People v. Hartwick, Docket Nos. 148444

498 Mich. 192

870 N.W.2d 37

PEOPLE of the State of Michigan, Plaintiff–Appellee

v.Richard Lee HARTWICK, Defendant–Appellant.

People of the State of Michigan, Plaintiff–Appellee

v.Robert Tuttle, Defendant–Appellant.

Docket Nos. 148444

148971.

Calendar Nos. 5

6.

Supreme Court of Michigan.

Argued Jan. 15, 2015.

Decided July 27, 2015.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief, Appellate Division, and Jeffrey M. Kaelin, Assistant Prosecuting Attorney, for the people in Hartwick.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Tanya L. Nava, Assistant Prosecuting Attorney, for the people in Tuttle.

Frederick J. Miller, Oxford and Nancy E. Miller for Richard Lee Hartwick.

Daniel J.M. Schouman, PLC (by Daniel J.M. Schouman ), for Robert Tuttle.

Daniel W. Grow, PLLC (by Daniel W. Grow ), for Cannabis Patients United in Hartwick.

Komorn Law, PLLC (by Michael A. Komorn, Clarkston), for the Michigan Medical Marijuana Association in Hartwick and Tuttle.

Cannabis Attorneys of Michigan, (by Denise A. Pollicella, Farmington Hills, Ashlee N. Rudnick, and Brandon Gardner, Lansing) in Tuttle.

Opinion

ZAHRA, J.

In 2008, the voters of Michigan passed into law a ballot initiative¹ now codified as the Michigan Medical Marihuana² Act (MMMA), MCL 333.26421 et seq. Unlike the procedures for the editing and drafting of bills proposed through the Legislature, the electorate—those who enacted this law at the ballot box—need not review the proposed law for content, meaning, readability, or consistency.³

This lack of scrutiny in the lawmaking process is significant because initiatives such as the MMMA cannot be modified “except by a[nother] vote of the electors” or by a three-fourths vote of each chamber of the Legislature.⁴ This constraint on Legislative power suggests that there can be matters of public policy so important to the people that they cannot be left in the hands of the elected legislators. But this constitutionally protected reservation of power by the people comes with a cost. The lack of procedural scrutiny in the initiative process leaves the process susceptible to the creation of inconsistent or unclear laws that may be difficult to interpret and harmonize. The MMMA is such a law. While the MMMA has been the law in Michigan for just under seven years, this Court has been called on to give meaning to the MMMA in nine different cases.⁵ The many inconsistencies in the law have caused confusion for medical marijuana caregivers and patients, law enforcement, attorneys, and judges, and have consumed valuable public and private resources to interpret and apply it. This confusion mainly stems from the immunity, MCL 333.26424 (§ 4), and the affirmative defense, MCL 333.26428 (§ 8), provisions of the MMMA. We granted leave in People v. Hartwick⁶ and People v. Tuttle⁷ to once again consider the meaning and application of these two very important sections of the MMMA.⁸

For the reasons fully explained in this opinion regarding § 4, we hold:

(1) entitlement to § 4 immunity is a question of law to be decided by the trial court before trial;

(2) the trial court must resolve factual disputes relating to § 4 immunity, and such factual findings are reviewed on appeal for clear error;

(3) the trial court's legal determinations under the MMMA are reviewed de novo on appeal;

(4) a defendant may claim immunity under § 4 for each charged offense if the defendant shows by a preponderance of the evidence that, at the time of the charged offense, the defendant

(i) possessed a valid registry identification card,

(ii) complied with the requisite volume limitations of § 4(a) and § 4(b),

(iii) stored any marijuana plants in an enclosed, locked facility, and

(iv) was engaged in the medical use of marijuana;

(5) the burden of proving § 4 immunity is separate and distinct for each charged offense;(6) a marijuana transaction by a registered qualifying patient or a registered primary caregiver that is not in conformity with the MMMA does not per se taint all aspects of the registered qualifying patient's or registered primary caregiver's marijuana-related conduct;

(7) a defendant is entitled to a presumption under § 4(d) that he or she was engaged in the medical use of marijuana if the defendant has shown by a preponderance of the evidence that, at the time of the charged offense, the defendant

(i) possessed a valid registry identification card, and

(ii) complied with the requisite volume limitations of § 4(a) and § 4(b);⁹

(8) the prosecution may rebut the § 4(d) presumption that the defendant was engaged in the medical use of marijuana by presenting evidence that the defendant's conduct was not for the purpose of alleviating the registered qualifying patient's debilitating medical condition;

(9) non-MMMA-compliant conduct may rebut the § 4(d) presumption of medical use for otherwise MMMA-compliant conduct if a nexus exists between the non-MMMA-compliant conduct and the otherwise MMMA-compliant conduct;(10) if the prosecution rebuts the § 4(d) presumption of the medical use of marijuana, the defendant may still establish, on a charge-by-charge basis, that the conduct underlying a particular charge was for the medical use of marijuana; and

(11) the trial court must ultimately weigh the evidence to determine if the defendant has met the requisite burden of proof as to all elements of § 4 immunity.

