State v. McQueen

493 Mich. 135

828 N.W.2d 644

STATE of Michigan

v.McQUEEN.

Docket No. 143824.

Calendar No. 7.

Supreme Court of Michigan.

Argued Oct. 11, 2012.

Decided Feb. 8, 2013.

Risa N. Scully, Prosecuting Attorney, for plaintiff.

Alane & Chartier, P.L.C. (by Mary Chartier, Lansing, and Natalie Alane), and Newburg Law, PLLC, Lansing, (by Matthew Newburg and Eric Misterovich), for defendants.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Heather S. Meingast and John R. Wright, Assistant Attorneys General, for the Attorney General.

Gerald A. Fisher for the Michigan Municipal League, the Michigan Townships Association, and the Public Corporation Law Section of the State Bar of Michigan.

David P. Cahill, Ann Arbor, Dennis M. Hayes, Wyandotte, and Rosemary Gordon Pánuco for Ann Arbor Medical Cannabis Guild, Inc.

YOUNG, C.J.

In this public nuisance action, we must determine whether defendants' business, which facilitates patient-to-patient sales of marijuana, operates in accordance with the provisions of the Michigan Medical Marihuana Act (MMMA).¹ We hold that it does not and that, as a result, the Court of Appeals reached the correct resultwhen it ordered that defendants' business be enjoined as a public nuisance.

The MMMA authorizes “[t]he medical use of marihuana ... to the extent that it is carried out in accordancewith the provisions of [the] act.” ² Section 3(e) of the act defines “medical use” broadly to include the “transfer” of marijuana “to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition.” ³ Because a transfer is “ [a]ny mode of disposing of or parting with an asset or an interest in an asset, including ... the payment of money,” ⁴ the word “transfer,” as part of the statutory definition of “medical use,” also includes sales. The Court of Appeals erred by concluding that a sale of marijuana was not a medical use.

Nevertheless, the immunity from arrest, prosecution, or penalty provided to a registered qualifying patient in § 4 of the MMMA for engaging in the medical use of marijuana can be rebutted upon a showing “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 Because the MMMA's immunity provision clearly contemplates that a registered qualifying patient's medical use of marijuana only occur for the purpose of alleviating his own debilitating medical condition or symptoms associated with his debilitating medical condition, and not another patient's condition or symptoms, § 4 does not authorize a registered qualifying patient to transfer marijuana to another registered qualifying patient. Accordingly, while the Court of Appeals erred by excludingsales from the definition of “medical use,” we affirm on alternative grounds its conclusion that the MMMA does not contemplate patient-to-patient sales of marijuana for medical use and that, by facilitating such sales, defendants' business constituted a public nuisance.

I. FACTS AND PROCEDURAL HISTORY

Defendants Brandon McQueen and Matthew Taylor own and operate C.A., LLC (hereinafter CA), formerly known as Compassionate Apothecary, LLC, a members-only medical marijuana dispensary located in Isabella County. McQueen is both a registered qualifying patient and a registered primary caregiver within the meaning of the MMMA,⁶ while Taylor is a registered primary caregiver. Their stated purpose in operating CA is to “assist in the administration of [a] member patient's medical use” of marijuana.

CA requires every member to be either a registered qualifying patient or registered primary caregiver pursuant to § 6 of the MMMA and to possess a valid, unexpiredmedical marijuana registry identification card from the Michigan Department of Community Health (MDCH).⁷ CA's basic membership fee of $5 a month allows a member to access CA's services. For an additional fee, a member can rent one or more lockers to store up to 2.5 ounces of marijuana and make that marijuana available to other CA members to purchase.⁸ The member sets the sale price of his marijuana, ⁹ and defendants retain a percentage of that price (about 20 percent) as a service fee. Defendants and their employees retain access at all times to the rented lockers, although the member may remove his marijuana from the lockers during business hours if he no longer wishes to make it available for sale.¹⁰

All CA members may purchase marijuana from other members' lockers. ¹¹ A member who wishes to purchase marijuana for himself (or, if the member is a registered primary caregiver, for his patient) must show his unexpired MDCH qualifying patient or primary caregiver registry identification card when entering CA. A representative of CA—either one of the individual defendants or an employee—will then take the member to the display room, where a variety of strains are available for purchase.¹² The member makes a selection, and the CA representative measures and weighs the marijuana, packages it, seals it, and records the transaction.

