People v. Kolanek; People v. King

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra

FILED MAY 31, 2012

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 142695

ALEXANDER EDWARD KOLANEK,

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 142712

ALEXANDER EDWARD KOLANEK,

Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 142850
LARRY STEVEN KING,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

MARY BETH KELLY, J.
We granted leave in these cases to consider substantive and procedural aspects of

the affirmative defense of medical use of marijuana under § 8, MCL 333.26428, of the

Michigan Medical Marihuana Act (MMMA).1 Given the plain language of the statute,

we hold that a defendant asserting the § 8 affirmative defense is not required to establish

the requirements of § 4, MCL 333.26424, which pertains to broader immunity granted by

the act. The Court of Appeals erred by reaching the opposite conclusion in People v

King,2 and we therefore reverse the Court of Appeals’ judgment in King.

Further, to establish the affirmative defense under § 8, we hold that a defendant

must show under § 8(a)(1) that the physician’s statement was made after enactment of the

MMMA but before commission of the offense. The Court of Appeals reached this

conclusion in People v Kolanek,3 and we affirm the Court of Appeals in this regard.

However, the Court of Appeals also held that defendant could reassert the affirmative

defense at trial, despite his failure at the evidentiary hearing to establish the existence of a

1
MCL 333.26421 et seq. Although the act uses the spelling “marihuana,” we use the
more common spelling “marijuana” throughout this opinion.
2
People v King, 291 Mich App 503; 804 NW2d 911 (2011).
3
People v Kolanek, 291 Mich App 227; 804 NW2d 870 (2011).

2
timely physician’s statement under § 8(a)(1). This was error, and we reverse that portion

of the Court of Appeals’ holding.

I. FACTUAL BACKGROUND

A. PEOPLE v KING

In May 2009, police officers received an anonymous tip that marijuana was

growing in the backyard of defendant Larry King’s home in Owosso, Michigan. The

officers went to the residence and observed, from a neighbor’s driveway, marijuana

plants growing inside a chain-link dog kennel that was wrapped on three sides with a

plastic tarp. The officers then spoke with King, who showed them his “registry

identification card” for medical use of marijuana that had been issued April 20, 2009.

The officers asked to see the marijuana plants, and King consented. Using a key, he

unlocked the padlock on the kennel. Inside the kennel were six marijuana plants. The

kennel was six feet tall, was not anchored to the ground, and was open on top.

The officers then obtained a search warrant for King’s home. Inside, the officers

discovered six marijuana plants in his living-room closet, which did not have a lock on it.

The back door to the home also lacked a lock. In addition to the live plants, the officers

also found processed marijuana in two prescription bottles; several plastic bags

containing marijuana stalks, buds, and leaves; two additional dead marijuana plants; and

a food dehydrator.

3
 King was arrested and charged with one count of manufacturing marijuana.4 At

the preliminary examination in the district court, he moved to dismiss the charge under

§ 8 of the MMMA.5 The court denied King’s motion and bound him over on the charge.6

King renewed his motion to dismiss in the circuit court, again asserting that he had

established the elements of the affirmative defense under § 8. The prosecutor responded

that because King had failed to comply with § 4(a) by not keeping his marijuana in an

“enclosed, locked facility,” King could not establish the elements of the affirmative

defense under § 8. The circuit court disagreed with the prosecutor that King was not in

compliance with § 4(a), ruling instead that King had satisfied the requirements of § 4

because he was a qualifying patient with a valid registry identification card; possessed no

more than 12 plants in an enclosed, locked facility; and was entitled to the presumption

that he was engaged in the medical use of marijuana. The circuit court further reasoned

that King, in accordance with § 8, had obtained a valid physician’s statement, possessed a

reasonably necessary amount of marijuana consistently with § 4, and was engaged in the

use and possession of marijuana to treat a serious medical condition. The circuit court

4
MCL 333.7401(2)(d)(iii).
5
Although King had a valid registry card, he never asserted that he was entitled to
immunity under § 4 of the MMMA.
6
The district court did not hold an evidentiary hearing on King’s motion to dismiss.
Rather, the court denied the motion on the basis that the evidence supported binding King
over on the charge.

4
therefore ruled that King’s use of marijuana was “in accordance with [the MMMA]”7 and

that King was entitled to dismissal of the charge under § 8.8

The Court of Appeals reversed. The Court of Appeals held that the “express

reference” in § 8 “to § 7 [MCL 333.26427] and the statement in § 7(a) that medical use of

marijuana must be carried out in accordance with the provisions of the MMMA require

[King] to comply with the provisions of § 4 concerning growing marijuana.”9 Applying

its interpretation of the statute, the Court of Appeals concluded that because King had

failed to keep the plants in an “‘enclosed, locked facility,’” he had not complied with

§ 4(a). As a consequence, the Court held that he also failed to meet the requirements for

the affirmative defense in § 8.10 The Court of Appeals reversed the circuit court and

remanded for further proceedings.

We granted leave to consider, in relevant part, “whether the language ‘[e]xcept as

provided in section 7’ 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).”11

7
See MCL 333.26427(a).
8
The circuit court reached this conclusion without holding an evidentiary hearing on
King’s motion to dismiss under § 8.
9
King, 291 Mich App at 510.
10
Id. at 514, quoting MCL 333.26424(a).
11
People v King, 489 Mich 957 (2011). Our grant order in King contained several other
issues. However, because resolution of those questions is not necessary to the disposition
of King’s appeal, we have limited our consideration to the issue stated above.

