MI AG invited to weigh in on constitutionality of marijuana transportation law
In 2014, various district court judges throughout Michigan have dismissed criminal cases against individuals charged with violating a 2012 law which penalizes unauthorized methods of transporting marijuana. The
marijuana transportation law is, however, currently being enforced in other Michigan courts’ jurisdictions against medical marijuana patients and caregivers who were acting in strict compliance with
Michigan’s Medical Marijuana Act (MMMA).
Recently, a Benzie County District Judge asked Michigan’s Attorney General to file a brief outlining their position on the constitutionality of
the marijuana transportation law. In that case, People v Olaf Johnson, Defense attorney David G. Huft argued in his
motion and
brief that
the marijuana transportation law “is superseded by [the
MMMA] … Defendant is immune from prosecution and arrest because he fully complied with the requirements of [the
MMMA]” Huft further argued that “Defendant is entitled to dismissal under the affirmative defense [section of the
MMMA]” and that the marijuana transportation law “is unconstitutional.”
Michigan’s statute restricting the transportation of usable marijuana in a motor vehicle (
MCL 750.474) requires marijuana to be “[e]nclosed in a case that is carried in the trunk of the vehicle… or [e]nclosed in a case that is not readily accessible from the interior of the vehicle, if the vehicle in which the person is traveling does not have a trunk.”
The 2012 marijuana transportation law additionally provides that a “person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.”
Benzie County District Court Judge John D. Mead asked defense attorney David Huft, at a hearing on September 18, to “prepare an order for me to sign inviting [Michigan's] Attorney General to submit a brief in this [case], 'cause anytime a statute is being challenged on constitutional grounds, it's my understanding the AG is actually supposed to be notified so that that office can decide whether or not it wants to file a brief."
Judge Mead’s September 19, 2014 order indicates: “IT IS THEREFORE ORDERED THAT the Attorney General for the State of Michigan shall be given notice of the pendency of this case, shall be provided copies of Defendant's Motion to Dismiss and Defendant's Brief in Support of Motion to Dismiss, and shall be given an opportunity to file a brief on the issues presented by Defendant's Motion to Dismiss.”
Defense attorney Huft’s
motion and
brief cited the following transcript’s and opinions in which three district judges had previously dismissed criminal charges after ruling that
Michigan’s marijuana transportation law was unconstitutional and/or superseded by the
MMMA.
•
On March 4, 2014, Ingham County District Judge Thomas P. Boyd granted a motion to dismiss a charge of illegal transportation of marijuana and held that: “The question is did [the legislature enact the marijuana transportation law] in a way that's consistent with the constitution and consistent with the members of the Constitutional Convention's intent that legislation not be done in secret or by trick. The really puzzling thing is I assumed … that I would find that it didn't have the requisite supermajority number of votes to amend an initiated act, which is also a different constitutional provision. But it does. I mean, this bill passed the House with 93 votes and passed the Senate with 38 votes. So I'm at a loss to know why the legislature was skirting the constitutional requirements when they had the votes to pass the bill. It doesn't make any sense. There's only, I guess, a couple answers. One is sloppiness, which, of course, is always a possibility with the term limit of the legislature. And the other is that they had a different reason not to amend the initiated act. Sometimes, because of the constitutional requirement that you can't change an act without going into it, once you go into the act, people who want to do things other than the sponsor's intent also get to amend the act. And they can amend the bill, which might amend the act and that ties things up and maybe that's what's going on. I don't know. I guess it's not really for us to guess. It doesn't really matter… Finally, Public Act 460 of 2012 is unconstitutional as it was enacted contrary to Article IV, Section 25, of the Michigan Constitution which provides that “no law shall be revised, altered, or amended by reference to its title only. The section or sections of the act altered or amended shall be reenacted and published at length.” It is crystal clear that [the marijuana transportation law] is an effort to amend, alter, or revise the
Medical Marihuana Act which is the initiated act of number 1 of 2008. Why the legislature chose to amend the penal code rather than just go into the initiate law of 2008 as required by Article IV, Section 25, of the Michigan Constitution? I don't know. I speculated, but I have no idea, and it's not really relevant to the purposes of this inquiry.”
•
On June 19, 2014, Delta County District Judge Glenn A. Pearson issued an order finding that
Michigan’s marijuana transportation law “is inconsistent with the
MMMA with regard to the transportation of medical marijuana and that Public Act 460 of 2012 is unconstitutional in its enactment having been done in violation of Article IV Section 25 of the Michigan Constitution. The Court specifically adopts the reasoning of Judge Boyd as set forth on the record March 4, 2014 in the 55th District Court for the County of Ingham…”
•
On July 21, 2014, Crawford County District Judge Monte J. Burmeister held that the Legislature’s “amendments to the penal code attempt to modify the
Michigan Medical Marihuana Act by restricting actions specifically allowed for under the
MMMA. This attempt to revise and alter is done under the auspices of the penal code rather than re-publishing of the
MMMA. Such an approach is unconstitutional… In dismissing the case, this Court notes it believes the MMMA is bad public policy as written and is fraught with problems as drafted. Notwithstanding that, it is not the Court's personal views that dictate here, but rather the Court's requirement to uphold the Constitution of this state. The Legislature may affect the modifications they did here with the same prohibitions regarding transport, but it is incumbent upon them to do that under the tenets of the
Michigan Medical Marijuana Act and consistent with the procedures required for an amendment of that Act.”
In addition to those district judges’ opinions cited in defense attorney Huft’s brief,
Washtenaw County District Judge Richard E. Conlin issued an opinion on July 23, 2014, holding that: “The Penal Code statute requiring medical marihuana to be in an enclosed case when transported clearly amends the
Michigan Medical Marihuana Act, which places no restrictions (other than amount) on transporting Marihuana for patients and caregivers, and provides a complete defense to criminal prosecution. The statute does not reenact or republish the
Michigan Medical Marihuana Act. In Alan v Wayne County, 388 Mich 210 (1972), the Michigan Supreme Court specifically addresses the question of “amendment by implication,” where a statute has the effect of amending another statute or act, but does not make reference to the statute or act so amended. But that is not the case here;
MCL 750.474 specifically mentions the
Michigan Medical Marihuana Act, and specifically amends the act by requiring usable marihuana to be transported in a closed container that is in the trunk or otherwise inaccessible. This type of amendment is unconstitutional.”
Judge Mead also granted Benzie County Chief Assistant Prosecuting Attorney Jennifer Tang-Anderson’s request to adjourn the proceedings on September 18 so she could prepare a responsive brief.
A future hearing date regarding defense attorney Huft’s motion to dismiss has not yet been scheduled by the Benzie County District Court.