No.

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State of Michigan In the Supreme Court

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, -vsEARL CANTRELL CARRUTHERS, Defendant-Appellant _______________________ ON APPEAL FROM THE OAKLAND CIRCUIT COURT
Court of Appeals No. 309987 Oakland Circuit No.2011-237303-FH

_______________________ APPLICATION FOR LEAVE TO APPEAL _______________________ Stuart G. Friedman (P46039) Attorney for Defendant-Appellant 3000 Town Center, Suite 1800 Southfield, MI 48075 (248) 228-3322 Fax: (248) 327-4940 e-Mail: stuartgfriedman@me.com Danielle Walton (P52042) Assistant Prosecutor 1200 North Telegraph Road Pontiac MI 48341 Michael Komoron (P47940) Of Counsel 3000 Town Center, Suite 1800 Southfield, MI 48075 (248) 357-2440 Fax: (855) 456-6676 e-Mail: michael@komornlaw.com Neil S. Rockind (P48618) Of Counsel 28411 Northwestern Highway, #1150 Southfield, MI 48034 (248) 208-3800

Notice of Hearing
To: Clerk Supreme Court Post Office Box 30052 Lansing, MI 48909 PLEASE TAKE NOTICE that the within APPLICATION FOR LEAVE TO APPEAL will be submitted to the Court on October 1, 2013, Unless otherwise ordered by the Court, there will be no oral arguments. Respectfully submitted, /s/Stuart G. Friedman Stuart G. Friedman (P46039) Attorney for Defendant-Appellant 3000 Town Center, Suite 1800 Southfield, MI 48075 (248) 228-3322 Fax: (248) 327-4940 e-Mail: stuartgfriedman@me.com Dated: September 4, 2013

Table of Contents Notice of Hearing ......................................................................................................... i Table of Contents ........................................................................................................ ii Statement of Questions Involved ............................................................................... iv Table of Authorities .................................................................................................... v Jurisdiction ................................................................................................................ vii Statement of Facts ........................................................................................................ 1 Argument .................................................................................................................... 9 The drafters of Michigans Medical Marihuana Act anticipated the use of Medical Marijuana edibles (Medibles). Otherwise qualifying Medical Marijuana users do not forfeit their Section 4 immunity by consuming or possessing edible marijuana. The Court of Appeals erred in limiting medible users to Section 8 defenses. ............................................. 9 1.1 This Court May Take Judicial Notice of the Need of Patients to Consume Medibles. .................................. 9 1.2 Medibles play an important role in Michigans Medical Marijuana Scheme. ................................................ 11 1.3 A Medical Marijuana Patient Has a Right to Section 4 Immunity. ............................................................ 13 1.4 Rules of construction concerning voter initiated referendums. ....................................................................... 15 Relief .......................................................................................................................... 21 Proof of Service ......................................................................................................... 22 I.

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Addendum: Court of Appeals Opinion; Sanjay Gupta, Weed, CNN Transcript, available at http://transcripts.cnn.com/TRANSCRIPTS/hcsg.html (last visited August 30, 2013)

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Statement of Questions Involved

1. Are otherwise qualifying Medical Marijuana users and caregivers entitled to assert a Section 4 defense for their marijuana edibles? Defendant-Appellant answers, Yes. The People answered, No. The Court of Appeals answered, No.

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Table of Authorities Page(s) CASES Bickel v. City of Boulder, 885 P.2d 215, 228 n. 10 (Colo.1994) ........................................................17 Carson v Oxenhandler, 334 SW2d 394, 398 (Mo Ct App 1960) .................................................17 Citizens for Planning Responsibly v Cnty of San Luis Obispo, 97 Cal Rptr 3d 636, 64142; 176 Cal App 4th 357 (2009) .....................................................................................17 Godinez v Moran, 509 US 389 (1993) ....................................................................................................................11 Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858 (1938) ....................................17 Horwich v. Superior Court, 21 Cal.4th 272, 276277, 87 Cal.Rptr.2d 222, 980 P.2d 927 (1999) ................................................................................................................................17 McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) ....................................................................................................10 Muller v. Oregon, 208 U.S. 412 (1908) .................................................................................................................10 Nevada Tax Comm'n v. Bernhard, 100 Nev. 348, 683 P.2d 21, 23 (1984) ........................................7 Peak v. United States, 353 U.S. 43, 46, 77 S.Ct. 613, 1 L.Ed.2d 631 (1957). ..............................15 People v Adams, 34 Mich App 546, 561; 192 NW2d 19, 26 (1971), aff'd in part, rev'd in part 389 Mich 222 (1973) ..........................................................................................13 People v Anderson, 293 Mich App 33, 809 NW2d 176 (2011) ......................................................5 People v Kolanek, 491 Mich 382; 817 NW2d 528 (2012) ...................................................6,12,15 People v Redden, 290 Mich App 65, 93; 799 NW2d 184 (2010) .......................................15,16,18 PLIVA, Inc v Mensing, ___ U.S. ___, 131 SCt 2567 (June 23, 2011) ..........................................................................11 United States v Dillavou, No 3:08-po-042, 2009 WL 230118 (SD Ohio Jan 30, 2009) ....................................................11 United States v. Howard, 381 F3d 873 (9th Cir.2004) ......................................................................................................11
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United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) .................................................................................................................19 United States v Torniero, 570 F Supp 721 (D Conn 1983), aff'd 735 F2d 725 (1984) .......................................................11 United States v Williams, 788 F Supp 2d 847 (ND Iowa 2011) .........................................................................................11 Washington ex rel Pub Disclosure Comm'n v Rains, 87 Wash 2d 626; 555 P2d 1368 (1976) .............................................................................................................................17 STATUTES MCL 333.26427 MCL 333.26427 .............................................................................................................................14

