Gass, M., Pets. v. 52nd Judicial District

[J-42-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

MELISSA GASS, ASHLEY BENNETT, : No. 118 MM 2019
AND ANDREW KOCH, INDIVIDUALLY :
AND ON BEHALF OF ALL OTHERS : Appeal from the Extraordinary
SIMILARLY SITUATED, : Jurisdiction granted for this case which
: concerns a challenge to a policy (the
Petitioners : Policy) prohibiting the use of medical
: marijuana by individuals under the
: supervision of the Lebanon County
v. : Probation Services
:
: ARGUED: May 19, 2020
52nd
JUDICIAL DISTRICT, LEBANON :
COUNTY, :
:
Respondent :

OPINION

CHIEF JUSTICE SAYLOR DECIDED: June 18, 2020

This matter concerns a challenge to a local judicial district’s policy prohibiting the

use of medical marijuana by individuals under court supervision, such as probationers.

In 2016, the Pennsylvania General Assembly enacted the Medical Marijuana

Act.1 In a declaration of policy, it recognized that “[s]cientific evidence suggests that

medical marijuana is one potential therapy that may mitigate suffering in some patients

and also enhance quality of life.” 35 P.S. §10231.102(1). The Legislature then

1 Act of April 17, 2016, P.L. 84, No. 16 (codified at 35 P.S. §§10231.101-10231.2110)
(the “MMA” or the “Act”).
announced its intention to provide a temporary program of access balancing patient

needs with safety considerations. See id. §10231.102(3)(i), (4).

Under the Act, “[n]othwithstanding any provision of law to the contrary, use or

possession of medical marijuana as set forth in [the] act is lawful within this

Commonwealth.” Id. §10231.303(a). Relevantly, medical marijuana may only be

dispensed, however, to patients who receive certifications from qualified physicians and

possess a valid identification card issued by the Pennsylvania Department of Health.

See id. §10231.303(b)(1)(i).2 A “patient” is a Pennsylvania resident who has an

enumerated serious medical condition and has met specified requirements for

certification. Id. §10231.103. Notably, there are many other regulatory requirements

and restrictions imposed throughout the Act. See Class Action Petition for Review

Addressed to the Court’s Original Jurisdiction, 118 MM 2019 (Pa.), at ¶¶37-63

(summarizing the MMA’s regulatory prescriptions).

And of particular relevance here, the MMA contains an immunity provision

protecting patients from government sanctions. See 35 P.S. §10231.2103(a). Per the

statute, no such individual “shall be subject to arrest, prosecution or penalty in any

manner, or denied any right or privilege, . . . solely for lawful use of medical marijuana . .

. or for any other action taken in accordance with this act.” Id.

In September 2019, the 52nd Judicial District -- comprised of the Lebanon

County Court of Common Pleas (the “District”) -- announced a “Medical Marijuana

Policy” under the issuing authority of the president judge. See Lebanon County

Probation Services Policy Nos. 5.1-2019 & 7.4-2019 (Sept. 1, 2019) (the “Policy”).

Centrally, the Policy prohibits “the active use of medical marijuana, regardless of

2Parenthetically, the statute also allows for dispensation to qualified caregivers. See id.
§10231.303(b)(1)(ii).

[J-42-2020] - 2
whether the defendant has a medical marijuana card, while the defendant is under

supervision by the Lebanon County Probation Services Department.” Id. at 2. The

following explanation was provided:

The medical marijuana card [issued under the MMA] is not a
prescription for medication, but rather a recommendation by
a physician as to a form of treatment. Medical marijuana
has not been approved as a MAT (medically assisted
treatment) by the FDA (Food and Drug Administration). The
use of medical marijuana may have benefits for some
medical conditions and under certain circumstances may be
helpful. Individuals, however, who are involved in substance
abuse and issues surrounding addiction which may have
played a part in the defendant’s criminal violations of law,
must be dealt with in a humane but effective manner so the
defendant can be rehabilitated . . . .

Under the Federal Controlled Substances Act (CSA) of
1970, marijuana is classified as a Schedule I substance. By
definition under the law, Schedule I drugs have a high
potential for abuse and dependency, with no recognized
medical use or value. Any marijuana possession, cultivation,
or use is a federal crime, subjecting a defendant to fines,
prison time, or both. Since marijuana use (medical or
recreational) is deemed illegal under Federal law, [and] the
Court and the Probation Department should not knowingly
allow violations of law to occur, the prohibition against such
use is required.
Id. at 1 (emphasis in original).3 As originally stated, the Policy contained no exceptions.

