A Court of Appeals Judge with a checkered past is about to lose his job because he’s too old. Instead of retiring with grace he has sued the State to let him claim to be something he is not to get a job he does not have- and in his lawsuit he’s helped the marijuana users he so vehemently fought against.
Judge Peter O’Connell authored a Michigan Court of Appeals Concurring Opinion in 2010 which compared being a patient enrolled in the Michigan Medical Marihuana Act to being a wizard competing in the treacherous and often lethal contest known as the Tri-Wizard Tournament in the mythical Harry Potter universe (see quote below). He wrote that Congress had determined marijuana holds “no acceptable medical uses” and all citizens should immediately stop marijuana consumption or face the consequences.
O’Connell will be older than 70 years by the time his term in the Michigan Court of Appeals is completed. A recent article from the MIRS News Service (COA Rules Court Of Claims Must Rule On Age-Restricted Judge) reports O’Connell cannot seek another Appellate term due to age restrictions on the position so he’s seeking a different seat on the bench- one that will take him regardless of his super-senior status. Because he is a sitting Judge on the Appellate Court, O’Connell wants the Secretary of State to list him on the ballot as an incumbent candidate, defined as a person who currently holds the office. Incumbents almost never lose in elections, so despite the fact that he is not an incumbent, Judge O’Connell would like the ballot to say that he is anyway.
The Judge sued the Secretary of State under a Writ of Mandamus in the Court of Claims (Claims) to get that special status on the ballot. Claims earlier this year refused to hear the case, stating that only the Circuit Court could respond to Writs compelling the Secretary of State to modify the ballot. The Appellate Court has reversed that claim and requires Claims to hear the case as the proper legal venue.
This helps MILegalize, who have already filed their lawsuit in Claims challenging the state on elections law issues related to the rejection of their petitions due to a disputed interpretation of law. MILegalize submitted 354,000 petition signatures on June 1 in support of legalized adult use of marijuana in Michigan; the Board of State Canvassers rejected the petitions because half of the signatures were older than 180 days.
Michigan’s Constitution allows for a rebuttal process to validate the old signatures, but earlier in 2016 the BOSC deadlocked in a vote on updating their requirements for the rebuttal. The Canvassers are sticking with a 30-year old process so cumbersome it has never been used before, which MILegalize claims in their Mandamus lawsuit establishes an impossible methodology.
Since the O’Connell lawsuit was previously rejected by Claims as being filed in the wrong court, observers had opined that the MILegalize Mandamus action was placed in the wrong Court. This Appellate action indicates that Claims was the proper venue for the legal action initiated by MILegalize Chair and attorney Jeff Hank, in association with fellow attorney Thomas Lavigne (Detroit’s Cannabis Counsel) and others.
HARRY POTTER, POT AND THE HAIRY PART
Judge Peter O’Connell authored a concurring Opinion in People v Redden on Sept. 14, 2010 which set the stage for years of misunderstanding about the Michigan Medical Marihuana Act. He cited federal law which he claimed negated the state Act, he advised sick people to completely abstain from using cannabis and took a dramatic approach to the dangers presented by the Act, which was approved by 63% of the voters statewide in 2008.
This is a quote from that time printed in the Oakland Press, authored by Clarkston Law:
The most interesting thing about the Court of Appeals’ Redden decision is the scathing concurring opinion of Judge Peter D. O’Connell. Judge O’Connell wrote separately because he would have more narrowly tailored the affirmative defenses available in the MMA, and because he wished to “elaborate” on some of the general discussion of the Act set forth in the briefs and at oral argument.
Elaborate he did. Judge O’Connell’s 30-page opinion first notes that the possession, distribution and manufacture of marijuana remains a federal crime and further notes that Congress has expressly found the plant to have “no acceptable medical uses.”
Law enforcement, eager to get a new tool to use against the new medical marijuana laws, focused on the minority opinion expressed by a single judge instead of the more moderate view adopted by the full Appeals Court. The Attorney General at the time was Mike Cox- but Bill Schuette was elected to the office just two months later, and by January 2011 he was in charge and moving forward with attacks on the medical marijuana community.
In an oddly satisfying twist of fate, the Appellate Judge is feeling the sting of Schuette in his own case now. Per the MIRS article:
What frustrates him most of all, O’Connell said, is the “gamesmanship” he said the Attorney General’s office has employed in the case. In the Court of Claims, the state argued that court had jurisdiction to make a ruling, but in the COA they argued it did not.
“Plainly, they’re causing the delay,” he said.
O’Connell also told MIRS, ”I know how the ordinary litigant now feels about the frustration with the court system because I’m one of those litigants.”
Turnabout is fair play, according to some cannabis rights activists in the state. “Judge O’Connell says that he now understands the ‘frustration with the court system’ commonly expressed by those who have had to participate in it,” said Jamie Lowell, a Board member of the MILegalize organization and a founder of Third Coast Dispensary in Ypsilanti, Michigan’s first licensed Center. “O’Connell has also been labeled by cannabis reform activists and other as one of the biggest obstructionists in the COA in terms of his work against the MMMA.
“As his case ironically helps to clarify law that potentially alleviates an additional hassle for the MIlegalize legal challenge with the state, the hope is that O’Connell’s experience as a litigant and new-found perspective will guide future decisions on behalf of the patients and caregivers whose lives his rulings have already profoundly affected.”
The O’Connell Opinion was cited in court proceedings by both prosecutors and judges as if it was law, including in the People v King case and others.
In the Opinion, O’Connell advocated that people completely ignore the medical marijuana laws they themselves voted for. It is a hairy thing, negotiating the maze described by J.K. Rowling in her series of international best-selling books featuring a young orphaned mage named Harry Potter, a boy with a lightning scar on his forehead. Trying to get information from the MMMA offices run by LARA can be a similarly hairy adventure.
This is the O’Connell quote from the Concurring Opinion on People v Redden/Clark:
Until our Supreme Court provides a final comprehensive interpretation of this act, it would be prudent for the citizens of this state to avoid all use of marijuana if they do not wish to risk violating state law. I again issue a stern warning to all: please do not attempt to interpret this act on your own. Reading this act is similar to participating in the Triwizard Tournament described in Harry Potter and the Goblet of Fire: the maze that is this statute is so complex that the final result will only be known once the Supreme Court has had an opportunity to review and remove the haze from this act.
Truly written like a Slytherin.
Jamie Lowell added a note regarding a fundraiser for MILegalize on July 1. Details at milegalize.com or:
Source: The Compassion Chronicles