Opinion of the Court

METER, J.

In this case involving the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., defendant Robert Lee Redden and defendant Torey Alison Clark appeal by leave granted a December 10, 2009, circuit court order reversing for each defendant the district court's dismissal of a single count of manufacturing 20 or more but less than 200 marijuana plants, MCL 333.7401(2)(d)(ii). We affirm the circuit court's decision to reinstate the charges.

I. FACTS

This case arose from the execution of a search warrant at defendants' residence in Madison Heights, which resulted in the discovery of approximately 1½ ounces of marijuana and 21 marijuana plants. Officer Kirk Walker and Officer Mark Moine of the Madison Heights Police Department testified that in the evening of March 30, 2009, they arrived at the residence with three other officers to execute a search warrant for the purpose of looking for marijuana and other illegal substances.

Defendants and another unidentified individual were found in the residence and were secured by the officers. The officers found proof of residency for defendants and $531 in cash. The officers also found three bags of marijuana in a bedroom. In addition, they found 21 marijuana plants, which were all between three and four inches tall, on the floor of a closet in the same bedroom. Field tests of these items were positive for marijuana. The officers did not find any scales, small plastic bags, or packaging materials in the residence.

At some point during the search, Redden stated that he was in pain. Defendants also each turned over documents regarding their use of marijuana for medical purposes. The documents, which were dated March 3, 2009, for Redden, and March 4, 2009, for Clark, were admitted into evidence. Each document stated:

The MMMA went into effect on December 4, 2008, but, according to Walker, the state of Michigan did not begin issuing registry identification cards until April 4, 2009. The Michigan Department of Community Health issued medical-marijuana registry identification cards to each defendant on April 20, 2009, but this was after the search in this case took place.

In the course of the preliminary examination, defendants asserted the affirmative defense contained in § 8 of the MMMA, MCL 333.26428.1 In support of the defense, defendants presented testimony from Eric Eisenbud, M.D., who testified that he had attended the University of Colorado's medical school and had been a physician for 37 years. He was licensed to practice in seven states, including Michigan, and was board-certified in ophthalmology. Dr. Eisenbud also had worked in the past as an emergency room practitioner and a family practitioner. At the time of the preliminary examination, Dr. Eisenbud had worked for the past 19 months for The Hemp and Cannabis Foundation (THCF) Medical Clinic. He testified that he is "not from Michigan" and was currently working in six out of the seven states in which he was licensed to practice medicine, although he later suggested that he was working in all seven states.2

Dr. Eisenbud testified that defendants were his patients and that he examined each of them on March 3, 2009, when both were seeking to be permitted to use marijuana under the MMMA. A clinic technician screened defendants before their appointment in a telephone interview and by reviewing their medical records. Dr. Eisenbud met with each defendant for about a half-hour, spending 5 minutes reviewing the medical records and about 10 minutes on the physical examination; he also interviewed them. During their 10-minute physical examinations, Dr. Eisenbud examined both defendants' general appearance and skin, listened to their lungs, examined their abdomens, examined their heads and necks, did a neurological and cardiovascular assessment, and assessed their mental health.

Dr. Eisenbud testified that he signed the authorization for each defendant in his professional capacity because each qualified under the MMMA and each would benefit medically from using marijuana. He opined that his relationship with each defendant was a bona fide physician-patient relationship because he interviewed defendants, examined them, and looked at their medical records in order to gain a full understanding of their medical problems. Dr. Eisenbud acknowledged that the THCF Medical Clinic did not require patients to bring their complete medical records. The records from Redden were from two years before his examination by Dr. Eisenbud, and Clark's records were from a year before her examination by Dr. Eisenbud.

Regarding Redden, Dr. Eisenbud concluded that he had a debilitating condition that caused pain, satisfying the MMMA's requirements. Regarding Clark, Dr. Eisenbud concluded from her medical records and interviewing her that she suffered from nausea. Dr. Eisenbud did not testify regarding what caused Redden's pain or Clark's nausea. Dr. Eisenbud only examined each defendant once. He viewed the only risk of defendants' using marijuana as related to driving; he indicated that they should not drive within four hours of using it.

Dr. Eisenbud testified that defendants had not consulted with any other doctors regarding medical-marijuana authorization before their appointments with him. According to Dr. Eisenbud, both defendants were using other narcotics for their conditions, and he opined that access to marijuana would give them the opportunity to wean themselves off of those narcotics.

The parties stipulated that Redden had two previous convictions for possession of marijuana with intent to distribute.

During the preliminary examination, the prosecution argued that defendants were not entitled to assert the affirmative defense from § 8 of the MMMA because neither had a registry identification card at the time of the offense as required by § 4(a) of the MMMA, MCL 333.26424(a).3 The prosecution acknowledged that defendants could not have obtained a card previously because the state had yet to begin issuing them. However, the prosecution contended that defendants were required to abstain from marijuana use until they were able to obtain a card. Defendants argued that the plain language of § 8 of the MMMA did not require possession of a card.

The prosecution argued that under the probable-cause standard, the evidence showed that defendants were engaged in manufacturing marijuana. The prosecution contended that defendants had failed to comply with § 8 of the MMMA because they had not shown a bona fide patient-physician relationship with Dr. Eisenbud and also had failed to establish that they possessed an amount of marijuana that was not more than was reasonably necessary to ensure uninterrupted availability for the purpose of treating their conditions. Defendants argued that they met the requirements of § 8 because each had a signed authorization from a licensed physician with whom he or she had a bona fide physician-patient relationship and who concluded that each had conditions covered under the MMMA. Defendants also argued that the amount of marijuana was reasonably necessary.

II. LOWER-COURT RULINGS

The district court noted that the MMMA "is probably one of the worst pieces of legislation I've ever seen in my life" and went on to state:

The district court also noted that although Dr. Eisenbud testified regarding defendants' legitimate need to use marijuana for medical purposes, there was no testimony regarding what was a reasonably necessary amount for defendants to possess. The district court concluded that it would simply apply the amount of 2.5 ounces and 12 plants set by § 4 as what was reasonably necessary, and it granted defendants' motion to dismiss, explaining:

Regarding the prosecution's request for a clarification of whether the doctor's testimony rose to the level of establishing a bona fide physician-patient relationship, the district court stated:

The district court entered an order of dismissal on July 17, 2009.

The prosecution appealed the order of dismissal in the circuit court. On December 18, 2009, the circuit court issued an opinion and order reversing the district court's order and remanding the case to the district court for further proceedings. The circuit court ruled that the district court had abused its discretion by not binding defendants over for trial because it had improperly acted as a trier of fact. The circuit court ruled that, in this case, the affirmative defense must be addressed in the trial court in order for proper discovery and rebuttal to take place.

The circuit court also considered questionable the issue regarding whether defendants should be allowed to raise the affirmative defense at all, because defendants did not have valid registry identification cards as required by § 4 of the MMMA, together possessed more than the amount of marijuana permitted under § 4, and did not keep their marijuana plants in "an enclosed, locked facility," which is also required under § 4.

