(Crystal A. Proxmire, Sept. 12, 2013)
The Michigan Court of Appeals has reinstated charges against seven people arrested in conjunction with the 2010 raid of the Clinical Relief medical marijuana facility in Ferndale. The charges had been dismissed, but Oakland County Clerk Jessica Cooper appealed. The Court of Appeals issued their determination Sept. 10, reinstating charges and sending the case back to the Circuit Court level. Charges are related to possession and intent to distribute marijuana.
Clinical Relief opened on Hilton Road in Ferndale in 2010, shortly after voters approved allowing medical marijuana statewide. The City of Ferndale issued Clinical Relief a certificate of occupancy, and city officials toured the facility.
At the time there had been no rulings made about the legality of such clinics or patient-to-patient sales, though prosecutors argue that it should be clear that dispensaries were not included in the Michigan Medical Marijuana Act (MMMA).
On Aug. 25, 2010 Clinical Relief was raided by Oakland County Sheriff’s Department Narcotic Enforcement Team. 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. Defendants argued that because the law had not been clarified, they could reasonably assume they were conducting business within the law.
The charges were dismissed in January 11, 2012 using the rule of lenity and protecting the defendants under the MMMA.
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 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 statute 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 determination gave several reasons for reinstating the charges. One was that “defendants have failed to identify any allegedly ambiguous provision of the MMMA that led them to their mistaken belief that marijuana dispensaries were, in fact, legal. The MMMA did not, and still does not, include any provision which states that marijuana dispensaries are or were legal business entities.” The MMMA protects legal patients and caregivers, but the court believed the defendants failed to prove they were either. In the hearing, however, attorneys pointed out that caregiver and patient cards were collected as evidence by the authorities.
Secondly the court determined that the rule of lenity did not apply in this case. The rule of lenity “provides that courts should mitigate punishment when the punishment in a criminal statute is unclear… The rule of lenity applies only if the statute is ambiguous or in absence of any firm indication of legislative intent.” The determination explains that “the rule of lenity does not apply when construing the Public Health Code because the Legislature mandated in MCL 333.1111(2) that the code’s provisions are to be “liberally construed for the protection of the health, safety, and welfare of the people of this state,” and that “It is illegal under the Public Health Code, MCL 333.1101 et seq., for a person to possess, use, manufacture, create, or deliver marijuana.”
Thirdly the court determined that the previous judge erred by failing to give “retroactive effect” to a ruling that happened after the Clinical Relief raid had taken place. In the McQueen case, the court made it clear that dispensaries are not permitted under the MMMA. “The general rule is that judicial decisions are given full retroactive effect, and complete prospective application is limited to decisions that overrule clear and uncontradicted case law,” the determination states. “our Supreme [Court] explained that
due process is violated when the retroactive application of a judicial decision acts or operates as an ex post facto law, i.e., criminalizes conduct that was innocent at the time performed.”
Defendants Anthony Agro, Barbara Agro and Nicholas Agro, Ryan Richmond, Barbara Johnson, Ryan Fleissner, and Matthew Curtis have the option of appealing the determination to the Michigan Supreme Court. Cooper’s office is otherwise expected to continue in the case against them at the Circuit Court level, with Judge Daniel O’Brien handling the case.
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.
To view the appeal hearing, visit Eric L. VanDussen’s Vimeo page at http://vimeo.com/71930675.
More information on the Clinical Relief case can also be found at http://courts.mi.gov/opinions_orders/case_search/pages/default.aspx?SearchType=1&CaseNumber=308105&CourtType_CaseNumber=2.