COURT RULES MCR 7.302.(C) ............................................................................................................................. vii OTHER AUTHORITIES Black's Law Dictionary 188 (6th ed. 1991) ......................................................................................10 http://www.ask.com/question/how-much-does-an-oreo-cookie-weigh August 31, 2013) (last visited

Norman J. Singer & J.D. Shambie Singer, 2B Sutherland Statutes and Statutory Construction 51:8 .................................................................................................................17 The Scientist, Medical Marijuana for Kids,http://www.thescientist.com/?articles.view/articleNo/36576/title/Medical-Marijuana-forKids-/ (last visited September 5, 2013)....................................................................................12

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Jurisdiction This is an application for leave to appeal from the Court of Appeals. The Court of Appeals order is dated July 11, 2013. This is a criminal case, therefore the time period for seeking permission to appeal is fifty-six days. MCR 7.302(C).

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Statement of Facts This a medical marijuana appeal from the Oakland County Circuit Court. Earl Cantrell Carruthers was arrested in Beverly Hills, Michigan, on January 27, 2011. At the time of his arrest, he was possession of a total of 64 ounces of combined raw marijuana and baked goods, and he was driving with a suspended license. Mr. Carruthers was charged with Possession with Intent to Deliver Marijuana, MCL 333.7401(2)(D)(3). The trial court denied the Defendants medical marijuana defenses and barred the Defendant from presenting them to the jury. The Court of Appeals remanded the matter to the trial court for a Section 8 defense hearing. Mr. Carruthers has filed this appeal to this Court arguing that he has a Section 4 defense concerning his edibles. The question presented in this appeal is how should marijuana edibles or medibles be treated under Michigan law. On September 14, 2011, trial counsel filed a motion to dismiss and suppress. The basis of the motion to dismiss was that Mr. Carruthers was in compliance with the Michigan Medical Marijuana Act (MMMA), MCL 333.26421 et. al., specifically Section 4. The basis of the motion to suppress was that the search of his vehicle was illegal as the police incorrectly believed that they could search it as part of an inventory search. This appeal addresses the Section 4 defense only.

Trial counsel argued that Mr. Carruthers was an official caregiver as defined by the statute on the day of the arrest, and was acting within the rules and he had the proper authorization to be a caregiver. (Su. Hrg. 9-14-2011, pg. 5).1 Next, trial counsel argued that the issue was whether the trial court was going to hold the entire weight of the brownies, 54.9 ounces, as being marijuana. The Oakland County crime lab could not determine how much marijuana was in the brownies. Given that the raw, usable marijuana was only 9.1 ounces, and Mr. Carruthers could prove that he was a patient caregiver to four and he was a patient also, the treatment of brownies was the crux of the matter. The prosecution argued that the issue of net weight versus gross weight was determined by the language of the Act. In Section 3, paragraph (k), the Medical Marihuana Act defines usable marihuana as, the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof. And its that line that the People rest their argument. (Su. Hrg. 9-142011, pg. 8). The trial court held: It is an interesting question how a legal weight of one legal substance plus the weight of another legal substance comes together and becomes illegal because of the mass. But I do believe that the, and do find, that the statutory language encompasses that situation and would disallow the exception, the very limited exception, that has been provided by the applicable statute. I will also note that perhaps the correct analogy is if you havea barrel of the finest wine and you take a pint of sewage and pour it into the finest barrel, what do you have? You have a barrel of

