People v. Butler-Jackson

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

November 6, 2014

Plaintiff-Appellee, 9:05 a.m.

v No. 315591

Macomb Circuit Court

LOIS BUTLER-JACKSON, LC No. 2011-003482-FH

Defendant-Appellant.

Before: RIORDAN, P.J., and CAVANAGH and TALBOT, JJ.

CAVANAGH, J.

Defendant appeals as of right her jury convictions for conspiracy to commit a legal act in

an illegal manner, MCL 750.157a, and intentionally placing false information in a patient’s

medical record, MCL 750.492a(1)(a). We vacate defendant’s conspiracy conviction. In all other

respects, we affirm.

Defendant, a physician, and Brian Deloose were in the business of providing, for a price,

physician certifications required to obtain registry identification cards issued by the department

of licensing and regulatory affairs1 to qualifying patients for the medical use of marijuana under

the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq.2 See MCL

333.26426(a)(1). Defendant would provide Deloose with signed, but otherwise blank, physician

certification forms, and Deloose would meet with their customers, fill in the blanks with the

required information, and obtain money in exchange for the “physician certifications.” Their

customers could then submit the “physician certification,” claiming to be eligible for a registry

identification card as a “qualifying patient” under MCL 333.26426(a)(1) of the MMMA. A

“qualifying patient” is “a person who has been diagnosed by a physician as having a debilitating

medical condition.” MCL 333.26423(i). And a qualifying patient with a registry identification

card is not “subject to arrest, prosecution, or any penalty in any manner . . . for the medical use

of marihuana in accordance with this act . . . .” MCL 333.26424(a).

1

MCL 333.26423(c) and (j).

2

While the statutory provisions refer to “marihuana,” in this opinion we use the more common

spelling “marijuana.”

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Criminal charges were filed against defendant and Deloose following a police

investigation that involved two undercover police officers purchasing “physician certifications”

from Deloose that were signed by defendant. The officers did not see defendant, were not

examined by defendant, and gave defendant no medical history. The transactions with Deloose

took approximately 15 to 20 minutes, the officers paid $250 for their “physician certifications,”

and defendant received a portion of the proceeds from each sale. Defendant was charged with

conspiracy to commit a legal act in an illegal manner in violation of MCL 750.157a, for

unlawfully conspiring “to issue signed ‘Physician Certifications’ under the Michigan Medical

Marijuana Act without establishing a bona fide physician-patient relationship and/or without

establishing a factual basis to form a professional opinion that the person is likely to receive

therapeutic or palliative benefit from the use of marijuana.” Defendant was also charged with

falsifying medical records in violation of MCL 750.492a(1)(a). Deloose was charged with

conspiracy and falsifying medical records, but he was also charged with three counts of delivery

or manufacture of marijuana in violation of MCL 333.7401(2)(d)(iii).

Subsequently, defendant filed a motion to quash the information, arguing that her conduct

was in conformity with the MMMA and, thus, she was entitled to immunity under MCL

333.26424(f). In the alternative, she argued, that statute was so vague that her right to due

process was violated. Further, defendant argued that any “certification” she provided did not

constitute a medical chart or report.

Plaintiff responded to defendant’s motion to quash, arguing that defendant was not

charged with a violation of the MMMA; rather, she was charged with conspiracy to commit a

legal act in an illegal manner. The “legal act” was providing her signature on medical marijuana

certification forms. The “illegal manner” included failing to examine any of their customers and

providing signed, blank certification forms to Deloose. Plaintiff argued that, because defendant

did not comply with the MMMA, she could not assert any of its defenses. Further, the

“physician certifications” constituted medical records and, when defendant signed her name to

blank certification forms attesting to her professional medical opinion without any contact with

their customers, she falsified medical records.

The trial court agreed with plaintiff, noting that the essence of conspiracy is the

agreement itself and concluding that defendant “participated in a scheme to legally provide

certifications for potential consumers, in an illegal fashion” by pre-signing certifications without

examining the prospective marijuana purchasers. Further, the trial court held, the definition of

“medical record” includes information recorded in any form that pertains to a patient’s health,

MCL 333.26263(i). And defendant signed certifications stating that she “had responsibility for

the care and treatment” of the named patient who, in her medical opinion, was diagnosed with a

debilitating medical condition and was likely to benefit from the medical use of marijuana.

Thus, defendant’s motion to quash the information was denied.

Defendant moved for reconsideration of the trial court’s opinion and order, arguing that

the court failed to address her claim of immunity under MCL 333.26424(f) and her claim that the

statute was vague. The trial court issued an opinion and order denying defendant’s motion for

reconsideration, holding that defendant was not charged with crimes under the MMMA;

however, even if she was, defendant failed to establish that she complied with MCL

333.26424(f) and was entitled to immunity. Thereafter, defendant filed an application for leave

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to appeal to this Court which was denied. People v Butler-Jackson, unpublished order of the

Court of Appeals, entered November 19, 2012 (Docket No. 312869).

