This post was originally published August 13, 2014 8:38 pm by Charles Ream. It has been recreated in a rebuild of the site.
GREEN PAPER 300 BULBS CHUCK REAM 11/12/10
“When words lose their meaning, the universe crumbles.” (Ancient Chinese Proverb)
Before starting this essay I carefully planted more than 300 tulip and daffodil bulbs in front of my compassion center in Ann Arbor. I prayed that democracy be respected and suffering relieved. When these flowers bloom in their springtime glory the cannabis community will be growing even faster, providing good jobs and amazing medicine, and “reinventing Michigan” with the help of our mighty, ancient, healing flower.
All of our lives the powerful have said to us, “If you don’t like the law then you should use the democratic process to change it”. So we grew up and did it. Sixty three percent of Michiganders passed the Michigan Medical Marijuana Act. Every part of that act is now the law of the State of Michigan.
A significant antidemocratic reaction is coalescing in Michigan which seeks to make the law unworkable in practice and then take complete control of any patients or caregivers who persist in using cannabis medicine in Michigan. A draconian solution is being proposed where there is no real problem. They want to “fix” a system that isn’t broken, so that the power and revenue of local government is enhanced.
The voters of Michigan expect that our new “Peoples Law” will be followed (using the normal dictionary definition of words). Patients should not have to learn that the medicine that gives hope to their lives has become a “political football” to be kicked around by big boys on the lookout for power and money. This herbal medicine could be cheap and easy to provide. Our state law gives us rights which cities and townships can’t take away.
We remember that this is the second major illegitimate effort to restrict and take over implementation of the Michigan Medical Marijuana Act. It will suffer the same fate as the first. The initial set of rules promulgated by the Michigan Department of Community Health (cite) were far more detailed and restrictive than the language which the voters approved so strongly. At a huge public hearing on (cite) patients and caregivers explained to the MDCH that the language that was on the ballot must be followed, and we would litigate constantly until the regulations accurately reflected what the voters had approved. The MDCH “turned on a dime”, and promulgated new rules which exactly comport with the language in the Act. Regulations are now clear and not excessive.
The Michigan Municipal League is now executing its own takeover of the MMMA, encouraging cities to break the law, litigate like crazy, and try to regulate, search, and inspect all participants in the Michigan Medical Marihuana program (which directly contradicts the law, (333.26426(h)). “There is a likelihood that litigation filed by proponents of medical marihuana use will ensue soon after the enactment of local ordinances” (pg. 26), says Fisher, since he knows that he is encouraging cities to directly violate the terms of the act in order to take it over and gain power and revenue. Fisher knows full well (pg. 48) that “some proponents of the Act will resist regulatory interference” (since it violates state law) “and litigation will undoubtedly ensue, and thus widespread litigation seems to be in the making”. On the next page he says, “Once ordinances are in place, and litigation begins as anticipated…”.
Fisher is being paid by tax dollars to write an essay which advocates that cities intentionally violate the Michigan Medical Marijuana Act by creating illegal ordinances, and then spend endless amounts of tax dollars in litigation to try to take over regulation of the program. This wasteful and anti-democratic scandal must be exposed. O’Connell warns that the litigation process will be rough, and some citizens will lose “both their liberty and their property” (pg.4). It is unconscionable that the MML has chosen to play brutal political hardball against sick people, using taxpayer funds. It is time for the MML to let us present the other side of the story.
They have a hard time understanding that the act was not written with “gaps” or “omissions” that they are called upon to fill with bureaucrats and inspectors. If something is “omitted” it obviously means that the highly experienced writers of this law did not want it in there. Our Act was crafted with extreme care, and was thoroughly examined and revised by the prestigious law firm Dykema, Gosset Inc.. Its goal was to win big and it did. No matter how long it takes, the medical marijuana community will litigate every point, at great cost to taxpayers, until the regulations match the initiative language which passed with 63% in favor. Local officials CAN’T CHANGE THE LAW to take rights away from citizens or to add burdens.
At a Sept. 21, 2010 work session the Michigan Municipal League featured Grand Rapids city attorney Catherine Mish. She said that cities should band together in a “federal supremacy” lawsuit to challenge the validity of the MMMA. She suggested that cities enact moratoria, and then look for “test cases” to use to invalidate the Act – which was passed by a majority of voters in her own county! To generate test cases she suggested that police should arrest a spouse who waters plants that he or she doesn’t have a card for! She wants cities to “park a police car outside the compassion club. Anytime your officers see there’s gatherings inside, as people come out, get into motor vehicles and drive away, pull them over”.
Every new level of fear, restrictions, and inspections means that more innocent people will suffer and die. Most Michiganders would not grow cannabis medicine if they knew the local police would be told and could check on them.