5
 B. PEOPLE v KOLANEK

On April 6, 2009, police arrested defendant Alexander Kolanek for the possession

of eight marijuana cigarettes. Kolanek did not have a registry identification card at the

time of his arrest. The next day, the prosecution charged Kolanek with possession of

marijuana.12

Six days later, on April 12, 2009, Kolanek requested that his physician of nine

years, Dr. Ray Breitenbach, authorize his medical use of marijuana to treat chronic severe

pain and nausea caused by Lyme disease. Breitenbach complied with this request on the

basis of his professional opinion that Kolanek would receive a therapeutic benefit from

using marijuana. The same day, Kolanek applied for a registry identification card. The

Michigan Department of Community Health issued him a card two weeks later on May 1,

2009.

On June 9, 2009, Kolanek moved to dismiss the criminal charge pending against

him, asserting the affirmative defense in § 8 of the MMMA. The district court held an

evidentiary hearing on the motion, at which Breitenbach testified that Kolanek would

have been eligible for the medical use of marijuana on the date of his arrest. However,

despite having discussed Kolanek’s potential medical use of marijuana on July 14, 2008,

before the enactment of the MMMA, Breitenbach testified that he did not provide

Kolanek with authorization to use marijuana until April 12, 2009, six days after the date

of Kolanek’s arrest.13

12
MCL 333.7403(2)(d).
13
Kolanek testified that he mentioned the upcoming vote on the medical use of marijuana
during an appointment with Breitenbach on July 14, 2008. According to Kolanek’s

6
 The district court rejected the prosecutor’s argument that Kolanek must have had a

valid registry identification card to assert a § 8 defense, but nonetheless denied Kolanek’s

motion to dismiss. The court reasoned that the language “has stated” in § 8(a)(1)

contemplates a physician’s statement made before commission of the offense. Because

Kolanek had not obtained such a statement, the court concluded that Kolanek had failed

to meet his burden under § 8.

Kolanek appealed in the circuit court, which reversed the district court’s ruling. In

the circuit court’s view, the district court’s interpretation of § 8(a)(1) was erroneous.

Section 8(a)(1), according to the circuit court, “does not require the physician have stated

[sic] this before the defendant’s arrest. It merely requires that the physician has stated it.

In this case, the physician stated it at the hearing.”

The Court of Appeals reversed the circuit court. Like the district court, the panel

rejected the prosecution’s argument that Kolanek had to meet the registry-card

requirement of § 4 in order to assert a valid defense under § 8.14 The Court of Appeals

also concluded that Kolanek had not produced sufficient evidence of the § 8 affirmative

defense.15 The Court of Appeals reasoned, like the district court, that the phrase “has

stated” in § 8(a)(1) contemplates a physician’s statement made after enactment of the

MMMA but before the offense occurs.16 It reversed the circuit court’s decision and

testimony, Breitenbach responded that if it was legalized, he would support Kolanek in
using it.
14
Kolanek, 291 Mich App at 233.
15
Id. at 241.
16
Id. at 235, 240-241.

7
remanded for reinstatement of the charge.17 In doing so, the Court provided directions on

remand:

Because the statute does not provide that the failure to bring, or to
win, a pretrial motion to dismiss deprives the defendant of the statutory
defense before the factfinder, [Kolanek’s] failure to provide sufficient
proofs pursuant to his motion to dismiss does not bar him from asserting
the § 8 defense at trial or from submitting additional proofs in support of
the defense at that time.[18]

We granted Kolanek’s application for leave to appeal to consider “whether, in

order to have a valid affirmative defense for the medical use of marijuana under MCL

333.26428(a)(1), a defendant must obtain the required physician’s statement after the

date of enactment of the [MMMA], but before the date of the defendant’s arrest.”19 We

also granted the prosecution’s application for leave to appeal to consider “whether a

defendant may assert the affirmative defense under MCL 333.26428(a) as a defense at

trial after a court has denied the defendant’s motion to dismiss under MCL 333.26428(b)”

and also the issue raised in King regarding whether a defendant must satisfy § 4 to have a

valid § 8 defense.20

17
Id. at 241.
18
Id. at 241-242.
19
People v Kolanek, 489 Mich 956 (2011) (Docket No. 142695).
20
People v Kolanek, 489 Mich 956, 956-957 (2011) (Docket No. 142712). Our grant
order also requested the parties to brief “whether a defendant is eligible to assert the
affirmative defense of medical use of marijuana under MCL 333.26428(a) without first
obtaining a valid “registry identification card[.]” Id. at 956. However, because all the
parties concede that unregistered patients and persons can assert the affirmative defense
under § 8, we do not separately address this issue at length.

8
 II. STANDARD OF REVIEW

These cases present issues of statutory interpretation. We review questions of

statutory interpretation de novo.21

III. ANALYSIS

A. THE MICHIGAN MEDICAL MARIHUANA ACT

The MMMA was proposed in a citizen’s initiative petition, was elector-approved

in November 2008, and became effective December 4, 2008.22 The purpose of the

MMMA is to allow a limited class of individuals the medical use of marijuana, and the

act declares this purpose to be an “effort for the health and welfare of [Michigan]

21
People v Feezel, 486 Mich 184, 205; 783 NW2d 67 (2010).
22
Const 1963, art 2, § 9 reserves to the people of Michigan the power to enact laws by
initiative. The ballot proposal at the November 2008 election, Proposal 08-1, explained
to voters that the MMMA would:

• Permit physician approved use of marijuana 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 marijuana for
qualifying patients in an enclosed, locked facility.

• Require Department of Community Health to establish an identification
card system for patients qualified to use marijuana and individuals qualified
to grow marijuana.