The circuit court then emphasized that there was a disputed question regarding whether Dr. Eisenbud had a bona fide physician-patient relationship with defendants. The circuit court concluded:

III. A REGISTRY IDENTIFICATION CARD IS NOT REQUIRED FOR A § 8 DEFENSE

Defendants argue that the circuit court erred by ruling that because defendants did not obtain registry identification cards in order to satisfy the conditions of § 4 of the MMMA, they could not assert the affirmative defense contained in § 8.4

A. STANDARD OF REVIEW

This issue presents a question of statutory interpretation. We review de novo issues of statutory interpretation. People v. Stone Transport, Inc., 241 Mich.App. 49, 50, 613 N.W.2d 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 N.W.2d 208 (2006). The MMMA 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 N.W.2d 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, 707 N.W.2d 624 (2005).

B. ANALYSIS

This issue involves §§ 4, 7, and 8 of the MMMA. Section 4 provides, in relevant part:

Section 8 provides:

As an initial matter, the plain language of § 8 does not place any restriction on defendants' raising of the affirmative defense. Nevertheless, the prosecution argues that the affirmative defense under § 8 is unavailable to defendants because they did not possess valid registry identification cards at the time of the offense, in violation of § 4. The prosecution bases its position on the language in § 8(a) that provides: "Except as provided in section 7, a patient and a patient's primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid. . . ." MCL 333.26428(a) (emphasis added).

Section 7(b) provides a host of instances for which the protection of the affirmative defense under § 8 would not be permitted, but none of those situations is at issue in this case. See MCL 333.26427(b).6 However, the prosecution points to § 7(a), which provides that "[t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act." MCL 333.26427(a). The prosecution contends that this section justifies its position that § 4 must be adhered to in order for a defendant to invoke § 8 because the affirmative defense is only available to a defendant who complies with the other provisions of the MMMA.

However, as defendants argue, this position ignores that the MMMA provides two ways in which to show legal use of 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.

The plain language of the MMMA supports this view. Section 4 refers to a "qualifying patient who has been issued and possesses a registry identification card" and protects a qualifying patient from "arrest, prosecution, or penalty in any manner. . . ."7 MCL 333.26424(a). On the other hand, § 8(a) refers only to a "patient," not a qualifying patient, and only permits a patient to "assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana. . . ." MCL 333.26428(a). Thus, adherence 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.

The language of the ballot proposal itself supports this interpretation. The ballot proposal, Proposal 08-1, stated that the law would do the following:

The ballot proposal explicitly informed voters that the law would permit registered and unregistered patients to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana. The language supports the view that registered patients under § 4 and unregistered patients under § 8 would be able to assert medical use of marijuana as a defense. Accordingly, we hold that the district court did not err by permitting defendants to raise the affirmative defense even though neither satisfied the registry-identification-card requirement of § 4.8

IV. THE CIRCUIT COURT PROPERLY REVERSED THE BINDOVER

DECISION

Defendants next contend that the circuit court erred by holding that the district court was precluded from ruling that defendants' manufacturing marijuana was permitted under the MMMA. We find no basis on which to reverse the circuit court's disposition because there are indeed triable issues in this case and the district court improperly acted as a trier of fact in denying the bindover.

A. STANDARD OF REVIEW

"A district court's ruling that alleged conduct falls within the scope of a criminal law is a question of law that is reviewed de novo for error, but a decision to bind over a defendant based on the factual sufficiency of the evidence is reviewed for an abuse of discretion." People v. Henderson, 282 Mich.App. 307, 312, 765 N.W.2d 619 (2009). When reviewing the bindover decision, a circuit court must consider the entire record of the preliminary examination and not substitute its judgment for that of the district court. Id. at 312-313, 765 N.W.2d 619. This Court reviews de novo the bindover decision to determine whether the district court abused its discretion, giving no deference to the circuit court's decision. Id. at 313, 765 N.W.2d 619.

B. ANALYSIS

"The primary function of a preliminary examination is to determine if a crime has been committed and, if so, if there is probable cause to believe that the defendant committed it." People v. Glass (After Remand), 464 Mich. 266, 277, 627 N.W.2d 261 (2001). Probable cause is established by evidence "sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt." People v. Yost, 468 Mich. 122, 126, 659 N.W.2d 604 (2003) (citation and quotation marks omitted). In order to establish that a crime has been committed, the prosecution need not prove each element beyond a reasonable doubt, but must present some evidence of each element. See id. If the evidence conflicts or raises a reasonable doubt concerning the defendant's guilt, the defendant should nevertheless be bound over for trial, at which the trier of fact can resolve the questions. Id. at 128, 659 N.W.2d 604.

This Court has recognized "that affirmative defenses in criminal cases should typically be presented and considered at trial and that a preliminary examination is not a trial." People v. Waltonen, 272 Mich.App. 678, 690 n. 5, 728 N.W.2d 881 (2006). In Waltonen, this Court went on to note that in a situation in which the defense is complete and there are no conflicting facts regarding the defense, it could be argued that there would be no probable cause to believe a crime had been committed. Id.

The district court must consider not only the weight and competency of the evidence, but also the credibility of the witnesses, and it may consider evidence in defense.9 People v. King, 412 Mich. 145, 153, 312 N.W.2d 629 (1981). As noted, however, the district court cannot discharge a defendant if the evidence conflicts or raises reasonable doubt concerning a defendant's guilt because this presents an issue for the trier of fact. Id. at 153-154, 312 N.W.2d 629.

There was evidence in this case that the defense was not complete, cf. Waltonen, 272 Mich.App. at 690 n. 5, 728 N.W.2d 881, and there were colorable issues for the trier of fact, see King, 412 Mich, at 153-154, 312 N.W.2d 629. Specifically, we conclude that there were colorable issues concerning whether a bona fide physician-patient relationship existed, whether the amount of marijuana defendants possessed was reasonable under the statute, whether the marijuana in question was being used for medical purposes, and whether defendants suffered from serious or debilitating medical conditions.

1. BONA FIDE PHYSICIAN-PATIENT RELATIONSHIP

MCL 333.26428(a)(1) states that a medical-purpose defense shall be presumed valid if, among other requirements,

We conclude that there was evidence in this particular case that the doctor's recommendations did not result from assessments made in the course of bona fide physician-patient relationships.10 Dr. Eisenbud testified that he was board-certified in ophthalmology. He answered, "That's right," when asked the following question: "So, your sole employment, at this point, is to review people to see whether or not you think they can have marijuana under the Michigan Medical Marijuana—or any other medical marijuana law, correct?" He testified that he saw Clark and Redden once each and was currently working in at least six states. He refused to divulge what defendants' debilitating medical conditions were. Dr. Eisenbud indicated that he was not scheduled to see defendants again until they were due to renew their documentation for using marijuana for medical purposes.

The MMMA does not define the phrase "bona fide physician-patient relationship." When words or phrases are not defined in a statute, a dictionary may be consulted. People v. Peals, 476 Mich. 636, 641, 720 N.W.2d 196 (2006). Random House Webster's College Dictionary (1997) defines "bona fide" as "1. made, done, etc., in good faith; without deception or fraud. 2. authentic; genuine; real." We do not intend to legislate from the bench and define exactly what must take place in order for a bona fide physician-patient relationship to exist. We do conclude, however, that the specific facts in this case, as set forth in the previous paragraph, were sufficient to raise an issue for the trier of fact concerning whether the doctor's recommendations resulted from assessments made in the course of bona fide physician-patient relationships between Dr. Eisenbud each defendant. Indeed, the facts at least raise an inference that defendants saw Dr. Eisenbud not for good-faith medical treatment but in order to obtain marijuana under false pretenses. Accordingly, the district court erred by finding as a matter of law that defendants had satisfied all the requirements for a § 8 defense.