The reality of legal medical marijuana is deeply upsetting to all those who make their living from preying on fellow citizens, all the widely varied functionaries in the prison industrial complex. They will fight for their jobs. They plan to destroy our new act and regain all of their power. (They have been so successful that the USA imprisons about seven times as many people as other advanced nations – an indelible stain on the soul of our nation – but a consistent moneymaker. Now we have a Michigan Attorney General whose stated goal is to reopen prisons and fill them up.) The majority of the “Drug War” is still about cannabis, so Drug Warriors will lose funding and jobs when our society relaxes its attitude toward cannabis. Many law enforcement jobs are directly paid for by terrorizing local families and seizing their home, vehicles, bank accounts, computers, children, boats, etc.. This distinctly un-American practice, called “civil forfeiture”, (no trial or criminal charges are required) has become a major revenue source that the prison industrial complex depends on and fights to preserve. The reaction of these forces, which is now brewing against the Michigan Medical Marihuana Act, is about jobs, money, power, and “turf”, it has nothing to do with science or public health. If drug warriors had any way to support their position they would agree to debate.
When observers howl that our new law is poorly written or full of “grey areas” they are simply saying that they are upset that we have a strong law now to protect medical marijuana users. They hate to adjust to the reality that our new law was not written by them, it was written by the opposing side, the “other team”, and it passed with 63% in favor. Obviously it was brilliantly well written if the voters approved it so strongly.
The counterattack against the medical marijuana “Peoples Law” in Michigan by the “Prison Industrial Complex” has begun in deadly earnest (even though the law has been in effect for two years and has caused no problems). Law enforcement feels a threat to their power and their revenue stream and are striking back viciously, as in Oakland County.
Two major essays have recently been offered to provide the intellectual basis for restricting and killing the Michigan Medical Marijuana Act. These are:
The “White Paper”, (how presumptuous, yes, it is printed on white paper) called “A LOCAL GOVERNMENT VIEW OF THE MICHIGAN MEDICAL MARIJUANA ACT” by Gerald A. Fisher, 63 pg., is the product of the Michigan Municipal League.
The Concurring Opinion in the case of Michigan v. Robert Redden and Torey Clark, by Judge P. J. O’Connell, Sept 14, 2010
These are unremittingly negative documents. O’Connell thinks the MMMA could be a “subterfuge for legalization” (pg. 29). He refers to a Judge Turner, who declared that the MMMA is “one of the worst pieces of legislation that I have ever seen in my life” (page 7, footnote 9). O’Connell says the MMMA was “well crafted in its obfuscations, ambiguous language, etc”. Fisher puts “medical marijuana” in quotes (pg. 48) and says that qualifying sick people with doctor’s recommendations are “generally described as patients”. O’Connor calls the act “inartfully drafted” (pg.3), and implies that 63% of voters were somehow “tricked” into voting yes for medical marijuana. He quotes Sir Walter Scott and says “O what a tangled web we weave/When first we practice to deceive”. My God, isn’t the party that encourages breaking the law and intentionally fighting court battles in order to seize “turf” the one that is “practicing to deceive”?
After careful study it must be assumed that these documents were not created “in good faith”. It makes you feel sick to read such dark tirades against democracy – which will end up hurting many innocent people. These are paid intellectual “hatchet jobs” by special interests. This can be inferred from the fact that the clumsy, tortured, childishly false “logic” which the authors use to arrive at their predestined conclusions is the very best that they could come up with. Judge O’Connell begins with the assumption that medical marijuana patients are “fakers” (pg 3, pg 22, pg 29), and then tortures words until he thinks he has a way to invalidate our doctor’s recommendations. These authors are smarter than to actually believe in the arguments they display. Long ago I had to “diagram logic” in my college philosophy classes. I remember puzzling over complex questions. The logical faults in these two documents, however, are “sophomoric”, and their effect could be brutal. Neither of these documents ever once mentions the wisdom and compassion of Michigan voters or the benefit of medical marijuana for Michigan medical patients (or the concepts of safe and “uninterrupted availability” (333.26428(2) in the Act) of medicine).
Most cities in Michigan belong to the Michigan Municipal League, which has decided that cities and townships must now take over the regulation and inspection of every aspect of the Michigan Medical Marijuana Law. This is, of course, directly contrary to the words in the law, which state:
(g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency.
This is about as clearly as a concept can be expressed using the English language. People participating in the program have three clear rights under this section. They are to be held safe from suspicion, search, or inspection “by ANY state, county, or state governmental agency”.
In order to surmount a seemingly impossible logical, linguistic, and intellectual challenge Mr. Fisher takes on the persona of Big Brother, in the George Orwell novel “1984”. Big Brother said that the people should understand that, really, FREEDOM IS SLAVERY, and WAR IS PEACE. Fisher sets out to show that, really, the legal prohibition against search and inspection in our MMMA law means that the gang who paid him obviously must search and inspect. Listen carefully (pg. 55) “Local regulation of distribution activities is implicitly contemplated under the terms of the Act (he just feels it in his bones) in view of the glaring gaps opened by the terms of the Act”, (which could inhibit the behavior of police and SWAT teams).
