JURIST - Paper Chase: Michigan Supreme Court rules private sale of medical marijuana is illegal

[JURIST] The Michigan Supreme Court [official website] ruled [opinion, PDF] Friday that the private sale of medical marijuana [JURIST news archive] is illegal. The court granted an injunction enjoining the defendants' business, Compassionate Apothecary (CA) [website], from selling medical marijuana because such sales constitute a public nuisance. The CA is a privately owned medical marijuana dispensary that facilitates patient-to-patient transfer of marijuana using a locker system for patients to store and trade excess marijuana. The Michigan Supreme Court affirmed the appeals court's ruling [JURIST report] that the Michigan Medical Marihuana Act (MMMA) [text] does not allow qualifying patients under the Act to distribute marijuana to other qualifying patients, but it diverged from the lower court in holding that the definition of "medical use" under the act does include the sale of marijuana. The court's majority reasoned:

Under MCL 600.3801, any building used for the unlawful manufacture, transporting, sale, keeping for sale, bartering, or furnishing of any controlled substance as defined in MCL 333.7104 is declared a nuisance. Marijuana is a controlled substance under MCL 333.7104. Because the medical use of marijuana is allowed under state law to the extent that it is carried out in accordance with the MMMA, the MMMA controlled whether defendants' business constituted a public nuisance. While the Court of Appeals erred by excluding sales from the definition of "medical use," it correctly concluded 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.

Although sales is included under the definition of "medical use" the patient-to-patient sale of medical marijuana constitutes a public nuisance according to the Act. There was one dissenting justice.

Marijuana was a hot-button issue in several states in the November election [JURIST report], with Washington and Colorado legalizing the drug. The Colorado initiative [Amendment 64, PDF] introduced an amendment to the state constitution, allowing adults over 21 to possess up to an ounce and privately grow up to six plants, although public use will be banned. In December the US Department of Justice warned Washington state that although voters in the state legalized marijuana in November [Initiative 502, PDF], marijuana is still illegal under federal law [JURIST report].