Fifth Amendment. No Local Registration Allowed!

[peanutbutter]

We have seen it taking place in California for the last several years.

The same thing taking place in CO.

And we've seen it here in Michigan.

 

A local leo takes it upon themselves to call in the feds. They don't like what's taking place. They can't do anything because of state laws, so they drop a dime.

 

In case you didn't know, marijuana is still against federal law.

 

So how about those local units of government just require every patient and caregiver to file annual production reports to the DEA?

 

That would achieve their objectives, I think. Copies to the city, of course.

 

Simple .. the fifth amendment of the US constitution protects you from providing the government with information that COULD be used against you in a court of law.

 

Local governments can not force you to provide them with information that could get passed on to federal authorities.

 

Local officials would claim "we would never do that!" That promise does not protect us from every official that would be able to access those records forever.

 

In Battle Creek, the proposed local law required that a patient or caregiver supply their MDCH card number and the address that they would be growing at.

 

Most search warrants are issued for addresses. How could anyone be required to provide proof that a specific address held marijuana plants?

 

If federal authorities walked into one of these cities and demanded all of the information held in city hall, does anyone think the city would refuse them?

 

Any local law that requires registration is a requirement to give up your constitutional right against self incrimination.

[1337Gr33n]

as always, great ideas!

[pic book]

The confidentiality provision in the Mich law directed toward at MCDH and law enforcement that would aquire the data with prosecution and a 2 year penalty for its violation is intended to short circuit temptation. This secures the state level. How to place a similar bar on the local level?

[bobandtorey]

i do not know but it seams to me that if Leo knew were all the plants were it would make it easy for them to come inn and take what they want as they do now

ps what happen to the site?

[pic book]

unless more than 99 even feds probably won't confiscate

[pic book]

So in Battle Creek the choice is refuse to register and if they find you in violation failure to register to be prosecuted on 2 fronts, not negistering and growing ungistered, and maybe make a casse that goes to State Supreme Court and maybe even US Supreme Court?

[lawyercaregiver]

The confidentiality provision in the Mich law directed toward at MCDH and law enforcement that would aquire the data with prosecution and a 2 year penalty for its violation is intended to short circuit temptation. This secures the state level. How to place a similar bar on the local level?

 

The only possible solution I can imagine is that the locals assume the same liability when they get information that is confidential. That is, the same law applies- in theory. And that is assuming the court who decides this is fair and reasonable.

 

In practice PB is precisely right. Registration without confidentiality gives the feds carte blanche to move on whoever they want and I do remember something about prohibitions against self incrimination somewhere. Hmm, I think it was written on HEMP paper....

[dutch&Dutchess]

the 5th amendment was trashed long ago one can be compelled to give evidence just by submitting a fingerprint

typing one handed aint easy had to have er surgery fri wonthave use of left arm for some time, if ever

[medicinejeff]

Nice Summary. Good Info Bb.

[welj31]

Battle Creek is on hold for the moment. The resolutions were not introduced, so they are dead as fried chicken. Here's a little research that I took with me to the BC hearing. Thanks, Bb

 

I first wanted to update the council, yet another lawsuit has been filed. This one in Kalamazoo by Daniel Grove, The legal representation for Walmart Joe. The Kalamazoo ordinance is similar to your proposed ordinance and I am sure will your ordinance will result in numerous civil suits and possibly criminal charges.

 

If you pass this ordinance as written each of you and anyone who should come in contact with the information and cause that information to be disseminated will be guilty of a misdemeanor. First I will read the exert from the law, then I will read Michael Cox’s opinion of this portion of the law. If due diligence had of been performed, the council would not now be in the position that the city will face huge cost associated with litigation, but you personally could face jail time and fines as well as being sued individually. As the Cloak of office only protects civil servants who are performing their duties lawfully.

 

Section 333.26426

 

(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.

(h) The following confidentiality rules shall apply:

(1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

(2) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list is confidential and is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

(3) The department shall verify to law enforcement personnel whether a registry identification card is valid, without disclosing more information than is reasonably necessary to verify the authenticity of the registry identification card.

(4) A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1, 000.00, or both. Notwithstanding this provision, department employees may notify law enforcement about falsified or fraudulent information submitted to the department.

 

 

If that is not clear enough, let’s see what the attorney general has to say about this section of the law.