2. AMOUNT OF MARIJUANA POSSESSED

MCL 333.26428(a)(2) states that the § 8 affirmative defense will not be presumed valid unless

There was no testimony or evidence presented regarding whether the amount of marijuana possessed by defendants was "not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's . . . condition or symptoms. . . ." Id. Defendants were found in possession of approximately 1½ ounces of marijuana and 21 marijuana plants. The district court addressed this element of the affirmative defense and concluded that because the amount of marijuana, when divided between defendants, was less than that of the 2½ ounces and 12 marijuana plants permitted under § 4, this portion of the affirmative defense was satisfied.

However, the plain language of the statute does not support that the amount stated in § 4 is equivalent to the "reasonably necessary" amount under § 8(a)(2). Indeed, if the intent of the statute were to have the amount in § 4 apply to § 8, the § 4 amount would have been reinserted into § 8(a)(2), instead of the language concerning an amount "reasonably necessary to ensure . . . uninterrupted availability. . . ." MCL 333.26428(a)(2). Without any evidence on this element of the affirmative defense, the district court could not have properly found the affirmative defense established as a matter of law. There was a colorable question of fact concerning whether the amount possessed was in accordance with the statute.

3. PURPOSE OF THE MARIJUANA IN QUESTION

MCL 333.26428(a)(3) indicates that, for the medical-purpose defense to be valid, evidence must show that

There was testimony and evidence that Redden and Clark could benefit from the medical use of marijuana. However, although an inference could be made that the specific marijuana they allegedly manufactured was being manufactured for medical purposes, there was no explicit testimony or other evidence establishing this fact. Therefore, we find that there was considerable doubt concerning whether defendants satisfied this portion of the defense, see King, 412 Mich. at 153-154, 312 N.W.2d 629, and the district court therefore should not have concluded that the defense was established as a matter of law.

4. SERIOUS OR DEBILITATING MEDICAL CONDITIONS

Dr. Eisenbud did not identify the nature of defendants' debilitating medical conditions beyond stating that Redden had "pain" and Clark had "nausea." Section § 7(b)(5) states that the MMMA "shall not permit any person to . . . [u]se marihuana if that person does not have a serious or debilitating medical condition." MCL 333.26427(b)(5). Section 3, the definitional section of the MMMA, states in relevant part:

Section 3 does not define the phrase "serious medical condition." See MCL 333.26423.

In his written documents, Dr. Eisenbud stated that each defendant was likely to receive benefit from using marijuana to "treat or alleviate a serious or debilitating medical condition. . . ." However, he stated only that he was treating each defendant for "a terminal illness or a debilitating condition as defined in Michigan's medical marijuana law." He then stated at the preliminary examination that Redden had a "debilitating condition." When asked what the condition was, he replied "pain." Dr. Eisenbud stated that Clark's debilitating condition was "nausea."

We conclude that defendants did not establish at the preliminary examination as a matter of law that they had serious or debilitating medical conditions as required by the MMMA. With regard to the phrase "serious medical condition," Random House Webster's College Dictionary (1997) defines "serious," in this context, as "weighty, important, or significant" and "giving cause for apprehension; critical or threatening[.]" Without knowing the nature of defendants' medical conditions, it is not possible to determine whether they are "serious." With regard to the phrase "debilitating medical condition," MCL 333.26423(a)(2) indicates that this phrase includes "[a] chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: . . . severe and chronic pain; severe nausea. . . ." Dr. Eisenbud indicated that Redden suffered merely from "pain" and that Clark suffered merely from "nausea." This evidence was not sufficient to satisfy the definition set forth in MCL 333.26423(a)(2). The district court therefore erred by concluding that defendants satisfied the requirements of the MMMA as a matter of law. Whether each defendant suffered from a serious or debilitating medical condition is yet another matter for further proceedings.11

The circuit court's decision to reverse the district court's bindover ruling is affirmed, and this case is remanded for further proceedings. We do not retain jurisdiction.

OWENS, J., concurred.

O'CONNELL, P.J. (concurring).

I concur with the majority's decision to affirm the circuit court's decision to reinstate the charges against defendants, but write separately because I interpret the statutory defenses at issue more narrowly than does the majority, and also to elaborate on issues raised in the briefs and at oral argument but not fully addressed by the majority opinion.

On November 4, 2008, the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., was passed by initiative and went into effect soon thereafter. It is without question that this act has no effect on federal prohibitions of the possession or consumption of marijuana.1 The Controlled Substances Act, 21 USC 801 et seq., classifies marijuana as a schedule 1 substance, 21 USC 812(c)(10), meaning that Congress recognizes no acceptable medical uses for it, and its possession is generally prohibited. See Gonzales v. Raich, 545 U.S. 1, 27, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005); United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 491, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001). As a federal court in Michigan recently recognized, "It is indisputable that state medical-marijuana laws do not, and cannot, supercede federal laws that criminalize the possession of marijuana." United States v. Hicks, 722 F.Supp.2d 829, 833 (E.D.Mich., 2010), citing Gonzales, 545 U.S. at 29, 125 S.Ct. 2195 ("The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail."), United States v. $186,416.00 in U.S. Currency, 590 F.3d 942, 945 (C.A.9, 2010) ("The federal government has not recognized a legitimate medical use for marijuana, however, and there is no exception for medical marijuana distribution or possession under the federal Controlled Substances Act"), United States v. Scarmazzo, 554 F.Supp.2d 1102, 1109 (E.D.Cal., 2008) ("Federal law prohibiting the sale of marijuana is valid, despite any state law suggesting medical necessity for marijuana"), and United States v. Landa, 281 F.Supp.2d 1139, 1145 (N.D.Cal., 2003) ("[O]ur Congress has flatly outlawed marijuana in this country, nationwide, including for medicinal purposes."). Accordingly, "the MMMA has no effect on federal law, and the possession of marijuana remains illegal under federal law, even if it is possessed for medicinal purposes in accordance with state law." Hicks, 722 F.Supp.2d, at 833, citing Gonzales, 545 U.S. at 27, 125 S.Ct. 2195 ("The [Controlled Substances Act] designates marijuana as contraband for any purpose[.]").

Further, the MMMA does not create any sort of affirmative right under state law to use or possess marijuana. That drug remains a schedule 1 controlled substance under the Public Health Code, MCL 333.7212(1)(c), meaning that "the substance has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision," MCL 333.7211. The MMMA does not repeal any drug laws contained in the Public Health Code, and all persons under this state's jurisdiction remain subject to them. Accordingly, mere possession of marijuana remains a misdemeanor offense, MCL 333.7403(2)(d), and the manufacture of marijuana remains a felony, MCL 333.7401(2)(d).

