They Granted Leave On Hartwick, Consolidated It With Tuttles,

[bobandtorey]

I believe that the brownie amounts were protected under Section 4 (assuming he used no more than 2.5 oz or whatever his limit to make the brownies.)

 

"Usable marihuana" means the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant.

 

"Thereof" means "of the items listed." So with regard to mixture, I guess one could interpret as "thereof" limits what can be mixed together to dried leaves and flowers. In other words, a mixture of flowers and leaves is a mixture thereof, but a mixture of flowers, leaves, and sugar is not a mixture thereof because the mixture contains more than just the items listed. So I think the mixture argument breaks down.

 

But I don't see how any sane person could say that an oil extract is not a "preparation" of flowers and/or leaves. The most relevant definition Webster gives us is "a medicinal substance made ready for use."

 

The act is pretty clear that MJ is a medicinal substance. And you'd have to be a fool with an agenda to claim that the purpose of making brownies isn't a way to make MJ ready to use.

 

Then this is where PAs and LEOs get silly and complain how hard it might be to enforce the law if they don't know how much MJ is in the preparation. But crying that a law is hard to enforce is not and never has been part of the process of interpreting a statute. Similarly, others will say that making oil is dangerous and that this is the reason why oil preparations are illegal. But the law makes no mention of the level of danger as a component to interpret the statute. A similarly weak argument might be "it is dangerous to grow MJ indoors, therefore the act should be interpreted to disallow indoor growing."

 

One might argue that difficult enforcement and danger are good reasons to amend the act through the legislature. I don't share that opinion myself. But clearly, the law as written makes no provision to interpret it based on ease or difficulty of enforcement or the relative dangers of engaging in the medical use of MJ.

Thanks for the read

[t-pain]

Carruthers is the extracts case, I believe, and it is dead.  Totally.  The Supreme Ct has turned down hearing the case.

 

no it is not dead. the msc said they werent going to address the question asked.

 

 

On order of the Court, the application for leave to appeal the July 11, 2013

judgment of the Court of Appeals is considered, and it is DENIED, because we are not

persuaded that the question presented should be reviewed by this Court.

 

so the MSC is saying they either have to appeal a different question and/or they have to deal with it in court first.

 

docket: http://courts.mi.gov/opinions_orders/case_search/pages/default.aspx?SearchType=1&CaseNumber=147670&CourtType_CaseNumber=1

 

order : http://publicdocs.courts.mi.gov:81/sct/public/orders/20140611_s147670_45_147670_2014-06-11_or.pdf

Edited June 13, 2014 by t-pain

[GregS]

Several Attorneys are collaborating.

Is that a yes?

[snarkler]

That is the standard language the Court uses in denying applications, just means they aren't going to consider it at this time, and the Court of Appeals ruling stands.  It is possible to file a motion for reconsideration by the Supremes of the order denying leave, but they are almost never granted. 

[GregS]

I believe that the brownie amounts were protected under Section 4 (assuming he used no more than 2.5 oz or whatever his limit to make the brownies.)

 

"Usable marihuana" means the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant.

 

"Thereof" means "of the items listed."  So with regard to mixture, I guess one could interpret as "thereof" limits what can be mixed together to dried leaves and flowers.  In other words, a mixture of flowers and leaves is a mixture thereof, but a mixture of flowers, leaves, and sugar is not a mixture thereof because the mixture contains more than just the items listed.  So I think the mixture argument breaks down.

 

But I don't see how any sane person could say that an oil extract is not a "preparation" of flowers and/or leaves.  The most relevant definition Webster gives us is "a medicinal substance made ready for use." 

 

The act is pretty clear that MJ is a medicinal substance.  And you'd have to be a fool with an agenda to claim that the purpose of making brownies isn't a way to make MJ ready to use.

 

Then this is where PAs and LEOs get silly and complain how hard it might be to enforce the law if they don't know how much MJ is in the preparation.  But crying that a law is hard to enforce is not and never has been part of the process of interpreting a statute.  Similarly, others will say that making oil is dangerous and that this is the reason why oil preparations are illegal.  But the law makes no mention of the level of danger as a component to interpret the statute. A similarly weak argument might be "it is dangerous to grow MJ indoors, therefore the act should be interpreted to disallow indoor growing."

