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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
September 14, 2010
9:20 a.m.
Plaintiff-Appellee,
v
No. 295809
Oakland Circuit Court
LC No. 2009-009020-AR
ROBERT LEE REDDEN,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 295810
Oakland Circuit Court
LC No. 2009-009020-AR
TOREY ALISON CLARK,
Defendant-Appellant.
Before: O’CONNELL, P.J., and METER and OWENS, JJ.
METER, J.
In this case involving the Michigan Medical Marihuana Act (MMMA), MCL 333.26421
et seq., defendant Robert Lee Redden and defendant Torey Alison Clark appeal by leave granted
from a December 10, 2009, circuit court order reversing for each defendant the district court’s
dismissal of a single count of manufacturing 20 or more but less than 200 marijuana plants, MCL
333.7401(2)(d)(ii). We affirm the circuit court’s decision to reinstate the charges.
I. FACTS
This case arose from the execution of a search warrant at defendants’ residence in
Madison Heights, which resulted in the discovery of approximately one and one-half ounces of
marijuana and 21 marijuana plants. Officer Kirk Walker and Officer Mark Moine of the
Madison Heights Police Department testified that on March 30, 2009, at approximately 7:50
p.m., they arrived at the residence with four other officers to execute a search warrant for the
purpose of looking for marijuana and other illegal substances.
-1-
Defendants and another unidentified individual were found in the residence and were
secured by the officers. The officers found proof of residency for defendants and $531 in cash.
Officers also found three bags of marijuana in a bedroom. In addition, they found 21 marijuana
plants, which were all between three and four inches tall, on the floor of a closet in the same
bedroom. Field tests of these items were positive for marijuana. Officers did not find any scales,
small plastic bags, or packaging materials in the residence.
At some point during the search, Redden stated that he was in pain. Defendants also each
turned over documents regarding their use of marijuana for medical purposes. The documents,
which were dated March 3, 2009, for Redden, and March 4, 2009, for Clark, were admitted into
evidence. Each document stated:
I, Eric Eisenbud, MD, am a physician, duly licensed in the State of
Michigan. I have completed a full assessment of this patient’s medical history,
and I am treating this patient for a terminal illness or a debilitating condition as
defined in Michigan’s medical marijuana law. I completed a full assessment of
this patient’s current medical condition. The assessment was made in the course
of a bona fide physician-patient relationship. I have advised the patient about the
potential risks and benefits of the medical use of marijuana. I have formed my
professional opinion that the potential benefits of the medical use of marijuana
would likely outweigh any health risks for the patient. This patient is LIKELY to
receive therapeutic or palliative benefit from the medical use of marijuana to treat
or alleviate a serious or debilitating medical condition or symptoms of the serious
or debilitating medical condition. [Emphasis in original.]
The MMMA went into effect on December 4, 2008, but, according to Walker, the state of
Michigan did not begin issuing registry identification cards until April 4, 2009. The Michigan
Department of Community Health issued medical marijuana registry identification cards to each
defendant on April 20, 2009, but this was after the search in this case took place.
As part of the preliminary examination, defendants asserted the affirmative defense
contained in § 8 of the MMMA, MCL 333.26428.1 In support of the defense, defendants
presented testimony from Dr. Eric Eisenbud, M.D., who testified that he attended the University
of Colorado Medical School and has been a physician for 37 years. He is licensed to practice in
1
MCL 333.26428, which is quoted in its entirety infra, states that a medical-purpose defense
shall be presumed valid if, among other things:
(1) A physician has stated that, in the physician’s professional opinion,
after having completed a full assessment of the patient’s medical history and
current medical condition made in the course of a bona fide physician-patient
relationship, the patient is likely to receive therapeutic or palliative benefit from
the medical use of marihuana to treat or alleviate the patient’s serious or
debilitating medical condition or symptoms of the patient’s serious or debilitating
medical condition . . . .
-2-
seven states, including Michigan, and is board certified in ophthalmology. Dr. Eisenbud also had
worked in the past as an emergency room practitioner and a family practitioner. At the time of
the preliminary examination, Dr. Eisenbud had worked for the past 19 months for The Hemp and
Cannabis Foundation (THCF) Medical Clinic. He testified that he is “not from Michigan” and
was currently working in six out of the seven states in which he is licensed to practice medicine,
although he later suggested that he was working in all seven states.2
Dr. Eisenbud testified that defendants were his patients and he examined each of them on
March 3, 2009, when both were seeking to be permitted to use medical marijuana under the
MMMA. A clinic technician screened defendants before their appointment in a telephone
interview and by reviewing their medical records. Dr. Eisenbud met with each defendant for
about half an hour, spending five minutes reviewing the medical records and about ten minutes
on the physical examination; he also interviewed them. For both defendants, during the ten-
minute physical examination, Dr. Eisenbud examined their general appearance and skin, listened
to their lungs, examined their abdomen, examined their head and neck, did a neurological and
cardiovascular assessment, and assessed mental health.

Dr. Eisenbud testified that he signed the authorization for each defendant in his
professional capacity because each qualified under the MMMA and each would benefit from
using medical marijuana. He opined that his relationship with each defendant was a bona fide
physician-patient relationship because he interviewed defendants, examined them, and looked at
their medical records in order to gain a full understanding of their medical problems.

Dr. Eisenbud acknowledged that the THCF Medical Clinic did not require patients to bring their
complete medical records. The records from Redden were from two years before his
examination by Dr. Eisenbud, and Clark’s records were from a year before her examination by
Dr. Eisenbud.

Regarding Redden, Dr. Eisenbud concluded that he had a debilitating condition that
caused pain, satisfying the MMMA. Regarding Clark, Dr. Eisenbud concluded, based on her
medical records and interviewing her, that she suffered from nausea. Dr. Eisenbud did not testify
regarding what caused Redden’s pain and Clark’s nausea. Dr. Eisenbud only examined each
defendant once. He viewed the only risk of defendants’ using marijuana as related to driving; he
indicated that they should not drive within four hours of using it.
Dr. Eisenbud testified that defendants did not consult with any other doctors regarding
medical-marijuana authorization before their appointments with him. According to Dr.
Eisenbud, each defendant was using other narcotics for their conditions, and he opined that
access to marijuana would give them the opportunity to wean themselves off of those narcotics.
The parties stipulated that Redden had two previous convictions for possession with
intent to distribute marijuana.
2
We note that Dr. Eisenbud did not indicate where his "home base" is, he did not indicate where
his examinations of defendants took place, and he did not indicate where the TCHF Medical
Clinic is located.
-3-
During the preliminary examination, the prosecution argued that defendants were not
entitled to assert the affirmative defense from § 8 of the MMMA because they did not each have
a registry identification card at the time of the offense as required by § 4(a) of the MMMA, MCL
333.26424(a).3 The prosecution acknowledged that defendants could not have obtained a card
previously because the state had yet to begin issuing them. However, the prosecution contended
that defendants were required to abstain from marijuana use until they were able to obtain a card.
Defendants argued that the plain language of § 8 of the MMMA did not require possession of a
card.

The prosecution argued that under the probable-cause standard, the evidence showed that
defendants were engaged in the manufacturing of marijuana. The prosecution contended that
defendants failed to comply with § 8 of the MMMA because they had not shown a bona fide
patient-physician relationship with Dr. Eisenbud and also failed to establish that they possessed
an amount of marijuana that was not more than was reasonably necessary to ensure uninterrupted
availability for the purpose of treating their conditions. Defendants argued that they each met the
requirements of § 8 because they each had a signed authorization from a licensed physician with
whom they had a bona fide physician-patient relationship and who concluded that they each had
conditions covered under the MMMA. Defendants also argued that the amount of marijuana was
reasonably necessary.

II. LOWER-COURT RULINGS
The district court noted that the MMMA “is probably one of the worst pieces of
legislation I’ve ever seen in my life,” and went on to state:
Section 8 says section 4 doesn’t really have any meaning. If you don’t have a
card and you happen to be arrested, just make sure you have a doctor who will
testify in court that you needed medical marijuana in order to have that case
dismissed.

The burden’s on defendant at the evidentiary hearing to have section 8
apply to show what a reasonable amount of marijuana is. It doesn’t say what a
3
MCL 333.26424(a) provides:
A qualifying patient who has been issued and possesses a registry
identification card shall not be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to civil penalty
or disciplinary action by a business or occupational or professional licensing
board or bureau, for the medical use of marihuana in accordance with this act,
provided that the qualifying patient possesses an amount of marihuana that does
not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not
specified that a primary caregiver will be allowed under state law to cultivate
marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed,
locked facility. Any incidental amount of seeds, stalks, and unusable roots shall
also be allowed under state law and shall not be included in this amount.
-4-
reasonable amount is. It would seem practical to me that they would have
included the same amount that was in section 4 if they believed that was a
reasonable amount. But, instead, they just leave it to, I guess, every other judge’s
decision as to what they think is reasonable.
It – it’s just one of the worst pieces of legislation I’ve ever seen. . . . it
appears that section 8, the intent of it is to allow anyone who possesses marijuana
with a doctor’s certification, I guess at the time of the hearing, that the case would
have to be dismissed. Because it says in section [8]b that the charges shall be
dismissed following an evidentiary hearing where the person shows the elements
listed in subsection a. Well, one of the elements in subsection (a) is possessing a
reasonable quantity of marijuana.

I still don’t know what a reasonable quantity of marijuana is unless I go to
section 4. Section 4 says 2-point-5 ounces, I believe, 12 plants, but you also have
to have a valid registration card.

So, these people possessed no registration card, but yet they want the
benefit of section 4 to apply to section 8.

The district court also noted that although Dr. Eisenbud testified regarding defendants’
legitimate need to use marijuana for medical purposes, there was no testimony regarding what
was a reasonably necessary amount for defendants to possess. The district court concluded that
it would simply apply the amount of two and one-half ounces and 12 plants set by § 4 as what
was reasonably necessary, and it granted defendants’ motion to dismiss, explaining:
For that reason, I believe that section 8 entitles the defendants to a
dismissal, even though they did not possess the valid medical card, because
section 8 says if they can show the fact that a doctor believed that they were likely
to receive a therapeutic benefit, and this doctor testified to that [sic]. And Dr.
Eisenbud is a physician licensed by the State of Michigan. And that’s the only
requirement that the statute has. You don’t have to be any type of physician, you
just have to be a licensed physician by the State of Michigan.
So, based on that, I find section 8 does apply. And I believe I’m obligated
to dismiss this matter based on section 8 of the statute.

Regarding the prosecution’s request for a clarification about whether “the doctor’s testimony
rose to the level of a bona fide physician-patient relationship,” the district court stated:

Based on his testimony, he indicated that he – he read their medical
records, he saw them, and I think his total time was about half an hour totally
spent with them, which, based on my own personal experience, I don’t find
inconsistent with my own doctor. So I guess it’s a bona fide relationship.

The district court then entered an order of dismissal on the same day as the hearing, July 17,
2009.
-5-
The prosecution subsequently appealed the order of dismissal to the circuit court. On
December 18, 2009, the circuit court issued an opinion and order reversing the district court’s
order and remanding the case to the district court for further proceedings. The circuit court ruled
that the district court had abused its discretion by not binding defendants over for trial because it
had improperly acted as a trier of fact. The circuit court ruled that, in this case, the affirmative
defense must be addressed in the trial court in order for proper discovery and rebuttal to take
place.

The circuit court also considered questionable the issue regarding whether defendants
should be allowed to raise the affirmative defense at all, because defendants did not have valid
registry identification cards as required by § 4 of the MMMA, together possessed more than the
amount of marijuana permitted under § 4, and did not keep their marijuana plants in “an
enclosed, locked facility,” which is also required under § 4.

The circuit court then emphasized that there was a disputed question regarding whether
Dr. Eisenbud had a bona fide physician-patient relationship with defendants. The circuit court
concluded:

There was competent evidence in support of the bindover. For the
district judge to deny the bindover was an abuse of discretion. Specifically, the
district judge failed to properly exercise his judgment by relying solely on Dr.
Eisenbud’s testimony, and by ignoring the evidence presented by the People
regarding defendants’ actions that showed that they did not meet the criteria of the
affirmative defense. The evidence in support of the affirmative defense was not
developed sufficiently to support the district judge’s decision to deny the
bindover.

III. A REGISTRY IDENTIFICATION CARD IS NOT REQUIRED FOR A § 8 DEFENSE
Defendants argue that the circuit court erred in ruling that because defendants did not
obtain a registry identification card in order to satisfy the conditions of § 4 of the MMMA, they
could not assert the affirmative defense contained in § 8.4

A. STANDARD OF REVIEW
This issue presents a question of statutory interpretation. We review issues of statutory
interpretation de novo. People v Stone Transport, Inc, 241 Mich App 49, 50; 613 NW2d 737
(2000). Generally, the primary objective in construing a statute is to ascertain and give effect to
the Legislature’s intent. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). The
MMMA was enacted as a result of an initiative adopted by the voters. “The words of an
initiative law are given their ordinary and customary meaning as would have been understood by
4
The circuit court’s ruling was somewhat ambiguous with regard to this issue; it stated that “it is
questionable whether Defendants are entitled to assert the affirmative defense contained in the
MMMA.”
-6-
the voters.” Welch Foods, Inc v Attorney General, 213 Mich App 459, 461; 540 NW2d 693
(1995). We presume that the meaning as plainly expressed in the statute is what was intended.
Id. This Court must avoid a construction that would render any part of a statute surplusage or
nugatory, and “ we must consider both the plain meaning of the critical words or phrases as well
as their placement and purpose in the statutory scheme.” People v Williams, 268 Mich App 416,
425-426; 707 NW2d 624 (2005).

B. ANALYSIS
This issue involves sections 4, 7, and 8 of the MMMA. Section 4 provides, in relevant
part:

(a) A qualifying patient who has been issued and possesses a registry
identification card shall not be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to civil penalty
or disciplinary action by a business or occupational or professional licensing
board or bureau, for the medical use of marihuana in accordance with this act,
provided that the qualifying patient possesses an amount of marihuana that does
not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not
specified that a primary caregiver will be allowed under state law to cultivate
marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed,
locked facility. Any incidental amount of seeds, stalks, and unusable roots shall
also be allowed under state law and shall not be included in this amount.
***

(c) A person shall not be denied custody or visitation of a minor for acting
in accordance with this act, unless the person’s behavior is such that it creates an
unreasonable danger to the minor that can be clearly articulated and substantiated.

(d) There shall be a presumption that a qualifying patient or primary
caregiver is engaged in the medical use of marihuana in accordance with this act
if the qualifying patient or primary caregiver:

(1) is in possession of a registry identification card; and

(2) is in possession of an amount of marihuana that does not exceed the
amount allowed under this act. 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.[5] [MCL
333.26424.]
5
It is not clear how the immunity from arrest in § 4(a) interplays with the rebuttable presumption
in § 4(c)(2). However, this issue is not before the Court today.

-7-
Section 8 provides:

(a) Except as provided in section 7, 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:

(1) A physician has stated that, in the physician’s professional opinion,
after having completed a full assessment of the patient’s medical history and
current medical condition made in the course of a bona fide physician-patient
relationship, the patient is likely to receive therapeutic or palliative benefit from
the medical use of marihuana to treat or alleviate the patient’s serious or
debilitating medical condition or symptoms of the patient’s serious or debilitating
medical condition;

(2) The patient and the patient’s primary caregiver, if any, were
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;

and
(3) The patient and the patient’s primary caregiver, if any, were engaged
in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or
transportation of marihuana or paraphernalia relating to the use of marihuana to
treat or alleviate the patient’s serious or debilitating medical condition or
symptoms of the patient’s serious or debilitating medical condition.

(b) A person may assert the medical purpose for using marihuana in a
motion to dismiss, and the charges shall be dismissed following an evidentiary
hearing where the person shows the elements listed in subsection (a).

(c) If a patient or a patient’s primary caregiver demonstrates the patient’s
medical purpose for using marihuana pursuant to this section, the patient and the
patient’s primary caregiver shall not be subject to the following for the patient's
medical use of marihuana:

(1) disciplinary action by a business or occupational or professional
licensing board or bureau; or

(2) forfeiture of any interest in or right to property. [MCL 333.26428.]

As an initial matter, the plain language of § 8 does not place any restriction on
defendants’ raising of the affirmative defense. Nevertheless, the prosecution argues that the
affirmative defense under § 8 is unavailable to defendants because they did not possess valid
registry identification cards at the time of the offense, in violation of § 4.
The prosecution bases its position on the language in § 8(a) that provides:
-8-
Except as provided in section 7, 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 . . . . [MCL 333.26428(a) (emphasis added).]

Section 7(b) provides a host of instances where the protection of the affirmative defense
under § 8 would not be permitted, but none of those situations are at issue in this case. See MCL
333.26427(b).6 However, the prosecution points to § 7(a), which provides that “ the medical
6
Section 7 states:

(a) The medical use of marihuana is allowed under state law to the extent
that it is carried out in accordance with the provisions of this act.

(b) This act shall not permit any person to do any of the following:

(1) Undertake any task under the influence of marihuana, when doing so
would constitute negligence or professional malpractice.

(2) Possess marihuana, or otherwise engage in the medical use of
marihuana:

(A) in a school bus;
(B) on the grounds of any preschool or primary or secondary school; or
(C) in any correctional facility.

(3) Smoke marihuana:

(A) on any form of public transportation; or
(B) in any public place.

(4) Operate, navigate, or be in actual physical control of any motor
vehicle, aircraft, or motorboat while under the influence of marihuana.

(5) Use marihuana if that person does not have a serious or debilitating
medical condition.

(c) Nothing in this act shall be construed to require:

(1) A government medical assistance program or commercial or non-profit
health insurer to reimburse a person for costs associated with the medical use of
marihuana.

-9-
use of marihuana is allowed under state law to the extent that it is carried out in accordance with
the provisions of this act.” MCL 333.26427(a). The prosecution contends that this section
justifies its position that § 4 must be adhered to in order for a defendant to invoke § 8, because
the affirmative defense is only available to a defendant who complies with the other provisions
of the MMMA.

However, as defendants argue, this position ignores that the MMMA provides two ways
in which to show legal use of marijuana for medical purposes in accordance with the act.
Individuals may either register and obtain a registry identification card under § 4 or remain
unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in §
8.

The plain language of the MMMA supports this view. Section 4 refers to a “qualifying
patient who has been issued and possesses a registry identification card” and protects a
qualifying patient from “arrest, prosecution, or penalty in any manner . . . .”7 MCL
333.26424(a). On the other hand, § 8(a) refers only to a “patient,” not a qualifying patient, and
only permits a patient to “assert the medical purpose for using marihuana as a defense to any
prosecution involving marihuana . . . .” MCL 333.26428(a). Thus, adherence to § 4 provides
protection that differs from that of § 8. Because of the differing levels of protection in sections 4
and 8, the plain language of the statute establishes that § 8 is applicable for a patient who does
not satisfy § 4.

The language of the ballot proposal itself supports this interpretation.

proposal, Proposal 08-1, stated that the law would:

The ballot

• Permit physician approved use of marijuana by registered patients with
debilitating medical conditions including cancer, glaucoma, HIV, AIDS, hepatitis
C, MS and other conditions as may be approved by the Department of
Community Health.

(2) An employer to accommodate the ingestion of marihuana in any
workplace or any employee working while under the influence of marihuana.

(d) Fraudulent representation to a law enforcement official of any fact or
circumstance relating to the medical use of marihuana to avoid arrest or
prosecution shall be punishable by a fine of $500.00, which shall be in addition to
any other penalties that may apply for making a false statement or for the use of
marihuana other than use undertaken pursuant to this act.

(e) All other acts and parts of acts inconsistent with this act do not apply to
the medical use of marihuana as provided for by this act. [MCL 333.26427.]

7
A “ qualifying patient is defined as “a person who has been diagnosed by a physician as
having a debilitating medical condition.” MCL 333.26423(h).

-10-

• Permit registered individuals to grow limited amounts of marijuana for
qualifying patients in an enclosed, locked facility,

• Require Department of Community Health to establish an identification card
system for patients qualified to use marijuana and individuals qualified to grow
marijuana.

• Permit registered and unregistered patients and primary caregivers to assert
medical reasons for using marijuana as a defense to any prosecution involving
marijuana. [Emphasis added.]

The ballot proposal explicitly informed voters that the law would permit registered and
unregistered patients to assert medical reasons for using marijuana as a defense to any
prosecution involving marijuana. The language supports the view that registered patients under
§ 4 and unregistered patients under § 8 would be able to assert medical use of marijuana as a
defense. Accordingly, we hold that the district court did not err by permitting defendants to raise
the affirmative defense even though neither satisfied the registry-identification-card requirement
of § 4.8

IV. THE CIRCUIT COURT PROPERLY REVERSED THE BINDOVER DECISION
Defendants next contend that the circuit court erred by ruling that the district court was
precluded from ruling that defendants’ use of medical marijuana was permitted under the
MMMA. We find no basis on which to reverse the circuit court’s disposition, because there are
indeed triable issues in this case, and the district court improperly acted as a trier of fact in
denying the bindover.

A. STANDARD OF REVIEW
“A district court’s ruling that alleged conduct falls within the scope of a criminal law is a
question of law that is reviewed de novo, but a decision to bind over a defendant based on the
factual sufficiency of the evidence is reviewed for an abuse of discretion.” People v Henderson,
282 Mich App 307, 312; 765 NW2d 619 (2009). When reviewing the bindover decision, a
circuit court must consider the entire record of the preliminary examination and not substitute its
judgment for that of the district court. Id. at 312-313. This Court reviews the bindover decision
de novo to determine whether the district court abused its discretion, giving no deference to the
circuit court’s decision. Id.
8
Although defendants do not raise this as an issue on appeal, the prosecution argues that a § 8
defense was not viable because the marijuana in question was not kept in an “enclosed, locked
facility.” We note that the language concerning an “enclosed, locked facility” is set forth in the
context of § 4, not in the context of § 8. Nevertheless, as with the discovery issue mentioned in
footnote 11, we decline to address this issue without the benefit of full briefing by the parties.
Presumably further proceedings will take place with regard to this issue.
-11-
B. ANALYSIS
“The primary function of a preliminary examination is to determine if a crime has been
committed and, if so, if there is probable cause to believe that the defendant committed it.”
People v Glass (After Remand), 464 Mich 266, 277; 627 NW2d 261 (2001). Probable cause is
established by evidence “sufficient to cause a person of ordinary prudence and caution to
conscientiously entertain a reasonable belief of the accused’s guilt.” People v Yost, 468 Mich
122, 126; 659 NW2d 604 (2003) (citation and quotation marks omitted). In order to establish
that a crime has been committed, a prosecutor need not prove each element beyond a reasonable
doubt, but must present some evidence of each element. See id. If the evidence conflicts or
raises a reasonable doubt concerning the defendant’s guilt, the defendant should nevertheless be
bound over for trial, where the trier of fact can resolve the questions. Id. at 128.

This Court has recognized “that affirmative defenses in criminal cases should typically be
presented and considered at trial and that a preliminary examination is not a trial.” People v
Waltonen, 272 Mich App 678, 690 n 5; 728 NW2d 881 (2006). In Waltonen, this Court went on
to note that in a situation where the defense is complete and there are not conflicting facts
regarding the defense, it could be argued that there would be no probable cause to believe a
crime was committed. Id.

The district court must consider not only the weight and competency of the evidence, but
also the credibility of the witnesses, and it may consider evidence in defense.9 People v King,
412 Mich 145, 153-154; 312 NW2d 629 (1981). As noted, however, the district court cannot
discharge a defendant if the evidence conflicts or raises reasonable doubt concerning a
defendant’s guilt, because this presents an issue for the trier of fact. Id.
Here, there was evidence that the defense was not complete, cf. Waltonen, 272 Mich App
at 690 n 5, and there were colorable issues for the trier of fact, see King, 412 Mich at 153-154.
Specifically, we find that there were colorable issues concerning whether a bona fide physician-
patient relationship existed, whether the amount of marijuana defendants possessed was
reasonable under the statute, whether the marijuana in question was being used for medical
purposes, and whether defendants suffered from serious or debilitating medical conditions.

(1) BONA FIDE PHYSICIAN-PATIENT RELATIONSHIP
MCL 333.26428(a)(1) states that a medical-purpose defense shall be presumed valid if:

A physician has stated that, in the physician’s professional opinion, after
having completed a full assessment of the patient’s medical history and current

9
With regard to preliminary examinations, MCL 766.12 permits “witnesses for the prisoner, if
he [has] any . . . [to] be sworn, examined and cross-examined,” and MCR 6.110(C) permits
“ each party . . . [to] subpoena witnesses, offer proofs, and examine and cross-examine
witnesses at the preliminary examination.”

-12-
medical condition made in the course of a bona fide physician-patient
relationship, the patient is likely to receive therapeutic or palliative benefit from
the medical use of marihuana to treat or alleviate the patient’s serious or
debilitating medical condition or symptoms of the patient’s serious or debilitating
medical condition . . . .

We find that there was evidence in this particular case that the doctor’s recommendations
did not result from assessments made in the course of bona fide physician-patient relationships.10

Dr. Eisenbud testified that he was board-certified in ophthalmology.

He answered:
“That’s right,” when asked the following question:

“So, your sole employment, at this point, is to reviewpeople to see whether or not you think they can have marijuana under the Michigan MedicalMarijuana -- or any other medical marijuana law, correct?” He testified that he saw Clark and Redden once each and was currently working in at least six states. He refused to divulge what defendants’ debilitating medical conditions were. Dr. Eisenbud indicated that he was not
scheduled to see defendants again until they were due to renew their documentation for using
marijuana for medical purposes.

The MMMA does not define the phrase “bona fide physician-patient relationship.”

When words or phrases are not defined in a statute, a dictionary may be consulted. People v
Peals, 476 Mich 636, 641; 720 NW2d 196 (2006).

Random House Webster’s College Dictionary (1997) defines “bona fide” as “1. made, done, etc., in good faith; without deception or fraud. 2. authentic; genuine; real.”

We do not intend to legislate from the bench and define
exactly what must take place in order for a bona fide physician-patient relationship to exist. We
do find, however, that the specific facts in this case, as set forth in the prior paragraph, were
sufficient to raise an issue for the trier of fact concerning whether the doctor’s recommendations
resulted from assessments made in the course of bona fide physician-patient relationships
between Dr. Eisenbud and Redden and between Dr. Eisenbud and Clark.

Indeed, the facts at least raise an inference that defendants saw Dr. Eisenbud not for good-faith medical treatment but in order to obtain marijuana under false pretenses.

Accordingly, the district court erred in finding as a matter of law that defendants had satisfied all the requirements of a § 8 defense.

(2) AMOUNT OF MARIJUANA POSSESSED
MCL 333.26428(a)(2) states that the § 8 affirmative defense will be presumed valid if
[t]he patient and the patient’s primary caregiver, if any, were 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
10

We reject defendants’ argument that the prosecution waived the issue concerning whether a
bona fide physician-patient relationship existed. First, the prosecution clearly did raise the issue
below. Second, the district court had a duty to determine whether there was an issue for trial; in
doing so, it was obligated to review § 8 in its entirety to determine whether any triable issues
existed.

