legal news PHOTOS by CYNTHIA price
by Cynthia Price
Legal News
There was a lot to discuss during the first annual meeting of the State Bar Marijuana Law Section, held in Grand Rapids in conjunction with the State Bar’s annual meeting.
"Leaders of the new section — the first stand-alone marijuana law section in the nation — stress that it exists not just to serve criminal defense attorneys."
Some of the founding/council members are business lawyers interested in the potential for marijuana entrepreneurs, those who help small businesses with compliance, family law attorneys, and municipal lawyers.
The Section takes “a proactive approach to the anticipated increase of changes in marijuana law as it is evident in our court systems and beyond.” The founding statement says they will work on development of Michigan marijuana laws and educate the bar about them.
The Sept. 23 meeting, attended by 50 or so attorneys, featured a panel discussion on the general subject of marijuana law and related issues, but the hot topic was the recent legislation making important changes and clarifications to the Michigan Medical Marihuana Act of 2008, which came into being as a result of popular vote. (Please note: this article will use the spelling “marihuana” where it is referred to that way in the law.)
The section will take a deeper dive into the changes on Oct. 21-23 at Firekeepers Casino Hotel in Battle Creek. Its first conference is called “Marijuana: What Every Lawyer Needs to Know,” and attorneys can register through www.michbar.org.
There was initially some confusion about whether the three bills enacted recently had been signed into law, but panelist Douglas Mains advised that Gov.. Rick Snyder had done so Sept. 21.
Mains, now at Dykema, was an insider early on. He formerly worked as associate legal counsel to Speaker of the House Jase Bolger and Deputy Legal Counsel to the next Speaker, Kevin Cotter. He also served as a staff member in the House Republican Policy Office, which involved avising the House Committee on the Judiciary. He helped draft the later medical marijuana legislation, and now advises clients on matters regarding elections and heavily-regulated industries in addition to medical marijuana.
The need for clarification came early, Mains said, referring to his work under Bolger with Rep. John Walsh as well as Matthew Abel and Thomas Lavigne of Cannabis Counsel (who were present) and others. Earlier amendments, passed in 2011-2012, did not address some of the thornier issues such as dispensaries.
Rep. Mike Callton, who sponsored the recent legislation, had also introduced bills in earlier legislative sessions. Mains smiled as he said that the 2011 introduced bills had gone to Government Operations, where they normally go to die. But Randy Richardville, that committee’s chair, took a special interest in the bills and passed them out during lame duck session. They failed that time which made clear the need for law enforcement involvement in their development, so a small group started meeting.
Amending an initiated act requires a 3/4 majority, and in recent months, the bills attracted bipartisan support. House Bills 4209, 4210 and 4287 passed in both the House and Senate. The National Patient’s Rights Association, the Michigan Epilepsy Foundation and Michigan Parents for Compassion supported them.
What are now Public Acts 281, 282, and 283 set up a seed-to-sale tracking and monitoring system, a Medical Marihuana Licensing Board, and a Marihuana Advisory Panel, all housed at Licensing and Regulatory Affairs (LARA). Most of the Acts’ language covers the details of the three.
The fee for licensing through LARA will be set by the five-member licensing board, though the Act mandates taxation at three percent of the “provisioning center’s” gross retail receipts.
People at the section meeting had a lot of questions concerning how much fees might be, which panelists could not answer, though Manes said other states have fees in the $200-250 range.
Another focus of questions involved “secure transporters,” defined as “a commercial entity located in this state that stores marihuana and transports marihuana between marihuana facilities for a fee.” A secure transporter will have to be licensed by LARA as well.
Panelist Barton Morris, an Ann Arbor solo attorney who is well-versed in the science, pointed out that there are major concerns with testing for the substance in users. As many people know, the active ingredient THC will show up for as long as a month after use, even though its potential for impairing the user is thought to have long passed.
Another piece of legislation, which passed the House in 2015 but has not gone any further than that, would set up a commission to do an in-depth study of the correlation between impaired driving and minute amounts of THC, measured in increments as tiny as nanograms.
Morris detailed what other states have done, and questions afterwards centered on the composition of the proposed commission, which mandates state police, physician, toxicologist, patient and university presence but no defense attorneys or prosecutors.
Defense attorney Michael Komorn talked about other ways in which Field Sobriety Tests are inadequate. He noted, among other things, that the Michigan Supreme Court’s decisions in People v. Hartwick made it clear that there are still many questions about the bona fide patient-physician relationship and what constitutes follow-up care.
Section 8 of the MMMA requires dismissal if three standards are met regardless of whether the medical marijuana user has a valid and current registry card. The three are: prior to being arrested, a physician has stated that the patient has a condition for which marijuana is a beneficial treatment; the patient or caregiver possesses an amount “reasonably necessary to ensure the uninterrupted supply,” that is, it can be more than the 2.5 ounces or 12 plants in Section 4; and the patient or the caregiver was actually involved in growing the marijuana.
Assistant Prosecutor Allison Arnold of?Monroe County said her department is very open to Section 8 affirmative defenses and advised the group it is important for defense attorneys to work with prosecutors and not assume a rigid adversarial stance.
After the panel, local attorney Robert Hendricks of Wrigley,?Hoffman and Hendricks, P.C., also the Secretary-Treasurer of the section, reported on the State Bar’s Representative Assembly’s actions the previous day.
The section’s recommendations for exceptions to ethics rules calling it misconduct for attorneys to engage in activity that violates criminal law, which could be construed as the case with marijuana law practice because it is still illegal at the federal level, passed easily. The proposal must go before the Michigan Supreme Court for approval, but Hendricks said, “I believe the court has had enough experience that they don’t want to create a situation where lawyers can’t be involved. I think they want the benefit of an active and vigorous bar to shape the way go forward.”
Other section officers are Chair Daniel Grow, a solo practitioner in St. Joseph who also moderated the panel, and Chair-Elect Mary Chartier-Mittendorf of Alane Chartier in Lansing. Council members include many of those in this article, as well as Bernard Jocuns of Lapeer, Karl Numinen of Marquette, and another Grand Rapids attorney, Bruce Alan Block.
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