STATE OF MICHIGAN IN THE SUPREME COURT. PEOPLE OF THE STATE OF MICHIGAN, No Plaintiff-Appellee, v MCOA No APPELLANT S BRIEF ON APPEAL

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1 STATE OF MICHIGAN IN THE SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, No Plaintiff-Appellee, v MCOA No LARRY STEVEN KING, Defendant-Appellant. Lower Court No FH APPELLANT S BRIEF ON APPEAL ORAL ARGUMENT REQUESTED PROOF OF SERVICE John R. Minock (P24626) Cooperating Attorney, American Civil Liberties Union Fund of Michigan Cramer & Minock PLC 339 E. Liberty St., Ste. 200 Ann Arbor, MI (734) Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI (313) Attorneys for Defendant-Appellant

2 TABLE OF CONTENTS INDEX OF AUTHORITIES... ii STATEMENT OF QUESTIONS PRESENTED... vi STATEMENT OF JURISDICTION...1 INTRODUCTION...2 STATEMENT OF FACTS...3 SUMMARY OF ARGUMENT...5 ARGUMENT: I. DEFENDANT, A REGISTERED PATIENT, WAS ENTITLED TO POSSESS MARIHUANA, TO IMMUNITY FROM PROSECUTION, AND TO THE PRESUMPTION THAT HE WAS ENGAGED IN THE MEDICAL USE OF MARIHUANA PERMITTED BY THE MMMA. WHERE HE KEPT HIS PLANTS INSIDE A CHAIN LINK FENCE WITH A LOCKED GATE SURROUNDED ON ALL SIDES BY BLACK PLASTIC AND INSIDE HIS HOUSE, THE PLANTS WERE KEPT INSIDE AN ENCLOSED LOCKED FACILITY AS REQUIRED...8 A. Introduction...8 B. Defendant was Entitled to a Presumption of Medical Use...8 C. Defendant s Marihuana was in an Enclosed, Locked Facility...11 D. The Rule of Lenity Bars This Prosecution...15 II. THE COURT OF APPEALS DECISION IS IN CONFLICT WITH CONTROLLING COURT OF APPEALS PRECEDENT AND WITH THE PLAIN LANGUAGE OF THE MMMA. THE OPINION ERRONEOUSLY CONFLATES TWO DISTINCT STATUTORY PROVISIONS AND GRAFTS THE REQUIREMENTS FOR THE IMMUNITY PROVISION OF MCL FOR REGISTERED PATIENTS ONTO THE DISTINCT AFFIRMATIVE DEFENSE OF MCL AVAILABLE TO BOTH REGISTERED AND UNREGISTERED PATIENTS. DEFENDANT INDEPENDENTLY SATISFIED THE CRITERIA OF MCL A. Introduction...18 i

3 B. The Protections of 4 are Distinct from the Affirmative Defense of C. Section 7 Does not Require a Defendant to Fulfill the Conditions of 4 in Order to Assert an Affirmative Defense under D. Defendant Established the Affirmative Defense of E. The 8 Defense can be a Raised by Motion, Presented to the Factfinder, or Both...30 SUMMARY AND RELIEF REQUESTED...33 ii

4 INDEX OF AUTHORITIES CASES Bifulco v. United States, 447 U. S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980)...17 Browder v. Int'l Fidelity Ins. Co., 413 Mich. 603, 612, 321 N.W.2d 668 (1982)...31 Cowen v. Dep't of Treasury, 204 Mich. App. 428 (1994)...17 Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939)...15 People v. Gilbert, 414 Mich. 191, 324 N.W.2d 834 (1982)...15 People v. Kelly, 222 P.3d 186 (Cal, 2010)...20 People v. Hartuniewicz, _ Mich. App. _ (MCOA Docket No , decided Sept. 29, 2011)...28 People v. Kolanek, Mich. App. (MCOA Docket No , decided January 11, 2011) 25 People v. Lino, 447 Mich. 567, 527 N.W.2d 434 (1994)...16 People v. Pegnau, 447 Mich. 278, ; 523 N.W. 2d 325 (1994)...30 People v. Redden, _ Mich. App. _ (MCOA Docket No , decided September 14, 2010)... passim People v. Rutledge, 250 Mich. App. 1, 645 N.W.2d 333 (2002)...16 Petersen v. Magna Corp., 484 Mich 300, 773 N.W. 2d 564 (2009)...11, 12 Pittsfield Charter Twp. v. Washtenaw County, 468 Mich. 702, 664 N.W.2d 193 (2003)...26 Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991)...15 Skilling v. United States, U.S., 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010)...16 United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30 L. Ed. 2d (1971)...16 United States v. Millis, 621 F. 3d 914 (9 th Cir. 2010)...16 United States v. Santos, 553 U.S. 507 (2008)...16 iii

5 United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820)...16 Welch Foods, Inc. v. Attorney General, 213 Mich. App. 459, 540 N.W. 2d 693(1995).. 8, 18, 19 Witherspoon v. Guilford, 203 Mich. App. 240 (1994)...17 STATUTES AND COURT RULES MCL passim MCL (b)...19 MCL (c)...19 MCL (c)... passim MCL (e)...9 MCL passim MCL (a)...28 MCL (f)...9 MCL (a)...23 MCL (b)...23 MCL (e)...27 MCL passim MCR 7.215(J)...25 OTHER AUTHORITIES Black s Law Dictionary (deluxe 9th ed. 2009)...13 Dressler, Understanding Criminal Law, , Lexis Nexis, K. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons of About How Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950)...12 iv