Subsequently, defendant filed a second motion to quash the information as to the

conspiracy charge, arguing that the charge must be dismissed because the “unlawful manner”

element of the conspiracy charge could not be established; her failure to follow the certification

procedure set forth in the MMMA did not constitute a criminal offense. Plaintiff opposed

defendant’s motion, arguing that the manner in which the legal act was accomplished need not be

“criminal.” And, here, the “legal act” committed by defendant was certifying that individuals

suffered from debilitating medical conditions and would benefit from the medical use of

marijuana. The “illegal manner” was her failure to comply with the requirements of MCL

333.26424(f) because she certified individuals for use of medical marijuana but did not have

bona fide physician-patient relationships and did not complete full medical history assessments.

Plaintiff argued that “[t]he logical corollary to [this immunity statute] is that if the physician does

not comport with the statute, she is subject to prosecution.”

The trial court issued an opinion and order denying defendant’s second motion to quash,

holding that the “illegal manner” in which defendant was alleged to have committed the legal

acts of certifying individuals for marijuana use was her failure to comply with the requirements

of MCL 333.26424(f). Further, the court held, although defendant would be afforded the

protections set forth in that statute if she had complied with it, “the natural corollary to that is

that if the physician does not comply, he or she is subject to prosecution.” Thereafter, a jury trial

was conducted and defendant was convicted of both charged offenses. This appeal followed.

Defendant argues that her conspiracy conviction must be reversed because she was

immune from prosecution under MCL 333.26424(f) of the MMMA and, in the alternative, her

conspiracy conviction must be vacated because her conduct was not illegal. We agree, in part.

We review de novo issues of statutory interpretation. People v Gardner, 482 Mich 41,

46; 753 NW2d 78 (2008). Generally, the primary goal of statutory interpretation is to discern

and give effect to the Legislature’s intent. People v Morey, 461 Mich 325, 329-330; 603 NW2d

250 (1999). But the MMMA was the result of a voter initiative therefore we must ascertain and

give effect to the intent of the electorate. People v Kolanek, 491 Mich 382, 397; 817 NW2d 528

(2012). To that end, “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 NW2d 693 (1995).

First, we consider defendant’s claim that she was immune from prosecution under MCL

333.26424(f) of the MMMA. At the relevant time, MCL 333.26424(f) provided:

A physician shall not be subject to arrest, prosecution, or penalty in any

manner . . . solely for providing written certifications, in the course of a bona fide

physician-patient relationship and after the physician has completed a full

assessment of the qualifying patient’s medical history, or for otherwise stating

that, in the physician’s professional opinion, a patient is likely to receive

therapeutic or palliative benefit from the medical use of marihuana to treat or

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alleviate the patient’s serious or debilitating medical condition or symptoms

associated with the serious or debilitating medical condition . . . .

Defendant argues that she was entitled to immunity because she had bona fide relationships with

her customers and stated that, in her professional opinion, each of her customers were likely to

benefit from the medical use of marijuana. At the time she was charged, the phrase “bona fide

relationship” was not defined in the MMMMA; however, defendant argues, she did not have to

physically meet with patients to have “bona fide physician-patient relationships.”

We need not decide whether defendant had to physically meet with her customers to have

“bona fide physician-patient relationships” because, in this case, there was no evidence of any

type of “physician-patient relationship.” But, as this Court noted in People v Redden, 290 Mich

App 65, 86; 799 NW2d 184 (2010), quoting Random House Webster’s College Dictionary

(1997), the definition of “bona fide” includes: “2. authentic; genuine; real.” Here, there was no

evidence that defendant had “bona fide physician-patient relationships” with the undercover

police officers, or similar persons, seeking certifications, or that she completed full assessments

of their medical histories before signing the written certifications that were filled out and issued

by Deloose. And there was no evidence that defendant could have formulated any “professional

opinion” regarding the likelihood that the undercover police officers, or similar persons—who

only saw and paid Deloose for the certifications—would likely benefit from the medical use of

marijuana to treat or alleviate serious or debilitating medical conditions or related symptoms.

Accordingly, defendant’s claim that she was entitled to immunity under MCL 333.26424(f) is

wholly without merit.

Second, we consider defendant’s claim that she could not be convicted of conspiracy to

commit a legal act in an unlawful manner for failing to comply with MCL 333.26424(f) because

such conduct is not illegal. In essence, defendant is arguing on appeal, and argued in the trial

court, that the allegations set forth in the information did not constitute the crime of conspiracy

to commit a legal act in an illegal manner.3 We agree.