-13-
treating or alleviating the patient’s serious or debilitating medical condition or
symptoms of the patient’s serious or debilitating medical condition . . . .
There was no testimony or evidence presented regarding whether the amount of marijuana
possessed by defendants was “not more than was reasonably necessary to ensure the
uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s . . .
condition or symptoms . . . .” Id. Defendants were found in possession of approximately one
and one-half ounces of marijuana and 21 marijuana plants. The district court addressed this
element of the affirmative defense and concluded that because the amount of marijuana, when
divided between defendants, was less than that of the two and one-half ounces and 12 marijuana
plants permitted under § 4, this portion of the affirmative defense was satisfied.

However, the plain language of the statute does not support that the amount stated in § 4
is equivalent to the “reasonably necessary” amount under § 8(a)(2). Indeed, if the intent of the
statute were to have the amount in § 4 apply to § 8, the § 4 amount would have been reinserted
into § 8(a)(2), instead of the language concerning an amount “reasonably necessary to ensure . . .
uninterrupted availability . . . .” MCL 333.26428(a)(2). Without any evidence on this element of
the affirmative defense, the district court could not have properly found the affirmative defense
established as a matter of law. There was a colorable question of fact concerning whether the
amount possessed was in accordance with the statute.

(3) PURPOSE OF MARIJUANA IN QUESTION
MCL 333.26428(a)(3) indicates that, for the medical-purpose defense to be valid,
evidence must show that
the patient and the patient’s primary caregiver, if any, were engaged in
the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or
transportation of marihuana or paraphernalia relating to the use of marihuana to
treat or alleviate the patient’s serious or debilitating medical condition or
symptoms of the patient’s serious or debilitating medical condition.

Here, there was testimony and evidence that Redden and Clark could benefit from the
medical use of marijuana. However, although an inference could be made that the specific
marijuana they allegedly manufactured was being manufactured for medical purposes, there was
no explicit testimony or other evidence establishing this fact. Therefore, we find that there was
considerable doubt concerning whether defendants satisfied this portion of the defense, see King,
412 Mich at 153-154, and the district court therefore should not have concluded that the defense
was established as a matter of law.

(4) SERIOUS OR DEBILITATING MEDICAL CONDITIONS
Dr. Eisenbud did not identify the nature of defendants’ debilitating medical conditions,
beyond stating that Redden had “pain” and Clark had “nausea.” Section § 7(b)(5) states that the
MMMA “shall not permit any person to . . . use marihuana if that person does not have a
serious or debilitating medical condition.” MCL 333.26427(b)(5). Section 3, the definitions
section of the MMMA, states:
-14-

(a) “Debilitating medical condition” means 1 or more of the following:

(1) Cancer, glaucoma, positive status for human immunodeficiency virus,
acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis,
Crohn’s disease, agitation of Alzheimer’s disease, nail patella, or the treatment of
these conditions.

(2) A chronic or debilitating disease or medical condition or its treatment
that produces 1 or more of the following: cachexia or wasting syndrome; severe
and chronic pain; severe nausea; seizures, including but not limited to those
characteristic of epilepsy; or severe and persistent muscle spasms, including but
not limited to those characteristic of multiple sclerosis.

(3) Any other medical condition or its treatment approved by the
department, as provided for in section 5(a). [MCL 333.26423.]

Section 3 does not define the phrase “serious medical condition.” MCL 333.26423.
In his written documents, Dr. Eisenbud stated that each defendant was likely to receive
benefit from marijuana to “treat or alleviate a serious or debilitating medical condition . . . .”

However, he stated only that he was treating each defendant for “a terminal illness or a
debilitating condition as defined in Michigan’s medical marijuana law.” He then stated at the
preliminary examination that Redden had a “debilitating condition.” When asked what the
condition was, he replied “pain.” Dr. Eisenbud stated that Clark’s debilitating condition was
“nausea.”

We find that defendants did not establish at the preliminary examination as a matter of
law that they had serious or debilitating medical conditions as required by the MMMA. With
regard to the phrase “serious medical condition,” Random House Webster’s College Dictionary
(1997) defines “serious,” in this context, as “weighty, important, or significant” and “giving
cause for apprehension; critical or threatening[.]” Without knowing the nature of defendants’
medical conditions, it is not possible to determine whether they are “serious.” With regard to the
phrase “debilitating medical condition,” MCL 333.26423(a)(2) indicates that this phrase includes
“ achronic or debilitating disease or medical condition or its treatment that produces 1 or more
of the following: . . . severe and chronic pain; severe nausea . . . .” Dr. Eisenbud indicated that
Redden suffered merely from “pain” and that Clark suffered merely from “nausea.” This
evidence was not sufficient to satisfy the definition set forth in MCL 333.26423(a)(2). The
district court therefore erred in concluding that defendants satisfied the requirements of the
MMMA as a matter of law. Whether each defendant suffered from a serious or debilitating
medical condition is yet another matter for further proceedings.11
11

Defendants tangentially raise the issue regarding whether the prosecution is entitled to
discovery of their medical records. The prosecution does not substantively address this argument
in its appellate brief. We find that this issue is not currently ripe for review and decline to
address it without the benefit of full briefing by the parties. The circuit court was evidently

-15-
The circuit court’s decision to reverse the district court’s bindover ruling is affirmed, and
this case is remanded for further proceedings. We do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ Donald S. Owens

PEOPLE v. KING

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
LARRY STEVEN KING, Defendant-Appellee.

No. 294682.

Court of Appeals of Michigan.

February 3, 2011, 9:00 a.m.

Before: SAWYER, P.J., and FITZGERALD and SAAD, JJ.

--------------------------------------------------------------------------------

SAAD, J.

The prosecutor appeals the trial court's order that dismissed two counts against defendant for the manufacture of a controlled substance — marijuana, MCL 333.7401(2)(d)(iii). For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion.

I. NATURE OF THE CASE

Defendant, who was arrested for illegally growing marijuana, possesses a registry identification card under the Medical Marihuana Act (MMA), MCL 333.26421 et seq., and claims that he is entitled to the limited protections of the MMA because he complied with its statutory provisions. The trial court ruled that the charges against defendant must be dismissed because he satisfied the elements of the affirmative defense outlined in § 8 of the MMA. MCL 333.26428. Though defendant timely raised a § 8 defense, he did not fulfill the requirements of § 8. Clearly, by its reference to § 7, § 8 required defendant to comply with other applicable sections of the MMA, which includes the growing requirements set forth in § 4. MCL 333.26427; 333.26424. Furthermore, as a registered cardholder, defendant must comply with the growing provisions of § 4. MCL 333.26424(a). Also, defendant maintains, and the trial court erroneously ruled, that defendant complied with § 4 by growing the marijuana in an "enclosed, locked facility." We disagree that defendant adhered to the requirements of § 4 of the MMA and therefore hold that defendant is not entitled to the benefit of the protections of the MMA. The trial court abused its discretion when it dismissed the charges against him.

II. FACTS

The Michigan State Police received an anonymous tip that someone was growing marijuana in the backyard of a house at 710 Grace Street in Owosso. On May 13, 2009, Detective Sergeant Brian Fox and Deputy Jed Eisenberger drove to the address and saw a chain-link dog kennel behind the house. Though the sides of the kennel were covered with black plastic, some areas of the kennel were uncovered and, using binoculars, Deputy Eisenberger could see marijuana plants growing inside.

Detective Fox and Deputy Eisenberger went to the door of the house and spoke to defendant, who produced a medical marijuana card that was issued on April 20, 2009. The officers asked defendant to show them the marijuana plants and defendant unlocked a chain lock on the kennel. The kennel was six feet tall, but had an open top and was not anchored to the ground. Defendant disclosed that he had more marijuana plants inside the house. After they obtained a search warrant, the officers found marijuana plants growing inside defendant's unlocked living room closet.

As noted, defendant was charged with two counts of manufacturing marijuana. After the prosecutor presented his proofs at the preliminary examination, defendant moved to dismiss the charges under the affirmative defense section MMA. The district court denied defendant's motion and bound defendant over for trial. In the circuit court, defendant filed a motion to quash the bindover or to suppress evidence obtained during the search. He also sought to dismiss the charges on various grounds. Among other arguments, defendant maintained that the search warrant was invalid because it was based on hearsay. Defendant also sought to assert an affirmative defense under the MMA. In response, the prosecutor argued that the search warrant was valid and that defendant failed to comply with the MMA because he did not keep the marijuana in an enclosed, locked facility pursuant to MCL 333.26424(a).

The trial court issued an opinion and order on September 30, 2009. The court ruled that, because defendant had a medical marijuana registry identification card and kept "a legal quantity" of marijuana in an enclosed, locked facility, there was no probable cause to support the issuance of the search warrant for his home. Nonetheless, the court ruled that the evidence seized during the search should not be suppressed because the officers acted in good faith reliance on the warrant. However, the court held that the officers should not have seized the marijuana because defendant complied with the requirements of the MMA. For the same reason, the court ruled that defendant was entitled to assert an affirmative defense under the MMA and it granted defendant's motion to dismiss the charges.

III. ANALYSIS

"We review a trial court's decision to grant or deny a motion to dismiss charges for an abuse of discretion." People v Kevorkian, 248 Mich.App. 373, 383; 639 N.W.2d 291 (2001). The prosecution contends that the trial court incorrectly interpreted the meaning of "enclosed, locked facility" under MMA subsections MCL 333.26424(a) and MCL 333.26423(c) and that it erred when it ruled that defendant complied with the statute. We review questions of statutory interpretation de novo. People v Feezel, 486 Mich. 184, 205; 783 N.W.2d 67 (2010). "When interpreting statutes, our goal is to give effect to the intent of the Legislature by reviewing the plain language of the statute." People v Perkins, 473 Mich. 626, 630; 703 N.W.2d 448 (2005).

Again, the prosecutor charged defendant with violating Michigan's controlled substances act by growing marijuana, but defendant maintains that he is entitled to the protections from prosecution laid out in the recently-enacted MMA. By passing statutes that criminalize the possession, use, and manufacture of controlled substances, including marijuana, our state and federal Legislatures have determined that such substances are harmful and prohibited.1 As Judge O'Connell observed in his concurrence in People v Redden, ___ Mich App ___; ___ NW2d ___ (2010) (O'CONNELL, J, concurring):

[T]he [MMA] does not create any sort of affirmative right under state law to use or possess marijuana. That drug remains a Schedule 1 substance under the Public Health Code, MCL 333.7212(1)(c), meaning that "the substance has a high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision," MCL 333.7211. The [MMA] does not repeal any drug laws contained in the Public Health Code, and all persons under this state's jurisdiction remain subject to them. Accordingly, mere possession of marijuana remains a misdemeanor offense, MCL 333.7403(2)(d), and the manufacture of marijuana remains a felony, MCL 333.7401(2)(d).

By its terms, the MMA does not abrogate state criminal prohibitions on the manufacture of marijuana. Rather, the MMA "merely provides a procedure through which seriously ill individuals using marijuana for its palliative effects can be identified and protected from prosecution under state law." Redden, ___ Mich App ___ (O'CONNELL, J, concurring). Although these individuals continue to violate the Public Health Code by using marijuana, the MMA sets forth narrow circumstances under which they can avoid criminal liability. In other words, the MMA constitutes a determination by the people of this state that there should exist a very limited, highly restricted exception to the statutory proscription against the manufacture and use of marijuana in Michigan. As such, the MMA grants narrowly tailored protections to qualified persons as defined in the act if the marijuana is grown and used for certain narrowly defined medical purposes. Further, the growing of marijuana is tightly constrained by specific provisions that mandate how, where, for what purpose, and how much marijuana may be grown.

Section 8 of the MMA provides a defendant with an opportunity to assert a defense to the controlled substance laws if the conditions set forth in § 8 are followed. MCL 333.26428. Moreover, § 8 incorporates by reference other provisions of the MMA with which a defendant must comply. Section 8 specifically states that a patient may assert a medical purpose defense to any marijuana prosecution, "[e]xcept as provided in Section 7 . . . ." Section 7(a) provides that "[t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act." (Emphasis added.) In Redden, this Court held that the statute permits an unregistered patient to assert the affirmative defense under § 8 if he or she meets the requirements of § 8. Redden, ___ Mich App ___. We hold that § 8 permits a "registered qualifying patient" to raise an affirmative defense under § 8, just as an unregistered defendant may under Redden. We further hold that the express reference to § 7 and § 7(a)'s statement that medical use of marijuana must be carried out in accordance with the provisions of the MMA, requires defendant to comply with the growing provisions in § 4. And, in any case, § 4 applies to defendant because he grew marijuana under a claim that he is a qualifying patient in possession of a registry identification card.2 We hold that, because defendant did not comply with § 4, he also failed to meet the requirements of § 8 and therefore, he is not entitled to the affirmative defense in § 8 and he is not entitled to dismissal of the charges.

Section 4, MCL 333.26424(a) provides, in relevant part:

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility.

The MMA defines "enclosed, locked facility" as follows:

"Enclosed, locked facility" means a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient. [MCL 333.26423(c).]

We hold that the trial court incorrectly interpreted and applied the phrase "enclosed, locked facility." As this Court recently opined in Redden:

This issue presents a question of statutory interpretation. We review issues of statutory interpretation de novo. People v Stone Transport, Inc, 241 Mich.App. 49, 50; 613 N.W.2d 737 (2000). Generally, the primary objective in construing a statute is to ascertain and give effect to the Legislature's intent. People v Williams, 475 Mich. 245, 250; 716 N.W.2d 208 (2006). The [MMA] was enacted as a result of an initiative adopted by the voters. "The words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters." Welch Foods, Inc v Attorney General, 213 Mich.App. 459, 461; 540 N.W.2d 693 (1995). We presume that the meaning as plainly expressed in the statute is what was intended. Id. This Court must avoid a construction that would render any part of a statute surplusage or nugatory, and "[w]e must consider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme." People v Williams, 268 Mich.App. 416, 425-426; 707 N.W.2d 624 (2005).

As noted, the phrase "enclosed, locked facility" is defined by the MMA to mean "a closet, room, or other enclosed area equipped with locks or other security devices . . . ." MCL 333.26423(c). As described above, defendant grew several marijuana plants in his backyard, within a chain-link dog kennel that was only partially covered on the sides with black plastic. The kennel had a lock on the chain-link door, but had no fencing or other material over the top and it could be lifted off the ground. Defendant maintains that the kennel constitutes an "enclosed area" within the definition of "enclosed, locked facility" and, therefore, he complied with the statute. The trial court simply based its interpretation of "other enclosed area" on the definition of "enclose" in Black's Law Dictionary, and concluded, without analysis, that the kennel complied with this definition.3

The trial court's interpretation and application of the phrase "enclosed, locked facility" is contrary to settled rules of statutory construction. The statutory reference to "other enclosed area" within the definition of "enclosed, locked facility" is a general phrase that follows the words "closet" and "room," both of which have specific, limited meanings and which have the common characteristic of being stationery and closed on all sides. It would frustrate the intent of the MMA to read the definition of "enclosed, locked facility" to mean something akin to a moveable fence based simply on a dictionary definition when the enumerated examples that precede "other enclosed area" suggest a much greater level of protected confinement.

Our courts must give effect to the language in the statute and to elucidate the intent of the voters by considering not only the words themselves, but their placement and purpose in the statutory scheme. To that end, it is appropriate here to apply the doctrine of statutory construction ejusdem generis, which provides that "the scope of a broad general term following a series of items is construed as including `things of the same kind, class, character, or nature as those specifically enumerated . . . .'" People v Thomas, 263 Mich.App. 70, 76; 687 N.W.2d 598 (2004), quoting Weakland v Toledo Engineering Co, Inc, 467 Mich. 344, 349; 656 N.W.2d 175 (2003), and Huggett v Dep't of Natural Resources, 464 Mich. 711, 718-719; 629 N.W.2d 915 (2001). Under the doctrine, "other enclosed area" would, thus, be limited to things of the same kind or character as a closet or room. An open, moveable, chain-link kennel is not of the same kind or character as a closet or room. We further observe that the examples given in the statutory definition are followed by the additional requirement that the closet, room or other enclosed area be equipped with locks or other security devices that permit access only by the registered caregiver or qualifying patient. In context, the clear purpose of specifying that the marijuana be kept within a secure facility to ensure that it is inaccessible to anyone other than a licensed grower or a qualifying patient, as defined in the MMA for the limited purpose set forth in the MMA. Moreover, these provisions are obviously meant to prevent access by the general public and, especially, juveniles. This reading of the MMA is consistent with its limited protections for a narrowly defined group of medical users of a controlled substance, the general cultivation and use of which remains illegal under both state and federal law. Reading the statute broadly as the trial court did to permit marijuana to be kept in the type of space used by defendant would, quite simply, undermine the plain language and purpose of the statutory provisions.

We further hold that, though the plants inside defendant's home were kept in a closet, which is the type of enclosure specifically enumerated in the statute, it is undisputed that there was no lock on the closet door. The statute explicitly states that the enclosed area itself must have a lock or other security device to prevent access by anyone other than the person licensed to grow marijuana under the MMA. An unlocked closet would permit access by anyone else within the home and it appears that the home itself was not secured by locks on all of the doors. The trial court's conclusion that defendant acted as a "security device" for the marijuana growing inside his home is pure sophistry and belied by defense counsel's unsurprising admission at oral argument that, at times, defendant left the property, thus leaving the marijuana without a "security device" and accessible to someone other than defendant as the registered patient.

Because defendant failed to comply with the strict requirements in the MMA that he keep the marijuana in an "enclosed, locked facility," he is subject to prosecution under MCL 333.7401(2)(d)(iii), and the trial court abused its discretion by dismissing the charges against defendant.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

FITZGERALD, J. (dissenting).

I respectfully dissent.

The police had received an anonymous tip that defendant was growing marijuana in his back yard. The police then drove to the defendant's neighbor's driveway. The police, using binoculars, were able to observe marijuana plants growing in a dog kennel in defendant's back yard. The dog kennel was made of six-feet high chain link fence covered with black shrink wrap. The police were able to see into the kennel where a section of shrink wrap had been detached. The police then approached defendant's home, knocked on the door, and asked if defendant had a medical marijuana card. Defendant produced his card. The police then asked if defendant would allow them to see the plants. Defendant went back inside the house to obtain the key to the lock on the kennel. He then went with officers around the house, and opened the lock on the kennel. The officers then asked if he had more marijuana in the home. Defendant stated that he did, but that the officers would need a search warrant. The police then obtained a search warrant. Six Marijuana plants, processed marijuana, and plants in various states of processing were found inside the home.

Defendant moved to dismiss the charges of manufacturing marijuana pursuant to the Michigan Medical Marijuana Act (MMMA),1 MCL 333.26421 et seq. The MMMA was passed by referendum on November 4, 2008, and went into effect soon thereafter. The MMMA declares that, in "chang[ing] state law," the act was designed to "have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana." MCL 333.26422(b). The MMMA further declares that the laws of certain other states "do not penalize the medical use and cultivation of marihuana. Michigan joins in this effort for the health and welfare of its citizens." MCL 333.26423(c). Such declarations reveal the intent that the MMMA be used not as a sword against those who have a medical need to use marihuana, but rather as a shield.

MCL 333.26424(a) of the MMMA allows a qualifying patient who has been issued and possesses a registry identification card to posses 2.5 ounces of marijuana and to cultivate 12 marijuana plants (if the patient has not designated a primary care giver) and not be subject to arrest or prosecution for possession of the marijuana or for growing the plants. Specifically, subsection 4(a) states:

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business of occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility.

There is no dispute that defendant is a qualifying patient in possession of a valid registry card.2 The prosecution argues that defendant was not entitled to the protection of this statutory section because he was not growing his marijuana plants in "an enclosed, locked facility." In particular, the prosecution asserts that the dog kennel in defendant's backyard was not an "enclosed, locked facility" because it lacked a roof or a top and was movable. Additionally, the prosecution asserts that defendant's house was not an "enclosed, locked facility" because the back door lacked a lock.

The narrow issue before this Court is the interpretation of the term "enclosed, locked facility" as used in MCL 333.26423(c) of the MMMA. Questions of statutory interpretation are reviewed de novo. People v Feezel, 486 Mich. 184, 205; 783 N.W.2d 67 (2010).

The purpose of statutory construction is to discern and give effect to the intent of the Legislature. Feezel, 486 Mich at 205. The MMMA was enacted as a result of an initiative adopted by the voters. The words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters. In the absence of a statutorily provided definition, a statutory term will be given its ordinary meaning. People v Peals, 476 Mich. 636, 641; 720 N.W.2d 196 (2006). The ordinary meaning of a term may be discerned by consideration of dictionary definitions. People v Perkins, 473 Mich. 626, 639; 703 N.W.2d 448 (2005). This Court presumes that the meaning as plainly expressed in the statute is what was intended. People v Redden, ___ Mich App ___; ___ NW2d ___ (2010), slip op at 6-7.

The MMMA defines "enclosed, locked facility" as follows:

"Enclosed, locked facility" means a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient. [MCL 333.26423(c).]

Clearly, the outdoor dog kennel could only qualify as an enclosed, locked facility under the term "other enclosed area." MCL 333.26423(c) does not define the word "enclosed." Random House Webster's College Dictionary contains the following definition of "enclose": "1. to close in on all sides; shut in. 2. to surround, as with a fence; to enclose land. 3. to insert in the same envelope, package, etc.: to enclose a check. 4. to contain or hold." The Random House Webster's College Dictionary (1997). Under this definition, the dog kennel in this case would fall under the definition of "other enclosed area." The chain link walls of the kennel were six feet high and the area surrounded by the chain link walls was closed in on all sides. Like a fence that surrounds land (as in the dictionary example above), the kennel did not have a top, but, by dictionary definition, a top is not required to "enclose" something."3 Defendant covered the walls of the kennel with black shrink-wrap in an attempt to conceal the contents of the enclosure. Additionally, the kennel was equipped with a lock, and defendant maintained the key to the lock, thereby satisfying the additional requirement that the "other enclosed area" be equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient. MCL 333.26423(c). Thus, in my view, the dog kennel qualifies as an "enclosed, locked facility."

The prosecution further argues that defendant's house was not an "enclosed, locked facility" because the back door did not have a lock. MCL 333.26423(c) provides that such a facility be equipped with "locks" or "other security devices." The term "other security devices" is not defined in the MMMA. The dictionary defines a device" as "1. A thing made for a particular purpose, esp. a mechanical electronic invention or contrivance." The Random House Webster's College Dictionary (1997). Given that the statutory definition of an "enclosed, locked facility" allows for not only locks, but also "other security devices" to be used, the term "locked" should be broadly interpreted. Indeed, it appears from the use of the term "other security devices" that the intent is that the facility be "secure."

Here, Michigan State Police Detective Sergeant Brian Fox presented testimony at the preliminary examination that the back door of defendant's home did not have a knob and that he did not "think" that defendant was able "to lock or to keep the house secure." However, the lack of a knob on the back door does not necessarily mean that defendant's house was not secure. As the statutory definition makes clear, the door could have been secured by other devices. Some other "contrivance for securing or fastening" would satisfy the statute. Although Fox testified that he did not see a board that kept the door closed from the inside, that does not mean that there lacked a mechanism to keep the door secure. In my view, in the absence of evidence that persons other than defendant had access to or actually entered the home, defendant's home satisfies the definition of "enclosed, locked facility."

Furthermore, the definition of "enclosed, locked facility" reveals the people's intent that the marijuana being cultivated be accessible only by a registered primary caregiver or registered qualifying patient. In other words, the concern is that the marijuana being cultivated not be accessible by anyone other than a registered primary caregiver or registered qualifying patient. As previously noted, the declared intent of the MMMA "to protect from arrest the vast majority of seriously ill people who have a medical need to use marihuana." Rather than having a rigid definition of "other enclosed area" and "locked" or "other security device," the true key to determining whether defendant's dog kennel and home were "enclosed, locked facilities" for purposes of the MMMA is to determine whether access to the marijuana in the dog kennel and the house was permitted "only by a primary care giver or registered qualifying patient." MCL 333.26423(c).

The evidence in the record indicates that the dog kennel where defendant was growing marijuana was located in his backyard. The walls of the kennel were made of six feet high chain link fence wrapped in black plastic. Parts of the black plastic had blown open allowing Fox and another deputy to see defendant's marijuana from the street with the use of binoculars. The kennel was locked and Fox and the deputy were only able to access it after defendant obtained a key for the lock from his house. The prosecution made no allegations that anyone attempted to steal defendant's marijuana plants. Rather, the prosecution argued that access to the marijuana plants was not limited to defendant because someone could move the kennel or climb over the six-foot walls to access the marijuana plants. However, the evidence presented at the preliminary examination revealed that defendant had to obtain a key to gain access to the marijuana. No evidence was presented that anyone had tried to move the kennel or climb over the kennel to obtain the marijuana. In fact, no evidence was presented that anyone other than defendant had access to the marijuana. The prosecution's argument is premised solely on a set of hypothetical facts.

Similarly with defendant's house, we need not find a rigid definition for "locked" which requires the use of a key. Instead, the determination to be made is whether access to the marijuana in defendant's house was limited to defendant. Defendant refused to allow Fox and the other officer access to his house. The police obtained access to the house only by securing a search warrant. No evidence was presented that anyone other than defendant had access to the house. I would conclude that defendant was growing marijuana in accordance with the provisions of the MMMA. The evidence from the preliminary examination reveals that access to both the kennel and the house was limited to defendant, which is sufficient for purposes of MCL 333.26424.

I find it worthy to note that this is not a case involving an individual who was trying to flout the clear prohibitions of the Public Health Code and engage in recreational use of marijuana. This is a case involving an individual who went through the necessary procedure to become a qualifying patient who has been issued a valid registry identification card. The MMMA's susceptibility to multiple interpretations should not result in the use of the act as a sword, rather than a shield, under the circumstances of this case.

I would affirm the learned circuit judge's dismissal of the charges against defendant.

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Footnotes

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1. The statute at issue here, MCL 333.7401, provides, in relevant part:
(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, or a counterfeit prescription form. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.

(2) A person who violates this section as to:

***

(d) Marihuana or a mixture containing marihuana is guilty of a felony punishable as follows:

***

(iii) If the amount is less than 5 kilograms or fewer than 20 plants, by imprisonment for not more than 4 years or a fine of not more than $20,000.00, or both.

Back to Reference

2. This holding is supported by the ballot proposal itself, Proposal 08-1, which stated that certain registered patients would be permitted to cultivate marijuana within certain restrictions. The proposal specifically provided that the law would "[p]ermit registered individuals to grow limited amounts of marijuana for qualifying patients in an enclosed, locked facility."

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3. Though, we observe that the trial court cited a definition that specifies enclosure on all sides, but nonetheless concluded that the open-top kennel satisfies the definition.

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1. Although the statute spells it "marihuana," unless used in a direct quote, I have spelled it throughout as "marijuana" as that is the more commonly used spelling.

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2. The prosecution does not dispute that defendant was entitled to possess 2.5 ounces of marijuana.

