STATE OF MICHIGAN

IN THE 17TH CIRCUIT COURT COUNTY OF KENT

ON APPEAL FROM THE 59W DISTRICT COURT
___________________

THE PEOPLE OF THE

STATE OF MICHIGAN, Case No. 23-03126-AR

Plaintiff-Appellee, Hon. George J. Quist

v
59W District Case No: W22-2619
SHAQUITA L. SMITH, District Court Judge: Hon. Nicholas J. Christensen

Defendant-Appellant.

_________________________________________________
Kent County Prosecuting Attorney
Attorneys for Plaintiff-Appellee
82 Ionia Avenue NW, Suite 450
Grand Rapids, MI 49503
(616) 632-6710

Matthew T. Berry (P79621)

STANDARD & BERRY, PLLC
Attorneys for Defendant-Appellant
29 Pearl St. NW, Suite 421
Grand Rapids, MI 49503
(616) 622-3064
matt@standardberry.com

__________________________________________________

DEFENDANT-APPELLANT’S BRIEF IN SUPPORT OF

EMERGENCY MOTION FOR PEREMPTORY REVERSAL

ORAL ARGUMENT NOT REQUESTED

i
 TABLE OF CONTENTS

Index of Authorities ................................................................................................................. iii

Jurisdictional Statement ........................................................................................................... iv

Proceedings Below................................................................................................................... iv

Questions Presented ...................................................................................................................v

Statement of Facts ......................................................................................................................1

Summary of the Argument.........................................................................................................3

Standard of Review ....................................................................................................................4

Argument ...................................................................................................................................5

I. The district court abused its discretion when it denied Shaquita Smith’s motion
requesting that the court amend the terms of probation to allow her to use medical
marijuana while on probation when she provided proof of a current medical
marijuana registry identification card. ...........................................................................5

A. The district court incorrectly held that Shaquita Smith failed to show that her
registry card was issued in accordance with the MMMA when she is a
qualifying patient with a debilitating medical condition and has a bona fide
physician-patient relationship with the prescribing physician. .........................6

1. Shaquita Smith is a qualifying patient because she has a debilitating

medical condition. ...................................................................................7

2. Shaquita Smith has a bona fide physician-patient relationship with

the prescribing doctor.............................................................................8

B. The district court erred in its interpretation of the law in holding that
Shaquita Smith failed to show evidence of any regular treatments or
appointments with her physician when the language in the Physician
Certification Form satisfies the requirement. ....................................................9

C. The district court incorrectly held that Shaquita Smith failed to show that
any marijuana use would be in compliance with the MMMA when a
qualified patient in possession of a registry card is presumed to be in
compliance. ..........................................................................................................10

Summary and Relief Requested ..............................................................................................11

ii
 INDEX OF AUTHORITIES

Cases

People v Carlton, 313 Mich App 339, 345; 880 NW2d 803 (2015) ........................................4

People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017) ................................................. 4

People v Koon, 494 Mich 1, 8; 832 NW2d 724 (2013) ........................................................... 5

People v Mineau, 306 Mich App 325, 329; 855 NW2d 755 (2014) .........................................4

People v Moorman, 331 Mich App 481, 485; 952 NW2d 597 (2020) ......................................4

People v Rydzewski, 331 Mich App 126, 132; 951 NW2d 356 (2020) ....................................4

People v Thue, 336 Mich App 35; 969 NW2d 346 (2021) .................................................. 5, 6

People v Vansickle, 303 Mich App 111, 114; 842 NW2d 289 (2013) ......................................4

Ter Beek v Wyoming, 495 Mich 1, 8; 846 NW2d 531 (2014) ................................................... 5

Statutes

E.R.O. No. 2022-1, compiled at MCL 333.27002 .................................................................... 6

Health Insurance Portability and Accountability Act of 1996. Pub. L. No. 104-191, 110
Stat.1936 ................................................................................................................................ 10

MCL 333.26421 ........................................................................................................................ 5

MCL 333.26423 ...................................................................................................... 6, 7, 8, 9, 10

MCL 333.26424 .................................................................................................................. 6, 10

MCL 333.26426 .......................................................................................................... 6, 7, 9, 10

MCL 333.26428 ........................................................................................................................ 9