Petitioners are individuals under the supervision of the probation agency in

Lebanon County. Represented by the American Civil Liberties Union, they filed a

petition in the Commonwealth Court’s original jurisdiction challenging the validity of the

Policy, particularly in light of the MMA’s facial applicability to persons under court

3The federal Controlled Substances Act of 170, Pub. L. No. 91-513, 84 Stat. 1242, is
codified, as amended, at Sections 801 through 971 of Title 21 the United States Code.
See 21 U.S.C. §§801-971.

[J-42-2020] - 3
supervision, as well as on account of the enactment’s immunity provision. Petitioners

included class-action allegations and sought declaratory and injunctive relief confirming

that the Act prohibits the District from penalizing medical marijuana patients who comply

with state law -- including those under court supervision -- and restraining enforcement

or implementation of the Policy.

Petitioners alleged that each suffers from serious and debilitating medical

conditions. After unsuccessful treatments with other therapies, Petitioners averred, they

secured lawful authorization, per the MMA, to use medical marijuana. Further, the

petition asserted that:

[m]ore than sixty people with serious medical issues in
Lebanon County must now decide whether to discontinue
their lawful use of a medical treatment that safely and
effectively alleviates their serious medical conditions, or risk
revocation of their probation and possible incarceration. It is
a choice between risking severe health consequences and
going to jail.
Class Action Petition, 118 MM 2019 (Pa.), at ¶2. Petitioners also stressed the lack of

any exceptions.

Separately, Petitioners filed an application for special relief in the nature of a

preliminary injunction. Soon thereafter, the Commonwealth Court proceeded, sua

sponte, to transfer the case to this Court, concluding that it lacked jurisdiction to grant

the requested relief. The District then filed its response in this Court opposing

preliminary injunctive relief. It claimed, among other things, that Petitioners were

unlikely to prevail on the merits, arguing, inter alia, that the General Assembly didn’t

intend the MMA to override the courts’ ability to supervise probationers and parolees.

Moreover, the District asserted that its probation services office had experienced

disruptions and persistent difficulties when supervising probationers and parolees using

medical marijuana. In this vein, the District elaborated as follows:

[J-42-2020] - 4
 For instance, some individuals under court supervision with
medical marijuana prescriptions are unable to identify the
health condition that led to the medical marijuana
prescription. The Office also found a significant amount of
individuals under supervision, who possess a medical
marijuana card, that have a history of marijuana abuse
and/or their underlying charges are related to the unlawful
possession of marijuana. Additionally, drug testing for illicit
use of marijuana is also rendered meaningless if an
individual has a prescription for the legal use of medical
marijuana as the laboratory is unable to discern between
legal and illegal strands of marijuana.
Answer to Petitioners’ Application for Special Relief in the Nature of a Preliminary

Injunction, 118 MM 2019 (Pa.), at 2 (internal citations omitted). The District also

maintained that it would be harmed if the Policy were to be restrained, particularly since

some drug treatment programs refuse to accept individuals who are using medical

marijuana.

Additionally, the District suggested that an October 7, 2019 revision to the Policy

dissipates any concern of harm to the affected individuals, since per the amendment

individuals aggrieved by the Policy may benefit from an exemption in the event they

prove, at a hearing, the “medical necessity” for their ongoing use of medical marijuana.4

See, e.g., Answer to Petitioners’ Application for Special Relief in the Nature of a

Preliminary Injunction, 118 MM 2019 (Pa.), at 6-7 (positing that the Policy “carefully

4 The revised version of the Policy provides that:

Any person on supervision who believes they are aggrieved by this policy
may petition the Court for a full and fair hearing to determine whether they
should be excused from its application to them. At that hearing, the
Petitioner will bear the burden of establishing to the Court the medical
necessity of their ongoing use of medical marijuana.

Brief for Respondent at 17 (quoting Lebanon County Probation Services Policy Nos.
5.1-2019 & 7.4-2019 (rev. Oct. 7, 2019)).

[J-42-2020] - 5
balances the need to rehabilitate offenders against the need for medical marijuana and

gives individual consideration for the Petitioners’ specific circumstances.”). According to

the District, this hearing would “[o]perationally” be part of a parole or probation

revocation proceeding. Id. at 4.

The District further noted that the use of medical marijuana conflicts with the

general conditions of probation and parole in Lebanon County, which require

compliance with all state and federal criminal laws and prohibit the possession and use

of alcohol and “any legal or illegal mind/mood altering chemical/substance.” Id. at 3.