 

 

Michael Cox AG Opinion #7250

 

As Ground work for his opinion, this is what the Attorney General had to say and the supreme court has had to say about Citizens Initiatives.

 

The Michigan Court of Appeals has explained that initiatives should be "liberally construed to effectuate their purposes" and to "facilitate rather than hamper the exercise of reserved rights by the people." Welch Foods v Attorney General, 213 Mich App 459, 461; 540 NW2d 693 (1995). In addition, the words of an initiated law should be given their "ordinary and customary meaning as would have been understood by the voters." Id. To the extent that the initiative contains any ambiguity, it must be constructed in light of the purpose of the initiative. Id. at 462.

 

This means initiatives are not the play toys of localities to fashion in their own image, but the property of the people. Proceeding on with the opinion.

 

The Opinion;

The MMA's confidentiality provisions apply to a "person," including DCH and other state agencies and local units of government, as well as law enforcement agencies. Section 6(h) of the Act specifically describes the information deemed confidential or expressly exempted from public disclosure:

 

(1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians,

are confidential.

(2) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names

and other identifying information on the list is confidential and is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231

to 15.246.

(3) The department shall verify to law enforcement personnel whether a registry identification card is valid, without disclosing more information than is

reasonably necessary to verify the authenticity of the registry identification card.

(4) A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential

information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than

$1,000.00, or both. [MCL 333.26426(h).]2

While names, other personal identifying information, applications and information regarding patients, primary caregivers or physicians are deemed confidential and must not be disclosed contrary to the Act, DCH is implicitly authorized to disclose this information to the extent necessary to fully perform its duties under the Act.3 For example, in verifying the information contained in the application, DCH would need to disclose the name of the applicant to the physician listed on the application. Similarly, the MMA would not prohibit DCH from sharing the information with an outside vendor under contract with DCH to assist it in carrying out the application and registration process, so long as the contractual arrangement protected the confidentiality of the information. Under the MMA, any person who gains access to the confidential information would be required to protect its confidentiality under threat of criminal fines and incarceration: "A person . . . who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1,000.00, or both." MCL 333.26426(h)(4).

What this all means is you can’t compel a caregiver or patient to disclose any information, including but not limited to, registering with the city, without the council collectively and individually and all government employees who participate in it’s enforcement, without violating state law and becoming guilty of criminal infractions as well as being libel civilly for numerous tortable claims. If you choose to follow the law, the registry portion of this ordinance in any possible configuration is illegal. You also can’t compel a citizen to break the law. The supreme court has ruled on numerous occasions that local governments can’t pass ordinances that conflict with state law, via it’s ruling on the Home Rules Act.

 

" Rental Prop Owners donkey'n, supra at 257; accord People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977); Frens Orchards, Inc v Dayton Twp Bd, 253 Mich App 129, 132; 654 NW2d 346 (2002). With respect to whether the state statutory scheme preempts a municipal ordinance by completely occupying the field of regulation that the municipality seeks to enter,4 in Llewellyn, supra at 323-325, our Supreme Court set forth four guidelines:

 

 

Proceeding, your proposals to redefine what a locked enclosed facility is flawed. There is already case law that the community has used and will continue to use as guidance.

 

The definition embedded in the law.

© "Enclosed, locked facility" means a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient.

 

 

 

In Both the People Vs Henry and People Vs King a locked enclosed facility clearly includes structures outside of the home, including structures where the plants are clearly visible, such as behind a chain linked fence. There is no requirement for specifically a lock, just a lock or other security measurers.

 

In Henry the building was not attached or locked and was constructed out of wood and light weight plastic. One side of the structure had an open window and did not impose a significant barrier, but the structure would be significantly damaged if entry was attempted. The court found for the defendant because of his assertion that he supervised the building and took the plants indoors at night,. In King, the court found for the defendant because his physical presence was an important factor in determining that the fenced enclosure was secure. So your ordinance again would be contrary to state law and unenforceable.

 

The ordinance attempts to redefine who may transfer medication to who. The law is quite clear that a primary caregiver can provide medical marijuana to any qualifying patient, not just his own.

 

(e) A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.

(i) A person 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, solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana.

 

333.26428 Defenses.

8. Affirmative Defense and Dismissal for Medical Marihuana.

Sec. 8. (a) Except as provided in section 7, 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, 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).

© 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.