Rules

MCR 7.103.............................................................................................................................. iv

MCR 7.104.............................................................................................................................. iv

MCR 7.110 ............................................................................................................................. iv

MCR 7.211.............................................................................................................................. iv

iii
 JURISDICTIONAL STATEMENT

Pursuant to MCR 7.103(A), this Court has jurisdiction over appeals of final orders of Kent
County district courts, as well as jurisdiction over motion practice in circuit court appeals, pursuant
to MCR 7.110. Under MCR 7.110, motion practice includes “special motions identified in MCR
7.211(C).” Ms. Shaquita Smith’s appeal is based on a motion for peremptory reversal pursuant to
MCR 7.211(C)(4).
On February 21, 2023, the 59th District Court of the City of Walker, Kent County, Michigan
issued a final Order of Probation for Ms. Shaquita Smith. On February 27, 2023, Ms. Smith filed
an Ex Parte Motion to Amend Probation, and the trial court denied the motion on February 28,
2023. Ms. Smith then filed a Motion for Reconsideration on March 1, 2023. A hearing on the
Motion was held on March 15, 2023. The trial court issued its opinion denying the Motion on
March 20, 2023. Ms. Smith filed her notice of appeal on April 3, 2023, within 21-days of the Order
denying her Motion for Reconsideration. MCR 7.104(A)(2).

PROCEEDINGS BELOW

Ms. Smith filed an Ex Parte Motion to Amend Probation on February 27, 2023 requesting
that the prohibition against medical marijuana be removed from the special terms. The district
court denied the motion on February 28, 2023 adding that it would reconsider with evidence that
she had a medical marijuana registry identification card prior to sentencing and proof of a bona
fide physician-patient relationship with the prescribing doctor. Ms. Smith filed a Motion for
Reconsideration on or about March 1, 2023 citing controlling case law. The district court set the
motion for hearing on March 15, 2023, during which hearing Ms. Smith presented a current
medical marijuana registry identification card and the Physician Certification Form that
accompanied her application to the state’s Cannabis Regulatory Agency. The district court issued
its Order denying the motion on March 20, 2023. On April 3, 2023 Ms. Smith filed her Claim of
Appeal.

iv
 QUESTION PRESENTED

I. DID THE DISTRICT COURT ABUSE ITS DISCRETION WHEN IT DENIED

SHAQUITA SMITH’S MOTION REQUESTING THAT THE COURT AMEND THE
TERMS OF PROBATION TO ALLOW HER TO USE MEDICAL MARIJUANA WHILE
ON PROBATION WHEN SHE PROVIDED PROOF OF A CURRENT MEDICAL
MARIJUANA REGISTRY IDENTIFICATION CARD?

Defendant-Appellant says: Yes.

The District Court says: No.

v
 STATEMENT OF FACTS

Ms. Shaquita Smith (“Smith”) pled guilty to Retail Fraud 3rd Degree on February 14, 2023,
and, because there was no matter of restitution, the trial court moved immediately to sentencing.
After pointing out Smith’s lack of criminal history and her honesty and remorse in the matter, the
trial court sentenced Smith to one year of probation plus community service and fines and costs.
(Exhibit A). The court stated the conditions of probation, which included prohibiting Smith from
using alcohol, illegal drugs, and marijuana, including medical marijuana, even though Smith does
not have any history of alcohol or drug abuse, and the case facts do not allege that she was under
the influence of alcohol, marijuana, or any controlled substances at the time of the offense.
Smith is 34 years old with virtually no criminal history other than a previous retail fraud
3rd degree—a max 93-day misdemeanor—from over 15 years ago1. At the time of sentencing,
defense counsel was unaware that Smith suffers from a serious illness—human immunodeficiency
virus, more commonly known as H.I.V. (“HIV”)—that requires her to take a daily prescription
combination antiretroviral medication (currently Biktarvy). The combination of the virus and the
medication can cause severe nausea, pain, discomfort, and lack of appetite, and that the only thing
that Smith has found to alleviate those side effects is marijuana.
While meeting with her probation officer for the first time, Smith found that the prohibition
against marijuana use included medical marijuana (she missed that part during sentencing). Smith
previously had a medical marijuana registry identification card (“registry card”) that she was
approved for in early 2018 after being diagnosed with HIV. (Exhibit B). However, when her
registry card was due for renewal in early 2020, Michigan had already passed and implemented
the new law making recreational marijuana legal. At that time, Smith found it was not necessary
to renew her registry card since she could now purchase marijuana without it, and she did not have
a job, apartment, etc. that prohibited recreational marijuana use (thus continuing her need for a
registry card). (Exhibit G, p 5:2-6).
After meeting with her probation officer, and being advised by defense counsel, Smith
went back to the same doctor’s office that evaluated her need for a registry card in 2018, but
unfortunately the doctor who first prescribed her medical marijuana had since passed away, so she

