Use of Medical Marijuana

My $.02:

Medical marijuana by law and by affirmation in the Court of Appeals is allowable if prescribed by a licensed physician during the course of a bona fide physician-patient relationship for treatment of a serious or debilitating medical condition.  Accordingly, if a person placed on probation wishes to use medical marijuana for treatment of a serious or debilitating medical condition, my intention is to use the following guidelines:

1. Are there other reasonable alternatives to medical marijuana?  Unless the answer is clearly yes or no, defendant shall obtain, at defendant's expense, an evaluation, by a person approved by the probation department, whether medical marijuana is reasonably necessary for treatment of a serious or debilitating medical condition.

2. If medical marijuana is reasonably necessary, defendant may use marijuana prescribed by a licensed physician during the course of a bona fide physician-patient relationship for treatment of a serious or debilitating medical condition.  Defendant shall not otherwise use or possess, or be in the presence of any person using or possessing, any controlled substance or imitation thereof.  All prescriptions otherwise must be non-narcotic and prescribed by a licensed physician during the course of a bona fide physician-patient relationship.

3. Unless smoking medical marijuana is reasonably necessary to treat nausea and approved in writing by the court, the smoking of marijuana is prohibited and ingestion of medical marijuana shall be in oral tablet form.

4. Defendant shall not use or possess marijuana in the presence of any person using a controlled substance.  (This precludes the sometimes practice of people using or possessing marijuana at the so called 'marijuana clubs'.) 

5. Defendant shall not operate a motor vehicle.

A jury panel of 12 or 6?

My $.02:

Six person criminal jury trial:  The United States Supreme Court in Williams v Florida, 399 U.S. 78, 90 S Ct 1893, 26 L.Ed.2d 446 (1970) held that the constitutional guarantee of a trial by jury does not necessarily require a trial by exactly 12 persons. The State of Florida’s refusal to impanel more than the six members provided for by Florida law did not violate defendant's Sixth Amendment rights as applied to the States through the Fourteenth Amendment.   Contrarily, the ABA advocates 12 member juries in all non-petty criminal cases and in all civil cases whenever feasible.  According to the ABA Principles for Juries and Jury Trials, larger juries deliberate longer, and have better recall of trial testimony, and are more likely to produce accurate results. 

Is there some intrinsic value in a decision making body of twelve versus six?  As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, the concern that the cross-section will be significantly diminished if the jury is decreased in size from twelve to six seems an unrealistic one.  A six person criminal jury trial with (or without) the further adoption by court rule and statute of reduced peremptory challenges would preserve the right to a jury trial of one’s peers.  This author, acting as a district, probate and circuit judge, has seen no difference and found no persuasive authority that a verdict rendered in a six person probate, misdemeanor or civil matter has any less validity than that rendered by a twelve person jury panel.  This author would also argue that minority representation, as a meaningful voice, carries less weight on the greater panel than does like service on the lesser panel. 

The prescription and use of medical marijuana.

In People v Redden, ___ Mich App ___ (#295809, 9/14/2010) the Court of Appeals discussed two areas of concern in medical marijuana cases.  Whether the patient (defendant) was prescribed the medical marijuana during the course of a bona fide physician-patient relationship and whether the defendant has a serious or debilitating medical condition. 

MCL 333.26428(a)(1) states that a medical-purpose defense shall be presumed valid if: A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition . . . .

The MMMA does not define the phrase “bona fide physician-patient relationship.” When words or phrases are not defined in a statute, a dictionary may be consulted. People v Peals, 476 Mich 636, 641 (2006). Random House Webster’s College Dictionary (1997) defines “bona fide” as “1. made, done, etc., in good faith; without deception or fraud. 2. authentic; genuine; real.”

Section § 7(b)(5) states that the MMMA “shall not permit any person to . . . [u]se marihuana if that person does not have a serious or debilitating medical condition.” MCL 333.26427(b)(5). Section 3, the definitions section of the MMMA, states: (a) “Debilitating medical condition” means 1 or more of the following: (1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail patella, or the treatment of these conditions. (2) A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis. (3) Any other medical condition or its treatment approved by the department, as provided for in section 5(a). [MCL 333.26423.]