Perhaps surprisingly, the purpose of the MMMA is a bit less revolutionary than one might suspect. MCL 333.26422(b) states as follows:

The MMMA does not codify a right to use marijuana; instead, it merely provides a procedure through which seriously ill individuals using marijuana for its palliative effects can be identified and protected from prosecution under state law. Although these individuals are still violating the Public Health Code by using marijuana, the MMMA sets forth particular circumstances under which they will not be arrested or otherwise prosecuted for their lawbreaking. In so doing, the MMMA reflects the practical determination of the people of Michigan that, while marijuana is classified as a harmful substance and its use and manufacture should generally be prohibited, law enforcement resources should not be used to arrest and prosecute those with serious medical conditions who use marijuana for its palliative effects.2

Accordingly, the MMMA functions as an affirmative defense to prosecutions under the Public Health Code, allowing an individual to use marijuana by freeing him or her from the threat of arrest and prosecution if that individual meets all the requirements of the MMMA, while permitting prosecution under the Public Health Code if the individual fails to meet any of the requirements set forth by the MMMA.3 See MCL 333.26422(b); MCL 333.26427(e).

The problem, however, is that the MMMA is inartfully drafted and, unfortunately, has created much confusion regarding the circumstances under which an individual may use marijuana without fear of prosecution. Some sections of the MMMA are in conflict with others, and many provisions in the MMMA are in conflict with other statutes, especially the Public Health Code. Further, individuals who do not have a serious medical condition are attempting to use the MMMA to flout the clear prohibitions of the Public Health Code and engage in recreational use of marijuana. Law enforcement officers, prosecutors, and trial court judges attempting to enforce both the MMMA and the Public Health Code are hampered by confusing and seemingly contradictory language, while healthy recreational marijuana users incorrectly view the MMMA as a de facto legalization of the drug, seemingly unconcerned that marijuana use remains illegal under both state and federal law.

In this opinion, I will attempt to cut through the haze surrounding this legislation. In so doing, I note that neither my opinion nor the majority's opinion constitutes an attempt to make the law. We are simply interpreting an act passed by the people of this state. It is up to the Legislature to revise this act as it sees fit.4

I. GUIDANCE IS NEEDED

In light of the majority opinion's resolution of the issues in this case, one might ask why this concurrence is of any importance. The answer is simple: delay and neglect in addressing the proper scope and application of the MMMA invites and perpetuates error. Judges bear the responsibility of applying, interpreting, and shaping the law, and we neglect this responsibility when we fail to explain, with well-reasoned analysis, our agreement or disagreement with pertinent points of law. Failure to engage in the debate hinders our hunt for a statute's intended purpose and generally stifles the formation of sound legal principles. If we all gently withdrew our voices from the arena of competing ideas, then mistakes would go unchallenged, and the process of correction could suffer nearly insurmountable setbacks.

This case proves the rule. At oral argument and in their briefs, both parties raised numerous questions regarding the proper interpretation of the provisions of the MMMA. It was made clear that many provisions of this act are subject to multiple interpretations and that obfuscating words and phrases in the MMMA have caused much confusion on the part of both law enforcement officials and defense attorneys wishing to advise their clients of their rights and protections under the law. Defense counsel was particularly concerned that the law was not specific enough for him to advise his clients on both the strictures of the MMMA and the ramifications of certain provisions. The prosecuting attorney noted that he was unable to advise municipalities, townships, the police, and others regarding whether particular conduct was permitted or prohibited under the act. More generally, in the absence of clear direction from the appellate courts, many citizens believe that the MMMA supports and legitimizes the marijuana business.

As defense counsel emphasized at oral argument this Court could take a case-by-case approach to resolving all the issues found in the MMMA, addressing particular provisions piecemeal and in isolation over years and leaving defendants, prosecutors, law enforcement, entrepreneurs, cities, municipalities, townships, and others in a state of confusion for a very, very long time.5 Or, in one well-thought-out opinion, it could interpret the essential provisions of this act, providing a framework for future application of the new statute and giving fair notice to all regarding the scope of acceptable conduct under the MMMA. Counsel for both parties advised this Court against interpreting the MMMA in a piecemeal fashion because of the confusion that would persist. I agree, and this opinion is my attempt to establish the framework for the law and address those issues not resolved by the majority opinion.

I also agree with counsel that it is the responsibility of this Court to interpret this law in a way that gives fair notice to all concerned regarding what conduct is allowed and what conduct is prohibited under this law. Without some guidance from the appellate courts, the lower courts will continue to stumble about. The system of justice will become hopelessly unpredictable and intolerably frustrating for the people it was established to serve. Right or wrong, we all have the duty to interpret the law to the best of our abilities. Any delay in this process frustrates those citizens who are making a good faith effort to adhere to the law.

II. ONE STATUTE, COMPETING GOALS

Proposal 1 on the 2008 ballot, which presented the MMMA to the people of this state for a vote, described the proposed MMMA as purporting to do the following:

Yet in its summary of the intended effect of the MMMA, this ballot proposal obfuscated the more confusing and contradictory aspects of the actual legislation. The statutory language creates a maze for the reader, making the statute susceptible to multiple interpretations.

The MMMA is based on model legislation provided by the Marijuana Policy Project (MPP), a lobbying group based in Washington, D. C, and organized to decriminalize both the medical and recreational uses of marijuana. The statutory language of the MMMA was drafted by Karen O'Keefe, the director of state policies at the MPP in Washington, D.C.6 Interestingly, the confusion caused by reading the statute piecemeal and out of context has seemed to work to the advantage of those who share the MPP's wish for outright legalization of marijuana. Taking advantage of the confusion from the MMMA, proponents of liberalized marijuana regulations claim that the MMMA legalizes shops that sell marijuana, collective growing facilities, and the cultivation and sale of marijuana as a commercial crop. Further, those individuals who primarily wish to use marijuana recreationally are taking advantage of "pot docs" who will give them written certifications for the medical use of marijuana without bothering to establish either a bona fide physician-patient relationship or the existence of a terminal or debilitating medical condition.

In looking at the specific provisions of the MMMA, it is important to remember that this act is based on a premise-namely, that marijuana can be used for medical purposes—that is in obvious contravention to the Public Health Code. By classifying marijuana as a schedule 1 controlled substance under the Public Health Code, the people of this state, through their elected representatives, have determined that marijuana "has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision." MCL 333.7211. This clearly contravenes the rationale for the MMMA, which indicates that provisions should be made to permit seriously ill individuals to use marijuana for medical purposes without fear of arrest because "[m]odern medical research . . . has discovered beneficial uses for marihuana in treating or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions." MCL 333.26422(a).

The obvious solution to this problem would simply be to amend the Public Health Code to make marijuana a schedule 2 or schedule 3 controlled substance.7 With such an amendment, state law would not prohibit a licensed prescriber from prescribing marijuana if, in the prescriber's professional opinion, the drug would effectively treat the pain, nausea, and other symptoms associated with certain debilitating medical conditions. MCL 333.7303a. Curiously, however, the MMMA has no provisions to repeal the contradictory portions of the Public Health Code or to ensure the controlled, monitored distribution of marijuana to seriously ill individuals in accordance with the well-tested provisions of the Public Health Code.8 Instead, it creates a new system, untested in this state, in which a physician merely "certifies" that an individual would likely "benefit" from using marijuana to alleviate pain, nausea, or other symptoms, while leaving it to the patient to register under the act and to self-regulate the quality and quantity of marijuana the patient uses.

