In Oakland County, Michigan, since the passage of the Medical Marijuana Act back in 2008 pursuant to a citizen initiative, the prosecutor has successfully been able to convince district and circuit court judges to adopt a highly restrictive view of the affirmative defense contained in section 8 of the Act.
Several cases that went up on appeal to the intermediate appellate court in Michigan resulted in confusing and contradictory panel decisions. To some extent, the matter has been settled by our High Court in the case of People v Kolanek. Justice Marilyn Kelly, writing for the majority in that case, held that an accused does not need to satisfy all the requirements of the more restrictive "immunity-to-prosecution" provisions set forth in section 4 of the Act, in order to take advantage of the affirmative defense afforded by the plain language of the statute.
While the now-seminal Kolanek case was grinding through the Michigan appellate courts, local judges in Oakland County were largely siding with the prosecutor's view of the Act; a restrictive view that essentially placed the affirmative defense provision out of reach for most defendants to the extent they did not comply with the very specific immunity provisions of section 4.
That was the case in People v France, where defendant's motion to dismiss a single-count of marijuana distribution was denied by Judge Dan O'Brien, and the case was headed to trial. In this case, the accused was a card-carrying care provider for her husband and certified "patient". Procedurally, however, the judge decided to reconsider his decision, entertaining briefs on the issue of the "lenity" doctrine.
The law of "lenity" says that the criminal laws must be clear, and that the citizens bound by the criminal laws do not have to speculate as to what conduct has been criminalized, and what conduct is not criminalized. Lenity says that a "tie" goes to the accused. Ms. France's trial counsel asserted a lenity argument on reconsideration and the trial court dismissed the case.
The really interesting aspect in this case is the prosecutor's insistence on taking the appeal up to the Michigan Court of Appeals. Since the trial court's reversal and ultimate dismissal of the pot charge in this case, the Supreme Court handed down its Kolanek decision. Nevertheless, despite this decision, the prosecutor's brief argued around it, insisting that Judge O'Brien got it wrong, and seeking another evidentiary bite at the apple.
As this is an appeal from a final order, we shall see what happens at oral argument. The panel assigned to the case will hopefully question the prosecutor about their interpretation of the Act. The appellate courts, however, cannot probe too deeply as this ultimately is a matter of prosecutorial discretion which, in turn, goes to the separation of powers; a constitutional issue not presented, at least on its surface, in this appeal.