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ACLU, Livonia slug it out over medical marijuana; Observer-June 30, 2011
Topic Started: Jun 30 2011, 10:46 PM (324 Views)
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ACLU, Livonia slug it out over medical marijuana
http://www.hometownlife.com/article/20110630/NEWS10/110630015/1027/rss18
4:56 PM, Jun. 30, 2011 |
Ken Abramczyk
Livonia

Attorneys from the American Civil Liberties Union believe the city of Livonia cannot enact laws that violate state laws.
Attorneys from the city of Livonia’s Law Department and the state attorney general believe federal law pre-empts state law.

Those were two of the arguments made before Wayne County Circuit Judge Wendy Baxter Thursday during oral arguments on the ACLU’s lawsuit against the city of Livonia.

Baxter did not rule on the lawsuit, filed in December on behalf of Linda and Robert Lott of Birmingham. Baxter did not schedule another court hearing.

The ACLU sued the cities of Livonia, Bloomfield Hills and Birmingham regarding the authority of communities to prohibit medical marijuana use or sales on the grounds that marijuana possession violates federal law.

The lawsuit against Birmingham and Bloomfield Hills will be heard in Oakland County Circuit Court. No court dates were set in that case, according to the ACLU.
The ACLU sued the communities after they enacted ordinances that prohibited activities that violate federal law. That also prohibited medical marijuana, since marijuana is illegal under the Controlled Substances Act.


Linda Lott is a registered medical marijuana patient with multiple sclerosis. Lott and her husband Robert fear arrest and prosecution by local officials if they grow or use medical marijuana in compliance with state law.


While the couple hasn’t grown medical marijuana in Livonia, Assistant City Attorney Michael Fisher told the court a “10,000-square-foot grow house is an absolute law enforcement nightmare.”


“They argue that as a landlord they have a right to grow marijuana, but landlords have no right to grow marijuana,” Fisher said. “Secondly, they are not the actual landlords.”


ACLU attorney Andrew Nickelhoff responded that the Lotts own 97.5 percent of a piece of property in Livonia in the name of a corporation.


Nickelhoff said medical marijuana “helps ameliorate the painful symptoms and conditions” of Lott’s multiple sclerosis.


“People like Linda Lott shall not be subject to penalty in any manner or denied any right or privilege” under the Medical Marihuana Act, Nickelhoff said.

Nickelhoff said the real issue was pre-emption of law. “Livonia only has a right to enact ordinances that follow the laws of the state Constitution,” Nickelhoff said. Voters approved the use of medical marijuana.


Nickelhoff said the 10th Amendment of the U.S. Constitution provides state’s autonomy from the federal government and that states can exempt certain activities.
John Wright, assistant state attorney general, said the Medical Marihuana Act created a “positive conflict” with the Controlled Substances Act. “People now want to use the Medical Marijuana Act to exercise the right to violate federal law,” Wright said. Nickelhoff indicated that Linda Lott wanted the marijuana to alleviate pain. “She is not (a drug user),” Nickelhoff said.


Linda Lott said after the hearing that she has used medical marijuana for her back spasms. “When I start getting back spasms, I can take one toke (puff) of marijuana, and the pain goes away,” Lott said.


“Prescriptions won’t do it,” said her husband Robert. Linda is not using medical marijuana at this time and the couple said they will not grow it now.


Robert Lott said the ordinances “overreached” by “big government.”


“I follow all the laws,” Robert Lott said. “I pay my taxes in Livonia, I’m a good citizen in Livonia and I follow the rules.” Lott said he purchased property in Livonia in the 1990s.

http://www.hometownlife.com/article/20110630/NEWS10/110630015/1027/rss18

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Attorney general backs city in pot case
http://www.hometownlife.com/article/20110630/NEWS10/106300546/1027/rss18


Michigan Attorney General Bill Schuette filed a brief Monday to intervene and support the city of Livonia's motion for summary disposition in its defense of an ordinance that prohibits any activity, including medical marijuana use, that violates federal law.

