STATE OF MICHIGAN IN THE COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, Court of Appeals No. 308105 No. 308109 No. 308113 No. 308111 No. 308106 No. 308104 No. 308110 Circuit Court No. 2011-236623-FH No. 2011-236625-FH No. 2011-236628-FH No. 2011-236627-FH No. 2011-236624-FH No. 2011-236622-FH No. 2011-236626-FH

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-vsANTHONY JAMES AGRO, BARBARA JEAN AGRO, NICHOLAS AGRO, MATTHEW CURTIS, RYAN MICHAEL FLEISSNER, BARBARA MIRA JOHNSON, RYAN DANIEL RICHMOND Defendants-Appellee. / PEOPLES RESPONSE TO DEFENDANTS MOTION FOR RECONSIDERATION

JESSICA R. COOPER PROSECUTING ATTORNEY OAKLAND COUNTY THOMAS R. GRDEN CHIEF, APPELLATE DIVISION BY: DANIELLE WALTON (P52042) Assistant Prosecuting Attorney Oakland County Prosecutors Office 1200 North Telegraph Road Pontiac, Michigan 48341 (248) 858-0685

RESPONSE TO DEFENDANTS MOTION FOR RECONSIDERATION Now Comes Jessica Cooper, Prosecuting Attorney in and for the County of Oakland, by Danielle Walton, Assistant Prosecuting Attorney, answering defendants motion as follows: 1., 9. The People deny that defendants showed that they were acting in good faith

reliance on administrative interpretations of the Michigan Medical Marihuana Act. Furthermore, as this Court noted, defendants never showed that they were caregivers or patients in the lower court. People v Johnson et al, unpublished per curiam opinion of the Court of

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Appeals decd September 10, 2013 (Docket Nos. 308109-308113)(indicating, . . .defendants did not argue or establish that they were qualifying patients who had been issued and possessed registry identification cards, MCL 333.26424(a), or primary caregivers who had been issued and possessed registry identification cards, MCL 333.26424(b).)(Slip. Op. at 7). Furthermore, they never established that they assisted registered patients with using or administering marihuana. MCL 333.26424(i). Johnson et al, (Slip. Op. at 7)(even if each defendant was such a person contemplated under 4(i), the trial court failed to determine that each defendant was assisting a registered qualifying patient with regard to each charge for which they were being prosecuted.) It was uncontested in this case that defendants sold or conspired to sell to individuals who were undercover officers and not registered patients. Johnson et al, supra (Slip. Op. at 3) Defendants cite the Isabella circuit court decision in State v McQueen. However, the defendants committed their conduct before the circuit court issued McQueen. The defendants committed their conduct from July through August of 2010. The circuit court did not issue its opinion (which both this Court and Supreme Court rejected) until December 16, 2010. Defendants asserted that they relied on an opinion by the county executive (which is not attached). However, the circuit court denied their motion for dismissal based on entrapment by 2

estoppel (9/14/11 T at 28-29, 30, 31-32, 34-36, 41; 1/11/13 T at 77) and a county executive is not responsible for interpreting state criminal laws. MCL 45.558. Even assuming an opinion by a county executive were pertinent, this opinion was not issued until August 9, 2010, after the defendants opened their dispensary, warned individuals that dispensing marihuana violated federal law, did not govern dispensaries, and clearly dealt with zoning rather than criminal prosecution. Furthermore, the Michigan Department of Community Health, which administered the Act

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at that time, posted on their website that dispensaries were illegal,1 some of the key drafters of the Act were of the opinion that dispensaries/collective grows were not permitted under the Act,2 before their undercover investigation the police went out to the dispensary and indicated that it was the opinion of the police as well as the opinion of the Oakland County Prosecutor that the dispensary was not permitted by law. 9/14/11 MT at 98 Furthermore, nowhere in the Act are dispensaries allowed and it is absolutely clear when states wish to permit dispensaries. See for example: Ariz. Rev. Stat. Ann 36-2804, 36-2804.01, 36-2806, 36-2806.01; Colo. Rev. Stat. 12-43.3-103 et seq.; DC Code 7-1671.01, 7-1671.05-06; Me. Rev. Stat. Ann. tit. 22 2428, 2430-A; N.J. Stat. Ann. 24:6I-3; 24:6I-7; N.M. Stat. 26-2B-7; R.I. Gen. Laws 21-28.6-12. Also the Act itself indicates that even activities which are conducted in compliance with the Act are in violation of federal law. MCL 333.26422(c).

Cities Across Michigan Struggle with How to Handle MJ Dispensaries (Posted April 21, 2010) http://michigancannabispatients.com/Forum/viewtopic.php) 2 Letter From Karen OKeefe On Dispensaries (Posted, September 3, 2010) http://michiganmedicalmarijuana.org/topic/23053-letter-from-karen-okeefe-on-dispensaries (accessed September 19, 2012; Satyanarayana, Is Marijuana Good Medicine? Detroit Free Press, October 25, 2008, http://www.freep.com/article/20081025/NEWS15/810250341/Ismarijuanagood-medicine cited by People v Redden & Clark, 290 Mich App 65, 110 n 17; 799 NW2d 184 (2010) (OConnell, J., concurring). 3

2.