Accordingly, the confusing nature of the MMMA, and its susceptibility to multiple interpretations, creates an untoward risk for Michiganders.9 Reading the statute carelessly or out of context could result in jail or prison time for many of our citizens. Until our Supreme Court and the Legislature clarify and define the scope of the MMMA, it is important to proceed cautiously when seeking to take advantage of the protections in it. Those citizens who proceed without due caution will become test cases and may lose both their property and their liberty.10

III. THROUGH THE MAZE

The MMMA consists of 10 sections detailing the protections, procedures, and defenses surrounding the medical use of marijuana in this state. However, much of the confusion caused by the MMMA arises from difficulty understanding the interplay among §§ 4, 7, and 8. Section 4 addresses the protections afforded to qualifying patients, caregivers, and others under the act:

The unusual structure of this section reflects the intent of the MMMA as set forth in MCL 333.26422(b). Instead of describing an affirmative right to grow, possess, or use marijuana, § 4 simply indicates that registered qualifying patients, primary caregivers, and physicians are protected from arrest, prosecution, or penalty if they meet the specific requirements set forth.11

A closer look at the pertinent subsections of § 4 further shows this to be the case. Section 4(a) specifies that a qualifying patient with a registry identification card is not subject to arrest, prosecution, or penalty "for the medical use of marihuana in accordance with this act. . . ." MCL 333.2642(a). MCL 333.26423(h) defines a "qualifying patient" as "a person who has been diagnosed by a physician as having a debilitating medical condition." Accordingly, even if a qualifying patient has a registry identification card, that patient is entitled to protection under the MMMA only if he or she has also been diagnosed with a debilitating medical condition. In order to "diagnose" a patient, a physician must "determine the identity of (a disease, illness, etc.) by a medical examination." Random House Webster's College Dictionary (2001). Accordingly, regardless of whether an individual has a registry identification card, that individual is not a "qualifying patient" under the MMMA and, therefore, is not entitled to the act's protections unless a physician has determined that the patient suffers from an identifiable debilitating condition.12

Under § 4(a), a qualifying patient may engage in the "medical use" of marijuana without fear of arrest. Interestingly, the term "medical use," as defined by the MMMA, is much broader than one would anticipate. MCL 333.26423(e) defines the term "medical use" as "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." The definition of "medical use" is unexpectedly broad: although a qualifying patient may not sell marijuana, just about anything else an individual can do with marijuana would be considered medical use under the MMMA.13

Section 4(a) also provides that a qualifying patient is not subject to arrest, prosecution, or penalty for the medical use of marijuana if that patient has no more than 12 marijuana plants in an enclosed, locked facility. MCL 333.26424(a). Alternatively, the qualifying patient may designate a primary caregiver to grow up to 12 plants in an enclosed, locked facility. However, because the statute provides that a qualified patient may be in possession of the specified number of marijuana plants only if the patient has not designated a primary caregiver to grow marijuana for him or her, if the qualified patient has made such a designation, the statute provides that qualified patient no protection from arrest if found in the possession of any marijuana plants.

Section 4(b) specifies the circumstances in which a registered primary caregiver is protected from arrest. MCL 333.26424(b). MCL 333.26423(g) defines a "primary caregiver" as "a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has never been convicted of a felony involving illegal drugs." Section 4(b) specifies that a registered primary caregiver may assist only a qualifying patient14 to whom he or she is connected through the registration process with the medical use of marijuana. Accordingly, a primary caregiver may not assist any qualifying patient in the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marijuana unless that caregiver is connected to that qualifying patient through registration with the Department of Community Health (DCH). Section 6(d) specifies that "each qualifying patient can have no more than 1 primary caregiver, and a primary caregiver may assist no more than 5 qualifying patients with their medical use of marihuana." MCL 333.26426(d). Accordingly, no primary caregiver who wishes to benefit from the protections offered by the MMMA may assist more than five qualifying patients in acquiring, possessing, cultivating, manufacturing, using, internally possessing, delivering, transferring, or transporting marijuana, presuming that the five qualifying patients in question are connected to that caregiver through the department's registration process.15 Any assistance that any primary caregiver provides on behalf of any qualifying patient to whom that caregiver is not connected by the registration process is not subject to the protections of the MMMA.

Similarly, a primary caregiver may not possess more than "12 marihuana plants kept in an enclosed, locked facility" for each qualifying patient to whom the caregiver is connected through the registration process and who has that patient's permission to cultivate the allotment of marijuana plants. MCL 333.26424(b)(2). MCL 333.26423(c) defines an "enclosed, locked facility" as "a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient." Although it is unclear from the statute whether each grouping of 12 plants must be in a separate enclosed, locked facility,16 it is clear that under no circumstances may a primary caregiver be in possession of more than a total of 60 marijuana plants, presuming that the primary caregiver acts in that capacity for the statutory maximum of five qualifying patients, all of whom have given the caregiver the authority to cultivate marijuana for them. Because a qualified patient who has designated a primary caregiver to cultivate marijuana for him or her may not him- or herself have possession of any marijuana plants, the primary caregiver is the only individual permitted to be in possession of the qualifying patient's marijuana plants under this circumstance. Accordingly, this means that each set of 12 plants permitted under the MMMA to address the purported medical needs of a particular qualifying patient must be kept in an enclosed, locked facility that can only be accessed by one individual, either the qualifying patient or the qualifying patient's primary caregiver; any other individual with access to the marijuana plants designated for a particular qualifying patient would be considered in possession of marijuana and subject to arrest and prosecution for violating the Public Health Code.17

Section 4(e) permits a registered primary caregiver to receive compensation for the costs associated with assisting a registered qualifying patient in the medical use of marijuana. MCL 333.26424(e). However, under § 4(b), a registered primary caregiver may assist only a registered qualifying patient to whom he or she is connected through registration with the DCH. MCL 333.26424(b). Accordingly, §§ 4(b) and 4(e) can only be reconciled by concluding that the primary caregiver's "compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana" will come from only a registered qualifying patient to whom he or she is connected through the department's registration process.18 MCL 333.26424(e). Because a primary caregiver may assist only the five or fewer qualifying patients to whom the caregiver is connected through the registration process, there is no circumstance under the MMMA in which the primary caregiver can provide assistance to any other qualifying patient, and receive compensation in exchange, without being subject to arrest and prosecution under the Public Health Code.19

In addition, a primary caregiver may receive compensation for only the costs associated with assisting a registered qualifying patient in the medical use of marijuana. Id. This simply means that the primary caregiver may receive reimbursement for monetary expenses incurred in the course of assisting the qualifying patient in the medical use of marijuana. The statute does not authorize compensation for the labor involved in cultivating marijuana or for otherwise assisting the qualifying patient in its use, nor does it indicate that the primary caregiver may profit financially from this role.

