III. ANALYSIS
A. THE MICHIGAN MEDICAL MARIHUANA ACT
The MMMA was proposed in a citizen’s initiative petition, was elector-approved
in November 2008, and became effective December 4, 2008.
22 The purpose of the MMMA is to allow a limited class of individuals the medical use of marijuana, and the
act declares this purpose to be an “effort for the health and welfare of [Michigan] citizens.”
23 To meet this end, the MMMA defines the parameters of legal medicalmarijuana use, promulgates a scheme for regulating registered patient use and
administering the act, and provides for an affirmative defense, as well as penalties for
violating the MMMA.
The MMMA does not create a general right for individuals to use and possess
marijuana in Michigan. Possession, manufacture, and delivery of marijuana remain
punishable offenses under Michigan law.
24 Rather, the MMMA’s protections are limited
to individuals suffering from serious or debilitating medical conditions or symptoms, to
the extent that the individuals’ marijuana use “is carried out in accordance with the
provisions of [the MMMA].”
25 The cases before us involve two sections of the MMMA that provide separate
protections from prosecution for offenses involving marijuana. The first, § 4, MCL
333.26424, grants “qualifying patient
”
26 who hold “registry identification card”
27 broad immunity from criminal prosecution, civil penalties, and disciplinary actions, and
provides in part:
A qualifying patient who has been issued and possesses a registry
identification card shall not be subject to arrest, prosecution, or penalty in
any manner, or denied any right or privilege, including but not limited to
civil penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for the medical use of marihuana
in accordance with this act, provided that the qualifying patient possesses
an amount of marihuana that does not exceed 2.5 ounces of usable
marihuana, and, if the qualifying patient has not specified that a primary
caregiver will be allowed under state law to cultivate marihuana for the
qualifying patient, 12 marihuana plants kept in an enclosed, locked facility.
27 “Registry identification card” is defined as “a document issued by the [Department of
Community Health] that identifies a person as a registered qualifying patient or registered
primary caregiver.” MCL 333.26423(i).
28 The MMMA defines “medical use” to mean “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 associated
with the debilitating medical condition.” MCL 333.26423(e).
Any incidental amount of seeds, stalks, and unusable roots shall also be
allowed under state law and shall not be included in this amount.
[29] The second provision, § 8, MCL 333.26428, applies to “patients” generally, provides an
affirmative defense to charges involving marijuana for its medical use, and states in
relevant part:
(a) Except as provided in [MCL 333.26427], a patient and a patient’s
primary caregiver, if any, may assert the medical purpose for using
marihuana as a defense to any prosecution involving marihuana, and this
defense shall be presumed valid where the evidence shows that:
(1) A physician has stated that, in the physician’s professional
opinion, after having completed a full assessment of the patient’s medical
history and current medical condition made in the course of a bona fide
physician-patient relationship,
[30]
the patient is likely to receive therapeutic
or palliative benefit from the medical use of marihuana to treat or alleviate
the patient’s serious or debilitating medical condition or symptoms of the
patient’s serious or debilitating medical condition;
(2) The patient and the patient’s primary caregiver, if any, were
collectively in possession of a quantity of marihuana that was not more than
was reasonably necessary to ensure the uninterrupted availability of
marihuana for the purpose of treating or alleviating the patient’s serious or
debilitating medical condition or symptoms of the patient’s serious or
debilitating medical condition; and (3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use,
delivery, transfer, or transportation of marihuana or paraphernalia relating
to the use of marihuana to treat or alleviate the patient’s serious or
debilitating medical condition or symptoms of the patient’s serious or
debilitating medical condition.
(b) A person may assert the medical purpose for using marihuana in
a motion to dismiss, and the charges shall be dismissed following an
evidentiary hearing where the person shows the elements listed in
subsection (a).
(c) If a patient or a patient’s primary caregiver demonstrates the
patient’s medical purpose for using marihuana pursuant to this section, the
patient and the patient’s primary caregiver shall not be subject to the
following for the patient’s medical use of marihuana:
(1) disciplinary action by a business or occupational or professional
licensing board or bureau; or
(2) forfeiture of any interest in or right to property.
Our consideration of the availability of the affirmative defense in § 8 and the
immunity conferred under § 4 is guided by the traditional principles of statutory
construction. However, because the MMMA was the result of a voter initiative, our goal
is to ascertain and give effect to the intent of the electorate, rather than the Legislature, as
reflected in the language of the law itself.
31 We must give the words of the MMMA their
ordinary and plain meaning as would have been understood by the electorate. 32
Clearly, § 4 applies only to “qualifying patients” who have obtained registry cards.
Under this section, those patients are provided broad immunity from “arrest, prosecution,
or penalty in any manner” and protection from the denial of “any right or privilege,
including but not limited to civil penalty or disciplinary action by a business or
occupational or professional licensing board or bureau,” provided that these patients
possess not more than 2.5 ounces of usable marijuana and 12 marijuana plants kept in “an
enclosed, locked facility.”
33
Additional protections in § 4 prohibit the denial of custody
or visitation with a minor based on the medical use of marijuana in accordance with the
MMMA
34
and provide a presumption that registered cardholders possessing an
appropriate amount of marijuana are engaged in the medical use of marijuana.
35
Comparatively, § 8 provides an affirmative defense to “patients” or “a person”
generally.
36
As the prosecution in both cases concedes, the language of § 8 permits those
individuals who are not registered cardholding patients to assert the § 8 affirmative
defense.
37
Under § 8, a patient in any criminal prosecution involving marijuana may
establish an affirmative defense requiring dismissal of the charges if the patient can
establish that (1) “[a] physician has stated that, in the physician’s professional opinion,
after having completed a full assessment of the patient’s medical history and current
medical condition made in the course of a bona fide physician-patient relationship, the
patient is likely to receive therapeutic or palliative benefit from the medical use of
marihuana,” (2) the patient did not possess an amount of marijuana that was more than
“reasonably necessary” for this purpose, and (3) the patient’s use was “to treat or
alleviate the patient’s serious or debilitating medical condition or symptoms . . . .”
38
The
protections afforded a patient under § 8 are much less broad than those provided under
§ 4 and extend only to prosecutions involving marijuana, disciplinary actions by a
business or occupational or professional licensing board or bureau, and forfeiture of any
interest in or right to property.