 

The right to transfer to patients other than a primary caregivers own has been reaffirmed by Court of Appeals in the Redden Case by both registered and unregistered patient and caregivers. Under your ordinance only those patients/caregivers that have registered with the state would be affected.

 

The ballot proposal explicitly informed voters that the law would permit registered and

unregistered patients to assert medical reasons for using marijuana as a defense to any

prosecution involving marijuana. The language supports the view that registered patients under

§ 4 and unregistered patients under § 8 would be able to assert medical use of marijuana as a

defense. Accordingly, we hold that the district court did not err by permitting defendants to raise

the affirmative defense even though neither satisfied the registry-identification-card requirement

of § 4.8

 

 

The law just gives the prosecution/government the right to rebut the medical use of marijuana and that right is limited by subsection 2e. No place in the act does it give the government the right to limit the scope of the law.

 

 

The Home Rules City Act repeats the constitutional limitation on a municipality's authority, expressly stating that "[n]o provisions of any city charter shall conflict with or contravene the provisions of any general law of the state," MCL 117.36, and that a city charter may provide "through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns subject to the constitution and general laws of this state," MCL 117.4j(3). See Mack, supra at 194 n 7.

Although cities have the power to adopt resolutions and ordinances relating to municipal concerns, that power is "'subject to the constitution and law.'" Rental Prop Owners donkey'n of Kent Co v Grand Rapids, 455 Mich 246, 256-257; 566 NW2d 514 (1997), quoting Const 1963, art 7, §

has been held pre-empted. [Llewellyn, supra at 323-325 (citations omitted).]

 

 

The Michigan Right To Farm Act. You as a city do not have the authority to regulate farming in the state of Michigan, even if it is next door to the mayor. This has been upheld in the Michigan Supreme court in multiple court cases. Two of which are Padadelis v. City of Troy and Shelby v. Papesh. Marijuana is a legal crop for caregivers. As long as Caregivers stay within generally accepted agricultural and management practices.

 

(6) Beginning June 1, 2000, except as otherwise provided in this section, it is the express legislative intent that this act preempt any local ordinance, regulation, or resolution that purports to extend or revise in any manner the provisions of this act or generally accepted agricultural and management practices developed under this act. Except as otherwise provided in this section, a local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or generally accepted agricultural and management practices developed under this act.

 

 

 

To Summarize;

 

(1) A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation alleged to be a nuisance conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture. Generally accepted agricultural and management practices shall be reviewed annually by the Michigan commission of agriculture and revised as considered necessary.

Good one

[jtgeme]

 

Simple .. the fifth amendment of the US constitution protects you from providing the government with information that COULD be used against you in a court of law.

 

 

I have heard of some cases where people have filed their Federal Tax returns and in the job/employment section have simply stated 5th Amendment. The government cannot compel you to incriminate yourself, and if you are a hitman (extreme example), listing it on the tax return would be incriminating.

 

I would imagine that if the city is requiring a register of sorts, not registering would be a violation of the city ordinance; I would think that you could raise the 5th A. as a defense - asserting that to register would be incriminating under federal law. Or fill out the form, and in most places, simply write in something like "asserting my 5th Amendment privilege" where necessary - at least there you are trying to abide by the law.

 

An attorney generally cannot suggest or advise that anybody break the law in most situations, but there are exceptions. For example, in order to challenge a law, you must have standing, to have standing, you must (among other things) have been (or will be) injured (physical, financial, liberty, etc.) because of the law.

 

Now, to my knowledge, none of the contributors/members are my clients (though I don't ask my clients if they are members of this site) so I am neither suggesting nor advising that anybody test my thoughts.

 

On a related note: Disclosure of membership in certain groups or clubs could sometimes be a violation of a person's 1st Amendment right to freedome of association - but thats for another thread on another day.

 

This is the first I am hearing of the Battle Creek ordinance and I am very bothered - to some degree angry.

 

Take care,

 

John.

[DT61]

Personally I think it is brilliantly simple and most effective that has solid standing.

[solabeirtan]

If I were a Patient especially or Caregiver Residing in Bloomfield Township, I would recomend that Nobody should Register. However if you feel it is in your best interest, go ahead step right up. Just realize you are giving up much more than you're getting. It is not required by State Law. It is in Direct Conflict with our present Law. It would be Impossible to Prosecute You.

 

Oakland County, MI at it again ! Should be EastBerlin Township and WestBerlin Township, City of Berlin Hills. Watch out for falling Swastikas ...