• Permit registered and unregistered patients and primary caregivers to
assert medical reasons for using marijuana as a defense to any prosecution
involving marijuana.

9
citizens.”23 To meet this end, the MMMA defines the parameters of legal medical-

marijuana use, promulgates a scheme for regulating registered patient use and

administering the act, and provides for an affirmative defense, as well as penalties for

violating the MMMA.

The MMMA does not create a general right for individuals to use and possess

marijuana in Michigan. Possession, manufacture, and delivery of marijuana remain

punishable offenses under Michigan law.24 Rather, the MMMA’s protections are limited

to individuals suffering from serious or debilitating medical conditions or symptoms, to

the extent that the individuals’ marijuana use “is carried out in accordance with the

provisions of [the MMMA].”25

The cases before us involve two sections of the MMMA that provide separate

protections from prosecution for offenses involving marijuana. The first, § 4, MCL

333.26424, grants “qualifying patient[s]” 26 who hold “registry identification card[s]”27

23
MCL 333.26422(c).
24
See MCL 333.7403(2)(d) (making possession of marijuana a misdemeanor); MCL
333.7401(2)(d) (making the manufacture or delivery of marijuana or the possession of
marijuana with intent to deliver it a felony). Marijuana remains a schedule 1 substance in
Michigan’s Public Health Code, MCL 333.7212(1)(c), and medical use of marijuana is
not recognized as a legal activity at the federal level. The MMMA acknowledges that
federal law continues to prohibit marijuana use, but justifies allowing limited marijuana
use on the grounds that research suggests that marijuana has beneficial medical uses, the
majority of marijuana prosecutions are made under state law, and states are not required
to enforce federal laws. MCL 333.26422.
25
MCL 333.26427(a).
26
The MMMA defines “qualifying patient” as “a person who has been diagnosed by a
physician as having a debilitating medical condition.” MCL 333.26423(h). “Debilitating
medical condition” means one or more of the following:

10
broad immunity from criminal prosecution, civil penalties, and disciplinary actions, and

provides in part:

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[28]
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.

(1) Cancer, glaucoma, positive status for human immunodeficiency
virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic
lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail
patella, or the treatment of these conditions.

(2) A chronic or debilitating disease or medical condition or its
treatment that produces 1 or more of the following: cachexia or wasting
syndrome; severe and chronic pain; severe nausea; seizures, including but
not limited to those characteristic of epilepsy; or severe and persistent
muscle spasms, including but not limited to those characteristic of multiple
sclerosis.

(3) Any other medical condition or its treatment approved by the
[Department of Community Health], as provided for in [MCL
333.26425(a)]. [MCL 333.26423(a).]
27
“Registry identification card” is defined as “a document issued by the [Department of
Community Health] that identifies a person as a registered qualifying patient or registered
primary caregiver.” MCL 333.26423(i).
28
The MMMA defines “medical use” to mean “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.” MCL 333.26423(e).

11
 Any incidental amount of seeds, stalks, and unusable roots shall also be
allowed under state law and shall not be included in this amount.[29]

The second provision, § 8, MCL 333.26428, applies to “patients” generally, provides an

affirmative defense to charges involving marijuana for its medical use, and states in

relevant part:

(a) Except as provided in [MCL 333.26427], 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:

(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,[30] 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

29
MCL 333.26424(a).
30
Although the MMMA does not define “bona fide physician-patient relationship,” a
joint statement by the Michigan Board of Medicine and the Michigan Board of
Osteopathic Medicine and Surgery advises that this term envisions “a pre-existing and
ongoing relationship with the patient as a treating physician.” Statement of the Board of
Medicine and Board of Osteopathic Medicine and Surgery Regarding Certification for
Medical Use of Marihuana by Michigan Physicians
(accessed May 25, 2012).

12
 (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 for 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).

(c) If a patient or a patient’s primary caregiver demonstrates the
patient’s medical purpose for using marihuana pursuant to this section, the
patient and the patient’s primary caregiver shall not be subject to the
following for the patient’s medical use of marihuana:

(1) disciplinary action by a business or occupational or professional
licensing board or bureau; or

(2) forfeiture of any interest in or right to property.

Our consideration of the availability of the affirmative defense in § 8 and the

immunity conferred under § 4 is guided by the traditional principles of statutory

construction. However, because the MMMA was the result of a voter initiative, our goal

is to ascertain and give effect to the intent of the electorate, rather than the Legislature, as

reflected in the language of the law itself.31 We must give the words of the MMMA their

ordinary and plain meaning as would have been understood by the electorate.32

31
Cf. Feezel, 486 Mich at 205; Schmidt v Dep’t of Ed, 441 Mich 236, 241-242; 490
NW2d 584 (1992). Laws enacted by the people, rather than the Legislature, have the
same force and effect and are on equal footing. Advisory Opinion on Constitutionality of
1982 PA 47, 418 Mich 49, 66; 340 NW2d 817 (1983).
32
See People v Barbee, 470 Mich 283, 286; 681 NW2d 348 (2004).

