State Courts Coping with Medical Marijuana Legislation Discerning Strife or Harmony?

Court challenges to medical marijuana legalization have involved novel and complex issues in a backdrop where marijuana usage, whether medical or recreational, is still illegal under federal law. In Gonzales v. Raich,³ the U.S. Supreme Court held the federal government has constitutional authority to prohibit marijuana for any and all purposes. Federal law enforcement officers possess the authority to prosecute possession by medical marijuana patients, even if these patients reside in a state where medical marijuana use is protected under state law.

In an effort to discern harmony or confront strife when interpreting and applying the law, state courts decide whether medical marijuana legislation “fits” with other state legislation derived from a myriad of legal situations. Recent PA and NJ court cases have changed traditional thought about how legalized medical marijuana applies in a variety of factual contexts.

A recent PA Supreme Court decision helped define the boundaries of local courts’ management of probationers’ use of medical marijuana while under court supervision. In Gass v. 52nd Judicial District of Lebanon County,⁴ probationers filed a class action challenging a trial court’s policy of prohibiting probationers from using medically prescribed marijuana while under court supervision. Sixty men and women on probation in that court were facing a choice between going to prison or giving up their possession of medical marijuana authorized by the PAMMA. Probationers asserted their absolute immunity right as patients, as evidenced by their medical prescription cards, arguing trial courts were prevented from judicial inquiry and oversight of probationers’ use of medical marijuana. Probationers argued trial courts could not conduct hearings where probationers were required to prove medical need for marijuana when a medical authority already authorized such use and possession under the PAMMA. Probationers did not dispute that trial court judges could make reasonable inquiries to ensure proper and lawful use of medical marijuana.

In response, the trial court argued the law did not contemplate restraining trial courts from monitoring probationers. In addition, the trial court argued difficulties in managing and administering conditions of probation where probationers are permitted to use medical marijuana while under supervision necessitated that trial courts prohibit such usage.

Considering these competing arguments, the PA Supreme Court in Gass noted the case implicated several public policy concerns, raising substantial legal questions of public importance because other local courts across PA were also about to implement the same local policy affecting probationers. The PA Supreme Court unanimously ruled against the trial court’s policy of preventing probationers from using their medically prescribed marijuana while under probation supervision. The PA Supreme Court held such court policy failed to permit adequate acknowledgment to a probationer’s valid medical marijuana prescription card as a patient for lawful medical use of marijuana. Moreover, the court stated probationers cannot bear the burden of proving medical necessity and lawfulness of use when probationers already lawfully possess medical marijuana prescribed by medical authorities, consistent with the PAMMA.

According to a recent Philadelphia Inquirer newspaper article, despite the holding in Gass, several drug courts have limited application of the ruling in Gass to probation situations. As a result, trial judges in several drug courts across Pennsylvania continue to mandate defendants turn in their valid medical marijuana cards prior to being enrolled in a diversionary drug program, or they face imprisonment for using medical marijuana.⁵

The NJ Supreme Court recently issued a landmark decision addressing use of medical marijuana in a disability discrimination claim case. In Justin Wild v. Carriage Funeral Holdings, Inc.,⁶ the NJ Supreme Court unanimously rejected a request to dismiss a funeral director’s lawsuit against his employer for firing him for legal use of medical marijuana, alleging a violation of the NJ Law Against Discrimination (NJLAD). The funeral director was a cancer survivor and was properly medically prescribed use of medical marijuana to treat his cancer. Reversing NJ’s Appellate Division, the NJ Supreme Court indicated NJLAD and NJCUMMA could be “harmonized” in a way that allowed the funeral director to use properly prescribed medical marijuana outside of the workplace. In doing so, however, the NJ Supreme Court warned that two provisions of the NJCUMMA could impact his LAD discrimination claim, depending on the factual circumstances he was able to prove. First, the court noted the NJCUMMA did not require employers to provide employees with accommodations for using medical marijuana in the workplace. Next, the court indicated the NJCUMMA did not allow a person to be under the influence of marijuana while operating, navigating, or being in actual physical control of vehicles, aircraft, railroad trains, stationary heavy equipment, and vessels. If the funeral director’s circumstances involving his LAD disability discrimination claim triggered one or both of these provisions, the NJCUMMA would impact his discrimination claim under LAD. The NJ Supreme Court, however, did not dismiss the funeral director’s discrimination cause of action at the motion-to-dismiss stage of the case until the parties availed themselves of opportunities to develop the facts further in this case.

Recently, Pennsylvania’s Commonwealth Court, another intermediate PA appellate court, in Harrisburg Area Community College v. PA Human Relations Commission,⁷ ruled against a nursing student and in favor of her registered nursing school, which mandated annual urine testing despite her possessing a properly prescribed medical marijuana card. The student refused to submit a urine sample, apparently knowing she would fail, and was expelled from the nursing program as a result. The student claimed her prescribed medical marijuana was a disability that exempted her under the PAMMA for said testing. While noting all types of marijuana remain illegal under federal law, the Commonwealth Court dismissed her complaint and held the PAMMA amended neither the PA Human Relations Act nor the PA Fair Education Opportunities Act to accommodate individuals who are prescribed medical marijuana. This court indicated that although the PAMMA regulates and licenses growers, manufacturers, researchers and medical dispensaries, the PAMMA fails to address students enrolled in education institutions after high school. The Commonwealth Court notes the PAMMA clearly applies to punish nurses who are prescribed medical marijuana as use could result in endangering the safety of others while they are under the influence of such marijuana. The Commonwealth Court deferred to PA legislators to address the issue raised in this case because legislators, not the courts, are vested with the power to make changes in the law.