The prosecutors brief to the Court of Appeals repeatedly stated that the Defendant was engaged in sales to non-linked patients. Defendant disputes this allegation. The journal articles attached to the States belief do not make it clear whether the Defendant acquired the marijuana from those individuals or sold it to them.
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sewage. And I think thats unfortunately for the Defendant, that is the circumstance and the appropriate analogy, and therefore, I will deny the motion to dismiss. (Su.hrg. 9-14-2011, pg. 10). The prosecutor moved to bar Mr. Carruthers from using the defense at trial, noting that the dismissal was pursuant to Section 4 and not Section 8. Trial counsel argued that it was still a question of fact for the jury to determine whether Mr. Carruthers was in compliance with the rule. The trial court held that the ruling on the weight issue renders moot the other questions with regard to whether or not he met the various requirements of the exception. (Su. Hrg. 9-14-2011, pg. 12). The trial court permitted trial counsel to take the issue involving the MMMA to the Michigan Court of Appeals as an interlocutory appeal. The court then scheduled a hearing to watch the video from the police camera from the stop and to question the officers involved. On November 23, 2011, the trial court watched the video and listened to testimony from one of the officers. The officer, Thomas Danielson, testified that his partner told him that he smelled the odor of marijuana (Su. Hrg. 11-23-11 pg. 12). Danielson then opened the back passenger door and I could smell an odor of marijuana. (Su. Hrg. 11-23-11 pg. 12). On cross-examination, the officer confirmed that he did not smell marijuana when he pulled Mr. Carruthers from the vehicle to arrest him, nor did he smell it when he escorted the passenger from the car for the purpose of impounding the vehicle. (Su. Hrg. 11-23-11 pg. 15). After argument, the trial court found that the prosecution met its burden. The court found that, despite the fact that the officers searched the vehicle based upon the mistaken belief that they could do so as part of an inventory search, the fact that one or both had smelled

marijuana when Mr. Carruthers passenger opened her door, was sufficient to give probable cause to search the vehicle pursuant to the automobile exception. At trial, Beverly Hills Police Officer Thomas Danielson testified that, at approximately 10:10 p.m. on January 27, 2001, in the village of Beverly Hills, he observed a vehicle being driven by Defendant-Appellant driving with headlights on. He stopped Mr. Carruthers and determined that he did not have a valid drivers license, as it had been suspended. (Tr. Tr. Pg. 114-15). Officer Danielson placed Mr. Carruthers under arrest and called for a backup patrol car. He decided to do an inventory search of the vehicle. When he went to the back passenger door, he smelled an odor of marijuana. (Tr. Tr. Pg. 117). He also found a blue bag that had baked goods in it. I also located some marijuana in some plastic bags. I located a black backpack that had 14 various sized Mason jars. Some contained suspected marijuana. (Tr. Tr. Pg. 118). He found other items, including heat-sealed bags with the ingredients of the brownies. On the label, it stated the purported amount of marijuana/THC in each brownie and medical marijuana (Tr. Tr. Pg. 152). He found medical marijuana literature in the back seat. Officer Lee Davis was the second officer on the scene. He testified that [A]s the front seat passenger got out so that we could search the vehicle I could smell the strong odor of marijuana coming from her. (Tr. tr. pg. 162). He also recovered a binder with bunches of marijuanaall labeled with different names. (Tr. tr. pg. 165). Sgt. Howard Shock testified that he participated in the collection of evidence. Rachel Topacio, a forensic chemist employed by the Oakland County Sheriffs Office, testified that she found no plant material in the brownies but did find THC. (Tr. tr. pg. 199). She tested only one brownie but stated they all looked about the same.

Officer Michael Miles testified that he received a call on January 28, 2011, to come to the Beverly Hills police station to exam the seized marijuana. He found 9.1 ounces of usable marijuana and 54.9 ounces of brownies. (Tr. tr. pg. 222). This is possession with intent to deliver. Ive never had so much evidence. And Ive had cases in narcotics with much larger weight, but everything individually named with the exact grams that are in it, Ive never had that on stuff where they write out the exact grams that are in each product. Ive never had it where on the last photograph you showed me with the prices listed right on the marijuana. Yes, this is possession with intent to deliver. (Tr. tr. pg. 225). The jury took less than 30 minutes to return with a verdict of guilty to possession with intent to deliver. On March 29, 2012, Mr. Carruthers was sentenced to three years probation, 33 days in jail with credit for 33 days, fines and costs, and ordered to submit to the Michigan Department of Licensing and Regulatory Affairs, along with his Michigan Medical Marihuana identification card requesting to withdraw from the program. Mr. Carruthers appealed of right using different counsel to the Court of Appeals. On appeal, the Defendant and the Prosecution presented very different interpretations of Michigans Medical Marijuana Act. The Court of Appeals rejected both interpretations and offered a third interpretation. To fully understand the issues in this case, a detailed discussion of the Court of Appeals litigation is therefore required. On the Defendants appeal of right, the Defendant asserted two arguments. First, the Defendant argued that the trial court improperly excluded the Defendants Section 8 defense based on People v Anderson, 293 Mich App 33, 809 NW2d 176 (2011). Anderson has held that a defendant could not assert a Section 8 defense if he or she had more plants or usable marijuana