1
Additionally, because of the nature of the charge and the length of time since it happened, Ms. Smith’s prior retail
fraud 3rd degree will most likely be automatically expunged under Michigan’s newly implemented Clean Slate Act.

1
was placed under another doctor’s care in the same office. (Exhibit G, p 5:18-19). Smith met with
and was medically evaluated by Dr. Marla Gendelman, M.D. (“Dr. Gendelman”), who assessed
Smith’s medical history and current medical condition. After the relevant medical evaluation,
medical assessments, and discussions with Smith, Dr. Gendelman filled out and signed a Physician
Certification Form (“Certification”) attesting to being in full compliance with the Michigan
Medical Marijuana Act (“MMMA”), having a bona fide physician-patient relationship with Smith,
her debilitating medical condition, and that she is likely to receive therapeutic or palliative benefits
from the medical use of marijuana. (Exhibit H).
Smith submitted her application and all supporting documents, including the Certification,
to the state’s Cannabis Regulatory Agency (“Agency”), and was subsequently approved for a
registry card on March 8, 2023. (Exhibit F). At the March 15, 2023 hearing on her motion, the
district court was shown, and allowed to make copies of, Smith’s registry cards from 2018 and
2023. (Exhibit G, p 7:12-14). During this hearing, the district court stated that it would require
more than a copy of Smith’s registry card to be sure that she was in compliance with the MMMA,
even though one cannot get a registry card without first being in compliance with the MMMA.
(Exhibit G, p 10:10-16, 19-21; p 11:7-11). The district court stated that it did not have a copy of
the written certification as defined in the MMMA and that possibly an affidavit, but preferably live
testimony, from the prescribing physician would be necessary to convince the court that Smith
required medical marijuana, that her registry card was properly issued, and that she and Dr.
Gendelman have a bona fide physician-patient relationship and are otherwise in compliance with
the MMMA. (Exhibit G, p 11:18-20).
The next morning the district court was emailed a copy of the Certification, that was filled
out and signed by Dr. Gendelman. The district court issued its order on March 20, 2023 denying
Smith’s request to use medical marijuana while on probation. (Exhibit I).

2
 SUMMARY OF ARGUMENT

The Circuit Court should grant peremptory reversal of the 59th District Court’s Order
denying Shaquita Smith’s Motion. Because the Michigan Medical Marijuana Act (“MMMA”)
supersedes any other statutes that conflict with the MMMA’s language, a trial court is forbidden
from prohibiting, penalizing, or prosecuting a probationer for using medical marijuana in
accordance with the MMMA while the probationer is in possession of a current registry card. The
district court improperly prohibited Smith from using medical marijuana while on probation, and
incorrectly denied her motion after she presented to the court her current registry card and a copy
of her Physician Certification Form (“Certification”).
The 59th District Court abused its discretion when it held that Smith’s current registry card
was not issued in accordance with the MMMA, as the simple fact that she even has a registry card
is proof alone that it was properly issued. Registry cards are issued by the Agency after a careful
review of a patient’s application, a physician’s signed written certification form—which includes
information such as the patient’s debilitating medical condition and an attestation that a bona fide
physician-patient relationship exists—and other supporting documents (e.g., patient’s personal
identification information).
The evidence clearly shows that Smith has a valid, current registry card issued to her by
the Agency on March 8, 2023 that is good for two years. Smith was approved for the registry card
because she has a debilitating medical condition—HIV—as defined in the MMMA. Because she
has a debilitating medical condition, Smith is a qualified patient. Smith’s physician, Dr.
Gendelman, attested in the Certification that she has a bona fide physician-patient relationship with
Smith. Under the MMMA, having a bona fide physician-patient relationship includes the
anticipation of regular treatment and appointments, thus it doesn’t need to be stated separately.
Any person with a current registry card is presumed to be in compliance with the MMMA, thus
Smith’s medical marijuana use is presumed to be in accordance with the MMMA, and neither the
district court nor the probation department presented any evidence to rebut that presumption.

