On September 19th, the Sixth Circuit ruled that Wal-Mart was within its rights to fire a young man for smoking medical marijuana prescribed by his doctor to manage chronic pain from cancer and an inoperable brain tumor. Before we get to the legal analysis, think about basic justice for a second. Once you do, the legal analysis will seem all the more incredible.
In 2008, Michigan’s voters decided to permit medical marijuana use. The operative part of the statute in the case at hand is as follows: “A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act….” At first blush, the words “penalty in any manner” and “any right or privilege” seem to suggest very broad protection from punishment. Moreover, conjoining the phrase “including but not limited to” to a list of private and public actors seems to indicate that all organizations, not just the state, are prohibited from penalizing medical marijuana users. So far, it looks like retaliation of any sort by any actor is not permitted.
The facts of the case are similarly straightforward. Joseph Casias worked at Wal-Mart from 2004 to 2009. In 2008, after the Michigan Medical Marihuana Act passed into law, Mr. Casias’ doctor prescribed marijuana for Mr. Casias’ chronic pain. Mr. Casias obtained the required patient registry card and began treating himself with marijuana. In November 2009 following a workplace injury, Mr. Casias tested positive for marijuana after a drug test in accordance with Wal-Mart’s policy to test employees injured at work. Mr. Casias explained the positive test to his supervisor and said that he never used marijuana at work or came to work under its influence, statements that were never challenged. Shortly thereafter, Wal-Mart’s corporate headquarters passed down the order to fire Mr. Casias for violating the company’s drug use policy.
Do we have a qualifying patient? Check. Subject to a disciplinary action? Check. By a business? Check. For medical use of marijuana? Check. Open and shut: Mr. Casias was wrongfully dismissed and must be compensated. Except the Sixth Circuit didn’t see it that way. Instead, it affirmed the district court’s dismissal of Mr. Casias’ action on the grounds that Mr. Casias did not state a claim. But how?
Interpreting the statute according to “the natural placement of words and phrases in relation to one another,” the court ruled that the word ‘business’ merely modifies licensing board or bureau. Very curious. Even the lower court conceded that listing three modifiers by placing the disjunctive ‘or’ between each is an uncommon technique. Most commonsense readers of English would go further: it is not a technique at all when the furthest ‘modifier’ is most naturally read as a noun. It simply doesn’t make sense to place a noun before a clear pair of adjectives and separate the list with ‘or’ throughout if the noun is meant to be an adjective, not when the statute’s drafters could have just as easily written, ‘by a business, occupational or professional licensing board or bureau.’ The court’s claim to a common language interpretation of the statute falls flat.
Moreover, when ‘business’ is read “in [its] context and with a view to [its] place in the overall statutory scheme,” the argument that the statute refers only to business licensing boards and bureaus becomes even more absurd. The entire clause of which ‘business’ is a part takes pains to stake out the wide breadth of protection for medical marijuana users from any penalties by any actors. Indeed, one could even argue that the statute would have barred Mr. Casias’s dismissal even if it did not make direct reference to businesses. The statute deliberately leaves open the types of actors prohibited from punishing medical marijuana users by placing “including but not limited to” before “a business or occupational or professional licensing board or bureau.” The “overall statutory scheme” is to prevent the punishment of medical marijuana users without regard to what sort of actor is the punisher.
The court also points out that the statute doesn’t directly refer to employment. That’s exactly right, and for an obvious reason: the statute’s extremely broad language is designed to encompass all penalties, employment and non-employment penalties alike, exactly so that the statute doesn’t need to create a comprehensive and necessarily incomplete list of punishments and punishers. Why would the statute specify employment when it already falls within the words of the statute?
Finally, the court looks to rulings in other states on other medical marijuana statutes. It finds that three courts have interpreted other states’ medical marijuana statutes to not affect private employment relationships. However, of the three statutes at issue, one didn’t prohibit businesses from penalizing employees (Montana), one explicitly said, “Nothing in this chapter requires an accommodation for the medical use of cannabis if an employer has a drug-free work place,” (Washington) and the third limits protection to non-prosecution for the possession or cultivation of marijuana (California). None of these statutes are close to the Michigan statute, and thus the court’s comparative analysis holds no weight.
On September 19th, the Sixth Circuit ruled that Wal-Mart was within its rights to fire a young man for smoking medical marijuana prescribed by his doctor to manage chronic pain from cancer and an inoperable brain tumor. Even though the statute said the opposite. Let’s hope the Supreme Court, if it takes this case, has a better grasp on the English language and, just as important, a fuller heart.