Regarding § 8, we hold:

(1) a defendant must present prima facie evidence of each element of § 8(a) in order to be entitled to present a § 8 affirmative defense to a fact-finder;

(2) if the defendant meets this burden, then the defendant must prove each element of § 8(a) by a preponderance of the evidence; and

(3) a valid registry identification card does not establish any presumption under § 8.¹⁰

For the reasons stated in this opinion, and in accordance with the conclusions of law described above, we affirm in part, and reverse in part, the November 19, 2013 judgment of the Court of Appeals in People v. Hartwick.¹¹ We further remand Hartwick to the trial court for an evidentiary hearing regarding Hartwick's entitlement to immunity under § 4. In People v. Tuttle, we affirm in part, and reverse in part, the January 30, 2014 judgment of the Court of Appeals.¹² We also remand Tuttle to the trial court for an evidentiary hearing regarding Tuttle's entitlement to immunity under § 4.

I. STATEMENT OF FACTS

A. PEOPLE v. HARTWICK

In late 2011, police officers in Oakland County received a tip regarding a marijuana growing operation at Hartwick's home. Law enforcement officers confronted Hartwick, who admitted growing marijuana, but stated he was in compliance with the MMMA. After consenting to a search of his home, Hartwick led the police officers to a bedroom containing dozens of marijuana plants in varying sizes.¹³ The police officers also found a total of 104.6 grams—approximately 3.69 ounces—of usable marijuana in the home.

The Oakland County Prosecutor charged Hartwick with manufacturing 20 to 200 marijuana plants and possession with intent to deliver marijuana. Hartwick moved to dismiss those charges based on both the immunity (§ 4) and the affirmative defense (§ 8) provided in the MMMA. The trial court held an evidentiary hearing at which Hartwick was the only witness. Hartwick testified that he was a medical marijuana patient and his own caregiver,¹⁴ and a connected¹⁵ primary caregiver to five registered qualifying patients. He submitted into evidence the registry identification cards for himself and the five connected qualifying patients. Hartwick could not identify the debilitating conditions suffered by two of the qualifying patients statutorily connected to him. Further, Hartwick could not identify the certifying physician for any of the five connected qualifying patients.

The trial court concluded that Hartwick was not entitled to § 4 immunity. The court reasoned that Hartwick did not comply with the requirements of the MMMA because he did not know if the patients connected to him even had debilitating medical conditions.¹⁶

The trial court similarly denied Hartwick's motion to dismiss under § 8 and his motion in the alternative to present a § 8 affirmative defense to the jury. The court determined that Hartwick failed to present “testimony regarding a ‘bona fide physician-patient relationship or a likelihood of receiving therapeutic or palliative benefit from the medical use of marijuana,’ or any testimony on whether defendant possessed no more marijuana than reasonably necessary for medical use.”¹⁷ Thus, Hartwick failed to establish his entitlement to a § 8 affirmative defense.

The Court of Appeals affirmed the trial court, rejecting Hartwick's contention “that his possession of a registry identification card automatically immunizes him from prosecution under § 4 and grants him a complete defense under § 8.”¹⁸ The Court of Appeals focused on the “primary purpose” of the MMMA, “which is to ensure that any marijuana production and use permitted by the statute is medical in nature and only for treating a patient's debilitating medical condition.”¹⁹

B. PEOPLE v. TUTTLE

Tuttle was a registered qualifying patient and his own caregiver. He was also connected as a registered primary caregiver to at least one other registered qualifying patient.²⁰ On three separate occasions in early 2012, Tuttle sold marijuana to William Lalonde even though Tuttle was not formally connected to Lalonde under the MMMA. In addition to arresting Tuttle for providing marijuana to Lalonde, the Oakland County Sheriff's Office searched Tuttle's home where they found 33 marijuana plants, 38 grams of marijuana (approximately 1.34 ounces), and several weapons locked in a gun safe. Tuttle was subsequently charged with multiple counts related to the possession, delivery, and manufacture of marijuana, as well as possession of a firearm...