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3. Contrary to the prosecution's suggestion, nothing in the statutory definition of "enclosed, locked facility" prevents the facility from being movable.

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PEOPLE v. ANDERSON

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
TED ALLEN ANDERSON, Defendant-Appellant.

No. 300641.

Court of Appeals of Michigan.

June 7, 2011, 9:05 a.m.

Before: HOEKSTRA, P.J., and MURRAY and M. J. KELLY, JJ.

--------------------------------------------------------------------------------

PER CURIAM.

In his delayed application for leave to appeal, defendant raises two alleged errors on the part of the trial court relative to the denial of his motion to dismiss. First, he argues that the trial court erred in requiring him to produce expert testimony in support of his defense to the charges, and second, that he should not have been precluded from raising his statutory defense at trial even though the trial court rejected the defense as factually unsupported after a pre-trial evidentiary hearing. As set forth below, we agree with, and therefore adopt as a unanimous opinion of this Court, sections I., II. A., and II. C. 3. of Judge KELLY'S concurring opinion. That is, we agree with Judge KELLY'S analysis and conclusion of defendant's second argument, i.e., that under these facts the trial court correctly forbade defendant from raising his defense at trial, but we provide an alternative explanation for why defendant cannot prevail on his first argument. Consequently, for the reasons stated below and partially in Judge KELLY'S opinion, we affirm.

As we noted, defendant's first argument is that the trial court erred in requiring him to produce expert testimony to establish his defense under MCL 333.26428.1 This argument cannot be sustained, however, because the factual underpinning is incorrect. As the prosecution notes in its brief on appeal, the trial court did not require defendant to produce an expert in order to prevail on his defense. Instead, as the trial court's opinion makes clear, the trial court indicated that an expert would have been able to provide relevant testimony. But, in denying defendant's motion, the court considered both defendant's testimony and the testimony of his family physician, but rejected both as either not being credible (defendant) or not being qualified to testify on the subject (defendant's physician). In the end, however, the court held that in the absence of relevant expert testimony and any other credible testimony supporting the defense, defendant could not establish a defense:

The record is devoid of any explanation why growing marihuana outdoors in the open and having marihuana in amounts well in excess of the presumptive limit was reasonably necessary to treat defendant's back pain. The court holds that expert testimony is relevant on this issue. This is not something a lay person would know. MRE 702. The defendant's opinion on what he had for self-treatment is not creditable [sic]. The court finds on the proofs presented that his family doctor was not qualified to offer an opinion on this questions [sic] because there is no evidence she has experience working with patients for whom she has recommended marihuana, including experience with dosage. Her opinion is unpersuasive. There is no other evidence on this issue except the presumption within the Act. See MRE 301. Because the court has concluded the amount of marihuana exceeds the amount reasonably necessary, it need not resolve whether in fact the defendant otherwise has met the requirement for a Section 8 defense, or to what extent expert testimony is relevant to the other two requirements of Section 8.

We see nothing in this opinion where the trial court ruled as a matter of law that defendant's motion was being denied because of the absence of an expert that was qualified to testify about the amount of marijuana reasonably necessary for defendant's medical condition. Rather, the trial court analyzed the other evidence presented by defendant, i.e., his testimony and that of his physician, and after rejecting that evidence as well recognizing a lack of expert testimony, denied defendant's motion. Hence, defendant's assertion that the trial court required him to produce an expert was incorrect, and as that was the basis for his argument, he cannot prevail.2

Affirmed.

M. J. KELLY, J. (concurring).

In this interlocutory appeal, defendant Ted Allen Anderson appeals by leave granted the trial court's opinion and order denying his motion to dismiss the prosecution's charge that he unlawfully manufactured marijuana, see MCL 333.7401(2)(d)(iii), and barring him from arguing or presenting evidence that he had a valid defense to that charge under the Michigan Medical Marihuana Act (the MMA)1, see MCL 333.26421 et seq. On appeal, this Court must determine whether the trial court erred to the extent that it required Anderson to prove his defense under MCL 333.26428 with expert testimony and whether it erred when it barred Anderson from presenting that defense at his upcoming trial. I conclude that Anderson could not—as a matter of law—establish the elements of the defense provided under MCL 333.26428. As such, the trial court did not err when it denied Anderson's motion and did not err when it prohibited Anderson from presenting that defense at his trial. For this reason, I would affirm the trial court's order.

I. BASIC FACTS AND PROCEDURAL HISTORY

Anderson testified that had a degenerative back condition and that, in 1997, he further injured his back while working as a baker. He sought treatment through his family physician, Shannon McKeeby, M.D.

Anderson said that his back pain made it difficult to get up and down stairs and to bend over and pick things up. He could not even pick up his grandchildren. He exacerbated his "condition" with a slip and fall at work in 2007. The fall worsened his condition to the point where he had to quit his job. He testified that, after the fall, he pretty much stopped gardening and it was even hard to get in and out of the shower. He said he was in "a lot more pain." Although he used Methadone for the pain, nothing helps with his sciatica. When his sciatic nerve gets impinged it sends a shooting pain down his leg "all the way to my foot" and "it feels like . . . I'm standing on a hot poker."

Dr. McKeeby testified that she had been treating Anderson at her family practice for at least ten years. In addition to her general practice, she treated Anderson for chronic back pain. She stated that an MRI revealed that Anderson had a bulging disc in his back and that the disc was impinging his nerves. She treated Anderson using different "modalities," but he was still in "significant pain," even with the medications that she was using to "try and control his pain." She said that Anderson used Methadone and Vicodin to control his back pain and that he had used MS Contin and Percocet in the past.

McKeeby said that, on June 4, 2009, Anderson came to an appointment for "general issues." He discussed the new medical marijuana law and said he wanted to "look into it." McKeeby stated that Anderson had not, prior to that appointment, ever said that he used marijuana. He asked her whether he might be a "good candidate" for using medical marijuana to treat his pain. After explaining the "risk and possible benefits," McKeeby expressed her opinion that he might be a good candidate. McKeeby agreed that she unequivocally expressed her opinion to Anderson at the June 2009 appointment that marijuana "was a therapeutic modality" for his pain. Because she was prevented from authorizing his medical use of marijuana under hospital policy, she referred Anderson to a pain clinic for evaluation of possible use of medical marijuana. However, after she discovered that the pain clinic did not offer that kind of service, she left Anderson to his own devices in pursuing that type of treatment. McKeeby agreed that it would be reasonable for Anderson to maintain a three month supply of marijuana for his treatment.

Anderson testified that marijuana relaxes him and gives him relief from his chronic pain: "I could play catch. I could bend down a lot easier and pick things up." He also could stand longer without sciatica.

Georgeann Ergang testified that she worked for the Kalamazoo Township Police Department and that she was assigned to the Southwest Enforcement Team, which is a narcotics unit.2 Ergang said that she went to Anderson's residence on June 9, 2009. An officer had earlier gone to Anderson's home to investigate a possible break-in that Anderson's estranged wife had reported. Ergang said that the other officer called her after he discovered what appeared to be marijuana plants.

Ergang searched Anderson's home with his estranged wife's permission and discovered 15 marijuana plants under a "grow" lamp in a closet in an upstairs bedroom. She described the plants as starter plants or seedlings that ranged from three to six inches in height. Ergang testified that the pictures of the grow operation in the bedroom seem to show that the light was on. She also said that she did not turn on the light. She found a baggie of marijuana and a bag with clippings of leaves and stems from marijuana plants. Ergang found an additional 11 marijuana plants growing in a garden behind Anderson's garage.

Anderson's wife testified that she went to his house to feed and water his animals while he was out of town. When she arrived, she discovered that the house had been burglarized and called the police. She did not know that Anderson had marijuana in the house or outside.

Ergang interviewed Anderson on June 15, 2009. She said that she asked him about the marijuana and he admitted that the plants were his. He explained that he used marijuana for his medical condition. He also said that he had "been smoking marijuana for a long time and that he decided that he would grow his own."

Anderson testified that he voluntarily spoke with Ergang and explained to her that he used marijuana to treat his back pain. He said he had some marijuana buds for smoking. He stated that tried to get some "clones" to grow in his closet, but he abandoned those plants and left them to die by turning off the grow light. He noticed that, when he returned from his trip, the grow light was on again. He did have eight or nine plants growing outside. The outdoor plants were about three or four inches in height and he did not expect to be able to harvest them until they were "three and four feet tall," which would not be until late fall. Anderson said that the medical benefits are from the female plant and the buds produce the most active ingredients with the leaves providing "little active medical benefit." He expected only half of his plants to be female after maturation.

Anderson admitted that he had about nine grams of marijuana that could be smoked. He explained that he needs to smoke about four pipes per day with about a quarter of a gram in each pipe. Therefore, he continued, nine grams is about a one week supply. He also admitted that he had about 110 grams of leaf cuttings. He said he cannot smoke the leaves, but he does eat them by grinding them up and adding them to his Rice Krispy Treats. He said he eats three to four treats per day therapeutically.

The prosecutor ultimately charged defendant with manufacturing marijuana in violation of MCL 333.7401(2)(d)(iii). After a March 2010 preliminary examination, the district court bound Anderson over for trial.

In April 2010, Anderson moved to dismiss the charge of manufacturing marijuana under MCL 333.26428. The trial court held a hearing on Anderson's motion over two days in late May and early June 2010. At the close of proofs, Anderson's trial counsel argued that the evidence showed that Anderson had a qualifying disability and had gotten a statement from his physician that she believed medical marijuana might be useful for the treatment of his pain. He also argued that the evidence showed that Anderson possessed less than a three month supply of useable marijuana in the form of buds and leaf cuttings and that the outdoor plants would not be ready for approximately three months. Because Dr. McKeeby testified that it was reasonable for him to maintain a three month supply, Anderson's counsel argued that the evidence clearly demonstrated that Anderson had established that he had a reasonable amount of marijuana as required under MCL 333.26428. For that reason, he concluded, Anderson was entitled to have the charges against him dismissed.

In August 2010, the trial court issued its opinion and order denying Anderson's motion to dismiss because he failed to establish the elements of the defense under MCL 333.26428. In its opinion, the trial court stated that Anderson "elected his remedy" by filing his motion to dismiss. Because he failed to show at the hearing that he needed an amount of marijuana in excess of the presumptively reasonable amounts described under MCL 333.26424 and, with regard to the outdoor plants, failed to show that the plants were in an enclosed locked facility, he would not be permitted to present that defense under MCL 333.26428. In finding that Anderson failed to establish the reasonableness of the amount of marijuana that he had, the trial court concluded that Anderson had to present expert testimony as to the amount of marijuana that was reasonably necessary to maintain an uninterrupted supply for his treatment.

After the trial court denied his motion for reconsideration, Anderson applied for leave to appeal the trial court's order and asked this Court to stay the lower court proceedings. On October 21, 2010, this Court granted leave to appeal and stayed the lower court proceedings.3

II. AFFIRMATIVE DEFENSES UNDER THE MMA

A. STANDARDS OF REVIEW

On appeal, Anderson argues that the trial court erred when it determined that he had to establish that the amount of marijuana that he had was reasonably necessary to treat his condition through an expert. He also argues that the trial court erred when it determined that, because he failed to establish his right to have the charges dismissed under MCL 333.26428 at the hearing on his motion to dismiss, he was also precluded from presenting a defense under that statutory provision at trial. This Court reviews de novo whether the trial court properly interpreted and applied the MMA to the facts of this case. People v Francisco, 474 Mich. 82, 85; 711 N.W.2d 44 (2006). Further, this Court reviews de novo questions of law, such as whether a trial court properly determined that a defendant cannot present a particular affirmative defense on the ground that the defendant failed to establish a factual basis for asserting the defense. See People v Petty, 469 Mich. 108, 113; 665 N.W.2d 443 (2003).

B. SUMMARY OF THE MMA

As this Court has already noted, the MMA does not legalize the possession, manufacture, distribution, or use of marijuana. People v King, ___ Mich App ___, slip op at 2-3; ___ NW2d ___ (2011) (Docket No. 294682, issued February 3, 2011); see also People v Redden, 290 Mich App ___, slip op at 2; ___ NW2d ___ (2010) (Docket Nos. 295809; 295810, issued September 14, 2010) (opinion by O'CONNELL) (noting that the MMA did not repeal "any drug laws" contained under the Public Health Code and that, as such, persons using marijuana are still "violating the Public Health Code."); MCL 333.26422(c) (recognizing that federal law still prohibits the use of marijuana). Instead, it prescribes a very limited set of circumstances under which certain persons involved in the use of marijuana for the treatment of serious or debilitating medical conditions may avoid prosecution under state law. See MCL 333.26422(b) (providing that the practical effect of the law is to protect "from arrest the vast majority of seriously ill people who have a medical need to use marihuana."). Stated another way, although admitting that he or she has committed a criminal offense involving marijuana, a defendant may nevertheless establish the elements of the defense provided under the MMA and avoid criminal liability. See People v Dupree, 284 Mich.App. 89, 99-100; 771 N.W.2d 470 (2009) (opinion by M. J. KELLY) (noting that an affirmative defense is one where the defendant admits the commission of a crime, but seeks to justify, mitigate or excuse the crime).

Section 7 of the MMA provides that the "medical use" of marijuana, generally, "is allowed" in Michigan, but only "to the extent that it is carried out in accordance with the provisions of this act." MCL 333.26427(a). The "medical use" of marijuana is very broadly defined to include "the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana" as long as those activities are "to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition." MCL 333.26423(e). Section 7 establishes that the MMA applies to almost every conceivable activity that might be undertaken in furtherance of the cultivation, processing, distribution, and use of marijuana as long as the activities are for "medical use." Nevertheless, by defining "medical use" to include activities that are "to treat or alleviate a registered qualifying patient's" medical condition or symptoms, this section appears to limit the application of the defenses to activities taken by or for registered patients.4 MCL 333.26423(e) (emphasis added). In addition, § 7 provides that certain actions involving marijuana are not permitted under the act even though those uses might otherwise qualify as a "medical use" of marijuana. For example, a person may not undertake "any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice." MCL 333.26427(b)(1). A person is also not permitted to possess or engage in the "medical use" of marijuana on a school bus, on the grounds of a school, on the grounds of a correctional facility, or to smoke marijuana on public transportation or in any public place. See MCL 333.26427(b)(2), (3). Accordingly, § 7 establishes the base-line availability of the MMA's immunities and defenses: the activity must be for a "medical use", must be carried out "in accordance with the provisions of this act" and must not fall into one of the excepted categories stated under § 7(b). See MCL 333.26427.

The MMA provides immunity under § 4 and an affirmative defense under § 8. See MCL 333.26424; MCL 333.26428. Section 4 provides the criteria for when a "qualifying patient" shall not be subject to penalties for the medical use of marijuana:

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount. [MCL 333.26424(a).]

In order to qualify for this immunity, a person must be a "qualifying patient", must have been issued and possess a "registry identification card" and must not have more than "2.5 ounces of useable" marijuana or more than 12 marijuana plants.

Section 4 provides a similar immunity to a "primary caregiver", who has been issued and possesses a registry identification card, for his or her acts taken to assist a "qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act." MCL 333.26424(b). A primary caregiver is, likewise, limited to 2.5 ounces of useable marijuana for each qualifying patient and to no more than 12 marijuana plants per qualifying patient, which plants must be kept in a closed, locked facility. MCL 333.26424(b)(1), (2). Section 4 also provides that certain other persons shall not be subject to "arrest, prosecution, or penalty" for actions taken with regard to the medical use of marijuana. See MCL 333.26424(f) (stating the conditions under which a physician shall not be subject to penalties); MCL 333.26424(g) (stating under what conditions a person who supplies marijuana paraphernalia shall not be subject to penalties). Further, there is a statutory presumption that a qualifying patient or primary caregiver "is engaged in the medical use of marihuana in accordance with this act", if the qualifying patient or caregiver is in possession of a registration card and in possession of an amount of marijuana that "does not exceed the amount allowed under this act." MCL 333.26424(d). It is noteworthy that § 4 does not provide a mechanism for a person to challenge his or her arrest, prosecution, or subjection to a penalty in contravention of the prohibitions stated under § 4; rather, the only provision for asserting an actual defense is found under § 8 of the MMA.

Under § 8, a "patient" or a "patient's primary caregiver" "may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana." MCL 333.26428(a). However, the use of the "medical purpose" defense is limited to those situations where the patient or caregiver shows that:

(1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;

(2) The patient and the patient's primary caregiver, if any, were 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 condition; and

(3) The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition. [MCL 333.26428(a)(1) to (3).]

Moreover, a person "may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed" under § 8(a). See MCL 333.26428(b).

C. ASSERTING A MEDICAL PURPOSE DEFENSE UNDER § 8

In this case, Anderson moved for dismissal of the charge that he unlawfully manufactured marijuana under the defense stated in § 8(b). See MCL 333.26428(b). After a hearing on the merits, the trial court determined that Anderson failed to establish the elements stated under § 8(a); namely, that he failed to establish that the amount he had in his possession was "reasonably necessary to ensure the uninterrupted availability" of the marijuana he needed to treat his medical condition or symptoms. The trial court also noted that he failed to meet the elements because the evidence showed that he did not keep the plants in an enclosed, locked facility, as required under § 4. See MCL 333.26424. For these reasons, the trial court denied Anderson's motion for dismissal of the charge against him. In addition, the trial court determined that, because Anderson elected to pursue dismissal by motion and failed to establish his § 8 defense, he was barred from presenting that defense again at trial. On appeal, Anderson challenges whether he needed an expert to establish what constituted a reasonable amount of marijuana and challenges the propriety of the trial court's ruling that he was categorically barred from presenting his defense because his motion was unsuccessful.

1. THE ELEMENTS OF A § 8 DEFENSE

Before turning to whether the trial court properly determined that Anderson had to present expert testimony to establish whether he had an amount of marijuana that "was reasonably necessary to ensure the uninterrupted availability" of marijuana for his treatment, it is necessary to first determine the exact parameters of the elements that Anderson had to "show" in order to properly assert a § 8 defense. If Anderson could not establish the elements of the defense stated under § 8, without regard to the reasonableness of the amount of marijuana and marijuana plants that he possessed, then this Court will have no need to determine whether his assertion of this defense also failed because he had to present expert testimony to establish the reasonableness of the amount of marijuana and marijuana plants that he possessed under § 8(a)(2).

As already explained, § 7(a) provides the base-line criteria for the assertion of immunity or a defense under the MMA. In order to assert immunity or a defense, a person must generally show that the otherwise prohibited activity was for a "medical use", was carried out "in accordance with the provisions of this act" and did not fall into one of the excepted categories stated under § 7(b). See MCL 333.26427. Because a "medical use" is defined as an action taken or related "to treat or alleviate a registered qualifying patient's" medical condition, see MCL 333.26423(e) (emphasis added), it would appear that Anderson could not assert a § 8 defense, as a matter of law, because he was not a registered qualifying patient at the time he manufactured the marijuana at issue. However, notwithstanding the limitations stated under § 7, the provisions for the defense stated under § 8 appear to apply broadly to conduct that is not for a "medical use."

Section 8 clearly refers to a "patient" rather than a "qualifying patient" and states that the "patient" may assert the "medical purpose" for using the marijuana as a defense rather than "medical use." MCL 333.26428(a). Hence, § 8 appears to provide a catchall defense for the use of marijuana for a medical purpose—even for persons who are not registered. And, indeed, this Court has specifically held that a defendant asserting a § 8 defense does not need to be registered in order to assert the defense. See Redden, 290 Mich App slip op at 11.5

The defendants in Redden were charged with manufacturing marijuana after they were discovered with one and one-half ounces of marijuana and 21 marijuana plants. Id., slip op at 1. At their preliminary examination, the defendants asserted a § 8 defense and asked the district court to dismiss the charges against them. Id., slip op at 2. The district court agreed that § 8 applied to the facts of their cases, even though the defendants did not have valid registration cards at the time of their arrest, and dismissed the charges against them. Id., slip op at 4-5. The district court reasoned that the amount of marijuana found in the defendants' possession was presumptively reasonable because it was less than the amount specified under § 4. Id., slip op at 5. The circuit court disagreed with the district court's decision to dismiss and reinstated the charges because, it concluded, the record was insufficiently developed as to whether the defendants established the § 8 defense. Id., slip op at 6.

On appeal, this Court first addressed the prosecution's argument that the registration requirement stated under § 4 applied to a defense asserted under § 8, because § 8(a) incorporated § 7, which in turn required compliance with the other provisions of the act. The Court in Redden rejected the contention that the limitations stated under § 4 generally applied to the assertion of a defense under § 8:

However, as defendants argue, this position ignores that the [MMA] provides two ways in which to show legal use of marijuana for medical purposes in accordance with the act. Individuals may either register and obtain a registry identification card under § 4 or remain unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in § 8.

The plain language of the [MMA] supports this view. Section 4 refers to a "qualifying patient who has been issued and possesses a registry identification card" and protects a qualifying patient from "arrest, prosecution, or penalty in any manner . . . ." MCL 333.26424(a). On the other hand, § 8(a) refers only to a "patient," not a qualifying patient, and only permits a patient to "assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana . . . ." MCL 333.26428(a). Thus, adherence to § 4 provides protection that differs from that of § 8. Because of the differing levels of protection in sections 4 and 8, the plain language of the statute establishes that § 8 is applicable for a patient who does not satisfy § 4. [Redden, 290 Mich App slip op at 10.]

The Court also found it significant that the ballot proposal "explicitly informed voters that the law would permit registered and unregistered patients to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana. Id., slip op at 11. For this reason, the Court in Redden concluded that the "district court did not err by permitting [the] defendants to raise the affirmative defense even though neither satisfied the registry-identification-card requirement of § 4." Id.

After concluding that the defendants did not have to be registered in order to assert a defense under § 8, the Court in Redden turned to the propriety of the circuit court's decision to reinstate the charges against the defendants. The Court first noted that the existence of an affirmative defense is typically to be considered by a jury at trial. Redden, 290 Mich App slip op at 12, citing People v Waltonen, 272 Mich.App. 678, 690 n 5; 728 N.W.2d 881 (2006). However, the Court acknowledged that, where a defense is complete and there are no conflicting facts on the defense, it could be argued that there "would be no probable cause to believe a crime was committed." Id. Nevertheless, because there were issues of fact that had to be resolved by a jury, the Court concluded that the circuit court did not err in reinstating the charges and binding the defendants over for trial. Id.

Accordingly, under Redden, a person may assert a § 8 defense even if he or she does not have a valid registration card, as required under § 4. But it must be noted that, in reaching this conclusion, the Court in Redden did not directly address whether any of the other limitations stated under § 4 applied to the assertion of a defense under § 8. Indeed, the Court in Redden reached its conclusion on the basis of the reference to "patient"—as opposed to "qualifying patient"—in § 8 and the fact that the ballot language indicated that the MMA provided a defense to unregistered patients. As such, the holding in Redden did not preclude application of the remaining limitations stated in § 4 to the assertion of a defense under § 8.

Under § 8(a), a person may "assert" a "medical purpose" defense to any prosecution involving marijuana, "[e]xcept as provided in section 7." MCL 333.26428(a). Although § 7(b) does provide a list of situations for which the immunity and defense provided under the MMA will not apply, it also clearly states that the use of marijuana is "allowed" only "to the extent that it is carried out in accordance with the provisions of this act." MCL 333.26427(a). That is, a person asserting a defense under § 8 must demonstrate that he or she has complied with the entire MMA.

In § 4, the MMA provides limitations on the amount of marijuana that a "qualifying patient" or "primary caregiver" may possess and provides limitations on the amount and locations where such persons can keep marijuana plants. MCL 333.26424(a), (b). Because the limitations apply in part to "qualifying patients," as opposed to "patients" generally, one might be tempted to conclude that these limitations cannot apply to § 8, which refers only to a "patient." See MCL 333.26428(a)(1) to (3). But the defense provided under § 8 does apply to a "primary caregiver" and § 4(b) limits the amount of marijuana and marijuana plants that the caregiver may lawfully possess similar to that of a "qualifying patient" under § 4(a). See MCL 333.26428(a); MCL 333.26424(b). Moreover, § 4(d) provides that there is a "presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana" if he or she "is in possession of an amount of marihuana that does not exceed the amount allowed under this act." MCL 333.26424(d) (emphasis added). It is striking that the presumption provided under § 4(d) refers to the amount stated under this act, rather than under this section. Because the only true limitations on the amount of marijuana or marijuana plants that may be possessed are those stated under § 4, it appears that § 4(d) contemplates that the limitations stated under §§ 4(a) and 4(b) apply to the whole act. And it would seem absurd to permit a person who has not registered to possess marijuana and marijuana plants in excess of the amount permitted for those persons who comply with the registration requirements. In any event, it is not necessary to resolve this question because, after the decision in Redden, a different panel of this Court concluded that the limitations stated under §§ 4(a) and (b) do apply to the assertion of a defense under § 8.

In King, ___ Mich App slip op at 1-2, the defendant was charged with manufacturing marijuana after police officers discovered marijuana growing in a dog kennel in his backyard and in an unlocked living room closet. After the defendant had been bound over for trial, he moved for the dismissal of his charges under § 8 of the MMA. Id., slip op at 2. The trial court concluded that the defendant complied with the MMA and dismissed the charges against him. Id.

On appeal, this Court disagreed with the trial court's conclusion that the defendant had complied with the MMA and was entitled to the dismissal of the charges against him under § 8. Id., slip op at 1. The Court in King first addressed whether the limitations stated under § 4 applied to the assertion of a defense under § 8. The Court determined that § 8(a) incorporated § 7 by stating that the defense applied "[e]xcept as provided in Section 7." King, ___ Mich App slip op at 3. The Court went on to note that § 7(a) provided that "`[t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.'" Id., citing MCL 333.26427(a) (emphasis in original). Because the defendant was growing marijuana in a dog kennel that did not constitute an "enclosed, locked facility," and in a closet that was not locked, the Court in King concluded that the defendant did not comply with the requirements stated under § 4 and, consequently, could not avail himself of the defense provided under § 8. Id. at 1 ("We disagree that [the] defendant adhered to the requirements of § 4 of the MMA and therefore hold that [the] defendant is not entitled to the benefit of the protections of the MMA."). As such, this Court reinstated the charges against the defendant and remanded the matter for trial. Id. at 5. Although the defendant in King was a registered user, it is clear that the Court in King determined that the limitations stated under § 4 applied to anyone asserting a § 8 defense—without regard to whether he or she was registered. See id. at 3 ("We further hold that the express reference to § 7 and § 7(a)'s statement that medical use of marijuana must be carried out in accordance with the provisions of the MMA, requires [the] defendant to comply with the growing provisions in § 4.").

Therefore, in order to assert a medical purpose defense under § 8, a patient must show that he or she acted in accord with the provisions of the MMA; that is, the patient must show that he or she had 2.5 ounces or less of useable marijuana, had 12 or fewer marijuana plants, and had his or her plants in an "enclosed, locked facility." See MCL 333.26424(a), (b). Further, even where an unregistered patient has marijuana within these limits, the patient must also show that the amount that he or she possessed did not exceed an amount that "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 . . . ." MCL 333.26428(a)(2). I do not agree that § 8(a)(2) must be understood to permit a patient—registered or otherwise—to possess more marijuana or marijuana plants than permitted under § 4, as long as the patient can demonstrate that he or she needed the additional marijuana to ensure an uninterrupted supply of marijuana. Although the "medical purpose" defense stated under § 8 refers to an amount of marijuana or marijuana plants that is reasonably necessary to "ensure the uninterrupted availability" of marijuana, see MCL 333.26428(a)(2), when read in light of the other provisions stated under § 4, I conclude that this is an additional limitation to those stated under § 4.