3
 STANDARD OF REVIEW

The district court abused its discretion in prohibiting Ms. Smith from using medical
marijuana while on probation. An appellate court reviews a trial court’s determination of
probationary terms for an abuse of discretion. People v Mineau, 306 Mich App 325, 329; 855
NW2d 755 (2014). A trial court abuses its discretion when its decision “falls outside the range of
reasonable and principled outcomes,” which necessarily happens when it “makes an error of law.”
People v Rydzewski, 331 Mich App 126, 132; 951 NW2d 356 (2020) (quoting People v Franklin,
500 Mich 92, 100; 894 NW2d 561 (2017)).
The district court clearly erred in finding that Ms. Smith is not a qualifying patient, does
not have a debilitating medical condition, and does not have a bona fide physician-patient
relationship with Dr. Gendelman. A trial court’s findings of facts are reviewed for clear error.
People v Moorman, 331 Mich App 481, 485; 952 NW2d 597 (2020). Factual findings are clearly
erroneous if it leaves an appellate court “with a firm conviction that the trial court made a mistake.”
People v Vansickle, 303 Mich App 111, 114; 842 NW2d 289 (2013).
The district court clearly erred in its interpretation of the MMMA in finding that Ms. Smith
failed to show that her medical marijuana use would be in compliance and that she was required
to show regular treatments and appointments. An appellate court reviews de novo questions of law
and statutory interpretation, including “whether the trial court properly interpreted and applied the
Medical Marihuana Act.” People v Carlton, 313 Mich App 339, 345; 880 NW2d 803 (2015).

4
 ARGUMENT/DISCUSSION

I. The district court abused its discretion when it denied Shaquita Smith’s motion
requesting that the court amend the terms of probation to allow her to use medical
marijuana while on probation when she provided proof of a current registry card.

The Michigan Medical Marijuana Act (“MMMA”) allows for certain individuals to use
marijuana for particular medicinal purposes without being subject to arrest, prosecution, penalties,
and loss of employment. See MCL 333.26421 et seq.; People v Thue, 336 Mich App 35, 48; 969
NW2d 346 (2021). Any Michigan statute “that conflicts with a defendant's right to MMMA-
compliant use of marijuana is preempted or superseded by the MMMA.” Id. at 47; see also Ter
Beek v Wyoming, 495 Mich 1, 19; 846 NW2d 531 (2014) (holding that the immunity provision of
the MMMA was not preempted by the federal controlled substance act, and that the city of
Wyoming’s ordinance prohibiting marijuana use was preempted by the MMMA); People v Koon,
494 Mich 1, 8; 832 NW2d 724 (2013) (holding that the immunity provision of the MMMA
supersedes the part of the Michigan Vehicle Code that prohibits drivers from having any amount
of marijuana in their system). A district court cannot prohibit a defendant, who has a current
registry card, from using medical marijuana while on probation because the “provisions of
Michigan’s probation act “that are inconsistent with the MMMA do not apply to the medical use
of marijuana.” Thue, 336 Mich App at 47. Thus, any probationary conditions that forbid medical
marijuana use “that is otherwise used in accordance with the MMMA . . . is impermissible.” Id.
Finally, the law does not require a defendant to have possessed a registry card prior to sentencing.
See generally MCL 333. 26421 et seq.
In 2021, the Michigan Supreme Court took up the issue concerning a defendant using
medical marijuana while on probation. In Thue, the Court addressed the issue as to whether a trial
court has the authority to prohibit a defendant/probationer from using medical marijuana when
used in compliance with the MMMA. The defendant in Thue pled guilty to a 93-day max
misdemeanor and was placed on probation for one year with restrictions that included no marijuana
use, including medical marijuana. Thue, 336 Mich App at 38. Even though the defendant had a
current, valid registry card and there were no allegations that he used marijuana in violation of the
MMMA, the trial court kept the prohibition intact. Id. at 47. The Court held that the district court
erred when it included a prohibition against medical marijuana as part of probation. Id. at 48.