6 Robinson, Criminal Law Defenses, a Systematic Analysis, 82 Columbia Law Review No. 2, pp (1982)...31, 32 The Oxford English Dictionary (2d ed. 1989)...13, 14 The Random House Webster s College Dictionary...12, 13 v

7 STATEMENT OF QUESTIONS PRESENTED I. WHERE DEFENDANT, A REGISTERED PATIENT, WAS ENTITLED TO POSSESS MARIHUANA, TO IMMUNITY FROM PROSECUTION, AND TO THE PRESUMPTION THAT HE WAS ENGAGED IN THE MEDICAL USE OF MARIHUANA PERMITTED BY THE MMMA, AND WHERE HE KEPT HIS PLANTS INSIDE A CHAIN LINK FENCE WITH A LOCKED GATE SURROUNDED ON ALL SIDES BY BLACK PLASTIC AND INSIDE HIS HOUSE, WERE THE PLANTS KEPT INSIDE AN ENCLOSED LOCKED FACILITY AS REQUIRED? Defendant-Appellant answers Yes. II. IS THE COURT OF APPEALS DECISION IN CONFLICT WITH CONTROLLING COURT OF APPEALS PRECEDENT AND WITH THE PLAIN LANGUAGE OF THE MMMA, WHERE THE OPINION ERRONEOUSLY CONFLATES TWO DISTINCT STATUTORY PROVISIONS AND GRAFTS THE REQUIREMENTS FOR THE IMMUNITY PROVISION OF MCL FOR REGISTERED PATIENTS ONTO THE DISTINCT AFFIRMATIVE DEFENSE OF MCL AVAILABLE TO BOTH REGISTERED AND UNREGISTERED PATIENTS, AND WHERE DEFENDANT INDEPENDENTLY SATISFIED THE CRITERIA OF MCL ? Defendant-Appellant answers Yes. vi

8 STATEMENT OF JURISDICTION Defendant-Appellant Larry King was charged with two counts of manufacturing marihuana, MCL (2)(d)(iii). He was bound over after a preliminary examination on May 26, Defendant moved to quash the information, and the trial court dismissed the charges. Trial court opinion, App. 7a-16a. The Court of Appeals reversed in a published 2-1 opinion issued February 3, People v King, Mich. App. (2011)(MCOA Docket No ). MCOA opinion, App. 17a-28a. This Court granted leave to appeal in an order issued June 22, Order, App. 29a. The Court ordered the parties to address the following questions: - (1) whether the defendant was immune from arrest and prosecution for manufacturing marihuana under 4(a) and (d) of the Michigan Medical Marihuana Act, MCL (a), (d), where he possessed a valid registry identification card and he was in possession of an amount of marihuana that did not exceed the amount allowed under the act; - (2) whether the presumption under 4(d) was rebutted by evidence that the defendant did not keep his 12 marihuana plants in an enclosed, locked facility under 4(a), as defined in 3(c), MCL (c); - (3) if (2) is answered in the affirmative, whether the defendant may independently assert an affirmative defense under 8(a), MCL (a); and - (4) whether the [e]xcept as provided in section 7 language in 8(a) required the defendant to fulfill all of the conditions set forth in 4 in order to have a valid affirmative defense under 8(a). 1

9 INTRODUCTION The question in this case is whether the Michigan Medical Marihuana Act ( MMMA ) should be used not as a sword against those who have a medical need to use marihuana, but rather as a shield to protect them from criminal penalties under state law. People v. King, Mich App (MCOA Docket No , decided Feb. 3, 2011)(Fitzgerald, J., dissenting). App. 25a. Defendant is a qualifying medical marihuana patient with a valid registry identification card. He had an allowable number of plants which he used to treat his debilitating medical condition. However, because the locked, fenced-in area in which six of his plants were kept did not have a ceiling, like a closet, the Court of Appeals ruled that he could be prosecuted for manufacturing marihuana in violation of state law and could not assert an affirmative defense to that prosecution. The MMMA was drafted to avoid such an unjust result. The plain language of the MMMA protects the use of an enclosed locked facility such as Defendant s to grow medical marihuana. Even if Defendant s facility did not provide him with immunity from arrest and prosecution, he is nonetheless entitled to assert an affirmative medical defense in a motion to dismiss or during his trial. Consistent with the purpose, structure, and plain text of the MMMA, patients who can demonstrate that they possessed a reasonable amount of marihuana to treat a serious or debilitating medical condition based on their doctor s professional opinion may not be convicted of using, possessing, or manufacturing marihuana in the State of Michigan. 2