13
 Clearly, § 4 applies only to “qualifying patients” who have obtained registry cards.

Under this section, those patients are provided broad immunity from “arrest, prosecution,

or penalty in any manner” and protection from the denial of “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,” provided that these patients

possess not more than 2.5 ounces of usable marijuana and 12 marijuana plants kept in “an

enclosed, locked facility.”33 Additional protections in § 4 prohibit the denial of custody

or visitation with a minor based on the medical use of marijuana in accordance with the

MMMA34 and provide a presumption that registered cardholders possessing an

appropriate amount of marijuana are engaged in the medical use of marijuana.35

Comparatively, § 8 provides an affirmative defense to “patients” or “a person”

generally.36 As the prosecution in both cases concedes, the language of § 8 permits those

individuals who are not registered cardholding patients to assert the § 8 affirmative

defense.37 Under § 8, a patient in any criminal prosecution involving marijuana may

33
MCL 333.26424(a).
34
MCL 333.26424(c).
35
MCL 333.26424(d).
36
All the parties concede that § 8 is, in fact, an affirmative defense, and we agree with
this characterization. As we have explained, an affirmative defense “‘admits the doing of
the act charged, but seeks to justify, excuse, or mitigate it . . . .’ It does not ‘negate
selected elements or facts of the crime.’” People v Lemons, 454 Mich 234, 246 n 15; 562
NW2d 447 (1997) (citations omitted).
37
Not only does the textual language of the MMMA support this conclusion, but so does
the text of the ballot proposal, which stated in part that the proposed law would “[p]ermit

14
establish an affirmative defense requiring dismissal of the charges if the patient can

establish 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,” (2) the patient did not possess an amount of marijuana that was more than

“reasonably necessary” for this purpose, and (3) the patient’s use was “to treat or

alleviate the patient’s serious or debilitating medical condition or symptoms . . . .”38 The

protections afforded a patient under § 8 are much less broad than those provided under

§ 4 and extend only to prosecutions involving marijuana, disciplinary actions by a

business or occupational or professional licensing board or bureau, and forfeiture of any

interest in or right to property.

B. REQUIREMENTS OF THE § 8 AFFIRMATIVE DEFENSE

The facts of King and Kolanek require us to consider whether a defendant must

satisfy the requirements of § 4 in order to have a valid defense under § 8. The

prosecution argues that the language “except as provided by section 7” in § 8(a)

incorporates the requirements of § 4, so that a defendant must establish under § 8 that he

did not possess more than 2.5 ounces of usable marijuana and did not possess more than

12 plants contained in an “enclosed, locked facility.”

registered and unregistered patients and primary caregivers to assert medical reasons for
using marijuana as a defense to any prosecution involving marijuana.”
38
MCL 333.26428(a)(1) through (3).

15
 The relevant language of § 8 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 . . . .”39 Section 7

provides a list of places where and situations in which the MMMA prohibits a person

from using or possessing marijuana. Specifically, it states, in relevant part:

(a) The 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.

(b) This act shall not permit any person to do any of the following:

(1) Undertake any task under the influence of marihuana, when
doing so would constitute negligence or professional malpractice.

(2) Possess marihuana, or otherwise engage in the medical use of
marihuana:

(A) in a school bus;

(B) on the grounds of any preschool or primary or secondary school;
or

(C) in any correctional facility.

(3) Smoke marihuana:

(A) on any form of public transportation; or

(B) in any public place.

(4) Operate, navigate, or be in actual physical control of any motor
vehicle, aircraft, or motorboat while under the influence of marihuana.

(5) Use marihuana if that person does not have a serious or
debilitating medical condition.[40]

39
MCL 333.26428(a) (emphasis added).
40
MCL 333.26427 (emphasis added).

16
Reading §§ 7 and 8 together, it is clear that even if a defendant can establish the elements

of the affirmative defense under § 8, the defendant will not be entitled to dismissal under

§ 8 if the possession or medical use of marijuana at issue was in a manner or place

prohibited under § 7(b).

Under the Court of Appeals’ construction, which the prosecution urges that we

adopt, the phrase “in accordance with the provisions of this act” in § 7(a) requires a

defendant to satisfy all the requirements of § 4 in order to establish the § 8 affirmative

defense. Principles of statutory construction, however, do not support this conclusion.

Nowhere does § 8 state that a defendant must also establish the requirements of § 4 in

order to present a valid affirmative defense under § 8. Precisely because such a

requirement is lacking, assertion of the § 8 defense without establishment of the § 4

requirements is “in accordance with the provisions of [the MMMA].”

The textual distinctions among §§ 4, 7(a), and 8 provide further support for our

interpretation that the plain language of § 8 does not require compliance with the

requirements of § 4. Sections 4 and 8 provide separate and distinct protections and

require different showings, while § 7(a), by its plain terms, does not incorporate § 4 into

§ 8.41 Both §§ 4 and 7(a) refer to the “medical use” of marijuana, which the MMMA

41
The Court of Appeals recognized this distinction in People v Redden, 290 Mich App
65, 81; 799 NW2d 184 (2010), in which the Court rejected the same argument that the
prosecution raises here:

[T]his position ignores that the MMMA provides two ways in which
to show legal use of marijuana for medical purposes in accordance 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.

17
specifically defines as the use of marijuana “to treat or alleviate a registered qualifying

patient’s debilitating medical condition or symptoms associated with the debilitating

medical condition.”42 Comparatively, § 8 refers primarily to the “medical purpose” of

marijuana and refers only to “patients,” not “registered qualifying patient[s].”43 Thus,

§§ 4 and 7(a) have no bearing on the requirements of § 8, and the requirements of § 4

cannot logically be imported into the requirements of § 8 by means of § 7(a).