The logic comes down to “If the act does not let the prison/industrial complex carry out the status quo it must be because they simply forgot to give cities the power to regulate everything. Therefore we can violate the specific wording in the act about search and inspection”. By pg 58 caregivers are required to “Describe all locations…” You will need to file precise reports (pg.58) describing your grow facility, your storage facility (including precise measurements), your security devices, any location where a caregiver might meet with a patient, “detailed specifications of all lights, equipment, and electrical or plumbing or other means”, along with “the address and legal description of the precise premises” (pg.58.)
Try this one (pg. 57) as an example of Orwell’s “Newspeak” – “The requirement of this ordinance is to license a location and not to license persons”. He plans that every city, village, township, and county will expand their bureaucratic grip and have a “medical marijuana officer”, to make sure that all regulations are followed (pg.57 & pg. 63).
Fisher never supplies a hint of compassion or any desire to insure the “uninterrupted availability” (333.26428(2) of the Act) of medicine to patients. He begins his argument by intentionally and egregiously misstating the “fundamental purpose of the act”. Mr. Fisher’s analysis is based on his definition of the “fundamental purpose of the act” (pg 3). He says “it would seem fair to say” (fair to whom?, …not much of an evidentiary standard!), “that the fundamental purpose of the Act is the creation of a private and confidential caregiver – patient relationship to facilitate the lawful cultivation, distribution, and use of marijuana strictly for medical purposes”.
This is disingenuous. Mr. Fisher has latched on to the fundamental implementation mechanism in the act and called it the fundamental purpose. In fact the fundamental purpose of the act relates to its title, “The Michigan Medical Marihuana Act”. The first line of this act says that its purpose is “to allow under state law the Medical use of Marihuana”. We know that a doctor’s recommendation is involved.
Therefore, “it would seem fair to say” that the “fundamental purpose of the Act” is “to allow under state law the medical use of marihuana when a doctor has recommended its use for specific, enumerated medical conditions”. According to Judge O’Connor (pg. 24, he quotes from the Act) the ballot proposal “was intended to protect from arrest ‘the vast majority of seriously ill people who have a medical need to use marihuana ( MCL 333.26424(2)(6))’”.
Cities and townships certainly have the power to extend the act, within their boundaries, to help insure that qualified patients have safe access to “uninterrupted availability” of the medicine they require. Cities may also refuse to extend the act, but they cannot restrict rights which have been provided by state law. Fisher simply decrees (pg 13) that “primary caregivers and qualifying patients cannot legally form a cooperative and grow marijuana in a shared facility”. Thank you for sharing Gerald, but cities like Ann Arbor (and others) are specifically licensing large grow facilities (and “compassion centers”).
It is a transparent attempt at “chicanery” (pg. 15, O’Connell) to assert that the fundamental initial IMPLEMENTATION MECHANISM outlined in the Act is the fundamental purpose OF THE ACT ITSELF. No amount of authority can turn apples into oranges or wrong into right. Our Act is NOT called the “Michigan Caregiver and Patient Relationship Act”. In Mr. Fisher’s mind the patients and caregivers (who live in constant terror of people like him) have plenty of protections, but “local governments and the general public are not as clearly protected”(Fisher pg 4).
He feels that cities are in danger because of the MMMA since the “status quo” is so important! Drug warriors maintain that they have an overriding need to be able, because of a plant called cannabis, to smash your door down, shoot the dogs, and take your children, your property, your money, and your freedom. Few Michiganders still support this enforcement scenario. The “status quo” has changed.
Police agencies indulge in an incestuous interbreeding of their own questionable data and opinions. Mr. Fisher and Judge O’Connell constantly cite irrelevant data from California police (which was gathered during a period during which the city of Los Angeles refused to provide any regulation or licensing for dispensaries).
The Michigan Municipal League, through Mr. Fisher, is telling local governments (pg 12) that cannabis businesses will lead to “significant and serious secondary effects”, such as an increase in “out of area criminals in search of prey”, incidents of resale or sharing near pot shops, murder, armed robbery, aggravated assaults, burglary from autos, armed gangs, organized crime, children who might be “subtly influenced”, the “downgrading” of whole neighborhoods, (pg 16) and police officers who may feel inhibited when they are planning to come crashing into your home.
Beyond that, the Michigan Medical Marijuana Act will lead to uninspected installations of plumbing and electrical equipment that “may create dangerous health, safety, and fire conditions” (Fisher pg. 16). (We all agree that cardholders who significantly expand their electrical system to grow cannabis must have the job done up to code and then inspected. Our law makes it clear, however, that cardholders may not be subject to any special or discriminatory level of suspicion, search, or inspection.) Michigan cities are now passing illegal laws which restrict patients and caregivers; all of this will be constantly litigated until we get back to the words that were on the ballot in 2008.
The author consistently shows no understanding of cannabis as medicine. He wants a “physician stated dosage and frequency of marijuana consumption” (Fisher, pg.19), ignoring the fact that cannabis dosages are completely individual and variable.
