Pubdate: Sun, 01 Jan 2012
Source: Livonia Observer (MI)
Copyright: 2012 Observer & Eccentric Newspapers
Contact: http://www.hometownlife.com/section/CUSTOMERSERVICE20
Website: http://www.hometownlife.com/section/NEWS10
Details: http://www.mapinc.org/media/5277
Note: Specify Livonia Observer
Author: Ken Abramczyk
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/find?275 (Cannabis - Michigan)

MEDICAL POT ISSUES WIND WAY THROUGH COURTS

In 2008, 63 percent of Michigan voters approved the use of medical marijuana.

Yet three years later, attorneys battle in the state courts over 
whether communities have the right to prohibit an activity, which in 
their eyes violated federal law, even when approved by a voter referendum.

Communities throughout the state are watching what courts decide in 
particular with one local case.

The American Civil Liberties Union has appealed a Wayne County 
Circuit Court ruling that supported the city of Livonia's ban on 
medical marijuana facilities. Circuit Judge Wendy Baxter granted the 
city's motion for summary disposition and dismissed the case. 
Communities across Michigan will be watching to see how the state 
courts interpret state and federal law.

Early this year, attorneys from both sides will file respective 
motions to the Michigan Court of Appeals.

Dan Korobkin, attorney with the ACLU, said the ACLU's position hasn't 
changed on the issue.

"Livonia or any other community can't make its own decision to ban 
medical marijuana in their community," Korobkin said. "The approval 
of medical marijuana was a decision made by the voters and approved 
throughout the state. Medical marijuana patients, who are registered 
with the state and got a doctor's approval, will not be prohibited or 
banned from an activity that is in accordance with state law."

Don Knapp, Livonia's city attorney, said the city's position hasn't 
changed. Knapp said the ordinance was not aimed at legal medical 
marijuana users, but was directed at the growing facilities and 
dispensaries. "We wanted to take away any of the problems associated 
with medical marijuana," Knapp said. "In Oakland, California, there 
are places with a lot of dope and a lot of cash that are the targets 
of armed robberies.

"We didn't want these places popping up next to pizzerias or other 
small businesses and be a target for crime that would impact these 
other businesses."

State vs. federal law

At the heart of the case is whether the voter-approved state law 
permitting medical marijuana use or sales pre-empts federal law 
banning marijuana or whether the federal Controlled Substances Act 
pre-empts state law.

Michigan voters approved the use of medical marijuana in 2008. The 
city of Livonia later enacted an ordinance that did not mention 
medical marijuana, but prohibited activities that violate federal law.

The ACLU filed a suit in December 2010 on behalf of Linda and Robert 
Lott of Birmingham against the cities of Livonia, Bloomfield Hills 
and Birmingham regarding the authority of communities to prohibit 
medical marijuana use or sales on the grounds that marijuana 
possession violates federal law. The Lotts own a portion of a 
property in Livonia where they said they wanted to grow medical 
marijuana, according to the ACLU. The ACLU argued in court that 
Livonia could not enact laws that violate state laws. The case 
against the cities of Bloomfield Hills and Birmingham was transferred 
to Oakland County Circuit Court.

Baxter agreed with the city of Livonia and dismissed the lawsuit.

"Livonia's ordinance directly conflicts with and is preempted by the 
Michigan Medical Marihuana Act, which regulates the use, distribution 
and maintenance of medical marijuana and 'occupies the field of 
regulation,'" Baxter wrote in her ruling.

"However, the MMMA is pre-empted by the Controlled Substances Act, 
which completely bans the use of marihuana and bans its use by 
physicians for a medical purpose. Therefore, plaintiffs have failed 
to state a claim for which relief can be granted and 'no factual 
development could possibly justify recovery.'"

On Nov. 29, Oakland County Circuit Judge Colleen O'Brien dismissed 
the ACLU claims against Birmingham and Bloomfield Hills. Neither of 
the cities had applied their ordinances against the plaintiffs, so 
any question about how ordinances might apply was "hypothetical," 
O'Brien ruled.

"The court, in its discretion, denies the request for declaratory 
relief for the reason that no actual controversy exists here for the 
court to decide," O'Brien wrote in her ruling.

Patient-to-patient prohibited

In August, the Court of Appeals ruled in a separate case involving a 
dispensary in Isabella County that sales were not permitted between 
registered patients and ruled a dispensary closed as a public 
nuisance. The court found it violated state health laws. That ruling 
shut down most dispensaries because "they effectively said the 
Michigan Medical Marihuana law does not allow patient-to-patient 
sales," Knapp said.

All the Lotts wanted to do was grow it in Livonia and use it at their 
home in Birmingham, Korobkin said. "The fact that Livonia doesn't 
like the law isn't a reason to ban it from the city," Korobkin said.

When asked if the Lotts would be willing to discuss their situation 
for this story, Korobkin said the ACLU was acting as a spokesman for 
the Lotts during the lawsuit, Korobkin said. "The local laws have 
really taken a toll on the Lotts and hundreds of medical marijuana 
patients," Korobkin said. "Most patients have the doctor's permission 
or they are registered as patients or caregivers. They don't consider 
themselves as criminals and they don't want to be treated as 
criminals in cities where they live or work.

"The decisions on the ordinances in Livonia, Bloomfield Hills and 
Birmingham has a detrimental effect on their health and takes a toll 
on their physical health."

One year ago, the Law Offices of Thomas M. Loeb of Farmington Hills, 
and Neil Rockind of Southfield, filed a joint lawsuit in Oakland 
County Circuit Court against Bloomfield Township for its medical 
marijuana ordinance passed in October. Rockind, whose case probably 
won't be heard until February, said the law is designed to be 
inclusive for patients and caregivers. "To me, the law isn't as 
confusing as people make it, Rockind said. "The act is designed to 
give very broad protection to caregivers and patients."

Rockind said some of the issues raised in some of the court cases 
don't even discuss the medical, pain-killing use of the drug, but 
whether growing facilities are enclosed in lots. Arguments also are 
raised on whether a doctor is an expert in cannabis and whether 
patients can self-medicate. "Ironically, the act isn't being used to 
help them, it's being used to hurt them," Rockind said.

Knapp would not be surprised if the Livonia case ends up in the 
Michigan Supreme Court. "If the city of Livonia was not successful 
before the Court of Appeals, we're going to try and take it to the 
Michigan Supreme Court," Knapp said.
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