Under MCL 333.26424(d), a "qualifying patient" is presumed to be engaged in the "medical use" of marijuana if the patient is in possession of a registration card and in possession of an amount of marijuana or marijuana plants that does not exceed the limits stated under § 4(a). That is, a patient who is registered is entitled to immunity if he or she possesses not more than 2.5 ounces of marijuana and not more than 12 marijuana plants, even if the actual amounts exceed what the patient needs to ensure an uninterrupted supply of marijuana. Accordingly, a properly registered patient has an absolute defense under § 8(b) if he or she is properly registered and otherwise in compliance with § 4. In contrast, a patient who has not registered has no immunity under § 4. Notwithstanding that, the unregistered patient may still assert a defense under § 8, but must show that he or she has no more marijuana than permitted by § 4 and must show that that amount is reasonably necessary to ensure an uninterrupted supply of marijuana to treat his or her particular medical condition or symptoms. For that reason, it is possible for a finder of fact to conclude that a person who has an amount of marijuana or marijuana plants that is permitted under § 4 still has not met the elements of a defense under § 8 because, given the nature of the patient's serious or debilitating condition, the amount of marijuana or marijuana plants he or she actually possessed was greater than what was reasonably necessary to ensure an uninterrupted supply of marijuana to treat his or her medical condition or symptoms.

In addition to those proofs, the patient must also establish that he or she consulted with a physician during the course of a bona fide physician-patient relationship and, after a "full assessment of the patient's medical history and current medical condition", the physician "has stated" his or her professional opinion that the patient "is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate" the patient's serious or debilitating medical condition or the symptoms from such a condition. MCL 333.26428(a)(1). Finally, the patient must show that he or she was engaged in the "acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia. . . to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition." MCL 333.26428(a)(3).

2. ANDERSON'S MOTION FOR DISMISSAL

At the hearing on his motion for dismissal, Anderson presented evidence that he consulted with his family physician, Dr. McKeeby, prior to his arrest about whether marijuana might be a viable alternative to treat his back pain. McKeeby testified that she had been Anderson's physician for at least ten years and had treated his chronic back pain throughout that period. She also stated that she advised him that she thought he might benefit from marijuana. Anderson further testified that he used marijuana for the specific purpose of treating his chronic back pain. Anderson presented evidence, through his own testimony, that he possessed less than a three month supply of marijuana and McKeeby testified that it was reasonable for a patient to maintain a three month supply. On the basis of this evidence, Anderson's trial counsel argued that Anderson had established a § 8 defense.

The trial court concluded otherwise. The trial court explained that, "expert testimony" was "relevant" to establish the reasonableness of the amount that Anderson possessed because, citing MRE 702, this was not something a "lay person would know." Further, the trial court found that Anderson's "family doctor was not qualified to offer an opinion" because there was no evidence that "she has experience working with patients" that she treated with marijuana and because she had no "experience with dosage." As such, there was no evidence "on this issue." Given that there was no evidence to establish the reasonableness of the amount of marijuana that Anderson possessed, the court concluded that Anderson had not established that element of the § 8 defense. For that reason, it did not need to consider whether Anderson met any of the other elements of the § 8 defense.

On appeal, Anderson argues that he did not need an expert to establish that the amount of marijuana that he possessed was reasonable; rather, he argues that he was in the best position to testify about his own marijuana needs. Because the MMA does not require the use of an expert, he maintains that the trial court erred to the extent that it imposed a higher evidentiary burden for that element of the § 8 defense. Although the trial court's opinion is not entirely clear, when read as a whole, one can plausibly argue that the trial court did conclude that Anderson needed to present expert testimony in order to establish the reasonableness of the amount of marijuana that he possessed. Had the trial court concluded otherwise, it would not have stated that there was no evidence to support this element; it would simply have found that this element had not been met—notwithstanding the evidence actually presented. Therefore, I conclude that this Court should address this claim of error.

Typically, a trial court may not interfere with a prosecutor's decision to bring charges against a defendant. See Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 683-684; 194 N.W.2d 693 (1972) (noting that the prosecutor is the chief law enforcement officer of the county and stating that it would be a violation of the separation of powers for a trial court to claim the power to control the institution and conduct of prosecutions). Thus, a trial court may not dismiss the charges against a defendant over the prosecutor's objection unless specifically permitted by statute or on the basis of constitutionally insufficient evidence. See People v Morris, 77 Mich.App. 561, 563; 258 N.W.2d 559 (1977). Nevertheless, it is plain that the MMA provides statutory authority for the dismissal of charges involving marijuana: "A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in [§ 8(a)]." MCL 333.26428(b). This section does not just authorize a trial court to dismiss charges involving a marijuana violation, it actually mandates dismissal. However, the trial court is only required to dismiss the charges after an "evidentiary hearing" where the person moving for dismissal "shows" the elements stated under § 8(a). The statute does not specify the burden of proof applicable to the moving party's motion or clearly state whether the trial court has the authority to make findings of fact or resolve credibility disputes in making its determination. Michigan Courts have long safeguarded a defendant's right to have a jury resolve factual disputes and make credibility determinations. See People v Hamm, 100 Mich.App. 429, 433; 298 N.W.2d 896 (1980) (characterizing the right to a jury in a criminal trial as "sacred"); see also Const 1963, art 1, § 20 (guaranteeing that, in every criminal prosecution, the "accused shall have the right to a speedy and public trial by an impartial jury."). The right to a fair and impartial jury extends also to the people, who have a right to have a jury that will ensure a "righteous verdict." People v Bigge, 297 Mich. 58, 64; 297 NW 70 (1941) (quotation marks and citation omitted). And, for that reason, this Court should not lightly conclude that the Legislature intended to grant trial courts the authority to usurp the role of the jury in determining whether a defendant has established a particular defense. See People v Lemmon, 456 Mich. 625, 646-647; 576 N.W.2d 129 (1998) ("The question being one of credibility posed by diametrically opposed versions of the events in question, the trial court was obligated, `despite any misgivings or inclinations to disagree,' to leave the test of credibility where statute, case law, common law, and the constitution repose it `in the trier of fact.'"). As such, in the absence of any guidance, I conclude that the proper standard for a trial court conducting a hearing under § 8 of the MMA is that applicable to a motion for a directed verdict of acquittal at a criminal trial. See People v Riley (After Remand), 468 Mich. 135, 139-140; 659 N.W.2d 611 (2003).

Accordingly, on a defendant's motion for dismissal, the trial court must hold an evidentiary hearing to provide the defendant with an opportunity to show the "medical purpose" defense stated under § 8. See MCL 333.26428(b). At the close of the hearing, the trial court must evaluate all the evidence in the light most favorable to the prosecution to determine whether there is a question of fact on any of the elements stated under § 8(a). See Riley, 468 Mich at 139-140 (noting that the trial court must evaluate a motion for a directed verdict by examining the evidence in a light most favorable to the prosecution to determine whether a rationale trier of fact could have found the elements at issue). If no reasonable jury could find that the defendant failed to establish a § 8 defense, then the trial court must dismiss the charges. MCL 333.26428(b). If, however, a reasonable jury could conclude that the defendant had not established one or more elements, then dismissal is not appropriate; rather, the case must be submitted to a jury on the merits. Lemmon, 456 Mich at 646-647.

Turing to the evidentiary hearing at issue here, I conclude that, even if Anderson did not need an expert to establish that the amount of marijuana and plants that he had were "reasonably necessary" under § 8(a)(2), he nevertheless was not entitled to the dismissal of the charge against him under § 8(b). See MCL 333.26428(a), (b). As noted above, a defendant may not assert a "medical purpose" defense under § 8 unless the defendant first shows that he or she complied with the remainder of the MMA, which includes compliance with the limitations stated under § 4. See King, ___ Mich App, slip op at 3. Here, it was undisputed that Anderson had a total number of marijuana plants that exceeded the limit of 12 provided under § 4. Further, it was undisputed that the plants that Anderson was growing behind his garage were not in an enclosed, locked facility. See MCL 333.26424(a). Because he failed to comply with the limitations on the possession of marijuana and marijuana plants stated under § 4, he was not entitled to the dismissal of the charge against him under § 8(b). See King, ___ Mich App slip op at 5 ("Because [the] defendant failed to comply with the strict requirements in the MMA that he keep the marijuana in an `enclosed, locked facility,' he is subject to prosecution . . . and the trial court abused its discretion by dismissing the charges against [the] defendant."). This is true without regard to whether the amount of marijuana and marijuana plants that Anderson possessed could otherwise be considered reasonably necessary to ensure an uninterrupted supply of marijuana to treat his medical condition or symptoms. Consequently, because he clearly failed to establish his § 8 defense on other grounds, it is unnecessary to determine whether Anderson had to present expert testimony in order to establish the reasonableness of the amount of marijuana or marijuana plants that he possessed. See, e.g., Acox v Gen Motors Corp, 192 Mich.App. 401, 408; 481 N.W.2d 749 (1991) (declining to address a legal issue because consideration of the issue would be dicta given the Court's determination that the statute did not apply under the facts of the case).

I also do not believe that Anderson's testimony regarding the plants at issue altered the proof that he violated the limitations stated under § 4. At the evidentiary hearing, Anderson testified that he expected that only one-half of the marijuana plants growing behind his garage would be female after maturation and that only the female plants would produce useable marijuana. He also testified that he abandoned the plants that were found in his closet. Accordingly, Anderson implicitly invited the trial court to conclude that the male plants and abandoned plants should not be counted against his total when determining what was reasonably necessary to ensure an uninterrupted supply of marijuana. But at no place in the MMA did the drafters make a distinction between plants that have reached maturation or that are male or female. Likewise, the MMA does not instruct that plants that have been abandoned—or indeed plants that are dead—should not be counted against a patient or caregiver's maximum permitted amount under § 4. In contrast to the amount of marijuana that a patient may possess, § 4 does not even provide that the plants must be useable. See MCL 333.26424(a) (referring to 2.5 ounces of "usable" marijuana and "12 marihuana plants"). Given this statutory language, I conclude that the reference to 12 marijuana plants is absolute; that is, one must count every marijuana plant regardless of its level of maturation or sex, and without regard to whether the patient or caregiver intended to abandon the plant, but had not yet destroyed it. Here, the undisputed proofs showed that Anderson had far more marijuana plants than permitted under § 4; consequently, he clearly did not—and could not—establish a ground for dismissal under § 8(b). Although the trial court arguably denied Anderson's motion on the basis of his failure to establish the reasonableness of the amount of marijuana that he possessed through an expert, even if the trial court erred in this regard, it nevertheless came to the correct result. Therefore, I would affirm its denial of Anderson's motion to dismiss on that basis. People v Lyon, 227 Mich.App. 599, 612-613; 577 N.W.2d 124 (1998).

3. THE TRIAL COURT'S DECISION TO PRECLUDE ANDERSON'S § 8 DEFENSE

Anderson plainly failed to establish the right to have the charge against him dismissed on his motion under § 8, nevertheless, that fact alone does not necessarily preclude him from asserting the same defense at trial. Indeed, I disagree with the trial court's conclusion that a defendant who moves for dismissal under § 8 has selected his or her remedy and, for that reason, is categorically barred from raising a § 8 defense at trial in the event that he or she does not prevail on the motion. See People v Kolanek, ___ Mich App ___, slip op at 7; ___ NW2d ___ (2011) (Docket No. 295125, issued January 11, 2011) ("As the statute does not provide that the failure to bring, or to win, a pre-trial motion to dismiss deprives the defendant of the statutory defense before the fact-finder, [the] defendant's failure to provide sufficient proofs pursuant to his motion to dismiss does not bar him from asserting the Section 8 defense at trial nor from submitting additional proofs in support of the defense at that time"). Rather, as previously stated, whether a defendant has established an affirmative defense will typically be a matter for the jury. Waltonen, 272 Mich App at 690 n 5. It is, however, well-settled that the defendant has the burden to establish a prima facie case for his or her affirmative defense by presenting some evidence on all the elements of that defense. People v Lemons, 454 Mich. 234, 248; 562 N.W.2d 447 (1997); see also People v Dempster, 396 Mich. 700, 713-714; 242 N.W.2d 381 (1976) (noting that a defendant normally bears the burden of showing by competent evidence that an exemption to a criminal statute applies to the facts of his or her case). And, if the defendant fails to establish an element of his or her defense at trial, the trial court should not present the defense to the jury for consideration. See People v Crawford, 232 Mich.App. 608, 619; 591 N.W.2d 669 (1998) ("A defendant asserting an affirmative defense must produce some evidence on all elements of the defense before the trial court is required to instruct the jury regarding the affirmative defense."). It is also equally well settled that the Legislature can limit a defendant's ability to present an affirmative defense. See, e.g., People Carpenter, 464 Mich. 223; 627 N.W.2d 276 (2001).

The MMA provides an affirmative defense to prosecution for any marijuana offense, but that defense is quite limited. Because of those limitations, there may be situations where a defendant simply cannot establish the right to assert a § 8 defense. In such situations, a trial court might be warranted in barring a defendant from presenting evidence or arguing at trial that he or she is entitled to the defense stated under § 8(a). Therefore, I conclude that a trial court may bar a defendant from presenting evidence and arguing a § 8 defense at trial where, given the undisputed evidence, no reasonable jury could find that the elements of the § 8 defense had been met.

Here, there is no dispute about the amount of plants that Anderson possessed or that the plants were not kept in an enclosed, locked facility. No reasonable jury could, therefore, find that he had 12 or fewer plants or that the plants were in an enclosed, locked facility. Consequently, no reasonable jury could acquit Anderson on the basis of a § 8 defense. The trial court did not err when it precluded Anderson from presenting a § 8 defense at trial.

III. CONCLUSION

Given the undisputed evidence that he possessed more than 12 marijuana plants and that he kept at least some of those plants in a place other than an enclosed, locked facility, Anderson could not establish the elements of a defense under § 8 of the MMA. For that reason, the trial court did not err when it denied his motion to dismiss the charge against him. Likewise, because no reasonable jury could find that Anderson qualified for the defense under § 8, the trial court did not err when it precluded him from presenting a defense under § 8 at trial.

I would affirm for these reasons.

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Footnotes

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1. Although our concurring colleague would decide this issue on an alternative ground, we opt for deciding the issue raised by defendant and briefed by the parties. Bradley v Saranac Bd of Ed, 455 Mich. 285, 302-303; 565 N.W.2d 650 (1997); Paramount Pictures Corp v Miskinis, 418 Mich. 708, 730-731; 344 N.W.2d 788 (1984).

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2. In essence, defendant has presented a hypothetical issue, as the trial court never held an expert was required. We generally refrain from deciding hypothetical issues. People v Turner, 123 Mich.App. 600, 604; 332 N.W.2d 626 (1983).

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1. Although the statutory provisions at issue refer to "marihuana", by convention, this Court uses the more common spelling—" marijuana"—in its opinions.

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2. Ergang testified at Anderson's preliminary examination and at the hearing on his motion to dismiss.

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3. See People v Anderson, unpublished order of the Court of Appeals, entered October 21, 2010 (Docket No. 300641).

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4. The statutory provisions dealing with the registration of patients and the administrative rules governing the registration of patients are found at MCL 333.26425 and MCL 333.26426.

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5. Although the Court in Redden stated that a registered patient could assert a defense under § 4, there is no actual defense provided under § 4. See Redden, 290 Mich App slip op at 11. Indeed, there are no provisions within the MMA to assert the immunity provided under § 4.

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PEOPLE v. WATKINS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ERIC AUGUST WATKINS, Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
GARY JEROME WATKINS, Defendant-Appellant.

Nos. 302558, 302559

Court of Appeals of Michigan.

August 11, 2011.

Before: M. J. KELLY, P.J., and O'CONNELL and SERVITTO, JJ.

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UNPUBLISHED

PER CURIAM.

In these consolidated appeals, defendants Eric August Watkins and Gary Jerome Watkins appeal by leave granted the trial court's order granting the prosecution's motion in limine to preclude defendants from referring to Michigan's Medical Marihuana Act (MMA), MCL 333.26241 et seq., at their forthcoming trial.1 Defendants argue on appeal that the trial court could not properly foreclose them from presenting defenses premised on the MMA. In addition, Eric Watkins maintains that the trial court's order improperly bars him from presenting evidence that he thought that his father, Gary Watkins, was legally growing marijuana because he was a registered patient under the MMA. Because we conclude that the trial court did not err in precluding defendants from asserting a defense arising under the MMA, and the order, as worded, does not preclude mention of the MMA for purposes other than as a defense, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

At defendants' preliminary examination, Jeff Brown testified that he was a Novi police officer and that, in June 2010, he assisted in executing a search warrant at defendants' home. During the search, Brown saw one plant and three "starter clones" under a grow light in the home's sun room, which was directly behind the dining room. He found four or five more plants under grow lights in the family room and three or four hanging plants that were drying in a room by the kitchen. In a closet with no door that was across from Eric Watkins' bedroom, Brown saw four more plants and some grow lights. Another four or five plants and grow lights were in a room that contained two large safes. Brown's search also revealed eight marijuana plants in a plastic zipper-style greenhouse in the back yard. In total, officers recovered 21 marijuana plants. None of the plants were locked up.

Brown discovered approximately thirty-one guns, including shot guns, assault rifles, long bolt action rifles, and semi-automatic and revolver pistols in the safes. Ammunition cans containing approximately four to five thousands rounds were along the wall in the same room as the safes. Brown recalled that he smelled marijuana throughout the house.

Inside Eric Watkins' bedroom, Brown located a plastic baggy containing approximately one ounce of marijuana within one or two feet of two loaded semi-automatic pistols. Brown also found an unloaded shotgun, approximately $2,100 in cash, bail bonds credentials with Eric's picture and name, and cell phone bills establishing Eric's residency at the home. Brown additionally discovered a burnt roach in a black Mazda, which was parked outside the house and registered to Eric.

Brown discovered a loaded semi-automatic pistol in a nightstand drawer in Gary Watkins' bedroom. He also found loose marijuana packaged in a bag next to empty glass jars, several grams of marijuana seeds, two ecstasy pills in the dresser, and other marijuana paraphernalia. Brown similarly found documents establishing Gary Watkins' residency at that address.

During the search, Brown learned that Gary Watkins had a medical marijuana card. Brown asked Eric Watkins to call his father, and Eric gave Brown his phone to make the call. Brown related that a person identifying himself as Gary Watkins explained that he had glaucoma and provided a medical marijuana card number. Brown said that the number came back as valid.

The prosecutor charged Gary Watkins with possession of methamphetamine, MCL 333.7403(2)(b)(i), manufacturing 20 to 200 plants of marijuana, MCL 333.7401(2)(d)(ii), possession of marijuana, MCL 333.7403(2)(d), and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The prosecutor charged Eric Watkins with manufacturing 20 to 200 plants of marijuana, possession of marijuana, and felony-firearm. Following a preliminary examination, both defendants were bound over as charged.

Eric Watkins moved to quash the charges on the ground that he was merely present and did not possess the marijuana. He also moved to suppress the evidence from the search and to dismiss, arguing that Brown did not have permission or a warrant to enter defendants' property to look through the fence, that under the MMA it is not proper to presume that the possession of marijuana is illegal, and that it was objectively unreasonable for Brown to continue with the search upon learning that Gary had a valid medical marijuana card. Similarly, Gary Watkins moved to suppress the evidence and to dismiss the charges based on the allegedly unconstitutional entry into defendants' home. He also moved for dismissal under the MMA.

The trial court denied all defendants' motions. As to the claim that they were entitled to an evidentiary hearing under section 8 of the MMA, see MCL 333.26428(b), the trial court determined that it did not need to conduct a hearing. It explained that, because the testimony at the preliminary examination showed that defendants had multiple plants in the home that were not in an enclosed locked facility as required under the MMA, they could not establish a section 8 defense. Defendants then appealed the trial court's denial of their motions to this Court. See People v Watkins, unpublished opinion per curiam of the Court of Appeals, issued June 21, 2011 (Docket Nos. 301771 and 301772). This Court ultimately determined that defendants were entitled to a hearing on their motions to suppress the evidence seized during the search, but concluded that the trial court properly denied Gary Watkins' motion to dismiss under section 8 of the MMA—without holding an evidentiary hearing—on the basis of the testimony at the preliminary examination. Id.

In the meantime, the prosecutor moved in limine to preclude defendants from referring to the MMA as a defense on the basis of the trial court's rulings on the defense motions. The trial court granted the prosecution's motion. Because it had previously determined that the marijuana was not kept in a closed, locked facility as required by the MMA, the court determined that Gary Watkins could not raise the MMA as a defense at trial. Moreover, because Gary Watkins could not properly raise such a defense, Eric Watkins could not raise the defense that he was merely in his father's presence as a qualified user under the MMA. Specifically, the trial court stated that it was precluding "both defendants from referencing the [MMA] as a defense."

These appeals followed.

II. PRECLUDING DEFENSES UNDER THE MMA

A. STANDARD OF REVIEW

Defendants both argue that the trial court could not properly deny them the right to present a defense under the MMA at their trials. This Court reviews a trial court's decision to grant a motion to limit evidence for an abuse of discretion. People v Yost, 278 Mich.App. 341, 353; 749 N.W.2d 753 (2008). However, this Court reviews the proper interpretation and application of statutes de novo. People v Bemer, 286 Mich.App. 26, 31; 777 N.W.2d 464 (2009).

B. ANALYSIS

A defendant generally has a constitutional right to present a defense. Yost, 278 Mich at 379. However, this right is not absolute—the defendant must still comply with established rules of procedure and evidence designed to ensure fairness at trial. Id.

As this Court has repeatedly noted, the manufacture, possession and use of marijuana remains illegal in Michigan. See People v Redden, 290 Mich.App. 65, 92; ___ NW2d ___ (2010) (opinion by O'CONNELL, P.J.); People v King, ___ Mich App ___, slip op at 2-3; ___ NW2d ___ (2011) (Docket No. 294682, issued February 3, 2011); People v Anderson, ___ Mich App ___, slip op at 5; ___ NW2d ___ (2011) (Docket No. 300641, issued June 7, 2011)(opinion by M. J. KELLY, J.). Nevertheless, with the MMA's enactment, the Legislature provided persons involved with the medical use of marijuana certain protections: it provided immunity from prosecution for the medical use or assisting the medical use of marijuana under § 4 and provided a defense to criminal prosecution under § 8. See MCL 333.26424 and MCL 333.26428(a). However, the immunity and defense provisions are matters of legislative grace; and persons can only assert them if they have complied with the MMA's requirements. See Anderson, ___ Mich App, slip op at 14 (holding that the defendant was not entitled to present a § 8 defense under the MMA because the defendant possessed more marijuana plants than permitted under the MMA and did not have them in an enclosed, locked facility as required under the MMA); see also People v Carpenter, 464 Mich. 223, 231; 627 N.W.2d 276 (2001) (noting that a defendant must comply with the Legislature's procedural requirements before being able to present an insanity defense).

Under § 4 of the MMA, the Legislature limited the immunity to those patients and caregivers who have been issued a registration card and who do not have more than 2.5 ounces of useable marijuana or more than 12 marijuana plants. See MCL 333.26424(a) and (b). In addition, for those persons that have marijuana plants, the plants must be kept in an enclosed locked facility. MCL 333.26424(a); MCL 333.26424(b)(2). Although the defense stated under § 8 does not directly impose similar limitations, this Court has interpreted § 8 to have incorporated the limitations provided under § 4. See King, ___ Mich App, slip op at 3; Anderson, ___ Mich App, slip op at 10 (opinion by M. J. KELLY, J). As such, a person may not assert the defense provided under § 8 if he or she has not complied with the limitations stated under § 4. Id.

Here, as the trial court correctly observed, the testimony from the preliminary examination established that the marijuana plants at issue were not in an enclosed, locked facility. From this, the trial court determined that defendants would not be able to establish a defense under the MMA and, on that basis, refused to grant a hearing under § 8 of the MMA and eventually precluded defendants from asserting the MMA as a defense. Another panel of this Court concluded that the trial court, on the basis of preliminary examination testimony alone, properly refused to grant a hearing under § 8. See People v Watkins, unpublished opinion per curiam of the Court of Appeals, issued June 21, 2011 (Docket Nos. 301771 and 301772). Given the preliminary examination testimony,2 neither defendant can establish that he would be entitled to immunity under § 4 and neither can establish a defense under § 8. Moreover, this Court has held that a trial court might properly exclude a defendant from presenting evidence in support of a defense under § 8 where, given the evidence adduced prior to trial, no reasonable jury could find that the elements of the defense had been established. Anderson, ___ Mich App, slip op at 14. Given the undisputed evidence concerning the number of plants and their storage, no reasonable jury could find that either defendant had established immunity under § 4 or the defense provided under § 8. As such, the trial court properly granted the prosecutor's motion in limine to preclude defendants from presenting a defense under § 4 or § 8 of the MMA. Id. ("[A] trial court may bar a defendant from presenting evidence and arguing a § 8 defense at trial where, given the undisputed evidence, no reasonable jury could find that the elements of the § 8 defense had been met.").3

And, the fact that Eric might have acted under a mistaken belief as to the legality of his actions is no defense under Michigan law because ignorance or mistake of law cannot normally serve as a defense to a criminal prosecution. See People v Motor City Hosp Supply, 227 Mich.App. 209, 215; 575 N.W.2d 95 (1997). As such, Eric Watkins might properly be excluded from admitting evidence concerning the MMA in an effort to show that, although he otherwise possessed or manufactured the marijuana at issue, his acts should be excused because he reasonably—albeit mistakenly—believed that what he was doing was lawful under the MMA.

Notwithstanding that, Eric Watkins contends that the trial court erred because its order is excessively broad. He argues that, even though he cannot present evidence regarding his father's status in support of a defense under the MMA, he might still properly present the evidence to rebut the prosecutor's proofs. It is well-settled that evidence that is inadmissible for one purpose might nevertheless be admissible for a different purpose. Yost, 278 Mich App at 355 (stating that, although the diminished capacity defense had been abolished, the defendant could present evidence of her limited intellectual capabilities, "if offered for a relevant purpose other than to negate the specific intent element of the charged crimes."). As such, the fact that Eric Watkins cannot present evidence concerning his father's status under the MMA to establish a defense under that act does not automatically render this evidence inadmissible for all purposes.

The order at issue provides:

IT IS HEREBY ORDERED that the People's Motion in Limine to preclude Reference to MMMA as Defense Based on the Court's Prior Ruling and the Statute is hereby granted:

***

b) As to Defendant Eric Watkins because since the court ruled that Defendant Gary Watkins cannot properly raise the MMMA defense, it necessarily follows that Defendant Eric Watkins cannot raise the defense that he was in the mere presence of [] Gary Watkins as a qualified user under the act.