Is it appropriate for the MML to use tax dollars to advocate the destruction of legislation which passed with 63% voting yes, and passed in every one of Michigan’s 83 counties? The first impulse of the MML and Mr. Fisher is to alter the Michigan Medical Marijuana Act into meaninglessness or to stamp it out altogether with a “federal supremacy” lawsuit. The MML must be sued for its ill intentioned profligacy. Michigan cities that respect democracy should drop out of it. The MML makes it clear that if you follow their outline it will end in mountains of litigation (pg26), but they are shooting for a takeover of the program. They want a “Medical Marijuana officer” in every city (Fisher, pg. 57), and lots more inspectors.
CHANGING OUR MMMA LAW IN THE LEGISLATURE.
The Michigan Municipal League advocates that the Michigan state legislature change the law that 63% of voters approved. They think that “expressly requiring permits and inspections would be appropriate”, (Fisher, pg. 19) no matter what is said in the law. They doubt they can assemble the ¾ majority which is necessary if they wish to tamper with our law.
FEDERAL SUPREMACY? They then advocate that cities band together and fight a “federal supremacy” lawsuit, to fight against the Michigan Medical Marijuana Act program that was approved by their own voters (Fisher pg. 21-26). Isn’t this a betrayal of their voter’s intent and a huge waste of resources during very tough times? Any public official who spends tax dollars to fight against the wishes of their own voters will see an immediate recall campaign mounted against them.
LOCAL ORDINANCES Mr. Fisher then begins his spooky, Orwellian attempt to craft a local ordinance for Michigan cities and townships. He admits “that the Act mandates that those engaged in lawful cultivation, distribution, and use of medical marijuana must remain anonymous” (pg.39) Given this law that mandates anonymity, he maintains, (pg37) that cities “should be permitted to regulate marijuana cultivation, distribution, and use activities”. Does he really see no contradiction?
Mr. Fisher asserts (pg.43) the difference between addresses and “locations”. “Address” is defined by the Oxford American Dictionary (Avon books, 1982) as “the place where a person lives”. He admits that all patient and caregiver addresses are absolutely confidential according to the law and then says that all the “locations where marihuana cultivation and distribution has been permitted under the Act should be known to law enforcement” (pg. 43). This is the type of Kafkaesque duplicity that damages “the Children”, or anyone who would like to believe in common sense, fair play, or democratic government. Words have actual meanings, even if you are a professor or a judge.
Although 63% of voters approved the wording of our current Medical Marijuana Act the Michigan Municipal League’s response “would be to replace the existing statute” (Fisher pg. 49) with something that more closely resembled their beloved “status quo” (Fisher pg. 45,49,and 62).
Fisher simply declares that “a violation issue arises when a patient dispenses medical marijuana to another patient” (pg. 15). This is absurd, and, if “patient to patient transfer” was made illegal a lot of patients would suffer; patient’s could never be confident of an “uninterrupted availability” (333.26428(2)) of their medicine.
In his conclusion (pg. 48) Mr. Fisher fully admits that cities will face endless costly litigation if they follow his advice – to break the law of Michigan and try to search or inspect legitimate medical cannabis cardholders in a discriminatory manner. Irate citizens are already suing municipalities (like Wyoming, Michigan), who have tried to remove rights which have been clearly granted by state law. It is strange that Fisher’s vicious and relentlessly confrontational essay concludes with the sentiment “let’s all be friends and work this out”, after he has made such a strident and antidemocratic plea for municipalities to totally take over the program, terrify people with searches and inspections, and make it harder for patients to get their medicine. Given the chilling effect of the attack that Fisher has mounted, on a program that is causing no real problems; we know that people who think like him simply cannot be trusted.
Fisher’s essay for the Michigan Municipal League ends with his creatively atrocious and illegal “SAMPLE CONCEPT OF LICENSING AND REGULATION ORDINANCE” for Michigan cities. It was the most profoundly disturbing anti-democratic, totalitarian document I have ever read, the ultimate triumph of the Orwellian twisting of words until they are said to mean the opposite of their dictionary definition. It is an attack on democracy and on medical patients. If you deeply believe in government “by the people” it makes you sick to read it. On page 55 it says that “The Act requires that information concerning identity and location of caregivers is to be confidential”. He then cites pages of irrelevant “horror stories” from California (gathered when California cities were refusing to provide any regulations for cannabis businesses). By page 57 he has twisted words until all caregivers will have to divulge “the location of a facility” to a local government.
Judge O’Connell says “Many Michiganders are faced with the often unwelcome intrusion of medical marijuana dispensaries” (O’Connell pg. 12). Why be negative? He could come to Ann Arbor, where we have a dozen dispensaries and they have hardly been noticed (Lansing has 18). If we allow marijuana businesses, Fisher says that they will have bad “secondary effects” on children, the neighborhood, and every sort of crime. It is useful in Michigan to present to city officials the major article from the November, 2010 “Ann Arbor Observer” which shows well scrubbed, happy and healthy people showing off their lovely dispensaries and describing their services. It is titled, “The Wild West, Medical marijuana comes to Ann Arbor”, by John McKenna Rosevear. It is the perfect counter to the “keep fear alive” tactics. It might be on the web by now. I got 150 leftover copies.