than was allowed under Section 4 and in the case of a grower, did not grow the marijuana in a secured locked facility. This Court has overruled that holding. People v Kolanek, 491 Mich 382; 817 NW2d 528 (2012). Based on this intervening decision, the Court of Appeals remanded this matter for a Section 8 hearing which has not been held. Instead, this Defendant has applied for leave to appeal from the second part of the Court of Appeals ruling. In the other part of the Court of Appeals ruling, the Court held that a Defendant who possessed marijuana edibles or medibles over 2.5 ounces could only defend the matter under Section 8 of Michigans Medical Marihuana Act.2

The Court did not decide whether the Defendant had to be operating without a profit motive at the time of the arrest. The Court noted that this issue remains open: Our Supreme Court has noted that 4 [of the MMMA] does not permit defendants to operate a business that facilitates patient-topatient sales of marijuana. State v. McQueen, 493 Mich. 135, 158; 828 NW2d 644 (2013). However, in McQueen, our Supreme Court did not specifically state that the section 8 affirmative defense was unavailable for a defendant engaged in patient-to-patient sales of marijuana, because the proceeding in that case was a public nuisance action, not a criminal proceeding. Id. at 158159. The rationale of McQueen may indeed compel a determination that a defendant cannot establish the medical purpose for using marihuana required by section 8(a) if that defendant possesses marijuana for the purpose of patient-to-patient sales, especially in light of People v. Green, Mich. ; NW 2d (2013), slip op at 1, where our Supreme Court quoted McQueen with approval in reversing this Court's affirmance of the trial court's dismissal of charges (presumably under section 4 of the MMMA) against the defendant for delivery of marijuana. However, the question of whether the section 8 defense is similarly unavailable for a defendant engaged in patient-to-patient sales is not currently before this Court. Id. n. 10.
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The Court of Appeals stated that the issue of whether As noted, the MMMA separately defines marihuana and usable marihuana. Notably, the definition of marihuana includes all parts of the cannabis plant, as well as the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. The definition specifically excludes the mature stalks of the plant except the resin extracted therefrom. By virtue of that exception, therefore, resin extracted from mature stalks also is expressly included within the definition of marihuana. There is no dispute that both the raw marijuana and the brownies found in defendant's possession constitute marihuana under the MMMA. By contrast, however, the definition of usable marihuana under the MMMA does not include all parts of the cannabis plant. More to the point, it specifically does not include the resin extracted from the cannabis plant. Nor does it include the resin extracted from mature stalks of the plant. Further, it does not include every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. Rather, and in stark contrast to the MMMA's definition of marihuana, it includes only the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof. [MCL 333.26423(k) (emphasis added).] The word thereof as used in this definition refers back to the immediately preceding phrase the dried leaves and flowers of the marihuana plant. Therefore, to constitute usable marihuana under the MMMA, any mixture or preparation must be of the dried leaves or flowers of the marijuana plant. On appeal, the State argued that the entire weight of the brownie be counted to determine the amount of usable marijuana under the Act. The defense (conversely) argued that only the usable amount of THC be counted. The Court of Appeals rejected both approaches and stated: These principles, and our reading of the MMMA, thus convince us that edibles made with THC extracted from marijuana resin are not

usable marihuana under the MMMA. Simply put, the evidence before this Court indicates that the brownies were not a mixture or preparation of dried leaves and flowers of the marihuana plant. MCL 333.26423(k). Therefore, the brownies were not usable marihuana under the MMMA, and none of the weight of the brownies should have been counted towards the determination of whether defendant possessed over 12.5 ounces of usable marijuana. The Court remanded this matter for a Section 8 hearing. The Defendant brings this Application for Leave to Appeal requesting this Court also remand this matter for a Section 4 hearing.

Argument I. The drafters of Michigans Medical Marihuana Act anticipated the use of Medical Marijuana edibles (Medibles). Otherwise qualifying Medical Marijuana users do not forfeit their Section 4 immunity by consuming or possessing edible marijuana. The Court of Appeals erred in limiting medible users to Section 8 defenses. Standard of Review. As the Court of Appeals correctly noted: This case presents issues of statutory interpretation. We review questions of statutory interpretation de novo. People v. Kolanek, 491 Mich. 382, 393; 817 NW2d 528 (2012). This Court should grant leave to decide when a medical marijuana user or caregiver can assert a Section 4 defense to prosecution. Medical marijuana users frequently compound their medicine into medical marijuana edibles or medibles. Many patients are cancer survivors or others where smoking marijuana is not an option. The harshness of the smoking could simply prove too much of an irritant. Secondly, under Section 7 of the Michigan Medical Marihuana Act (MMMA), there are many places where a patient simply cannot smoke marijuana but is permitted to consume medibles. Children who need to take marijuana to prevent seizures cannot be expected to smoke their medicine. 1.1 This Court May Take Judicial Notice of the Need of Patients to Consume Medibles.