10 STATEMENT OF FACTS Preliminary Examination On May 13,2009, police officers received an anonymous tip that there was marihuana growing in Defendant s back yard. App. 30a. They pulled into a driveway next door and through binoculars observed plants growing in a dog kennel there. App. 31a. The kennel was a six foot tall ten foot by ten foot chain link fence with substantial posts and almost completely surrounded by black plastic. App. 31a; 40a. There was not a cover over it, and it was not affixed to the ground. App. 33a; 35a. The kennel was secured with a chain and a padlock. App. 33a; 36a. There were six plants there. Id. Police knocked on Defendant s door and asked if he had medical marihuana growing, and he said yes and produced his registry identification card, issued by the State of Michigan under the MMMA. App. 33a. The card was introduced in evidence. App. 43a. Trooper Brian Fox asked if there were more plants growing inside the house, and Defendant said yes, but the police would have to obtain a warrant to search the house. Id. The police obtained a warrant and found six growing plants inside a closet. App. 37a-39a. Fox said there was no door knob on the back door of the house, and no lock on the closet. Id. Fox did not notice whether there was a board near the back door which could have been used to secure the door. App. 41a-42a. At the conclusion of the proofs at the examination, Defendant moved to dismiss the charges, on the grounds that as a registered patient he was permitted to grow up to twelve plants and was immune from prosecution under MCL (a) and (d). The district court denied the motion and bound Defendant over. 3

11 Circuit Court Proceedings In circuit court, Defendant filed a motion to dismiss and asserted the affirmative defense of MCL He also moved to quash the Information and raised a challenge to the search warrant. The prosecutor argued that Defendant could not assert the affirmative defense found in 8 of the MMMA, because the marihuana was not kept in an enclosed, locked area pursuant to 4 of the MMMA, MCL (a). The circuit judge issued an opinion and order on September 30, App. 7a-16a. The court held that probable cause was lacking for issuance of the warrant, but that the evidence was not subject to suppression, because the officers relied on the warrant in good faith. The court found that Defendant had complied with 4 of the MMMA and was entitled to the presumption that he was engaged in the use of medical marihuana, and therefore the marihuana should not have been seized. The court also found that Defendant was entitled to raise the separate affirmative defense under 8, MCL The court granted Defendant s motion and dismissed the charges. Court of Appeals Opinions The Court of Appeals reversed in a 2-1 published opinion. App. 17a-28a. The Court of Appeals majority held that a defendant who asserts a 8 defense must comply with 4, and that Defendant was not entitled to assert the affirmative defense, because he was not in compliance with 4. The majority found that, because the kennel was not covered on the top and not affixed to the ground, the plants in the kennel were not in an enclosed, locked facility under MCL (c). The majority also held that the marihuana growing inside the house was also not in compliance with 4, because there was no lock on the closet door, and because it appeared the back door to the house was unsecured. 4

12 The dissent noted the majority erroneously defaulted to rules of statutory construction (here ejusdem generis) when the plain meaning of the statutory language was adequate to determine its meaning. The dissent noted the statute does not define the term enclose, but common dictionary definitions clearly include fencing land as a method of enclosing, and there is no requirement in the statute that an enclosed area have a top or be immovable, so that the locked kennel qualified as an enclosed, locked facility. The dissent noted that the police testimony regarding the back door of the house was equivocal and insufficient to show that the house could not be secured. The dissent also noted the susceptibility of the MMMA to multiple interpretations should not result in prosecution of a card holder who was trying to comply with the Act. 5

13 SUMMARY OF ARGUMENT This case involves important questions of statutory interpretation of the Michigan Medical Marihuana Act, MCL et seq. ( MMMA ), enacted into law by voter initiative in Two distinct provisions are involved. 4 of the Act, MCL , provides that a registered patient can grow up to twelve marihuana plants in an enclosed, locked facility. MCL c defines enclosed, locked facility as a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient. A registered patient who complies with the requirements of 4 is immune from arrest, prosecution, and other penalties. Defendant is a registered patient who had six marihuana plants growing inside a locked, six foot high tent foot by ten foot chain link dog kennel, wrapped in black plastic, in his back yard, and six more plants growing inside a closet in his home. 8 of the Act, MCL , provides that any patient -- registered or unregistered -- may assert the medical purpose of using marihuana as an affirmative defense to any prosecution involving marihuana. 8 allows the affirmative defense to be raised in a motion to dismiss, or to be presented to the trier of fact, or both. Unlike 4, which cloaks a compliant registered patient with complete immunity from arrest, prosecution, and any other penalty, 8 allows an affirmative defense to be raised by any patient who is prosecuted and who is able to establish three elements, namely: (1) a physician statement related to the patient s medical condition; (2) a quantity of marihuana not more than reasonably necessary for the patient s medical treatment; and (3) that the marihuana was used only for medical treatment. Defendant made those showings in a motion to dismiss filed in circuit court. 6

14 The Court of Appeals majority erred twice. First, in ruling that Defendant did not keep his plants in an enclosed locked facility as required by 4, the majority defaulted to judicial rules of statutory construction when the plain meaning of the language of 3(c) is not ambiguous. The Court narrowly defined the term other enclosed area to mean that an outdoor locked growing area required a roof, since the other examples contained in the definition of enclosed, locked facility were room and closet. Default to judicial rules of statutory construction is not permitted where the plain language is not ambiguous. A fenced, locked outdoor area easily qualifies under the plain meaning of other enclosed area, particularly because the meaning of enclose is historically related to fencing land. If the term enclosed under the MMMA has a specialized meaning different than its plain meaning in English, the rule of lenity bars prosecution for lack of fair notice what conduct is prohibited. Second, in ruling that Defendant could not assert an affirmative defense, the majority erroneously conflated 4 and 8, accepting the state s argument that a person who asserts a 8 defense must comply with the requirements of 4. The majority opinion is in direct conflict with a previous decision of the Court of Appeals which specifically rejected that position. People v Redden, Mich App (MCOA Docket No , decided September 14, 2010). The Redden court correctly rejected the same prosecution argument and expressly held that 4 and 8 addressed separate defenses. Specifically, 4 immunizes the registered patient from arrest, prosecution, and other penalties, but only if the patient complies with all of 4 s requirements. 8, by contrast, ensures that anyone actually prosecuted for an offense related to marihuana will not be convicted if he or she can affirmatively establish that his or her possession or use of marihuana was for a legitimate 7