The District attested that it has been the general experience that requiring adherence to

such general conditions assists with rehabilitation and reduces the risk of recidivism.

Ultimately, although the transfer by the Commonwealth Court was improvident,

this Court elected to exercise its extraordinary King’s Bench jurisdiction to consider the

petition. We found that the case implicates substantial legal questions concerning

matters of public importance, particularly in light of the allegation that other judicial

districts have adopted, or are considering adopting, similar limitations on the use of

medical marijuana. The Order also stayed any enforcement or implementation of the

Policy pending further order and directed the Prothonotary to establish a briefing

schedule and list the case for oral argument. See Order, 118 MM 2019 (Pa. Oct. 30,

2019).

While there are many underlying factual matters alluded to in the petition for

review, we view the central question -- namely, whether the Policy offends the MMA --

as a legal one that may be decided without the need for fact-finding.

As a threshold matter, the parties dispute the appropriate framing of the question

presented. Petitioners, for their part, advance the issue of whether the Policy violates

the immunity provision of the MMA. The District, on the other hand, restates the

[J-42-2020] - 6
question presented as follows: “May a judicial district inquire into the nature of medical

marijuana use by a probationer?” Brief for Respondent at 5. Along these lines, the

District pervasively asserts that Petitioners seek “absolute immunity” and an “all-

encompassing right to medical marijuana that cannot be questioned.” Id. at 11, 22; see

also id. at 6 (claiming that Petitioners ask this Court to “declare that simply having a

medical marijuana card shuts down any judicial inquiry” and “excuses [Petitioners] from

judicial oversight”); accord id. at 7, 10-11, 15-16, 18, 25-26, 35, 39-40, 42-43, 46.

To the extent that we would consider the issue on the terms stated by the

District, there would simply be no dispute, since Petitioners freely acknowledge that

they must comply with the MMA or risk sanctions. See, e.g., Class Action Petition, 118

MM 2019 (Pa.), at ¶¶37-63. And they agree that the District, through its judges and

probation officers, may make reasonable inquiries to ensure their use of medical

marijuana is lawful. See, e.g., Reply Brief for Petitioners at 1, 3. We will therefore

consider the issue presented entirely on the terms framed by Petitioners.

Petitioners stress that the General Assembly made a policy decision, in the

MMA, to legalize the use of medical marijuana in the Commonwealth with the aim of

providing an effective treatment for patients with serious medical conditions. See, e.g.,

Brief for Petitioners at 22 (“Allowing courts to create additional hoops that patients must

jump through to avail themselves of the benefits of the MMA would usurp the will of the

legislature and open the door to additional judicially created prerequisites to patients’

eligibility under the Act.”). Drawing support from decisions of the highest courts of other

states, they also find the conflict between the Policy and the Act’s explicit immunity

provision to be manifest and disabling, relative to the Policy’s viability. See, e.g., Reed-

Kaliher v. Hoggatt, 347 P.3d 136, 139 (Ariz. 2015) (invalidating a probation condition

restricting the use of medical marijuana); State v. Nelson, 195 P.3d 826, 833 (Mont.

[J-42-2020] - 7
2008) (holding that the state’s medical marijuana law “simply does not give sentencing

judges the authority to limit the privilege of medical use of marijuana while under state

supervision”).

With reference to the federal Controlled Substances Act, Petitioners assert that

federal law has no bearing on the Policy’s validity, since the District has no legal basis

to require that medical marijuana patients comply with federal prohibitions where the

Pennsylvania General Assembly has specifically displaced the prior state-law analogue.

According to Petitioners, reliance on federal law to supersede the MMA would

undermine Pennsylvania’s sovereignty. See Brief for Petitioners at 10-11 (“The

Commonwealth has sovereign authority to allow its residents to use marijuana to treat

certain serious medical conditions without fear of arrest, prosecution, or the denial of

any right or benefit by the state.” (emphasis in original); id. at 11 (“That medical

marijuana remains illegal under federal law neither compels nor authorizes the courts of

this Commonwealth to ignore the will of the state legislature in favor of enforcing federal

law.”).5

The District, on the other hand, maintains that the Policy is grounded in salutary

rehabilitative aims, as it meshes with its general conditions of probation, which both

prohibit probationers from using alcohol, narcotics, and legal and illegal mind- and/or

mood-altering chemical substances and require adherence to state and federal law.