The next part of this brief will discuss cite to literature which is not part of the trial court record to demonstrate the importance of medibles. That part of the brief will rely on medical

journal articles and even articles on CNN to demonstrate this. This is not breaking new ground. Courts have fequently considered such evidence. Scientific literature has been considered by the courts since the eventual Supreme Court Justice Louis Brandeis who first filed the famous Brandeis brief in Muller v. Oregon, 208 U.S. 412 (1908). That brief contained economic and social surveys and studies that are included along with legal principles and citations. Black's Law Dictionary 188 (6th ed. 1991). As the Eleventh Circuit explained:3 Historically, beginning with Louis Brandeis' use of empirical evidence before the Supreme Court ... persuasive social science evidence has been presented to the courts. Forst, Rhodes & Wellford, Sentencing and Social Science: Research for the Formulation of Federal Guidelines, 7 Hofstra L.Rev. 355 (1979). See Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The Brandeis brief presented social facts as corroborative in the judicial decisionmaking process. O'Brien, Of Judicial Myths, Motivations and Justifications: A Postscript on Social Science and the Law, 64 Judicature 285, 288 (1981). The Brandeis brief is a well-known technique for asking the court to take judicial notice of social facts. Sperlich, [Social Science Evidence and the Courts: Reaching Beyond the Advisory Process,] 63 Judicature at 280, 285 n. 31. It does not solve the problem of how to bring valid scientific materials to the attention of the court.... Brandeis did not argue that the data were valid, only that they existed.... The main contribution ... was to make extra-legal data readily available to the court. Id.

McCleskey v. Kemp, 753 F.2d 877, 888 (11th Cir.1985).

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The United States Government filed a Brandeis brief supporting its bid to have a court rethink the law of insanity.4 By analogy, courts have also cited to the Physicians Desk Reference to help with pharmacology questions.5 The Sanjay Gupta article attached to this brief is being attached to highlight the need of some medical marijuana users to use it in the edible format. The United States Supreme Court and appellate courts have taken judicial notice of other CNN or NYTimes.com articles. 6 It is appropriate for this Court to do the same. 1.2 Medibles play an important role in Michigans Medical Marijuana Scheme.

The statutory definition of medical marijuana does not include the inert food ingredients in which might be mixed. The Court of Appeals correctly recognized this, but effectively that all

United States v Torniero, 570 F Supp 721 (D Conn 1983), aff'd 735 F2d 725 (1984). See also United States v Williams, 788 F Supp 2d 847, 851 (ND Iowa 2011) (criticizing the Government for not filing a Brandeis brief to defend a Sentencing Guideline variable). See, e.g. PLIVA, Inc v Mensing, ___ U.S. ___, 131 SCt 2567 (June 23, 2011) (noting warnings about the drug in the Physicians Desk Reference); Godinez v Moran, 509 US 389 (1993) (Blackmun J. dissenting) (using the Physicians Desk Reference to help interpret a prisoners medical file); United States v. Howard, 381 F3d 873, 880 & n. 7 (9th Cir.2004) (taking judicial notice of medical facts from the Physician's Desk Reference); United States v Dillavou, No 3:08po-042, 2009 WL 230118 (SD Ohio Jan 30, 2009) (same). Fisher v Univ of Texas at Austin, 133 S Ct 2411 n.3, 2428; 186 L Ed 2d 474 (2013) (citing to CNN articles to take note of the similarity of segregationist arguments and proponents of the University of Texass diversity admission program). See also Berhane v Holder, 606 F3d 819, 828 (CA 6 2010) (citing to cnn.com to take judicial notice of the repressive conditions in Iran); Carranza v United States, 267 P3d 912, 918 n. 7 (Utah 2011) (taking judicial notice of nytimes.com articles on fetal development);
6 5