Section 3 does not define the phrase “serious medical condition.” MCL 333.26423.  With regard to the phrase “serious medical condition,” Random House Webster’s College Dictionary (1997) defines “serious,” in this context, as “weighty, important, or significant” and “giving cause for apprehension; critical or threatening[.]” Without knowing the nature of defendants’ medical conditions, it is not possible to determine whether they are “serious.” With regard to the phrase “debilitating medical condition,” MCL 333.26423(a)(2) indicates that this phrase includes “[a] chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: . . . severe and chronic pain; severe nausea . . . .”

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Both issues center on the underlying concern that persons not be allowed to abuse the allowed use of medical marijuana for a non-serious or debilitating medical condition and that the use of medical marijuana be legitimately prescribed during the course of a legitimate patient-physician relationship.

Imposition of a fine when not allowed by the relevant statute.

My $.02:

In Michigan the allowable incarceration and fine to be imposed for a criminal offense is derived from the corresponding statute setting forth the offense and the possible penalty.  People v Neil, 99 Mich App 677 (1980).  Depending on the particular statute, certain criminal statutes provide for incarceration but do not set forth an allowable fine.  Other statutes allow for the imposition of a fine or incarceration, and other offenses allow for the imposition of a fine and incarceration. 

Under our rules of statutory construction, unambiguous statutes are to be enforced as written.  People v Holder, 483 Mich 168 (2009). Accordingly, it would seem that if a criminal statute does not allow for the imposition of a fine, the same is not authorized as a lawful penalty at sentencing.  See MCL 769.24: “Whenever, in any criminal case, the defendant shall be adjudged guilty and a punishment by fine or imprisonment shall be imposed in excess of that allowed by law, the judgment shall not . . . be wholly reversed . . ., but the same shall be valid and effectual to the extent of the lawful penalty . . ..”

Padilla Risk of Deportation--Ineffective assistance of counsel

At our Criminal Jurisprudence & Practice Committee meeting today there was considerable discussion about the proposed court rules regarding effective assistance of counsel when there is a risk of deportation associated with one's plea of guilty or no contest.


At our meeting prosecutors and defense counsel seem to be in agreement that under Padilla v Kentucky, ___ US ___; 130 S Ct 1473 (2010), defense counsel is required, at a minimum, to inform a defendant that if (s)he is not a citizen of the United States, their plea of guilty or no contest may result deportation. (If it is clear that the plea of guilty or no contest will result in deportation, Padilla requires that the client be given correct advice; it is, however, not always clear what convictions will result in deportation.)

Because one's status as a United States citizen is not determined by their appearance, defense counsel needs to discuss this risk of non-citizen deportation with each and every client. i.e. a non-citizen may include someone from the Middle East, South America, Canada, Europe or otherwise.

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Accordingly, until otherwise directed by the Supreme Court, it is my intention to begin asking the following questions at any plea of guilty or no contest:

1. Do you understand that if you are not a legal citizen of the United States that your plea of guilty or no contest may result in deportation?

2. Have you discussed this with your attorney?

If this discussion has not taken place, a recess or adjournment will be offered to the defense to allow further discussion or consideration of this issue.

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If you are planning on attending the SBM annual meeting in Grand Rapids, consider attending the panel discussion put on by the Criminal Issues Initiative relating to the appropriate remedies for Padilla violations at the state and federal levels on Thursday, September 30, 2010 from 2:00-4:00 p.m. I have been asked to be the moderator for the panel discussion; Frank Eaman will be speaking on federal issues; Noel Saleh will be the immigration expert, and a third tbd person will speak to state procedures.

FHA SHORT-REFI PROGRAM for mortgages under water

Beginning September 7th, FHA has a new program for some underwater borrowers. As many as 20 million homeowners may be underwater. FHA and the government fear these homeowners are at much greater risk of foreclosure whether it be a strategic or a traditional foreclosure.