CA opened for business in May 2010. In July 2010, the Isabella County Prosecuting Attorney, on behalf of the state of Michigan, filed a complaint in the Isabella Circuit Court, alleging that defendants' business constitutes a public nuisance because it does not comply with the MMMA. The complaint sought a temporary restraining order, a preliminary injunction, and a permanent injunction. After holding a two-day evidentiary hearing, the circuit court denied plaintiff's request for a preliminary injunction. The court found that defendants “properly acquired registry identification cards,” that they “allow only registered qualifying patients and registered primary caregivers to lease lockers,” and that the patients or caregivers possess permissible amounts of marijuana in their lockers. Moreover, the court found that defendants themselves “do not possess amounts of marihuana prohibited by the MMMA.”

The court further determined that “the registered qualifying patients and registered caregivers perform medical use of the marihuana by transferring the marihuana within the lockers to other registered qualifying patients and registered primary caregivers.” The court noted that plaintiff had “failed to provide any evidence that defendants' medical marihuana related conduct was not for the purpose of alleviating any qualifying patient'sdebilitating medical condition or symptoms associated with the debilitating medical condition.” As a result, “the patient-to-patient transfers and deliveries of marihuana between registered qualifying patients fall soundly within medical use of marihuana as defined by the MMMA.” The court then determined that § 4 of the MMMA expressed the intent “to permit ... patient-to-patient transfers and deliveries of marihuana between registered qualifying patients in order for registered qualifying patients to acquire permissible medical marihuana to alleviate their debilitating medical conditions and their respective symptoms.” Finally, it noted that “[e]ssentially, defendants assist with the administration and usage of medical marihuana, which the Legislature permits under the MMMA.” ¹³

The Court of Appeals reversed the circuit court's decision and remanded for entry of judgment in favor of plaintiff.¹⁴ The Court concluded that two of the circuit court's findings of fact were clearly erroneous. First, it concluded that possession of marijuana is not contingent on having an ownership interest in the marijuana and that, because “defendants exercise dominion and control over the marijuana that is stored in the lockers,” they “possess the marijuana that is stored in the lockers.” ¹⁵ Second, the Court concluded that defendants were engaged in the selling of marijuana because defendants (or their employees) “intend for, make possible, and actively engage in the sale of marijuana between CA members,” even though they do not themselves own the marijuana that they sell.¹⁶

The Court concluded that the MMMA does not allow patient-to-patient sales. After noting that the MMMA “has no provision governing the dispensing of marijuana,” ¹⁷ the Court explained that the definition of “medical use” does not encompass the sale of marijuana, because it only allows the “delivery” and “transfer” of marijuana, not its sale, which “consists of the delivery or transfer plus the receipt of compensation.” ¹⁸ In reaching this conclusion, the Court reasoned that § 4(e), which allows a caregiver to receive compensation but mandates that “[a]ny such compensation shall not constitute the sale of controlled substances,” ¹⁹ would be unnecessary if the definition of “medical use” encompassed sales.²⁰ Finally, the Court noted that defendants are not entitled to immunity under § 4(i) of the MMMA, which insulates from liability someone who assists a registered qualifying patient “with using or administering marihuana.” ²¹ It explained that “[t]here is no evidence that defendants assist patients in preparing the marijuana to be consumed” or that they “physically aid the purchasing patients in consuming marijuana.” ²² As a result, it concluded that plaintiff was entitled to a preliminary injunction, and it reversed the circuit court's ruling.

This Court granted defendants' application for leave to appeal and requested that the parties brief “whether the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., permits patient-to-patient sales of marijuana.” ²³

II. STANDARD OF REVIEW

We review for an abuse of discretion the decision to deny a preliminary injunction,²⁴ but we review de novo questions regarding the interpretation of the MMMA,²⁵ which the people enacted by initiative petition in November[493 Mich. 147]2008.²⁶ “[T]he intent of the electors governs” the interpretation of...