15 medical purpose. Keeping marihuana in an enclosed locked facility is not an element of the 8 affirmative defense. 8

16 ARGUMENT I. DEFENDANT, A REGISTERED PATIENT, WAS ENTITLED TO POSSESS MARIHUANA, TO IMMUNITY FROM PROSECUTION, AND TO THE PRESUMPTION THAT HE WAS ENGAGED IN THE MEDICAL USE OF MARIHUANA PERMITTED BY THE MMMA. WHERE HE KEPT HIS PLANTS INSIDE A CHAIN LINK FENCE WITH A LOCKED GATE SURROUNDED ON ALL SIDES BY BLACK PLASTIC AND INSIDE HIS HOUSE, THE PLANTS WERE KEPT INSIDE AN ENCLOSED LOCKED FACILITY AS REQUIRED. as follows: Standard of review: Issues of statutory interpretation are reviewed de novo. When interpreting an initiative passed by the electorate, its provisions are liberally construed to effectuate their purposes and facilitate rather than hamper the exercise of rights reserved by the people. Welch Foods, Inc. v. Attorney General, 213 Mich. App. 459, 461, 540 N.W. 2d 693(1995). Issue preservation: The issue was preserved by Defendant s timely objections and by Defendant s motions filed in the circuit court. A. Introduction In the Order granting leave to appeal, this Court posed the first two questions to be addressed - (1) whether the defendant was immune from arrest and prosecution for manufacturing marihuana under 4(a) and (d) of the Michigan Medical Marihuana Act, MCL (a), (d), where he possessed a valid registry identification card and he was in possession of an amount of marihuana that did not exceed the amount allowed under the act; - (2) whether the presumption under 4(d) was rebutted by evidence that the defendant did not keep his 12 marihuana plants in an enclosed, locked facility under 4(a), as defined in 3(c), MCL (c); These two questions are answered together, because they depend on Defendant s status as a registered patient. B. Defendant was Entitled to a Presumption of Medical Use. 4(a) and (d) of the Act read as follows: 9

17 Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be 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 marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount. * * * (d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver: (1) is in possession of a registry identification card; and (2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act. The immunity in 4(a) and the presumption in 4(d) both refer to medical use, a term which is statutorily defined in 3(e), MCL (e): Medical use means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient s debilitating medical condition or symptoms associated with the debilitating medical condition. Thus, where 4(a) and 4(d) refer to the medical use of marihuana in accordance with this act, it simply means medical use as defined by 3(e). Under 4(d), possession of a registry card plus possession of an allowable amount of marihuana entitles a patient to the presumption that he or she is engaged in medical use in accordance with this act, i.e., medical use as defined by 3(e). Under 4(d)(2), the presumption 10

18 may be rebutted by evidence that the patient was not engaged in medical use as defined by 3(e). Critically, the medical use of marihuana in accordance with this act does not by itself give a patient immunity under 4(a). The registered patient is immune from arrest, prosecution, and other penalties under 4(a) only if he or she is engaged in medical use and the patient possesses no more than 12 plants in an enclosed, locked facility. That is why 4(a) provides for immunity for the medical use of marihuana in accordance with this act, provided the patient possesses an allowable amount and keeps plants in an enclosed, locked facility (emphasis added). The medical use of marihuana in accordance with the Act is activity defined by 3(e) and is independent of quantity and enclosure. A patient can be engaged in the medical use of marihuana in accordance with this act but not immune under 4(a). Similarly, under 4(d), a patient who possesses a registry card and an allowable number of plants is entitled to a presumption of medical use in accordance with the Act. By the plain language of 4(d), that presumption is not rebutted by evidence that the plants are not kept in an enclosed, locked facility. However, the enclosed, locked facility is required for immunity from arrest and prosecution under 4(a) even if there is no dispute that the patient is engaged in medical use in accordance with the Act. The presumption under 4(d), like medical use in accordance with the Act, does not automatically give rise to immunity under 4(a). In this case, Defendant is entitled to the presumption of 4(d). There is no question Defendant was a qualifying patient in possession of a registry identification card. Nor did he possess more plants than is allowed under 4(a). There was also no evidence under 4(d)(2) that his conduct was not for the permitted purpose of alleviating his medical condition or symptoms in accordance with the Act under 3(e). Therefore, it must be presumed that Defendant was engaged 11