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medible cases had to be Section 8 cases because police have technical difficulties determining the amount of usable marijuana in a medible. The problem with this interpretation is that it means that every single case involving a medible would always have to go to a jury. This would create a chilling effect on a patient exercising their statutory rights. A jury verdict would not create future preclusive effect for the patient. Medical marijuana is highly charged. Many people feel that people are using it as an excuse to get high. At the same time, there is no denying that there are bona fide patients who are consuming marijuana for medicinal purposes. For example, in the Sanjay Gupta article discussed earlier in this brief, a Colorado family is treating their daughter with medibles high in CBDs and very low in THC. (This meant that she wouldnt get high from the medication, but this low THC marijuana is the only drug with proven medical effective in her treatment). Because of the daughters age, smoking the marijuana is not an option for health and pragmatic concerns. Similarly, another article has noted that the edible format of marijuana is the format used by children needing such treatment.7 A family with a child who needs medical marijuana for an ill child (such as Charlotte in the Gupta investigation) is not going to feel comfortable giving their child edible marijuana if their decision can always be second guessed by a jury. A jury verdict is only binding on that case and does not provide the patient with any protection against future prosecutions. The

prosecution would be free to continuously recharge the acquitted patient for engaging in the same

The Scientist, Medical Marijuana for Kids,http://www.thescientist.com/?articles.view/articleNo/36576/title/Medical-Marijuana-for-Kids-/ (last visited September 5, 2013).
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conduct week after week. Through this process of attrition, the State is likely to wear down all but the most resolved patients. While Appellant presumes that many prosecutors will decide not to charge such parents, there are a minority who might. As Justice Charles Levin recognized in his opinion in People v Otis Adams, this Court cannot presume the good faith of all prosecutors when construing a statute.8 1.3 A Medical Marijuana Patient Has a Right to Section 4 Immunity.

A patient has Section 4 immunity from prosecution for possessing marijuana edibles containing less than 2.5 ounces of usable marijuana. This does not include the inert materials (food) which it is cooked or processed with the marijuana.9 With a marijuana brownie, the State

People v Adams, 34 Mich App 546, 561; 192 NW2d 19, 26 (1971), aff'd in part, rev'd in part 389 Mich 222 (1973).
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As the Court of Appeals correctly noted: Nor are we persuaded by plaintiff's argument that usable marihuana merely constitutes marihuana that is usable, and that a brownie containing THC extracted from the resin of a marijuana plant is usable marihuana because it is marihuana that is usable simply by virtue of its ingestion. That argument requires a circularity of reasoning that would read into the drafters' definition of usable marihuana a component (resin) that the drafters expressly excluded. Moreover, it ignores the fact that usable marihuana is not simply a combination of the words usable and marihuana; rather, it is a term of art specifically defined by the MMMA. We are not at liberty to ignore that definition in favor of our own. See People v. Williams, 288 Mich.App 67, 74; 792 NW2d 384 (2010). The drafters' definition of the term usable marihuana clearly was not intended to encompass all marihuana that theoretically is usable, in the colloquial meaning of the term, by virtue of its ability to be ingested. Rather, as a term of art, it is designed to identify a subset of marihuana that may be possessed, in allowed quantities, for purposes of an immunity analysis under section 4 of the MMMA.
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may now include the bake mix. With a marijuana soda, the State may not include the water.10 The State also doesnt have an automatic right to a trial by jury in every case involving a medible. This will have a tremendously chilling effect on patients who need to take digestible marijuana on a medicinal basis. Section 7 (MCL 333.26427) of Michigans Medical Marihuana Act presupposes the use of medibles. Paragraph 2 of the Act bars any use or possession of medical marijuana on K-12 school grounds, a school bus, or in a correctional facility.11 Conversely, Section 3 prohibits the smoking of medical marijuana on any form of public transportation or in a public place.12 By excluding smoking by name, the voters obviously intended to not prohibit the consumption of medibles in such places. The prosecutions approach would effectively make every single patient who could not (or chose not to) smoke their marijuana face unlimited jury trials. A 2.5 ounce medible would

10

As the Court of Appeals noted: The phrase usable marihuana in the MMMA thus refers to marijuana to which the law has granted a qualifying patient the power, right, or privilege to use, rather than merely making reference to marijuana that is able to be ingested, smoked, or otherwise consumed in order to produce a narcotic effect. See, e.g., Blacks Law Dictionary, 9th ed (2009), p 1682 (use may mean the power, right, or privilege of using something, and a benefit granted by operation of law); Random House College Dictionary, 2d ed (2000), p 1440 (usable may mean available ... for use).

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MCL 333.26427(b)(2). MCL 333.26427(b)(3).

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obviously be insufficient. By way of reference, a typical Oreo Cookie weighs six ounces.13 Very few medibles (let alone a single days worth of medibles) would weigh under 2.5 ounces. As the Court of Appeals recognized in this case, a single brownie weighed 2.44 ounces. It seems exceptionally unlikely that the voters intended to make every case involving edibles subject to a Section 8 hearing and a jury trial. This Court should avoid a construction that negates the purpose of Michigans Medical Marihuana law.14 As Justice William O. Douglas once observed, [C]ommon sense often makes good law.15 As the Court of Appeals correctly recognized, a food-based delivery mechanism does not count towards the weight. This matter should be remanded for a Section 4 hearing in addition to the Section 8 hearing. 1.4 Rules of construction concerning voter initiated referendums.