The second document which fundamentally threatens our patient’s quality of life is the State of Michigan Court of Appeals concurring opinion of Judge P.J. O’Connell, in the case of Michigan v. Robert Lee Redden and Torey Alison Clark (published Sept 14, 2010)
Judge O’Connell’s 30 page treatise is just his opinion, and has been accorded far too much importance. His argument is illogical and uncalled for. It can be thoroughly demolished by looking at a dictionary, unless the actual meaning of words does not matter. He even directly contradicts himself (on pg. 6 first paragraph – the terms of the act are accurately stated and the word “or” is properly used, then see the law itself (bottom of page 8), noting the accurate use of the word “or”. Then on page 15 O’Connell blusters forth to opine that “or” does not mean “or”. He knows in his heart that most medical marijuana patients are faking it (Pg. 22), so he develops a way to undermine the “dual path” which is outlined in the MMMA for getting doctor recommendations.
The MMMA provides (333.26424(f)) that a doctor can’t get into trouble “solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patients medical history or” (yes, the word is “or”) for “stating that, in the physicians professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient’s serious or debilitating medical condition”.
So, clearly the law provides two ways in which a person can get a doctor’s recommendation to become a qualifying patient, a) their regular doctor may write the recommendation, or b) a different doctor (maybe a “pot doc”), can look at MEDICAL RECORDS to see if the patient qualifies to use medical marijuana under the terms of the act (that is, whether or not they have records to prove that they have one of the ailments listed under the Act as “qualifying conditions”).
When you visit a doctor in our society the doctor makes written notes on your chart about what is wrong with you and how you are being treated. A patient has the right to get copies of these records to show them to another doctor. It is disingenuous for Judge O’Connell to pretend that he has no awareness of the concept of medical records.
In one mind boggling sentence O’Connell asserts that, “It is beyond question that one doctor treating 100, 500, or 1000 terminally ill patients with a 10 minute examination has not been acting pursuant to bona fide physician-patient relationship”. (Pg. 15, footnote 20)
What a masterpiece of intentional duplicity and pejorative “framing”. NOBODY has EVER said that a person must be “terminally ill” in order to qualify as a medical marijuana patient. I have gut pain that is often debilitating but I can run or swim for many miles, and don’t plan to die soon. (I am 63 and have loved cannabis for 43 years; I wish we could put me and all the legislators and appellate judges 5 miles out into Lake Michigan, and see who makes it to the shore). Given the false way that the sentence is framed his conclusion is indeed “beyond question”.
A 10 minute doctor visit is plenty “bona fide” if the doctor and patient are talking together in person and the patient’s MEDICAL RECORDS clearly indicate that the patient has a medical condition that qualifies them to use medical marijuana under the MMMA. O’Connell seems to be fully aware of this on Page 6 where he claims that “pot docs” will provide certifications for medical marijuana “without bothering to establish EITHER 1) A bona fide physician-patient relationship, OR 2)the existence of a terminal or debilitating medical condition”. If O’Connell was honest enough to admit to the existence of what we call MEDICAL RECORDS he would also have to admit that 10 minutes is far longer than is necessary to 1) Check patient records to make sure the patient has a qualifying condition, 2) Check off one of the qualifying conditions on the State of Michigan “Physician Certification” form and 3) possibly listen to the persons heart and check their blood pressure. They would have time left over to talk about the weather. The “pot doc” at the Ann Arbor compassion center which I run once checked a man’s heart and sent him straight to the hospital, where he needed an operation. Oops, it just happened again yesterday. These patients would not have otherwise seen a doctor, and might have had a stroke or heart attack. Their relationship with our doctor was “bona fide” enough to possibly save their lives. Many people never otherwise go to a doctor; if they are “real men”, or they can’t afford it.
Judge O’Connell seeks to preclude the MMMA from actually working to serve qualified patients when, on page 15 he says that the word “or” does not mean “or” (as in “OR, for otherwise stating that, in the physicians professional opinion, the patient is likely to receive therapeutic or palliative benefit…”). To try to restrict the applicability of the MMMA and save the “status quo” as much as possible O’Connell simply opines (in an obvious attempt at “chicanery” (see pg. 16), that “This provision does NOT create an alternative scenario under which a physician may issue a written certification to a patient in the absence of a bona fide physician – patient relationship with that patient OR A FULL ASSESSMENT OF THE PATIENT’S MEDICAL HISTORY. (Certainly we do not need to show our full medical history from birth to the present, we simply need to prove that we qualify under the terms of the Act. He admits that the word “OR” is present, but denies its meaning. According to Webster’s New World Dictionary (Warner Books, 1990) the word “or” means “an alternative, or the last in a series of choices”, which is EXACTLY what O’Connell said it does NOT mean. The “Oxford American Dictionary”, (Avon Books 1980) defines “or”, conj. “as an alternative”. The 2230 page “Webster’s New Universal Unabridged Dictionary” explains (pg. 1360) that “or” is “used to connect words, phrases, or clauses representing alternatives”. We must defend the meaning of language and insist that, in the MMMA, the word “or” means what the word “or” means. Clearly O’Connell’s basic assertion is false. The provision in the act which follows the word “or” DOES “create an alternative scenario under which a physician can issue a written certification”. There are two ways that a patient can get a “bona fide” recommendation from a physician, 1) from their regular doctor 2) from a compassionate “pot doc” who reviews MEDICAL RECORDS TO SEE IF A PATIENT QUALIFIES UNDER THE TERMS OF THE ACT.
