STATE OF MICHIGAN

IN THE SUPREME COURT

______________________________________________________________________

Appeal from the Michigan Court of Appeals

Judges: P.J. Sawyer, Fitzgerald, J.J. Saad

______________________________________________________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, Supreme Court No.

v. Court of Appeals No. 294682

LARRY STEVEN KING, Shiawassee District Court No. 09-008600-FH

Defendant-Appellant.

_____________________________________________________________________

Brief on Appeal - Appellant

_____________________________________________________________________

ORAL ARGUMENT REQUESTED

SAMANTHA VISSER

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TABLE OF CONTENTS

Page

Table of Citations ……………………………………………………………… iii

Statement of Jurisdiction………………………………………………………. iv

Statement of Facts……………………………………………………………… 1

Judicial History………………………………………………………………….. 1

Issues Presented for Review ………………………………………………….. 2

WHETHER THE APPEALS COURT ERRED WHEN THEY RULED

THAT THE TRIAL COURT JUDGE’S DECISION WAS INCORRECT

WHEN HE RULED THAT MR. KING COMPLIED WITH SEC.3 OF

THE MMA, “ENCLOSED, LOCKED FACILITY”, AND ALLOWED

MR. KING TO USE THE AFFIRMATIVE DEFENSE IN SEC. 8 OF

THE MMA AND DISMISSED THE CASE? ……………………………. 2

COURT OF APPEALS SAYS “NO”

DEFENDANT-APPELLANT SAYS “YES”

PLAINTIFF-APPELLEE SAYS “NO”

WHETHER MR. KING IS STILL AFFORDED THE USE OF AN

AFFIRMATIVE DEFENSE EVEN IF IT IS FOUND THAT HIS FACILITY WAS

NOT IN COMPLIANCE?........................................................................ 2

COURT OF APPEALS SAYS “NO”

DEFENDANT-APPELLANT SAYS “YES”

PLAINTIFF-APPELLEE SAYS “NO”

ii

Argument

I. The Meaning of “Enclosed, Locked Facility”- The Trial Court was correct in its interpretation of the MMA’s enclosed, locked facility term in the statute……. 3

Plaintiff’s claim…………………………………………………………………. 3

Standard of Review……………………………………………………………. 3

Discussion…………………………………………………………………….... 4

A. Courts can interpret ambiguous language as the legislature intended 4

B. Courts can use the meaning of a word that the average, reasonable person would understand………………………………….……………… 5

Conclusion…………………………………………………………………….. 5

II. The MMA as an Affirmative Defense and regardless if the defendant complied with the § 4 of the MMA, MCL 333.26424. There is nothing in the MMA that statesyou don’t comply with § 4 you can’t use the MMA as an affirmative defense. 6

Plaintiff’s claim……………………………………………………………….… 6

Standard of Review………………………………………………………….… 6

Discussion……………………………………………………………………... 6

A. Interpreting the Statute as a whole……………………………….……. 6

B. When the Statute is Ambiguous……………………………………….. 6

C. The Rule of Lenity……………...…………………………………....….. 6

Conclusion ………………………………………………………………..….. 6

Relief……………….. ……………………………………………………………… 7

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TABLE OF CITATIONS

Federal Cases Page

Huddleston v United States, 415 U.S. 814, 830-831, 94 S. Ct. 1262; 39 L. Ed.

2d 782 (1974) ……………………………………………………………………... 11

Rewis v United States, 401 U.S. 808, 812; 91 S. Ct. 1056; 28 L. Ed. 2d 493 (1971)

……………………………………………………………………………… 10, 11

United States v. Bass, 404 U.S. 336, 348, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971)

……………………………………………………………………………. 10

United States v Lanier, 520 U.S. 259, 265; 117 S. Ct. 1219; 137 L. Ed. 2d 432 (1997)

…………………………………………………………………………….. 11

United States v Wiltberger, 18 U.S. (5 Wheat) 76, 95; 5 L. Ed. 37 (1820)……. 11

Michigan Supreme Court Cases

Kevin Krohn v. Home-Owners Insurance Company 793 N.W.2d 434, (2011)… 7

Michigan Court of Appeals

Michigan ex rel Oakland Co Prosecutor v Dep't of Corrections, 199 Mich.