The District also reiterates its assertion that use of medical marijuana by probationers

has fostered management difficulties in the administration of probation and substantially

limits avenues for drug treatment. Centrally, the District maintains that, in enacting the

5Petitioners’ position is supported by amici, Society of Cannabis Clinicians, Association
of Cannabis Specialists, Drug Policy Alliance, and Americans for Safe Access
Foundation, which credit Petitioners’ legal arguments and offer additional policy support.

[J-42-2020] - 8
MMA, the General Assembly did not intend to limit the courts’ traditional ability to

supervise probationers.

With regard to the decisions from other jurisdictions, the District envisions many

distinguishing factors. Chiefly, the District emphasizes that Pennsylvania is the only

state, among those referenced, in which the immunity provision of a medical marijuana

statute restrains punishment or denial of privileges “solely for” use of medical marijuana.

35 P.S. §10231.2103(a). Because Petitioners are not just alleged “patients” but also

probationers under court supervision, it is the District’s position that they are not being

subject to restrictions on their use of medical marijuana solely because they are

patients. Accord Brief for Respondent at 15 (“Section 2103(a)’s failure to contemplate

every particular situation in the life of a ‘patient’ that might cause friction with the MMA

does not support a blanket prohibition against judicial scrutiny of medical marijuana.”).

The District further observes that Section 2103(a) shields medical marijuana

users from “arrest” and “prosecution,” positing that these terms demonstrate an

intention to address events occurring prior to adjudication and sentencing by the

judiciary. Under the principle of statutory construction known as ejusdem generis, the

District posits, the ensuing catchall phrase -- “or penalty in any manner” -- must be

interpreted consistent with the preceding words “arrest” and “prosecution.” See 1

Pa.C.S. §1903(b).

In Pennsylvania, the District explains, sentencing courts and the Board of

Probation and Parole always have enjoyed broad authority to ensure that probation

serves effectively to rehabilitate offenders and protect the public. According to the

District, the Policy strikes a reasonable balance between these objectives and

Petitioners’ asserted right of access to medical marijuana. See Brief for Respondent at

27 (“The Judicial District’s Medical Marijuana Policy is entirely consistent with the

[J-42-2020] - 9
legitimate aims of probation and does not unnecessarily restrict any fundamental right of

Petitioners.”). Ultimately, the District asks this Court to lift the stay restraining

implementation of the Policy and permit Petitioners to secure a hearing and create a

“developed record that fully accounts for Petitioners’ individual situations and their need

for rehabilitation.” Id. at 8-9.

In assessing whether the Policy conflicts with the immunity provision of the MMA,

we view the issue as one of statutory construction. We will therefore apply conventional

interpretive principles, as discussed throughout this Court's decisions. See,

e.g., Norfolk S. Ry. Co. v. PUC, 621 Pa. 312, 328, 77 A.3d 619, 629 (2013). The

essential review encompasses close adherence to terms of a statute that are plain and

resort to other approaches of discernment only in the presence of ambiguity or

inexplicitness. See id. Where ambiguity or inexplicitness exists, the Court may afford

weight to other considerations, including the object to be attained by the statute under

consideration, the consequences of a particular interpretation, and contextual

considerations. See id.; see also Schock v. City of Lebanon, ___ Pa. ___, ___, 210

A.3d 945, 955-59 (2019) (highlighting the role of contextual considerations in the

construction of ambiguous statutes). See generally 1 Pa.C.S. §§ 1921-1939.

There is no disagreement that Petitioners are eligible to be “patients” under the

MMA, who are entitled to the immunity from penalty and cannot be denied of any right

or privilege solely for lawful use of medical marijuana. See 35 P.S. §10231.2103(a).

Responding to the District’s argument, however, that Petitioners do not qualify for

immunity since the Policy turns on an additional factor -- namely, Petitioners’ status as

probationers -- we find that this circumstance implicates a material ambiguity.

On the one hand, the District argues, colorably, that the integral involvement of

court supervision means that any punishment or denial of the privilege of probation

[J-42-2020] - 10
occurring under the Policy is not “solely for” a petitioner’s medical marijuana use. Id.

Conversely, as Petitioners contend, given that probation is the privilege in issue,

revocation on account of otherwise lawful medical marijuana use can be viewed as

punishment, or the denial of the privilege of probation, solely on account of such use.