Further, in both cases, the prosecution concedes that the § 8 affirmative defense is

available to unregistered patients. There is simply no principled basis on which to

conclude that a defendant asserting a § 8 affirmative defense must meet some of the § 4

requisites, but not others, i.e., the registry card requirement. Moreover, if § 8 required a

defendant to establish all the requirements of § 4, then unregistered patients would never

be eligible for the affirmative defense under § 8. The result would be to effectively

abolish the differing protections extended to registered and unregistered patients. This

* * *

[A]dherence to § 4 provides protection that differs from that of § 8.
Because of the differing levels of protection in §§ 4 and 8, the plain
language of the statute establishes that § 8 is applicable for a patient who
does not satisfy § 4.
42
MCL 333.26423(e) (emphasis added).
43
Section 4 further refers to requirements applicable only to registered patients. The
term “enclosed, locked facility” used in § 4(a) is defined 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.” MCL 333.26423(c)
(emphasis added). It would make no sense to import this requirement into § 8 given that
unregistered patients could never meet the definition of maintaining “an enclosed, locked
facility” because they are not registered qualifying patients.

18
interpretation is internally inconsistent, renders the affirmative defense in § 8 a nullity,

and is contrary to the electors’ intent to permit both registered and unregistered patients

to assert medical reasons for using marijuana as a defense to any prosecution involving

marijuana.

We also reject the argument that § 8 must incorporate § 4 because otherwise

unregistered patients could possess more than 2.5 ounces of usable marijuana and keep

more than 12 marijuana plants outside an enclosed locked facility while registered users

cannot do so in an enclosed locked facility. The prosecution asserts that this result

affords unregistered patients more protection under the MMMA than registered patients.

This assertion is false and premised on a basic misunderstanding of how the differing

protections of § 4 and § 8 operate. The stricter requirements of § 4 are intended to

encourage patients to register with the state and comply with the act in order to avoid

arrest and the initiation of charges and obtain protection for other rights and privileges. If

registered patients choose not to abide by the stricter requirements of § 4, they will not be

able to claim this broad immunity, but will be forced to assert the affirmative defense

under § 8, just like unregistered patients.44 In that instance, registered patients will be

entitled to the same lower level of protection provided to unregistered patients under § 8.

This result is not absurd, but is the consequence of the incentives created by the wider

protections of § 4.

Accordingly, we hold that to establish the elements of the affirmative defense in

§ 8, a defendant need not establish the elements of § 4. Any defendant, regardless of

44
See Redden, 290 Mich App at 81.

19
registration status, who possesses more than 2.5 ounces of usable marijuana or 12 plants

not kept in an enclosed, locked facility may satisfy the affirmative defense under § 8. As

long as the defendant can establish the elements of the § 8 defense and none of the

circumstances in § 7(b) exists, that defendant is entitled to the dismissal of criminal

charges.

Consequently, we reverse the Court of Appeals in King because it held that a

defendant asserting a § 8 defense must also meet all the requirements of § 4. King, who

had a valid patient registry card, may move for dismissal under § 8 and is not required to

establish the immunity requirements of § 4 in order to satisfy the requirements of the § 8

affirmative defense.45 Similarly, Kolanek, who did not have a patient registry card at the

time of the offense, is likewise entitled to move for dismissal under § 8 and does not have

to establish the requirements of § 4 to be entitled to dismissal under § 8. The Court of

Appeals in Kolanek reached this same conclusion, and we therefore affirm the Court of

Appeals in this regard.

C. TIMELINESS OF PHYSICIAN’S STATEMENT UNDER § 8(a)(1)

The facts of Kolanek require us to determine when a physician must provide a

statement that a defendant is likely to receive therapeutic or palliative benefit from the

45
Because we have concluded that a defendant need not establish the requirements of § 4
in order to satisfy the elements of the § 8 affirmative defense, we need not address the
Court of Appeals’ holding that Kolanek did not satisfy the “enclosed, locked facility”
requirement of § 4. However, to provide some guidance, we note that courts considering
whether a defendant’s plants were kept in an “enclosed, locked facility” should focus on
whether the security device functions to “permit access only by a registered primary
caregiver or registered qualifying patient.” MCL 333.26423(c) (emphasis added).

20
medical use of marijuana under § 8(a)(1) in order for the defendant to assert the

affirmative defense. This inquiry requires us to answer two related questions: whether

the MMMA applies retroactively, so that a defendant may have a viable defense based on

a physician’s statement made before the MMMA’s effective date, and whether a

physician’s statement made after commission of the offense, but after enactment of the

MMMA, satisfies § 8(a)(1).

1. PRE-MMMA PHYSICIAN’S STATEMENTS

With regard to the first question, Kolanek argues that the MMMA applies

retroactively and that he therefore has a viable affirmative defense based on his

physician’s statements made five months before enactment of the MMMA. In

determining whether a statute adopted by initiative applies retroactively, the intent of the

electors governs.46 Generally, “‘statutes are presumed to operate prospectively unless the

contrary intent is clearly manifested.’”47 However, statutes that “operate in furtherance

of a remedy or mode of procedure” and that “neither create new rights nor destroy,

enlarge, or diminish existing rights are generally held to operate retrospectively” absent a

contrary legislative intent.48

We agree with the Court of Appeals that § 8 creates an affirmative defense that did

not previously exist for patients with serious medical conditions who are facing

46
Cf. Brewer v A D Transp Express, Inc, 486 Mich 50, 55-56; 782 NW2d 475 (2010).
47
Franks v White Pine Copper Div, 422 Mich 636, 671; 375 NW2d 715 (1985), quoting
Selk v Detroit Plastic Prod, 419 Mich 1; 345 NW2d 184 (1984).
48
Franks, 422 Mich at 672.

21
prosecution for possession of marijuana. This defense is a new substantive right

available to some defendants.49 Section 8 cannot be fairly described as a mere correction

to an oversight in the law. Absent from the MMMA is any specific indication that the act

is to be applied retrospectively.50 Therefore, the presumption of prospective application

controls. Accordingly, we conclude that the MMMA does not apply retroactively and

only has prospective effect.