App. 681, 689; 503 N.W.2d 465 (1993)……………………………………………… 6

People v. Armstrong 212 Mich App 121, 123, 536 N.W. 2d 789 (1995)…………. 6

People v Barajas, 198 Mich. App. 551, 555; 499 N.W.2d 396 (1993)………… 4

People v Stone Transport, Inc, 241 Mich App 49, 50; 613 NW2d 737 (2000)…….. 3, 5

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People v Williams, 268 Mich App 416, 425-426; 707 NW2d 624 (2005)…………… 8

Welch Foods, Inc v Attorney General, 213 Mich App 459, 461; 540 NW2d

693 (1995)…………………………………………………………………………….. 3, 8

People v Williams, 268 Mich App 416, 425-426; 707 NW2d 624 (2005)………..

Welch Foods, Inc v Attorney General, 213 Mich App 459, 461; 540 NW2d 693 (1995)

……………………………………………………………………………………. 9

Michigan Cases

Bailey v Oakwood Hosp. and Medical Center, 472 Mich 685, 693 (2005) 9

Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573

NW2d 611 (1998) 4

John B. Munger v. Michigan Municipal Management Risk Authority 482 Mich. 1049, 769

N.W.2d 223, (2008) 9

Lansing Mayor v Pub Service Comm, 470 Mich. 154, 165-166, 680 N.W.2d 840 (2004)

Macomb County Prosecutor v Murphy, 464 Mich 149, 160 (2001) 9

Nowell v Titan Ins. Co., 466 Mich 478, 482 (2002). 9

People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006) 3,7

Title Office, Inc v Van Buren Co Treasurer, 469 Mich. 516, 522; 676 N.W.2d

207 (2004) 4

Toll Northville LTD v Twp. of Northville, 480 Mich 6, 15 (2008). 9

Veenstra v Washtenaw Country Club, 466 Mich. 155, 159-160; 645 N.W.2d

v

643 (2002) 6

Statutes

Medical Marihuana Act 4,7,8,10,11,12,13

MCL 257.719(8)(c) “Length” 5

MCL 8.3a 6

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STATEMENT OF JURISDICTION:

The People’s case against the Defendant-Appellant was dismissed in the

Shiawassee Circuit Court on September 30, 2009. A Claim of Appeal was filed by the

People-Appellant. The Court of Appeals had jurisdiction in this appeal as of right

provided by Mich. Const. 1963, art 1, §20, pursuant to MCL 600.308(1), MCL 770.3,

MCR 7.203(A), MCR 7.204(A)(2). This Court now has jurisdiction pursuant to MCR

7.301(A)(2).

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STATEMENT OF FACTS:

May 13, 2009 Detective Sergeant Brian Fox and Deputy Jed Eisenberger received an

anonymous tip that someone was growing marihuana in the backyard of the address

710 Grace Street in Owosso, Michigan. The detectives drove to the neighbors. While in

the neighbor’s back yard they used binoculars and saw a six foot high, chain length dog

kennel in the defendant’s backyard with black plastic around it. A small portion of the

plastic was not attached and marihuana could be seen inside. The officers went to the

defendant home and knocked and asked the Defendant if he had a medical marihuana

card. The Defendant said yes and showed it to them. The card was issued on April 20,

2009. The officers then asked if they could see the marihuana in the kennel and the

Defendant showed them.

Once the Defendant showed the officers the dog kennel they asked if he had any

marihuana in the home and he told them yes. The Defendant would not allow the

officers to see the inside his home without a search warrant. The officers then obtained

a search warrant and served it on the Defendant. Once the search warrant was served,

it was determined that there were marihuana plants in the living room closet.

The Defendant was arrested on two counts of manufacturing a controlled substance –

marihuana, violating MCL 333.7401(2)(d)(iii).

JUDICIAL HISTORY:

The defendant was arrested for growing marihuana. Mr. King was tried in the

Shiawassee Circuit Court and found that there was no probable cause and his

affirmative defense met the elements of the MMA. With that ruling The State’s case

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against Mr. King was dismissed based on §8 of the Medical Marihuana Act (MMA), MCL

333.26428.

The People of the State of Michigan appealed to the Michigan Court of Appeals and the

trial court’s ruling was reversed.

ISSUES PRESENTED FOR REVIEW:

Whether the Appeals Court erred when they ruled that the Trial Court Judge’s decision

was incorrect when he ruled that the Mr. King complied with sec. 3 requirements of the

MMA, “enclosed, locked facility”, and allowed Mr. King to use the affirmative defense in

sec. 8 of the MMA and dismissed the case?

Court of Appeals says “NO”.

Defendant-Appellant says “YES”.

Plaintiff-Appellee says “NO”.

Whether Mr. King is still afforded the use of an affirmative defense even if it is found that

his facility was not in compliance?

Court of Appeals says “NO”

Defendant-Appellant says “YES”.

Plaintiff-Appellee says “NO”.