19 in the medical use of marihuana in accordance with the Act. C. Defendant s Marihuana was in an Enclosed, Locked Facility. The principal question is whether Defendant s marihuana was in an enclosed, locked facility as required for immunity from arrest, prosecution, and other penalties under 4(a). The Court of Appeals divided 2-1 on this issue. 3, MCL (c), defines the term as follows: Enclosed, locked facility means a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient. (Emphasis added.) With regard to the marihuana growing outside, the majority held that, based upon the statutory construction principle ejusdem generis, since a closet or room is enclosed on all sides, an outdoor growing area also must have four walls and a roof. App. 21a-22a. The majority erred in defaulting to rules of judicial statutory construction when the plain language of the statute is unambiguous. In Petersen v. Magna Corp., 484 Mich. 300, 307, 773 N.W. 2d 564 (2009), this Court explained: The primary goal of such interpretation is to give effect to the intent of the Legislature. The first step in ascertaining such intent is to focus on the language of the statute itself. If statutory language is unambiguous, the Legislature is presumed to have intended the meaning expressed in the statute. The words of a statute provide the most reliable evidence of the Legislature's intent, and as far as possible, effect should be given to every phrase, clause, and word in a statute. If the statutory language is certain and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. (Footnotes omitted.)(emphasis added.) In other words, plain meaning comes before resort to judicial statutory construction, and the use of a dictionary can be part of determining plain meaning. The Court of Appeals majority s gloss on the definition of what constitutes enclosed is not derived from the word s plain meaning but 12

20 from the judicial statutory construction canon ejusdem generis. 1 The majority did not find the plain language ambiguous, but resorted to ejusdem generis to interpret the statute narrowly. This violates the principle that plain meaning comes first, and [i]f the statutory language is certain and unambiguous, judicial construction is neither required nor permitted. Petersen, supra. The statutory phrase at issue is other enclosed area. Historically, the word enclose (derived from the past participle of the French verb enclore, enclos) is closely related to enclosing land with fences, hedges, or walls. In England and Wales, the fencing of formerly common land areas into parcels of land titled to individual owners is known as the Enclosure Movement and dates back to at least the thirteenth century. As a consequence, dictionary definitions of enclose include a principal meaning referring to fencing open land, as the dissenting judge noted: MCL (c) does not define the word enclosed. Random House Webster s College Dictionary contains the following definition of enclose : 1. To close in on all sides; shut in. 2. to surround, as with a fence; to enclose land. 3. to insert in the same envelope, package, etc.: to enclose a check. 4. to contain or hold. The Random House Webster s College Dictionary (1997). Under this definition, the dog kennel in this case would fall under the definition of other enclosed area. The chain link walls of the kennel were six feet high and the area surrounded by the chain link walls was closed in on all sides. Like a fence that surrounds land (as in the dictionary example above), the kennel did not have a top, but, by dictionary definition, a top is not required to enclose something. People v. King, Mich App (Docket No , Fitzgerald, J., dissenting). App. 26a. Random House Webster s College Dictionary (2000) also defines enclosure as: 1. something that encloses, as a fence or wall. 2. an enclosed area, esp. a tract of land surrounded by a fence. 3. something enclosed or included, as within a letter. 4. an act or instance of enclosing; the state of being enclosed. (Emphasis added.) 1 Scholars have commented that the rules of statutory construction are often in conflict with each other. See, e.g., K. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons of About How Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950). 13

21 The Oxford English Dictionary (2d ed. 1989) defines enclose as: 1. a. trans. To surround (with walls, fences, or other barriers) so as to prevent free ingress or egress. b. To fence in (waste or common land) with the intention of taking it into cultivation, or of appropriating it to individual owners. 2. a. To shut up in a room or building; to seclude, imprison a. To insert in a frame or setting, or in a surrounding mass of material; to shut up in a case, envelope, or receptacle a. Of things: To surround, bound on all sides; to envelop, contain. b. Math. Of lines or surfaces: To bound on all sides (a portion of space); also (loosely) to intercept (an angle). 6. Of an army, a number of persons, etc.: To surround, hem in on all sides... Black s Law Dictionary (deluxe 9th ed. 2009) defines the term enclose as: (14c) 1. To surround or encompass; to fence or hem in on all sides. 2. To place (something) in a parcel or envelope... enclosed land. See LAND. Black s defines enclosure as: (15c) 1. Something enclosed in a parcel or envelope. 2. Land surrounded by some visible obstruction; CLOSE (1). 3. An artificial fence around one s estate. Black s defines close as: n. (14c) 1. An enclosed portion of land. Black s defines enclosed land as: (17c) Land that is actually enclosed and surrounded with fences. In addition, area with reference to land is a two dimensional concept. Random House Webster s College Dictionary (2000) defines area as: 1. an extent of space or surface: the dark areas in the painting. 2. a geographical region: the Chicago area. 3. a section reserved for a specific function: the dining area. 4. extent; range; scope: embraced the whole area of science. 5. field; sphere: new areas of interest. 6. a piece of unoccupied ground. 7. the yard attached to or surrounding a house. 8. AREAWAY 9. the quantitative measure of a plane or curved surface; twodimensional extent. [ ; < L: level ground, open space in a town, perh. akin to arēre to be dry. 14