Consequently, it would make no sense to permit Kolanek to rely on a physician’s

statement made before the MMMA’s enactment. At the time of the July 2008

conversation between Kolanek and his physician, state law prohibited the medical use of

marijuana, and Breitenbach’s speculative statements at that time could not have formed

the basis of an affirmative defense. Because the MMMA does not apply retroactively,

those pre-MMMA statements are legally inoperative in the present prosecution. Pre-

MMMA physician’s statements, which could not have been used to insulate a defendant

from criminal prosecution before enactment of the MMMA, are not somehow

transformed to protect a defendant after enactment of the MMMA. Because the MMMA

does not apply retroactively, we hold that physician’s statements made before its

enactment cannot satisfy § 8(a)(1).

49
Kolanek, 291 Mich App at 240-241, discussing People v Campbell, 289 Mich App 533,
536; 798 NW2d 514 (2010) (reaching the same conclusion).
50
See Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 584; 624 NW2d
180 (2001) (explaining that the Legislature can make clear its intent for a statute to apply
retroactively by explicitly so stating).

22
 2. POSTOFFENSE PHYSICIAN’S STATEMENTS

Kolanek also argues that the physician’s statement he obtained six days after

committing the offense satisfied the requirements of § 8(a)(1) because that provision

merely requires that a physician “has stated” at some point in time that the patient has a

medical need for marijuana. When subdivisions (1) through (3) are read together, it

becomes clear that the physician’s statement must necessarily have occurred before the

commission of the offense if it is to be used as the basis for a § 8 defense.

As noted, § 8(a) provides in relevant part:

(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 . . . [was] . . . 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 . . . ; and

(3) The patient . . . [was] engaged in the . . . possession . . . 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.[51]

Beginning with § 8(a)(1), the term “has stated” is in the present perfect tense,

which “indicates action that was started in the past and has recently been completed or is

51
MCL 333.26428(a) (emphasis added).

23
continuing up to the present time.”52 In People v Stewart,53 we considered the temporal

limits of another present-perfect-tense term, “has cooperated,” and concluded it meant

that a defendant’s cooperation must have occurred sometime before the defendant applied

for parole. Similarly, the term “has stated” indicates that the physician’s statement must

have been made sometime before a defendant filed the motion to dismiss under § 8 but

not necessarily before commission of the offense.

Other language of § 8(a)(1), however, indicates that the statement must in fact

have been made even before the patient began using marijuana for the defense to apply.

Reading the term “has stated” in conjunction with the language in the same sentence “is

likely to receive [benefit from the medical use of marijuana]” indicates a future event that

will occur after the physician’s statement. Stated differently, § 8(a)(1) contemplates that

a patient will not start using marijuana for medical purposes until after the physician has

provided a statement of approval. It necessarily follows that any marijuana use before

the physician’s statement was not for medical purposes.

The language of § 8(a)(2) and (3) supports this conclusion. Section 8(a)(2)

requires a patient to establish that he or she had a “reasonably necessary” quantity of

marijuana “for the purpose of treating or alleviating the patient’s serious or debilitating

medical condition or symptoms . . . .” Similarly, § 8(a)(3) requires a showing that the

patient possessed the marijuana “to treat or alleviate the patient’s serious or debilitating

52
Sabin, The Gregg Reference Manual (11th ed) (New York: Glenco McGraw-Hill,
2011), p 314.
53
People v Stewart, 472 Mich 624, 631-632; 698 NW2d 340 (2005).

24
medical condition or symptoms . . . .” Both provisions presuppose a physician’s prior

diagnosis of a serious or debilitating medical condition or symptoms before a patient may

treat the condition with marijuana. Consequently, reading these provisions together, it is

clear that the physician’s statement under § 8(a)(1) must have been made before a patient

began using marijuana for medical purposes. Thus, we hold that in order to satisfy the

requirements of § 8(a)(1), a defendant must establish that the physician’s statement was

made before the commission of the offense.54

This interpretation makes sense in light of the laws criminalizing possession,

manufacture, and delivery of marijuana and the fact that the MMMA allows such charges

to be dismissed under certain circumstances. A reasonable inference to be drawn from

the MMMA’s provisions allowing the medical use of marijuana is that § 8 is intended to

protect those individuals who believe they have a genuine medical need for marijuana

that has been recognized by a physician, but for whatever reason have not obtained a

registry card. It would be illogical to extend this protection to individuals who have not

obtained a physician’s recognition of their medical need because the MMMA provides no

protections to such individuals. An after-the-fact exception to criminal liability would

encourage individuals to engage in self-medication or criminal activity on the basis of the

possibility that if prosecuted they could then obtain a doctor’s approval postoffense and

avoid criminal charges.55 Because the MMMA was not intended to legitimize illegal

54
See also People v Reed, 294 Mich App 78; __ NW2d __ (2011) (holding the same).
55
The Court of Appeals in Reed, 294 Mich App at 84, recognized the nonsensical result
if § 8(a)(1) could be satisfied by a postoffense physician’s statement:

25
marijuana use, it makes sense to require that a defendant obtain a physician’s statement

authorizing the medical use of marijuana before the defendant actually uses marijuana for

that purpose.56

In Kolanek, neither the postarrest physician’s statements nor the physician’s

statements made before the enactment of the MMMA satisfy, as a matter of law, the

requirement under § 8(a)(1). Thus, Kolanek, although entitled to raise the § 8 defense in

a motion for an evidentiary hearing, failed to establish at that hearing the requirements of

the § 8 affirmative defense and he cannot now, for reasons we will explain, present the

defense to the jury.

