(Crystal A. Proxmire, Aug. 9, 2013)
The seven people cleared of drug-related offenses in conjunction with the Clinical Relief medical marijuana dispensary raid are not free and clear just yet, as they await the decision of the Court of Appeals.
The dispensary was opened on Hilton Road in Ferndale in 2010, shortly after voters approved allowing medical marijuana statewide. At the time there had been no rulings made about the legality of such clinics or patient-to-patient sales. On Aug. 25, 2010 Clinical Relief was raided by Oakland County Sheriffs. Fifteen people were arrested. The clinic’s stock of marijuana, confidential patient files, equipment and their caregiver and patient cards were confiscated. The business was shut down.
Since that time, the Michigan Supreme Court has clarified the law and deemed that dispensaries are not allowed. However, defendants argued that because the law had not been clarified, they could reasonably assume they were conducting business within the law.
Because they acted with apparent intent to follow the law, were guided along the way by city officials and police officers who all believed they were following the law, because the law was vague and did not have any judicial precedents to guide them, the cases against the Clinical Relief owners and staff members were dismissed on January 11, 2012 using the rule of lenity.
However, the Oakland County Prosecutor’s Office appealed that decision, and arguments were heard in the Court of Appeals on Aug. 6.
Oakland County Assistant Prosecutor Danielle Walton called Oakland County Circuit Judge Daniel O’Brien’s dismissal “a rush to judgment in a lower court,” and called for a reversal. She argued that “the law is viewed as unsettled until the Supreme Court speaks,” meaning that a dismissal before a precedent-setting case could have been premature. She also argued that Supreme Court rulings can be applied retrospectively, except in instances where the decision changes the law. “The Supreme Court [in a later case] did not find Section 4 was ambiguous,” she said, meaning that the defendants should not be able to claim that it was.
The defense, however, gave several reasons they believed they were operating within the law. They got a business license and certificate of occupancy and got approvals from the city, and public support from local elected officials. They also cited a memo posted on the County’s website by County Executive L. Brooks Patterson stating that it would be up to the local municipalities whether or not to allow dispensaries. And they also believed that the wording of the state law did not preclude their business.
“I think really what was underpinning the court’s decision was the emotional argument that they were never given warning,” Walton said. “The Sheriff’s Department and the Oakland County Prosecutor were extremely vocal that dispensaries were not permitted, which they have said too many times to count through different mediums.
“The Oakland County Sheriff Department…specifically went out to the facility and told them their conduct was illegal. …The Ferndale Police Captain who toured the facility said that their conduct was illegal. At that time, the Michigan Department of Community Health had on their website it was the position of the department – and this is the department that administered the act – that dispensaries were illegal…. every act in accordance with the [state] act, would subject defendants to Federal prosecution. So they knew they would be prosecuted at any time by the Federal government.”
One of the defense attorneys, Stuart Friedman, spoke to the issue of ambiguity. “This is the first time I’ve heard of the law referred to as clear, unambiguous,” he said. “At the time everybody was struggling with this statute. And as I said, this isn’t a case of ignorance of the law per se, we stick to it. My clients read the statue prior to the day they were arrested… and at the time many trial judges got the interpretation wrong. The did not predict how the Supreme Court would decide. We now know a lot of things we didn’t know then.”
Fellow defense attorney Thomas Loeb echoed the sentiment, stating “Judges were clearly all over the place on this when the law first came on the books.” Loeb also reminded the panel of judges of the reasons the case was dismissed in the first place. “They tried to do everything right,” he said. “They got a certificate of occupancy from the City of Ferndale authorizing them as a medical marijuana facility and they invited local government officials to come in and view the premises. The premise, by the way, was very secure and regulated… a receptionist would verify that you in fact had a medical marijuana card and you were authorized to deal with this medicine.”
The defendants were not busted for selling to people without a card, rather for selling to undercover officers who claimed to be registered patients and presented fake medical marijuana cards. There are several felony charges involved in the case.
Defendants Anthony Agro, Barbara Agro and Nicholas Agro, Ryan Richmond, Barbara Johnson, Ryan Fleissner, and Matthew Curtis are now waiting to hear what the Court of Appeals decision will be.
To view the entire proceeding, visit Eric L. VanDussen’s Vimeo page at http://vimeo.com/71930675.
For previous Ferndale 115 stories on Clinical Relief and other medical marijuana issues, see:
http://ferndale115.com/20100826clinic.html – Ferndale Clinic Still Open After Raid
http://www.ferndale115.com/20100629medicalm.html – Ferndale Place Moratorium on Medical Marijuana Based Businesses.