The ordinance does not mention medical marijuana specifically by name, but prohibits it because marijuana possession violates federal law. The ACLU sued the cities of Livonia, Bloomfield Hills and Birmingham in December on behalf of Linda and Robert Lott regarding the authority of communities to prohibit medical marijuana use or sales on the grounds that marijuana possession violates federal law.

In his brief filed with the Wayne County Circuit Court, Schuette argued that the Michigan Medical Marihuana Act, approved by voters in November 2008, is preempted by federal law and that local communities “should not be forced to sanction criminal activity,” according to a press release issued by Schuette's office.

ARGUMENTS HEARD TODAY

The case's oral arguments are scheduled for today (Thursday) before Wayne County Circuit Judge Wendy Baxter.

The ACLU could not be reached for comment on Tuesday, nor were phone calls returned Wednesday.

The suit was filed by the ACLU on behalf of a registered medical marijuana patient with multiple sclerosis and her husband who the ACLU said fear arrest and prosecution by local officials if they grow or use medical marijuana in compliance with state law.

ACLU has argued in court documents that the federal government does not prosecute patients and caregivers who comply with their states' medical marijuana laws, and the Michigan Medical Marihuana Act specifically states that registered patients and their caregivers “shall not be subject to arrest, prosecution or penalty in any manner” for growing, possessing or using medical marijuana, the ACLU said.

Linda Lott, 61, is a Birmingham resident who has suffered from multiple sclerosis for 28 years. Confined to a wheelchair and blind, Lott experiences painful and relentless muscle spasms that can no longer be controlled by conventional medications. Soon after Michigan enacted its medical marijuana law, Lott received approval from her doctor to register as a medical marijuana patient.

The ACLU said Birmingham, for example, has made it a crime for Linda to use or possess medical marijuana in her home. Livonia prohibits Linda's husband, Robert Lott, from growing medical marijuana in a building the ACLU says he owns in the city, and Bloomfield Hills' complete ban on medical marijuana prevents Linda from using medical marijuana at a private social club she belongs to there.

Don Knapp, Livonia's city attorney, said Schuette's brief is very similar to his argument that the federal law pre-empts state law. “They directly conflict with each other,” Knapp said.

Baxter could rule on the motion today, Knapp said. Knapp expects that the losing side in the lawsuit, either the ACLU or the city of Livonia, will appeal the circuit court's ruling to the Michigan Court of Appeals.

SCHUETTE ISSUES OPINION

Schuette also issued an opinion Monday that banned cooperative “marijuana farms” and limits patients to 12 plants. The plants must be enclosed in a locked facility, only accessible by patients and their caregivers, Schuette said.

Schuette said nothing in the language of the Michigan Medical Marihuana Act suggests that the majority of voters, in adopting the act, intended that patients, primary caregivers, or any other individuals could form and operate cooperatives to jointly cultivate, store and share medical marijuana.

Schuette said a patient who cultivates marijuana must keep his or her plants in an “enclosed, locked facility,” which is defined as “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.”

Access to an enclosed locked facility is limited to a single, or one, registered primary caregiver or registered qualifying patient, Schuette said. “Thus, a patient cultivating marihuana plants must keep the plants in a facility that is only accessible to the patient,” Schuette said.

For a patient who designates a registered primary caregiver, the patient acquires his or her marijuana from that primary caregiver, Schuette said. “Once a patient designates that single primary caregiver, the Act does not authorize the patient to acquire marijuana from anyone else.

“Further, if the patient specifies that the caregiver shall cultivate the patient's marijuana plants, the patient relinquishes any right to possess and cultivate marijuana plants for medical use.”

Attorney Michael Komorn, president of the Michigan Medical Marihuana Association, said prohibiting patient-to-patient or caregiver-to-caregiver transactions takes away access for patients.

Komorn wondered where patients will go for medical marijuana.

Komorn said Schuette's ruling now calls for caregivers to locate 12 separate facilities to grow medical marijuana. “What is the purpose of this?” Komorn asked.

http://www.hometownlife.com/article/20110630/NEWS10/106300546/1027/rss18
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