Federal Appellate Court Rules Medical Marijuana Law Does Not Protect Worker In Use of Medical Marijuana

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

51 thoughts on “Federal Appellate Court Rules Medical Marijuana Law Does Not Protect Worker In Use of Medical Marijuana”

  1. Darren Smith: >”There is an initiative on the upcoming ballot in Washington to remove the criminal and civil penalties associated with marijuana for adults and do what Washington does best, tax the heck out of it.”<

    What a great idea! If the Feds dropped this stupid 'war on drugs' and did exactly what Washington is trying to do, we would have the national debt paid down in one year! I'm all for it!

  2. Matt J: “Oh my, Malisha. You don’t know what you’re talking about.”

    Uh oh, little bit silly, Matt. I’m gonna stop talking funny to you if you keep this up. :mrgreen:

  3. Oh my, Malisha. You don’t know what you’re talking about. The “law” doesn’t set forth anything easy to understand.

    It’s a matter of interpretation. Do you know who gets to interpret? The million dollar question. What happens when somebody else gets to interpret?

  4. Exactly, Matt. When a law sets forth something easy to understand, with a little bit of grammatical equivocation, still, we really know what it means. I was just being funny, writing something totally incomprehensible, as a comparison. Just my twisted humor — no offense meant.

  5. Malisha 1, September 21, 2012 at 6:12 pm

    Shano,
    “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.”

    You mean: “Stay away from this terrible business or selling stuff or doing stuff establishment in the business of goods or services or good services or retailing or providing or something” right?

    Get it STRAIGHT, man. God only KNOWS what you will be charged with (or without or not).

    Matt J, kiss your what, business or pleasure whatever? (Don’t even think about it) (or) (not that business)(or)(agency ahem) you got that? Yeah, so bite me. And yes, the law is a a55, and I hope you never get discriminated against by a business or agency because if you do the law won’t help you.
    ============
    Malisha, I don’t even know what you’re talking about.

  6. idealist707 1, September 21, 2012 at 3:37 pm

    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.
    =====================
    One stop shopping. Capitalism. Walmart won.

  7. Just to add, there’s no reasonable argument to be made that an implied comma should be magically inserted after “disciplinary action” to break the secondary clause in a way that would limit the entirety of the statement’s targets to “business or occupational or professional licensing board(s) or bureau(s)” without making a mockery of the words “arrest and prosecute”.

  8. This interpretation is facially incorrect — the secondary clause is irrelevant by any reading of the preceding qualifiers, where it is specifically introduced as merely an unlimiting example.

    To see this, look at how the clear meaning of the sentence would be completely unchanged even were it to read as follows:
    “… shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to monkeys flying out of the plaintiff’s butt.”

    On what basis are the words “in any manner”, “any right or privilege” and especially “including but not limited to” handwaved away to profit an unscrupulous employer?

  9. Another reason I don’t do business with WalMart….

    If the person isn’t doing the job, then get rid of them, but then would WalMart have a incentive to get rid of sick employees? Everyone goes that’s on medicine then?

    Another reason they need a Union….LoL

  10. Congress needs to draft some legislation on medical coverage for employees. One particular area which needs to be eliminated is ScaliaCare or health coverage for federal judges completely paid for on the public dime. The Sixth Circuit can then hone in on interpreting that law.

    There is something that we can do for Walmart. Go in once a week, buy nothing and let off some rear end gas.

  11. Malisha.

    Re: Shano. I wondered when someone other than I would call him for “Walking without Brain using loose tongue”???
    Is that committable? He/She was once a dependable clean food addict promoting hemp for making cars, etc.
    He went over the top over the summer and may never recover.

    Matt has a tic which comes on once in a while. I called him on it and he promised but regresses.

    Matts: NO NO NO! You are amazingly smart at times. Wait until that occurs. Stop stomping your foot.

  12. Kraakan

    The federal government lists Marijuana as a Schedule 1 Drug as it contains Tetrahydrocannabinols (THC). As such it is, by definition:

    1.The drug or other substance has a high potential for abuse.
    2.The drug or other substance has no currently accepted medical use in treatment in the United States.
    3.There is a lack of accepted safety for use of the drug or other substance under medical supervision.

    This runs into conflict with state laws that have declared a “Medical Marijuana” provision, which are prohibited under 2) above.

    This is odd because there actually is a prescription med having the generic name of Dronabinol which is indicated for treatment of weight loss and apetite issues for AIDS patients and to treat side effects of Chemotherapy induced nausea.

    There is an initiative on the upcoming ballot in Washington to remove the criminal and civil penalties associated with marijuana for adults and do what Washington does best, tax the heck out of it. I would imagine there would be a substantial risk of suddenly having the DEA make a friendly visit to any business that sold it.

    Washington Initiative i-1149

  13. Shano,
    “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.”

    You mean: “Stay away from this terrible business or selling stuff or doing stuff establishment in the business of goods or services or good services or retailing or providing or something” right?

    Get it STRAIGHT, man. God only KNOWS what you will be charged with (or without or not).

    Matt J, kiss your what, business or pleasure whatever? (Don’t even think about it) (or) (not that business)(or)(agency ahem) you got that? Yeah, so bite me. And yes, the law is a a55, and I hope you never get discriminated against by a business or agency because if you do the law won’t help you.

  14. Isn’t the problem basically that as long as mj is on the federal drugs list, it really doesn’t matter WHAT the state/people wants/want. Since Federal law trumps State law, all fifty states could approve it’s use and even de-criminalize it and the Federal drug laws would still prevail.

  15. @shano
    This is not a study of the meaning of “is”, it is the meaning of “or”.

    It’s also a study of the meaning of “including but not limited to”, which the court interprets as “limited to”.

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