Michigans Medical Marihuana Law preempts and provides a defense to criminal charges that not only prohibit the possession and use of marijuana but also ones which impact on substantial privileges and licenses. A person who qualifies under the MMMA may be legally guilty of an offense but is given immunity from prosecution.
16

In the first published case

http://www.ask.com/question/how-much-does-an-oreo-cookie-weigh (last visited August 31, 2013).

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13

People v Kolanek, 491 Mich 382, 402; 817 NW2d 528, 540 (2012) Peak v. United States, 353 U.S. 43, 46, 77 S.Ct. 613, 1 L.Ed.2d 631 (1957).

"The MMMA does not codify a right to use marijuana; instead, it 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. Although these individuals are still violating the Public Health Code by using marijuana, the MMMA sets forth particular circumstances under
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interpreting the MMMA, the Michigan Court of Appeals stated that unregistered patients can appropriately assert a Section 8 defense.17 The Court reached this decision by not only

examining the statutory language but also examining the ballot language which specifically stated that it permitted unregistered patients to assert this defense.18 The statute protecting a medical marijuana user is M.C.L.A. 333.26424(a). That statute provides: "Sec. 4. (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." Additionally, MCL 333.26427(7)(e) provides: 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. This Court should note that this law casts broad protection from all other acts or parts of acts.

which they will not be arrested or otherwise prosecuted for their lawbreaking." People v Redden, 290 Mich App 65, 93; 799 NW2d 184 (2010) (OConnell, J. concurring)
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People v Redden, 290 Mich App 65; 799 NW2d 184 (2010). Id.
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Where a statute adopts by reference the provisions of another document, the law treats those provisions as if they had been reprinted in the statute.19 The findings of the National Academy of Sciences report must be treated as part of the MMMA and respected as such. Voter initiated referendums are subject to the Canons of Statutory Construction,20 but the Court should afford greater liberality to intent of the voters than may sometimes be given to an individual act of the Legislature. Typically the voters are attempting to override a legislative judgment.21 Their decision may be attempting to make a sea change rather than a minor tweak in an established system. As the California Court of Appeals recognized:22 " [O]ur review of this appeal is also strictly circumscribed by the long-established rule of according extraordinarily broad deference

See, e.g., Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858 (1938) (Where one statute adopts the particular provisions of another by a specific and descriptive reference ..., the effect is the same as though the statute or provisions adopted had been incorporated bodily into the adopting statute. (internal quotation marks and citation omitted)); see also Norman J. Singer & J.D. Shambie Singer, 2B Sutherland Statutes and Statutory Construction 51:8 (When [a] reference is made to a specific section of [a] statute, that part of the statute is applied as though written into the reference statute.). Washington ex rel Pub Disclosure Comm'n v Rains, 87 Wash 2d 626; 555 P2d 1368 (1976); Bickel v. City of Boulder, 885 P.2d 215, 228 n. 10 (Colo.1994) (courts may interpret citizen-initiated measures using the general rules of statutory construction); Nevada Tax Comm'n v. Bernhard, 100 Nev. 348, 683 P.2d 21, 23 (1984) (laws approved by referendum are interpreted using general rules of statutory construction); Horwich v. Superior Court, 21 Cal.4th 272, 276277, 87 Cal.Rptr.2d 222, 980 P.2d 927 (general rules of statutory construction apply to initiatives). Carson v Oxenhandler, 334 SW2d 394, 398 (Mo Ct App 1960) ("It is said that the adoption of the initiative and referendum as a part of the organic law in some jurisdictions came about as a result of the growth of dissatisfaction of the people with their legislative bodies") . Citizens for Planning Responsibly v Cnty of San Luis Obispo, 97 Cal Rptr 3d 636, 64142; 176 Cal App 4th 357 (2009).
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to the electorate's power to enact laws by initiative. The state constitutional right of initiative or referendum is 'one of the most precious rights of our democratic process.' [Citation.] These powers are reserved to the people, not granted to them. Thus, it is our duty to ' ' 'jealously guard' ' ' these powers and construe the relevant constitutional provisions liberally in favor of the people's right to exercise the powers of initiative and referendum. There are no clean up sessions on voter referendums. This is another factor which this Court should consider when determining how to construe a referendum. While it is undeniable that does not create a general right of individuals to use and possess marijuana for non-medicinal purposes and that it may only be used by patients, a defense only to individuals who are suffering from a serious or debilitating medical condition or symptoms,23 this is not a rule of construction or a butchers thumb designed to turn what was otherwise a remedial measure into a rule of statutory construction designed to constrict the use of medical marijuana. 24 The net result is a syllogism which effectively strictly construes the Medical