Significantly, in various respects and measures, the MMA accords specific

treatment to criminal offenders. For example, under Section 614 of the Act, individuals

who have been convicted of drug offenses cannot be affiliated with a medical marijuana

dispensary or grower/processor. See 35 P.S. §10231.614. Similarly, those convicted of

certain drug offenses within a prescribed window of time are ineligible to serve as

“caregivers” (i.e., those designated by patients to deliver medical marijuana). See id.

§10231.502(b). Furthermore, in Section 1309, the General Assembly prohibited the use

of medical marijuana in any correctional institution, including one “which houses

inmates serving a portion of their sentences on parole or other community correction

program.” Id. §10231.1309(2).

Notably, individuals in each of these categories, who are subject to the above

constraints, can nonetheless qualify as “patients” who are otherwise eligible to use

medical marijuana outside the restricted parameters. Accord Reed-Kaliher, 347 P.3d at

139 (observing that the state medical marijuana law “does not deny even those

convicted of violent crimes or drug offenses (so long as they are not incarcerated)

access to medical marijuana if it could alleviate severe or chronic pain or debilitating

medical conditions”). And, to the degree that they satisfy the Act’s threshold

requirements and obtain medical marijuana cards, each is entitled to the immunity

afforded under Section 2103(a). Accord id.; see also U.S. v. Jackson, 388 F. Supp. 3d

505, 513 (E.D. Pa. 2019) (“The Medical Marijuana Act carves out some exceptions,

such as prohibiting the use of medical marijuana in prisons, but it contains no exception

[J-42-2020] - 11
for individuals on probation or parole or under supervision. Without any such provision,

the Court concludes that the Act applies to those individuals just as it applies to any

other person.” (citation omitted)).

Section 1309(a) is particularly significant, in our judgment, since the Legislature

considered persons under court supervision and chose to impose constraints only upon

a specific subcategory (those physically present in a correctional institution). See 35

P.S. §10231.1309(2). As Petitioners persuasively assert, had the General Assembly

intended broader limitations, it would have been a straightforward matter for it to have

said this.6

We also respectfully differ with the District’s position that it may rely on its

general conditions of probation to make discretionary determinations about

probationers’ use of medical marijuana, beyond making inquires to determine whether

the usage is lawful under the MMA. Although the District highlights that the general

conditions’ restrictions on alcohol and mind- and/or mood-altering drugs go hand in

hand, the Legislature has not implemented a remedial scheme authorizing the use of

alcohol for treatment of serious medical conditions. Accord Nelson, 195 P.3d at 832

(“When a qualifying patient uses medical marijuana in accordance with the MMA, he is

6 The District’s reliance on the ejusdem generis principle to suggest that immunity
should apply only to pre-adjudicative measures has lesser force, in our view, in light of
the overarching policies underlying the Act. The General Assembly likely chose the
terms “arrest” and “prosecution” precisely because these are types of actions that lead
to punishment or the denial of privilege. Viewed as such, a probation revocation
hearing is of the same character.

In this respect, and more broadly, we also credit an argument by Petitioners that the Act
is remedial in nature, and thus, should be accorded a liberal construction. See 1
Pa.C.S. §1928(c).

[J-42-2020] - 12
receiving lawful medical treatment. In this context, medical marijuana is most properly

viewed as a prescription drug.” (citation omitted)).

As to the general conditions’ prohibition against violations of federal law, while

possession and use of marijuana remains illegal under federal law even for medical

purposes, Petitioners correctly observe that the federal Controlled Substances Act does

not (and could not) require states to enforce it. See Brief for Petitioners at 34 (citing

Printz v. U.S., 521 U.S. 898, 935, 117 S. Ct. 2365, 2384 (1997) (“Congress cannot

compel the States to enact or enforce a federal regulatory program.”)); see also Ter

Beek v. City of Wyoming, 846 N.W.2d 531, 538 (Mich. 2014) (applying the Printz

rationale to conclude that a state can both comply with the federal Controlled

Substances Act and authorize the use of medical marijuana law as a matter of state

law). Moreover, through a continuing series of appropriations enactments since 2014,

Congress has prohibited the United States Department of Justice from utilizing allocated

funds to prevent states from “implementing their own laws that authorize the use,

distribution, possession, or cultivation of medical marijuana.” Jackson, 388 F. Supp. 3d

at 509 (quoting Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, 133 Stat. 13

§537 (2019)).

Congress’s approach evinces a respect for the core principle of federalism

recognizing dual sovereignty between the tiers of government. See United States v.