22 See ARID]. The Oxford English Dictionary (2d ed. 1989) defines area as: [a. L. ārea a vacant piece of level ground in a town.] 1. A vacant piece of ground, a level space not built over or otherwise occupied; a clear or open space within a building, such as the unseated part of a church, the arena of an amphitheatre, etc. The plain meaning of other enclosed area clearly includes a fenced piece of land. Defendant complied with 4 with regard to the plants in the back yard, because they were completely enclosed within the substantial kennel which was securely locked, so as to prevent free ingress and egress. The fact that someone with determination and equipment could have gained access by trespassing or burglary does not mean the kennel did not comply with the statute. Burglars have been known to enter locked closets and rooms. The MMMA requires an enclosed, locked facility, not a citadel. The majority also found that since Defendant s home lacked a back door knob, and the closet door did not have a lock, the plants growing inside the closet in the house were not in a secure, locked facility, because it appears the home itself was not secured by locks on all the doors. Slip Opinion at pp MCL (c) provides that the enclosed, locked facility be equipped with locks or other security devices. The term other security devices is not defined. Device has a broad meaning. The only evidence on the record was the preliminary examination testimony of Trooper Fox, who said he did not think Defendant was able to lock the door or secure the house due to the lack of a door knob on the back door. As the dissent noted, although Fox said he failed to notice a board in the corner used to keep the back door barred, the lack of a knob does not mean the back 15

23 door could not be secured with something other than a lock. App. 26a-27a. The state s evidence on that point was insufficient to find the house could not be secured. Defendant was a registered patient, immune from prosecution if he complied with 4 of the MMMA. The plants in the kennel were in an other enclosed area in compliance with 3 and 4. The plants in the house were also in a secured facility. Defendant was entitled to immunity from prosecution under 4(a) of the MMMA. The trial court ruling was correct. D. The Rule of Lenity Bars This Prosecution. If the definition of enclosed, locked facility of 3, MCL (c), particularly other enclosed area, is susceptible to the narrow definition attributed by the Court of Appeals majority, Defendant maintains this prosecution is barred by the rule of lenity, for failure to give fair notice of the prohibited conduct. The due process clauses of the Michigan and United States Constitutions require that laws provide sufficient guidelines to allow an ordinary person to determine whether the person s conduct is proscribed by the law. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 83 L. Ed. 888 (1939). The axiomatic requirement of due process that a statute may not forbid conduct in terms so vague that people of common intelligence would be relegated to differing guesses about its meaning... carries the practical consequence that a defendant charged under a valid statute will be in a position to understand with some specificity the legal basis of the charge against him. Schad v. Arizona, 501 U.S. 624, , 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991). Michigan and federal courts construe criminal statutes strictly in favor of defendants under the rule of lenity. People v. Gilbert, 414 Mich. 191, 211, 324 N.W.2d 834 (1982); People v. 16

24 Rutledge, 250 Mich. App. 1, 5, 645 N.W.2d 333 (2002); Skilling v. United States, U.S., 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010); United States v. Millis, 621 F. 3d 914, (9 th Cir. 2010). 2 As this Court said in People v. Lino, 447 Mich. 567, 575 n 2, 527 N.W.2d 434 (1994): In order to pass constitutional muster, a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (citations omitted). * * * Thus, there are at least three ways a penal statute may be found unconstitutionally vague: (1) failure to provide fair notice of what conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3) being overbroad and impinging on First Amendment freedoms. 447 Mich When a court is confronted with ambiguity in a criminal statute, the tie must go to the defendant. United States v. Santos, 553 U.S. 507, 514 (2008). The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). This policy embodies the instinctive distastes against men languishing in prison unless the lawmaker has clearly said they should. United States v. Bass, The Court explained: [T]he rule of lenity requires courts to limit the reach of criminal statutes to the clear import of their text and construe any ambiguity against the government. The rule of lenity applies only where after seizing every thing from which aid can be derived, the Court is left with an ambiguous statute. In such a case, fundamental principles of due process mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited. (Citations omitted.) (Emphasis added.) 17

25 U.S. 336, 348, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971). See also Bifulco v. United States, 447 U. S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) ( [T]he touchstone of the rule of lenity is statutory ambiguity. ). As the dissent noted, Defendant in this case went through the procedure to become a registered patient and was attempting to comply with the Act. The MMMA s susceptibility to multiple interpretations should not result in the use of the act as a sword, rather than a shield, under the circumstances of this case. Slip dissenting Opinion, at 4-5. In the civil context, the result is different. In the civil context, judicial interpretation of an ambiguous statute is permitted. Although a court presumes the statute intended the meaning plainly expressed, judicial construction is permitted if the language is unclear and susceptible to more than one interpretation. Cowen v. Dep't of Treasury, 204 Mich.App. 428, 431 (1994). If the statutory language is ambiguous, or reasonable minds may differ in its interpretation, a reasonable construction must be given in light of the purpose of the statute. Witherspoon v. Guilford, 203 Mich.App. 240, 247 (1994). This type of judicial construction is not permitted in the criminal context. Under the rule of lenity, ambiguities are resolved against the state. Marihuana possessed under 4 of the Act must be kept in an enclosed, locked facility, which means a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient. MCL (c). If other enclosed area can be read to require not only surrounding on all sides but also a roof above, then, given the history of the word enclosed, the rule of lenity bars this prosecution for failure to put the public on notice that enclosed under the Act means something different than its plain meaning in English. 18