D. RAISING THE § 8 AFFIRMATIVE DEFENSE

The facts of Kolanek also require us to consider whether a defendant may reassert

the defense at trial after the circuit court has denied the defendant’s motion to dismiss

It would be absurd if it were possible to assert the § 8 affirmative
defense by obtaining a physician’s statement after the crime had been
committed but before an arrest has been made. The law would provide less
incentive to obtain a qualifying physician’s statement if it were construed in
the manner defendant suggests.
56
In this regard, the Court of Appeals in Kolanek recognized:

The law generally denies defendants the ability to excuse a criminal
violation postarrest. Thus, defendants cannot escape prosecution for a
violation of the concealed weapon statute by seeking a permit after arrest,
or escape prosecution for violations of the controlled substances act by
seeking a prescription for the substance from a physician after arrest.
Furthermore, the very fact that the law creates the ability to legitimately
have a defense to certain actions that would otherwise be illegal indicates
that persons must fulfill those requirements prior to any arrest. Otherwise,
there would be no incentive for anyone to spend their time and money to go
through the process . . . . [Kolanek, 291 Mich App at 238-239.]

26
under § 8. As we have explained, the medical use of marijuana is a statutorily created

affirmative defense. Section 8(a) provides that a patient or person may assert this defense

in “any prosecution involving marihuana” and that the defense “shall be presumed valid”

if its elements can be established.57 Section 8(b) provides that a person “may assert [this

defense] 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).”58 This

scheme makes clear that the burden of proof rests with the defendant, that the defendant

“may” move to dismiss the charges by asserting the defense in a motion to dismiss, and

that dismissal “shall” follow an evidentiary hearing. This last requirement is significant

because it indicates that the § 8 defense cannot be asserted for the first time at trial, but

must be raised in a pretrial motion for an evidentiary hearing.

A trial judge considering such a motion must be guided by well-established

principles of criminal procedure. Questions of fact are the province of the jury, while

question of law are reserved to the courts.59 Judges presiding over criminal trials

regularly separate legal questions from factual ones, leaving to the jury those issues

requiring factual resolution and pertaining to the credibility of witnesses and weight of

the evidence. Trial judges undertake this same inquiry with respect to the defenses that a

defendant raises. If, for example, a defendant raises a defense but fails to present

57
MCL 333.26428(a).
58
MCL 333.26428(b) (emphasis added).
59
See Hamilton v People, 29 Mich 173 (1874); People v Mortimer, 48 Mich 37; 11 NW
776 (1882); People v Waldvogel, 49 Mich 337; 13 NW 620 (1882).

27
evidence from which a reasonable jury could conclude that the elements of the defense

have been met, then the defendant is not entitled to the defense instruction and the jury is

precluded from considering the defense.60 Conversely, if a defendant produces sufficient

evidence of the elements of the defense, then the question whether defendant has asserted

a valid defense is for the jury to decide.61

Thus, if a defendant raises a § 8 defense, there are no material questions of fact,

and the defendant “shows the elements listed in subsection (a),”62 then the defendant is

entitled to dismissal of the charges following the evidentiary hearing. Alternatively, if a

defendant establishes a prima facie case for this affirmative defense by presenting

evidence on all the elements listed in subsection (a) but material questions of fact exist,

then dismissal of the charges is not appropriate and the defense must be submitted to the

jury.63 Conflicting evidence, for example, may be produced regarding the existence of a

60
See, e.g., United States v Bailey, 444 US 394, 415; 100 S Ct 624; 62 L Ed 2d 575
(1980) (holding that a criminal defendant must produce evidence of all the elements of an
affirmative defense to be entitled to an instruction on that defense theory); Lemons, 454
Mich at 248 (“‘Unless a defendant submits sufficient evidence to warrant a finding of
[the common-law affirmative defense of] duress, the trial court is not required to instruct
the jury on that defense.’”) (citation omitted); People v Mills, 450 Mich 61, 81; 537
NW2d 909 (1995) (“A trial court is required to give a requested instruction [for a defense
theory], except where the theory is not supported by evidence.”).
61
See People v Dupree, 486 Mich 693, 712; 788 NW2d 399 (2010) (holding that a
defendant who had produced sufficient prima facie evidence of the affirmative defense of
self-defense was entitled to the defense instruction).
62
MCL 333.26428(b).
63
The Court of Appeals has reached the same conclusion in a number of MMMA cases.
See, e.g., Redden, 290 Mich App at 83-85 (ruling that the circuit court improperly acted
as the trier of fact when “colorable issues” remained concerning the defendant’s § 8
defense, which should have been submitted to a jury); People v Anderson, 293 Mich App

28
bona fide doctor-patient relationship or whether the amount of marijuana possessed was

reasonable. Finally, if there are no material questions of fact and the defendant has not

shown the elements listed in subsection (a), the defendant is not entitled to dismissal of

the charges and the defendant cannot assert § 8(a) as a defense at trial. A trial judge must

preclude from the jury’s consideration evidence that is legally insufficient to support the

§ 8 defense because, in this instance, no reasonable juror could conclude that the

defendant satisfied the elements of the defense.64 If the defendant believes that the circuit

court erroneously denied the motion, the defendant’s remedy is to apply for interlocutory

leave to appeal.

