Weed Man Runnin Dirty
Michigan has been in the process of slowly decriminalizing and eventually legalizing marijuana for decades. The first city to decriminalize marijuana was Ann Arbor back in 1972. Between 2012 and 2018, major cities like Detroit, Kalamazoo, and Grand Rapids all joined the decriminalization band wagon.
Marijuana was legalized for medicinal purposes across Michigan by citizen-enacted legislation in 2008, followed by the legalization of recreational marijuana in 2018, also by citizen-enacted legislation. As you can imagine, the prosecution of marijuana possession and distribution crimes has likewise evolved.
One result from such progressive legislation is that weed dealers across the state have differing views of what is legal. Similarly, county prosecutors across the state are unsure whether they can or should prosecute the weed man and if so, under which statute and with what charges?
The Michigan Court of Appeals has issued a steady stream of published opinions ever since this sea-change in the law. This post examines two recent cases that seem quite similar on their facts, but ended up very differently for the convicted weed dealers. Truly, a tale of two counties.
A Conflict in the Marijuana Laws.
Here in Michigan, the production, distribution and use of marijuana is governed by two statutes: article 7 of the Public Health Code [for medical marijuana] and the MIchigan Regulation and Taxation of Marihuana Act [the recreational marijuana act]. Violations for manufacturing marijuana under the health code trigger felony charges; violations of the recreational use act for the same conduct result in a misdemeanor.
Not only are the penalties in the laws different for essentially the same conduct, prosecutors have learned to tailor their charges, depending on which statute they want to use in order to shut down the local rogue weed man. Generally, statutes that cover the same subject matter, i.e. marijuana, are considered to be in pari materia, and must be read together as one law.
As marijuana has gained favor as an acceptable "substance of choice", local law enforcement and county prosecutors have experienced diminishing returns from high-profile weed dealer prosecutions. For the most part, anyone running a grow operation, legal or not, was just not making it onto the local sheriff's radar.
Recent conflicting published decisions of the Michigan Court of Appeals, however, may change the sheriff's outlook. The problem for Michigan's jurisprudence is: how can two similar marijuana violations wind up with such vastly differing punishments.
Conflicting Panels of the Michigan Court of Appeals.
Among the recent published decisions flowing from our intermediate appellate court arises a tale of two counties: Berrien and Tuscola. Law in Michigan and most states arises through statutes and the common law. Common law is a collection of published appellate decisions that interpret statutes as they apply to people in a rich variety of circumstances.
When interpreting legislation, there are long-settled rules that judges and lawyers follow especially when two statutes covering the same subject matter contain seemingly conflcting provisions. First, in resolving a statutory conflict, judges apply the more specific statute over the more general statute. Second, the more recently enacted statute has precedence over an older statute.
Conflicting appellate panels sometimes result from conflicts in statutory terminology. This recently happened here in Michigan when two separate panels of the Michigan Court of Appeals, faced with similar criminal conduct, came to completely different results. These criminal defendants, both weed dealers running dirty, were charged under two conflicting provisions of our marijuana lawss.
One Dealer Was Busted With Over 1000 Marijuana Plants.
In People v Kejbou, the at-issue weed dealer allegedly maintained an extensive unlicensed grow operation in Tuscola County. His multi-building compound was secured with an extensive security camera network and a pack of guard dogs.
Someone [probably one of his licensed competitors] tipped off the Tuscola County Sheriff. A subsequent search yielded hydroponic equipment, chemicals, fertilizer, and 1156 individual marijuana plants. And oh yes, there was also a loaded 12-guage shotgun in one of the bedrooms.
The county prosecutor charged Kejbou with manufacturing 200 or more marijuana plants without a license along with a felony firearm count for good measure. Defense counsel moved to quash the felony charges based on the recreational marijuana act's limitation of punishment to a civil infractions or a misdemeanor. The motion was granted and the case was dismissed. Although the prosecutor appealed, the dismissal was affirmed in a published opinion of the Court of Appeals.
The three-judge panel held that the recreational marijuana statute was both more specific and came later in time than the medical marijuana provisions contained in the health code. The Kejbou panel, quoting the recreational marijuana statute, stated that a violator :
may be punished only as provided in this section and is not subject to any other form of punishment or disqualification, unless the person consents to another disposition authorized by law.