26 II. THE COURT OF APPEALS DECISION IS IN CONFLICT WITH CONTROLLING COURT OF APPEALS PRECEDENT AND WITH THE PLAIN LANGUAGE OF THE MMMA. THE OPINION ERRONEOUSLY CONFLATES TWO DISTINCT STATUTORY PROVISIONS AND GRAFTS THE REQUIREMENTS FOR THE IMMUNITY PROVISION OF MCL FOR REGISTERED PATIENTS ONTO THE DISTINCT AFFIRMATIVE DEFENSE OF MCL AVAILABLE TO BOTH REGISTERED AND UNREGISTERED PATIENTS. DEFENDANT INDEPENDENTLY SATISFIED THE CRITERIA OF MCL Standard of review: Issues of statutory interpretation are reviewed de novo. When interpreting an initiative passed by the electorate, its provisions are liberally construed to effectuate their purposes and facilitate rather than hamper the exercise of rights reserved by the people. Welch Foods, Inc. v. Attorney General, 213 Mich. App. 459, 461, 540 N.W. 2d 693(1995). Issue preservation: The issue was preserved by Defendant s timely objections and by Defendant s Motions filed in the circuit court. A. Introduction The second two questions posed in this Court s order granting leave, assuming Defendant s marihuana was not stored in an enclosed locked facility as required, are: - (3)... whether the defendant may independently assert an affirmative defense under 8(a), MCL (a); and - (4) whether the [e]xcept as provided in section 7 language in 8(a) required the defendant to fulfill all of the conditions set forth in 4 in order to have a valid affirmative defense under 8(a). These two questions are logically intertwined and therefore answered together. The trial court granted Defendant s motion to dismiss the charges of manufacturing marihuana under both 4 and 8 of the MMMA. The Court of Appeals majority held that a defendant who asserts a 8 defense must comply with the requirements of 4. That opinion is in conflict with the plain language of the statute and with a previous, controlling published decision of the Court of Appeals, People v Redden, supra. 19

27 The MMMA was adopted by voter initiative to change state law and to protect the vast majority of seriously ill people who have a medical need to use marihuana. MCL (b). The statute further states the laws of other states do not penalize the medical use and cultivation of marihuana. Michigan joins in this effort for the health and welfare of its citizens. MCL (c). As the dissenting judge in this case said, [s]uch declarations reveal the intent that the MMMA be used not as a sword against those who have a medical need to use marihuana, but rather as a shield. App. 25a. When interpreting an initiative passed by the electorate, its provisions are liberally construed to effectuate their purposes and facilitate rather than hamper the exercise of rights reserved by the people. Welch Foods, Inc. v. Attorney General, 213 Mich. App. 459, 461, 540 N.W. 2d 693(1995). B. The Protections of 4 are Distinct from the Affirmative Defense of 8. The MMMA establishes two distinct protections for medical marihuana patients. 4 of the Act creates a registry identification program that provides registered patients with immunity from arrest, prosecution, or penalty in any manner and from being denied any right or privilege for the medical use of marihuana in accordance with the Act, provided registered patients keep their marihuana in an enclosed, locked facility and possess no more than 12 plants and 2.5 ounces. MCL (a). 8 of the Act provides for a statutory affirmative defense to criminal prosecution that requires the dismissal of criminal marihuana charges against any person, whether a registered patient or not, who has an appropriate physician's opinion, uses the marihuana for medical purposes, and does not possess an unreasonable amount. MCL The two provisions are separate and distinct under the Act. Persons who do not participate 20

28 in the registry identification program may still assert the affirmative defense. People v. Redden, supra. 8 does not protect a person from being arrested or prosecuted, but it allows a person to avoid criminal conviction by demonstrating his or her medical purpose in using marihuana. Id. 3 The official wording of the ballot proposal clearly indicates that the requirements of 4 and 8 are intended to be separate: PROPOSAL 08-1 A LEGISLATIVE INITIATIVE TO PERMIT THE USE AND CULTIVATION OF MARIHUANA FOR SPECIFIED MEDICAL CONDITIONS The proposed law would: Permit physician approved use of marihuana by registered patients with debilitating medical conditions including cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other conditions as may be approved by the Department of Community Health. Permit registered individuals to grow limited amounts of marihuana for qualifying patients in an enclosed, locked facility. Require Department of Community Health to establish an identification card system for patients qualified to use marihuana and individuals qualified to grow marihuana. Permit registered and unregistered patients and primary caregivers to assert medical reasons for using marihuana as a defense to any prosecution involving marihuana. (Emphasis added.) 4 8 of the Act, MCL (a), provides an affirmative defense to criminal prosecution applicable to anyone, registered or not, if the defendant can establish three elements at an evidentiary hearing: 3 Michigan is not the only state to provide a medical marihuana registry program and a completely separate affirmative defense. See People v. Kelly, 222 P.3d 186 (CA, 2010). 4 The language of the ballot proposal is available at the Secretary of State website, at 21

29 8. Affirmative Defense and Dismissal for Medical Marihuana Sec. 8 (a) Except as provided in 7, a patient and a patient's primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed to be valid where the evidence shows that (1) 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; (2) The patient and the patient's primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition; and (3) The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the 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. (b) A person may assert the medical purpose of using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a). There are numerous textual and practical distinctions between the 8 affirmative defense and 4's immunity for registered patients. 8 does not require that a patient be a registered patient under 6, which is a requirement of 4. People v. Redden, supra. Only a qualifying patient can register for a card, and must have been diagnosed with a debilitating medical condition. MCL (f). By contrast, any patient with a serious or debilitating medical condition can assert the 8 defense. MCL (a)(3) (emphasis added). A qualifying patient with a registry card must have no more than 12 growing plants nor 22