5
 The case at bar is analogous and on point with Thue. Here, Smith pled guilty to a 93-day
misdemeanor and was placed on probation for one year with numerous special conditions
including a prohibition against using medical marijuana. (Exhibit A). Smith has a current registry
card issued to her by the Agency. (Exhibit F). Although Smith submitted her current registry card
to the court, and the district court had no allegations or evidence that she was in violation of the
MMMA, the court was unconvinced that she was in compliance. Because she possesses a current,
valid registry card, the district court cannot prohibit Smith from using medical marijuana in
compliance with the MMMA, and it abused its discretion in doing just that.

A. The district court incorrectly held that Shaquita Smith failed to show that her
registry card was issued in accordance with the MMMA when she is a qualifying
patient with a debilitating medical condition and has a bona fide physician-patient
relationship with the prescribing physician.

A registry card is a “document issued by the Marijuana Regulatory Agency2 that identifies
a person as a registered qualifying patient . . . .” MCL 333.26423(n) (emphasis added). The Agency
must verify the application information—including a written Certification—and then either
approve or deny the application. MCL 333.26426(c). The Agency must issue a registry card to a
qualifying patient who submits a completed application, signed written Certification, and
supporting documentation (e.g., personal identifying information). See MCL 333.26426(a)(1)-(6).
“A qualifying patient who has been issued and possesses a registry identification card is not
subject to arrest, prosecution, or penalty in any manner . . . .” MCL 333.26424(a) (emphasis added).
A person may be denied a registry card “only if the applicant did not provide the information
required pursuant to this section, or if the marijuana regulatory agency determines that the
information provided was falsified.” MCL 333.26426(c).
In the case at bar, the simple fact that Smith has a current registry card is evidence that it
was issued in accordance with the MMMA because the Agency reviewed her application and
approved her for medical marijuana use. Smith presented her current registry card to the district
court, who then made a photocopy of it, and made it a part of the court file. (Exhibit G, p 7:13-14).
However, the district court mistakenly believes that it is the court’s responsibility and authority,
instead of the Agency, to decide who does and does not qualify for a registry card. (Exhibit G, p

2
Amended in 2022 to the Cannabis Regulatory Agency. See E.R.O. No. 2022-1, compiled at MCL 333.27002.

6
10:19-21) (“I have to be sure that you fit the qualifications of the act for me to be able to make an
allowance for the continuation of marijuana.”).
Because she has a current registry card, and it was issued by the Agency, Smith’s registry
card was issued in accordance with the MMMA, and the district court clearly erred when it made
findings of fact to the contrary.

1. Shaquita Smith is a qualifying patient because she has a debilitating

medical condition.

The district court erred when it held that Smith failed to show that she is a qualifying patient
and failed to show that she has a debilitating medical condition. A qualified patient is one "who
has been diagnosed by a physician as having a debilitating medical condition." MCL
333.26423(m). A debilitating medical condition includes a “positive status for human
immunodeficiency virus . . . or the treatment of these conditions.” MCL 333.26423(b)(1). Other
situations labeled as debilitating medical conditions are diseases, medical conditions, or treatments
for said diseases or conditions that produce at least one of the following: “. . . severe and chronic
pain; severe nausea . . . .” MCL 333.26423(b)(2).
When the district court was unconvinced after seeing Smith’s registry card, (Exhibit G, p
11:8-10) (“I need to see that you are quote, a qualified patient, as outlined in that same act . . . .”),
it then stated that it needed to see the written certification. (Exhibit G, p 11:11). To be clear, the
written certification from a physician that a patient then submits to the Agency is supposed to be
protected confidential information.3 However, the issue is so important to Smith that she gave
counsel permission to provide the court the next day with a copy of the Certification, signed by
Dr. Gendelman. (Exhibit H).
It is clear that Smith was diagnosed by a physician as being HIV positive, which is a
debilitating medical condition. Both the disease and the treatment that Smith takes for it causes
her to suffer severe nausea and chronic pain, which are also considered debilitating medical
conditions within the MMMA. (See Exhibit H, categories B & C). Even after Smith was forced to
unnecessarily divulge confidential information about her medical condition, the court was still
unconvinced that Smith was in compliance with the MMMA and went on to make outrageous,

3
“[A]pplications and supporting information submitted by qualifying patients, including information regarding their
primary caregivers and physicians, are confidential.” MCL 333.26426(h)(1).

