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
Semantics ….
like a vision it came, and it should have come to you all.
Business is not used usually as an adjective. Or?
Rather one would say: Commercial, or some other approprita adnective. Business is not an anjective.
Otherwise as Lotta says—–as usual.
Matt, we all forsake our responsibility to mankind when we go to our usual grocery, etc etc etc store.
Don’t need to protest adherence to doctrinal dogma cuz you do Walmart.
I usually shop at Walmart. I still think the law is a fraud. You can kiss mine.
btw, I have not set foot in Wal Mart for over 25 years. This is one more reason to stay away from this terrible business.
This is not a study of the meaning of “is”, it is the meaning of “or”.
Curious interpretation of the word “or”. Business OR regulatory agency. NOT THE SAME THINGS.
They took simple language and tortured it so they could torture a man with cancer.
How absurd, but our justice department has very little justice these days. Or common sense. Huh, according to the court, justice OR common sense are the same exact things!
Oh it’s infuriating that Wal-Mart could get away with this (which they will because this guy has no energy or money to get the lawyers behind him to sue Wal-Mart for what they have done) and it’s even more infuriating that a gaggle of attorneys could come up with such nonsensical drivel. Medical Marijuana legislation is meaningless and useless if you can interpret it out of existence; the use of “Marijuana Use as crime” is part of a government scandal that sees certain laws staying on the books for the specific and obvious purpose of having charges to use to harass certain “elements” of the population. Below contempt; obvious; part and parcel of the whole fraudulent system of “law and order.” Cheap fake junk sold to us by the same methods with which everything ELSE from Wal-Mart is sold to us.
Boycott them for crissake, do not darken their doorways.
Nox Ninox X 2. Correct sir. The fix is in against medical mj at the federal level. For the court to say a simple reading of the language of the statute was counter-intuitive and then torture the language and logic to have it mean what it needed to mean to justify the desired result is simply through the looking glass.
I would also opine that there is no gap or ambiguity in the language wherein to argue different interpretations of the meaning; this is not a meaning of “is” moment. This is a ‘looking for any excuse’ moment to give business the widest possible latitude and continue the Administration’s policy of punishing a change in drug policy coming from the bottom up.
***
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – – that’s all.”
Do you know how much respect I have for the law. None.
WS should be WordPress.
A ridiculously cramped interpretation clearly intended to thwart the plain meaning of the statute. After all, under what possible scenario does the court contemplate that an employee would ever be subject to discipline from a “business licensing board” in the first place?
An occupational or professional licensing board sure, since those would groups have direct authority to grant a license to the individual practitioner, but a business licensing board deals with granting the company itself a license to operate, and is rarely, if ever, given jurisdiction over the prosecution of the company’s individual employees.
And yes, maybe the MI legislature could have been more clear by inserting a comma after the word business, but for the Federal court to bootstrap such a tortured grammatical picayune into a reason for emasculating the clear intent of the state legislature (what about ‘denied ANY right or privilege’ does the court not understand?) shows that either the court does indeed have its own ‘legisprudential’ agenda or that the members have been smoking the very same stuff they are so blatantly trying to suppress.
Darren,
Not sure it was you. WS has swallowed two posts and done other goofy things today.
Your example is good. There it is clear that it is the patient acting on the advice of a health care professional who makes the decision. Not based on where the patient is employed.
The Michigan interpretation is plain stupid. Wonder how many states do like Michigan?
Frankly,
Been there. Done that. Two years and three months since.
Goofed up the formatting:
This is an example of the need of perhaps adopting a Legislative Intent Section to the law, which might clear some of the ambiguous interpretation of the law by the courts. It would save quite a bit of time in the courts’ appeals processes.
Here is a link to an example of a legislative intent:
Washington State’s Medical Cannabis Law’s Legislative Intent
Len has hit the nut on this one – if you are doing your job well and are not causing problems who cares if you are getting high? Its become a huge industry in America to perform drug screenings for new hires and I sort of get the reason for that. But if the person shows up regularly, does their job competently (which this person did exceptionally well) then whats the problem.
A year ago I underwent radiation for throat cancer, I was very ill, I was on pain killers, I was weak. I stayed on the job & performed well enough until the last couple of weeks. Would the company been allowed to fire me because I had legally obtained oxycodone in my system while at work?
Wal-Mart seems to go out of its way to cultivate a bad reputation and this silliness is just another brick in the wall.
Appreciate the effort by the Professor in showing the different ways of reading, ie understanding how a law should be interpreted. Just goes to show that much that is legislated is not a firm basis to enforce the “peoples'” will.
I would definitely not depend on using english useage
as a reason for decision. Supposed to be tested before enactment does not mean that they are tested.
Statement of intents should instead be better guidance.
Washington State’s Medical Cannabis Law’s Legislative Intent
I still do not see either point in that being “drug free” is essential for others’ safety. It’s one thing if one chooses to imbibe on the job whether it be cannabis or alcohol etc. However, if there are no effects the next day and the person is sober when he comes to work, he should not be punished or denied work because of a blood test which says he was doing something on his own time. That person is no danger to anyone and there is no justification for the dismissal. It seems that misinformation and a bias against cannabisresulting from 7+ decades of paranoia and propaganda are showing their ugly heads in this situation.
The worst part of all this, as I recall the story, is that this individual was one of that store’s best performing individuals. Repeatedly winning ’employee of the month’ and other awards based on high (pun not intended) performance.
To me it seems clear that the intent of the law is to protect workers from being fired for using their medicine.
This is a rule based on a stupid technicality that’s protecting one of the shadiest corporations in the oligarchy.
I’m surprised that Walmart terminated a terminal ill worker. They’re losing out on a life insurance payout that would probably exceed his wages.
Apart from a few safety related jobs where being drug free is essential to the safety of others (airline pilot, train engineer, etc – jobs that I’m not qualified for) I wouldn’t consider working for a company that requires drug testing. If I doing the job, it’s no one’s business what I inhale or ingest on my own time. If I’m not doing the job, fire me for that.
I do have a problem in this area. Wal-Mart is one thing and I see no reason for the termination, really. But, In my field, electrical contracting, the use of any drug that impairs performance or awareness can constitute a hazard to the individual and the others, both my employees, and clients, or in truth pure bystanders. There I would consider the hazard to others to outweigh the supposed harm to the user. But would the Law?