The MMMA does not codify a right to use marijuana; instead, it 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. Although these individuals are still violating the Public Health Code by using marijuana, the MMMA sets forth particular circumstances under which they will not be arrested or otherwise prosecuted for their lawbreaking." People v Redden, 290 Mich App 65, 93; 799 NW2d 184 (2010) (OConnell, J. concurring) Similarly, it is highly questionable whether Medical Marijuana is still a Schedule 1 controlled substance. The executive summary of report (which was adopted by reference) in the finding of facts to this legislation states: "Much has been learned since the 1982 IOM report Marijuana and Health. Although it was clear then that most of the effects of marijuana were due to its actions on the brain, there was little information about how THC acted on brain cells (neurons), which cells were affected by THC, or even what general areas of the brain were most affected by THC. In addition, too little was known about cannabinoid physiology to offer any scientific insights into the
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Marihuana Act against the patient while liberally construing the Controlled Substance Act to carry out the perceived general purpose of keeping recreational marijuana users from using the drug. Stated another way, Courts and prosecutors are interpreting the Act to resolve doubts in favor of prosecution. This was not the intent of the voters. A Court has duty not to produce a result demonstrably at odds with the intentions of [a statute's] drafters.25 The presence of Section 4 immunity from both arrest and prosecution was designed as a hedge against precisely this type of prosecution. The Fourth Amendment to the US Constitution, the Fifth Amendment to the US

harmful or therapeutic effects of marijuana. That all changed with the identification and characterization of cannabinoid receptors in the 1980s and 1990s. During the past 16 years, science has advanced greatly and can tell us much more about the potential medical benefits of cannabinoids." The report goes on to find: Cannabinoids likely have a natural role in pain modulation, control of movement, and memory. The natural role of cannabinoids in immune systems is likely multi-faceted and remains unclear. The brain develops tolerance to cannabinoids. Animal research demonstrates the potential for dependence, but this potential is observed under a narrower range of conditions than with benzodiazepines, opiates, cocaine, or nicotine. Withdrawal symptoms can be observed in animals but appear to be mild compared to opiates or benzodiazepines, such as diazepam (Valium). These findings are wholly inconsistent with a determination that a substance is "schedule 1 if it finds that the substance has 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 the benchmark for when a substance is deemed a Schedule 1 narcotic. United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989).
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Constitution, and the Sixth Amendment to the US Constitution all presumably have had most police officers frustrated because it impaired the efficiency of their carrying out their jobs. By placing the ease of prosecution over the rights of patients, the Court of Appeals erred. The exact composition of the brownies was not developed below. Because no evidentiary hearing was held in the Circuit Court and evidence concerning medical marijuana was excluded at trial, the parties are forced to work from a preliminary examination transcript which was never intended to be a substitute for this record development. Most critically, the defense did not offer expert testimony concerning what was detectable and was not. The Court of Appeals correctly determined that the record was inadequate for judicial review. The Defendant agrees with this point, but believes that this matter should be remanded for both a Section 4 and Section 8 hearing.

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Relief
WHEREFORE, Defendant asks this Court to either grant leave to appeal or remand this matter to the Oakland County Circuit Court for both a Section 4 and Section 8 hearing. Respectfully submitted, /s/Stuart G. Friedman Stuart G. Friedman (P46039) Attorneys for Defendant-Appellant 3000 Town Center, Suite 1800 Southfield, MI 48075 (248) 228-3322 Fax: (248) 327-4940 e-Mail: stuartgfriedman@me.com Michael Komoron Of Counsel 3000 Town Center, Suite 1800 Southfield, MI 48075 (248) 357-2440 Fax: (855) 456-6676 e-Mail: michael@komornlaw.com Neil S. Rockind (P48618) Of Counsel 28411 Northwestern Highway, #1150 Southfield, MI 48034 (248) 208-3800 Dated: September 5, 2013

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Proof of Service STATE OF MICHIGAN ) ) COUNTY OF OAKLAND ) SS.

The undersigned declarant being first duly sworn, deposes and says that on May 20, 2012, (s)he did e-Serve a copy of the attached DEFENDANT- APPELLANTS APPLICATION FOR LEAVE TO APPEAL, to: Danielle Walton (P52042) Asistant Prosecutor 1200 North Telegraph Road Pontiac MI 48341 Declaration in Lieu of Notarization. I declare that the foregoing is true and correct to the best of my information, knowledge, and belief. Respectfully submitted, /s/Stuart G. Friedman _________________________________ Declarant DATED: September 5, 2013

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APPENDIX