If it is true that some doctors are simply “selling recommendations” then this is illegal and must stop. However, if we admit that MEDICAL RECORDS exist, a ten minute appointment is plenty of time to ascertain whether a patient has a malady which qualifies them to use medical marijuana in Michigan. It was excruciatingly well known to the drafters of the MMMA that most doctors (and most huge systems of doctors, like the University of Michigan or the Veterans Administration) are directed to never write recommendations for medical marijuana, (which they don’t understand well and cannot make a lot of money from). The drafters understood from long and brutal experience that the MMMA could not help most patients in the real world unless it included these dual pathways for getting a physicians recommendation. It is clear in the plain wording of the law and was the obvious intent of the framers of the initiative to “create an alternative scenario under which a physician may issue a written certification”. Otherwise, most patients who have a qualifying condition would never have a way to become qualified patients under the Act.
The law was written with the intent that it would be able to function, and was approved with 63% in favor. This is a mandate for implementation, not obstructionism.
His goal of making the law unworkable is illustrated clearly enough (pg. 16) when he declares (as if he can reshape reality), that “labor” is not a cost. This would be big news to businesses around the globe. Section 4(e) of the Act “permits a primary caregiver to receive compensation for costs associated with assisting a registered qualifying patient”. O’Connell declares his odd personal opinion that labor is not a cost as a fact and decrees (footnote 21) that a caregiver “may not receive compensation or otherwise profit from the labor in cultivating Marijuana or otherwise assisting the qualifying patient”. The great majority of people have to make money when they work, so that they can pay bills and buy what they need. The law says that “any such compensation shall NOT constitute the sale of controlled substances” (333.26424(e).
To say that labor is not a cost is another way to say that the MMMA won’t be allowed to actually work in the real world – which is not what 63% of the voters voted for. They voted that medical patients should have safe access to an “uninterrupted availability” (333.26428(2)) of their medicine. In another blazing example of “bad faith” implementation of the MMMA, pg. 18, O’Connor unilaterally declares what should happen to medical patients when they assert the “affirmative defense” (cite) to avoid prosecution for the use of medical marijuana. “It logically follows (he opines) that a defendant resorting to that defense by placing into evidence his or her medical condition necessarily waives any physician-patient privilege that would otherwise limit a prosecutor’s prerogative to question the defendant’s physician or examine pertinent medical records”. What a breathtaking Orwellian outrage! This is exactly the moment when your physician-patient confidentiality rights should be most operative, or what good are they? If you assert the affirmative defense that is provided in the law the prosecutor suddenly may become the doctor, the medical inquisitor, asking you completely personal questions about your health, and deciding if you are sick enough to assert the affirmative defense. This simply isn’t the American way! Prosecutors and judges don’t go to medical school. They must respect the confidentiality of patient records (that is in the act- 333.26426(h)), and only doctors, not lawyers, are qualified to determine whether or not a patient has a “qualifying condition”. The Act provides a penalty of 6 months in jail for any governmental official who breaches the confidentiality of patient records, as was recently done so brazenly by Sheriff Bouchard’s men in Oakland County.
O’Connell (pg.20) denies that the Act provides dual paths for a patient to become certified by a doctor and use the “affirmative defense”. He blatantly replaces the word “or” with the word “and”. He says that Robert Redden and Torey Clark could not use the affirmative defense because “they must first establish that Dr. Eric Eisenbud, the physician who signed their medical marijuana authorizations, treated them in the course of a bona fide physician-patient relationship, AND they must further establish that they have a serious or debilitating medical condition. These judges slipped the word “and” in place of the word “or” and denied the affirmative defense to Bob and Torey. The JUDGES AND PROSECUTORS DECLARED THAT THE MEDICAL JUDGEMENT OF A DOCTOR WAS INVALID. The law says “or”, NOT “and”, thus O’Connor’s duplicity must be intentional. Doctors are supposed to make medical decisions in the USA. O’Connor himself clearly stated that right concept was “or”, when he states that a valid doctor-patient relationship must be sufficient to “establish EITHER a bona fide physician-patient relationship OR the existence of a terminal or debilitating medical condition”.(pg 6)
Compounding his egregious elitism he issues “a stern warning to all: Do not attempt to interpret this act on your own” (O’Connell pg.7, footnote 10). (How’s THAT for participatory democracy, …only his “priesthood” can know what words mean. This is just plain un-American). He says it would be “prudent” for “citizens of this State to avoid all use of marijuana” until the Supreme Court sorts everything out.