 

One might argue that difficult enforcement and danger are good reasons to amend the act through the legislature.  I don't share that opinion myself.  But clearly, the law as written makes no provision to interpret it based on ease or difficulty of enforcement or the relative dangers of engaging in the medical use of MJ.

Extracts are a constituent part flowers and leaves, and to my mind are absolutely preparations. To say they are not is beyond absurd. There is no legitimate reason we should not make our own Absolut Preparation for our pleasure and health.

[t-pain]

That is the standard language the Court uses in denying applications, just means they aren't going to consider it at this time, and the Court of Appeals ruling stands.  It is possible to file a motion for reconsideration by the Supremes of the order denying leave, but they are almost never granted. 

 

 

ah so it is. i am wrong. thanks

[bobandtorey]

imo

 

it goes like this

 

Ring ! Ring ! to Lansing from  Supremes Hey the C.O.A has done it again and we need to fix what they have done again like we have done so many times 

 

How is that Bill going we have to get that passed as soon as we can we don't want the sick smoking cannabis and we are busy with other case's 

[Restorium2]

imo

 

it goes like this

 

Ring ! Ring ! to Lansing from  Supremes Hey the C.O.A has done it 

 

again and we need to fix what they have done again like we have done so many times 

 

 

How is that Bill going we have to get that passed as soon as we can we don't want the sick smoking cannabis and we are busy with other case's

You are paying attention and understand the system behind the system. Don't forget that the attorney general is also in the loop. We don't have any independant checks and balances. They all have a script to look at when they forget their lines. Except the COA, they are all disgruntled because they didn't get a script. They didn't need to know the plan so they are flailing around in the dark.

Edited June 13, 2014 by Restorium2

[ozzrokk]

So am I to understand this correctly the SC has denied to hear the Carruthers case? Wowwwwwwwww how absurd is that? The only thing that makes any sense is that they know the politicians are working on a bill to solve the issue but even then that is ridiculous that they do not feel the need to fix an OBVIOUS injustice. To say they are tired of hearing MMJ cases is also ridiculous. That is THEIR JOB to fix the things the COA cannot get right.......... AGAIN.......... If the COA would do their job right they would not need to hear all those cases.

 

Am I also to understand correctly that Carruthers should have taken a hit at the lower court and not pushed the issue? Really Hayduke? Why so that people could have went on risking getting busted and thinking the courts would actually honor this law as written? Clearly their ruling was way WRONG and I think everyone knows it. Well everyone that does not have an agenda that is.

 

The simple reality is that we are tired of working with a law that the system refuses to accept and fully implement. We do not want to just fly under the radar. We want what we all voted for many years ago. I guess it was foolish to believe that that would EVER HAPPEN.

Edited June 14, 2014 by ozzrokk

[phaquetoo]

what I get from it is carruthers is not going to be heard in the  s.c, the only way we can get the mixtures back is thru legislation which is stuck in the senate, and now the kids in the senate have a summer break, it probably will take yrs to pass or fail, now they have the roads to deal with and the gas tax, that is way more important then sick people dont ya know?

 

I wonder which play ground the senate plays on while on summer break? man I wish I had their jobs, you can miss work and get paid, you get the best bennys and you can ignore the people that hired you!  what a life, only in america!

 

Peace

[ozzrokk]

what I get from it is carruthers is not going to be heard in the  s.c, the only way we can get the mixtures back is thru legislation which is stuck in the senate, and now the kids in the senate have a summer break, it probably will take yrs to pass or fail, now they have the roads to deal with and the gas tax, that is way more important then sick people dont ya know?

 

I wonder which play ground the senate plays on while on summer break? man I wish I had their jobs, you can miss work and get paid, you get the best bennys and you can ignore the people that hired you!  what a life, only in america!

 

Peace

 

 

 

True that.............. No accountability what so ever............. Some say they are accountable to the voters but that is a joke.........

[bobandtorey]

So am I to understand this correctly the SC has denied to hear the Carruthers case? Wowwwwwwwww how absurd is that? The only thing that makes any sense is that they know the politicians are working on a bill to solve the issue but even then that is ridiculous that they do not feel the need to fix an OBVIOUS injustice. To say they are tired of hearing MMJ cases is also ridiculous. That is THEIR JOB to fix the things the COA cannot get right.......... AGAIN.......... If the COA would do their job right they would not need to hear all those cases.