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ARGUMENT I

The Meaning of “Enclosed, Locked Facility”- The Trial Court was correct in its interpretation of the MMA’s enclosed, locked facility term in the statute.

PLAINTIFF’S CLAIM

The Plaintiff claims that Mr. King’s dog kennel did not conform to §4, MMA

333.26424(a) of the Medical Marihuana Act. The Plaintiff further claims that Mr. King’s

closet did not conform to the same provision.

STANDARD OF REVIEW

This issue presents a question of statutory interpretation. We review issues of

statutory interpretation de novo. People v Stone Transport, Inc, 241 Mich App 49, 50;

613 NW2d 737 (2000). Generally, the primary objective in construing a statute is to

ascertain and give effect to the Legislature's intent. People v Williams, 475 Mich 245,

250; 716 NW2d 208 (2006). The MMA was enacted as a result of an initiative adopted

by the voters. "The words of an initiative law are given their ordinary and customary

meaning as would have been understood by the voters." Welch Foods, Inc v Attorney

General, 213 Mich App 459, 461; 540 NW2d 693 (1995). We presume that the meaning

as plainly expressed in the statute is what was intended. Id. This Court must avoid a

construction that would render any part of a statute surplusage or nugatory, and "[w]e

must consider both the plain meaning of the critical words or phrases as well as their

placement and purpose in the statutory scheme." People v Williams, 268 Mich App 416,

425-426; 707 NW2d 624 (2005).

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DISCUSSION

A. Courts can interpret ambiguous language as the legislature intended.

The question for this court is to determine whether Mr. King had his marihuana in

an enclosed, locked facility. According to MMA 333.26423 § 3(c) “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.

The trial judge is able to use his discernment and define the words as the

legislature intended. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511,

515; 573 NW2d 611 (1998). In this case, the trial judge used the spirit of the statute

and applied the simplest meaning for “enclosed” and “locked”. Title Office, Inc v Van

Buren Co Treasurer, 469 Mich. 516, 522; 676 N.W.2d 207 (2004).

Mr. King was growing marijuana outside in his backyard in a chain-link kennel

partially covered on the sides that was six feet tall, with an open top and was not

anchored to the ground. Mr. King maintains that the kennel in his backyard constitutes

an “enclosed area” as defined in “enclosed, locked facility”. The trial court merely based

its interpretation of "other enclosed area" on the definition of "enclose" in Black's Law

Dictionary, therefore set in accordance with the statute. Where a word is undefined by

statute it is to be construed according to its common and approved usage. In doing so,

resorting to the dictionary definition is appropriate. People v Barajas, 198 Mich. App.

551, 555; 499 N.W.2d 396 (1993).

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B. Courts can use the meaning of a word that the average, reasonable person would understand.

In the case of People of the State of Michigan v. Stone Transport Inc 241 Mich. App.

49, 613 N.W.2d 737 (2000) the court erred in interpreting the definition of “length” under

MCL 257.719(8)(c) Defendant truck driver was cited on Michigan freeways operating an

over-length vehicle in violation of MCL Sec. 257.719(8)(c) and received two civil

infractions. The issue in this case was whether the court erred in interpreting the

definition of length under MCL Sec. 257.719(8)(c) by holding that a coupling device may

be included in the measurement of a trailer’s length. “Length” means the total length of

a vehicle, or combination of vehicles, including any load the vehicle is carrying. Length

shall not include safety or energy conservation devices… Semitrailers and trailers shall

be measured from the front vertical plane of the foremost transverse load supporting

structure to the rearmost transverse load supporting structure”. Defendant claims that

the load supporting structure is the front end of the semitrailer and that the dolly is not a

part of the trailer and the dolly was never intended to be measured. Whereas, the

defendant prosecution claimed it was properly included in the measurement because

the lead trailer does not need the load bearing dolly when a pup trailer is not used, but

only when the pup trailer is hitched to a semitrailer because without the dolly nothing

would support the load at the front of the pup trailer. Each interpretation is defensible

within the statutory language, therefore, there is not a clear interpretation and judicial

interpretation is required. The definition of “length” was vague and therefore employed

judicial interpretation. People of the State of Michigan v. Stone Transport Inc 241 Mich.

App. 49,613 N.W.2d 737 (2000). The Appeals Court erred in interpreting MCL Sec.

257.719(8)(c) because the statute was vague. Mr. King complied with Sec. 3 of the

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MMA “enclosed, locked facility”. However, “other enclosed, locked facility” was in the

definition as well, leaving the statute vague and open to interpretation. Therefore,

judicial interpretation is required.