7
insulting findings that fly in the face of clear law and facts in its subsequent Order denying her
motion. (Exhibit I) (“Other than a check box on the Certification, the defendant has failed to show
a ‘debilitation [sic] medical condition,’ per MCL 333.26423(b).” The check box that the district
court so dismissively refers to is the box next to “HIV Positive” under Category A, which Dr.
Gendelman checked as part of her attestation concerning Smith’s debilitating medical condition.
Because Smith has HIV, and suffers from severe nausea and chronic pain, she has a
debilitating medical condition. Because Smith has a debilitating medical condition, she is a
qualifying patient. The district court clearly erred in finding otherwise. Flippant

2. Shaquita Smith has a bona fide physician-patient relationship with

the prescribing doctor.

The district court erred when it held that Smith failed to show that she has a bona-fide
physician-patient relationship with Dr. Gendelman. A written certification is a document signed
by a physician attesting to having completed the necessities4 to be in compliance with the MMMA.
MCL 333.26423(r). This includes, inter alia, attesting that a bona fide physician-patient
relationship exists. A bona fide physician-patient relationship exists when the physician reviews
the patient’s medical records and history, assesses the patient’s current medical condition, conducts
a medical evaluation, maintains the patient records, reasonably expects to provide follow-up care
concerning the efficacy of the patient’s medical marijuana use, and, if given permission from
patient, notifies the patient’s primary care physician about the patient’s debilitating medical
condition and use of medical marijuana. MCL 333.26423(a).
Smith’s Certification is signed by Dr. Gendelman, Smith’s prescribing physician. (Exhibit
H). This written certification specifically attests that Dr. Gendelman is in compliance with the
MMMA and has a bona fide physician-patient relationship with Smith. Id. The attestation then
goes on further to state, verbatim, the specific required language under the MMMA’s definition of
“written certification,”—the very language that the district court discredits as “boilerplate” in its
written order. Instead of accepting the very form that is required by the Agency, it appears that the
district court would prefer to drag physicians into court to testify about confidential medical

4
The certification must state the following: “(1) The patient's debilitating medical condition (2) The physician has
completed a full assessment of the patient’s medical history and current medical condition, including a relevant
medical evaluation (3) In the physician’s profession opinion, the patient is likely to receive therapeutic or palliative
benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or
symptoms associated with the debilitating medical condition.” MCL 333.26423(r)(1)-(3).

8
information every time it’s presented with a medical marijuana request. (Exhibit G, p 11:24; p
12:5-9) (“[T]hat is going to require bringing in Dr. G . . . . So I think this would be something that
would require Dr. G—this issuing provider—to be here, to be able to be heard from. For me to be
able to find out if there is indeed a bona fide physician-patient relationship and if it qualifies under
the act.”). Additionally, the district court erroneously stated in its written order that “Marla S.
Gendelman, M.D., approved defendant for a registry card on March 8, 2023.” (Exhibit I, p 2, lines
4-5) (emphasis added). However, that is not how the process works.
An application for a registry card, which includes the written Certification, must be
submitted to the Agency, who then verifies the validity of the information before granting or
denying a registry card to the applicant. See MCL 333.26426, 333.26423. Thus, it is the Agency,
not the patient’s physician, that approves or denies an application for a registry card. The fact that
Smith was granted a registry card means that the Agency reviewed Smith’s application, the written
Certification, and all supporting documents, and determined them all valid. See MCL 333.26426.
Furthermore, a patient has an affirmative defense that is presumed valid when the following is
shown:

A physician has stated that, in the physician's professional opinion, after

having completed a full assessment of the patient's medical history and
current medical condition made in the course of a bona fide physician-
patient relationship, the patient is likely to receive therapeutic or palliative
benefit from the medical use of marihuana to treat or alleviate the patient's
serious or debilitating medical condition or symptoms of the patient's
serious or debilitating medical condition. MCL 333.26428(a)(1).