 

Am I also to understand correctly that Carruthers should have taken a hit at the lower court and not pushed the issue? Really Hayduke? Why so that people could have went on risking getting busted and thinking the courts would actually honor this law as written? Clearly their ruling was way WRONG and I think everyone knows it. Well everyone that does not have an agenda that is.

 

The simple reality is that we are tired of working with a law that the system refuses to accept and fully implement. We do not want to just fly under the radar. We want what we all voted for many years ago. I guess it was foolish to believe that that would EVER HAPPEN.

We had a case here with brownies where he and Barb got raided and Leo counted the whole pan and it's weight witch was one Pound

[+Malamute]

The MSC decided not to hear 'this' case.  Another case could come down the line that they may agree to hear.

 

Otherwise, yes,.. legislative is the answer.

[ozzrokk]

The MSC decided not to hear 'this' case.  Another case could come down the line that they may agree to hear.

 

Otherwise, yes,.. legislative is the answer.

 

 

Of course that is what the SC is counting on. Let's just hope they actually do it.

[bobandtorey]

The MSC decided not to hear 'this' case. Another case could come down the line that they may agree to hear.

 

Otherwise, yes,.. legislative is the answer.

Thanks

 

To many Ifs in that Bill

[bobandtorey]

We direct the Clerk to schedule the oral argument in this case for the same future session of this Court when it will hear oral argument in People v Tuttle (Docket No. 148971).

Read more: http://milawyersweekly.com/news/2014/06/17/criminal-law-is-court-fact-finder-regarding-immunity-under-medical-marijuana-act/#ixzz34zYNSERu

[GregS]

Criminal Law – Is court fact finder regarding immunity under medical marijuana act? 

Read more: http://milawyersweekly.com/news/2014/06/17/criminal-law-is-court-fact-finder-regarding-immunity-under-medical-marijuana-act/#ixzz350ZkcWlv

 

Am I to understand that the Court will determine that it may be a jury that will be the finder of fact in these cases, and take that away from judges?

[t-pain]

thats what the supreme court said in king/kolanek.

 

any question of fact must to go the jury.

 

 

Thus, if a defendant raises a § 8 defense,there are no material questions of fact,
and the defendant “shows the elements listed in subsection (a),”
then the defendant is
entitled to dismissal of the charges following the evidentiary hearing. Alternatively, if a
defendant establishes a prima facie case for this affirmative defense by presenting
evidence on all the elements listed in subsection (a) but material questions of fact exist,
then dismissal of the charges is not appropriate and the defense must be submitted to the
jury.

i mean, how can you argue with the michigan supreme court ? they ruled on this back in 2012.

its weird, judges dont mind dismissing cases, but i havent heard too many of them go to jury yet

Edited June 18, 2014 by t-pain

[GregS]

thats what the supreme court said in king/kolanek.

 

any question of fact must to go the jury.

 

 

Thus, if a defendant raises a § 8 defense,there are no material questions of fact,

and the defendant “shows the elements listed in subsection (a),”

then the defendant is

entitled to dismissal of the charges following the evidentiary hearing. Alternatively, if a

defendant establishes a prima facie case for this affirmative defense by presenting

evidence on all the elements listed in subsection (a) but material questions of fact exist,

then dismissal of the charges is not appropriate and the defense must be submitted to the

jury.

i mean, how can you argue with the michigan supreme court ? they ruled on this back in 2012.

its weird, judges dont mind dismissing cases, but i havent heard too many of them go to jury yet

I think the point is that judges determine whether there are material questions of fact. They are lord and master in their courtrooms and can and do rule arbitrarily in too dammed many cases in ways that can and do prevent a case from going to a jury. Is it because of this that the SC will rule on the question? Will the Court rule that judges can no longer make those determinations and instead order that a jury is the only legitimate finder of fact in sec. 8 trials?

[GregS]

I think it is apparent that the lower courts have not met the requirements of the ruling in King. Could it be that the court plans to spank lower court judges because they have refused to dismiss these cases but not sent those cases to a jury as is specified? It is a big deal for a judge to send a case to a jury. It is expensive and time consuming. That plays in their refusal to permit them. Then too there is the arrogance that goes with judgeships where judges take exception to being required to abide by any rule, but insist they are the ultimate arbiter of the law. Normally that would be the case, but experience plainly shows that many of them have abused that privilege beyond what is reasonable.

[t-pain]

yeah, in the other paragraph in people v king it states that a judge is supposed to rule on questions of law

but questions of fact go to juries.