The People agree that this Court reversed the decision of the lower court. The

People again note that defendants never proved that they were patients/caregivers or that they sold to registered patients. Furthermore, defendant has failed to show that this Court erred for reasons stated infra. 3-7. The People deny the allegations in paragraphs three through seven. The trial court

relied in part on the rule of lenity when it dismissed the cases. However, the rule of lenity is a rule of statutory construction and lower courts are not free to re-interpret an Act which has

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already been interpreted by a higher court. Catalina Mktg Sales Corp v Dept of Treasury, 470 Mich 13, 23; 678 NW2d 619 (2004). Both this Court and the Supreme Court have already construed the disputed portions of the Act in State v McQueen, 293 Mich App 644; 811 NW2d 513 (2011) and State v McQueen, 493 Mich 135; 828 NW2d 644 (2013). These decisions are binding on the lower courts. Furthermore, the lower court found that this Court in McQueen, supra determined that MCL 333.26424(i), which provides immunity from prosecution if an individual assists a registered patient in using marihuana was ambiguous. 1/11/12 MT at 79-80 This was far from the case. This Court in McQueen, supra specifically interpreted 4(i) and found that when an individual assists a registered qualifying patient with using or administering marihuana this meant to assist solely in the ingestion of marihuana. Id. at 672-673. This Court in McQueen, supra indicated that there was no evidence in that case that any of the defendants were physically aiding the customers in consuming marihuana but instead were engaged in the selling of marihuana [as they were in this case]. Id. at 673. The Supreme Court agreed. The Supreme Court indicated, [t]hus by its plain language . . . The transfer, delivery and acquisition of marijuana are three activities that are part of the medical use of marijuana that the drafters of 4

the MMMA chose not to include as protected activities within 4(i). McQueen, supra at 158. This interpretation was binding on the lower court and the court erred by re-construing the Act based on the rule of lenity. 8-11. The People admit that the trial court relied on People v Dempster, 396 Mich 700;

242 NW2d 381 (1976), but deny that Dempster supported the judges dismissals. Defendants assert that Dempster, supra stands for the proposition that if the defendants reasonably interpreted the law differently from how an appellate court later interpreted it, the appellate court

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opinion should not be applied to them. This is incorrect. The general rule is that judicial decisions are to be given complete retroactive effect. (citation omitted) People v Doyle, 451 Mich 93, 104; 545 NW2d 627 (1996). Because judges find what the law is rather than making new law, then applying their interpretations retroactively does not upset reliance interests, for members of society cannot reasonably rely on what was not law. The retroactive application of judicial decisions after all is an essential part of our legal system. LaFave Substantive Criminal Law (5th ed.) 2.4(e). There is a narrow exception to the ordinary rule of full retroactivity when the opinion changes the law, such as when the court is overruling previous Supreme Court precedent or when the court decision is adding a new requirement to the statute (Rogers v Tennessee, 532 US 451, 461; 121 S Ct 1693; 149 L Ed 2d 697 (2001); Bouie v City of Columbia, 378 US 327; 84 S Ct 1697; 12 L Ed 2d 894 (1964)), and the opinion is indefensible and unforeseeable. Doyle, supra at 101,104. In this case McQueen did not overrule precedent and therefore was not a law-changing opinion. The law on a subject is viewed as unsettled until the Supreme Court speaks and therefore defendants do not have a reliance interest until the highest court of the jurisdiction 5

rules. See: Niederstadt v Nixon, 505 F3d 832, 837 (CA 8, 2007)(indicating, until the state's highest court has spoken on a particular point of state law, the law of the state necessarily must be regarded as unsettled.) (citation omitted); Lancaster v Metrish, ___US___; 133 S Ct 1781; 185 L Ed 2d 988 (2013). As stated in Lancaster: This Court has never found a due process violation in circumstances remotely resembling Lancasters case-i.e. where a state supreme court, squarely addressing an issue for the first time, rejected a consistent line of lower court decisions based on the supreme courts reasonable interpretation of the language of a controlling statute.

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133 S Ct at 1792. The Supreme Court in Dempster, supra indicated that because the Court was adding a new requirement to an ambiguous statute (adding judicial gloss) the opinion should not be retroactively applied. The Court indicated that its opinion was an unforeseeable judicial enlargement of a criminal statute. Id. at 716. However, the Supreme Courts decision in McQueen, supra did not add a new requirement to the statute, instead the Supreme Court indicated that the plain meaning of 4(i) did not include the transfer, delivery and acquisition of marijuana. The Court also found that dispensaries were not explicitly nor implicitly allowed under 4 of the Act. McQueen, supra at 141-142, 153-160. Therefore, because McQueen was not a law-changing opinion (much less unforeseeable or indefensible) this Court correctly ruled it should be given full retroactive effect. 10, 12, 14-17. The People deny the allegations in paragraphs ten, twelve, and fourteen through seventeen for reasons stated in paragraph one. The People also note that until the Supreme Court spoke, defendants had no reliance interests in the state of the law. Furthermore, when there is no provision in the Act itself for dispensaries, when states want to allow for dispensaries it is very clear within their statutes, a substantial part of the MMMA discusses the 6

registration requirement and that caregivers must be linked to their patients to avail of 4 (MCL 333.26423(k), MCL 333.26424(a),(b),(d),(e), MCL 333.26425(b), MCL 333.26426, and MCL 333.26429) and defendants never established that they were patients/caregivers, defendants have failed to show that they lacked fair warning that they were not entitled to avail of the immunity from prosecution listed in 4. Defendants argue that they reasonably did not know that they had to be linked to their patients to avail of 4 and therefore the case was properly dismissed. However, the affirmative defense listed in 8 did not require such linkage and defendant never

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asserted they could meet the additional requirements listed in MCL 333.26428. 18-19. The People deny the allegations in paragraphs eighteen through nineteen. Defendants merely present the same issues which this Court has already rejected. Respectfully Submitted, JESSICA R. COOPER PROSECUTING ATTORNEY OAKLAND COUNTY By: /s/ Danielle Walton (P-52042) Assistant Prosecuting Attorney Oakland County Prosecutors Office 1200 N. Telegraph Rd. Pontiac, MI 48341 (248) 858-0656

DATED: October 3, 2013