United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S EMERGENCY
MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER, PRELIMINARY
INJUNCTION, AND DECLARATORY RELIEF (ECF NO. 2)
D. BORMAN, UNITED STATES DISTRICT JUDGE
5, 2019, Plaintiff filed her Verified Complaint for
Declaratory Judgment and Injunctive Relief. (ECF No. 1.) On
that same date, Plaintiff filed an Emergency Motion for
Ex Parte Temporary Restraining Order, Preliminary
Injunction, and Declaratory Relief. (ECF No. 2.) The Court
held a telephonic status conference with all parties on June
11, 2019, and established a briefing schedule on
Plaintiff's Emergency Motion. Defendant filed a Response
on June 21, 2019. (ECF No. 8.) Plaintiff filed a Reply on
July 12, 2019. (ECF No. 14.) The Court held a hearing today,
July 17, 2018. For the reasons that follow, the
Plaintiff's Emergency Motion is DENIED.
action, Plaintiff asks this Court to require the Defendant
Michigan Department of Licensing and Regulatory Affairs
(“LARA”) to “modify and extend”
certain temporary and now-expired Emergency Rules that were
previously put in place under the Medical Marihuana
Facilities Licensing Act (“MMFLA”). Plaintiff seeks
an extension of these expired Emergency Rules so that she can
continue to purchase untested marihuana from a licensed
dispensary. In short, under Michigan law, licensed
provisioning centers were permitted to sell only
safety-tested marihuana and to purchase product only from
licensed growers and processors. Under the expired Emergency
Rules, which expired on March 31, 2019, licensed provisioning
centers were able to purchase untested product outside the
regulated system (as pertinent here from
“caregivers” who purchase and supply untested
product) without facing disciplinary action. With the
expiration of the Emergency Rules, licensed provisioning
centers are no longer able to purchase and sell untested
marihuana outside the regulatory system. As a result,
according to the Plaintiff's Complaint, the caregivers
have no market for the product they obtain and the
provisioning centers are unable to keep up with demand if
required to sell only tested product from licensed processors
and growers. As a consequence, Plaintiff alleges, she has
been without access to her medical marihuana medication since
May 15, 2019. (ECF No. 16, July 17, 2019 Affidavit of Sherry
Hoover ¶ 8.)
claims that as a consequence of the expiration of the
Emergency Rules, she is unable to obtain the marihuana
products she needs to treat the symptoms of her cancer.
Plaintiff argues that “allowing the Emergency Rules to
expire is a clear violation of Plaintiff's due process
rights.” (Pl.'s Aff. ¶¶ 5-9; Pl.'s
Mot. 14, PgID 44.) Plaintiff argues that she has a license to
obtain medical marihuana and her right to obtain medical
marihuana is now being impeded by LARA. Plaintiff also
suggests that her due process rights have been violated
because her inability to obtain medical marihuana
“constitutes a deprivation of life, quite
literally.” (Pl.'s Mot. 14, PgID 44.)
State responds that Plaintiff has no likelihood of success on
the merits of her claims because: (1) LARA is absolutely
immune to suit under the Eleventh Amendment, (2) the Court
lacks subject matter jurisdiction because the Complaint fails
to allege a colorable federal question, (3) the Plaintiff
lacks standing, (4) Plaintiff's claims lack substantive
merit, and (5) the Court should abstain from reviewing her
claims. The State also asserts that Plaintiff has not
established a threat of irreparable injury and the public
interest weighs against granting an injunction.
is an illegal Schedule 1 controlled substance under federal
law. 21 U.S.C. § 812(c). Marihuana is also listed as a
schedule 1 controlled substance under Michigan law, Mich.
Comp. Laws § 333.7212, with the exception that the drug
is categorized in schedule 2 “only for the purposes of
treating a debilitating medical condition.” Mich. Comp.
Laws § 333.7214(e).
