I want to alert people of this opinion by William Scheutte, Attorney General of Michigan, about the impact of medical marijuana usage in a child protective proceeding.
See: http://milawyersweekly.com/...
Not only does this bizarre opinion illegally add language to the statute, it also destroys the statute's privacy provisions by using two very different terms of art in the statute interchangeably to reach the result he wants.
I can already see judges ordering parents with valid Medical Marijuana registry cards to undergo a doctor's exam (of course a doctor of the state's choosing who doesn't believe there are any medicinal uses for marijuana), release all of their medical records (despite the Act's privacy provisions), and conclude that the parents are not using marijuana to alleviate the condition that qualified them for the card.
Notice that on page 12 of the AG's opinion he adds the word "criminal" to the statute. The opinion says that the affirmative defense applies only to criminal prosecutions. Problem is, the statute does not use the word criminal before the word prosecution. MCL 333.26428(a) reads:
“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 . . . .”
Even worse, the definition of prosecution is not limited to just criminal cases, the definition of prosecution states:
pros•e•cu•tion [pros-i-kyoo-shuhn]
noun
1. Law.
a. the institution and carrying on of legal proceedings against a person.
b. the body of officials by whom such proceedings are instituted and carried on.
2. the following up of something undertaken or begun, usually to its completion.
It is outragous that our "esteemed" attorney general has taken it upon himself to add language to the Medical Marijuana Act.
Hmmm….. isn't that the executive branch invading the province of the legislature??? Then to add insult to injury, the opinion continues that a child welfare proceeding is not a criminal proceeding; it's a civil proceeding. Tell that to the parents who face the county prosecutors in the child welfare proceedings!
And while he espouses the "plain meaning" of the words "articulated" and "substantiated" (opinion at pp. 9-10) he conveniently forgets about using the plain meaning of "prosecution."
Then as if that isn't enough, the AG totally destroys the privacy provisions in the Act.
He says that a judge cannot independently determine if a parent is a qualifying patient or not. But then, the AG goes on and says that the state can rebut the presumption that the patient is "engaged in the medical use of marihuana in accordance with this act" by again twisting the statute's plain language. The statute says that the presumption can be rebutted by:
“The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.” [MCL 333.26424(d)(1) and (2)]
The conduct that the statute mentions immediately before the rebut the presumption language is possession of the registry card and possession of the amount allowed under the statute and no more.
The AG twists "the conduct related to marihuana" into "a patient's use of marijuana" and then says that he court can order the parent to have a medical exam, produce medical records, and a whole host of things that the statute says the court cannot do!!
Rather, what a court may do is entertain “evidence” that a patient’s use of marihuana “was not for the purpose of alleviating” the patient’s “debilitating medical condition or symptoms associated with the debilitating medical condition.” MCL 333.26424(d).
Thus, the court could order the person to undergo a medical examination, procure the patient’s medical records, and review any other evidence, including testimony, regarding the person’s use of marihuana to determine whether the person’s conduct relating to marihuana [see how he uses the terms interchangeably when the statute plainly says conduct relating to marijuana and not use of marijuana?] is for the purpose of treating or alleviating the person’s debilitating condition or associated symptoms.
If the evidence supports a contrary conclusion, then the court can determine that the person’s use or possession of marihuana is not “in accordance with” the MMMA and the person is not entitled to the Act’s protections in the context of a child-protective proceeding under the Juvenile Code. MCL 333.26424(a) and MCL 333.26427(a).
I cannot believe the liberties that the state's highest law enforcement officer is taking with the law. He ought to be impeached for attempting to make law while serving in the Executive Branch.
Scheutte has been a vehement opponent of medicinal marijuana ever since its inception, so it comes with little surprise. The man does not believe in democracy, and has, since taking the AG job, attempted to undermine the will of the people by constantly throwing up roadblocks to the MMMA. This is merely one more attempt to establish authoritarian rule from Republican politicians. The man’s use of such a deceitful analysis, along with such blatant lying to arrive at the conclusion of his choice makes him unacceptable as the leading law enforcement agent of Michigan.
Scheutte is up for election in 2014. Send his ass back to Grand Rapids so he can sell Amway door-to-door.