Pubdate: Tue, 21 Jun 2011 Source: Daily Tribune, The (Royal Oak, MI) Copyright: 2011 The Daily Tribune Contact: http://www.dailytribune.com/ Details: http://www.mapinc.org/media/1579 Author: Carol Hopkins, Daily Tribune JUDGE RULES STATE MEDICAL MARIJUANA LAW UNCONSTITUTIONAL A Midland County judge's recent ruling that the state's medical marijuana act is unconstitutional has Oakland County medical marijuana supporters and detractors speculating on what may come next. The opinion, written by Midland County Circuit Court Judge Jonathan Lauderbach, addresses two separate cases involving probation conditions and the use of medical marijuana. "This is truly a battle between the federal government and state government," said Samantha Moffett, marijuana business consultant with Walled Lake-based Ambrose Law Group. Moffett's reference to the two governments going head to head springs from Lauderbach's opinion, where he wrote that the courts are bound by the Supremacy Clause - guided first by the U.S. Constitution and federal laws. That means, he concluded, even if defendants prove they are seriously ill and use medical marijuana to ease symptoms, Lauderbach stated, the Michigan Medical Marihuana Act - passed by voters in 2008 - is unconstitutional and "therefore must be declared to be 'without effect,'" according to his opinion outlined in a story in the Midland Daily News. This sets up the possibility of the Michigan Court of Appeals weighing in on medical marijuana, said Moffett. Oakland County Prosecutor Jessica Cooper said this opinion validates Oakland County law enforcement officials' position on medical marijuana. "(The opinion says) the same thing we have been saying," she said. In the past, county prosecutors have said distributing marijuana is against federal law. "I find (the opinion) interesting. Across the state, every time (medical marijuana cases) get into court and you see court analysis, you'll see they look at the statute very narrowly." She believes the Midland situation is "one more piece" in the overall medical marijuana discussion. The issue in Midland involved two defendants - Jonathon Murray Finney, 29, and Todd Alan VanWert, 46, both of Midland - who were sentenced for offenses including marijuana possession. The court ordered the men, who both said they were qualified to use marijuana, to stay away from marijuana. Moffett said 15 states and the District of Columbia which have legalized marijuana on some level. If the act is deemed unconstitutional in Michigan, "I believe we are going to see similar challenges in other states," said Moffett. Cooper said she believes it will take another two years before medical marijuana cases "wind their way to the Michigan Supreme Court" and before there is a "definitive statement" on the act here. Neil Rockind, an attorney currently defending medical marijuana patients in Oakland County courts, said other states with medical marijuana laws have dealt with the state vs. federal law question. "In California this issue was addressed, decided, appealed and reaffirmed and each and every time it was concluded the state's medical marijuana act and the federal controlled substance law can operate together," he said, adding even Congress has said the federal substance acts do not pre-empt state medical marijuana laws. "This (Midland) decision is only going to complicate things. I believe the Midland judge made an error, and (his decision) is going to be reversed." - --- MAP posted-by: Richard R Smith Jr.