House reviews bills to revise, clarify state Medical Marihuana law


by Cynthia Price
Legal News

On Thursday morning, the Michigan House Judiciary Committee took testimony on bills intended either to clarify or to restrict the Michigan Medical Marihuana Act and related laws.
Which view you take of the proposed legislation depends on one’s opinion about legalizing any use of marijuana.

Thomas M. Cooley Law School Professor Gerald Fisher is widely considered to be one of the leading authorities on the Michigan Medical Marihuana Act (MMMA). His view of the situation is that there are two camps with very different positions on the MMMA, even though both support it.

According to Fisher, one group holds the view that MMMA is essential to help people with chronic pain or other illnesses which marijuana can address. The other faction sees MMMA as a step along the way to allowing “a more liberal use of marijuana.”

The Act resulted from a ballot initiative in 2008. With 3,008,980 yes votes representing 63% of votes cast (the no votes numbered 1,792,870), it was clear that support for the measure was broad.

Says Fisher, “I’ve heard very, very few people say they think it should be repealed outright.”

Yet many citizens were unaware as they voted that the MMMA was already written. “The ballot language was a summary created by the drafters, and even though the whole bill was available to read, I’m sure that less than one-tenth of one percent did that. Voters read the summary and thought that the Michigan Legislature would fill in the blanks; I think just about everybody did.”

Fisher says that the organization drafting the proposal favors legalization of marijuana and intentionally wrote the legislation under consideration to be as broad as possible.

As reported previously, this broad language has caused headaches for governmental entities of every stripe. Municipalities have attempted to wrap their arms around the extent of MMMA, residents have sued, the Federal government has issued guidelines, and confusion reigns.

But Fisher comments, “The term ‘poorly written’ would be used by people who want a reasonable stability in the law. But it was drafted very carefully by the lobbyist group whose mission is legalization. So drafting it in a way that creates significant ambiguities, and a very wide authority, would be one step toward legalization. So that group would say that it’s really not poorly written.”

Dozens of legislators feel that clarifying some of the MMMA’s provisions is necessary to make the Act functional.

Therefore, bi-partisan groups of representatives have introduced four bills:

—HB 4834 requires the inclusion of a photograph on the mandated identification card for medical marijuana users. In language to be added to the MMMA, applicants for the state-issued ID would be required to provide:

“Two identical, 2 inch by 2 inch, color photographs the applicant’s current appearance, have been taken within the immediately preceding 6 months, and meet all of the following specifications: (A) The picture is a full face front view against a plain, white or off-white background. (B) The applicant’s head measures between 1 inch and 1-3/8 inches from the bottom of the chin to the top of the head,” and shows the applicant wearing no hat or headgear that obscures the hairline, nor  dark or nonprescription glasses, “unless medically necessary.”

This bill also adds: “(3) The Department [defined in HB 4851 as the state department of community health] shall not allow any person access to any information about patients in the department’s confidential list of persons to whom the department has issued registry identification cards... except for the following: (A) authorized employees of the department in the course of their official duties; (B) state or local law enforcement officials, but only as to inquiries made in the course of their official duties and as to information associated with an individual for whom the  officers or official provides either a name and date of birth or a Registry Identification Number.”

—HB 4851 address both what constitutes a “bona fide physician-patient relationship” and requirements for “enclosed locked facility.”

In order to satisfy the terms of “bona fide physician-patient relationship,” the proposed bill calls for all four of the following to be present”

   “(1) The physician has completed a full assessment of the patient’s medical history and current medical and psychological condition, including an appropriate, in person, physical examination of the patient. (s) The physician has treated or consulted with the patient with respect to the patient’s debilitating medical condition for a reason other than the patient’s application...for a Registry Identification Card and has maintained records... (3) The physician has a reasonable expectation that he or she will provide follow-up care, examination, and treatment to the patient to monitor the efficacy of the use of medical marihuana... (4) If appropriate, the physician has notified the patient’s primary care physician of the .. certification for the use of medical marihuana...”

The additions concerning the “enclosed locked facility” read in part (changes in capitals):

“(D) (c) ‘Enclosed, locked facility’ means a closet, room, or  other COMPARABLE, COMPLETELY enclosed area equipped with SECURED  locks or other FUNCTIONING security devices that permit access only  by” a registered qualifying patient or a primary caregiver, depending on which maintains the facility.

About HB 4851, Fisher comments, “These provisions are very consistent with the standpoint of those who want a stable set of rules for treating medical conditions. For example, if someone is very ill, they’re probably already going to have a good patient/physician relationship.”

—HB 4853 adds “SELLING MARIHUANA IN VIOLATION OF REGISTRY IDENTIFICATION CARD RESTRICTIONS” to the list of felonies in the Code of Criminal Procedure; and
—HB 4856 adds a section to the Michigan Penal Code stating “A person shall not transport or possess medical marihuana in or upon a motor vehicle or any self-propelled vehicle designed for land travel” in the absence of a few enumerated factors.

House Judiciary Committee Chair John Walsh stated that the bills would not be passed out of committee for full House consideration Thursday, a large number of people showed up to make comments.

These included representatives from the Michigan State Police, who testified with a neutral position on the bills; representatives of the National Patients’ Rights Association, the American Medicinal Marijuana Association, the Michigan State Medical Society (who testified in support of HB 4851), the Newaygo County and the Genesee Compassion Clubs, and Americans for Safe Access; Jeff Sauter of the Prosecuting Attorney's Association of Michigan and the Eaton County Prosecuting Attorney's Office, testifying in support of the bills; Matthew Abel, representing Cannabis Counsel, PLC; and a number of individuals testifying on behalf of themselves.

Fisher, who served as manager of the Municipal Practice Group at Secrest Wardle (which has a Grand Rapids office) before joining Cooley Law School, pointed out that there is another serious issue involved with the process: in light of the MMMA’s genesis as a ballot initiative, what percentage of the vote will be required to pass it through the two houses of the Legislature?

“For the most part, I think it would be a 3/4 vote, which is going to be very difficult. But there’s been an argument made by some that if the bill doesn’t contradict what the statute says, you’re not bound by that 3/4 requirement.”