a 3/4 majority vote from both chambers of the Legislature,or an entirely new ballot proposal — plus, the original ballot proposalpassed with 63 percent of the vote. Rather, the committee will givedirection to prosecutors from across the state on how to proceed withissues in the law. Cotter said that, eventually, the court would haveto interpret the vague spots in the law.

“Until this is in the Court of Appeals, every prosecutor essentially has to make his own decisions,” he said.

Cotter says that he hasmet with compassionate care clubs in his county to make sure the law isat least basically understood on both sides.

Victor Fitz, the CassCounty prosecutor, is against the medical marijuana law “withoutquestion.” He wants it clarified so prosecutors know how to proceed.

“It’s the most poorlycrafted piece of legislation that I’ve seen in my 27 years as aprosecutor,” he said. “It needs to be clarified in some fashion for thebenefit of both the prosecutors, defendants and the system as a whole.”

He used the case ofSylvester Vanderbutts as an example. When Vanderbutts’ house was raidedby South Haven Police last September, they found 48 plants and sevenounces of loose marijuana — above the limit provided inthe law, even though Vanderbutts is authorized by the state to havemedical marijuana (he is a cancer patient). Vanderbutts was convictedat the end of April of possession of marijuana with intent to deliver,operating a drug house, possession of marijuana and manufacturingmarijuana.

“Because of a poorlyworded section of the law, some defendants are making the argument thatthey can have as much marijuana as needed,” Fitz said. “The statuteindicates the limit is 12 plants and 2 1/2 ounces of marijuana.Clearly, an objective standard makes it easier for the law to beimplemented fairly.”

Robin Schneider is thehead of the Capital City Compassion Club, which plans to open acompassionate care club at 2010 E. Michigan Ave. — next to Emil’sRestaurant — in Lansing by the beginning of June. She said the clubwould operate Monday through Friday as a place for medical marijuanapatients to relax, take yoga classes and attend support groups. But onSaturdays, the club would host a “medical marijuana farmers’ market,”where growers could come and supply patients with homegrown cannabis.Membership in the club would be $25 per year, and the products offeredon Saturdays would run $10 per gram and up. When asked how under thestate law the club could be legal, she pointed to a clause that says aperson cannot be arrested for assisting someone in using or givingmarijuana:

“A person shall not besubject to arrest, prosecution, or penalty in any manner, or denied anyright or privilege … for assisting a registered qualifying patient withusing or administering marihuana,” reads the law.

“A caregiver canprovide marijuana to any patient,” she contends. She said she has metwith Dunnings regarding medical marijuana and law enforcement.

McLellan says that hehas talked to enough physicians to be convinced that there arelegitimate uses for medical marijuana. McLellan suffers from severearthritis, and 10 years ago, before advances in other pain medication,he might have been eligible for medical marijuana. He thinks the amountof people grumbling against the law has been low compared to thoseopposed to gambling or teetotalers. He ran into Dunnings recently, andmay meet with him to talk about some uncertainties in the law and howthat might affect a possible medical marijuana cultivation venture.But, since he helped write, the law, were the gray areas intentional?

“The clients had a veryclear understand of what they were trying to accomplish,” he said. “Ithink it’s clear their intention was to implement medical marijuana andprovide for dispersed growing. What was not intended was to make this alicensed pharmaceutical business.”


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