Patients and caregivers obviously work with a different time frame; they are out of time to wait. Today is what matters.
There is no need for ranting about a “bona fide” this or that. O’Connors “protocols” that “must be adhered to” (pg. 20) in order for a valid doctor-patient relationship to be established are pure balderdash that he made up himself (hopefully not at taxpayer expense).The tone of this opinion is unremittingly negative, giving no credit for the compassion that voters were trying to enable. He calls a visit to a “pot doc” a “one time shopping event” (O’Connell, pg.21) – when a ten minute doctor visit is clearly more than enough time to look at medical records and determine whether or not a patient qualifies under the Act. In fact, Dr. Eisenbud (the doctor questioned in Michigan v. Redden) works for the The Hemp and Cannabis Foundation, which is the oldest and most strict organization in the field of medical marijuana certification. The THC Foundation organization is so strict that they will not even allow you to make an appointment until AFTER you have provided them with three different notations from valid medical records proving that you have the medical condition that would enable you to qualify as a medical marijuana patient. Judge O’Connell heartlessly, inaccurately, and illegally states that the “affirmative defense is not available unless the testifying physician is the patient’s treating physician for the underlying serious or debilitating condition” (pg.21). He simply makes things up, to thwart the clearly expressed will of the voters and bolster the prison industrial complex.
Everyone agrees that no doctor is allowed to “routinely sell written certifications for profit” (without supporting valid medical records) and that “such certifications must be disallowed under this act”. (O’Connell, pg. 19) Nobody defends fraud.
The source of O’Connells ire becomes clear on page 22. He wants to twist the words of the law to make it more restrictive because “the majority of persons who are becoming certified at this time” are “abusing the written certification process”. Since we patients are mostly “fakers” he knows that he should be able to twist the law until it is unworkable. He wants to limit the number of recommendations a physician can write, but don’t most areas of medicine have specialists who are experts in their specific field?
O’Connell’s opinion constantly shows ignorance of cannabis as medicine. He says that doctors fail “to set any medical boundaries” (pg 15) for cannabis use, not understanding that cannabis dosage is totally individualistic. Idiosyncratic dosage requirements are one of the main reasons that cannabis medicine fell out of fashion in the 1890’s. Aspirin and morphine, for instance, are more predictable; and dosages can be standardized. Also, “One supposes”, says he, “that most citizens voting for the MMMA envisioned” (he does not explain how he determines what people “envision”), that patients would visit their regular doctors, obtain prescriptions for marijuana and then have the prescription filled at a licensed pharmacy” (pg. 23-24). What a sentence! You can’t get a “prescription” for something that has been (falsely) labeled a Schedule I drug. Does he honestly think that voters had never heard of dispensaries in California and assumed that medical marijuana patients could go to the drugstore? He wants to hold on to the status quo, but the voters are way out ahead of him.
O’Connor provides his lecture about Schedule I drugs as if the federal classification had some validity, but its only validity is in the law. No person who was not in the employ of the prison-industrial complex would agree that cannabis could meet any one of the three standards, all of which must be met to identify a Schedule I drug. First, cannabis does not have a high potential for abuse, even compared to soda pop or french fries, let alone alcohol or heroin. Since I have used cannabis each day for 43 years, I would have noticed by now if there was a problem. Second, cannabis is perfectly safe for medical use. The federal government once declared, through DEA appointed Judge Francis Young, after two years of gathering data, that marijuana was probably the “one of the safest therapeutically active substances known to man”. Third, cannabis clearly has recognized medical uses within the United States, since 15 states have already passed it into law. Hundreds of thousands of Americans are now qualified patients, using cannabis medicine as needed.
This Schedule I designation is a stain on our national moral character, a harmful anachronism that will make future Americans ashamed of their ancestors. It has damaged, and sometimes devastated, the lives of more than 10 million otherwise law abiding Americans. It is a disgraceful embarrassment, since everyone understands that it is a lie in each detail. No evidence or reason caused cannabis to be listed as a schedule one drug. This “scheduling” system was developed around 1970, when a lawsuit by Professor Timothy Leary derailed the old “tax stamp” law that had been in place since pot was outlawed in 1937. President Nixon told the government to classify cannabis as a schedule I substance, pending the report of the National Commission on Marijuana and Drug Abuse (1972). Nixon’s very conservative commission exhaustively studied the marijuana issue and declared it was a “Signal of Misunderstanding”, and that both possession and small scale sale of marijuana should be made legal. When Nixon found out he immediately promised to ignore the recommendations of his “blue ribbon” commission.
