There is an interesting case out of Michigan concerning medical marijuana — and the basic requirements of drafting a medical marijuana law. We previously discussed the case of Joseph Casias. The United States Court of Appeals for the Sixth Circuit ruled (in the opinion below) that Wal-Mart was allowed to allegedly fire an employee for using medical marijuana. That would seem a curious ruling given state law protecting people in the use of medical marijuana. However, the court found that the drafting of a key line left workers without protection for termination.

Joseph Casias was fired after he failed a drug test. Casias showed that he has inoperable brain tumor and sinus cancer. He also invoked the Michigan Medical Marijuana Act (MMMA) protecting workers for disciplinary action “by a business or occupational or professional licensing board or bureau.” The case came down to a matter of simple statutory interpretation over whether “business” is a stand alone noun or a description of one of the type of licensing boards or bureaus.

The relevant provision reads:

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 marijuana in accordance with this act . . . .
Mich. Comp. Laws § 333.26424(a).

The two alternative interpretations of this provision could not produce a more extreme difference in application. If “business” refers simply to a “business,” the law would afford a needed protection for those seriously or chronically ill persons using medical marijuana to relieve their pain. That would seem an obvious and necessary protection as part of a medical marijuana law. However, the Court found such an interpretation to be counterintuitive and wrong (affirming the same view of the district court):

Based on a plain reading of the statute, the term “business” is not a stand-alone term as Plaintiff alleges, but rather the word “business” describes or qualifies the type of “licensing board or bureau.” Mich. Comp. Laws § 333.26424(a). Read in context, and taking into consideration the natural placement of words and phrases in relation to one another, and the proximity of the words used to describe the kind of licensing board or bureau referred to by the statute, it is clear that the statute uses the word “business” to refer to a “business” licensing board or bureau, just as it refers to an “occupational” or “professional” licensing board or bureau. The statute is simply asserting that a “qualifying patient” is not to be penalized or disciplined by a “business or occupational or professional licensing board or bureau” for his medical use of marijuana.

These interpretive difference raise fundamental questions under “legisprudence” scholarship. Here you have two equally credible interpretations produced by a “gap” or ambiguity. Some would argue that a court should gravitate toward the narrow textual meaning given the sweeping impact of a broader interpretation — affecting every business in Michigan. Rather than assume such an interpretation, the court can leave the matter to the legislature.

Another approach, advocated by Professor Jonathan Macey, would apply the “public-regarding purpose” of the law — fill in the gap or ambiguity by reference to the stated public-regarding purpose” of the law and thus protecting the workers. Others like Professors Eskridge and Pellar have written even more aggressive use of judicial power in such cases to protect groups or individuals who may not have sufficient protection in the legislature or the market.

Of course, however, the court comes out, none of this excuses the actions of Wal-Mart in terminating a worker who is facing a chronic and painful illness and using medical marijuana at the suggestion of a doctor. Wal-Mart has been long accused of terminating sick workers.

What do you think?

Here is the opinion: 12a0343p-06