 

you are on the nose greg. lower courts have done everything possible to avoid jury trials.

why do judges side with prosecutors so much? seems corrupt to me...

[Norby]

Probably the same reason they side with the cops.

[bobandtorey]

I think the point is that judges determine whether there are material questions of fact. They are lord and master in their courtrooms and can and do rule arbitrarily in too dammed many cases in ways that can and do prevent a case from going to a jury. Is it because of this that the SC will rule on the question? Will the Court rule that judges can no longer make those determinations and instead order that a jury is the only legitimate finder of fact in sec. 8 trials?

 

 

I wish i could say Yes 

 

the SC will rule that it's up to the judge because they don't want everybody getting a jury

[bobandtorey]

Monday, July 7, 2014

 

In the case PEOPLE OF MI V RICHARD LEE HARTWICK  COA Case Number: 312308and MSC Case Number: 148444

 

The CoA decision that rejects the defendant’s specific arguments that his possession of a registry identification card automatically immunizes him from prosecution under § 4 and grants him a complete defense under § 8 is in error. They rejected these arguments because they assert that the argumentignores the primary purpose and plain language of the MMMA, which is to ensure that any marijuana production and use permitted by the statute is medical in nature, and used only for treating a patient’s debilitating medical condition.

Their argument that it is the caregiver’s responsibility to know the patients debilitating medical condition, the dosages of the drug, and the amount of time the patient needs to continue taking the drug is in error.

The Physician Attestation form signed by the physician, specifies that the physician attests that the information entered on the certification is true and accurate. The physician attests that they are in compliance with the Michigan Medical Marihuana Act, Administrative Rules, and all amendments. The physician attests that they have completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in-person, medical evaluation. Further, they attest that in their professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.

As failure to sign this form would result in LARA denying both the patient’s application as well as the caregiver’s issuance of a registry card, the caregiver can be assured that this information is valid.

It follows that any question regarding the validity of a patient’s medical use of marijuana is strictly in the hands of the physician, and that the issuance of a registration card by the State should constitute the final word, and that the defense’s argument is valid.

All reference to dosages could be considered if the doctor was issuing a prescription, but the same Physician Attestation form clearly states that this is not a prescription, but rather an opinion. The amounts that the patient is to use, if such was discussed, are between the patient and their physician. The caregiver has no choice but to rely on the word of the patient as to how much medical marijuana the patient will need.

The prosecution’s stance that the defendant was unfamiliar with the health background of his patients, and could not identify the maladies or “debilitating conditions” suffered by two of his patients, that he was not aware of how much marijuana any of his patients were supposed to use to treat their respective conditions, or for how long his patients were supposed to use “medical marijuana.”  Is therefore a non issue.

Further, their assertion that the defendant’s inability to name each patient’s certifying physician is also a non-issue.

Sec. 6. (b) States that applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

Patients need not identify to the caregiver the identity of their physician, in addition, the caregiver need not disclose the identity of his patients. In fact, the caregiver would be in violation of confidentiality of  the law and subject to prosecution if he or she did provide that information.

The prosecution cited the plant count as being a factor in denying a dismissal  under section 4. Although the defendant denied having the 77 plants that the police stated they counted, the count is irrelevant. Section 8 (2) states that the patient and the patient's primary caregiver, if any, may be 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.

As with many plants, ultimate yields differ with the particular strain of the plant. Some strains have a higher yield, some a lower yield.

A reasonable person may conclude that Section 8 (2) means that it trumps the 12 plant limit stated in a number of places in the act. It could be necessary to grow more than the 12 plants to assure an 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.

As with any crop, it is difficult to predetermine yield, and it would be prudent to plant more and have an overage, which could be either destroyed, or donated to the needy.

It is my belief that the trial court and subsequently the CoA erred in their decision to deny first a dismissal under section 4, or in absence of that, the right of the defendant to present an affirmative defense.

 

http://peoplevhartwick.blogspot.com/2014/07/in-case-people-of-mi-v-richard-lee.html

Edited July 8, 2014 by bobandtorey

[t-pain]

It is my belief that the trial court and subsequently the CoA erred in their decision to deny first a dismissal under section 4, or in absence of that, the right of the defendant to present an affirmative defense.

 

http://peoplevhartwick.blogspot.com/2014/07/in-case-people-of-mi-v-richard-lee.html

 

 

that was written by joel.

http://michiganmedicalmarijuana.org/user/130-joel/