30 more than 2.5 ounces. MCL (a). By contrast, under 8, a patient can have no more than reasonably necessary. A registered patient is immune under 4 from arrest, prosecution, or penalty in any manner. MCL (g). By contrast, 8 does not prohibit arrest or prosecution but requires that charges shall be dismissed upon establishment of the elements of the defense. A qualifying patient with a registry card and an allowable amount of marihuana gets the benefit of a presumption that his use of marihuana is in accord with the Act, MCL (d). By contrast, for the 8 affirmative defense, the defense is presumed valid only after the three elements of the defense are established. 4, as previously discussed, requires that a registered patient keep growing plants in an enclosed, locked facility. Notably, 3, MCL (c), defines enclosed locked facility as something clearly only applicable to a registered patient, namely a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient. By contrast, 8 does not restrict where the registered or unregistered patient s medical marihuana must be stored. 8 is plain and unambiguous. It requires that a patient prove three things in order to have criminal marihuana charges dismissed. It does not require a state registry identification card. It does not provide a numerically specific limitation on the amount of marihuana to be possessed. And it does not require that a patient keep the marihuana in an enclosed, locked facility. If a patient does not satisfy the requirements of 4, the patient may still assert a medical defense under 8. 23

31 C. 7 Does not Require a Defendant to Fulfill the Conditions of 4 in Order to Assert an Affirmative Defense under 8. In People v. Redden, supra, the Court held that an unregistered patient can assert the 8 affirmative defense if he or she satisfies its elements. The state argued that the defense is unavailable to unregistered patients, because the restrictions of 4 are made part of the 8 defense through the language of 7. As an initial matter, the plain language of 8 does not place any restriction on defendants raising of the affirmative defense. Nevertheless, the prosecution argues that the affirmative defense under 8 is unavailable to defendants because they did not possess valid registry identification cards at the time of the offense, in violation of 4. The prosecution bases its position on the language in 8(a) that provides: Except as provided in section 7, a patient and a patient s primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that.... [MCL (a) (emphasis added).] Section 7(b) provides a host of instances where the protection of the affirmative defense under 8 would not be permitted, but none of those situations are at issue in this case. See MCL (b). However, the prosecution points to 7(a), which provides that [t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act. MCL (a). Slip Opinion at pp The Court of Appeals specifically rejected the state s argument that a patient must comply with 4 in order to assert a defense under 8. The Court held that 4 and 8 set up two distinct ways in which a patient can use marihuana, and that 7(a), MCL (a) does not graft the requirements of 4 into 8: The prosecution contends that this section justifies its position that 4 must be adhered to in order for a defendant to invoke 8, because the affirmative defense is only available to a defendant who complies with the other provisions of the MMMA. However, as defendants argue, this position ignores that the MMMA provides two ways in which to show legal use of marihuana for medical purposes in accordance 24

32 with the act. Individuals may either register and obtain a registry identification card under 4 or remain unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in 8. The plain language of the MMMA supports this view. Section 4 refers to a qualifying patient who has been issued and possesses a registry identification card and protects a qualifying patient from arrest, prosecution, or penalty in any manner.... MCL (a). On the other hand, 8(a) refers only to a patient, not a qualifying patient, and only permits a patient to assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana.... MCL (a). Thus, adherence to 4 provides protection that differs from that of 8. Because of the differing levels of protection in sections 4 and 8, the plain language of the statute establishes that 8 is applicable for a patient who does not satisfy 4. The language of the ballot proposal itself supports this interpretation. * * * The ballot proposal explicitly informed voters that the law would permit registered and unregistered patients to assert medical reasons for using marihuana as a defense to any prosecution involving marihuana. The language supports the view that registered patients under 4 and unregistered patients under 8 would be able to assert medical use of marihuana as a defense. Accordingly, we hold that the district court did not err by permitting defendants to raise the affirmative defense even though neither satisfied the registry-identification-card requirement of 4. App. a. (Footnotes omitted.)(emphasis added.) 5 Despite the fact that the central holding in Redden is that 4 and 8 are distinct, and that 7(a) does not impose the restrictions of 4 on a 8 defense, the majority opinion here, while citing Redden, held to the contrary, namely that 7(a) does graft the restrictions of 4 onto 8: Section 8 of the MMA provides a defendant with an opportunity to assert a defense to the controlled substance laws if the conditions set forth in 8 are followed. MCL Moreover, 8 incorporates by reference other provisions of the MMA with which a defendant must comply. Section 8 specifically states that a patient may assert a medical purpose defense to any marijuana prosecution, [e]xcept as provided in Section Section 7(a) provides that [t]he medical use of marihuana is 5 The state also argued that a 8 defense was not available in Redden, because the marihuana in question was not kept in an enclosed, locked facility. The Court noted that the language concerning an enclosed, locked facility is in 4, not in 8, but declined to address this issue without the benefit of full briefing by the parties. Id. at footnote 8. 25