Section 4(f) protects a physician from arrest for providing written certifications if the certifications were provided in the course of a bona fide physician-patient relationship and if the physician first completed a full assessment of the qualifying patient's medical history. MCL 333.26424(f). Unfortunately, the statute does not indicate how the existence of an authentic physician-patient relationship can be discerned. However, a fact-finder might wish to ask certain questions when determining whether the physician-patient relationship was authentic, including (a) whether the physician signing the written certification form was the patient's primary caregiver, (b) whether the patient had an established history of receiving medical care from that physician, (c) whether the physician diagnosed a particular debilitating medical condition instead of simply stating that a patient's reported symptoms must be the result of some such unidentified condition, (d) whether the physician was paid specifically to sign the written certification, and (e) whether the physician has a history of signing an unusually large number of certifications. Needless to say, those doctors hired specifically to sign certification forms are suspect and deserve special scrutiny by prosecutors, the DCH, and the legislative oversight committees of both the House and Senate.20

Section 4(f) also indicates that

This provision does not create an alternative scenario under which a physician may issue a written certification to a patient in the absence of a bona fide physician-patient relationship with that patient or a full assessment of the patient's medical history. Instead, this provision merely provides a physician with additional protection from legal penalties, or disciplinary action by a professional licensing board if the physician opines in general that an individual might benefit from the medical use of marijuana.

Section 4(i) provides that "[a] person shall not be subject to arrest . . . solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana." MCL 333.26424(i). In a possible attempt at chicanery, the drafters of the act thus slipped into this subsection the term "person" instead of discussing the protections and responsibilities of a "caregiver" or "qualifying patient." Reading § 4(i) in isolation could cause one to conclude that it constitutes a nullification of all provisions in the Public Health Code that punish individuals who come in contact with marijuana However, when reading § 4(i) in context, it is clear that it is not, and is not intended to function as, a permission slip to manufacture or sell marijuana in Michigan. First, because the MMMA does not grant rights to anyone, the use of the word "person" instead of the more specific terms "qualifying patient" and "primary caregiver" does not constitute an expansion of any rights. Instead, although a "person" may not be subject to arrest under § 4(i) for "assisting a registered qualifying patient with using or administering marihuana," it is clear that this protection does not extend to assisting a registered qualifying patient in the medical use of marijuana as defined by MCL 333.26423(e). Instead, this protection from arrest only extends to providing assistance in "using or administering" marijuana, which is much more limited. Such assistance would be in the nature of holding or rolling a marijuana cigarette, filling a pipe, or preparing marijuana-laced brownies for the qualifying patient suffering from a terminal illness or a debilitating condition. Section 4(i) does not protect persons generally from arrest for acquiring, possessing, cultivating, manufacturing, delivering, transferring, or transporting marijuana on behalf of the qualifying patient.

Finally, § 4(k) imposes a penalty on those registered qualifying patients or registered primary caregivers who sell marijuana to "someone who is not allowed to use marihuana for medical purposes under this act. . . ." MCL 333.26424(k). The penalty is severe: a violator faces up to two years in prison or a fine of up to $2,000, or both. However, that this subsection specifies a particular punishment for a specific type of violation does not mean that, by default, the sale of marijuana to someone who is allowed to use marijuana for medical purposes under this act is permitted. The MMMA does not give any individual permission to sell marijuana in the state of Michigan for any purpose. Instead, the MMMA merely identifies circumstances under which qualifying patients and primary caregivers are protected from arrest and prosecution for the "medical use" of marijuana. If the drafters of this statute had wanted to legalize the sale of marijuana to qualifying patients from primary caregivers or other qualifying patients, they would have included the term "sale" in the definition of "medical use." MCL 333.26423(e). They did not and, therefore, the sale of marijuana is not a permitted activity under § 4.21 Stated differently, the MMMA does not legalize the sale of marijuana to any individual, even one registered as a qualifying patient.22

Section 7 of the act is very specific about use of marijuana for medical purposes. It provides as follows:

When interpreting § 7, it is important to remember that an individual acquires protection from arrest and prosecution under this act only if suffering from serious or debilitating medical condition. A person without such a condition, as defined by the act and diagnosed by a physician, is prohibited from using marijuana and remains subject to the penalties set forth in the Public Health Code. Section 7(b)(5) acts as an affirmative defense to a prosecution under the Public Health Code, meaning that the defendant has the responsibility of establishing that he or she was suffering from a serious or debilitating medical condition as a prerequisite to establishing a medical-marijuana defense. Once the defendant has presented sufficient evidence to establish the existence of a sufficiently serious medical condition, the prosecution may seek to rebut it, including by cross-examination of the defendant's physician regarding whether the defendant had a serious or debilitating medical condition. Of course, the prosecution may also call medical expert witnesses to rebut the defendant's evidence.

A defendant asserting the medical-marijuana defense bears the burden of establishing the existence of a qualifying medical condition; a mere assertion is not sufficient.23 Further, it logically follows that a defendant resorting to that defense by placing into evidence his or her medical condition necessarily waives any physician-patient privilege that would otherwise limit a prosecutor's prerogative to question the defendant's physician or examine pertinent medical records.

In the present case, both defendants contend that they are entitled to assert an affirmative defense under § 8 of the MMMA. Section 8 addresses affirmative defenses for patients and caregivers under the act. It reads as follows:

In this section, the act speaks for the first time in terms of a patient instead of a qualifying patient. The purpose of § 8 is to establish an affirmative defense for those marijuana users and growers who are not registered with the state. Read out of context and with a limitless imagination, one could conclude that qualifying patients, patient caregivers, physicians, or persons in general may not be arrested or prosecuted for any actions involving marijuana, i.e., the act in essence legalizes marijuana in Michigan. But, as I have previously stated, the language of the ballot proposal and a contextual reading of the act belie this premise.

In order for defendants to assert an affirmative defense under § 8(a)(1), they must first establish that Dr. Eric Eisenbud, the physician who signed their medical-marijuana authorizations, treated them in the course of a bona fide physician-patient relationship, and they must further establish under § 7(b)(5) that they have a serious or debilitating condition. Both defendants have failed to establish either prerequisite to asserting a § 8 affirmative defense.

At issue is the phrase, "in the course of a bona fide physician-patient relationship." This phrase has three components: physician-patient relationships bona fide, and in the course of. When construing a statute, a court should presume that every word has some meaning; a construction rendering some part nugatory or surplusage should be avoided. People v. Seiders, 262 Mich.App. 702, 705, 686 N.W.2d 821 (2004). "Physician-patient relationship" clearly means that a patient must have the traditional doctor-patient relationship. Use of the qualifier "bona fide" indicates that the drafters of this act were concerned about such doctors as the one in Livingston County described in part IV of this opinion who routinely sell written certifications for profit, rather than provide them for any genuine medical reason. Any such doctor is not engaging in the good-faith practice of medicine, and any such certifications must be disallowed under this act.24 "In the course of" clearly means that the bona fide relationship has been in existence beyond just one occasion. An individual who visits a doctor for the first time for the sole purpose of obtaining certification for the medical use of marijuana, especially after an arrest on drug charges, does not satisfy the requirement that the certification come about in the course of a bona fide physician-patient relationship. Conversely, a primary-care physician who has long been treating a patient suffering from a terminal illness or a serious or debilitating condition is certainly acting in the course of a bona fide physician-patient relationship.