The primary goal when interpreting a statute is to give effect to the intent of the

legislature. Judicial construction is not appropriate if the plain and ordinary meaning of

the statutory language is clear. If reasonable people could differ the statute’s meaning,

then judicial construction is not appropriate. People v. Armstrong 212 Mich App 121,

123, 536 N.W. 2d 789 (1995). Michigan ex rel Oakland Co Prosecutor v Dep't of

Corrections, 199 Mich. App. 681, 689; 503 N.W.2d 465 (1993).

Our obligation in construing the provisions of the LDA is to discern the

legislative intent that may reasonably be inferred from the words expressed in the

statute by according those words their plain and ordinary meaning. MCL 8.3a; Veenstra

v Washtenaw Country Club, 466 Mich. 155, 159-160; 645 N.W.2d 643 (2002).

Conclusion

The primary goal of statutory interpretation is to ascertain the legislative

intent that may reasonably be inferred from the statutory language. The first step in that

determination is to review the language of the statute itself. Unless statutorily defined,

every word or phrase of a statute should be accorded its plain and ordinary meaning,

MCL 8.3 General rules of construction says take into account the context in which the

words are used. Courts may consult dictionary definitions to give words their common

and ordinary meaning. When given their common and ordinary meaning, the words of a

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statute provide the most reliable evidence of its intent. Kevin Krohn v. Home-Iwners

Insurance Company (2011).

The people of this state voted for the law and it is to their reasonable

understanding that the Court should keep in mind when interpreting the law. Mr. King,

being a reasonable person, used the ordinary meaning for “enclosed, locked facility”.

He put a dog kennel that had four sides on the ground in his backyard, “enclosed”. The

dog kennel had a lock on it and Mr. King had the key in his possession, “locked”. The

closet was inside his home and the Statute itself gives the word “closet” in the definition.

The backdoor not having a lock on it is of no consequence since it was not common

knowledge.

ARGUMENT II

The MMA as an Affirmative Defense and regardless if the defendant complied with the § 4 of the MMA, MCL 333.26424. There is nothing in the MMA that states if you don’t comply with § 4 you can’t use the MMA as an affirmative defense

PLAINTIFF’S CLAIM

The Plaintiff claims that the dog kennel and the closet were in violation of § 4 of

the MMA and therefore Mr. King can’t use § 8 of the MMA as an affirmative defense.

STANDARD OF REVIEW

This issue presents a question of statutory interpretation. We review issues of

statutory interpretation de novo. People v Stone Transport, Inc, 241 Mich App 49, 50;

613 NW2d 737 (2000). Generally, the primary objective in construing a statute is to

ascertain and give effect to the Legislature's intent. People v Williams, 475 Mich 245,

7

250; 716 NW2d 208 (2006). The [MMA] was enacted as a result of an initiative adopted

by the voters. "The words of an initiative law are given their ordinary and customary

meaning as would have been understood by the voters." Welch Foods, Inc v Attorney

General, 213 Mich App 459, 461; 540 NW2d 693 (1995). We presume that the meaning

as plainly expressed in the statute is what was intended. Id. This Court must avoid a

construction that would render any part of a statute surplusage or nugatory, and "[w]e

must consider both the plain meaning of the critical words or phrases as well as their

placement and purpose in the statutory scheme." People v Williams, 268 Mich App 416,

425-426; 707 NW2d 624 (2005).

DISCUSSION

A. Interpreting the Statute as a whole

According to MMA § 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 valid…..”

Nowhere in MMA § 7, with all of its enumerated points, does it state that if a

person does not comply with the “enclosed locked facility” provision that person forfeits

his or her right to an affirmative defense. MMA § 4 does state that a person must keep

their marihuana plants in an “enclosed locked facility” but it does not state that there are

any penalties associated for non-compliance. Even if Mr. King is found in violation of

one provision of the statute, he is still able to mount his affirmative defense according to

MMA § 8. The only way to deny Mr. King the opportunity to use the affirmative defense

8

is to take the MMA apart and apply whatever portion that one chooses. But statutes

should be read as a whole to determine the intent of the Legislature, and any provisions

in the statute that are inconsistent should be interpreted to make it work as a whole.

Macomb County Prosecutor v Murphy, 464 Mich 149, 160 (2001), Bailey v Oakwood

Hosp. and Medical Center, 472 Mich 685, 693 (2005), Nowell v Titan Ins. Co., 466 Mich

478, 482 (2002). This means that the Court should take all of the provisions and apply

them as one. This is the way the legislature intended so that all citizens of this state,

who are in possession of a valid medical Marihuana card would be treated fairly under

the law.

