People v. Thue

• Decision Date: 11 February 2021
• Docket Number: No. 353978,353978
• Citation: 969 N.W.2d 346,336 Mich.App. 35
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Eugene THUE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

336 Mich.App. 35

969 N.W.2d 346

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Michael Eugene THUE, Defendant-Appellant.

No. 353978

Court of Appeals of Michigan.

Submitted February 4, 2021, at Detroit.

Decided February 11, 2021, 9:05 a.m.

Michael A. Komorn, Southfield, for defendant.

Before: Cavanagh, P.J., and Servitto and Cameron, JJ.

Cavanagh, P.J. Defendant appeals by leave granted¹ the circuit court's order denying defendant's application for leave to appeal the district court's denial of his motion to allow him to use medical marijuana while on probation. We reverse the district court's order denying defendant's motion to modify the terms of his probation to allow him to use medical marijuana.

I. FACTS

On June 25, 2019, defendant was involved in a road-rage incident for which he was charged with assault and battery, MCL 750.81. He ultimately pleaded guilty and was sentenced to one year of probation. As a condition of probation, defendant was not to use marijuana, including medical marijuana. Defendant moved to modify the terms of his probation to allow him to use medical marijuana. The district court held a hearing on defendant's motion, during which defendant argued that a person authorized to use medical marijuana under the Michigan Medical Marijuana Act (the MMMA), MCL 333.26421 et seq. ,² is entitled to special protections, including protection from arrest, prosecution, or penalty of any kind.³ The prosecution argued that the district court had the ability to place restrictions on a defendant's medication. The district court denied defendant's motion to modify the terms of his probation, holding that it was "bound by the Circuit Court, their appellate jurisdiction and their directive to us that we not allow [probationers to use medical marijuana]." The district court stated that it had the authority to place restrictions on medication and that the restriction was appropriate in this case.

Following the district court's decision, defendant filed an application for leave to appeal in the circuit court. Defendant argued that "[t]he revocation of probation ... upon the use of medical marijuana constitutes the imposition of a penalty" in violation of MCL 333.26424(a)⁴ of the MMMA. Defendant also argued that MCL 333.26427(e) of the MMMA overrides Michigan's probation act, MCL 771.1 et seq. , thus prohibiting the imposition of such a condition. The circuit court denied leave to appeal, and this appeal followed.

II. MOOTNESS

On December 20, 2019, defendant was sentenced to one year of probation, which included the condition that defendant not use marijuana, including medical marijuana. Thus, defendant's term of probation likely ended on December 20, 2020. "An issue is moot when an event occurs that renders it impossible for the reviewing court to fashion a remedy to the controversy." People v. Cathey , 261 Mich. App. 506, 510, 681 N.W.2d 661 (2004). And generally a court will not decide moot issues. People v. Richmond , 486 Mich. 29, 34, 782 N.W.2d 187 (2010). But if an "issue is one of public significance that is likely to recur, yet evade judicial review," it is justiciable. Id. (quotation marks and citation omitted). We conclude that such is the case here. As our Supreme Court in People v. Vanderpool , 505 Mich. 391, 397 n. 1, 952 N.W.2d 414 (2020), explained: "[T]he relatively short timelines involved in probation cases compared with the often sluggish pace of the appellate process might make this situation one that is capable of repetition, yet evading review." The issue whether a sentencing court can prohibit a defendant from using medical marijuana as a condition of probation when the defendant possesses a valid medical marijuana registration card is one of public significance that is likely to recur yet evade judicial review.

III. ANALYSIS

A. STANDARD OF REVIEW

A trial court's decision setting the terms of probation is reviewed for an abuse of discretion, People v. Malinowski , 301 Mich. App. 182, 185, 835 N.W.2d 468 (2013), which occurs only when the decision "falls outside the range of reasonable and principled outcomes," People v. Franklin , 500 Mich. 92, 100, 894 N.W.2d 561 (2017) (quotation marks and citation omitted).

"This Court reviews de novo whether the trial court properly interpreted and applied the Medical Marijuana Act." People v. Anderson (On Remand) , 298 Mich. App. 10, 14-15, 825 N.W.2d 641 (2012). "[T]he intent of the electors governs the interpretation of voter-initiated statutes such as the MMMA, just as the intent of the Legislature governs the interpretation of legislatively enacted statutes." Ter Beek v. Wyoming , 495 Mich. 1, 8, 846 N.W.2d 531 (2014). "The best evidence of that intent is the plain language used, and courts do not evaluate the wisdom of any statute or act. Statutes are read as a whole, and we give every word ... meaning."