Again, the above is the same language included on the Certification signed by Dr. Gendelman on
behalf of Smith. (Exhibit H). There is no question that Smith has a bona fide physician-client
relationship with Dr. Gendelman, and the district court clearly erred in finding otherwise.

B. The district court erred in its interpretation of the law in holding that Shaquita
Smith failed to show evidence of any regular treatments or appointments with her
physician when the language in the Physician Certification Form satisfies the
requirement.

The MMMA’s definition of a bona fide physician-patient relationship includes that the
physician “has a reasonable expectation that he or she will provide follow-up care to the patient
to monitor the efficacy of the use of medical marihuana as a treatment of the patient's debilitating

9
medical condition.” MCL 333.26423(a)(3) (emphasis added). Again, the Certification signed by
Dr. Gendelman on behalf of Smith specifically attests that she has a bona fide physician-patient
relationship with Smith. (See Exhibit H, Section D). That attestation covers all aspects of the bona
fide relationship requirements, not just some of them. Furthermore, there is nothing in the language
of the MMMA that requires a patient to continually update anyone, including a court, of his or her
medical appointments. In fact, requiring a patient to do so would violate confidentiality aspects of
the MMMA and possibly privacy rights under HIPAA5. See MCL 333.26426(h)(1).
In its written order, the district court stated that there “is no evidence today of any regular
treatments or appointments between defendant and Dr. Gendelman.” (Exhibit I). However, a
patient is not required to update a court about all appointments and/or follow-up care. Certainly,
there is no legal requirement within the MMMA for a patient or physician to divulge this type of
information. Additionally, a physician is not required to state in the Certification every single
aspect of the MMMA’s definition of a bona fide physician-patient relationship. The fact that Dr.
Gendelman signed an attestation stating that she has a bona fide physician-patient relationship with
Smith is enough to satisfy all aspects and subgroups of that definition. Additionally, the definition
says a “reasonable expectation” of follow-up care. Thus, it only means that the physician expects
to have follow-up care at some point; it does not mean that there must have already been follow-
up care or even an appointment made within any certain timeframe. The district court’s reading,
understanding, and interpretation of the law is clearly erroneous.

C. The district court incorrectly held that Shaquita Smith failed to show that any
marijuana use would be in compliance with the MMMA when a qualified patient
in possession of a registry card is presumed to be in compliance.

“There is a presumption that a qualifying patient . . . is engaged in the medical use of

marihuana in accordance with this act if the qualifying patient . . . is in possession of a registry
identification card . . . .” MCL 333.26424(e). Here, as stated above, Smith is a qualifying patient
who has a current, valid registry card. (Exhibit F). At Smith’s hearing on her motion, the district
court was shown, and given permission to make a photocopy of, Smith’s current registry card (as
well as her previous registry card from 2018). (Exhibit G, p 7:13-14).

5
Health Insurance Portability and Accountability Act of 1996. Pub. L. No. 104-191, 110 Stat.1936.

10
 Although the presumption may be rebutted by evidence showing that the patient is not
using marijuana for alleviating a debilitating medical condition, the district court failed to offer
any such evidence. (see generally Exhibit G). Instead, the district court simply stated in its written
order that the burden was on Smith to prove that she is in compliance, which she did by presenting
her registry card to the court. Because Smith is in possession of a current registry card, and the
district court failed to produce any evidence that she will not use marijuana in accordance with the
MMMA, any use of medical marijuana by Smith is in compliance with the MMMA. The district
court’s conclusion is clearly erroneous.

SUMMARY AND RELIEF REQUESTED

For the reasons stated, the district court’s order denying Ms. Shaquita Smith’s motion
should be peremptorily reversed, and the restriction against medical marijuana use should be
stricken from the terms of her probation.
Respectfully submitted,

STANDARD & BERRY, PLLC

Date: 04/20/2023 ________________________

Matthew T. Berry (P79621)
Attorney for Defendant
STANDARD & BERRY, PLLC
29 Pearl St. NW, Suite 421
Grand Rapids, MI 49503
(616) 622-3064
matt@standardberry.com
Attorneys for Defendant-Appellant

11