B. When the Statute is Ambiguous

Statutory language is ambiguous when it is equally susceptible to more than one

meaning, not when reasonable minds can disagree regarding its meaning. Toll

Northville LTD v Twp. of Northville, 480 Mich 6, 15 (2008). Courts should be

exceedingly loath to find ambiguity, because there is rarely any clearcut rule of decision-

making under such circumstances and decisions often tend to partake of quasi-

legislative exercises of judicial power. As this Court stated in Lansing Mayor v Pub

Service Comm, 470 Mich. 154, 165-166, 680 N.W.2d 840 (2004), ambiguity does not

exist unless two provisions "irreconcilably conflict" with one another or when one

provision is "equally susceptible" to more than one meaning. John B. Munger v.

Michigan Municipal Management Risk Authority 482 Mich. 1049, 769 N.W.2d 223,

(2008)

The enclosed, locked facility provision is not clear because within the definition the

legislature included “other enclosed area” making it easily susceptible to more than one

9

meaning. Many different facilities can be defined as “other enclosed area”, a locker, a

desk, a trunk or a chain-linked dog kennel. All of these are enclosed and they can also

be locked. Because MMA § 3 (c) can be construed in more than one way this leads to

its ambiguousness. The fact that we are here shows how unclear the Statute is and

since that is the case the court should rule on the side of leniency.

C. The Rule of Lenity

The rule of lenity provides that "ambiguity concerning the ambit of criminal

statutes should be resolved in the favor of lenity." Rewis v. United States, 401 U.S. 808,

812, 28 L. Ed. 2d 493, 91 S. Ct. 1056 (1971). The Supreme Court has identified two

policies underlying this rule. First, concerns of fairness suggest that "a warning should

be given to the world in language that the common world will understand, of what the

law intends to do if a certain line is passed. To make the warning fair, so far as possible

the line should be clear." United States v. Bass, 404 U.S. 336, 348, 30 L. Ed. 2d 488, 92

S. Ct. 515 (1971). The line is not clear here. The Appeals Court erred because the

Statute is ambigous and the rule of lenity provides that if there are contradicting

interpretations then the Court should rule in favor of the defendant. The MMA § 4 (a)

states 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

10

state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in

an enclosed, locked facility.and the MMA § 8 states (a) 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. One provision says that a person must follow certain

procedures in order not to be penalized but another provision simply states that as long

as you hold a valid Medical Marihuana card a person will not be penalized and can use

it as an affirmative defense and that defense will be considered valid. So now I ask,

where is the fairness here, where is the line?

“Any ambiguity regarding the scope of criminal statutes must be resolved in favor

of lenity”. Huddleston v United States, 415 U.S. 814, 830-831, 94 S. Ct. 1262; 39 L. Ed.

2d 782 (1974), quoting Rewis v United States, 401 U.S. 808, 812; 91 S. Ct. 1056; 28 L.

Ed. 2d 493 (1971). That is, if a criminal statute is open to more than one legitimate

interpretation, it should be construed strictly. This means that the statute should be

construed in favor of the defendant. United States v Wiltberger, 18 U.S. (5 Wheat) 76,

95; 5 L. Ed. 37 (1820). The rule of lenity is important in criminal cases because it

provides constitutional fair warning. It does this by making clear what the law intends to

do if someone crosses a certain line and where that line is drawn. United States v

Lanier, 520 U.S. 259, 265; 117 S. Ct. 1219; 137 L. Ed. 2d 432 (1997).

11

CONCLUSION

Because of the ambiguousness of the Statute it needs to be taken as a whole,

not in portions. Applying all the provisions as a whole is the way to interpret the Statute

as the legislature intended. Because of the ambiguousness of the Statute the court can

rule on the side of leniency.

The Lenity Rule means the court rules on the side of the defendant when the

statute is unclear. As previously stated, the MMA has conflicting provisions and since

that is the case leniency is the next course of action.

Once the lenity rule is applied, Mr. King being found not to be in compliance with

the “enclosed, locked facility” provision is a moot point. Mr. King therefore cannot be

precluded from using the affirmative defense as defined in the MMA § 8. Mr. King is a

legal carrier of a valid Michigan Medical Marihuana card that in itself gives him the right

to use the affirmative defense.

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RELIEF

For all of the reasons stated in the above arguments we ask that the court

reverse the Appeals Court’s decision and affirm the Trial Court’s decision and let the

affirmative defense under MMA 333.36428 by Mr. King to stand and all charges against

him be dismissed.

Respectfully submitted,

______________________________

Samantha Visser

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