People v. Latz , 318 Mich. App. 380, 383, 898 N.W.2d 229 (2016) (quotation marks and citations omitted; alteration in original). "If the statutory language is clear and unambiguous, the inquiry stops." Id. (quotation marks and citation omitted).

B. MICHIGAN MEDICAL MARIJUANA LAW

The MMMA provides that "[t]he medical use of marijuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act," MCL 333.26427(a), and "[a]ll other acts and parts of acts inconsistent with this act do not apply to the medical use of marijuana as provided for by this act," MCL 333.26427(e). The immunity provision of the MMMA, MCL 333.26424(a), provides, in pertinent part, that "[a] qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act ...."

It is an issue of first impression for this Court whether the revocation of probation because of the use of medical marijuana contrary to a condition of probation constitutes a "penalty" under § 4(a) of the MMMA, making it a violation of the MMMA. However, in several cases not involving conditions of probation, the Michigan Supreme Court and this Court have concluded that the MMMA preempts or supersedes ordinances and statutes that conflict with the MMMA.

In Ter Beek , for example, the city of Wyoming adopted a zoning ordinance that prohibited any uses of marijuana contrary to federal, state, or local law. Ter Beek , 495 Mich. at 5-6, 846 N.W.2d 531. And because the federal controlled substances act (the CSA), 21 USC 801 et seq. , considers marijuana an unlawful controlled substance, its use was prohibited in the city. Id. at 9-10, 846 N.W.2d 531. But the plaintiff, who lived in that city, possessed a medical marijuana registration card and sought to grow and use medical marijuana in his home in accordance with the MMMA. Id. at 6, 846 N.W.2d 531. The plaintiff sought a declaratory judgment that the ordinance was preempted by the MMMA because it penalized the plaintiff's use of medical marijuana contrary to § 4(a) of the MMMA. Id. at 6-7, 846 N.W.2d 531. Our Supreme Court agreed with the plaintiff, holding that § 4(a) of the MMMA—the immunity provision—was not preempted by the CSA, id. at 19, 846 N.W.2d 531, and that to the extent the city's ordinance conflicted with § 4(a) of the MMMA, it was preempted by the MMMA, id. at 24, 846 N.W.2d 531. The Court noted that although the MMMA does not define the term "penalty," the "term is commonly understood to mean a ‘punishment imposed or incurred for a violation of law or rule ... something forfeited.’ " Id. at 20, 846 N.W.2d 531, quoting Random House Webster's College Dictionary (2000). And the ordinance impermissibly penalized qualifying patients for engaging in MMMA-compliant marijuana use by subjecting them to civil punishment; thus, it was preempted. Ter Beek , 495 Mich. at 20-21, 846 N.W.2d 531.

In People v. Koon , 494 Mich. 1, 8-9, 832 N.W.2d 724 (2013), our Supreme Court held that the MMMA supersedes MCL 257.625(8) of the Michigan Vehicle Code, MCL 257.1 et seq., which "prohibits a person from driving with any amount of marijuana in his or her system," id. at 5, 832 N.W.2d 724. The Koon Court asserted that "[t]he immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marijuana in his or her system but is not otherwise under the influence of marijuana inescapably conflicts with the Michigan Vehicle Code's prohibition against a person driving with any amount of marijuana in his or her system." Id. at 7, 832 N.W.2d 724. The Court noted:

When the MMMA conflicts with another statute, the MMMA provides that "[a]ll other acts and parts of acts inconsistent with [the MMMA] do not apply to the medical use of marihuana ...." Consequently, the Michigan Vehicle Code's zero-tolerance provision, MCL 257.625(8), which is inconsistent with the MMMA, does not apply to the medical use of marijuana. [ Id. at 7, 832 N.W.2d 724, quoting MCL 333.26427(e).]

Accordingly, the Court concluded, "the MMMA is inconsistent with, and therefore supersedes, MCL 257.625(8) unless a registered qualifying patient loses immunity because of his or her failure to act in accordance with the MMMA." Koon , 494 Mich. at 8-9, 832 N.W.2d 724.

Similarly, in Latz , the defendant pleaded guilty to illegal transportation of marijuana, MCL 750.474, subject to his right to challenge the legality of that statute as conflicting with the MMMA. Latz , 318 Mich. App. at 382-383, 898 N.W.2d 229. The defendant possessed a valid medical marijuana registration card. Id. at 384 n. 2, 898 N.W.2d 229. And the MMMA expressly defines the medical use of marijuana as including the transportation of marijuana. Id. at 387, 898 N.W.2d 229, quoting MCL 333.26423(h). This Court asserted that "if another statute is inconsistent...