The conspiracy statute, MCL 750.157a provides:

Any person who conspires together with 1 or more persons to commit an offense

prohibited by law, or to commit a legal act in an illegal manner is guilty of the

crime of conspiracy . . . .

3

While defendant argues on appeal that the conspiracy statute is “impermissibly vague as

applied to her circumstances,” it appears from her argument that she is actually claiming that the

information was insufficient because it failed to allege that criminal means were used to

accomplish the lawful object of the alleged conspiracy. That is, she argues, “[f]ailure to comply

with the requirements of the MMMA is not a felony, a misdemeanor, or even a civil infraction.”

Thus, we need not consider the related issues whether the conspiracy statute was vague as

applied to her circumstances or whether this prosecution was barred by the “rule of lenity.”

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Defendant was not charged with conspiring to commit “an offense prohibited by law.” For

example, defendant was not charged with conspiracy to deliver marijuana to their customers who

actually obtained registry identification cards with defendant’s “physician certifications” and

then used the identification cards to purchase marijuana. She also was not charged with, for

example, conspiracy to obtain money by false pretenses in violation of MCL 750.218(1)(c) for

selling physician certifications by falsely representing that the certifications satisfied the

requirements of the MMMA knowing that they were, in fact, worthless because defendant did

not have bona fide physician-patient relationships with their customers, did not complete a full

assessment of their customers’ medical history, and could not render any professional opinion

that their use of medical marijuana would be beneficial as required by the MMMA.

Instead, defendant was charged with conspiring to commit a legal act in an illegal

manner. Specifically, defendant was charged with unlawfully conspiring “to issue signed

‘Physician Certifications’ under the Michigan Medical Marijuana Act without establishing a

bona fide physician-patient relationship and/or without establishing a factual basis to form a

professional opinion that the person is likely to receive therapeutic or palliative benefit from the

use of marijuana.” We agree with defendant that the “illegal manner” charged was not “illegal.”

When the charge of conspiracy is premised on the performance of a legal act in an illegal

manner, the element of criminality that must be established is the illegal manner otherwise the

agreement is not a crime. See People v Arnold, 46 Mich 268, 271; 9 NW 406 (1881). As our

Supreme Court held in Alderman v People, 4 Mich 414 (1857):

[T]o constitute an indictable conspiracy, there must be a combination of

two or more persons to commit some act, known as an offense at common law, or

that has been declared such by statute.

* * *

If, on the contrary, the combination be to do an act, not in itself unlawful,

but which it is agreed to accomplish by criminal or unlawful means, then those

means must be particularly set forth, and be such as constitute an offense, either at

common law or by statute. [Id. at 431-432.]

We first determine whether defendant and Deloose conspired to commit “a legal act.” As

discussed above, defendant and Deloose were in the business of providing, for a price, physician

certifications to prospective applicants seeking registry identification cards issued by the

department of licensing and regulatory affairs for the medical use of marijuana. An agreement to

provide the service of issuing physician certifications for a price, alone, is not an illegal act. A

physician certification must be submitted in support of a request for a registry identification card

and, generally, physicians and their assistants are paid for their services. Thus, we conclude that

defendant and Deloose conspired to commit “a legal act,” i.e., an act that was not “an offense

prohibited by law” within the contemplation of MCL 750.157a.

Next, we consider whether defendant and Deloose conspired to commit that legal act “in

an illegal manner.” MCL 750.157a does not define the phrase “illegal manner;” thus, we may

consult a dictionary to construe the terms according to their ordinary and generally accepted

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meanings. See People v Haynes, 281 Mich App 27, 29; 760 NW2d 283 (2008). The word

“illegal” means “forbidden by law or statute.” Random House Webster’s College Dictionary

(1997). And the word “manner” means “a way of doing, being done, or happening; mode of

action, occurrence, etc.” Id.

Here, the “manner” in which defendant and Deloose conducted their business of

providing physician certifications to their customers for money included that defendant would

sign blank certification forms which stated:

I hereby certify that I am a physician licensed to practice medicine in Michigan. I

have responsibility for the care and treatment for the above named patient. It is

my professional opinion that the applicant has been diagnosed with a debilitating

medical condition as indicated above. The medical use of marijuana is likely to

provide therapeutic benefits for the symptoms or affects [sic] of applicant’s

condition. This is not a prescription for the use of medical marijuana.

Additionally if the patient ceases to suffer from the above identified debilitating

condition I hereby certify I will notify the department in writing.