As written, the order only specifically precludes use of the challenged evidence as a defense. A "defense" is a "defendant's stated reason why the prosecutor has no valid case." Black's Law Dictionary, 7th Ed. It remains, however, that "it is essential that prosecutors and defendants be able to give the jury an intelligible presentation of the full context in which disputed events took place." People v Sholl, 453 Mich. 730, 741; 556 N.W.2d 851 (1996).

It is undisputed that Eric's father was a registered patient under the MMA, though not in compliance with the same. This evidence could be relevant to Eric's state of mind and as background evidence to explain why he was living in a home where marijuana was plainly being grown—namely, because he believed that there was nothing illegal going on in the home. While not a defense under the MMA, the context of the event is not complete without this pertinent fact being disclosed to the jury. And, the jury is free to believe Eric's participation or lack thereof in the growing of the marijuana, just as they would be if his co-defendant were not a registered patient under the MMA. The evidence and burden of proof remain the same. Given the language employed in the order, the order cannot be understood to provide a blanket prohibition against the admission of such evidence for any purpose other than to establish immunity or a defense under the MMA.

Finally, we do not agree that defendants' trial lawyers will be rendered constitutionally ineffective by the trial court's order. A lawyer's decision to abide by a trial court's orders—after appropriate objections—does not fall below an objective standard of reasonableness under prevailing professional norms. See Yost, 278 Mich App at 387.

III. CONCLUSION

The trial court did not err when it granted the prosecution's motion in limine to the extent that it precluded both defendants from asserting or presenting evidence in support of the immunity stated under § 4 or the defense provided under § 8 of the MMA. The order does not, however, preclude Eric Watkins from presenting evidence that his father was a registered, but non-compliant, patient under the MMA for purposes other than establishing a defense under the MMA.

Affirmed.

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Footnotes

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1. The Legislature used the spelling "marihuana" in the MMA; however, by convention, this Court uses the more common spelling "marijuana" in its opinions.

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2. The purpose of a preliminary examination is to determine whether there is probable cause for charging a defendant with a felony. People v Plunkett, 485 Mich. 50, 57; 780 N.W.2d 280 (2010). And the burden of proof at a preliminary examination is quite minimal: the prosecutor need only present evidence from which a person of ordinary prudence might entertain a reasonable belief of the accused's guilt. See People v Yost, 468 Mich. 122, 126; 659 N.W.2d 604 (2003). As such, there is little incentive for a defendant to develop his or her defense at the preliminary examination or otherwise vigorously challenge the prosecutor's proofs. For that reason, we question the validity of drawing conclusions as to a defendant's ability to establish a defense under the MMA premised solely on the proofs adduced at a preliminary examination. Rather, we believe that the better practice is to permit the defendant a hearing under § 8 in order to give the defendant a full and fair opportunity to demonstrate that there is a question of fact as to whether he or she has complied with the requirements for immunity or a defense under the MMA. Nevertheless, we are bound by the previous panel's decision and will proceed on the assumption that defendants cannot establish a question of fact as to whether the plants were properly secured. See Grievance Administrator v Lopatin, 462 Mich. 235, 259-260; 612 N.W.2d 120 (2000).

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3. The trial court did not err to the extent that it precluded Eric Watkins from presenting an immunity defense under MCL 333.26424(i) because any medical use of the marijuana was plainly not in accordance with the act. Likewise, there is no evidence that he was merely assisting the use or administration of marijuana.

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PEOPLE v. DANTO
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
MICHAEL SCOTT DANTO, Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
ANDREW BENJAMIN NATER, Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ANDREW BENJAMIN NATER, Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
MICHAEL SCOTT DANTO, Defendant-Appellant.
Nos. 302986, 302991, 303064, 303525
Court of Appeals of Michigan.

November 8, 2011, 9:05 a.m.
Before: MARKEY, P.J., and SAAD and GLEICHER, JJ.

MARKEY, P.J.
In these four consolidated, interlocutory appeals both the prosecution and defendants appeal the trial court's pretrial evidentiary rulings. In Docket No. 302986 (Danto) and Docket No. 302991 (Nater), the prosecution appeals by leave granted the trial court's order denying its motion to admit evidence of other acts committed by defendant. In Docket No. 303064 (Nater) and Docket No. 303525 (Danto), defendants appeal by leave granted the trial court's order granting the prosecution's motion to preclude assertion of the Michigan Medical Marihuana Act (MMA), MCL 333.26241 et seq.,1 as an affirmative defense and to preclude reference to the MMA at trial. Danto also appeals the trial court's order denying his motion for an evidentiary hearing and to dismiss under the MMA. We affirm the trial court's orders in Docket Nos. 303064 and 303525, reverse the trial court's orders in Docket Nos. 302986 and 302991, and remand for further proceedings.
In Docket No. 302986, the prosecution argues that the trial court abused its discretion in barring the admission of evidence of other acts Danto committed. We agree. We review a trial court's evidentiary decisions for an abuse of discretion. People v Martzke, 251 Mich.App. 282, 286; 651 N.W.2d 490 (2002). A trial court abuses its discretion when its decision falls outside the range of principled outcomes. People v Blackston, 481 Mich. 451, 460; 751 N.W.2d 408 (2008).
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
"To be admissible under MRE 404(b), bad-acts evidence must satisfy three requirements: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; and (3) the probative value of the evidence must not be substantially outweighed by [the danger of] unfair prejudice." People v Kahley, 277 Mich.App. 182, 184-185; 744 N.W.2d 194 (2007). Also, the trial court, on request, may instruct the jury regarding the limited use of the evidence. People v Watson, 245 Mich.App. 572, 577; 629 N.W.2d 411 (2001).
Evidence relevant to a noncharacter purpose is admissible under MRE 404(b) even if it also reflects on a defendant's character. Evidence is inadmissible under this rule only if it is relevant solely to the defendant's character or criminal propensity. Stated another way, the rule is not exclusionary, but is inclusionary, because it provides a nonexhaustive list of reasons to properly admit evidence that may nonetheless also give rise to an inference about the defendant's character. Any undue prejudice that arises because the evidence also unavoidably reflects the defendant's character is then considered under the MRE 403 balancing test, which permits the court to exclude relevant evidence if its "probative value is substantially outweighed by the danger of unfair prejudice . . . ." MRE 403. [People v Mardlin, 487 Mich. 609, 615-616; 790 N.W.2d 607 (2010) (footnotes omitted; emphasis in original).]
All relevant evidence is prejudicial; only unfairly prejudicial evidence may be excluded. People v McGhee, 268 Mich.App. 600, 613-614; 709 N.W.2d 595 (2005). "Unfair prejudice exists when there is a tendency that evidence with little probative value will be given too much weight by the jury." Id. at 614. Unfair prejudice may arise where considerations extraneous to the merits of the case, such as jury bias, sympathy, anger, or shock, are injected. Id.
Here, the prosecution moved to admit evidence that on the same date that Danto and Nater's residence was searched, officers executed a search warrant at a café in which marijuana was sold and smoked. At the café, Danto was found at a table with 323 grams of marijuana packaged for sale, marijuana hash, THC candy, packaging material, a scale, a tally sheet, a cell phone, and $2,434 in cash. A document in the cash box at the front door of the café indicated that Danto had paid an entrance fee to sell marijuana at the café. The proper purposes for the evidence included establishing Danto's knowledge of and control over the marijuana found in his residence. "Constructive possession of an illegal substance requires proof that the defendant knew of its character." McGhee, 268 Mich App at 610. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. Danto was not present in the home when the search warrant was executed, and he contended that the small amount of marijuana found in his bedroom was within the amount permitted by the MMA. Therefore, whether Danto knew about and controlled the larger amount of marijuana found in the living room was a material issue. Evidence that Danto was found in possession of a large quantity of marijuana that was packaged for sale identically to the marijuana found in the living room of his home on the same day would tend to make it more likely than not that he knew the substance in the living room was marijuana and that he controlled it.
The prosecution has identified the additional proper purpose of establishing Danto's intent to distribute the marijuana. "[P]ossession with intent to distribute an illegal substance requires the specific intent to distribute." McGhee, 268 Mich App at 610. In People v Williams, 240 Mich.App. 316, 324; 614 N.W.2d 647 (2000), this Court upheld the admission of evidence of the defendant's prior drug transactions within five weeks before his arrest because "the evidence was directly relevant to intent, knowledge, and scheme, all of which were at issue in the case. The relevance was direct, in that there was a direct relationship between the prior sales and the crimes charged, and did not involve an impermissible inference to character." And, in People v Mouat, 194 Mich.App. 482, 484; 487 N.W.2d 494 (1992), this Court affirmed admission of testimony about prior drug activity that showed the defendant's intent to distribute cocaine. Here, a reasonable inference exists that the marijuana grown in Danto's home was the source of the marijuana he possessed at the café given the identical packaging and the substantial number of plants being grown in the residence. Also, Danto's packaging of the marijuana for sale and possession of other accoutrements of drug trafficking at the café tends to increase the likelihood that he intended to distribute the marijuana found at his residence.
The next question is whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. As discussed, evidence is unfairly prejudicial when it tends to adversely affect the objecting party's position by injecting extraneous considerations such as jury bias, sympathy, anger, or shock. McGhee, 268 Mich App at 614. No such extraneous considerations have been identified here. The trial court did not explain why it concluded that the prejudicial effect substantially outweighed the probative value of the evidence. Danto contends that the evidence was unfairly prejudicial for two reasons: first, he would be unable to effectively cross-examine the undercover officers regarding the use of false medical marijuana cards to obtain access to the café given the trial court's ruling precluding mention of medical marijuana at trial; and, second, the evidence would confuse or prejudice the jury because the Oakland County Prosecutor and law enforcement officials are engaged in a concerted and well-publicized attack on medical marijuana. Neither argument is persuasive.
The fact that undercover officers used false medical marijuana cards to gain access to the café has no bearing on the theory under which the other-acts' evidence was offered. The prosecution seeks to use evidence that Danto possessed identically-packaged marijuana for sale and accoutrements of drug trafficking at the café to establish his knowledge of and control over the marijuana in his home and his intent to distribute that marijuana. Whether an undercover officer used a false medical marijuana card to gain entry into the club has no bearing on whether Danto knew about, possessed, or intended to distribute the marijuana found in his home. Further, no evidence exists that any false cards were ever shown to Danto.
Also, Danto's allegation that the Oakland County Prosecutor and law enforcement officials are engaged in a concerted and well-publicized attack on medical marijuana does not establish prejudice. Danto has offered no particular facts to establish that any such campaign against medical marijuana exists, nor has he presented any meaningful argument as to how even very zealous enforcement of the law results in unfair prejudice to the defense. Accordingly, no basis exists on which to find that the admission of the other-acts' evidence would be unfairly prejudicial to Danto. We conclude that the trial court's exclusion of the other-acts evidence falls outside the range of principled outcomes.
In Docket No. 302991, the prosecution argues that the trial court abused its discretion in barring the admission of evidence of other acts Nater committed. We agree. The prosecution moved to admit evidence that Nater had sold marijuana to undercover officers three times in the approximately one month preceding the execution of the search warrant on his and Danto's home. As in Docket No. 302986, we agree with the prosecution that the other-acts evidence was offered for proper purposes of establishing Nater's knowledge of and control over the marijuana found in his home. Like Danto, Nater was not in the house when the search warrant was executed. Evidence that Nater had sold marijuana on three occasions in the month preceding the execution of the search warrant and that after one of the sales was followed back to the house at which the marijuana was found would tend to make it more likely that he knew about and controlled the marijuana found in the house and that he knew that the substance was marijuana. In addition, the evidence was relevant to the proper purpose of establishing Nater's intent to distribute the marijuana found in his home. Reasonable inferences exist that the marijuana operation in Nater's home was the source of the marijuana that he sold on the prior occasions and that as part of his ongoing scheme to manufacture and sell marijuana, he intended to sell the marijuana found in the home.
As in Danto's case, the trial court failed to explain why it concluded that the prejudicial effect of the other-acts' evidence substantially outweighed its probative value. Nater argued below that admitting evidence of prior medical marijuana sales and activities while precluding references to medical marijuana at trial would deny him his constitutional rights to confrontation and to present a defense because he would be unable to effectively cross-examine the officers regarding their use of false medical marijuana cards to gain entry into the café where the sales occurred. If this was the basis for the trial court's ruling, then we disagree. The right to present a defense extends only to relevant evidence. People v Likine, 288 Mich.App. 648, 658; 794 N.W.2d 85 (2010). The fact that undercover officers used false medical marijuana cards to gain access to the café has no bearing on whether Nater knew about, possessed, or intended to distribute the marijuana found in his home. Further, no evidence exists that any false medical marijuana cards were ever shown to Nater himself.
In any event, Nater has identified no provision in the MMA that would have authorized him to sell marijuana to the undercover officers. MCL 333.26424(b) provides that "[a] primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty . . . for assisting a qualifying patient to whom he or she is connected through the [state department of community health's] registration process with the medical use of marihuana in accordance with this act . . .." Nater does not claim or offer evidence that he was connected through the department's registration process with the undercover officers to whom he sold marijuana. Therefore, because the MMA did not authorize Nater's sales to the officers, no unfair prejudice would arise from precluding cross-examination of those officers regarding medical marijuana. We conclude that the trial court abused its discretion in refusing to admit the other-acts evidence.
In Docket Nos. 303064 and 303525, defendants argue that the trial court erred in relying on People v King, ___ Mich App ___; ___ NW2d ___ (2011), lv gtd 489 Mich. 957 (2011), to preclude defendants from raising a defense under section 8 of the MMA and from mentioning medical marijuana at trial because King conflicts with two prior decisions of this Court. We disagree. "For an issue to be preserved for appellate review, it must be raised, addressed, and decided by the lower court." People v Metamora Water Service, Inc., 276 Mich.App. 376, 382; 741 N.W.2d 61 (2007). Although Nater raised this argument below, Danto failed to do so. Danto opposed the prosecution's motion on other grounds, but an objection on one ground is insufficient to preserve an appellate argument based on a different ground. People v Bulmer, 256 Mich.App. 33, 35; 662 N.W.2d 117 (2003). Because Danto failed to preserve this issue, our review in his case is limited to plain error affecting substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). Whether King conflicts with prior decisions of this Court is a question of law we review de novo. People v Waclawski, 286 Mich.App. 634, 693; 780 N.W.2d 321 (2009). We also review de novo issues of statutory construction. People v Malone, 287 Mich.App. 648, 654; 792 N.W.2d 7 (2010).
Section 4 of the MMA, MCL 333.26424, provides various protections for qualifying patients and primary caregivers. Subsection 4(a) states:
(a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount. [Emphasis added.]
Subsection 4(b) provides:
(b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act, provided that the primary caregiver possesses an amount of marihuana that does not exceed:
(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and
(2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and
(3) any incidental amount of seeds, stalks, and unusable roots. [Emphasis added.]
"`Qualifying patient' means a person who has been diagnosed by a physician as having a debilitating medical condition." MCL 333.26423(h). "`Enclosed, locked facility' means a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient." MCL 333.26423(c).
Section 8 of the MMA, MCL 333.26428, provides a defense to a prosecution involving marijuana:
(a) Except as provided in section 7, 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:
(1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;
(2) The patient and the patient's primary caregiver, if any, were 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; and
(3) The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition.
(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a). [Emphasis added.]
Section 7 of the MMA, MCL 333.26427, further limits the medical use of marijuana:
(a) The medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.
(b) This act shall not permit any person to do any of the following:
(1) Undertake any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice.
(2) Possess marihuana, or otherwise engage in the medical use of marihuana:
(A) in a school bus;
(B) on the grounds of any preschool or primary or secondary school; or
(C) in any correctional facility.
(3) Smoke marihuana:
(A) on any form of public transportation; or
(B) in any public place.
(4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.
(5) Use marihuana if that person does not have a serious or debilitating medical condition.
(c) Nothing in this act shall be construed to require:
(1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana.
(2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.
(d) Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marihuana to avoid arrest or prosecution shall be punishable by a fine of $500.00, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marihuana other than use undertaken pursuant to this act.
(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.
In People v Redden, 290 Mich.App. 65; ___ NW2d ___ (2010), the majority rejected the prosecution's argument that the affirmative defense under § 8 was unavailable because the defendants did not possess valid registry identification cards under § 4. The majority concluded that the MMA provides two ways to show the legal use of marijuana for medical purposes: obtaining a registry identification card under section 4 or remaining unregistered and then asserting the affirmative defense under section 8 if faced with prosecution. Whereas § 4 refers to a "qualifying patient" who has been issued and possesses a registry identification card which protects the qualifying patient from "arrest, prosecution, or penalty in any manner . . .," MCL 333.26424(a), § 8 refers only to a "patient" who may "assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana . . . ." MCL 333.26428(a). Thus, the majority concluded that the two sections provide differing levels of protection, and § 8 may apply to a patient who does not satisfy § 4.2 The majority nonetheless affirmed the circuit court's reversal of the district court's denial of a bindover because "colorable issues" existed for the trier of fact regarding elements of the § 8 defense. Redden, 290 Mich App at __ (slip op at 12).
The majority in Redden also noted that the defendants in that case did not raise the issue of whether a § 8 defense was viable where the marijuana was not kept in an enclosed, locked facility. Redden, 290 Mich App at ___ (slip op at 11 n 8). The majority observed that the language regarding an enclosed, locked facility was contained in § 4 rather than § 8. Id. Nonetheless, the majority expressly declined to address the issue without the benefit of full briefing by the parties. Id.
In People v Kolanek, ___ Mich App ___; ___ NW2d ___ (2011), lv gtd 489 Mich. 956 (2011), the Court held that the defendant's post-arrest affidavit and his pre-MMA enactment discussion with his physician were insufficient to meet the requirements of a § 8 defense. Consequently, the Court remanded for reinstatement of the charge of possession of marijuana, MCL 333.7403(2)(d), but held that the MMA defense could be raised at trial:
As the statute does not provide that the failure to bring, or to win, a pre-trial motion to dismiss deprives the defendant of the statutory defense before the factfinder, defendant's failure to provide sufficient proofs pursuant to his motion to dismiss does not bar him from asserting the Section 8 defense at trial nor from submitting additional proofs in support of the defense at that time. [Kolanek, ___ Mich App at ___ (slip op at 9).]
In King, ___ Mich App at ___ (slip op at 4), the majority held that § 8 incorporates by reference other provisions of the MMA where it states "[e]xcept as provided in Section 7 . . . ." The majority concluded that § 8's reference to § 7, and § 7(a)'s requirement that the medical use of marijuana be carried out in accordance with the provisions of the act required the defendant to comply with the growing provisions in § 4. The majority held "that, because defendant did not comply with § 4, he also failed to meet the requirements of § 8 and therefore, he is not entitled to the affirmative defense in § 8 and he is not entitled to dismissal of the charges." Id. The majority explained that an unlocked closet and a moveable chain-link dog kennel that was open on the top did not fall within the definition of an enclosed, locked facility. Id., (slip op at 6-7). Thus, because the defendant failed to comply with the requirement that he keep the marijuana in an enclosed, locked facility, he was subject to prosecution, and the trial court abused its discretion in dismissing the charges. Id., (slip op at 7).
In People v Anderson, ___ Mich App ___; ___ NW2d ___ (Docket No. 300641, issued June 7, 2011)3 (slip op at 1) (PER CURIAM), (slip op at 15-16) (M.J. KELLY, J., concurring), the majority adopted a portion of Judge Kelly's concurring opinion concluding that a trial court may bar a defendant from arguing the affirmative defense provided in § 8 of the MMA where on the basis of the undisputed evidence no reasonable jury could find that all the elements of § 8 were satisfied. Judge Kelly explained "that the defendant has the burden to establish a prima facie case for his or her affirmative defense by presenting some evidence on all the elements of that defense." Anderson, ___ Mich App at ___ (slip op at 15). If the defendant fails to establish an element of the defense, the trial court should not present the defense to the jury. Id. Judge Kelly then applied these principles to the affirmative defense available under § 8 of the MMA:
The MMA provides an affirmative defense to prosecution for any marijuana offense, but that defense is quite limited. Because of those limitations, there may be situations where a defendant simply cannot establish the right to assert a § 8 defense. In such situations, a trial court might be warranted in barring a defendant from presenting evidence or arguing at trial that he or she is entitled to the defense stated under § 8(a). Therefore, I conclude that a trial court may bar a defendant from presenting evidence and arguing a § 8 defense at trial where, given the undisputed evidence, no reasonable jury could find that the elements of the § 8 defense had been met.
Here, there is no dispute about the amount of plants that Anderson possessed or that the plants were not kept in an enclosed, locked facility. No reasonable jury could, therefore, find that he had 12 or fewer plants or that the plants were in an enclosed, locked facility. Consequently, no reasonable jury could acquit Anderson on the basis of a § 8 defense. The trial court did not err when it precluded Anderson from presenting a § 8 defense at trial. [Id. at 15-16.]
The majority adopted this portion of Judge Kelly's concurrence.
Under King and Anderson, then, an essential element of a § 8 affirmative defense is the requirement in § 4 that the marijuana be kept in an enclosed, locked facility. Defendants contend that King conflicts with Redden and Kolanek. As discussed, however, the Redden majority expressly declined to address whether a § 8 defense was viable where the marijuana was not kept in an enclosed, locked facility because the issue had not been raised or fully briefed in that case. Redden, 290 Mich App at ___ (slip op at 11 n 8). Because the issue was not resolved in Redden, the majority in King did not violate MCR 7.215(J) (1) which requires following the rule of law established by a prior, published decision of this Court. Further, although Kolanek held that a defendant's failure to bring or to win a pretrial motion to dismiss does not bar assertion of a § 8 defense at trial, Kolanek did not eliminate the defendant's burden of production. See Anderson, ___ Mich App at ___ (slip op at 1) (PER CURIAM), (slip op at 15) (M.J. KELLY, J., concurring). We thus discern no basis to conclude that King conflicts with either Redden or Kolanek.
Here, defendants have offered nothing to rebut the preliminary examination testimony that the marijuana was kept in various locations throughout defendants' home, including in the bathroom, living room, kitchen, bedrooms, and a basement with no door at the entrance. Because defendants have not met their burdens of production to establish that the marijuana was kept in an enclosed, locked facility, MCL 333.26424(4), the trial court's order precluding assertion of the MMA affirmative defense and references to the MMA at trial was not erroneous.
Finally, in Docket No. 303525, Danto argues that the trial court abused its discretion in denying his request for an evidentiary hearing under the MMA. We disagree. A trial court's decision to hold an evidentiary hearing is generally reviewed for an abuse of discretion. People v Unger, 278 Mich.App. 210, 216-217; 749 N.W.2d 272 (2008). To the extent that this issue requires interpretation of a provision of the MMA, this Court reviews statutory construction issues de novo. Malone, 287 Mich App at 654. Section 8(b) of the MMA, MCL 333.26428(b), provides that "[a] person may assert the medical purpose for using marijuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a)." This provision does not create an automatic right to an evidentiary hearing upon the filing of a motion to dismiss. It merely requires dismissal of marijuana charges if the defendant establishes the elements of the section 8 defense at an evidentiary hearing. Here, the trial court did not abuse its discretion because Danto has not identified a factual dispute to resolve at an evidentiary hearing or established that the marijuana was kept in an enclosed, locked facility, as required by MCL 333.26424(4).
We affirm in Docket Nos. 303064 and 303525, reverse in Docket Nos. 302986 and 302991, and remand for further proceedings. We do not retain jurisdiction.
GLEICHER, J. (concurring in part and dissenting in part).
I agree with the majority that the trial court abused its discretion in precluding the prosecution's presentation of "other acts" evidence under MRE 404(b).1 I also agree that defendants failed to adequately support their proffered defense under the Medical Marihuana Act (MMA), requiring the exclusion of that affirmative defense. However, I respectfully disagree with the majority's conclusion that "trial court's order precluding assertion of the MMA affirmative defense and references to the MMA at trial was not erroneous."
The trial court granted the prosecution's motion to preclude defendants from asserting an affirmative defense under the MMA. The trial court's order further provides, "neither the Defendants nor their attorneys may make any reference in the presence of the jury to the Medical Marihuana Act or the use of the term medical marijuana in conjunction with, or in reference to, the marijuana in the present case." At oral argument, the prosecuting attorney conceded that if this Court held the MRE 404(b) evidence admissible, a blanket order prohibiting mention of the MMA or "the term medical marijuana" would qualify as overbroad. The prosecutor specifically acknowledged that mention of medical marihuana would be necessary to explain the "res gestae" of the crime and the other acts evidence. Consequently, I am mystified that the majority nevertheless holds that the prosecution may introduce evidence invoking the term medical marihuana, but the defense may not.2 Defendants aptly note that their ability to cross-examine these witnesses will be limited to the point of absurdity if the trial court's order remains in place—the prosecution will be able to elicit testimony regarding the officers' undercover personas as medical marihuana purchasers, but defendants will be precluded from repeating those terms in cross-examination.
In light of our reversal of the trial court's 404(b) ruling, the challenged order now impermissibly limits defendants' ability to cross-examine the witnesses on matters likely to be brought out on direct examination, and on matters that are potentially relevant to bias and credibility. While a court may impose reasonable limits on cross-examination to protect against confusion of the issues or the introduction of only marginally relevant evidence, a comprehensive limitation of otherwise relevant cross-examination violates the Confrontation Clause. Delaware v Van Arsdall, 475 U.S. 673, 679; 106 S.Ct. 1431; 89 L Ed2d 674 (1986). To prevent prejudice to defendants, I would reverse that portion of the trial court's March 8 one-sided order precluding defendants' reference to the MMA or "medical marijuana" at trial.
Footnotes
1. The MMA uses the spelling "marihuana." This opinion follows the lead of People v King, ___ Mich App ___; ___ NW2d ___ (Docket No. 294682, issued February 3, 2011), lv gtd 489 Mich. 957 (2011), and People v Redden, 290 Mich.App. 65; ___ NW2d ___ (2010), and uses the more common spelling "marijuana" except in quotations.
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2. Whether § 4(a) must be satisfied in order to assert a valid defense under § 8(a) of the MMA is pending before our Supreme Court in People v King, 489 Mich. 957; 798 N.W.2d 510 (2011).
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3. Our Supreme Court has stayed lower court proceedings, People v Anderson, ___ Mich ___ (Docket No. 143339, issued August 23, 2011), and held further appeal in abeyance pending decisions in People v Kolanek (Docket Nos. 142695, 142712) and People v King (Docket No. 142850), People v Anderson, ___ Mich ___ (Docket No. 143339, issued September 26, 2011).
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1. At oral argument, defense counsel readily conceded that controlling Michigan law construing MRE 404(b) compelled the introduction of the prosecution's other acts evidence.
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2. According to the prosecuting attorney's oral argument, the prosecution intends to present evidence that the police found medical marihuana cards when they executed a search warrant at defendants' homes. The police acquired the MRE 404(b) evidence by using fake medical marihuana cards to enter a medical marihuana dispensary, and the prosecutor admitted that these facts would be presented to the jury in the prosecution's case.
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U.S. v. MICHIGAN DEPARTMENT OF COMMUNITY HEALTH
UNITED STATES OF AMERICA, Petitioner,
v.
MICHIGAN DEPARTMENT OF COMMUNITY HEALTH, Respondent.
Case No. 1:10-mc-109.
United States District Court, W.D. Michigan.