Certain protocols must be adhered to, or elements met, before a bona fide physician-patient relationship can be established. Among these are the following: the physician must create and maintain medical records; the physician must have a complete understanding of the patient's medical history; specific medical issues must be identified and plans developed to address each; treatment must be conducted in a professional setting; the physician must, when appropriate, set boundaries for the patient; and the physician must monitor the patient's progress. Important for the treatment of most medical conditions, especially those involving chronic pain, is continuity of treatment. Some chronicpain patients with serious or debilitating conditions need constant monitoring for their own safety. I note that, in the present case, while some of these protocols or elements were present in Dr. Eisenbud's treatment of defendants, others were lacking in both substance and process.

In order to have a bona fide physician-patient relationship, a legal duty must be established between the physician and his or her patient. If no duty arises from the relationship, then no legally recognizable physician-patient relationship exists. Only once a physician-patient relationship is established and a treatment plan is instituted may a physician be held liable for malpractice under Michigan law. However, by insulating a physician from "prosecution, or penalty in any manner," including "civil penalty" in connection with that physician's certification of a patient for the medical use of marijuana, § 4(f) leaves a physician so acting unaccountable in the matter to society and to his or her patient. MCL 333.26424(f). It is problematic to classify as bona fide a physician-patient relationship when the physician has no enforceable duties to the patient. In my opinion, because physicians such as Dr. Eisenbud, in the course of approving written certifications for the medical use of marijuana, do not establish a legally binding physician-patient relationship in the matter, such relationships, in the eyes of the law, are not bona fide.

In this regard, the Catch-22 for patients is found in §§ 4(f) and 8(a). Section 4(f) provides that "a physician 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. . . ." MCL 333.26424(f). But § 8(a) of the act states that a patient can assert a medical-marijuana defense if in the course of a bona fide physician-patient relationship the physician makes certain statements and authorizes the patient to use marijuana. MCL 333.264248(a). It would be unusual, if not outright peculiar, for the law to recognize a physician-patient relationship if no potential liability attached to the actions of the treating physician. Because one part of the MMMA provides that no civil liability, and thus no potential malpractice liability, attaches to physicians who authorize the medical use of marijuana, while another part of the act states that a physician must have a bona fide physician-patient relationship to assert the affirmative medical-marijuana defense, the act presents a seemingly irreconcilable internal conflict.

Adding to the confusion in this case is that, according to the record, all of Dr. Eisenbud's patients visited him for a single treatment plan and for no other purpose. In each instance then, the patient is not only directing the treatment plan, but setting his or her own boundaries and monitoring his or her own progress. It strains credibility to suggest that a treatment plan has already been established before the doctor has examined the patient. The confusion is resolved by simply concluding that a one-stop shopping event to obtain a permission slip to use marijuana under § 8 does not meet the requirement of § 8(a)(1) that the authorization occur in the course of a bona fide physician-patient relationship. Stated another way, a § 8 affirmative defense is not available unless the testifying physician is the patient's treating physician for the underlying serious or debilitating condition. Dr. Eisenbud was not either defendant's treating physician, and therefore the § 8 affirmative defense was not available to them.

In an attempt to explain and help this Court interpret the protections contained in the MMMA, Karen O'Keefe, who was identified in part II of this opinion as director of state policies at the MPP in Washington, D.C., filed an affidavit in this case. In the affidavit, Ms. O'Keefe stated, in paragraph 4, that she was the "principal drafter of Michigan's medical marijuana ballot initiative." In paragraph 7 she stated, "We intended for both Michigan law and MPP's model legislation to include two levels of protection," i.e., defenses, with § 4 providing the greater level of protection and § 8 a lesser level of protection. While that affidavit might assist this Court in separating those two types of protection, it does not address any protections under either § 4 or § 8 concerning the sale of marijuana in Michigan. What it does accomplish is to confirm that the MMMA was intended to provide defenses from arrest and prosecution for the use of small amounts of marijuana for medical purposes. But neither the affidavit nor the act itself asserts that the MMMA provides any protections for the sale of marijuana in Michigan. To have authorized the sale of marijuana in Michigan, the MMMA would have had to specifically make such provision. It did not. I further note that the language of the ballot proposal did not mention that the sale of marijuana was included in the act. It is therefore clear that neither § 4 nor § 8 of the MMMA affords any protections for the sale of marijuana in Michigan.25

IV. WHAT MUST BE INCLUDED IN THE WRITTEN CERTIFICATION AND HOW DOES ONE OBTAIN A WRITTEN CERTIFICATION FROM A QUALIFIED PHYSICIAN?

Through no fault on the part of legitimate patients and caregivers who are taking pains in good faith to comply with the law and conduct themselves accordingly, the current written certification process reflects badly on them. The process also reflects badly on legitimate physicians who honestly believe that marijuana would assist their patients.

Section 3(l) of the MMMA defines "written certification" as

In the present case, defendants' written certification forms fail to set forth their respective debilitating medical conditions and therefore are invalid on their faces. I further regard the process used to obtain the written certification under the current administrative rules as suspect and opine that § 3(l) is clearly the most abused section in the MMMA.26

I do not direct my critical comments toward those qualifying patients who do in fact have a serious debilitating condition and seek some therapeutic or palliative solace in marijuana. This act was intended to help those individuals. My comments are directed at those who are currently abusing the written certification process, i.e., the majority of the persons who are becoming certified at this time. My comments are also directed at those who are charged with the oversight of the administrative process.

At oral argument, it was revealed that a certain Livingston County doctor was selling written certifications for $50. Apparently all one had to do to obtain a written certification to use marijuana was to show up at this doctor's house and slip $50 under the door. This history of the written certification process may in fact jeopardize the entire medical-marijuana process for those who are legitimately entitled to use it. New checks and balances on this process are certainly necessary to resolve this problem.27

I will set forth the histories of the MMMA and its written certification process in parts V and VI of this opinion and leave readers to form their own opinions whether the written certification process is serving its legitimate purpose or is being abused. It is within the province of our legislative and executive officials to retain or change that process. But I reiterate that in the present case both defendants' written certifications28 did not comply with the statute and were therefore invalid ab initio.29 The balance of this opinion will address issues concerning the written certification process, which the Legislature or the DCH are free to change if persuaded that a problem exists.

V. THE HISTORY OF THE MMMA

The MMMA has a noble purpose, i.e., providing an avenue for improving the health or comfort of those afflicted with a serious or debilitating medical condition.30 One supposes that most citizens voting for the MMMA envisioned that those individuals suffering from such conditions would visit their regular doctors, obtain prescriptions for marijuana, and then have the prescription filled at a licensed pharmacy. Citizens would rightly expect such a process because the drug-delivery system in Michigan has always dispensed drugs in this manner.31

The DCH is the agency charged with regulating this new industry. Under the act, the DCH was required to draft within 120 days administrative rules to implement the act. MCL 333.26425(a). The Governor oversees administrative agencies such as the DCH, and the Legislature also plays a role, maintaining checks and balances to ensure that administrative agencies function properly. Under the normal process, those elected or appointed officials would maintain sufficient control of the process to assure that a schedule 1 drug would not be sold, distributed, or otherwise transferred to the public without a legitimate process in place to regulate the use, sale, and delivery of that drug.