In Kolanek, no reasonable jury could have concluded that Kolanek satisfied the

elements of the § 8 affirmative defense. As explained, Kolanek did not meet the

requirements of § 8(a)(1) because he did not obtain a physician’s statement after

enactment of the MMMA and before the commission of his offense. Thus, Kolanek

failed to present evidence supporting the affirmative defense under § 8. Because no

reasonable jury could have concluded that Kolanek is entitled to the defense as a matter

of law, he is precluded from presenting evidence of this defense at trial. To allow

33, 66; 809 NW2d 176 (2011) (M. J. KELLY, J., concurring) (reasoning that determination
by a jury is appropriate if questions of fact exist regarding a defendant’s § 8 defense).
64
See Reed, 294 Mich App at 86 (concluding that “[no] reasonable jury could find that
defendant is entitled to the § 8 defense, and thus defendant is barred from asserting it at
trial”); Anderson, 293 Mich App at 65 (M. J. KELLY, J., concurring) (“[A] trial court may
bar a defendant from presenting evidence and arguing a § 8 defense at trial when, given
the undisputed evidence, no reasonable jury could find that the elements of the § 8
defense had been met.”).

29
submission of the defense to the jury when the defense fails as a matter of law would

unnecessarily burden the jury and the circuit court with irrelevant testimony.65

Accordingly, the Court of Appeals erred by permitting Kolanek a “‘second bite at the

apple’”66 by allowing him to present his defense to the jury despite its conclusion that he

failed to present sufficient evidence that his use of marijuana was for medical purposes

under § 8. We therefore reverse this portion of the Court of Appeals’ judgment.

In King, neither the district court nor the circuit court held an evidentiary hearing

with regard to King’s § 8 motion to dismiss. Because § 8 expressly requires an

evidentiary hearing to obtain dismissal of criminal charges, we remand to the circuit court

for it to hold such a hearing.

IV. CONCLUSION

The plain language of the MMMA does not require that a defendant asserting the

affirmative defense under § 8 also meet the requirements of § 4. Additionally, to meet

the requirements of § 8(a)(1), a defendant must establish that the physician’s statement

occurred after the enactment of the MMMA and before the commission of the offense. If

a circuit court denies a defendant’s motion to dismiss under § 8 and there are no material

questions of fact, then the defendant may not reassert the defense at trial; rather, the

appropriate remedy is to apply for interlocutory leave to appeal. Thus, we reverse the

65
See Bailey, 444 US at 416 (“If . . . an affirmative defense consists of several elements
and testimony supporting one element is insufficient to sustain it even if believed, the
trial court and jury need not be burdened with testimony supporting other elements of the
defense.”).
66
People v D’Angelo, 401 Mich 167, 178; 257 NW2d 655 (1977).

30
Court of Appeals’ judgment in King and remand for an evidentiary hearing so that King

may raise the affirmative defense under § 8. We affirm the Court of Appeals’ judgment

in Kolanek, with the exception of the portion directing the circuit court to allow Kolanek

to reassert the § 8 affirmative defense at trial.

Mary Beth Kelly
Robert P. Young, Jr.
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Brian K. Zahra

31
 APPENDIX

In light of the need for guidance regarding the medical use of marijuana in

Michigan, the following is designed to summarize our numerous holdings in these cases.

1. Section 4 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26424,

provides qualified registered patients broad immunity from “arrest, prosecution, or

penalty in any manner” and protection from the denial of “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 . . . .”

2. To be entitled to the broad immunity of § 4, a qualifying patient with a registry

identification card who has not specified a primary caregiver must possess no more than

2.5 ounces of usable marijuana and 12 marijuana plants, which must be kept in “an

enclosed, locked facility.”

3. Registered patients who do not qualify for immunity under § 4, as well as

unregistered persons, are entitled to assert in a criminal prosecution the affirmative

defense of medical use of marijuana under § 8 of the MMMA, MCL 333.26428.

4. Section 8 of the MMMA provides a limited protection for the use of medical

marijuana in criminal prosecutions, which requires dismissal of the charges if all the

elements of the defense are established.

5. A defendant need not establish the elements of § 4 to have a valid affirmative

defense under § 8.

6. A defendant who moves for the dismissal of criminal charges under § 8 must

raise the defense in a pretrial motion to dismiss and for an evidentiary hearing.

32
 7. A defendant is entitled to the dismissal of criminal charges under § 8 if, at the

evidentiary hearing, the defendant establishes all the elements of the § 8 affirmative

defense, which are (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,” (2) the defendant did not possess an amount of marijuana that

was more than “reasonably necessary for this purpose,” and (3) the defendant’s use was

“to treat or alleviate the patient’s serious or debilitating medical condition or

symptoms . . . .” As long as a defendant can establish these elements, no question of fact

exists regarding these elements, and none of the circumstances in § 7(b), MCL

333.26427(b), exists, then the defendant is entitled to dismissal of the criminal charges.

8. With regard to the physician’s statement required by § 8(a)(1), the defendant

must have obtained the physician’s statement after enactment of the MMMA, but before

the commission of the offense.

9. If a defendant moves for dismissal of criminal charges under § 8 and at the

evidentiary hearing establishes prima facie evidence of all the elements of the § 8

affirmative defense, but material questions of fact exist, then dismissal of the charges is

not appropriate and the defense must be submitted to the jury.

10. If a defendant moves for dismissal of criminal charges under § 8 and at the

evidentiary hearing fails to present evidence from which a reasonable jury could conclude

that the defendant satisfied the elements of the § 8 affirmative defense, and there are no

questions of fact, then the circuit court must deny the motion to dismiss the charges. In

33
this instance, the defendant is not permitted to present the § 8 defense to the jury. Rather,

the defendant’s remedy is to apply for interlocutory leave to appeal.

34