June 9, 2011.

AMENDED OPINION
HUGH W. BRENNEMAN, Jr., Magistrate Judge.
This matter is before the court on a "Petition to Enforce Drug Enforcement Administration Subpoena" (docket no. 1) brought by the United States, an "Emergency motion to intervene as a respondent and for stay of proceedings" (docket no. 7) brought by the Michigan Association of Compassion Clubs (MACC) and 42 John and Jane Does (Does), and motions to file amicus briefs brought by Cannabis Patients United (CPU) (docket no. 10) and Americans for Safe Access (ASA) (docket no. 12).
I. Background
The United States seeks to enforce a federal administrative subpoena issued on June 4, 2010 to the Michigan Department of Community Health (MDCH) requesting certain documents in possession of that department regarding seven specified individuals. Originally the subpoena sought the following information:
Pursuant to an investigation of violations of 21 U.S.C. 801 et seq., you are to provide copies of any and all documents, records, applications, payment method of any application for Medical Marijuana Patient Cards and Medical Marijuana Caregiver cards and copies of front and back of any cards located for the following: [names redacted in the public court record]. See U.S. Department of Justice/Drug Enforcement Administration Subpoena (In the matter of the Investigation of Case No.: IC-10-0034) (Subpoena No. IC-10-486990) (docket no. 3-1). At the hearing on this motion and in its supplemental brief the United States clarified that the subpoena has been narrowed and only seeks copies of patient and caregiver registration cards, or applications given the effect of such cards, for seven named individuals in connection with its investigation. A registration card contains a person's name, a random identification number, an address, date of birth, and expiration date. An application also identifies the certifying doctor. The subpoena as narrowed defines the scope of this opinion. Respondent has resisted complying with the subpoena due to a conflict arising from the passage of the Michigan Medical Marijuana Act ("MMMA"), MCL § 333.26421 et seq.
The federal statute authorizing the issuance of this administrative subpoena, 21 U.S.C. § 876, provides in pertinent part as follows:
(a) Authorization of use by Attorney General
In any investigation relating to his functions under this subchapter with respect to controlled substances, listed chemicals, tableting machines, or encapsulating machines, the Attorney General may subpena witnesses, compel the attendance and testimony of witnesses, and require the production of any records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to the investigation. The attendance of witnesses and the production of records may be required from any place in any State or in any territory or other place subject to the jurisdiction of the United States at any designated place of hearing; except that a witness shall not be required to appear at any hearing more than 500 miles distant from the place where he was served with a subpena. Witnesses summoned under this section shall be paid the same fees and mileage that are paid witnesses in the courts of the United States.
* * *
(c) Enforcement
In the case of contumacy by or refusal to obey a subpena issued to any person, the Attorney General may invoke the aid of any court of the United States within the jurisdiction of which the investigation is carried on or of which the subpenaed person is an inhabitant, or in which he carries on business or may be found, to compel compliance with the subpena. The court may issue an order requiring the subpenaed person to appear before the Attorney General to produce records, if so ordered, or to give testimony touching the matter under investigation. Any failure to obey the order of the court may be punished by the court as a contempt thereof. All process in any such case may be served in any judicial district in which such person may be found.
21 U.S.C. § 876(a), (c).
Section 876 was enacted over 40 years ago, in 1970, as part of the Federal Controlled Substances Act, 21 U.S.C. § 801 et seq. The Controlled Substance Act provides that, "except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally . . . (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1). The Controlled Substances Act categorizes marijuana (marihuana) as a Schedule I substance. 21 U.S.C. § 812(c) (Schedule I) (c)(10).1 To be placed on Schedule I, a substance "has a high potential for abuse," "has no currently accepted medical use in treatment in the United States," and "a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). "For marijuana (and other drugs that have been classified as `schedule I' controlled substances), there is but one express exception, and it is available only for Government-approved research projects, § 823(f)." United States v. Oakland Cannabis Buyers' Co-operative, 532 U.S. 483, 490 (2001). "By characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses." Gonzales v. Raich, 545 U.S. 1, 27 (2005).
In addition to the federal criminal laws against marijuana, the State of Michigan has had similar laws outlawing marijuana for many years. However, following approval of an initiative by the voters in 2008, the Michigan legislature carved out a very limited exemption to the state criminal laws, in the Michigan Medical Marijuana Act, which allowed physicians to prescribe marijuana for the treatment of certain medical conditions. The MMMA provides an affirmative defense in a few instances to arrest or prosecution, or other adverse action by state authorities enforcing the state prohibition against marijuana. Casias v. Wal-Mart Stores, Inc., ___ F.Supp.2d ___, 2011 WL 487591 at *7 (W.D. Mich., February 11, 2011)("All the MMMA does is give some people limited protection from prosecution by the state, or from other adverse state actions in carefully limited medical marijuana situations.").
When it enacted the MMMA, the Michigan Legislature adopted a course different from that followed by the federal government and the majority of other states, by finding that "Modern medical research, including as found by the National Academy of Sciences' Institute of Medicine in a March 1999 report, has discovered beneficial uses for marihuana in treating or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions." M.C.L. § 333.26422(a). Noting that most marijuana arrests in the United States are made under state law, the Legislature reasoned that "changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana." M.C.L. § 333.26422(b).2 Finally, while the Michigan Legislature declared its intent not to penalize the medical use of marijuana under state law, it had to acknowledge its action did not alter the existing federal prohibition against marijuana:
Although federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. The laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Vermont, Rhode Island, and Washington do not penalize the medical use and cultivation of marihuana. Michigan joins in this effort for the health and welfare of its citizens.
M.C.L. § 333.26422(c) (emphasis added).
Most of the states have not carved out a similar exception for the medical use of marijuana and neither has federal law. The use of marijuana remains a federal felony (see endnote). See 21 U.S.C. § 812. The new Michigan statute makes no claim, of course, that the federal government cannot continue to enforce federal law, or that the Michigan statute overrides federal law.3
In United States v. Hicks, 722 F.Supp.2d 829 (E.D. Mich. 2010), the court summarized Michigan's statutory regulation of medical marijuana:
As codified, the MMMA allows a "qualifying patient" who has been issued a "registry identification card" to possess up to 2.5 ounces of marijuana for medical purposes. § 333.26424(a). A qualifying patient is "a person who has been diagnosed by a physician as having a debilitating medical condition." § 333.26423(h). See also § 333.26423(a) (enumerating qualifying "debilitating medical conditions"). A qualifying patient may designate one primary caregiver "to assist with [the] patient's medical use of marihuana," who must also obtain a registry identification card to legally possess marijuana. §§ 333.26423(g), 333.26424(b). A qualifying patient, or his or her registered primary caregiver, may also cultivate up to 12 marijuana plants for that patient's care. § 333.26424(a). A primary caregiver may be registered for up to five qualifying patients, and he or she may possess up to 2.5 ounces of marijuana and 12 cultivated marijuana plants for each qualifying patient. §§ 333.26424(b), 333.26426(d).
Hicks, 722 F.Supp.2d at 832.
In creating the registry related to the issuance of the identification cards, the MMMA provided that certain information would be kept confidential:
(1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.
(2) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list is confidential and is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
(3) The department shall verify to law enforcement personnel whether a registry identification card is valid, without disclosing more information than is reasonably necessary to verify the authenticity of the registry identification card.
(4) A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1, 000.00, or both. Notwithstanding this provision, department employees may notify law enforcement about falsified or fraudulent information submitted to the department.
M.C.L. § 333.26426(h).
It is this last provision that has caused respondent to hesitate. The MDCH's reluctance to produce the requested documents because of this provision eventually prompted the United States to file the present petition seeking a federal court order to enforce the federal subpoena. In its response to the petition, the MDCH stated that it "will comply with a valid order from this Court" requiring it to comply with the subpoena, but wants this court's order "to make clear" that its employees and agents "will be immunized from liability for providing information that is confidential" under a state statute. See MDCH Memorandum of law (docket no. 6).
II. Motion to intervene
MACC and 42 purported Does moved to intervene in this matter pursuant to Fed. R. Civ. P. 24 for the purpose of opposing enforcement of the subpoena directed to MDCH. The Does seek both intervention of right under Fed. R. Civ. P. 24(a) and permissive intervention under Fed. R. Civ. P. 24(b).
A threshold question is the extent to which Fed. R. Civ. P. 24 applies in a government action to enforce an administrative subpoena issued pursuant to § 876. Courts have looked to Fed. R. Civ. P. 81(a)(5) as authority for individuals to intervene in similar proceedings, by providing that "[t]hese rules [the Federal Rules of Civil Procedure] apply to proceedings to compel testimony or the production of documents through a subpoena issued by a United States officer or agency under a federal statute, except as otherwise provided by statute, by local rule, or by court order in the proceedings." See, e.g., Donaldson v. United States, 400 U.S. 517, 528-29 (1971) (applying the predecessor rule, Fed. R. Civ. P. 81(a)(3), to allow a motion to intervene pursuant to Fed. R. Civ. P. 24 in an IRS summons enforcement action). Similarly, the court concludes Fed. R. Civ. P. 81(a)(5) authorizes the filing of a motion to intervene in this action to enforce an administrative subpoena.
Fed. R. Civ. P. 24(a) provides that the court must permit anyone to intervene who: "(1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." It appears undisputed that there is no express statutory right to challenge an administrative subpoena issued under § 876, United States v. Moffett, 84 F.3d 1291, 1293-94 (10th Cir. 1996), and intervenors have not identified any unconditional federal statutory right to intervene. Therefore, any right of intervention must be found under Rule 24(a)(2).
An applicant seeking intervention under Fed. R. Civ. P. 24(a) must establish four elements: (1) timeliness of the application to intervene; (2) the applicant's substantial legal interest in the case; (3) impairment of the applicant's ability to protect that interest in the absence of intervention; and (4) inadequate representation of that interest by parties already before the court. Providence Baptist Church v. Hillandale Committee, Ltd., 425 F.3d 309, 315 (6th Cir. 2005). The intervenors cannot establish all four elements in this case.
First, the court finds the application to intervene was not untimely.
Second, an applicant must show a substantial legal interest in the case. With respect to intervention under Fed. R. Civ. P. 24(a)(2), the only entities or individuals who have standing to dispute an administrative subpoena are the recipient of the subpoena (in this case the MDCH) and the target of the subpoena (in this case the seven individuals named in the subpoena). United States v. Phibbs, 999 F.2d 1053, 1077-78 (6th Cir. 1993). Here, the prospective intervenors are 42 John/Jane Does unknown to the court. Since the MACC is not a target of the subpoena, it can only intervene, if at all, as a representative of the Does. It became apparent at the hearing, however, that there are not, in fact, 42 actual, identifiable people claiming to be "John/Jane Does." The would-be intervenors' counsel acknowledged that the 42 John/Jane Does simply represent the maximum number of hypothetical persons who the MACC believes could be affected by the subpoena, apparently based upon its calculations that the seven identified targets of the subpoena could be caretakers assisting up to five qualifying patients each. MACC brief at 3.4 Thus, this is not the usual "John Doe" situation where a real person wants to remain anonymous. Here we do not even have a person. Since these hypothetical people do not exist, and therefore cannot have a true "legal interest" in a case, they cannot intervene. It would be an absurdity to find otherwise. This court sits to adjudicate cases or controversies between real people, not hypothetical people over whom it has no control and who exist only in the imagination of counsel. "Intervenors" fail on the second element, since they do not exist and cannot be permitted to intervene. And since there are no actual applicants to intervene, there are no Does for the MACC to represent.
Even had real people stepped forward and asked MACC to represent them, they would have to show they are one of the seven people identified in the subpoena (or, if the seven are caregivers, one of their patients). Without a showing they are one of the persons named in the subpoena (or a patient), they cannot establish a substantial legal interest.5 There has been nothing approaching such a showing here. Not only must there be real applicants, but the applicants must demonstrate a substantial legal interest in the case, and that they cannot protect that interest without intervening. Providence Baptist Church, 425 F.3d. at 315.
By its very nature, a proceeding to enforce an administrative subpoena presents limited legal and factual issues. An administrative subpoena, such as the subpoena in this action, typically is directed at a single entity or person and seeks to obtain specific information relevant to an investigation. The judicial proceeding to enforce the subpoena typically involves only the government agency seeking to enforce the subpoena and the person or entity in possession of the records.
An administrative subpoena is not self-executing and is therefore technically not a "search." It is at most a constructive search, amounting to no more than a simple direction to produce documents, subject to judicial review and enforcement. Thus, unlike the subject of an actual search, the subject of an administrative subpoena has an opportunity to challenge the subpoena before yielding the information. In the course of that resistance, the Fourth Amendment is available to the challenger as a defense against enforcement of the subpoena.
United States v. Sturm, Ruger & Company, Inc., 84 F.3d 1, 3-4 (1st Cir. 1996) (addressing enforcement of an administrative subpoena issued by the Occupational Safety and Health Administration) (internal citations omitted). Given the limited issues addressed during a proceeding to enforce an administrative subpoena, an applicant seeking to intervene faces a substantial burden to establish the second element under Fed. R. Civ. P. 24(a), i.e., that the applicant has a substantial legal interest in the enforcement proceeding. However, the target does not have automatic standing to challenge the subpoena. Courts have held that a target has standing to dispute an administrative subpoena issued under § 876 on Fourth Amendment grounds, but only if he can demonstrate a legitimate expectation of privacy attached to the records sought by the subpoena. Id. See also United States v. Plunk, 153 F.3d 1011, 1020, amended by 161 F.3d 1195 (9th Cir. 1998), abrogated on other grounds by United States v. Hankey, 203 F.3d 1160, 1169 n. 7 (9th Cir. 2000) (target of § 876 subpoena lacked standing to challenge the subpoena, which was directed at a third-party business, unless he could demonstrate a legitimate expectation of privacy attaching to the records obtained); Moffett, 84 F.3d at 1293 (the right or standing to contest the constitutionality of a search under a § 876 subpoena is subsumed under substantive Fourth Amendment doctrine, which requires the person claiming the violation to show a legitimate expectation of privacy in the information); United States v. Thompson, Crim. No. 07-303-1, 2010 WL 4641663 at *15 (W.D. Pa. Nov. 8, 2010) (observing that "[w]hen DEA administrative subpoenas are issued to third parties pursuant to § 876(a), courts have held defendants lack standing to dispute their issuance," and that "a defendant demonstrates standing to challenge administrative subpoenas issued to third parties when he can show `a legitimate expectation of privacy attaching to the records obtained'") (quoting Phibbs, 999 F.2d at 1078); United States v. Key, No. 3:09CR-179-S, 2010 WL 3463756 at *1 (W.D. Ky. Sept. 1, 2010); United States v. Mountain States Telephone & Telegraph Company, 516 F.Supp. 225, 231 (D. Wyo. 1981).
Even assuming we had real people (albeit calling themselves John and Jane Does) which we do not, the would-be intervenors' arguments that they have a substantial legal interest in this matter, that such interest will be impaired in the absence of intervention, and that there is inadequate representation of that interest by the respondent who is already before the court, all hinge on intervenors' contention that they have a reasonable expectation of privacy that has been placed in jeopardy by this administrative subpoena. This is simply not the case. For the reasons discussed below, applicants if they existed would have no reasonable expectation of privacy here on several levels.
The essence of the right to privacy is one's expectation of it. Katz v. United States, 389 U.S. 347 (1967) (Application of Fourth Amendment depends upon whether a defendant can claim a "reasonable expectation of privacy" that was invaded by government). Would-be intervenors simply refuse to confront the elephant in the middle of the room; they try to tip-toe around it, or close their eyes to it. The elephant, of course, is the fact that federal law made use of marijuana a felony years ago, long before Michigan voted to not prosecute people who use it for medical purposes. Michigan also made the use of marijuana a crime (and it still does); even medical marijuana, although the MMMA now provides an affirmative defense so that certain medical marijuana users cannot be prosecuted for violating Michigan's criminal law against marijuana. Prior to the passage of the MMMA, no one would have dreamt that an investigation by the Drug Enforcement Administration, or by the Michigan State Police, into the use or distribution of marijuana would have violated any "privacy rights to use marijuana." Everybody investigated drug trafficking. There was no expectation of privacy at that time.
When Michigan adopted the MMMA with its confidentiality provisions, it, of course, only changed Michigan law. The very text of the MMMA recognizes that "federal law currently prohibits any use of marijuana" (MCL § 333.26422(c)). Thus, anyone who is not deluding himself or trying to push an agenda knows that the confidentiality provisions are only binding on the State of Michigan and its agents, not the federal government and its agencies. "[T]he MMMA has no affect on federal law, and the possession of marijuana remains illegal under federal law, even if it is possessed for medicinal purposes in accordance with state law." United States v Hicks, 722 F.Supp.2d at 833. The use of marijuana continues to be a federal felony and reasonable persons would expect the DEA to continue to investigate those who use or traffic in marijuana.6
To the extent that the supporters of the Medical Marijuana Initiative oversold the "confidentiality" provisions to the general populous, they performed a disservice to their constituency. The nationwide federal law against marijuana, and the nationwide federal organizations that enforce that law, were the same the day after Michigan adopted the MMMA as they were the day before. They did not go away. Thus, no reasonable person can expect to have a right of privacy from federal investigation when they violate federal laws. The MMMA card affords its holder no greater cloak of privacy than did the emperor's new clothes.7 To believe the contrary is simply to close one's eyes to reality. But when you open your eyes, the emperor is still naked; the elephant is still in the room.
Regardless, however, an expectation of privacy in these cards is also unreasonable for a separate reason: the cards are designed to be shown to law enforcement. Petitioner is seeking the medical marijuana identity cards of seven persons already identified in the subpoena. These cards simply contain the user's name (already known to petitioner) and common identifying information (e.g., address, date of birth, as well as a random identification number and an expiration date). The purpose of these cards — their very reason d'etre apparently &mdashl is to provide their holders with something they can show the police if they are stopped because they have marijuana. Having this card not only prevents the prosecution of the individual (under state law), but his arrest as well. Obviously, the card is not going to do the medical marijuana patient much good if he does not display it to the officer when he is stopped. Thus, medical marijuana patients or caregivers cannot reasonably expect to have a privacy interest in the very cards they intend to present to law enforcement. (The cards, of course, have no information on them about the carrier's medical problem, his or her medical history, or the extent of the patient's marijuana treatment.)
For each of these reasons, there is no expectation of privacy, and therefore applicants can demonstrate neither a substantial legal interest nor the inability to protect it absent intervention. Providence Baptist Church, supra.8
Nor has the MACC demonstrated that it has standing as an association to intervene in this action on behalf of the Does. "[W]hether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought." Warth v. Seldin, 422 U.S. 490, 515 (1975).
If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind.
Id. MACC has not cited any authority that it can intervene as an association where the federal government seeks to enforce a § 876 administrative subpoena directed at a state agency in a criminal investigation setting. But assuming, arguendo, such authority, the "Does" are conceptual only and the MACC has presented no evidence linking its members to the records sought in the administrative subpoena other than to state that "upon information and belief" some MACC members are medical marijuana patients currently being targeted by the subpoena. Intervenor's Brief at p. 5 (docket no. 7). Because the MACC has not demonstrated that any of its 42 hypothetical Does are targets, it cannot be seen as representing anyone claiming a substantial legal interest (assuming such an interest existed) relating to the administrative subpoena sufficient to allow it to intervene under Fed. R. Civ. P. 24(a)(2).
Fed. R. Civ. P. 24(b)(1) provides that the court may permit anyone to intervene who: "(A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(3) provides that "in exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." For the same reasons discussed above, the would-be intervenors lack standing for permissive intervention under Fed. R. Civ. P. 24(b). They do not have a conditional right to intervene under Fed. R. Civ. P. 24(b)(1)(A). And neither MACC nor the 42 Does have demonstrated that they are targets of the subpoena, or have a substantial legal interest in this litigation since they have no reasonable expectation of privacy under the facts of this case. Because they are not targets of the investigation, applicants do not have a claim or defense that shares a common question of law or fact with the main action under Fed. R. Civ. P. 24(b)(1)(B, which involves the narrow issue of whether to enforce an administrative subpoena. The MACC's generalized interest in advocating with respect to the regulation of medical marijuana is insufficient to give it standing to intervene in this action, Further involvement by these hypothetical intervenors will only delay this matter unnecessarily.
Accordingly, the motion to intervene and to stay the proceedings (docket no. 7) will be denied.
III. Motions to file amicus briefs
Two organizations, Cannabis Patients United (CPU) and Americans for Safe Access (ASA), have moved to file amicus briefs. The decision to grant amicus status is within the sound discretion of the court and depends upon "a finding that the proffered information of amicus is timely, useful, or otherwise necessary to the administration of justice." United States v. Michigan, 940 F.2d 143, 165 (6th Cir. 1991). "The orthodox view of amicus curiae was, and is, that of an impartial friend of the court — not an adversary party in interest in the litigation," however, over the years, "some courts have departed from the orthodoxy of amicus curiae as an impartial friend of the court and have recognized a very limited adversary support of given issues through brief and/or oral argument." Id. at 164-65 (emphasis in original). "Classical participation as an amicus to brief and argue as a friend of the court was, and continues to be, a privilege."
The proposed amicus briefs in this instance fall into the adversarial category. They are from groups who strongly support the use of marijuana as medicine. After reviewing the submissions of the CPU and ASA (and the would-be intervenors as possible amicus curiae), the court finds no benefit in allowing these briefs to be filed, because they contain little information that is useful or otherwise necessary to resolve the immediate petition before the court. To the contrary, they have the potential to confuse the issue. While the proposed briefs advocate against federal interference in Michigan's new medical marijuana registry program, point out what they perceive as "acute" privacy concerns relating to marijuana use generally, and provide commentary on issues ranging from the use of medical marijuana in other states to the so-called "Obama-care" legislation, this exegesis is beyond the point and are not beneficial in addressing enforcement of the limited administrative subpoena before this court.
For example, CPU, ASA and the prospective intervenors rely on Fed. R. Crim. P. 17(c) as controlling the review of the administrative subpoena in this action, and refer to decisions applying that rule, e.g., In re: The Matter of the Grand Jury Subpoena for THCF Medical Clinic Records, 504 F.Supp.2d 1085 (E.D. Wash. 2007). Their arguments in this regard are neither helpful nor applicable, because the present controversy does not involve enforcement of a subpoena issued under Fed. R. Crim. P. 17. Rule 17 pertains to subpoenas that may be served by both federal officials (prosecutors) and private parties (defendants in criminal cases), or by a federal Grand Jury. Administrative subpoenas, on the other hand, can only be issued by federal officials or agencies of the executive branch authorized by Congress to do so pursuant to that agency's adjudicative or investigative functions. The general rule is that orders enforcing subpoenas issued in criminal actions or in Grand Jury proceedings, are not final and not appealable. The subpoenaed party may only appeal from a contempt order. An administrative subpoena may be appealed immediately. While administrative subpoenas and Grand Jury subpoenas may be analogous in some respects, they are different creatures, differently reviewed. See, e.g., Phibbs, 999 F.2d at 1077 fn. 8 (noting that an administrative subpoena issued under § 876 is "distinct from Rule 17(c) of the Federal Rules of Criminal Procedure"); United States v. Symonevich, No. 09-10030-GAO, 2010 WL 98963 at *1 (D. Mass. Jan. 8, 2010) (distinguishing an administrative subpoena issued under § 876 from a trial subpoena issued under Fed. R. Crim. P. 17).
The amicus briefs are also premised on the belief that the government is seeking medical information pertaining to certain marijuana users. But as previously noted, the present subpoena no longer seeks this information. This distinguishes this case, for example, from the decision In re: The Matter of Grand Jury Subpoena for THCF Medical Clinical Records, supra, where "significant dosage information" was sought in the subpoenaed records.

