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Mi Ag Invited To Weigh In On Constitutionality Of Marijuana Transportation Law


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In 2014, various district court judges throughout Michigan have dismissed criminal cases against individuals charged with violating a 2012 law which penalizes

 

unauthorized methods of transporting marijuana. The marijuana transportation law is, however, currently being enforced in other Michigan courts’ jurisdictions

 

against medical marijuana patients and caregivers who were acting in strict compliance with Michigan’s Medical Marijuana Act (MMMA).

 

Recently, a Benzie County District Judge asked Michigan’s Attorney General to file a brief outlining their position on the constitutionality of the marijuana

 

transportation law. In that case, People v Olaf Johnson, Defense attorney David G. Huft argued in his motion and brief that the marijuana transportation law “is

 

]superseded by [the MMMA] … Defendant is immune from prosecution and arrest because he fully complied with the requirements of [the MMMA]” Huft further argued

 

that “Defendant is entitled to dismissal under the affirmative defense [section of theMMMA]” and that the marijuana transportation law “is unconstitutional.”

 

Michigan’s statute restricting the transportation of usable marijuana in a motor vehicle (MCL 750.474) requires marijuana to be “[e]nclosed in a case that is carried in

the trunk of the vehicle… or [e]nclosed in a case that is not readily accessible from the interior of the vehicle, if the vehicle in which the person is traveling does not

 

have a trunk.” The 2012 marijuana transportation law additionally provides that a “person who violates this section is guilty of a misdemeanor punishable by

imprisonment for not more than 93 days or a fine of not more than $500.00, or both.”

 

Benzie County District Court Judge John D. Mead asked defense attorney David Huft, at a hearing on September 18, to “prepare an order for me to sign inviting

 

[Michigan's] Attorney General to submit a brief in this [case], 'cause anytime a statute is being challenged on constitutional grounds, it's my understanding the AG is actually supposed to be notified so that that office can decide whether or not it wants to file a brief."

 

Judge Mead’s September 19, 2014 order indicates: “IT IS THEREFORE ORDERED THAT the Attorney General for the State of Michigan shall be given notice of the pendency of this case, shall be provided copies of Defendant's Motion to Dismiss and Defendant's Brief in Support of Motion to Dismiss, and shall be given an opportunity to file a brief on the issues presented by Defendant's Motion to Dismiss.”

 

Defense attorney Huft’s motion and brief cited the following transcript’s and opinions in which three district judges had previously dismissed criminal charges after ruling that Michigan’s marijuana transportation law was unconstitutional and/or superseded by the MMMA.

 

• On March 4, 2014, Ingham County District Judge Thomas P. Boyd granted a motion to dismiss a charge of illegal transportation of marijuana and held that: “The question is did [the legislature enact the marijuana transportation law] in a way that's consistent with the constitution and consistent with the members of the

 

Constitutional Convention's intent that legislation not be done in secret or by trick. The really puzzling thing is I assumed … that I would find that it didn't have the requisite supermajority number of votes to amend an initiated act, which is also a different constitutional provision. But it does. I mean, this bill passed the House with 93 votes and passed the Senate with 38 votes. So I'm at a loss to know why the legislature was skirting the constitutional requirements when they had the votes to

 

pass the bill. It doesn't make any sense. There's only, I guess, a couple answers. One is sloppiness, which, of course, is always a possibility with the term limit of the legislature. And the other is that they had a different reason not to amend the initiated act. Sometimes, because of the constitutional requirement that you can't

 

change an act without going into it, once you go into the act, people who want to do things other than the sponsor's intent also get to amend the act. And they can amend the bill, which might amend the act and that ties things up and maybe that's what's going on. I don't know. I guess it's not really for us to guess. It doesn't

 

really matter… Finally, Public Act 460 of 2012 is unconstitutional as it was enacted contrary to Article IV, Section 25, of the Michigan Constitution which provides that

 

“no law shall be revised, altered, or amended by reference to its title only. The section or sections of the act altered or amended shall be reenacted and published at length.” It is crystal clear that [the marijuana transportation law] is an effort to amend, alter, or revise the Medical Marihuana Act which is the initiated act of number 1

 

of 2008. Why the legislature chose to amend the penal code rather than just go into the initiate law of 2008 as required by Article IV, Section 25, of the Michigan

Constitution? I don't know. I speculated, but I have no idea, and it's not really relevant to the purposes of this inquiry.”

• On June 19, 2014, Delta County District Judge Glenn A. Pearson issued an order finding that Michigan’s marijuana transportation law “is inconsistent with the 

 

MMMA with regard to the transportation of medical marijuana and that Public Act 460 of 2012 is unconstitutional in its enactment having been done in violation of Article IV Section 25 of the Michigan Constitution. The Court specifically adopts the reasoning of Judge Boyd as set forth on the record March 4, 2014 in the 55th District Court for the County of Ingham…”

• On July 21, 2014, Crawford County District Judge Monte J. Burmeister held that the Legislature’s “amendments to the penal code attempt to modify the 

 

Michigan Medical Marihuana Act by restricting actions specifically allowed for under the MMMA. This attempt to revise and alter is done under the auspices of the

 

penal code rather than re-publishing of the MMMA. Such an approach is unconstitutional… In dismissing the case, this Court notes it believes the MMMA is bad public policy as written and is fraught with problems as drafted. Notwithstanding that, it is not the Court's personal views that dictate here, but rather the Court's

 

requirement to uphold the Constitution of this state. The Legislature may affect the modifications they did here with the same prohibitions regarding transport, but it is incumbent upon them to do that under the tenets of the Michigan Medical Marijuana Act and consistent with the procedures required for an amendment of that Act.”