Here are the new program qualifications:

1. Homeowner must be in a negative equity position;
2. Homeowner must be current on the existing mortgage to be refinanced;
3. The homeowner must occupy the subject property (1-4 units) as their primary residence;
4. The homeowner must qualify for the new loan under standard FHA underwriting requirements & possess a "FICO based" decision credit score greater than or equal to 500;
5. Existing loan to be refinanced must not be a FHA-insured loan;
6. Existing first lien holder must write off at least 10 percent of the unpaid principal balance
7. The refinanced FHA-insured first mortgage must have a loan-to-value ratio of no more than 97.75 percent;
8. Non-extinguished existing subordinate mortgages must be re-subordinated and the new loan may not have a combined loan-to-value ratio greater than 115 percent;
9. For loans that receive a "refer" risk classification from TOTAL Mortgage Scorecard (TOTAL) and/or are manually underwritten, the homeowner's total monthly mortgage payment, including the first and any subordinate mortgage(s), cannot be greater than 31 percent of gross monthly income and total debt, including all recurring debts, cannot be greater than 50 percent of gross monthly income;
10. FHA mortgagees are not permitted to use premium pricing to pay off existing debt obligations to qualify the borrower for the new loan;
11. FHA mortgagees are not permitted to make mortgage payments on behalf of the borrowers or otherwise bring the existing loan current to make it eligible for FHA insurance; and
12. Existing loan to be refinanced may not have been brought current by the existing first lien holder, except through an acceptable permanent loan modification as described below.

see also...

http://portal.hud.gov/portal/page/portal/HUD/press/press_releases_media_advisories/2010/HUDNo.10-173

http://blogs.wsj.com/developments/2010/09/06/the-fhas-short-refinance-program-frequently-asked-questions/

http://www.rwbpress.com/2010/09/10/federal-housing-administration-short-refinance-program-fha-underwater-refinancing-plan-may-prevent-foreclosure/

Change in Domicile

Davenport v Mosholder, Unpub, (#295852, 9/9/2010)

Defendant appealed the circuit court order granting plaintiff’s motion to change the domicile of the parties’ minor child from Michigan to Georgia. The judgment of divorce in 2006 provided that the parties would share joint legal and joint physical custody of their child. In 2009 the mother filed a petition to change domicile to Georgia. The mother planned to remarry in February 2010, and her fiancé resided in Georgia. The father opposed the child’s move.

On appeal the father asserts that the circuit court erred by declining to consider whether clear and convincing evidence established that the move to Georgia served the child’s best interests, as required by MCL 722.23. The circuit court found that an established custodial environment existed with both parents, with the mother having “primary physical custody” during the school year. However, the circuit court ruled that the proposed move to Georgia would not alter the child’s established custodial environment because the father will have the opportunity to exercise 138 overnights with the child, which is nearly the same amount he currently enjoys. . . . The child will have open access to both parents and both parents have open access to him. This provides him with continued security and stability even though the custodial schedule and his legal residence and domicile have changed.

The Court of Appeals reversed. A custodial environment “is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). “Where there is a joint established custodial environment, neither parent’s custody may be disrupted absent clear and convincing evidence.” Sinicropi v Mazurek, 273 Mich App 149, 178 (2006). If a proposed relocation “would result in a change in parenting time so great as to necessarily change the established custodial environment,” the court must conduct an inquiry into the best interest factors set forth in MCL 722.23. In ascertaining whether a proposed change modifies an established custodial environment, “it is the child’s standpoint, rather than that of the parents, that is controlling.” Pierron v Pierron, 486 Mich 81, 92 (2010).

The circuit court’s finding that the move to Georgia would occasion no change in the child’s established custodial environment contravenes the great weight of the evidence. The record supports that the father enjoyed almost daily contact with his son, attended and helped coach his flag football practices, and served as the child’s scout den leader. The child and father regularly read together, played catch and golf, and worked on science projects. Viewed from the child’s standpoint, a move to Georgia would disrupt the child’s ready access to his father and impair the child’s ability to receive guidance, structure, and comfort from his father. We reject the notion that contact through a webcam, even if maintained daily, may effectively substitute for the established custodial environment present in this case.