In declining to accept the amicus briefs for filing, the court has not ignored the briefs themselves, but has necessarily read and considered them in making its decision. Thus, the advocates have essentially achieved their purpose in getting their arguments before the court. Also, the court allowed the attorney for the proposed intervenors to argue at length at the hearing. Attorneys submitting the two amicus briefs were offered the opportunity to speak. One declined, and one left the hearing early.
The court finds for the reasons discussed that the proposed amicus briefs are unnecessary to a resolution of the limited issue before the court, and potentially confusing. Accordingly, the motions to file amicus briefs (docket nos. 10 and 12) will be denied, and the intervenors' brief will not be treated as an amicus brief.
IV. Enforcement of the administrative subpoena
"It must be emphasized that a district court's role in the enforcement of an administrative subpoena is a limited one." United States v. Markwood, 48 F.3d 969, 976 (6th Cir. 1995). "Following Supreme Court precedent on the enforcement of administrative subpoenas, this circuit has held that a subpoena is properly enforced if 1) it satisfies the terms of its authorizing statute, 2) the documents requested were relevant to the [agency's] investigation, 3) the information sought is not already in the [agency's] possession, and 4) enforcing the subpoena will not constitute an abuse of the court's process." Doe v. United States, 253 F.3d 256, 265 (6th Cir. 2001). The agency has the burden to satisfy the first three prongs of the test, while the respondent has the burden of establishing an abuse of court process under the fourth prong. See id. at 265-72; Chao v. Potter, No. 1:05-mc-61, 2005 WL 4839145 at *2 (W.D. Mich. Aug. 10, 2005) (finding that "[t]he magistrate judge correctly imposed upon the Secretary the burden of satisfying the first three prongs of the test and imposed upon respondents the burden of demonstrating that enforcement of the subpoena would constitute an abuse of process").
A. Does the subpoena comply with the requirements of § 876?
The subpoena was issued pursuant to § 876 as part of an ongoing investigation of possible violations of the Controlled Substances Act by a very limited number of specified individuals in the Lansing, Michigan area. See Declaration of Special Agent Scott (docket no. 3). This is an appropriate purpose authorized by § 876. Courts have held that "[a] subpoena issued under 21 U.S.C. § 876 is not restricted for use solely in enforcing the regulatory provisions of the Controlled Substances Act." Mountain States Telephone & Telegraph Company, 516 F.Supp. at 229. In addressing this issue 30 years ago, the court observed:
That an administrative subpoena may be used for criminal investigations is not a novel proposition, and is supported by the legislative history of 21 U.S.C. § 876. D.E.A.'s predecessor agencies have long been authorized to issue investigative or administrative subpoenas, the vast majority of which were issued for use in criminal investigations.
Id. at 230. Similarly, in United States v. Hossbach, 518 F.Supp. 759, 765 (D. C. Pa. 1980) the court found that § 876 subpoenas were authorized for use in both investigation and enforcement:
Clearly the statute [§ 876] expressly grants the Attorney General subpoena power "in any investigation" conducted by him pursuant to his powers and duties under the Comprehensive Drug Abuse Prevention and Control Act of 1970. This statute was intended as a comprehensive federal program to place certain drugs and other substances under strict federal controls to be administered by the Attorney General. The Act provided the Attorney General with broad administrative duties as well as enforcement duties, both criminal and civil.
Respondent has failed to comply with the subpoena due to the confidentiality provision in the MMMA which places a criminal penalty on the disclosure of information related to qualifying patients and caregivers issued a registry identification card. As a state law authorizing the use of medical marijuana, the MMMA cannot negate, nullify or supersede the federal Controlled Substances Act, which criminalized the possession and distribution of marijuana throughout the entire country long before Michigan passed its law. "It is a seminal principle of our law `that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them.'" Hancock v. Train, 426 U.S. 167, 178 (1976), quoting McCulloch v. Maryland, 17 U.S. 316, 426 (1819); United States v. Hicks, 722 F.Supp.2d at 833 ("It is indisputable that state medical marijuana laws do not, and cannot, supercede federal laws that criminalize the possession of marijuana.").
The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is superior to that of the States to provide for the welfare or necessities of their inhabitants, however legitimate or dire those necessities may be.
Gonzales, 545 U.S. at 29 (holding that the Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law) (internal quotations omitted). See, also, United States v. $186,416.00 in U.S. Currency, 590 F.3d 942, 945 (9th Cir. 2010) ("[t]he federal government has not recognized a legitimate medical use for marijuana. . . there is no exception for medical marijuana distribution or possession under the federal Controlled Substances Act[.]"); United States v. Scarmazzo, 554 F.Supp.2d 1102, 1109 (E.D. Cal. 2008) (Federal law prohibiting sale of marijuana is valid, despite any state law suggesting medical necessity for marijuana"); United States v. Landa, 281 F.Supp.2d 1139, 1145 (N.D. Cal. 2003) ("Our Congress has flatly outlawed marijuana in this country, nationwide, including for medicinal purposes.").
It does not matter that Congress has stated its intent not to "occupy the field" of drug enforcement. 21 U.S.C. § 903 ("[n]o provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together"). See Goldsby v. United States, 152 Fed.Appx. 431, 438 (6th Cir. 2005) (observing that "21 U.S.C § 903 states that Congress did not intend to `occupy the field' of drug enforcement to the exclusion of the states"). The Supremacy Clause operates to resolve conflicts between federal and state law in areas, such as drug enforcement, where Congress does not "occupy the field."
Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when compliance with both federal and state regulations is a physical impossibility, or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713 (1985) (internal quotation marks and citations omitted).
The Michigan Legislature, which acknowledged in its own "Findings and Declarations" that "federal law . . . prohibits any use of marihuana," cannot create a statutory obstacle to the federal government's enforcement of federal law regulating this controlled substance. The MMMA's confidentiality provision `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,' by preventing the federal government from using a proper federal subpoena to obtain records which involve a controlled substance, the use of which is prohibited by federal law, i.e., marijuana and marijuana plants. The MMMA's confidentiality provision must be and is nullified to the extent it conflicts with the federal law by preventing the federal government's exercise of its subpoena power under § 876. Accordingly, the subpoena satisfies the terms of its authorizing statute.9
B. Does the subpoena seek documents relevant to the investigation?
The question of an administrative subpoena's relevance should be construed broadly. Doe, 253 F.3d at 266. The court defers to the agency's appraisal of relevancy, which must be accepted so long as it is not obviously wrong. N.L.R.B. v. American Medical Response, Inc., 438 F.3d 188, 193 (2nd Cir. 2006). Stated another way, documents requested in an administrative subpoena issued by an agency should be produced where "[t]he evidence sought by the subpoena was not plainly incompetent or irrelevant to any lawful purpose of the [agency] in the discharge of [its] duties under the Act." Endicott Johnson Corporation v. Perkins, 317 U.S. 501, 509 (1943) (ordering production of documents requested in an administrative subpoena issued by the Secretary of Labor).
Here, the subpoena was issued as part of an investigation for violations of the Controlled Substances Act. The DEA is a federal law enforcement agency. It is charged with, among other things, investigating the possession, manufacture and disposition of marijuana, a controlled substance, which are violations of federal law. The documents sought here include cards identifying persons who are presumably involved in possessing and distributing marijuana contrary to federal law. The subpoena clearly seeks documents relevant to the investigation, the conduct of which is a lawful function of the DEA.
C. Does the agency possess the requested information?
At the petition hearing, petitioner's counsel stated that there are seven targets of the subpoena and that it has the requested information with respect to only one of the targets. Accordingly, petitioner has demonstrated that it does not possess the information sought as to six remaining targets in the subpoenas.
D. Is enforcement of the subpoena an abuse of the court's process?
"The Supreme Court has stated that a court's process is abused where the subpoena is `issued for an improper purpose, such as to harass the [investigation's target] or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation.'" Doe, 253 F.3d at 271-72, quoting United States v. Powell, 379 U.S. 48, 58 (1964). Any bad faith asserted by a challenger to the subpoena "may not be based on the improper motives of an individual agency employee, but instead must be founded upon evidence that the agency itself, in an institutional sense, acted in bad faith when it served the subpoena." Doe, 253 F.3d at 272, citing United States v. LaSalle National Bank, 437 U.S. 298, 314-16 (1978). The respondent faces a "heavy" burden in establishing institutional bad faith. Doe, 253 F.3d at 272, quoting LaSalle, 437 U.S. at 316. Respondent has neither claimed nor demonstrated any abuse of the court's process or bad faith in the issuing of this subpoena, nor is any apparent. It is the responsibility of the DEA to enforce 21 U.S.C. § 801 et seq, and even if the Attorney General of the United States has adopted a policy of not prosecuting persons who are bona fide medical marijuana users and providers as far as the MMMA is concerned, it certainly falls within the scope of the DEA's responsibility, and authority, to determine, among other things, whether those claiming the benefits of the medical marijuana statute are doing so legitimately and should enjoy the Attorney General's largess. Only the truly naive or the disingenuous would try to argue that the MMMA will not be abused by others seeking a cover for illicitly using or distributing marijuana. Those who are legitimate users or providers of marijuana under the MMMA and their supporters should be concerned that if the federal government cannot satisfy itself that the medical marijuana shield, which it is voluntarily choosing to recognize, is not also sheltering non-medical marijuana traffickers, this Administration or the next may simply pull the plug and prosecute anyone using or distributing marijuana, which it unquestionably may do under existing federal law. See, United States v. Stacy, 696 F.Supp.2d 1141, 1148 (S.D. Cal. 2010) ("a reasonable person would not rely on [statements by Attorney General Holder regarding enforcing federal drug laws against medical marijuana users] as an assurance that he or she would not be prosecuted under federal law.").
E. Conclusion
Petitioner has met its burden of satisfying the first three prongs of the Doe test for enforcing an administrative subpoena, while the respondent has not established the fourth prong. Accordingly, the "Petition to enforce Drug Enforcement Administration Subpoena" (docket no. 1) will be granted, except as to those subpoenaed records pertaining to the targeted individual whose records are currently in the agency's possession. The motion will be denied as to the records of this person. The subpoena shall be complied with forthwith. Petitioner shall furnish to the court, under seal, all seven names listed in the subpoena, and identify that person as to which the motion has been denied. The Motion to Intervene (docket no. 7) will be denied The motions to file amicus curiae briefs (docket nos.10, 12) will be denied.
Endnote: In the Controlled Substances Act, Congress has devised a closed regulatory system making it unlawful to, inter alia, manufacture, distribute, dispense or possess marijuana except as authorized by the CSA, and has classified marijuana as a Schedule I drug, expressly finding that it "has no acceptable medical uses." So pervasive is the federal prohibition against marijuana (with one exception not applicable here) that this Opinion has simply stated in several instances, speaking in the vernacular, that it is against the law to use it (although the CSA does not use that phrase), much as the MMMA has done when it states at MCL § 333.26422(c), "federal law currently prohibits any use of marijuana . . .". The purpose of this Opinion is not to explain the various ways federal marijuana criminal violations can be charged; rather, it makes the distinction that "[t]he CSA designates marijuana as contraband for any purpose," Gonzales v. Raich, 545 U.S. 1, 27 (2005), while the MMMA sometimes excuses the use of marijuana for medical reasons. The Opinion should be read in that context. This endnote is added to avoid a possible misunderstanding in this respect, and to correct certain typographical errors in case citations as well. It does not impact the resolution of this case, or the Court's prior Judgment in any way.
Footnotes
1. The statutes and case law use both the spellings "marihuana" and "marijuana." The court will use the more common spelling of "marijuana" unless addressing a direct quote.
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2. This logic rests on the assumption that federal law enforcement will not step in to fill the void.
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3. Whether or not marijuana should be considered to have an accepted medical use is not, of course, the issue before this court. For the purposes of the federal Controlled Substances Act, Congress has already made that determination. Gonzales v. Raich, supra.
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4. MACC relies on M.C.L. § 333.26426(d), which provides that "[t]he department shall issue a registry identification card to the primary caregiver, if any, who is named in a qualifying patient's approved application; provided that each qualifying patient can have no more than 1 primary caregiver, and a primary caregiver may assist no more than 5 qualifying patients with their medical use of marihuana."
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5. The odds are they would not be. Although the MACC claims (without substantiation) to represent approximately 10,000 medical marijuana users, this is only a small portion of the over 60,000-70,000 registered medical marijuana users in the state.
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6. There are a number of areas of criminal law where both the federal government and the state governments have spoken, and where the same act can violate the laws of both sovereigns. Firearms, drugs and bank robberies are common examples. But the decision by one sovereign (e.g., a state) to charge its law will not negate the law of the other sovereign (e.g., the federal law). By way of illustration, both federal and Michigan law make robbing a bank a crime. Michigan could decide tomorrow that it no longer wanted to punish people who rob banks. But this decision would not make bank robbery any less a federal crime.
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7. The reference, of course, is to Hans Christian Andersen's fairy tale about an emperor who was convinced by swindlers to believe he was wearing beautiful clothes, when in fact he was naked.
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8. This being the case, applicants also cannot show an inadequate representation of that interest by respondent.
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9. To the extent respondent seeks an order to "immunize" its employees and agents from liability for violating M.C.L. § 333.26426(h), no further order is necessary from this court, because the state's confidentiality provision is a nullity with respect to documents produced in compliance with the federal subpoena. See, e.g, In re Grand Jury Subpoena, 198 F.Supp.2d 1113, 1117 (D. Alaska 2002) (to the extent that a state law proscribes the release of evidence by Alaska's Department of Labor which is "relevant to a federal criminal investigation, it is rendered void and of no effect by the Supremacy Clause, thereby barring any possible state prosecution of the Department based on that law"). Indeed, failures to comply with an administrative subpoena can place respondent in violation of federal law.
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CASIAS v. WAL-MART STORES, INC.
764 F.Supp.2d 914 (2011)
Joseph CASIAS, Plaintiff,
v.
WAL-MART STORES, INC., and Troy Estill, Defendants.
Case No. 1:10-CV-781.
United States District Court, W.D. Michigan, Southern Division.

February 11, 2011.
Daniel W. Grow, Daniel W. Grow PLLC, St. Joseph, MI, Daniel Stewart Korobkin, Michael J. Steinberg, Aclu Fund of Michigan, Detroit, MI, Scott Matthew Michelman, Aclu Foundation, Santa Cruz, CA, for Plaintiff.
Kelly Ann Petrocelli, Barnes & Thornburg LLP, Grand Rapids, MI, Michael P. Palmer, Barnes & Thornburg LLP, South Bend, IN, Susan McCaffery Zoeller, Barnes & Thornburg LLP, Indianapolis, IN, for Defendants.

OPINION AND ORDER
ROBERT J. JONKER, District Judge.
Plaintiff Joseph Casias used to work as an at-will employee for a Wal-Mart store in Battle Creek, Michigan. The company fired him under its drug use policy after he tested positive for marijuana. Mr. Casias sued Wal-Mart Stores East, L.P.1 in state court for wrongful discharge, claiming that Wal-Mart's application of its drug use policy to him violated the Michigan Medical Marihuana Act ("MMMA").2 Plaintiff joined Troy Estill, the individual store manager, as a defendant in the case. Defendant Estill, like Plaintiff Casias, is a Michigan resident, and if Defendant Estill is a proper defendant, there is no diversity jurisdiction here. The defendants removed the matter to this Court and claim
[ 764 F.Supp.2d 916 ]

Defendant Estill needs to be disregarded in the diversity calculus. Mr. Casias moves to remand the matter back to the state court. The defendants move to dismiss the case for failure to state a claim. To rule on these motions, the Court must determine whether it has jurisdiction, and if so, whether the MMMA—whatever else it may do—eliminates the normal rule of at-will employment and creates a new protected class for certain marijuana users in Michigan.
FACTS
Joseph Casias, a resident of Battle Creek, Michigan, worked in a variety of positions at a Wal-Mart store in Battle Creek from 2004 until 2009. (Def. Notice of Removal, Docket # 1, Ex. A2, Complaint ¶¶ 14, 22-23.) Troy Estill, also a citizen of Michigan, managed the store during the period in question. (Docket # 1, Ex. B, Estill Decl. ¶ 5.) Mr. Casias was by all accounts a good employee. Wal-Mart promoted him to inventory control manager after three and a half years and named him "associate of the year" in 2008. (Compl., ¶¶ 2, 23.) The relationship between Wal-Mart and Mr. Casias was that of a normal employer and employee in Michigan. Nothing in the record indicates that Mr. Casias entered into a particular employment contract with Wal-Mart that guaranteed additional protections beyond those provided under Michigan law.
During Mr. Casias's employment, Wal-Mart had a drug use policy for employees. The policy required testing in some situations. Wal-Mart required Mr. Casias to take a drug test when it hired him in 2004, and Mr. Casias passed. (Compl., ¶ 22.) In accordance with its policy, Wal-Mart tested Mr. Casias again in November 2009 after Mr. Casias was injured while at work. (Id., ¶ 37.) The record indicates that drug testing after a workplace injury was mandatory and not left to the discretion of a particular store manager or supervisor. Consistent with its policy, Wal-Mart tested Mr. Casias for numerous drugs, including but not limited to marijuana. (Id., ¶¶ 37-38.) Mr. Casias tested positive for marijuana. (Id., ¶ 40.) One week after Mr. Casias was notified that he tested positive, Mr. Estill informed him that Wal-Mart had terminated his employment. (Id., ¶ 41.) Wal-Mart's corporate office in Arkansas, not Mr. Estill, made the decision to terminate Mr. Casias. (Estill Decl., ¶ 10.) In fact, Wal-Mart employed a specific drug screening department at its corporate headquarters for precisely this type of situation. (Id.) Neither Mr. Estill nor any other individual store manager had the authority or the discretion to vary from the decisions made by Wal-Mart's Drug Screening department in Arkansas. (Id.)
Mr. Casias admits that he used marijuana for medical purposes beginning in 2009. (Compl., ¶ 34.) Under a state law passed in 2008, the Michigan Medical Marihuana Act ("MMMA" or "the Act"), Mr. Casias qualified for a registry card, which would protect his use of marijuana from certain adverse state actions against conduct that would be illegal in Michigan but for the registry card. (Id., ¶ 33.) Mr. Casias received his registry card on June 15, 2009, and he began to use marijuana after work. (Id., ¶¶ 33, 35.) When he was drug tested after the accident, he showed the card to the drug-testing staff and his shift manager at Wal-Mart. (Id., ¶¶ 37-40.) He also told Mr. Estill about it when Mr. Estill informed him of Wal-Mart's termination decision, but Mr. Estill informed Mr. Casias that Wal-Mart's drug use policy has no exception for the MMMA. (Id., ¶ 41.)
Mr. Casias filed a complaint in Calhoun County Circuit Court on June 29, 2010, alleging wrongful discharge in violation of public policy and a violation of the MMMA against Wal-Mart and Mr. Estill. The
[ 764 F.Supp.2d 917 ]

defendants removed the action to this Court (docket # 1). Before the Court are two motions: Mr. Casias's motion to remand to state court for lack of diversity jurisdiction (docket # 9) and the defendants' motion to dismiss (docket # 16). The defendants responded to Mr. Casias's motion to remand (docket # 15) and Mr. Casias replied (docket # 23). Mr. Casias also responded to the defendants' motion to dismiss (docket # 25) and the defendants replied (docket # 28). The Court heard oral argument on the motions on November 12, 2010.
DISCUSSION
I. Mr. Casias's Motion to Remand
Defendants removed this action from state court based on diversity jurisdiction under 28 U.S.C. §§ 1332, 1441(a). Yet Defendant Estill, like Plaintiff, is a Michigan citizen. This would normally defeat subject matter jurisdiction and also preclude removal under the forum defendant rule. See 28 U.S.C. § 1332(a)(1) (the action must be between citizens of different states); 28 U.S.C. § 1441(b) (actions based on diversity jurisdiction may be removed only if none of the properly joined and served defendants is a citizen of the state in which the action was brought). To overcome these hurdles, Defendants rely on the theory that Plaintiff fraudulently joined Mr. Estill to defeat the Court's jurisdiction. "Fraudulent joinder" is a term of art in federal jurisdictional analysis and does not require any sort of intentional wrongdoing or deceitful intentions. It is simply legal shorthand for deciding whether a particular party's citizenship should be disregarded in assessing subject matter jurisdiction.
A. Legal Principles of Removal, Fraudulent Joinder and Remand
As the removing party, the defendants bear the burden of proving the Court's subject matter jurisdiction. See Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 948-49 (6th Cir.1994); 14B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice and Procedure § 3721 (4th ed. 2009). The Court has diversity jurisdiction over the matter only when all opposing parties are completely diverse and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a). Here, the parties agree that the amount in controversy prong is satisfied, that Mr. Casias and Wal-Mart are diverse, and that Wal-Mart is not a Michigan citizen. Accordingly, removal was proper and this Court has subject matter jurisdiction if the only proper parties are Mr. Casias and Wal-Mart. Defendant Estill, however, is a Michigan citizen, and if he is a proper defendant, then this Court does not have subject matter jurisdiction, and removal was improper. The question, then, is whether Defendant Estill is fraudulently joined to destroy the Court's diversity jurisdiction.
"The removing party bears the burden of demonstrating fraudulent joinder." Alexander, 13 F.3d at 949. The defendants' burden is heavy, since the fraudulent joinder standard is "even more favorable to plaintiffs than the standard for ruling on a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6)." Wolf v. Bankers Life & Cas. Co., 519 F.Supp.2d 674, 683 (W.D.Mich. 2007) (quoting Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir.1999)). "To prove fraudulent joinder, the removing party must present sufficient evidence that a plaintiff could not have established a cause of action against non-diverse defendants under state law." Coyne v. American Tobacco Co., 183 F.3d 488, 493 (1999). Unless it is clear that "there can be no recovery under the law of the state on the cause alleged or on the facts in view of the
[ 764 F.Supp.2d 918 ]

law," fraudulent joinder does not apply. Alexander, 13 F.3d at 949. Moreover, all disputed questions of fact and ambiguities in the controlling state law must be resolved in favor of the non-removing party. Coyne, 183 F.3d at 493; Alexander, 13 F.3d at 949. Finally, "[a]ll doubts as to the propriety of removal are resolved in favor of remand." Boladian v. UMG Recordings, Inc., 123 Fed.Appx. 165, 168 (6th Cir.2005).
When the district court's subject matter jurisdiction is in dispute on a Rule 12 motion, the court may consider evidence outside of the complaint. See Bennett v. MIS Corp., 607 F.3d 1076, 1087, n. 11 (6th Cir.2010) ("When a district court's subject matter jurisdiction is in question, it is empowered to review extra-complaint evidence and resolve factual disputes."); see also Wright, Miller, Cooper & Steinman, supra, § 3723. When a party makes an allegation of fraudulent joinder, the court may be required to "pierce the pleadings" and consider summary-judgment type evidence, including affidavits and declarations. Dodd v. Fawcett Publications, Inc., 329 F.2d 82, 85 (10th Cir.1964); Miller v. PPG Indus., Inc., 237 F.Supp.2d 756, 759, n. 5 (W.D.Ky.2002). All parties have had the opportunity to submit evidence under this rule, and Defendants submitted a declaration from Defendant Estill. The declaration states that Mr. Estill did not make or recommend the decision to terminate Mr. Casias but was instead directed by Wal-Mart's corporate office to do so. (Estill Decl., ¶ 10.) Mr. Casias has not challenged or rebutted the affidavit.
The standard for demonstrating fraudulent joinder is demanding, but Defendants have satisfied it here.
B. Joseph Casias Cannot Establish a Cause of Action Against Troy Estill
The MMMA prohibits denial "of any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau" for marijuana use in compliance with the act. M.C.L. § 333.26424(a). Mr. Casias claims this provision creates a new public policy in the State of Michigan that prohibits a private employer from taking disciplinary action against an employee based on conduct protected—or at least arguably protected3—from criminal prosecution under the MMMA. The Court assumes, for purposes of the remand motion only, that Mr. Casias's termination was wrongful under some cause of action and that a private business may be liable in damages. Even with these assumptions in place, the Court must still determine whether Mr. Estill could possibly be held personally liable under the circumstances presented in this case.
Under Michigan law, "corporate officials may be held personally liable for their individual tortious acts done in the course of business, regardless of whether they were acting for their personal benefit or for the corporation's benefit." Dep't of Agric. v. Appletree Marketing, LLC, 485 Mich. 1, 17, 779 N.W.2d 237 (2010). This principle has been applied to a variety of tortious behavior. See, e.g., Elezovic v.
[ 764 F.Supp.2d 919 ]

Bennett, 274 Mich.App. 1, 14, 731 N.W.2d 452 (2007) (sexual harassment claim brought under the Elliott Larsen Civil Rights Act); Att'y Gen. v. Ankersen, 148 Mich.App. 524, 557-58, 385 N.W.2d 658 (1986) (nuisance); Allen v. Morris Bldg. Co., 360 Mich. 214, 217, 103 N.W.2d 491 (1960) (willful change in natural flowage of water); Bush v. Hayes, 286 Mich. 546, 549-50, 282 N.W. 239 (1938) (conversion). Michigan courts have refrained from applying personal liability to all wrongful conduct of corporate officials, however. See, e.g., Reed v. Michigan Metro Girl Scout Council, 201 Mich.App. 10, 13, 506 N.W.2d 231 (1993) ("It is now settled law that corporate agents are not liable for tortious interference with the corporation's contracts unless they acted solely for their own benefit with no benefit to the corporation."). No court has yet ruled that the potential reach of the MMMA is wide enough to apply to corporate officials individually. Indeed, the statute by its terms does not even address potential civil liability for anyone, and does not create a private cause of action against anyone.4 The focus of the statute is exclusively on staying the hand of state power, not private action of any kind, all as more fully explained later in this opinion. All that said, these weaknesses in the potential claim against Defendant Estill personally may not, standing alone, be enough to establish fraudulent joinder. They may simply demonstrate that Mr. Casias's likelihood of success against Defendant Estill is remote, not beyond all plausibility, at least under a brand new statute.
But this is not all, and what is left is enough to establish fraudulent joinder. Even assuming that personal liability for a corporate official could theoretically attach under the MMMA-wrongful termination context, the law would still require some level of involvement in the wrongful activity for individual liability to apply in Michigan. See, e.g., Freeman v. Unisys Corp., 870 F.Supp. 169, 173 (E.D.Mich.1994) ("merely informational input by an employee or supervisor does not make them an agent of an employer that qualifies them for liability"); Yanakeff v. Signature XV, 822 F.Supp. 1264, 1266 (E.D.Mich. 1993) (defendant "had no control over the decision to terminate plaintiff"; rather, "her input was merely informational"); Champion v. Nationwide Security, Inc., 205 Mich.App. 263, 266, 517 N.W.2d 777 (1994), rev'd on other grounds, 450 Mich. 702, 545 N.W.2d 596 (1996) (noting that defendant must have "significant control" over "hiring, firing, promoting, or disciplining to be considered an agent") (citing Kauffman v. Allied Signal, Inc., 970 F.2d 178, 186 (6th Cir.1992)); Urbanski v. Sears Roebuck & Co., 2000 WL 33421411, *3 (Mich.App.2000) ("Although a supervisor need not have complete authority over hiring, firing, promoting or disciplining to be considered an agent, the supervisor must have `significant control' of those duties."). Michigan courts have rejected the idea that any participation, however slight, is
[ 764 F.Supp.2d 920 ]

sufficient to expose an individual to personal liability for a corporation's wrongful conduct. See, e.g., Bush v. Hayes, 286 Mich. at 549, 282 N.W. 239 (describing the employee as an "active participant"); Allen v. Morris Bldg. Co., 360 Mich. at 217, 103 N.W.2d 491 (employee was "in control" of corporation's activities and personally supervised its operations). Mr. Casias cannot possibly meet this standard on the claim against Defendant Estill.
Here, Mr. Casias's challenge is to Wal-Mart's corporate policy, not to any decision applying the policy by Defendant Estill. All Mr. Estill did is communicate the corporation's policy decision to Mr. Casias. Defendant Estill was simply an information conduit. The decision to fire Mr. Casias was actually made by Wal-Mart's corporate office, specifically the drug screening department, under a corporate-wide policy leaving no room for managerial discretion. Mr. Estill did not have any control, much less significant control, over the employment status of those employees, like Mr. Casias, who used marijuana, or any other prohibited drug under the company policy. Contrary to Mr. Casias's contention, acting, solely as a messenger cannot impose liability on a corporate employee. Such a holding would be unprecedented under Michigan law. It would effectively expose the receptionist or secretary who typed the termination letter or delivered the termination message to the theoretical risk of personal liability.
Mr. Casias's complaint is with the corporate-wide policy that mandated his termination in this case. There is no legally colorable basis for a claim against Defendant Estill personally, or against any other individual who served in some capacity as simple messengers of a foreordained company decision under a company-wide policy applicable to the use of prohibited drugs on or off the job. Accordingly, the Court finds that Defendant Estill's citizenship must be disregarded in assessing diversity. The Court has subject matter jurisdiction, and Plaintiff's motion to remand must be denied.
II. Motion to Dismiss
Defendants move to dismiss the matter under Rule 12(b)(6) for failure to state a claim. The defendants argue first that the MMMA is preempted by the federal Controlled Substances Act and the federal Americans with Disabilities Act. Defendants also argue that the MMMA does not create a private right of action in this circumstance and does not confer any employment protections on medical marijuana users. Because the text of the MMMA does not bestow the employment protections Mr. Casias seeks, and because this is dispositive of Mr. Casias's claim, the Court does not reach the issue of the MMMA's preemption by federal statutes. See Qwest Corp. v. City of Santa Fe, New Mexico, 380 F.3d 1258, 1267 n. 7 (10th Cir.2004) ("Because federal preemption of a state or local law is premised on the Supremacy Clause of the United States Constitution and because of the longstanding principle that federal courts should avoid reaching constitutional questions if there are other grounds upon which a case can be decided," the Court must determine whether the matter can be decided without turning to federal preemption.); BellSouth Telecommunications, Inc. v. Town of Palm Beach, 252 F.3d 1169, 1176 (11th Cir.2001).
A. Motion to Dismiss Standard
To survive the defendants' motion to dismiss under Rule 12(b)(6), Mr. Casias "must allege facts that, if accepted as true, are sufficient `to raise a right to relief above the speculative level,' and to `state a claim to relief that is plausible on its face.' " Hensley Mfg. v. ProPride, Inc.,
[ 764 F.Supp.2d 921 ]