Davis, 906 F.2d 829, 832 (2d Cir. 1990) (“The states and the national government are

distinct political communities, drawing their separate sovereign power from different

sources, each from the organic law that established it. Each has the power, inherent in

any sovereign, independently to determine what shall be an offense against its authority

and to punish such offenses.”). In enacting the MMA, the Pennsylvania Legislature

proceeded pursuant to its independent power to define state criminal law and promote

[J-42-2020] - 13
the health and welfare of the citizenry. See Whalen v. Roe, 429 U.S. 589, 603 n.30, 97

S. Ct. 869, 878 n.30 (1977) (citing, inter alia, Robinson v. California, 370 U.S. 660, 664-

65, 82 S. Ct. 1417, 1419-20 (1962)). While the circumstances are certainly uneasy --

since possession and use of medical marijuana remains a federal crime -- we find that

the District cannot require state-level adherence to the federal prohibition, where the

General Assembly has specifically undertaken to legalize the use of medical marijuana

for enumerated therapeutic purposes.

We are cognizant of the District’s concerns that medical marijuana use by

probationers may, in fact, cause difficulties with court supervision and treatment. As we

have observed previously: “The concern that unintended consequences may unfold are

prevalent relative to the promulgation of experimental, remedial legislation[.]” Williams

v. City of Phila., 647 Pa. 126, 150, 188 A.3d 421, 436 (2018). Nevertheless, “[w]here

the language of the governing statute is clear (or clear enough), . . . the solution is

legislative -- and not judicial -- adjustment.” Id. at 150-51, 188 A.3d at 436.

Along these lines, the Supreme Court of Montana has aptly observed that,

“whether or not medical marijuana is ultimately a good idea is not the issue” before the

courts. Nelson, 195 P.3d at 833. Rather, in Pennsylvania, as elsewhere, the political

branch has decided to permit patients -- including probationers -- to use medical

marijuana for specified, serious medical conditions, upon a physician’s certification.

The Policy, both in its original and amended forms, fails to afford sufficient recognition to

the status of a probationer holding a valid medical marijuana card as a patient, entitled

to immunity from punishment, or the denial of any privilege, solely for lawful use. See

35 P.S. §10231.2103(a).

As discussed in connection with our clarification of the question presented, this

case does not merely concern an effort on the part of the District (or its judges or

[J-42-2020] - 14
probation officials) to reasonably inquire into the lawfulness of a probationer’s use of

medical marijuana. Rather, both the original and amended Policies are constructed

upon a presumption that any and all use is impermissible. In terms of the amended

Policy, the Court deems the affordance of a hearing -- in which probationers bear the

burden of overcoming this presumption by proving medical necessity and lawfulness of

use -- to be an insufficient countermeasure to the Policy’s foundationally inappropriate

presumption.

Certainly, judges and probation officials may make reasonable inquiries into the

lawfulness of a probationer’s use of medical marijuana. In this regard, the District’s

repeated assertions that it is rendered powerless to do so in absence of the Policy, see,

e.g., Brief for Respondent at 6, are not well taken. For example, the Act itself

establishes a system whereby the validity of a medical marijuana card can be verified

through the Department of Health. See 35 P.S. §10231.301(a)(4)(ii) (requiring the

Department of Health to maintain a statewide database enabling it to establish the

authenticity of identification cards).

Consistent with our interpretation of the MMA, however, judges and/or probation

officers should have some substantial reason to believe that a particular use is unlawful

under the Act before haling a probationer into court. Although ensuring strict adherence

to the MMA by those possessing a valid medical marijuana card may be difficult, the

alternative selected by the District of diluting the immunity afforded to probationer-

patients by the Act is simply not a viable option.

The petition for declaratory and injunctive relief is GRANTED. For the reasons

stated above, the Policy as stated in its original and amended forms is deemed to be

[J-42-2020] - 15
contrary to the immunity accorded by Pennsylvania’s Medical Marijuana Act, and as

such, the Policy shall not be enforced.

Nothing in this Opinion restrains judges and probation officials supervising

probationers and others from making reasonable inquiries into whether the use of

marijuana by a person under court supervision is lawful under the Act. And nothing

impedes a revocation hearing or other lawful form of redress, where there is reasonable

cause to believe that a probationer or other person under court supervision has

possessed or used marijuana in a manner that has not been made lawful by the

enactment.

The request for class-action treatment is dismissed as moot.

Justices Baer, Todd, Donohue, Dougherty, Wecht and Mundy join the opinion.

[J-42-2020] - 16