Michigan Supreme Court holds that evidence that a child was present in a home in which defendant was in possession of drugs and firearms is, by itself, legally insufficient to support defendant’s conviction under MCL 750.145 for doing an act that tended to cause a minor child to become neglected or delinquent.

People v Tennyson, ___ Mich ___ ( #137755, 9/7/2010)


In Tennyson, supra, the Michigan Supreme Court granted leave to appeal to consider whether evidence that a child was present in a home in which defendant was in possession of drugs and firearms is, by itself, legally sufficient to support defendant’s conviction under MCL 750.145 for doing an act that “tended to cause a minor child to become neglected or delinquent so as to tend to come under the jurisdiction of” the family division of the circuit court.

The Supreme Court held that where there is no evidence that the child was aware of such drugs or firearms that there is insufficient evidence to support defendant’s conviction under this statute. To decide otherwise would render a conviction under MCL 750.145 an increasingly routine appendage to a broad array of other criminal charges in instances in which a child is merely present in a home where evidence of a crime has been uncovered. Moreover, to decide otherwise would have considerable implications for the process by which parental rights are terminated in this state, for, as the facts of this case demonstrate, a conviction under MCL 750.145 would almost certainly constitute a trigger at least for the initiation of the termination process by the Department of Human Services. Because this result has never before been reached by courts of this state, and because we believe that such result was never intended by the Legislature, we reverse in part the judgment of the Court of Appeals, vacate defendant’s conviction under MCL 750.145, and remand to the trial court for proceedings consistent with this opinion. Defendant’s drug and firearms convictions, which the Court of Appeals has affirmed, are not affected by this decision.

A defendant is entitled to resentencing if his sentence is based on inaccurate information.

People v Jackson, ___ Mich ___ (#138988, 7/7/2010)


In Jackson, supra the Michigan Supreme Court held that a defendant is entitled to resentencing for an armed-robbery conviction when the Court of Appeals vacated his concurrent convictions for felonious assault that were used as a factor in calculating his sentence for armed robbery. Under the Michigan Court Rules, Court of Appeals’ remands for resentencing are governed by MCL 769.34(10) which requires that cases be remanded when the sentence is based on inaccurate information. We therefore conclude that defendant is entitled to resentencing because his sentence is now based on inaccurate information.

Eligibility for Medicaid long-term care benefits in Michigan--divesture.

Mackey v Dep’t of Social Servs, ___ Mich App ___ (#288966, 9/7/2010)


To be eligible for Medicaid long-term care benefits in Michigan, an individual must meet a number of criteria, including having $2,000 or less in countable assets. Ronney v Dep’t of Social Servs, 210 Mich App 312, 315 (1995). A Medicaid applicant eligible for long-term care benefits is subject to a divestment penalty if she transfers a resource during the five-year “look-back” period for less than fair market value and that resource is not otherwise excluded as a divestment. 42 USC 1396p(c)(1).

Less than fair market value means the compensation received in return for a resource was worth less than the fair market value of the resource” and elaborates that compensation must have “tangible form” and “intrinsic value.” i.e. the amount of money that a ready, willing, and able buyer would pay for the asset on the open market . . . . Wolfe-Haddad Estate v Oakland Co, 272 Mich App 323, 325-326 (2006) (emphasis added).

In this case petitioner invested a sizeable sum in the Marden Family L.L.C., created solely for the purpose of circumventing Medicaid eligibility requirements and which ceded total control to petitioner’s daughter (and fiduciary) for a fraction of the cost of petitioner’s investment. Under the terms of the agreement, petitioner would only receive a marginal return on her unsecured investment after two years. A willing buyer could not acquire such an asset on the open market, in an arm’s-length transaction. Therefore, the transaction was for less than fair market value and constituted a divestment of assets not subject to an exclusion.