In a federal case, Hudnell v. Thomas Jefferson University Hospitals,⁸ Judge Pappert, a federal trial judge in the Eastern District of PA, held in favor of an employee by ruling she sufficiently stated allegations to support a viable claim under the PAMMA. The employee, a security analyst, reported for her drug test in October 2019 and provided the nurse who was administering the test with copies of medical marijuana prescriptions, including her medical marijuana card. The nurse told the employee her medical marijuana card had expired in August 2019 and the employee responded she had an appointment with her doctor in a few days to get recertified. The employee renewed her card about three weeks before her drug test, but her doctor had not recertified it yet. When the nurse gave the drug test, the employee asked to submit her card after getting recertified. The nurse, however, said the employee could not do so and referred her to human resources. The employee’s doctor then recertified her for a medical marijuana card a few days after the test, and the employee completed her card renewal process a few days after being recertified.

After the employee renewed her card, human resources told her she was terminated. When the employee said she had been recertified and obtained a valid card, and offered to speak to the employer in person, the employer refused the offer and told her he would send her a termination letter. The employer also stated her recertification was not relevant because the employee did not have a valid medical marijuana card at time of the drug test.

The employee, who is an African American female, alleged racial bias in that the employer did not terminate a Caucasian male employee for failing a drug test even though he had not been certified to use medical marijuana. Rather, the employer opted to have the Caucasian male employee pursue drug treatment.

In denying the employer’s motion to dismiss, Judge Pappert held the employee stated sufficient facts that reasonably give rise to relief under the PAMMA. The employee adequately alleged facts that she lawfully purchased and used medical marijuana, revealed her status as a cardholder, failed a drug test at work, and was then terminated on the same day her medical marijuana card was recertified.

This Hudnell case is predicted to hold employers responsible for bearing the risk of liability under the PAMMA in certain circumstances. Employers could be liable for failing to make accommodations for employees when employers know recertification is imminent. Employers may have to protect employees under the law despite a lapse of recertification of medical marijuana cards when drug testing these employees.⁹

Courts are also deciding criminal cases involving the sufficiency of the odor of marijuana in warrantless searches. In Commonwealth v. Timothy Barr,¹⁰ wherein the PA Superior Court, an intermediate appellate court, held the plain odor of marijuana alone does not per se establish probable cause to conduct a warrantless search of a vehicle. The court, however, found the odor of marijuana can provide law enforcement with a general, probabilistic suspicion of criminal activity based on the fact most citizens cannot legally consume marijuana. Courts can consider that a defendant presented a PAMMA card as a factor weighing against a finding of probable cause, as such cards provide some evidence suggesting this marijuana was possessed legally. However, courts must also consider other factors contributing to a finding of probable cause, such as a defendant’s statements and demeanor during the vehicle stop, as well as the nature of the location of the vehicle stop. Thus, the court held the odor of marijuana remains a factor that courts should consider as contributing to a finding of probable cause assuming, however, some other circumstances supply more individualized suspicion that such activity is criminal. Moreover, the court also recognized the PAMMA allows citizens to use and possess marijuana lawfully under certain circumstances, thereby diminishing an inference of illegality simply from smelling the plain odor of marijuana.

By contrast, the NJ Superior Court, an intermediate appellate court, in State of NJ v. George A. Myers,¹¹ held longstanding NJ law remains intact in that the mere odor of marijuana provides probable cause for law enforcement to believe unlawful possession of marijuana has been committed. This applied, however, without evidence presented to law enforcement by the person suspected of possessing or using marijuana demonstrating a registry medical marijuana identification card.

These cases from two contiguous states provide a glimpse of the impact medical marijuana legislation is having in the courts. Due to inadequately written legislation, many more cases will be percolating through the courts as judges continue to interpret medical marijuana legislation discerning harmony in the law or confronting strife. We can only stay tuned for now.

Endnotes

1. N.J. Stat. Ann. §§ 24:6I-1 et seq. (2010).

2. 35 Pa. Cons. Stat. §§ 10231.101 et seq. (2016).

3. 545 U.S. 1 (2005).

4. 232 A.3d 706 (Pa. 2020).

5. Sam Wood, Why Some Pa. Marijuana Patients Face Jail for Not Surrendering Their Medical Marijuana Card, Phila. Inquirer (Oct. 19, 2020), https://www.inquirer.com/business/weed/marijuana-medical-card-supreme-court-opinion-parole-probation-duquesne-20201019.html.

6. 227 A.3d 1206 (N.J. 2020).

7. No. 654 C.D. 2919, 2020 Pa. Commw. LEXIS 722 (Oct. 29, 2020).

8. 2020 WL 5749924 (E.D. Pa. Sept. 25, 2020).

9. Catherine A. Cano, Federal Court Holds Pennsylvania Medical Marijuana Act Provides Private Action, Nat’l L. Rev. (Sept. 30, 2020), https://www.natlawreview.com/article/federal-court-holds-pennsylvania-medical-marijuana-act-provides-private-right-action.

10. No. 2347 EDA 2019, 2020 WL 5742680 (Pa. Super. Ct. Sept. 25, 2020).

11. 122 A.3d 994 (N.J. Super. A.D. 2015).