Focusing on the marijuana decriminalization process, and declaring that it was faced with a matter of first impression, the Kejbou Court concluded that the recreational marijuana statute was enacted to prevent felony convictions for unlicensed grow operations.
Judge Robert Redford concurred in the Kejbou opinion focusing on a determination of the intent of the electorate given that the law came from a voter based initiative rather than the Legislature. In doing so, Judge Redford quoted the exact language of the ballot proposal from 2018. One of the purposes of the recreational statute recognized in the concurrence was to remove the weed industry from the "illicit market and control by criminal enterprises".
Judge Redford recognized that the weed man in Kejbou was runnin dirty. He concluded his opinion by commenting:
perhaps the Legislature should consider amending the MRTMA so that when an individual engages in the unregulated commercial manufacture of hundres of marijuana plants, they could be subject to more severe penalties than allowed in [the recreational marijuana act].
Even prior to Kejbou, local law enforcement was beginning to sand down relative to enforcement against the weed dealer. This decision stands; the unlicensed dealer with over 1000 plants received a misdemeanor.
Another Dealer Was Busted With 20 Pounds of Weed in Her House.
People v Kathleen Soto arose from the southwest corner of the state in Niles, Michigan. A drug mule, while trucking 85 pounds of marijuana toward Soto's residence in Niles, was intercepted by the Illinois State Police. The mule cooperated with the police and completed the delivery as planned.
Of course, this led to a search of Ms. Soto's residence which allegedly yielded 20 pounds of weed, in addition to the 85 pounds trucked in by the mule and delivered to the residence. Unlike Kejbou, Kathleen Soto was charged with two felonies: possession with intent to deliver and maintaining a drug home.
Citing to Kejbou, Ms. Soto's lawyer argued that the recreational marijuana act proscribed a felony charge, regardless of how massive the quantity of weed found in her bedroom. This time, however, Judge Robert Redford wrote for the majority opinion in Soto, and upheld the trial court's denial of Soto's motion to dismiss her felony charges. What gives? Why the change of heart Judge Redford?
Well, for one thing, the Berrien County prosecutor elected to charge Soto with possession with intent to deliver under the Public Health Code rather than unlicensed manufacturing under the recreational marijuana act as in the Kejbou case from Tuscola County. This specific charge allowed Judge Redford to focus on the precise penalty language contained in the recreational statute as it pertains to possession.
The statutory scheme of the recreational marijuana act addresses misdemeanor penalties for possession of specific -minor- amounts of marijuana. Amounts greater than twice the legal limit, however, are not included within the misdemeanor scope of punishment; that much weed was intentionally omitted from the statute's punishment scheme. For this type of punishment, one must switch over to the felony penalty provisions of the Public Health Code's marijuana section.
Accordingly, Judge Redford concluded that while the recreational marijuana act does not address punishment for possessing more than twice the legal limit of marijuana, Article 7 of the Public Health Code does. And that punishment is a felony with up to 15-years in prison and over $1,000,000 in potential fines.
Reconciling Two Similar Cases.
Mr. Kejbou dodged a major bullet and now has a misdemeanor conviction, while Kathleen Soto took it on the chin with felony and a possible prison sentence. So much for the recreational marijuana act decriminalizing marijuana and controlling outcomes as being the more specific and more recent statute; tell that to Ms. Soto.
The Tuscola County Prosecutor's application for leave to appeal to the Michigan Supreme Court was denied in the Kejbou case. Kathleen Soto has filed her application for leave to the MSC which was joined last month by an amicus brief from the Criminal Defense Attorneys of Michigan. One of the legal arguments will be that it should not be up to the prosecutor to decide which statute to bring against a weed man runnin dirty.
Given the highly disparate outcomes in two very similar cases, we here at Clarkston Legal expect the Michigan Supreme Court to grant leave in Soto. We will continue to monitor the case and report on the final outcome.
We Can Help.
If you or a family member is in need of legal representation for charges brought under either the recreational marijuana act or the Public Health Code, contact our office to schedule a free consultation.o