How can intelligent and powerful men, who have sworn fealty to the US constitution, support the damage that results from making the cannabis herb into a Schedule I drug- after they know that it is based on pure vindictive caprice, not science? Law Enforcement hangs on to that Schedule I classification like a pit bull, since the majority of the “drug war” is still based on chasing after cannabis.
Children are damaged when they learn that government will openly lie to them and conduct a cultural war against cannabis with such ferocity that an American is arrested every 37 seconds…and that the next victim could be them. The serious damage from entanglement with the legal system is much more damaging than cannabis to the lives of young people. Schedule I may be the law, but it is immoral to defend it. People who defend Schedule I are the people who, in another age, would have been happy to burn “witches” or gas Jews if that was official government policy.
O’Connor even seems to mock economic growth, new careers, and graduates of the Medical Marijuana Academy! (Pgs. 26 & 28) Medical marijuana is causing a lot of money to be invested in Michigan. New businesses are rapidly hiring people. These are real jobs that support families, help sick people, and have a future. At this moment in Michigan it is just not right to kill off what could be Michigan’s fastest growing new industry.
“A comprehensive set of administrative rules”, made by “legislative and administrative officials” is what the judge thinks we need. (pg. 28). His ideas, like “log keeping requirements” and “reporting requirements” open the door to the suspicion, search, or inspection that are specifically banned in the act. We have already been there and done that, with the first set of burdensome regulations which were promulgated by the MDCH. It was made clear at a huge public hearing in Lansing (cite) that all burdens on patients and caregivers which were in excess of the text of the Act would be forever litigated until the regulations reflected the words that were on the ballot, which voters approved so overwhelmingly. Certainly a new wiring installation should be up to code and inspected, but this should be done in the normal course of events, with no illegal discriminatory laws aimed at patients and caregivers. The judge says he is merely the bringer of bad news, but no, he is creating bad news by trying to limit and restrict such a popular humanitarian program that seems to work fine.
It is true that a few portions of our law could be tightened up, and the leaders of the medical marijuana community have already agreed to revisions; in subcommittee hearings with Rep. Fred Durhal Jr., on Nov. 16, 2010. We are not being inflexible. We will never compromise, however, on the principle that medical patients, with a doctor’s recommendation, must have safe access to medical marijuana in Michigan.
It may be possible to work things out in Michigan so that all parties will be more satisfied, but that would take “good faith” on the part of people who are deeply invested in perpetuating the status quo of ”SWAT team” type Drug War and civil forfeiture without a conviction in court.
We could at least agree that cities and townships have the “local option” to have dispensaries and major growing operations if they want to. (These would still have to follow the outline of the MMMA).
Patients and caregivers know that we have entered a bright new era in Michigan, full of hope and promise. We will never go back to hiding in fear. We will bring therapeutic cannabis, the pure medicine of Mother Nature, to people who are sick in every corner of Michigan. Forces that would unfairly restrict medical marijuana (or any plant) are purely evil and anti-American. Drug Warriors must fervently hope that there is no God who will judge them when they die.
Patients and caregivers will be polite and quiet and sit through meeting after meeting, but we will fight for the rights of our patients with every bit of our power and resources. It would be a mistake to underestimate our resolve. We operate in every part of the great state of Michigan and we can sustain political activity over time. It would be a great mistake for anyone to try to undermine the gains that medical patients have made through the democratic process. Any person or entity that attacks the fundamental purpose or implementation of the Michigan Medical Marijuana Act will have an unpleasant time of it.
We must begin by unmasking the antidemocratic and totalitarian power grab which has been unleashed in Michigan cities by the Michigan Municipal League. If groups of citizens planned together to break the law it would be called a “conspiracy”, but the local government “powers that be” are planning to “smash and grab” the MMMA. A huge voter mandate approved specific wording about medical marijuana, and that initiative is now the law. Either the MML should let medical marijuana interests fully join in the discussion, or there must be negative consequences for their behavior.
As for the judge, he should be seen as a self righteous, irrelevant meddler – a bearer of “bad faith”.
Eternal vigilance is the price of liberty; certainly for advocates of medical marijuana.
Chuck Ream 11/2010
A note from my attorney:
The Court of Appeals operates in three-judge panels. O’Connell’s opinion is not the majority opinion. He concurred (agreed) with the result the majority reached, but he could not resist writing a separate opinion discussing issues that were not before the court. Therefore, much of what he had to say is “obiter dicta”, meaning something “said by the way.” The fact that parts are dicta, plus the fact that it is only a concurring opinion, means that his comments are not controlling law: they are not binding on lower courts. However, lower courts may find his analysis persuasive. Since this case is the first published opinion by the Court of Appeals on medical marijuana, lawyers on both sides will be scouring both the majority and the concurring opinions for anything that can help them.
The whole opinion is hostile to medical marijuana. You may be asking “Who is this guy?” O’Connell is a former prosecutor from Republicanland, so it is no wonder that he thinks the Michigan Medical Marijuana Act is a fraud on the public. I have attached his biography from the Court of Appeals Website.