Further, in legitimate medical practice, doctors would observe their ethical duties to sign their names to written certification forms only if their patients were actually suffering from terminal illnesses or serious or debilitating medical conditions, as the act specifies.32 No ethical doctor would advertise for sale to unqualified patients his or her signature on those forms. Doctors with the personal integrity demanded of that profession would not examine a patient for just several minutes, opine from that short examination that the patient has a terminal illness or a serious or debilitating condition, and then certify that the patient would benefit from the use of a schedule 1 drug. Or would they? Given that these practices have become widespread in Michigan, either I, or the doctors engaging in that practice, should review the question of what integrity and ethics in the medical profession entail.

The ballot proposal was not intended to legalize marijuana in the state of Michigan. It was intended to protect "from arrest the vast majority of seriously ill people who have a medical need to use marihuana." MCL 333.26422(b). It was not intended to protect those individuals who are fraudulently obtaining written certifications.

VI. THE HISTORY OF THE WRITTEN CERTIFICATION PROCESS

Shortly after the MMMA was passed, advertisements began appearing in the print media. These notices advertised that, for a price, one could visit the marijuana doctor and get certified for the use of marijuana. One such ad in the Petoskey News Review, June 22, 2010, p. A2, reads as follows:

Soon thereafter, a billboard appeared on 1-75 advertising that, with a phone call, one could be certified for the medical use of marijuana in Michigan. Radio spots then began to advertise that the marijuana doctor would be in Saginaw on Monday, in Bay City on Tuesday, and Midland on Wednesday. With a quick visit to the doctor one could become certified to use, grow, and possibly sell marijuana.

In California, where a similar law has been on the books for a few years, these doctors have taken the process one step further. They have actually set up tents on the beaches and posted signs in front of them advertising easy access to medical-marijuana certification:

College students typically patrol in front of the tents and on the beach, encouraging all passersby to enter the tent and get certified for using marijuana. Doctors in California are now advertising that they will refund the certification fee to anyone for whom they cannot find a marijuana-worthy medical ailment.33

The Hemp and Cannabis Foundation advertises on its website that the organization has offices in Detroit/Southfield, Grand Rapids, Kalamazoo, Flint, Saginaw, Marquette, Traverse City, and Lansing and lists six doctors, none of whom resides in Michigan and only one of whom, the aforementioned Dr. Eisenbud, is licensed to practice in this state, <http://www.thc-foundation.org/> (accessed September 10, 2010).

The Michigan Medical Marijuana Certification Center advertises electronic filing on its website, providing a form that can be filled out online to start the certification process. <http://www.mmmcc.net/ locations/> (accessed September 10, 2010). One can even electronically file one's signature on the form.

According to the DCH, it had issued 27,755 patient registrations as of September 3, 2010, and has been struggling to manage the rate of applications coming in. Michigan Medical Marihuana Program <http://www.michigan.gov/mdch/0.1607.7-132-27417_51869-202669—00.html> (accessed September 10, 2010).

Because of the backlog of applications, House Bill 5902, introduced by Representative George Cushingberry and reported out of the House Committee on Appropriations, proposes to privatize the issuance of registry identification cards to the public. That legislation would require the DCH to contract with a third party to take over the issuance of medical-marijuana registry cards. In essence, this bill proposes to turn over regulation to the persons regulated—an arrangement that, under normal circumstances, would be deemed highly suspect.

Even advertisements for new careers are beginning to appear in the newspapers. One such advertisement appeared in the July 19, 2010, Northern Express Weekly:

That someone is spending money to run such an ad well proves that confusion runs rampant concerning what is, and is not, subject to prosecution under the MMMA.

Unfortunately, the administrative rules associated with the MMMA do not provide for any checks and balances on the accuracy of the medical certifications signed by these doctors. At 1,000 new registry applicants a week,34 Michigan will soon have more registered marijuana users than unemployed individuals — an incredible legacy for the Great Lakes State. And soon we will even have graduates from the Medical Marijuana Academy.

What has been lost in the rush to implement the MMMA is a comprehensive set of administrative rules. Under MCL 333.26425(a), the DCH only had 120 days to draft the administrative rules that are currently in effect.35 As demonstrated by the rules that did come into being, this was a totally unreasonable time limit for such a task.36

No system of regulation can succeed without a clear set of rules. Those wishing to use marijuana need to know when, how, and under what conditions they can legally do so. Providers need to know under what conditions they can legally grow, harvest, and distribute their product, and the operators of the new medical-marijuana clinics that appear to be springing up on every corner need to know if they are in fact set up to dispense marijuana to the public legally. Until today, the DCH, the Legislature, and the appellate courts have answered very few of these questions. Pressure and confusion results from trying to operate under a system in which no one has stepped forward and stated specifically what actions are legal and what actions are not. It appears that most elected officials, including my colleagues, understand the political nature of this controversy and simply choose to address the MMMA only to the extent that a particular occasion requires. I, on the other hand, right or wrong, prefer giving some notice to those concerned before they are deprived of their liberty and property.37

What is clear from reading the lower court record in this case is that no one has set out a comprehensive plan to implement the new MMMA. The job of setting public policy should not be handed to the courts as a consequence of the inaction of legislative or administrative officials. Those elected and appointed officials can choose to remain silent and allow the courts to interpret this act piecemeal or on a case-by-case basis. Or the statute can be revised, or the pertinent administrative rules revised, to provide a clear direction to all citizens, including the judges of the courts, who are affected by this act.

VII. CONCLUSION

To quote from Sir Walter Scott's 1808 poem, Marmion, canto 6, st. 17, "O, what a tangled web we weave, / When first we practise to deceive!" Of central importance to this appeal is the question, Is the MMMA a subterfuge for legalizing marijuana in this state, or is it a legitimate medical reform intended to help only those individuals who have a terminal illness or a serious or debilitating medical condition?

The answer is simple. For those who instituted the process of placing the proposal on the ballot, the MMMA was both an avenue for allowing society to explore the medical uses of marijuana and a first step in legalizing marijuana in Michigan. For some citizens who voted for the initiative petition out of empathy for the terminally ill or those suffering from debilitating conditions, it was a vote for a medical process that would help those in need. Unfortunately for all concerned with the implementation of the medical mission, including compassionate-care groups, marijuana growers, marijuana users, marijuana dispensers, the police, prosecutors, municipalities, townships, etc., the act has resulted in much confusion. And it has suggested itself to many purely recreational marijuana consumers as a vehicle to aid in their continuing illicit indulgence in that vice.

In any event, the MMMA is currently the law in Michigan. To the extent possible, it must be administered in a manner that protects the rights of all our citizens. When prosecutors and defense attorneys agree that the law is hazy and unclear and poses hazards to all concerned because it does not with sufficient clarity identify what conduct is subject to prosecution, it is time for action from our legislative and executive officials. While the MMMA may be controversial and polarizing, politics should be set aside in the interest of the rule of law in our state.38

With the MMMA, two roads have diverged in the forest:39 one leads to refining and distilling the administrative rules and other law associated with the act, and the other leads to the regulators and regulated alike being totally confused concerning how to give effect to the act. The former leads to the orderly implementation of the MMMA, while the latter leads to disrespect for the law and possibly contempt for the rule of the law itself.40 Our legislative and administrative officials must make a choice: they can either clarify the law with legislative refinements and a comprehensive set of administrative rules, or they can do nothing. In this situation, not deciding is, in fact, a decision to do nothing.41