579 F.3d 603, 609 (6th Cir.2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)). A court must accept as true all factual allegations, but it need not accept legal conclusions. See Iqbal, 129 S.Ct. at 1949. "Only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950.
B. The Michigan Medical Marihuana Act Does Not Regulate Private Employment
Mr. Casias bases his claim for relief on two different theories. First, Plaintiff argues the MMMA provides him with an implied right of action. Even Mr. Casias acknowledges his chances on this theory are remote, given the strictness of the current test in Michigan case law. See Lash v. City of Traverse City, 479 Mich. 180, 192-93, 735 N.W.2d 628 (2007) (a private right of action cannot be inferred without evidence of legislative intent). Under his second theory, Mr. Casias's cause of action stems from the defendant's alleged violation of the public policy of Michigan, as found in the MMMA. See Suchodolski v. Michigan Consol. Gas Co., 412 Mich. 692, 695, 316 N.W.2d 710 (1982) ("some grounds for discharging an employee are so contrary to public policy as to be actionable"). One may reasonably ask whether this theory is anything but an end run on the stringent private cause of action test. After all, if the alleged public policy at issue is created by statute, and if the statute does not itself create a private cause of action to enforce the policy, where does a court receive the power to create a remedy anyway? This would seem to do under the rubric of "public policy" exactly what the Michigan Supreme Court prohibits in Lash: namely, implying a private cause of action in the absence of legislative intent. But under either theory—even assuming the Suchodolski public policy theory survives—Plaintiff would have to show that the statutory policy at issue applies to this case. Plaintiff cannot possibly do so here, because the MMMA addresses potential adverse action by the state; it does not regulate private employment. Accordingly, his claims must be dismissed.
The foremost goal in statutory interpretation is to give effect to the lawmakers' intent. See Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). Because the MMMA was an initiated state statute, the Court must analyze the intent of Michigan voters who actually passed the legislation and interpret the statute consistent with that intent. Potter v. McLeary, 484 Mich. 397, 410-11, 774 N.W.2d 1 (2009). To do this, a court turns to the language of the statute, Briggs Tax Service, L.L.C. v. Detroit Public Schools, 485 Mich. 69, 76, 780 N.W.2d 753 (2010), and "consider[s] both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme." Sun Valley, 460 Mich. at 237, 596 N.W.2d 119 (quoting Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (internal quotation marks omitted)). "[T]he entire act must be read, and the interpretation to be given to a particular word in one section arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent enactment as a whole." Pi-Con, Inc. v. A.J. Anderson Const. Co., 435 Mich. 375, 403-04, 458 N.W.2d 639 (1990) (quoting Grand Rapids v. Crocker, 219 Mich. 178, 182-83, 189 N.W. 221 (1922)).
The fundamental problem with Plaintiff's case is that the MMMA does not
[ 764 F.Supp.2d 922 ]

regulate private employment. Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state. See M.C.L. § 333.26422(b) ("changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana") (emphasis added); People v. Redden, ___ Mich. App. ___, ___ N.W.2d ___, 2010 WL 3611716 (Mich.App. Sept. 14, 2010) (Meter, J.) ("The ballot proposal explicitly informed voters that the law would permit registered and unregistered patients to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana.") (emphasis added). The MMMA is directed at governmental conduct, and even here the protection is very narrow. Indeed, the MMMA does not even formally "de-criminalize" the use of medical marijuana; rather, it simply provides an affirmative defense and other similarly limited protections in the face of criminal proceedings. As the Michigan Court of Appeals recognized in Redden, possession and use of marijuana in Michigan—even for medical purposes—is still a crime. Id., 2010 WL 3611716 (O'Connell, P.J., concurring) (noting that the MMMA provides an affirmative defense, but does not legalize the use of marijuana). All the MMMA does is give some people limited protection from prosecution by the state, or from other adverse state action in carefully limited medical marijuana situations.5
In contrast to what the MMMA does address—potential state prosecution or other potential adverse state action—the MMMA says nothing about private employment rights. Nowhere does the MMMA state that the statute regulates private employment, that private employees are protected from disciplinary action should they use medical marijuana, or that private employers must accommodate the use of medical marijuana outside of the workplace. Under Plaintiff's theory, no private employer in Michigan could take any action against an employee based on an employee's use of medical marijuana. This would create a new protected employee class in Michigan and mark a radical departure from the general rule of at-will employment in Michigan. See Lytle v. Malady, 458 Mich. 153, 163, 579 N.W.2d 906 (1998) ("Generally, and under Michigan law by presumption, employment relationships are terminable at the will of either party."). Moreover, the MMMA would also regulate, under the logical conclusion of Plaintiff's theory, tenants in private housing, students at private educational institutions, and other private business actors. Yet the MMMA contains no language stating that it repeals the general rule of at-will employment in Michigan or that it otherwise limits the range of allowable private decisions by Michigan businesses. The protections that the Act does provide apply to actions by the state: "a person shall not be denied custody or visitation," M.C.L. § 333.26424(c), "a patient . . . may assert the medical purpose for using marihuana as a defense to any prosecution involving
[ 764 F.Supp.2d 923 ]

marihuana," M.C.L. § 333.26428(a), "marihuana. . . that is possessed, owned, or used in connection with the medical use of marihuana . . . shall not be seized or forfeited," M.C.L. § 333.26424(h). In contrast, the Act does not mention regulation of private actors, including private employers.
The textual hinge for Plaintiff's expansive reading of the statute does not bear the weight of Plaintiff's argument. Section 26424(a), the MMMA states:
A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act . . .
M.C.L. § 333.26424(a). According to Plaintiff, the simple word "business" expands the reach of the MMMA to all private activity taken by a "business," including employment decisions. The word "business" is not defined in the MMMA. See M.C.L. § 333.26423 (list of definitions), but it recurs throughout the statute as part of the phrase "business or occupational or professional licensing board or bureau." Mr. Casias relies on the single word "business" in subsection 26424(a) as the only positive textual support for his position that the MMMA shields him from termination. This one word, torn from its overall context, does not do what Mr. Casias wants it to do. The language, structure, and purpose of the MMMA all signify that the statute was not meant to govern private employment decisions like the one at issue here.
A consistent reading of the phrase throughout the MMMA demonstrates that "business" is not meant to stand alone, but instead modifies "licensing board or bureau." Wherever the undefined word "business" appears in the statute, it is as part of the phrase: "civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau." See, e.g., M.C.L. § 333.26424(a). This is thoroughly consistent with the overall structure and purpose of the Act to address potential criminal prosecution or other adverse action by the state. Moreover, the statute itself supports this contextual construction. In subsection 26424(f), the recurring phrase includes a critical clue to the intended meaning of the term:
A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications. . .
M.C.L. § 333.26424(f) (emphasis added). Because "words grouped in a list must be given related meaning," Griffith v. State Farm Mut. Auto. Ins. Co., 472 Mich. 521, 533, 697 N.W.2d 895 (2005), "business" in subsection 26424(f) must have a related meaning to other words in the list, namely Michigan board of medicine, Michigan board of osteopathic medicine and surgery, and occupational or professional licensing board or bureau. The added term "other business or occupational or professional licensing board or bureau" underscores the point. It is clear from the examples put forth that the statute contemplated discipline from boards and bureaus of the state—whether described as business boards, occupational boards or professional licensing boards—not the entire realm of private employment. In that list, "business" must act as a modifier of "board or bureau," not as an independent entity, for
[ 764 F.Supp.2d 924 ]

the word to have a related meaning. "Business" must then consistently be used as a modifier throughout the statute, not just in subsection 26424(f).
That the drafters of the MMMA chose to separate the list of modifiers of "licensing board or bureau" by disjunctives rather than a comma does not defeat this common-sense reading of the statute. Using commas and one disjunctive may be the more common method of listing a series, but the drafters were not required to do so. See The Chicago Manual of Style ¶ 6.18 (16th ed. 2010) ("In a series whose elements are all joined by conjunctions, no commas are needed unless the elements are long and delimiters would be helpful."). Moreover, limiting "business" to act as a modifier and not a stand-alone term still gives "business" meaning. See Stevens v. Employer-Teamsters Joint Council No. 84 Pension Fund, 979 F.2d 444, 452 (6th Cir. 1992) (phrases joined by a disjunctive should be given separate meanings). Local governments in Michigan issue business licenses, which are distinguishable from professional or occupational licenses.6
Mr. Casias points to subsection 26427(c)(2) as additional evidence of employment regulation. That section states that nothing in the MMMA requires "[a]n employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana." M.C.L. § 333.26427(c)(2). This sole mention of employment does not operate as a negative inference, prohibiting private employers from disciplining an employee who uses medical marijuana away from the workplace. "[A] negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute." Hamdan v. Rumsfeld, 548 U.S. 557, 578, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). The language excluded from subsection 26427(c) is not included anywhere else in the statute, since the MMMA never mentions private employers or employees other than in this section. The Court cannot then draw a negative inference about employment protections when the remainder of the statute is silent on the rights of employees. Moreover, Michigan voters could not have intended to enact private employment regulation implicitly, through a negative inference, when the rights of employees are never mentioned anywhere else in the statute.7
The purpose of the MMMA only confirms that it was not meant to regulate
[ 764 F.Supp.2d 925 ]

private employment, but rather protect medical marijuana users from state action. None of the declarations indicate that the act is meant to address employment decisions or discipline. See M.C.L. § 333.26242. The introductory language on the ballot listed a variety of purposes of the statute, including to "permit registered and unregistered patients and primary caregivers to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana," but it did not state that the MMMA also provided employment protections to medical marijuana users. See http://www.procon.org/sourcefiles/Michi … _2008.pdf. The preamble to the MMMA expresses that it "provide[s] protections for the medical use of marihuana." This statement however, does not imply that medical marijuana users are protected from all possible consequences of their marijuana use. See People v. Redden, 2010 WL 3611716 (O'Connell, P.J., concurring) ("The MMMA does not codify a right to use marijuana; instead, it merely provides a procedure which seriously ill individuals using marijuana for its palliative effects can be identified and protected from prosecution under state law.") (emphasis in original). The MMMA does not protect anyone from federal prosecution for marijuana, for example. See 21 U.S.C. § 812; 21 U.S.C. § 841(a)(1); M.C.L. § 333.26422(c) ("federal law currently prohibits any use of marihuana except under very limited circumstances").
Further, the MMMA does not indicate a general policy on behalf of the State of Michigan to create a special class of civil protections for medical marijuana users. The MMMA contains no "explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty," because the MMMA does not confer any statutory rights. Suchodolski, 412 Mich. at 695, 316 N.W.2d 710; see Redden, 2010 WL 3611716 (O'Connor, P.J., concurring) ("the MMMA does not create any sort of affirmative right under state law to use or possess marijuana") (emphasis in original). Under Mr. Casias's reading of the MMMA, medical marijuana users would enjoy the kind of employment safeguards offered to only a very few groups under Michigan law. See, e.g., M.C.L. § 37.2202(1) ("religion, race, color, national origin, age, sex, height, weight, or marital status"); M.C.L. § 37.1102(1) (disability); M.C.L. § 15.362 (whistle-blowers). The MMMA's reference to "business" does not elevate medical marijuana users to the same status as those groups that receive explicit protection from other Michigan statutes.
Mr. Casias cannot establish that the MMMA contains either a statutory right without a remedy or an implied private cause of action. The text, structure, and purpose of the MMMA belie Plaintiff's claim that the Act regulates private employment.8 Contrary to Mr. Casias's assertion,
[ 764 F.Supp.2d 926 ]

the impacts of any private employment regulation in the MMMA would be broadly felt and would extend the statute's protections much further than the MMMA meant to do. If the voters of Michigan meant to enact such sweeping legislation, they had to do so explicitly. Instead, they enacted a statute whose language and purpose simply protects medical marijuana users from prosecution and other similar actions of state and local governments, and does not attempt to regulate private employment decisions.
CONCLUSION
The MMMA meant to provide some limited protection for medical marijuana users from state actions, primarily arrest and prosecution. Even the scope of that protection is unclear and limited. See Redden, 2010 WL 3611716 (O'Connell, P.J., concurring). Nothing in the language or the purpose of the MMMA indicates an intent of the Michigan voters to regulate private employment, and the MMMA does not address private employment directly. Whatever protection the MMMA does provide users of medical marijuana, it does not reach to private employment. Accordingly, Plaintiff's motion to remand (docket # 9) is DENIED and Defendants' motion to dismiss (docket #16) is GRANTED.
IT IS SO ORDERED.
Footnotes
1. The parties stipulate that the properly named company defendant in this action is Wal-Mart Stores East, L.P. (Docket # 35.) The Court will refer to this defendant throughout the opinion simply as Wal-Mart.
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2. The Court uses the more common spelling of marijuana, although the Michigan statute uses a different spelling.
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3. Michigan courts have not clearly defined the scope of the MMMA's protections and have in fact warned Michigan citizens about using marijuana under this Act. See People v. Redden, ___ Mich.App. ___, ___ N.W.2d ___, 2010 WL 3611716 (Mich.App., Sept. 14, 2010) (O'Connell, P.J., concurring) ("Until [the Michigan] Supreme Court and the Legislature clarify and define the scope of the MMMA, it is important to proceed cautiously when seeking to take advantage of the protections in it. Those citizens who proceed without due caution will become test cases and may lose both their property and their liberty.").
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4. As explained later in this opinion, neither the text nor purpose of the MMMA affords Mr. Casias the protection he seeks. Mr. Casias's interpretation extracts the word "business" from its statutory context and uses that single word as a mantra that opens the door to regulation of all private employment decisions in the state. Even assuming the MMMA went this far—and it does not—it would still not impose individual liability upon managers such as Mr. Estill. The MMMA does not define "business." See M.C.L. § 333.26423 (list of definitions). In contrast, Michigan's Elliott Larsen Civil Rights Act ("ELCRA"), which prohibits an "employer" from engaging in employment discrimination, see M.C.L. § 37.2202(a), carefully defines the term to include an employer's agent. M.C.L. § 37.2201(a). The drafters of the MMMA did no such thing in their use of the term "business" or "employer."
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5. The use of marijuana is still a federal felony. See 21 U.S.C. § 812; 21 U.S.C. § 841(a)(1); M.C.L. § 333.26422(c) ("federal law currently prohibits any use of marihuana except under very limited circumstances"). Nothing in the state law could, of course, change this. Accordingly, one implication of Plaintiff's theory is that the MMMA would expose a Michigan employer to civil liability for firing an employee for engaging in conduct that amounts to a federal felony. Ironically, under Plaintiff's theory, the federal felon would have this special protection, but an employee using a legal drug under prescription would not enjoy the same employment protection. Nothing in the MMMA or in the exercise of simple common sense supports such a result.
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6. See http://www.grand-rapids.mi.us/index.pl?pageid=5237 for a list of business licenses required in Grand Rapids, Michigan, and http://www.detroitmi.gov/Business/Business Licenses.aspx for information on business licenses in Detroit, Michigan.
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7. A similar provision in Washington's medical marijuana act received similar treatment. See Roe v. TeleTech Customer Care Management, LLC, 152 Wn.App. 388, 398-99, 216 P.3d 1055 (2009). The Washington statute states that "[n]othing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment. . ." R.C.W.A. § 69.51A.060(4). The court stated:

the average informed lay voter would not read this provision as creating a corollary duty for employers to accommodate an employee's medical use of marijuana outside the workplace where MUMA expressly creates no such duty inside the workplace. To the contrary, absent the strained construction Roe urges, the provision implies that MUMA will place no requirements on employers or places of employment. Moreover, it is unlikely that voters intended to create such a sweeping change to current employment practices, as Roe suggests, through negative implication, when prior statutes imposing duties on private employers have done so only with explicit language.

TeleTech, 152 Wash.App. at 398-99, 216 P.3d 1055.
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8. The Court notes that no other medical marijuana statute has been held to regulate private employment. See, e.g., Roe v. TeleTech Customer Care Management LLC, 152 Wn.App. 388, 396, 216 P.3d 1055 (2009) ("We hold that by enacting MUMA, the voters did not intend, either explicitly or implicitly, to create a civil cause of action and MUM does not imply a private right of action."); Johnson v. Columbia Falls Aluminum Co., 350 Mont. 562, 2009 WL 865308 (2009) ("[T]he MMA does not provide an employee with an express or implied right of action against an employer."); Ross v. RagingWire Telecommunications, Inc., 42 Cal.4th 920, 70 Cal.Rptr.3d 382, 174 P.3d 200 (2008) ("Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees."). Mr. Casias cannot point to any other state statute that protects the private employment of medical marijuana users.
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PEOPLE v. BROWN
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ANTHONY RYAN BROWN, Defendant-Appellant.
No. 303371.
Court of Appeals of Michigan.

August 28, 2012, 9:05 a.m.

Before: METER, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.
Defendant Anthony Ryan Brown appeals as of right from his conviction, following a bench trial, of manufacturing marijuana, MCL 333.7401(2)(d)(iii). The trial court sentenced defendant to 30 days in jail (suspended), two years' probation, and 100 hours of community service. In addition, the trial court imposed a $500 fine and suspended defendant's driver's license for one year. We affirm.
On January 7, 2010, defendant's former roommate, Justin Fielding, contacted police and told West Michigan Enforcement Team (WMET) Detective David Bytwerk that defendant was growing marijuana in his home in Holland Township. Fielding explained that when he lived with defendant, he saw grow lights and ventilation fans installed in the laundry room of the home and small marijuana plants growing under the lights. On February 5, 2010, Bytwerk and another detective searched trash left for pickup on the shoulder of the road in front of defendant's house. Bytwerk found a piece of fresh marijuana in the trash. Bytwerk also found two pieces of mail in the same trash container addressed to defendant. Bytwerk confirmed defendant's address with the Michigan Secretary of State.
Bytwerk included the above facts in his search-warrant affidavit. However, Bytwerk did not check to see if defendant was a qualifying patient or a primary caregiver under the Michigan Medical Marihuana1 Act (MMMA), MCL 333.26421 et seq. Bytwerk explained that he did not check defendant's status under the MMMA because the State Department of Community Health will not provide the police with any information concerning whether a person has a valid MMMA certificate on the basis of the person's name alone. He explained that the State Department of Community Health requires an identification number before acknowledging the validity of a certificate.
A magistrate approved the search warrant on February 5, 2010. That same day, Bytwerk and other police officers executed the search warrant at defendant's home. The officers found eight marijuana plants and two grams of marijuana.
On July 7, 2010, defendant filed a motion to dismiss the case and for a hearing regarding the suppression of the evidence obtained during the execution of the search warrant. At the motion hearing, defendant argued that the evidence seized during the search must be suppressed because the search warrant was invalid. Defendant claimed that the MMMA made it legal to possess and grow certain amounts of marijuana and, thus, the statement in the affidavit that defendant was growing marijuana was insufficient to provide the police officers with probable cause that a crime was committed.
The trial court held that the affidavit did not contain sufficient facts to provide a substantial basis for inferring that a fair probability existed that evidence of a crime would be found in defendant's home. The trial court acknowledged that before the effective date of the MMMA, traces of marijuana constituted sufficient evidence of a crime to support probable cause because possession of marijuana was per se illegal. However, the trial court held that after the MMMA became effective, an affidavit must provide specific facts sufficient for a magistrate to conclude that the possession of the marijuana alleged in the affidavit is not legal under the MMMA.
Despite its holding, however, the trial court did not suppress the evidence obtained from the search of defendant's home because the trial court applied the good-faith exception to the exclusionary rule. The trial court found that the officers' belief in the validity of the search warrant was not entirely unreasonable because the warrant was not facially invalid, and before the passage of the MMMA, the facts included in the affidavit would have been sufficient to establish probable cause that a crime was committed. The trial court also found no evidence that Bytwerk misled the magistrate and that the magistrate did not wholly abandon his role.
Defendant filed a motion for reconsideration on September 15, 2010. The trial court denied defendant's motion, holding that it was "unreasonable to expect that a law enforcement officer would have known that previously sufficient evidence is no longer sufficient to establish probable cause."
After a bench trial, the trial court found defendant guilty of manufacturing marijuana,2 and defendant now appeals as of right, challenging the validity of the search.
"A trial court's findings of fact on a motion to suppress are reviewed for clear error, while the ultimate decision on the motion is reviewed de novo." People v Hrlic, 277 Mich.App. 260, 262-263; 744 N.W.2d 221 (2007).
We find that because the possession, manufacture, use, creation, and delivery of marijuana remain illegal in Michigan3 even after the enactment of the MMMA, a search-warrant affidavit concerning marijuana need not provide specific facts pertaining to the MMMA, i.e., facts from which a magistrate could conclude that the possession, manufacture, use, creation, or delivery is specifically not legal under the MMMA.
A search warrant may only be issued upon a showing of probable cause. US Const, Am IV; Const 1963, art 1, § 11; MCL 780.651(1). Probable cause to issue a search warrant exists if there is a substantial basis for inferring a fair probability that evidence of a crime exists in the stated place. People v Kazmierczak, 461 Mich. 411, 417-418; 605 N.W.2d 667 (2000). Probable cause must be based on facts presented to the issuing magistrate by oath or affirmation, such as by affidavit. People v Waclawski, 286 Mich.App. 634, 698; 780 N.W.2d 321 (2009).
The trial court acknowledged that before the MMMA became effective, traces of marijuana in a suspect's trash would be sufficient for a magistrate to find that probable cause to search existed. However, the trial court concluded that after the MMMA became effective, possession of marijuana was no longer per se illegal. In concluding that possession of marijuana was no longer per se illegal under the MMMA, the trial court, citing People v Lemons, 454 Mich. 234, 246 n 15; 562 N.W.2d 447 (1997), acknowledged that
where the relevant medical-marijuana law provides an affirmative defense to a crime, the fact that a suspect may have a medical authorization to use and possess marijuana does not negate probable cause. That is because an affirmative defense merely excuses or justifies the defendant's criminal act, it does not negate any elements of the crime.
However, the trial court distinguished the two MMMA sections that provide protection from criminal liability: MCL 333.26424 and MCL 333.26428. MCL 333.26424 provides a qualifying patient or a primary caregiver who meet the requirements of the MMMA immunity from arrest, prosecution, or "penalty in any manner." MCL 333.26428 allows a "patient" and a "patient's primary caregiver" to assert the medical purpose for using marijuana as an affirmative defense. The trial court argued that to interpret the MMMA as providing only an affirmative defense would make MCL 333.26424 surplusage or nugatory. Accordingly, the trial court held that the immunities provided to a qualifying patient or a primary caregiver under MCL 333.26424 removed the per se illegality of the possession of marijuana. Thus, the trial court held, evidence of a suspect's mere possession of marijuana was no longer sufficient evidence of a crime to support probable cause. The trial court held that to support a probable cause ruling, "the affidavit must set forth specific facts from which a magistrate can conclude the possession is not legal under the MMMA."
The trial court's holding is inconsistent with this Court's statements in People v King, 291 Mich.App. 503; 804 N.W.2d 911 (2011), rev'd in part on other grounds by People v Kolenak, 491 Mich. 382; ___ NW2d ___ (2012). In King, this Court held that "by its terms, the MMMA does not abrogate state criminal prohibitions of the manufacturing of marijuana." Id. at 508-509. This Court went on to describe the MMMA's impact on the Public Health Code:
Although these individuals [who are seriously ill and are using marijuana for its palliative effects] continue to violate the Public Health Code by using marijuana, the MMMA sets forth narrow circumstances under which they can avoid criminal liability. In other words, the MMMA constitutes a determination by the people of this state that there should exist a very limited, highly restricted exception to the statutory proscription against the manufacture and use of marijuana in Michigan. As such, the MMMA grants narrowly tailored protections to qualified persons as defined in the act if the marijuana is grown and used for certain narrowly defined medical purposes. Further, the growing of marijuana is tightly constrained by specific provisions that mandate how, where, for what purpose, and how much marijuana may be grown. [Id. at 509 (emphasis added).]
Contrary to the trial court's holding, this Court has held that the MMMA does not abrogate state criminal prohibitions related to marijuana. The MMMA as a whole constitutes a "very limited, highly restricted exception to the statutory proscription against the manufacture and use of marijuana in Michigan." Id.
The possession, manufacture, use, creation, and delivery of marijuana remain illegal in this state, even after the enactment of the MMMA. Thus, we conclude that to establish probable cause, a search-warrant affidavit need not provide facts from which a magistrate could conclude that a suspect's marijuana-related activities are specifically not legal under the MMMA. Probable cause exists if there is a substantial basis for inferring a fair probability that contraband or evidence of a crime exists in the stated place. Kazmierczak, 461 Mich. 417-418. Defendant has presented no authority indicating that for probable cause to exist, there must be a substantial basis for inferring that defenses do not apply. See, generally, Lemons, 454 Mich at 246 n 15 (discussing affirmative defenses).4 We disagree with the trial court's holding pertaining to probable cause.5 Accordingly, we affirm the trial court on alternative grounds,6 and defendant's issue regarding the good-faith exception to the exclusionary rule is moot. See Contesti v Attorney General, 164 Mich.App. 271, 278; 416 N.W.2d 410 (1987) (discussing mootness).
Affirmed.
Footnotes
1. The act uses the spelling "marihuana," but we employ the more common spelling "marijuana" in this opinion.
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2. Defendant received a physician certification pertaining to medical-marijuana use on November 20, 2009. Defendant also received a letter from the Department of Community Health on April 6, 2010, explaining that he was approved for a Qualifying Patient Registry Identification Card. Defendant's identification card indicated that it was issued on February 4, 2010. Nevertheless, the trial court found defendant guilty of manufacturing marijuana. Evidently, defendant did not comply fully with the requirements of the MMMA, although the specifics of the noncompliance are not clear from the present record.
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3. See People v Bylsma, 294 Mich.App. 219, 227; ___ NW2d ___ (2011).
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4. Even if the protection scheme set forth in MCL 333.26424 is not technically viewed as an "affirmative defense," it nonetheless constitutes a "narrowly tailored protection[]" against punishment for a violation of the Public Health Code. See King, 291 Mich App at 509. The violation itself still exists, see id., and thus we disagree that search-warrant affidavits must set forth information indicating that a suspect's marijuana-related activities are specifically not legal under the MMMA.
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5. While we decline, in light of the pertinent case law, to impose an affirmative duty on the police to obtain information pertaining to a person's noncompliance with the MMMA before seeking a search warrant for marijuana, if the police do have clear and uncontroverted evidence that a person is in full compliance with the MMMA, this evidence must be included as part of the affidavit because such a situation would not justify the issuance of a warrant. This scheme will reduce any potential (however unlikely) for police overreach in attempting to obtain search warrants.
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6. Contrary to defendant's argument, the prosecutor was not obligated to file a cross-appeal to argue an alternative basis for affirmance. Kosmyna v Botsford Community Hosp, 238 Mich.App. 694, 696; 617 N.W.2d 134 (1999).
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