In addition to those district judges’ opinions cited in defense attorney Huft’s brief, Washtenaw County District Judge Richard E. Conlin issued an opinion on July

 

23, 2014, holding that: “The Penal Code statute requiring medical marihuana to be in an enclosed case when transported clearly amends the Michigan Medical

 

Marihuana Act, which places no restrictions (other than amount) on transporting Marihuana for patients and caregivers, and provides a complete defense to criminal prosecution. The statute does not reenact or republish the Michigan Medical Marihuana Act. In Alan v Wayne County, 388 Mich 210 (1972), the Michigan Supreme Court specifically addresses the question of “amendment by implication,” where a statute has the effect of amending another statute or act, but does not make reference to the statute or act so amended. But that is not the case here; MCL 750.474 specifically mentions the Michigan Medical Marihuana Act, and specifically amends the act by requiring usable marihuana to be transported in a closed container that is in the trunk or otherwise inaccessible. This type of amendment is unconstitutional.”

Judge Mead also granted Benzie County’s Chief Assistant Prosecuting Attorney Jennifer Tang-Anderson’s request to adjourn the proceedings on September 18 so she could prepare a responsive brief.

A future hearing date regarding defense attorney Huft’s motion to dismiss has not yet been scheduled by the Benzie County District Court.

 

http://www.examiner.com/article/mi-ag-invited-to-weigh-on-constitutionality-of-marijuana-transportation-law

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your probably right Bob...he won't

 

probably... but stranger things have happened.

 

someone was just on the boards recently speaking of a issue in Crawford county.. i can't find the thread.. but i am certain it was a transportation issue with a fellow vet.

 

this caught my attention as an avenue for a defense for that person to follow up with...

 

• On July 21, 2014, Crawford County District Judge Monte J. Burmeister held that the Legislature’s “amendments to the penal code attempt to modify the Michigan Medical Marihuana Act by restricting actions specifically allowed for under the MMMA. This attempt to revise and alter is done under the auspices of the penal code rather than re-publishing of the MMMA. Such an approach is unconstitutional… In dismissing the case, this Court notes it believes the MMMA is bad public policy as written and is fraught with problems as drafted. Notwithstanding that, it is not the Court's personal views that dictate here, but rather the Court's requirement to uphold the Constitution of this state.

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I have always believed the transportation bill was unenforceable and I will be surprised if in the end it is decided to be anything other than that.

 

But, I have a weird feeling(near certainty) that when it is decided the way they passed that law was unconstitutional or at least unenforceable; the legislature will likely revisit this topic.  And in that case, we will fight it again and at worst, lighten it up and push the police out of the legislation.  As is, that law is ridiculous.  Hopefully it goes away.

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But, I have a weird feeling(near certainty) that when it is decided the way they passed that law was unconstitutional or at least unenforceable; the legislature will likely revisit this topic.  And in that case, we will fight it again and at worst, lighten it up and push the police out of the legislation.  As is, that law is ridiculous.  Hopefully it goes away.

for some reason, when its found that it is not enforceable against MMMA patients, i doubt the legislature will allow those 1000 patients who were charged, sentenced and paid fines to get refunded and expunged.

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Ain't up to  legislature its up to the supreme court whether they make the ruling retroactive. Least I'm pretty sure bout that. If they don't make it retroactive then current cases would be dismissed and any1 still within their time to appeal can appeal and get a dismissal. Least that's how it was explained to me about criminal laws that are found unconstitutional. What say you Mr Komorn?

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Ain't up to  legislature its up to the supreme court whether they make the ruling retroactive.

i mean after the supreme court rules it inconsistent. then the legislators will make it retroactive. which is in their right to do , with a new law.

 

or they cannot make a new law that says previous legal actions were illegal? hmm. good question.

Edited by t-pain
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 the card is no good if you illegal transport,
 
I don't think that is going to stand up to correct legal interpretation. I think they would have to prove non medical use of what you were transporting to get there. Like if you were delivering it to someone else. Or sharing it in the car with someone.

Edited by Restorium2
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Reading more background on this case, it sounds like the judge wants the AG to give an opinion as to the constitutionality of the law, due to the way the legislature passed it.  I don't see anything where the judge is asking the AG's opinion as to whether the transport law is enforceable against patients and CGs who are in compliance with the MMMA.  I doubt Schuette wants to give an opinion as to whether the transport law is enforceable for MMMA-compliant folks because he'd either have to conclude that the law is not enforceable against patients and CGs or he'd have to write up a convoluted mess trying to support it.

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well its confusing because different judges have ruled different things.

so at issue is

 

1. is the transport law 750.474 unconstitutional because it changed a law in the title only and did not reprint the affected other (MMMA) law?

and

2. does the MMMA supersede 750.474

 

the supreme court mentioned a similar thing back in people v koon about the MMMA:

 

While neither party raised the issue, we conclude that the MMMA’s enactment without

republishing MCL 257.625(8) did not run afoul of Const 1963, art 4, § 25, which states

that “[n]o law shall be revised, altered oramended by reference to its title only. The

section or sections of the act altered or amended shall be re-enacted and published at

length.” Assuming, without deciding, that this provision applies to voter-initiated laws,

we conclude that the MMMA is an“act complete in itself” and, therefore, falls within a

well-settled exception to Const 1963, art 4, § 25. People ex rel Drake v Mahaney, 13

Mich 481, 497 (1865) (“But an act complete initself is not within the mischief designed

to be remedied by this provision, and cannot be held to be prohibited by it without

violating its plain intent.”). See also In re Constitutionalityof 1972 PA 294, 389 Mich

441, 477; 208 NW2d 469 (1973) (concluding that the no-fault insurance act was an act

complete in itself and, thus, did not violate Const 1963, art 4, § 25, though it affected

provisions that were not republished).

this "is an act complete in itself" is important for later... :)

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