The risk of deportation as a potential consequence of a guilty plea.

In Padilla v Kentucky, ___ US ___; 130 S Ct 1473 (2010) the United States Supreme Court held that defense counsel is required to inform a defendant about the risk of deportation as a potential consequence of a guilty plea when the risk of deportation is clear. The Supreme Court also noted that in “situations in which the deportation consequences of a particular plea are unclear or uncertain, … a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

The Michigan Supreme Court is considering the adoption of a specific Court Rule to implement this decision. Proposal A would require a judge to ask a noncitizen defendant and the defendant’s lawyer if they have discussed possible risk of deportation as a consequence of a guilty plea. The focus of this inquiry is whether the defendant is a noncitizen, and what the defense counsel has told the defendant. Proposal B would require a judge to give general advice to any defendant (whether or not the defendant is represented by counsel) that a guilty plea by a noncitizen may carry immigration consequences. This alternative would obviate the need to determine the defendant’s citizenship status, which the defendant may not know or be willing to divulge.

On September 10, 2010 the State Bar Criminal Jurisprudence & Practice Committee will discuss the U.S. Supreme Court decision and the proposed Michigan Court Rule alternatives.  CJ&P reviews proposed court rules and statutes related to criminal procedure and practice in state courts and makes recommendations concerning improvements in the operation of criminal law and procedure to promote the fair, speedy and efficient administration of criminal justice.  As co-chair of this committee, I would be interested in your comments or suggestions.  You can email me at dhoort@ioniacounty.org.

Non-Profit Organization IRS filing requirement

In the past, 501(c)(3) organizations earning less than $25,000 a year were not required to file with the Internal Revenue Service. That changed in 2006 and small organizations that have not filed for the past three years are in danger of losing their tax-exempt status.

The Pension Protection Act of 2006 requires the IRS to revoke the federal tax exemption of any non-profit organization required to file an annual return that has failed to do so for three consecutive years. Nonprofits that wish to have their exemptions reinstated will be required to reapply to the IRS for tax-exempt status, a process that can take several months and requires a user fee of $400 or $850. The IRS will start issuing the revocation notices in 2011.

The Internal Revenue Service is providing a one-time relief program for small nonprofits and extending the deadline for filing the 990N or 990E-Z (also called the e-postcard) until October 15, 2010. The failure to do so will affect not only the organizations that lose their exemptions but also the donors and funders that support the organizations and the people that rely on their services.

Follow these step by step instructions to see if your organization is on the list:
1. Go to: http://www.irs.gov/charities/article/0,,id=225889,00.html
2. Scroll down the page until you see the list of states
3. Go to Michigan and Click on the PDF (the Excel spreadsheet is quite large and will take up a lot of space on your computer)
4. Search for your organization alphabetically (by your legal name)
5. Contact the IRS directly if you have questions or need information about filing at 1-877-829-5500

My suggestion for preliminary examination reform.

My suggestion for preliminary examination reform in criminal cases, to minimize the time and expense to litigants, witnesses, attorneys and court, but preserve a defendant's right to this sometimes necessary check and balance.

The purpose of a preliminary examination is whether there exist probable cause to believe both that an offense not cognizable by the district court has been committed and that the defendant committed it.

My suggestion:

As per existing criminal procedure, a defendant would still be arraigned by the district court judge/magistrate on the felony complaint, with bond set and counsel, if necessary, appointed.  However, instead of the case being set on for a preliminary examination in district court, the case would go to the circuit court for a circuit court arraignment with the assigned circuit judge. The right to a preliminary examination would be preserved, but in circuit court, by the filing of a sworn affidavit challenging the probable cause to believe an offense not cognizable by the district court has been committed and that defendant committed it.

Because a preliminary examination is sometimes legitimately used as a means of trial strategy, with this change the rules of discovery would be expanded to require witnesses to speak with an attorney (or his/her designee). At the witness’ request, the interview would be taped in its entirety. As is done in civil cases, one could also allow for depositions if necessary to preserve testimony for use at trial under MRE 804.