2008, voters passed the Michigan Medical Marihuana Act
(“MMMA”), Mich. Comp. Laws § 333.26421
et seq., by ballot initiative. The MMMA did not
create an affirmative right to use or possess marihuana but
created protections under state law for medical use to
qualifying patients and their caregivers who comply with the
MMMA's requirements. Mich. Comp. Laws §§
333.26422(b); 333.26424. LARA was charged with administering
the MMMA and maintaining a cardholder registry. Mich. Comp.
Laws § 333.26426.
2016, the Michigan Legislature enacted the Medical Marihuana
Facilities Licensing Act (“MMFLA”) “to
license and regulate medical marihuana [facilities].”
Mich. Comp. Laws § 333.27101 et seq. The
Medical Marihuana Licensing Board (“the Board”)
was created within LARA and charged with implementing and
enforcing the MMFLA. Mich. Comp. Laws § 333.27301(1).
The MMFLA provides protections for those granted a license
and engaging with activities within the scope of the MMFLA.
Mich. Comp. Laws § 333.27201. Under the MMFLA, licensed
provisioning centers are authorized to purchase safety-tested
marihuana only from licensed growers and processors and are
authorized to sell it in limited quantities to patients and
caregivers who are registered under the MMMA.
March 2019, Governor Gretchen Whitmer issued an executive
order abolishing the Board and LARA's Bureau of Marihuana
Regulation (“BMR”) effective April 30, 2019.
Mich. Comp. Laws 333.27001(1)(b), (e). The Governor's
Executive Order transferred all powers, duties, functions and
responsibilities of LARA, BMR, and the Board to a newly
created Marijuana Regulatory Agency (“MRA”).
Mich. Comp. Laws § 333.27001(1). The MRA was
“created as a Type I agency within the Department of
Licensing and Regulatory Affairs.” Mich. Comp. Laws
§ 333.27001(1)(a), and all of LARA's
“authorities, powers, duties, functions, and
responsibilities . . . under the [MMA, MMFLA]” among
other statutes were transferred to the new MRA. Mich. Comp.
Laws § 333.27001(1)(d). The MRA exercises its powers and
duties independent of LARA's direction. “When any
board, commission, or other agency is transferred to a
principal department under a type I transfer, that board,
commission or agency shall be administered under the
supervision of that principal department. Any board,
commission or other agency granted a type I transfer shall
exercise its prescribed statutory powers, duties and
functions of rule-making, licensing and registration
including the prescription of rules, rates, regulations and
standards, and adjudication independently of the head of the
department. Under a type I transfer all budgeting,
procurement and related management functions of any
transferred board, agency or commission shall be performed
under the direction and supervision of the head of the
principal department.” Mich. Comp. Laws § 16.103.
issued a series of Emergency Rules beginning in late 2017 and
continuing through a final set of Emergency Rules which
expired in March, 2019. The Emergency Rules provided that
licensed provisioning centers were able to purchase and sell
untested product outside the regulated system without facing
disciplinary action. With the expiration of the Emergency
Rules, licensed provisioning centers are no longer able to
purchase and sell untested marihuana outside the regulatory
system. This, Plaintiff claims, has resulted in her inability
to access her medical marihuana medications.
different plaintiff seeking the same relief that Plaintiff
seeks here previously filed suit in the Michigan courts, but
was denied relief. In The Curing Corner, LLC v. Mich.
Dept. Of Licensing and Reg. Affairs, No. 19-000052-MZ
(Mich. Ct. Of Claims, Apr. 30, 2019), Judge Stephen L.
Borello explains in his opinion that the Curing Corner was
asking that court to “essentially require LARA to
extend previous iterations of now-expired emergency
rules.” (ECF No. 9-1, Def.'s Resp. Appendix Ex. 1,
April 30, 2019 Opinion and Order at 10, PgID 240.) In his
opinion Judge Borello states: “[T]he Court is without
authority to grant the relief plaintiff Curing Corner
requests and it will not dictate to LARA procedures for the
sale of marijuana.” (Id. at 10-11, PgID
240-41.) Plaintiff the Curing Corner was represented by the
same counsel representing Plaintiff here, Ms. Donovan. No.
appeal was ever taken from Judge Borello's opinion
denying the very relief sought here. Instead, Plaintiff
brought her claims to this Court and sued LARA - a state