The manner in which defendant and Deloose conducted their business of providing physician

certifications to their customers also included that Deloose would meet with their customers, fill

in the information required by the certification form, and collect money in exchange for the

completed document that appeared on its face to be legitimate and valid for purposes of the

MMMA. Defendant had no previous relationships with any of their customers, did not meet

with their customers, did not examine their customers, and did not collect any medical history

from their customers. Accordingly, despite her certified statements to the contrary, defendant

could not have had “responsibility for the care and treatment” of the prospective applicants, and

could not have formulated a “professional opinion that the applicant has been diagnosed with a

debilitating medical condition,” or that the “medical use of marijuana [was] likely to provide

therapeutic benefits for the symptoms or affects [sic] of applicant’s condition.”

The issue, then, is whether this “manner” of providing physician certifications was

“illegal.” The prosecution argued in the trial court, and argues here on appeal, that the failure to

comply with the requirements of MCL 333.26424(f) was “illegal.” But MCL 333.26424(f) does

not state that the failure to comply with its requirements is “illegal.” That is, this statute does not

define prohibited conduct and it does not authorize punishment for noncompliance. Rather,

MCL 333.26424(f) grants immunity from arrest, prosecution, or penalty to physicians who meet

the delineated requirements, just as subsections (a) and (b) grant broad immunity to qualifying

patients and primary caregivers who meet the statutory requirements. See People v Carruthers,

301 Mich App 590, 597-598; 837 NW2d 16 (2013). The MMMA does provide for prosecution

for certain proscribed acts. MCL 333.26427(d) provides that “[f]raudulent representation to a

law enforcement official of any fact or circumstance relating to the medical use of marihuana to

avoid arrest or prosecution” is punishable by a fine. And MCL 333.26424(k) provides that it is a

felony for a registered qualifying patient or registered primary caregiver to sell marijuana to

someone not allowed to use it for medical purposes under the MMMA. Unlike these statutory

provisions, MCL 333.26424(f) does not prohibit physicians from issuing written certifications in

the absence of a bona fide physician-patient, without conducting a full assessment of medical

history, and when a “professional opinion” cannot be formulated. That is, this statute does not

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define any prohibited conduct, does not characterize any such conduct as constituting either a

misdemeanor or felony, and does not provide for any punishment.

Plaintiff argued in the trial court, and the trial court agreed, that “[t]he logical corollary to

[MCL 333.2624(f)] is that if the physician does not comport with the statute, she is subject to

prosecution.” We disagree. The “logical corollary” is that a physician who fails to comply with

the statute is not immune from “arrest, prosecution, or penalty in any manner.” See MCL

333.26424(f). Therefore, we conclude that the charged “manner” that defendant and Deloose

were alleged to have used to accomplish the legal act of providing physician certifications for

money was not “illegal” because the failure to comply with the requirements of MCL

333.26424(f) is not illegal. That is, the issuance of signed physician certifications for purposes

of the MMMA “without establishing a bona fide physician-patient relationship and/or without

establishing a factual basis to form a professional opinion that the person is likely to receive

therapeutic or palliative benefit from the use of marijuana” is not illegal under MCL

333.26424(f). Accordingly, the information did not set forth the criminal offense of conspiracy

to commit a legal act in an illegal manner and defendant’s conspiracy conviction must be

vacated.4 See, e.g., People v Summers, 115 Mich 537, 543; 73 NW 818 (1898); People v

Petheram, 64 Mich 252, 258; 31 NW 188 (1887); Alderman, 4 Mich at 429.

Further, defendant argues by supplemental brief that her sentence impermissibly included

the assessment of court costs in the amount of $1,000. After de novo review of this issue of law,

we disagree. See People v Cunningham, 496 Mich 145, 149; 852 NW2d 118 (2014).

In Cunningham, 496 Mich at 149, our Supreme Court held that a sentence cannot include

the imposition of court costs unless authorized by statute. The Court noted, however, that the

Legislature has chosen to provide courts with the authority to impose costs under certain

circumstances, including “when a criminal defendant is placed on probation.” Id. at 150-151.

Pursuant to MCL 771.3(2)(c), as a condition of probation, a court may require the probationer to

“[p]ay costs pursuant to subsection (5).” And subsection (5) provides: “If the court requires the

probationer to pay costs under subsection (2), the costs shall be limited to expenses specifically

incurred in prosecuting the defendant or providing legal assistance to the defendant and

supervision of the probationer.”

In this case, defendant was sentenced to 18 months’ probation and ordered to pay

supervision fees of $360, court costs in the amount of $1,000, and $3,416.90 in repayment of

court-appointed attorney fees. The trial court was authorized by MCL 771.3(2)(c) to impose

these costs against defendant. Accordingly, defendant’s claim is without merit.

4

In light of this conclusion, we need not address defendant’s related challenge to the sufficiency

of the evidence premised on her claim that “the prosecution presented no evidence to establish

that any action taken by [her] was done in an ‘illegal manner.’”

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Defendant’s conspiracy conviction is vacated. In all other respects, we affirm.

/s/ Mark J. Cavanagh

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